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Intermediate Court of Appeals Bill Passes Senate Again

Sen. William Ihlenfeld, D-Ohio, speaks against creating an intermediate court of appeals.

CHARLESTON — The West Virginia Senate appealed to the House of Delegates Monday in asking that body support a second attempt to create an intermediate court of appeals.

Senate Bill 275 passed the Senate Monday in a 18-14 vote with two absent. Sens. Bill Hamilton, R-Upshur, and Charles Clements, R-Wetzel, joined Senate Democrats in voting against the bill, which now heads to the House where a similar bill passed by the Senate last year died having never been brought up in committee.

SB 275 would create an intermediate court of appeals between the circuit courts and the West Virginia Supreme Court.

“I believe for a variety of reasons the time has come,” said Senate Judiciary Committee Chairman Charles Trump, R-Morgan. “It’s past time for this Legislature to exercise the authority conferred upon it in Article 8 of the (West Virginia) Constitution to create an intermediate court of appeals. This state needs one and we’ve needed one for a long time.”

The proposed court would divide the state into northern and southern districts and would hear appeals of circuit court civil cases, guardianships and conservatorships, family court cases and decisions made by administrative law judges, the Health Care Authority and Workers’ Compensation Commission.

The updated bill for 2020 also allows litigants the opportunity to bypass the new intermediate court for a hearing before the Supreme Court. The bill would also allow for the election of judges, instead of the appointment of judges by the governor, though appointments can be made until the first elections are held. Once elected, the 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. 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. Senate Republicans are concerned that a future Supreme Court might eliminate the rule and start hearings appeals at its discretion.

“I read a report that (West Virginia) has the busiest appellate court of its type in the United States of America,” said state Sen. Ryan Weld, R-Brooke. “I think the way we’re operating now isn’t within the purview of the state’s Constitution. But what our state Constitution does do is to give this body, the Legislature, the power to create an intermediate appellate court if we should choose to do so.”

Democratic Senators raised concerns about the cost of the proposed court. According to a fiscal note, it would cost $7.6 million in fiscal year 2021 to start the court, $6.3 million during the first full year of the court and $3.8 million going forward.

“This bill is not going to help many West Virginians. In fact, I don’t think it will help most West Virginians the way it is set up,” said Sen. William Ihlenfeld, D-Ohio. “The amount of money we’re putting into this court makes my stomach twist when I think of all the other things we could be spending this money on.”

“That $3.8 million is an investment in our judicial system,” Weld said. “It’s an investment in one of the three branches of this government to allow for better decision-making, better review process and a better appellate process that will benefit our court system.”

Since taking the majority in the Senate at the end of 2014, Senate Republicans have introduced a bill every year to create an intermediate court. Last year’s bill, SB 266, narrowly passed the Senate in a 17-16 vote with state Sen. Sue Cline, R-Wyoming, absent. Hamilton and Clements voted against the bill last year as well, while state Sen. Paul Hardesty, D-Logan, voted for it.

It was sent to the House Judiciary Committee and was never taken up.

Ihlenfeld said the true reform needed in the judicial system is providing more resources for drug and family treatment court or a court dealing with abuse and neglect cases.

“I could get behind a court that would take some of the burdens off of circuit court judges who are overwhelmed and perhaps the hardest-working judges in all of America,” Ihlenfeld said. “The dark, emotional cases those circuit court judges have to deal with each and every day is just Incredible and they need some help.”

It remains to be seen if SB 275 will make it through the House. Instead of supporting an intermediate court, House Judiciary Committee Chairman John Shott, R-Mercer, has pushed legislation to require the Supreme Court review all appeals and issue, at minimum, a written decision, mirroring the court’s own rule. That bill has unanimously passed the House two years straight, including last week. It now sits in the Senate Judiciary Committee, which also didn’t take up last year’s bill.

The concept for an intermediate court started gaining traction in 2009 after former 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.

SB 275 is supported by pro-business groups, such as the U.S. Chamber of Commerce Institute for legal Reform, the West Virginia Chamber of Commerce and the West Virginia Business and Industry Council. The U.S. Chamber Institute ranks West Virginia 45th for lawsuit climate, estimating that civil torts cost $2,796 per household.

The West Virginia Association of Justice, a trial lawyers’ group, has long opposed an intermediate court of appeals. Beth White, executive director for the association, said the cost of creating the court isn’t worth it considering the decreased caseload of the court.

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