Final hearing focuses on new courts

By Lawrence Smith | Oct 1, 2009



CHARLESTON - A commission studying potential changes to the state judiciary held its third and final public hearing Tuesday, taking input on the pros and cons of creating intermediate appellate and specialty courts.

Robert M. Bastress, a professor at West Virginia University's College of Law, was the first to address the Independent Commission on Judicial Reform during its Sept. 29 meeting at the state Capitol. Much like he did at its meeting the week prior, Bastress gave an overview of the changes the state judiciary has undergone since West Virginia was granted statehood in 1863.

The current judicial system came into being with passage of the 1974 Judicial Reorganization Amendment. Though all the specialty courts that were in existence prior to Amendment's passage were eliminated, Bastress said it gave the state legislature some flexibility in creating special, limited jurisdiction courts, and an intermediate appellate court between the various circuit courts, and the state Supreme Court should the need arise.

Bastress said he didn't see the need to create a generalized intermediate appellate court as "it would be expensive to the state and to the litigators." However, he was open to the idea of one with limited jurisdiction to hear administrative appeals from state agencies.

"That would be a good thing if that in fact could occur," Bastress said.

Also, he said there's no need to create specialized, limited jurisdiction courts, especially ones to handle business disputes, when there's already flexibility in state law for alternative dispute resolution. Circuit judges currently possess the authority to appoint chancery commissioners.

Following Bastress was Charleston attorney Mark Sadd, and Jack Rogers, executive director of the state Public Defender Services. Both said creation of an intermediate appellate court was a necessity for West Virginia.

Sadd advocated one general jurisdiction appellate court that would allow for at least one mandatory review of a litigant's case, and issue its decision in writing. This, he said, would have the effect of correcting prejudicial error, unification of the law and instilling public confidence in the law in providing not only judicial accountability, but also even-handedness.

The creation of a right of appeal, Rogers said, is the "highest priority" in light of the fact that the Supreme Court refuses to hear 84 percent of criminal appeals.

The price tag on an intermediate appellate court with seven judges, each with two law clerks and some administrative assistants would cost $7.8 million annually, according to Mike McKown with the state Department of Revenue. That number is for salaries and benefits, and doesn't include facilities, security, etc.

Two ways to pay for it would be either a $250 fee on all corporations that file a state income tax or a five cent tax on a pack of cigarettes. Both would raise in the neighborhood of $8 to $9 million, McKown said.

Later, the panel heard from officials in Maryland and South Carolina concerning the business courts in their respective states.

According to Steven Platt, a former circuit court judge now in private practice, Maryland created its business courts in 2002. Despite some initial opposition, Platt said the business courts have been embraced by almost everyone in the state.

In actuality, Platt said that the Maryland business and technology courts are a "case management system." Instead of creating a separate court requiring all the facilities and amenities, Platt said the General Assembly provided for certain judges in each district to be designated as the "business court judge" who would receive specialized training in business matters.

Though there are several factors that are considered for a case to referred to the business court, Platt said the bottom line is that it has to be one with such complexity it requires special attention. Because of that, most, if not all, consumer debt and landlord-tenant disputes are not referred to the business court.

Much like Maryland, South Carolina's business court has judges at its trial court level who are designated to hear business disputes, said Cory Manning, a South Carolina attorney. The program was implemented on a pilot basis in 2007 in the three most populous counties, Greenville, Richland and Charleston.

The program, which was created by administrative order by the chief justice of South Carolina's Supreme Court, was set to expire on Wednesday. However, Manning said she's expressed a desire to approve the program for another two years.

Similar to Maryland, Manning said South Carolina considers certain factors of a case before it's referred to the business court. The factors South Carolina has established usually result in most breach of contract and unfair trade practice cases remaining on the dockets of other judges.

Putnam Circuit Judge O.C. "Hobby" Spaulding, president of the West Virginia Judicial Association, said he has no problem "conceptually" with either a business court or an intermediate appellate court. In fact, he said he wished he had some specialized training prior to hearing the Eagle Research case three years ago that resulted in a nearly $15 million verdict a jury awarded it in a breach of confidentiality suit.

After both the state and U.S. Supreme courts declined to hear the appeal of defendant Daniel Measurement Services, Spaulding said one of their attorneys wrote him a letter saying he was the reason the state was a judicial hellhole.

Since 86,500 cases where filed in all the state's circuit and family courts last year, Spaulding said the Commission needs to think long and hard about a potential intermediate appellate court especially if all cases have the potential of being guaranteed an appeal. Noting that 60 percent of those cases involve pro se litigants, there are bound to be many "frivolous appeals."

"What I've learned the hard way is that not everybody wants to solve their problems," Spaulding said.

Concurring with Spaulding on the need for serious scrutiny of an intermediate appellate court was Steve Canterbury, the state Supreme Court administrator. One of the factors that would have to be considered in its creation would be the need for a separate clerk's office which will easily cost $250,000 annually.

Along with an intermediate appellate court, Canterbury said the Supreme Court takes no position on creation of a business court system. However, he noted that after attending a recent conference in Delaware, which has the "granddaddy" of business courts, with Chief Justice Brent Benjamin, he came away with an open mind on how a business court system could operate despite some initial skepticism.

In the event a business court system is implemented, Canterbury wryly said that he hopes the state legislature incorporates language from the 1792 law creating Delaware's court of chancery which gave it the responsibility of "the case of all idiots and lunatics above the age of 21 years."

In concluding his remarks, Canterbury said that any real judicial reform won't begin until matters outside the Commission's purview, such as prison overcrowding, are addressed.

The Commission is scheduled to release its report and recommendations to Gov. Joe Manchin by Nov. 15.

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