Intermediate appeals court bill passes West Virginia Senate

West Virginia Senate President Mitch Carmichael, R-Jackson, consults with fellow lawmakers Monday on the Senate floor. Photo by Will Price, W.Va. Legislative Services

CHARLESTON – The nearly decade-long effort to create an intermediate appeals court underneath the West Virginia Supreme Court of Appeals took one step closer to creation Monday.

The state Senate passed Senate Bill 266, the West Virginia Appellate Reorganization Act, 17-16 Monday morning.

“There is one reason and one reason to do it only in my opinion…to allow the development of a broader body of jurisprudence than we have in this state,” said Senate Judiciary Committee Chairman Charles Trump, R-Morgan, in an earlier interview.

SB 266, introduced on behalf of Gov. Jim Justice, would create an intermediate court of appeals between the county circuit courts and the state supreme court. The court would be made up of three judges appointed by the governor and would hear non-criminal appeals from circuit court and certain boards. The first judges would be appointed to staggered terms, but future judges would serve a 10-year term.

The state supreme court adopted a rule in 2010 where they provide a written decision for every appeal, but Trump said the same supreme court could rescind that rule if it wanted to. Prior to the state supreme court’s rule change, three-quarters of all appeals that came before the justices were not heard, with the court issuing a no-reason refusal order instead.

Trump said that even with the court hearing every appeal now, the decisions are not adding to the body of law in the state.

“It spends a great deal of time in producing memorandum decisions on cases that don’t really expand or develop the jurisprudence of this state,” Trump said. “Many of those could be handled more appropriately by an intermediate appellate court.”

In 2009, then-Gov. Joe Manchin created the Independent Commission on Legal Reform, which included former U.S. Supreme Court justice Sandra Day O’Connor and former state supreme court justice John McCuskey. The final report from the commission recommended creating an intermediate appellate court.

“This is not some sort of radical new idea. This was a recommendation,” Trump said. “It said the legislature should act to establish an intermediate appellate court…to free the court to continue hearing discretionary a docket focused on important or novel legal issues and expand the court functions of the appellate judicial system.”

The proposal has support of pro-business groups, such as the West Virginia Chamber of Commerce and the Business and Industry Counsel. On the other side of the argument is the West Virginia Association of Justice, noting a 40 percent decline in appeals since 2009 shows a intermediate court is not needed.

“It’s true, I’ll concede the point that there are fewer appeals from lower tribunals now than there were 10 years ago,” Trump said. “What’s also true is after (the commission report), the supreme court changed its rules and decided to hear every appeal, issue a decision in every appeal, so in many ways they made themselves busier than what they were. They have, I think, deprived themselves of the opportunity to say, ‘what a minute, let’s spend our time and effort primarily on these areas of law that need development.'”

Democratic senators spoke out against the bill Monday, arguing that it isn’t needed. They also raised concerns about cases taking longer in the judicial system and insurance companies and lawyers profiting from the new court and new layer of justice.

“We have a decrease (in appeals) but we’re going to create this new layer in government,” said state Sen. Mike Romano, D-Harrison. “Every appeal in West Virginia gets a written decision from the court. That’s all anybody can ask when you’re appealing something.”

“There is no reason, no good reason for this,” said state Sen. Richard Lindsay, D-Kanawha. “It’s not essential for us. We don’t need this. It just adds another layer of money and government for our system of government…justice delayed is justice denied.”

Republican senators Bill Hamilton, R-Upshur; Dave Sypolt, R-Preston; and Charles Clements, R-Wetzel, voted against the bill. State Sen. Paul Hardesty, D-Logan, broke with Democrats to vote for the bill.

The bill now heads to the House of Delegates.

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