CHARLESTON – A bill that would create an intermediate court of appeals is headed to the House of Delegates after barely passing the state Senate.
Senate Bill 266 passed the Senate on a 17-16 vote Feb. 18. It was sent to the House of Delegates and referred to the Judiciary Committee.
Three Republican senators – Charles Clements of Wetzel County, Bill Hamilton of Upshur County and Dave Sypolt of Preston County – voted in the minority with Democrats while Logan County’s Paul Hardesty was the lone Democrat to vote for the bill, giving the measure just enough votes to pass.
Before the Senate vote, critics and supporters of the bill presented their arguments one more time.
Sen. Mike Romano (D-Harrison) said there is no need to create a new level in the court system, noting that decisions made by the new court could be appealed to the state Supreme Court and would mean nothing if a ruling then is appealed further to federal court. He also pointed to the estimated cost of $7.6 million to start the court.
“It’s going to cost our small businesses a lot more money,” Romano said.
Senate Judiciary Chairman Charles Trump (R-Morgan) disagreed, noting that rulings from the new court would create more case law to provide more precedent for rulings.
The president of a statewide group for trial lawyers again said the court isn’t needed.
“It is fiscally irresponsible for the West Virginia State Senate to vote to expand the size of state government and waste millions in tax dollars on an intermediate court we don't need," said Stephen P. New, president of the West Virginia Association for Justice. Small states like West Virginia don't have intermediate courts because our caseloads do not justify the expense.
“States with intermediate courts had to create them because their supreme courts had unmanageable workloads. (State Supreme Court) appeals have declined more than 68 percent over the last 20 years. Why would we expand the government by creating a whole new court with more judges, more staff and millions in expenses, when the case load is just one-third of what it once was?”
New said corporate and insurance lobbyists are the only ones pushing for the new court.
“(Civil appeals) cases account for just 13 percent of the cases filed,” New said of the current Supreme Court docket. “In 2018, there were only 188 cases filed – and that is 12 percent less than the number of civil cases filed in 2017. Why are we wasting money on this new court when civil cases are declining by double digits? It's ludicrous.”
New also discounted Trump’s claim that the intermediate court is needed because of a 2009 report.
“Those findings are nearly 10 years old now, and a lot has changed over the decade since that report was produced,” New told The West Virginia Record. “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.”
New said the new court is “nothing more than the leadership's reward to the corporate and insurance lobbyists for the millions funneled into this state in campaign and dark money contributions.”
“These special interests have lied to our lawmakers,” New said. “There is not one ounce of evidence that proves that adding an intermediate court of appeals would improve our economy or business climate. The only new jobs that will be created will be the six new judges and their staff added to the state payroll.
“We have limited resources. We need to repair our secondary roads, improve our schools, increase broadband access and ensure West Virginians have the training they need for 21st Century jobs. What critical programs and services are not going to get funded because our State Senate wants to help out-of-state, corporate special interests to line their pockets at the expense of West Virginia taxpayers.”
A statewide legal reform group is urging the House to pass the measure.
“We applaud the West Virginia State Senate for passing, in a bipartisan vote, Senate Bill 266, which brings West Virginia in line with a vast majority of other states with the creation of an Intermediate Court of Appeals,” West Virginia Citizens Against Lawsuit Abuse Executive Director Jordan Burgess told The Record. “We now ask the House of Delegates to move forward with this piece of legislation that will tell the rest of the world that West Virginia will not continue to be ranked last in every ranking from pro-business, education performance, and raising a family.”
Burgess said 41 other states have such a court and that Gov. Jim Justice has pushed to have the state fall in line with most other states on this issue.
“We thank the Governor and the State Senate for their hard work thus far for the creation of an Intermediate Court of Appeals,” Burgess said, noting that a recent WV CALA poll showed that 60 percent of state residents support the create of the new court. “It is time for the House of Delegates to act promptly and pass Senate Bill 266 that a majority of West Virginians support, and move West Virginia in line with a majority of other states.”
The state Supreme Court has not taken a position on the measure.
“When the bill was considered by the senate judiciary and finance committees, the court presented cost, claim filing data and other information that was requested by legislators,” Justice Evan Jenkins told The Record. “Under our state Constitution, the Legislature is authorized to establish an intermediate court of appeals and, if the legislation becomes law, the state Supreme Court will oversee its operations.”
If the bill is passed, the new intermediate court would open July 1, 2020. It would handle civil appeals, guardianship and conservatorship cases, administrative agency rulings and Workers’ Compensation Review Board rulings.
The intermediate court judges would have 10-year terms and be paid $130,000 annually.
A similar bill passed the Senate last year as well. It never made it out of committee in the House.