Intermediate appeals court, judicial runoffs, other legal issues on 2019 legislative agenda

By Chris Dickerson | Jan 9, 2019

CHARLESTON – The 2019 Legislature now is in session, and those who follow the legal system are ready for a lively session.

The state Senate and House of Delegates convened Jan. 9, and Gov. Jim Justice delivered his State of the State address later that evening.

The day before the session began, the Republican leadership in both houses unveiled their agenda.

“We’ve made tremendous strides in the past few years to improve the economy, education and legal systems and overall way of life for all West Virginians, and in this session, we will take those improvements to a whole new level,” Senate President Mitch Carmichael said. “We have seen a momentous turnaround in our state since Republicans took control in Charleston, and we firmly believe the best is still yet to come.

“We plan this year to build on the largest public employee pay raise in state history, provide substantial tax relief to our job creators and seniors, and help provide new educational and workforce training options for our citizens.”

New House Speaker Roger Hanshaw said he wants to make West Virginia “the best place to live, work and raise a family.”

“Everything we do will be with this goal in mind,” Hanshaw said. “Whether it’s by helping job creators start businesses and attract capital, expanding broadband to open up new opportunities for our education system and markets for our entrepreneurs, we want to help make West Virginia the most attractive place to be for not just our citizens and businesses, but those who might consider moving here in the future.

“My goal is that when we look back at the 2019 session, we will see it as a watershed year toward launching West Virginia to a higher level of prosperity. We turned the corner over the last few years, and now it’s time to reach to new heights.”

In an interview with The West Virginia Record, Carmichael elaborated on his vision for the session.

He called the 83rd Legislature, which officially ended Jan. 9 when the new session began, “historic.”

“We had among the largest budget deficits in state history, and within two years we now have a surplus,” Carmichael said. “Job numbers are up. Revenue is up. We provided the largest pay raise in state history to teachers and service personnel, and we’re committed to doing another round of that.”

Carmichael said the focus of the 84th Legislature will be to continue to drive economic growth.

And, he said part of that plan is more civil justice reform. And that again includes creating an intermediate court of appeals.

“That is something we’re very intent on pursuing,” he told The Record. “The state is in the position to do this now. The voters saw the wisdom of giving the Legislature control of the Supreme Court budget in November with passage of Amendment No. 2.”

Carmichael said West Virginia is the largest state in the nation without an intermediate appellate court.

“Businesses look at that as a deterrent to creating jobs in our state,” he said.

Other legal reforms Carmichael said he wants to see are seatbelt admissibility, medical monitoring reform and the creation of a runoff for judicial elections.

He said the two November elections for to fill Supreme Court vacancies illustrate the need for runoffs. Both races featured 10 candidates, and the winners received 36 and 26 percent of the vote in their respective races.

“Currently, we elect judges in primary with whoever gets the most votes,” Carmichael said. “In a wide field, you’re electing someone with 20, 30 percent of the vote. I want to put into a place a runoff scenario that if no candidate gets 50 percent of the vote in a judicial election during the primary, then we have a runoff in the general election with the top two vote-getters. It doesn’t cost the state or taxpayers one more penny to do that.”

Leaders of groups that follow legal reform had their own takes on plans for session.

Stephen New, president of the West Virginia Association for Justice, said his group for trial attorneys wants to work with lawmakers to make the state’s legal system “the best it possibly can be.”

He said the WVAJ plans to support a bill to expand technology of court filings.

“We’ll join with any group ready to do that,” New told The Record. “Some programs have been successful in pilot counties. The WVAJ is excited to expand programs like that.”

New said he thinks the public defense service for court-appointed lawyers needs a look.

“There needs to be increased oversight of attorneys to weed out the few bad apples and to minimize overbilling,” he said. “There haven’t had an rate increase in 30 years. The rates set in 1989 were $45 for out-of-court work and $60 for in-court work. That is nowhere near what it should be. It should be something closer to $125 and $135 per hour.”

New said another piece of legislation his group would like to see regards employment law.

“We will support a bill allowing the employee to be able to request his or her personnel file from an employer,” he said. “Right now, if I have a potential employment case, I cannot by law request a copy of a personnel file to see if the employer had legitimate reasons for its actions.

“Now, we might file a suit and go through a costly process only to get a personnel file that shows there was a legitimate non-discriminatory reason to fire the person.

“This bill would allow us to do the quality control on front end. It would help both sides.”

New said the WVAJ also would work against a bill to allow seatbelt admissibility.

“What happens now is if a seatbelt wasn’t being used in an accident, the court deducts a certain percentage (5 percent) from any damages awarded,” New said. “It keeps every motor vehicle case from turning into a semester in biomechanical engineering. It makes litigation a lot more expensive if you let that in.

“West Virginia is one of only 15 states that allows for a reduction in damages. We just believe there is no reason to change it.”

New also said his group will fight a collateral source bill if introduced as well as the creation of the intermediate court of appeals.

“Once upon a time, I was the founding vice president of the Marshall University College Republicans in 1992,” New said. “I don’t understand how the Republican Party can propose the growth of government. It isn’t fiscally conservative or fiscally responsible.

“It’s the creation of an unnecessary level of court.”

New said no state with a population of less than two million has an intermediate appellate court.

“The West Virginia Supreme Court of Appeals has started taking basically every case that is appealed there,” New said. “We just think that regardless of the cost, there are so many other higher priority items the state should be focused on. Look at issues that are more important … opioids, education, PEIA, the mass exodus of people …

“And, no business is saying we’ll come to West Virginia if you create this intermediate court of appeals. And they aren’t saying they won’t come without one. There is no clamoring for this court by anyone except businesses, mostly insurance companies who want to further delay cases.”

The spokesman for West Virginia Citizens Against Lawsuit Abuse disagrees.

“We obviously still have a lot of members who want the intermediate appellate court,” Greg Thomas told The Record. “Before, it was always that the state doesn’t have the money for it. With the state Supreme Court turmoil over the last year behind us and the fact that the state budget is stabilizing some, we think we’re in a better position for this now.”

Thomas said his group will continue to push for seatbelt admissibility and medical monitoring reform.

“There are about 10 tort reform bills we support, and I’m sure there are others that will come up,” Thomas said. “But at the end of the day, trial lawyers still are pumping millions of dollars into the political process. They had some wins in November. They know they aren’t on offense, but they have more defensive members now.

“We will see more of the same from them. We’ve made a lot of progress on civic just reform, but we still have a long way to go. I think it’s going to be a pretty good session.”

In addition to legal reforms, Carmichael and Hanshaw’s agenda also includes:

X Making significant tax reforms, including elimination of the personal income tax on Social Security income and the property tax on business equipment and inventory as well as improving the Homestead Exemption;

X Continuing to improve compensation and benefits for teachers, service personnel and state workers, including enhanced compensation for teachers in high-demand fields such as math and science;

X Promoting broadband expansion and investment;

X Expanding access to community college, technical schools and workforce training opportunities;

X Helping recruit business start-up and investment capital;

X Improving the Second Chance for Employment Act;

X Diverting more funds to secondary and tertiary road repairs;

X Reforming foster care and adoption programs; and

X Creating education savings accounts for special needs students.

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Organizations in this Story

West Virginia Association for Justice West Virginia Citizens Against Lawsuit Abuse West Virginia House of Delegates West Virginia State Senate West Virginia Supreme Court of Appeals

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