CHARLESTON – West Virginia's legislative leaders say that they want to reduce the size of state government and eliminate government waste. If that's the case, then why do they want to add a whole new layer of government to our judicial branch that will waste millions in our tax dollars? We don't need an intermediate court.
West Virginia does not have an intermediate court because our caseload does not justify the expense to taxpayers. We’re not alone. We are one of 10 states without an intermediate court, and all 10 have populations of less than 2 million residents. Although a North Dakota statute would allow that state’s Supreme Court to implement an intermediate court, it has not done so, because that state’s caseload does not justify the expansion or cost.
West Virginia's case load has also declined by nearly 70 percent over the last 20 years. In 1999, 3,569 appeals were filed. The total in 2018 was just 1,139. Intermediate courts are added where the case load requires it. That was the situation in Nevada, the most recent state to add an intermediate court. That state's case backlog alone was larger than our total annual filings. You don't add more bureaucracy when the case number has declined rapidly to just one-third of what it once was.
The corporate and insurance lobbyists demanding this new court want it only for civil case appeals. Those cases account for just 13 percent of the cases filed. In 2018, there were only 155 filed. You don't create a whole new layer of government and spend millions to address 13 percent of the case load.
Some proponents claim that the intermediate court is necessary to guarantee the right of appeal. That's wrong too. In 2010 the West Virginia Supreme Court changed its appellate rules. Since 2011 it has not refused a single appeal. At the same time, it has increased the number of decisions on the merits from just 670 from 2006 - 2010 to 5,003 from 2011 - 2015, an increase of more than 700 percent. In its 2014 State v. McKinley opinion, the West Virginia Supreme Court made clear that memorandum opinions may be cited as "legal authority and are legal precedent." The independent National Center for State Courts has verified that automatic of right of appeal exists in West Virginia. You don't need to fix something that's not broken.
Then, there is the cost. The fiscal note for the 2019 version of the intermediate court legislation totaled $4,030,900 for implementation, with an estimated cost of $3,360,600 annually. An additional $27,300 would be needed annually for judicial retirement pensions. As high as that is, the prepared fiscal note addresses only the millions in direct costs. It does not include the additional tax dollars needed to cover increased costs for state departments and agencies who appear before the new court such as the Attorney General, Department of Health and Human Resources, the Tax Department, and more.
We don't have millions to waste on an intermediate court we don't need. West Virginia media have reported that tax revenues have declined by nearly $50 million this year. Lawmakers are discussing budget cuts of at least 4.6 percent. The current annual budget for the West Virginia Judiciary is $124,322,344. A 4.6 percent cut totals more than $5.7 million. If the Judiciary needs to cut the budget by $5.7 million, why are we even considering adding at least $4 million for a new court? The agencies that would appear before the court are facing the same 4.6 percent budget cuts, but will be looking at increased litigation expenses. At the same time, millions will be cut from programs and services that are needed--road repairs, schools, job training, senior services and more. It doesn't make sense.
I'm sure West Virginians are now asking why our supposed "conservative" lawmakers are even considering this proposal in light of the overwhelming evidence against it. The truth is they want to reward the powerful, out-of-state lobbyists and special interests who funneled big money into this state to get those legislators elected.
We have limited resources in this state. We shouldn't be wasting them to help out-of-state, corporate special interests to line their pockets at the expense of West Virginia taxpayers. Lawmakers should reject the proposed intermediate court.
Whiteaker is the president of the West Virginia Association for Justice and an attorney with Grubb Law Group in Charleston.