THEIR VIEW: Myths about appeals court legislation continue

By The West Virginia Record | Jun 30, 2011

CHARLESTON -- By now, readers of The West Virginia Record likely are numb to personal injury spokesman Michael Romano's outrageous hyperbole. However, his continued misstatements call for a correction.

In his latest piece, Romano again weaves personal attacks with blatant inaccuracies in an attempt to preserve the broken status quo of West Virginia's court system. His latest and greatest assertion is that an intermediate appeals court will cost an astounding $25 million annually, and that West Virginia Citizens Against Lawsuit Abuse unapologetically supports that cost. While nothing could be further from the truth, some lawyers seldom allow facts to get in the way of a good argument.

West Virginia Citizens Against Lawsuit Abuse supports the creation of an intermediate appeals court, and we support doing so in a cost-efficient manner. The point we have consistently made is that cost is not the real deterrent for critics like Romano, who voiced no objection to the $6.3 million in annual pay raises given to judges earlier this year.

With state officials talking about a budget surplus of more than $250 million, and lawmakers finding an additional $6 million a year to pad the salaries of judges already making six-figures, the argument that appeals court legislation is cost prohibitive falls flat on its face.

The fiscal note provided by the West Virginia Supreme Court estimated a cost of approximately $5.3 million annually — nearly $1 million less than the annual judicial pay raises. The Independent Commission on Judicial Reform estimated a cost of $7.8 million annually for an appeals court with more judges. An intermediate appeals court can easily be housed in existing state government facilities, making it difficult for recent cost estimates cited by Chief Justice Margaret Workman to top more than $10 million annually.

Opposition to an intermediate appeals court isn't about unnecessary delay to state litigants either. The West Virginia Supreme Court's recently revised Rules of Appellate Procedure have streamlined the appeals process to the extent that an intermediate appeals court could be added without significant delay. In practice, the time spent on the entire appeals court process could be comparable to the time that a single appeal took prior to the Court's new rules.

Rather, there appears to be a distinct opposition to ensuring that everyone has their fair day in court, either at the trial level or on appeal. Romano clings to the mantra of "all losers want a second chance to win" as if that negates the fact that errors are made at the circuit court level and those errors deserve to a meaningful appeal.

Forty-three other states have an intermediate appeals court for a reason. The appellate structure allows the intermediate appeals court to review all cases for legal errors, while allowing the state Supreme Court to properly exercise its discretionary role of issuing precedent setting decisions on important legal or policy issues.
West Virginia's current appellate hodge-podge creates a system unlike any state in the nation. The vast majority of our Supreme Court's work now focuses on memorandum decisions that are non-precedential, and cannot be found anywhere except on the Supreme Court's web site. As a result, our state Supreme Court is perhaps busier than ever — and it was already one of the busiest appellate courts in the nation.

Ultimately, our state lawmakers need to decide if we prefer for our justice to be quick and done on the cheap, or if our state would rather get it right. An intermediate appeals court can easily be created in a cost-effective manner which would not cause any undue delay for litigants. The creation of such a court would guarantee meaningful appellate review for all litigants, while helping with the much-needed development of our state law. Those are simple facts which appeals court critics continue to ignore.

Heath is executive director of West Virginia Citizens Against Lawsuit Abuse.

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