West Virginia Record

Friday, July 19, 2019

Legislative session debate continues

By Chris Dickerson | Mar 19, 2010





CHARLESTON –- The 2010 regular Legislative session is over, but talk about the actions -– and inactions -– of lawmakers will continue for quite a while.

Regarding court-related issues, the biggest topic seems to be that the Legislature didn't create create an intermediate appellate court, which was recommended by Gov. Joe Manchin's Independent Commission on Judicial Reform last year.

West Virginia Citizens Against Lawsuit Abuse Executive Director Richie Heath called that move "an unacceptable failure to move the state forward."

"It's puzzling that some state lawmakers can't see the merit of providing West Virginians the right to a full appellate review for potential legal errors," Heath said. "It is difficult to imagine any other spending measures more important this session than guaranteeing the right of individuals to have their full day in court."

Manchin's Independent Commission on Judicial Reform, which included Retired United States Supreme Court Justice Sandra Day O'Connor, said in its final report that West Virginia's appellate court system currently operates with "no appeal as of right," giving the Mountain State the significant distinction of having the most restrictive appeals process in the nation. The Commission concluded that an intermediate appeals court "would increase the ability to address potential errors by trial courts."

"At a time when the Legislature should be focused on job creation, nothing would have encouraged job growth more than legislation to fix our appeals process," Heath said. "Job providers will continue to ignore West Virginia until we place more of an emphasis on having fair courts."

The creation of an intermediate appeals court has been recommended in West Virginia for more than a decade, dating back to the state Supreme Court's own "Commission on the Future of the West Virginia Judicial System." West Virginia is now one of only 11 remaining states without an intermediate appeals court, and three other states with caseloads smaller than the Mountain State have created such a court since our Supreme Court first recommended its adoption.

WV CALA did praise the efforts of state Sen. Jeff Kessler, D-Marshall, and others legislators in passing the appeals court bill out of the Senate Judiciary Committee, allowing for further debate on the topic.

CALA also said that while passage of legislation aimed at creating several business court designations is a positive first step, the impact of such legislation pales in comparison to the appeals court bill.

"The state's lack of an automatic right of appeal is probably cited more than any other civil justice reform issue as the problem West Virginia must address," Heath said. "Consequently, our state lawmakers would be well served to examine this issue further in a special session."

West Virginia Chamber of Commerce President Steve Roberts said his group mostly was pleased by the results of the session.

"The West Virginia Chamber thinks the just-finished session was a pretty good session," he said. "The passage of the business courts bill, the passage of the improved property tax appeal process bill, the language of election law bill. We didn't have any tax increases. We're one of the few states operating with a balanced budget.

"All of those things, to us, add up to good leadership from the governor, the speaker and the Senate president."

However, Roberts also said his group is sad the appellate court bill didn't pass.

"On the other hand, we appreciate that it was considered," Robert said. "And we're excited about the level of interest this idea has received in the state and in the Legislature. We look forward to the day when West Virginia joins the other 49 states and enters the 21st Century on this issue."

Roberts said the Chamber will await the impending rules from the state Supreme Court.

"But I don't the Supreme Court would even be talking about a new rule if the West Virginia business community, Gov. Manchin and legislative leaders hadn't made this an issue," he said. "We're interested in what they may come up with. But they seem to be doing it only with the prodding of the citizenry. This is another one of those cases where the citizens are way ahead of the politicians."

Roberts also praised passage of a bill that allows small business to qualify for WVEDA assistance.

"This is primarily directed to our tourism cottage industries and was originated by our committee on tourism," Robert said. "It's a good bill for small business and entrepreneurs."

Jonathan Deem, chief legal counsel for the governor's office, said Manchin and his people are waiting for the state Supreme Court to unveil its proposed rewrite of the Rules of Appellate Procedure that, according to the court, will provide enhanced transparency and a more thorough appeals process.

Deem said the bill to establish a Business Court Division in certain judicial circuits was a recommendation made by the Governor's Independent Commission on Judicial Reform.

"The bill has not yet been presented to the Governor for his signature," Deem said.

Deem said Manchin's bill to create a pilot public financing program for Supreme Court elections in 2012 was amended by the Legislature to remove certain litigation fees that were a major funding source for the program.

"There is still funding available for the program, and the Governor is hopeful that the pilot will be adequately funded to provide the option of limited public financing to qualified candidates who wish to participate in the program," Deem said.

Steve Canterbury, administrative director of the state court system, said the Supreme Court only endorsed one bill, and it concerned the election of magistrates by division.

"And we're disappointed that it failed," he said.

Canterbury noted that the Court didn't take a stand on the intermediate appellate court bill, but some Justices individually talked about it.

"I'm sure they're individually pleased that the intermediate appellate court bill didn't pass," he said. "They believe it would be unwise and expensive to launch an intermediate appellate court before the Justices issue their revised rules for people to review."

Canterbury said he's also disappointed the bill requiring magistrates to have a college degree didn't pass, especially considering it was endorsed by the magistrate's association.

"We're one of only a handful of states that don't require it, and it sadly reinforces an untrue stereotype about West Virginia that we don't value education," he said.

Canterbury also said the Court didn't push the issue, but he hopes the salary of family court judges is addressed soon.

"We knew the finances of the state wouldn't allow it, but it's unfortunate that our family court judges are the only judges in the nation who require a law degree who don't make at least $100,000 a year," he said.

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