CHARLESTON – Lawmakers have heard from both sides in the debate about whether West Virginia needs an intermediate court of appeals.
During monthly interim meetings last week, the Joint Standing Committee on the Judiciary was urged to work to create the court in the upcoming session by members of West Virginia Citizens Against Lawsuit Abuse. The legislators also heard why the court isn’t needed from members of the West Virginia Association for Justice.
“West Virginia is one of only nine states without an intermediate court, which makes our state an outlier,” WV CALA Executive Director Roman Stauffer says. “We urge the Legislature to pass legislation to create an intermediate court when they convene their session in January.
“Our annual statewide public opinion poll on lawsuit abuse and legal reforms showed that more than half (56 percent) of West Virginians support the creation of an intermediate court of appeals, which was an increase of three percent over previous years.”
Stauffer also noted that two independent commissions (The Independent Commission on Judicial Reform, headed by former U.S. Supreme Court Justice Sandra Day O’Connor and former U.S. Senator Carte Goodwin as well as The Commission on the Future of the Judiciary, established by the West Virginia Supreme Court of Appeals in 1999) have recommended the establishment of an intermediate court of appeals.
“The West Virginia Supreme Court of Appeals is one of the busiest high courts in the entire country,” Stauffer said. “What the Supreme Court should be doing, is hearing important cases and issuing carefully considered, signed opinions that add to the state’s body of written law and provide guidance for West Virginia practitioners and judges.
“Issuing over a thousand unsigned, unpublished memorandum decisions doesn’t help develop our state’s body of law, which is considered very thin.”
However, WVAJ officials counter that argument by saying the intermediate court would be “an unnecessary expansion of state government and a waste of tax dollars.”
“West Virginia has a budget deficit of $250 million this year,” WVAJ President Paige Flanigan said. “We are cutting essential state programs left and right, including $16 million from our elementary and secondary schools and another $16.5 million from higher education. Funding for PEIA is being cut. State employees and our teachers are going to pay higher health insurance premiums. The annual deductibles are increased another $500 for individuals and $1000 for families. Most West Virginia families can’t afford a $3,000 deductible.
“Why is our Legislature even talking about spending millions on an intermediate court that we don’t need? The truth is this proposed court has nothing to do with improving our justice system.”
Flanigan, a Mercer County attorney, said the idea of an intermediate appeals court is just a way for corporations to expand their profits.
“This is about increasing corporate profits at our expense,” she said. “Corporations and their insurance companies want to delay cases in our courtrooms. They want West Virginia families or business owners to wait months or even years before they’re compensated. They want to use the threat of the delay to force West Virginians to accept pennies on the dollar. It’s wrong.
“The West Virginia Legislature’s first priority should be doing what’s best for West Virginians, not pandering to billion-dollar corporate special interests. If we want to grow our economy, let’s invest in our workforce. Our schools, colleges and universities need to ensure that our young people have the education and skills needed to attract 21st century jobs to this state.
“That’s done by increasing our education budget, not be cutting it while handing corporate billionaires a court we don’t need. Our kids shouldn’t take a backseat to CEOs.”
The WVAJ also notes that the state Supreme Court, in 2010, implemented new rules for appellate procedure that ensures the court outlines every decision on whether it accepts or denies an appeal. It also says the Supreme Court’s caseload has dropped more than 60 percent since 1999 and that the Court has increased the number of written opinions by 68 percent since the 2010 rules took effect.
The WVAJ also says civil litigation makes up just 13.7 percent of the Supreme Court’s cases and that most of the filings are workers’ compensation, abuse/neglect and criminal felony appeals.
The group also notes that of the nine states – including West Virginia – currently without an intermediate appeals court, all of them have populations of less than two million.
“It’s simply not needed,” Flanigan said of the intermediate court. “That’s the biggest thing. First, the startup cost is just tremendous. It’s about $10 million, and the state is facing a budget crisis. Why would we have a lawyer’s job bill on the backs of our children?
“And another thing I can’t figure out is that CALA – the very people who call this state a judicial hellhole – want more judges. Go figure that one out.
“But here’s why. Defense lawyers bill by the hour. The Chamber (of Commerce) get another bite in the apple. It’s not about creating jobs. It’s some sort of financial interest for these corporate interests. Attracting business? That’s a far reach.”
Flanigan also said she thinks CALA does more harm than good when it comes to bringing more business to the state.
“If you keep calling West Virginia a judicial hellhole, what business is ever going to want to come here?” she said. “Appreciate the state and the people. CALA needs to step up to the plate and appreciate the judiciary we have here. We have some very fine judges here. The system works. You might disagree with their rulings, but that doesn’t make them a bad judge.”
WVAJ Secretary J.B. Akers said he has studied the issue of an intermediate appeals court for years. Like Flanigan, he doesn’t see the need for it in West Virginia right now.
“We don’t have that many appeals,” said Akers, a Charleston attorney. “And, our Supreme Court has cleared more than 100 percent of its cases in the past two years. There is no backlog.”
Akers said if you compare that to Nevada, which recently added an intermediate court, you see the difference.
“The Nevada model is the one they’re (lawmakers) looking at,” he said. “The year before they created the court, they had a backlog of more than 2000 cases. That’s more than we currently have on appeal.”
Akers said he’s opening to hearing reasons why the state needs another court.
“Do we actually need it?” he asked. “If so, make a credible argument that we need it. Are we happy with the work product coming out? We have no delay. For me, that’s the big issue.
“I don’t know how we justify another level of government bureaucracy. Let’s talk about juvenile justice issues. Or give this $10 million to Legal Aid. Or maybe we create more abuse and neglect courts? The bottom line is that civil appeals just aren’t a big problem.
“I just don’t see how they should can say this is what we should be spending their money on it.”