West Virginia Record

Wednesday, November 13, 2019

Observers torn on idea of new appellate court

By Chris Dickerson | Mar 3, 2011





CHARLESTON – Some members of the legal community are glad to see the possible creation of an intermediate appellate court moving through the Legislature, while others aren't.

The state Senate on Wednesday passed a bill to create a three-court panel to hear appeals that the five-member state Supreme Court opts not to consider. The Senate vote was 24-9.

The state Chamber of Commerce and others have said West Virginia is the only state that doesn't provide litigants an absolute right to appeal. In addition, a recent study recommended an intermediate appeals court for the state.

Steve Roberts, president of the West Virginia Chamber of Commerce, said his group supports Senate Bill 307.

"The West Virginia Chamber congratulates the Senate leadership for a bold approach to solving a longstanding problem in West Virginia," Roberts said. "Our state is in a distinct minority in not providing for automatic appeals and having a special group of judges to assist with special cases. The House of Delegates now has an opportunity to help West Virginia join the mainstream of other states in creating this special appellate court."

The executive director of West Virginia Citizens Against Lawsuit Abuse also praised the bill.

"The state Senate deserves praise for passing legislation to establish an intermediate court of appeals," WV CALA'S Richie Heath said. "This beneficial and common-sense reform will help begin to move West Virginia back into the legal mainstream -- and send a clear message to job providers that it is safer to invest in our state.

"The House of Delegates now has the unique opportunity to finally grant all West Virginians a meaningful right to appeal legal errors. Hopefully our delegates are willing to act on this much-needed and long overdue reform."

The president of Defense Trial Counsel of West Virginia weighed in on the issue.

"The Defense Trial Counsel of West Virginia supports the recommendation made by the Independent Commission on Judicial Reform, chaired by former U.S. Supreme Court Justice Sandra Day O'Conner, that West Virginia create an intermediate appellate court," Lee Hall said. "We believe that an additional appellate court will provide guidance and stability to the decisions of the courts of our state and will address the concerns of those who question the predictability of our court system when determining whether to conduct business or reside in West Virginia.

"Even prior to the recent – and beneficial – revisions to the West Virginia Rules of Appellate Procedure, our Supreme Court was one of the busiest in the nation. As counselors, we strive to guide our clients both in advance of and during litigation. Our efforts are often hampered, however, by the lack of reported decisions in many substantive areas of the law.

"We believe that an increased body of case law will ultimately reduce both the amount of litigation and the time and costs spent in litigation by allowing us to predict outcomes with more accuracy. West Virginia is one of a few states without an intermediate appellate court. We believe enhancing our judiciary with one will benefit all parties, whether plaintiff or defendant and whether civil or criminal."

On the other side of the issue, opponents say lawmakers should give the Supreme Court's revised rules a chance to be implemented. Critics also question the cost of establishing a new court.

The prudent course would be to give these rules a chance," said Michael Romano, president of the West Virginia Association for Justice. "Under the old rules, they would just deny petition. Now, they're getting a substanative reason why an appeal is denied or accepted."

Romano also said the bill talks about the cost of starting the court. But he said they have "no idea what the total cost would be."

"What they failed to do is capture cost of all the agencies and county prosecutors and others will have to muster a response," he said. "That cost is going to run in the millions. I know this finance committee says they're looking out for state's treasury. But this is, in my opinion, reckless.

"They're not considering adding another year to 14 months to every case in this state. What this delay does is make the litigation process more expensive. Some attorneys will make a lot more money. But this is an unnecessary layer to an already long and lengthy process.

Romano said the cost is more than just money, too.

"We're going to risk spending tens of millions of dollars on a system that is not proven nor achieve anything we don't already have," he said. "What's being lost on everyone here is that we're giving every convicted criminal in West Virginia a chance to get off on a technicality. They're going to appeal any conviction, and then it's entirely possible that they'd get off on some technicality."

Romano said it is creating "a whole lot more work for a lot more people."

"Take a police officer, for example," he said. "He or she is going to have to go into court again for two or three hours each time. That's time they'll be off the streets."

Romano said he hopes someone in the legislative pipeline "comes to their senses" before the bill is made a law.

"We're hoping someone opens their eyes and tries to find out what it costs before we decide what to do," he said. "(House Speaker) Rick Thompson is a lawyer. Maybe he can look at it from a factual standpoint.

"I just think that if folks would take a pragmatic look at this ... civil filings have gone down 45 percent since 1990s. Workers' Comp cases are now down to about 20 cases per month. This is just an unnecessary burden on our state treasury. Before I did something like this, I'd have sound reasoning."

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