CHARLESTON – The state Senate has passed a bill to create an intermediate court of appeals in West Virginia.

Senate Bill 341 passed on a 23-11 vote Feb. 15. The bill now will go to the House of Delegates.

Sen. Ryan Ferns (R-Ohio) and Sen. Patricia Rucker (R-Jefferson) introduced Senate Bill 341 on Jan. 23. It was referred first to the Senate Judiciary Committee then to Senate Finance before being heard by the full Senate.

The bill would create the new court, provide for how it is set up and operated, provide for the election of the judges, set up districts, establish qualifications and jurisdictions and provide the budget for the court. The bill would require the court to be operational by July 1, 2019, and would require Gov. Jim Justice to make initial appointments by July 1 of this year.

Similar bills have been introduced before, including last session. It’s been a topic at the statehouse since at least 2009 when a commission created by former Gov. Joe Manchin proposed it.

The Supreme Court has said the creation of the court would cost about $11.7 million the first year and more than $10 million in following years, according to a fiscal note. But Senate Finance Chairman Craig Blair (R-Berkeley) said the court's figures are inflated with "fake costs" such as a physical courtroom when the bill mentions using existing courts in a traveling plan. The court claims a mobile court isn't possible because of security, Americans with Disability Act compliance and other issues. Blair thinks the court would cost less than $4 million a year. An estimate from the Senate Finance Committee put the figure at $2.9 million the first year and $2.4 million in following years.

Currently, West Virginia is one of only nine states without an intermediate appeals court.

Statewide legal reform group West Virginia Citizens Against Lawsuit has pushed for the creation of the court for years. And, it is at the top of WV CALA’s legislative priorities this year as well.

“West Virginia is the only state in the country that doesn’t provide a full appeal of right for either civil or criminal litigants,” WV CALA Executive Director Roman Stauffer said. “It is one of nine states that do not have at least one intermediate appellate court.”

Senate President Mitch Carmichael (R-Jackson) has said creating the court would provide for a quicker turnaround for individuals and businesses seeking to appeal lower court decisions instead of having to go to the state Supreme Court.

“We've talked about it for years,” Carmichael has said. “I’m hopeful this year that we can work very hard to attain that. I think that would be something that would really move West Virginia forward.”

A leader of a group for state trial lawyers disagrees, saying the bill would expand government bureaucracy and waste the state’s limited tax dollars.

Stephen P. New, president-elect of the West Virginia Association for Justice, also said data shows the intermediate court isn’t needed.

“West Virginia is struggling to find money to address the real problems facing this state,” New said. “This Legislature is telling our school teachers, our corrections officers and state employees that we don't have enough money to give them the raises they need to provide for their families. This Legislature is not fixing PEIA. We are being crippled by the opioid crisis.

“We’re being told the money is not there for what this state really needs, yet this Legislature can find millions to waste on a new intermediate court that we don't need.”

New said lawmakers have admitted they aren’t certain of the final price tag.

“Who commits to buying anything without knowing to the penny what the price is going to be?” New asked. “The truth is powerful, out-of-state special interests are demanding this intermediate court as payback for the millions they funneled into this state to help legislative leaders win their elections. Independent data confirms this court is not needed.

“Appeals have declined more than 60 percent since 1999. The civil cases they cite comprise just 15 percent of the caseload. There were just 184 civil appeals in 2016. That doesn't justify this state spending $10 million.”

New said that since the state Supreme Court changed rules in 2011, it hasn’t declined a single appeal. From 2011 to 2015, the court has increased its number of written opinions by more than 700 percent to more than 5,000.

“The National Center for State Courts has confirmed, despite what proponents claim, that automatic right of appeal exists,” New said. “The intermediate court is not needed.

“The only things this new court is going to accomplish is increase the size of state government, waste millions of our tax dollars, and delay justice for West Virginia consumers, workers and small businesses. And for what? So legislators can appease their billionaire corporate donors.

“It's wrong. Lawmakers shouldn’t be allowed to play politics with our judicial system or give away our constitutional rights.”

If the bill is passed, initial nominations will be staggered terms of six, eight and 10 years. Then, nominations would be made at the expiration of a term, so the terms would be naturally staggered. No more than two members of the Judicial Advisory Commission could be from the same state senatorial district. Current members would be grandfathered in and not disqualified if they’re already on the commission and happen to be in the same senatorial district.

Also, no two judges on the intermediate appeals court would be from the same county or state senatorial district. When the governor makes recommendations for judges, no two can be from the same county or state senatorial district.

The bill would require the court to be operational by July 1, 2019, and would require Gov. Jim Justice to make initial appointments by July 1 of this year.

Similar bills have been introduced before, including last session. It’s been a topic at the statehouse since at least 2009 when a commission created by former Gov. Joe Manchin proposed it. In 2011, a similar bill said the intermediate court would cost the state about $5 million per year.

Sen. Mike Romano (D-Harrison) is opposed to the bill.

“It’s just an unnecessary bill in a year when we can’t give our teachers and other public employees a decent raise or fully fund PEIA,” he said. “We’re going to spend millions of dollars on a court that does nothing more than another hurled that both sides have to jump to get a resolution to their cases.

“In the last decade, appeals have fallen 60 percent. Our numbers are far better than the national average. Our Supreme Court is hearing every appeal and rendering an opinion in every case. That’s total access to justice.

“The proponents say it’s going to provide more clarity to the laws of West Virginia. That’s a complete red herring because to have any court, somebody has to have a case to file.”

Romano said the U.S. Chamber of Commerce is pushing hard for the bill. The West Virginia Record is owned by the U.S. Chamber Institute for Legal Reform.

“The national Chamber is dictating to the majority (the Republicans) what they want,” he said. “It’s not even beneficial to our business owners. It is increasing defense costs for every defendant in the state. There will be more money out of their pocket, and it will take more time from their business to get past intermediate court.

“Insurance companies will get to hold onto their money longer. It will add at least another year to each case.”

Romano said he thinks a different approach might work.

“Fifty percent of our current Supreme Court cases are workers’ comp and other administrative law cases,” he said. “If it’s necessary to reduce the workload of the Supreme Court, let’s set up something for those cases and let them do the other work.

“No matter what side you’re on, it’s bad,” Romano said. “That’s why I’m so adamantly against it. Frankly, I’m shocked the Republican leadership has worked to move this forward. They just have made up their mind the bill is going to pass, so they made sure everyone stuck to the party line.

One of the bill’s sponsors disagrees.

“The right to a trial is a fundamental constitutional right,” Rucker said. “We are all equal under the law. Whether the action be civil or criminal, civilization and a civil society depends on and equitable and speedy resolution of disputes.

“The consistent application of the rule of law to everyone is one of the things that makes America great. Each state therefore has the duty to ensure that the judicial system works, and that it is fair, and does not take an unreasonable amount of time to get one’s day in court.

“In keeping with that, in order to ensure that everyone is treated fairly, it is essential that we guarantee the right to appeal a decision that we believe was not just. That is why we need an intermediate court of appeals.”

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U.S. Chamber Institute for Legal Reform (ILR) West Virginia House of Delegates West Virginia State Senate West Virginia Supreme Court of Appeals

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