Lawmakers seek intermediate court of appeals
CHARLESTON — After a defeat on the next-to-last day of the 2020 session, Republican lawmakers believe this is the year for West Virginia to finally have an intermediate court of appeals.
The Senate Judiciary Committee on Tuesday afternoon took up Senate Bill 275, creating the West Virginia Appellate Reorganization Act.
SB 275 would create an intermediate court of appeals between the circuit courts and the state Supreme Court. The new court would hear non-criminal appeals of circuit court cases, family court cases and guardianships and conservatorships. The intermediate court would also have original jurisdiction over writs of mandamus and prohibition.
Senate Judiciary Committee Chairman Charles Trump, R-Morgan, has long been a supporter of an intermediate court, shepherding several attempts to create such a court through the legislative process. An intermediate court would create a thorough, efficient, predictable system of justice, Trump said.
“It’s needed to free up the Supreme Court of Appeals to go back to a discretionary docket,” Trump said. “Instead of spending enormous amounts of its time reviewing cases that are really routine … the Supreme Court will now be able, if we can stand up an intermediate appellate court, to devote their considerable talents and resources to those kinds of questions.”
As well as civil appeals, the intermediate court would hear appeals of administrative law judge decisions and final orders and decisions by the state Healthcare Authority. The bill also replaces the Workers’ Compensation Office of Administrative Judges with a Workers’ Compensation Board of Review, from where decisions can be appealed to the intermediate court.
The new court will not handle appeals of criminal proceedings, juvenile proceedings, child abuse and neglect cases, orders of commitment, appeals of Public Service Commission decisions, interlocutory appeals, certified questions of law or extraordinary remedies.
Those appeals and cases would continue to be handled by the Supreme Court.
After cases are filed with the new appeals court, parties can still file for a direct review of their case before the Supreme Court if the appeal involves a question of fundamental public importance or if a case must be expedited.
The new court would be divided into a northern and southern district with three judges each. Each has jurisdiction over appeals of final decisions, judgments and orders within their districts. The bill includes no permanent facilities for the two court districts with the clerk of courts for the Supreme Court determining locations of hearings at county courthouses based on convenience to the litigants.
The first judges would be appointed by the governor from eight qualified candidates submitted by the Judicial Vacancy Advisory Commission with the first election for a 10-year term starting in 2024. The appointed judges would serve in staggered terms, starting at two years, four years and six years.
Similar bills have been introduced over the years and the creation of an intermediate court has been high on the priority list for pro-business groups. Two studies have recommended the state implement an intermediate court of appeals, one in 1998 under the late Republican Gov. Cecil Underwood and another in 2010 under former Gov. Joe Manchin, a Democrat, and chaired by former U.S. Supreme Court Justice Sandra Day O’Connor.
Opponents say the new court isn’t needed, would cost more money, would slow down the judicial process and be unfair. Since 2011, the Supreme Court renders written decisions in all appeals and recent data shows the court’s caseload has decreased over a five-year period between 2015 and 2019. Fiscal notes submitted by the Supreme Court for last year’s bill estimated an intermediate court system could cost as much as $8.5 million to start up and $7.2 million in its first full year.
“It is fiscally irresponsible for this state to add an intermediate court when it’s clear that it’s not needed,” said Jonathan Mani, president of the West Virginia Association for Justice. “Appeals have declined nearly 70 percent since 2004. You don’t need to expand our state government with more appellate courts when appeals are in rapid decline,”
Last year, a bill creating an intermediate court of appeals nearly made it over the finish line. That bill passed the Senate along party lines but failed 44-56 in the House on March 6, one day before the 60-day 2020 legislative session ended. An attempt by some House Republicans to reconsider the vote was rejected.
This year, SB 275 was introduced on behalf of Gov. Jim Justice, who singled out creating an intermediate court in his State of the State address last week.
“I also want to strongly support and hope like crazy it gets in through this year is an intermediate Court of Appeals,” Justice said in his Feb. 10 speech to lawmakers.
With greater numbers of Republicans in the House and Senate, combined with the support of the governor, Trump believes this just might be the year that an intermediate court bill is passed by the Legislature and signed into law.
“We’re all delighted, those of us who favor the creation of an intermediate appellate court, that the governor has taken a leadership role on it and has made it a part of his legislative program this year,” Trump said. “I try not to make predictions because I’m wrong as often as I’m right…but I guess I’ll be cautiously optimistic.”
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