New Intermediate Appeals Court judges appointed

Contributed JUDGES — Pictured, from left, Thomas Scarr, Dan Greear, and Donald Nickerson Jr. have been appointed as the first justices of the West Virginia Intermediate Court of Appeals.

CHARLESTON — The first judges of the new West Virginia Intermediate Court of Appeals were appointed Tuesday as the West Virginia Supreme Court of Appeals gets the court ready by July.

Gov. Jim Justice announced the new Intermediate Court of Appeals judges in a ceremony Tuesday morning at the Capitol.

Justice appointed Huntington attorney Thomas Scarr for a term ending in 2024, former Kanawha County circuit court judge Dan Greear for a term ending in 2026, and Wheeling attorney and Ohio County Commissioner Donald Nickerson Jr. for a term ending in 2028. Future ICA judges will be elected.

“Now, we are appointing an Intermediate Court of Appeals, an incredible step that reflects the values of West Virginians,” Justice said. “We want goodness for West Virginia, and this is another step where we make those moves.”

While the creation of an intermediate court has been recommended and talked about for more than 15 years, Justice first proposed creating the court in his first term.

“This is a historic day in West Virginia, without any question,” Justice said. “But historic doesn’t mean anything if you didn’t get it right. I think we got it right. I’m really, really proud.”

The West Virginia Supreme Court of Appeals released a statement Tuesday afternoon welcoming the new judges.

“The Supreme Court welcomes Gov. Justices’ appointments to the new Intermediate Court of Appeals and congratulates each of these well-qualified individuals on being selected,” said Chief Justice Evan Jenkins. “We are committed to working together to improve our justice system.”

“I look forward to working closely with each of the new judges as we set up the operations of West Virginia’s first Intermediate Court of Appeals,” said Justice John Hutchison, who will serve as chief justice starting in 2022.

Scarr is an attorney with the Jenkins Fenstermaker law firm with offices in Huntington and Clarksburg. His expertise is in the areas of civil litigation, labor and employment law, and state and federal white collar criminal defense.

“I thank you for this great honor,” Scarr said to Justice over video live-chat. “I’m looking forward to working with the other judges and the Supreme Court to establish the Intermediate Court of Appeals.”

Greear is a former circuit court judge for the 13th Judicial Circuit in Kanawha County. The chief of staff to former House Speaker and current state Supreme Court Justice Tim Armstead, Greear was appointed to the bench by Justice in 2019 to fill a vacancy due to the retirement of Judge James Stucky. He ran for election to the seat but was defeated by attorney Tera Salango in 2020.

Greear returned to the House of Delegates as counsel to House Speaker Roger Hanshaw, R-Clay. Greear was also an unsuccessful Republican candidate for state Attorney General in 2008.

“I want to thank you, governor, for the faith you placed in me again and just thank you for this opportunity,” Greear said. “I look forward to looking with my fellow judges, the Supreme Court, and the Legislature to make sure that we make this court a success and that it serves all of West Virginia.”

Nickerson is an attorney at the Spillman Thomas and Battle law firm in Wheeling and was elected to the Ohio County Commission in 2019. Nickerson also serves as the vice president and trust officer for WesBanco Bank and United Bank.

Nickerson has judicial experience, having served as Wheeling’s municipal court judge between 1999 and 2019. He also worked as fiduciary commissioner in Ohio County between 1999 and 2004. From 1990 to 1992, Nickerson was an assistant attorney general in Ohio and general counsel for the Ohio Department of Natural Resources.

“This is an important and prestigious position in our judicial system,” Nickerson said. “I’m flattered and humbled by it and gratefully accept it. I will work very hard with the other judges to make this court a success and I pledge to always be professional and ethical the way I’ve been my whole career.”

Justice was presented with three recommendations for each of the three seats on the new court last week by the Judicial Vacancy Advisory Commission, an eight-member panel consisting of attorneys and members of the public. The JVAC narrowed the recommendations from 29 applicants during the first week of December.

The ICA will hear noncriminal appeals of circuit court cases, family court cases and guardianships and conservatorships, appeals of administrative law judge decisions and final orders and decisions by the state Health Care Authority. The intermediate court 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 Legislature created the court with Senate Bill 275 in April after years of attempts. The new court is meant to help take the load off of the Supreme Court and allow the justices to focus on precedent-setting legal cases. The Supreme Court will still have the ability to seek jurisdiction over civil cases appealed to the intermediate court. Parties in cases would also be able to appeal to the Supreme Court, which could hear cases on its own discretion.

The American Tort Reform Foundation, publisher of the annual Judicial Hellholes list, removed West Virginia from that category and from its watchlist after West Virginia created the ICA. West Virginia was one of nine states without an intermediate appeals court.

“Following another successful legislative session, West Virginia no longer finds itself on the Judicial Hellholes or Watch Lists,” according to the report. “West Virginia has taken great strides toward creating a fair and balanced civil justice environment. The ATRF will keep a close eye on future developments in the Mountain State to ensure it continues to protect the rights of both parties.”

The Supreme Court, as administrator of all circuit court judges, family court judges and magistrates, has been working to get the ICA ready for its July 1, 2022, start date. Jenkins created an advisory council for the ICA in August to help bring together multiple parts of the legal system in the planning for the new court.

The advisory council is working on finding physical locations for the ICA, using technology for virtual hearings, the new court’s rules and procedures and recommendations for the Legislature to consider in 2022.


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