Survey says most residents want intermediate court, trial lawyers group calls it unnecessary

By Chris Dickerson | Jan 25, 2019

CHARLESTON – A recent survey by a legal reform group shows that a majority of West Virginia residents support the idea for an intermediate court of appeals.

Meanwhile, a group for trial attorneys continues to say the new court isn’t necessary.

West Virginia Citizens Against Lawsuit Abuse released results from a poll showing that 60 percent of respondents said they support the creation of the intermediate appellate court.

“West Virginia citizens support additional legal reforms that will continue to bring West Virginia in line with a majority of other states,” WV CALA Executive Director Jordan Burgess said. “It is time for the creation of an intermediate court for the state of West Virginia, as well as, the passage of medical monitoring and seatbelt admissibility legislation by the West Virginia Legislature.”

The survey also showed that 77 percent of respondents think a person must prove he or she have been injured to file a personal injury lawsuit and that 82 percent believe juries should know whether an individual was wearing a seatbelt when hearing a car accident case.

“The citizens of our great state support the legal reforms passed by our legislature over the years, but there are still significant policies supported by our citizens to be considered during the 2019 Legislative Session,” Burgess said.

But, the West Virginia Association for Justice maintains that the intermediate court is “an unnecessary expansion of state government and waste of tax dollars.”

“West Virginia does not need an intermediate court of appeals,” said WVAJ President Stephen New, a Beckley attorney. “States our size do not have intermediate courts because our caseloads do not justify forcing that expense onto taxpayers.”

New said some proponents of the proposed new court cite the findings of the 2009 Independent Commission on Judicial Reform, which was established by Gov. Joe Manchin to study our court system that year.

“Those findings are nearly 10 years old now, and a lot has changed over the decade since that report was produced,” New said. “Since 2009, automatic right of appeal has been affirmed without question, case filings have declined 40 percent and our Legislature has gained oversight of the court's budget and spending.

“The intermediate court is not needed.”

In 2010, the state Supreme Court implemented revised appellate rules to address the concern that automatic right of appeal did not exist in West Virginia. Under those revised rules, all properly prepared appeals are reviewed, decided on the merits and either a memorandum or published opinion is released.

New said the new rules resulted in a 700 percent increase in the number of decisions on the merits, from only 670 total from 2006 through 2010 to more than 5,000 from 2011 through 2015.

In its 2014 State v. McKinley opinion, the state Supreme Court made clear that memorandum opinions may be cited as “legal authority and are legal precedent.”

“Despite claims to the contrary, automatic right of appeal does exist in West Virginia,” New said. “It has been verified by the independent National Center for State Courts. You don't need to create a whole new court to fix something that's not broken.”

Also, the House of Delegate on Jan. 16 passed House Bill 2164, which would codifying the state Supreme Court’s rule guaranteeing appeals as a matter of right. It passed on a 100-0 vote and has been sent to the Senate.

“I’d call it a codification of their rule,” Del. John Shott (R-Mercer), who is chairman of the House Judiciary Committee, told The West Virginia Record. “Prior to 2011, you had to ask their permission to appeal and, three-fourths of the time, they turned people down without a reason. They corrected that on their own.

“However, they make a rule, so they can change a rule. What we’re doing it is basically codifying that and showing that the Legislature believe citizens are entitled to that full and meaningful appeal.”

New also notes that in 2009, the year the commission met, state Supreme Court cases filings totaled 1,917. By 2017, filings had dropped to 1,151, a decline of 40 percent.

He also said that since 1999, when 3,569 cases were filed, appeals in West Virginia have declined 67 percent – a rate four times the national average. Civil case appeals have declined from 315 in 2009 to 174 in 2017. Since 2004, civil appeals have declined more than 56 percent.

“Historically other states were required to add intermediate appellate courts because their judicial systems were backlogged,” New said. “Their high courts were being crushed by the sheer number of cases.

“It's ridiculous to think the West Virginia Supreme Court needs help when its case load is two-thirds what it was 20 years ago.”

New also pointed out that North Dakota created its intermediate court in 1987. Since then, the court has heard 37 appeals – none since 2007.

“West Virginia doesn't need to follow in North Dakota's footsteps and create a whole new court in a state where the case numbers don't justify it,” New said. “It's a waste of time and money.”

New also cited the passage of Amendment 2 last November by West Virginia voters giving the Legislature control of the Supreme Court budget.

“Proponents claim that the intermediate court is necessary to restore public integrity to our courts,” he said. “The passage of Amendment 2 has already addressed the primary concern raised by last year's investigations. The Legislature now has oversight of the court's budget and spending and will help ensure that it's fiscally responsible.

“What is not fiscally responsible is increasing the size of the judicial branch and spending our limited tax dollars on an intermediate court we don't need. I believe that if anything would threaten the public integrity of both the courts and our Legislature, that would."

When the state Supreme Court recently went to the House Finance Committee to discuss the court system’s budget proposal last week, Chief Justice Beth Walker said the plans presented did not include funding for the intermediate court. But, the court did have a fiscal note estimating the court would cost $7.6 million.

No other gathering information or data was released about the WV CALA survey.

Bills to create the intermediate court – Senate Bill 266 and House Bill 2366 – have been introduced in both houses of the Legislature. No action has been taken on either measure, but it is expected to be taken up first in the Senate.

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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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