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CHARLESTON -- The first applicants for appointed seats to West Virginia's new Intermediate Court of Appeals includes former circuit judges, family court judges, prosecutors, public defenders, attorneys and even a disgraced former Social Security judge.
Gov. Jim Justice's Judicial Vacancy Advisory Commission met Thursday and Friday behind closed doors to consider 29 applicants for the new appeals court. While ICA judges will be elected by West Virginia's registered voters in the future for 10-year terms, the first three judges must be appointed. Those judges will serve staggered terms, with one term up for election in 2024, one term up in 2026, and one term up in 2028.
Senate Bill 275, passed by the West Virginia Legislature during the 2021 session, created a three-judge intermediate appeals court between the circuit courts and the Supreme Court. The new court will begin July 1, 2022.
The new court will hear noncriminal appeals of circuit court cases, family court cases and guardianships and conservatorships, appeals of administrative law judge decisions and final orders and decisions by the state Health Care Authority.
The intermediate court also replaces the Workers' Compensation Office of Administrative Judges with a Workers' Compensation Board of Review, from where decisions can be appealed to the intermediate court.
Members of the JVAC will have to comb through the resumes and qualifications of the 29 applicants, who all come from varied legal backgrounds.
FROM THE BENCH
Six applicants include currently serving family court judges and three former circuit court judges.
ö Jim Douglas is a family court judge serving the 11th Family Court Circuit in Kanawha County since his election in 2016. Douglas maintained his own legal practice for a time and he also served as the prosecuting attorney for Braxton County from 1985 to 1988. Douglas has run for a seat on the West Virginia Supreme Court of Appeals in 2018 and 2020.
* Darren Tallman is a family court judge serving the 3rd Family Court Circuit in Pleasants and Wood counties. He was first elected in 2002. A former county prosecutor, Tallman has served as Wood County Juvenile Drug Court judge since 2010. Prior service includes a stint as a mental hygiene commissioner and in the West Virginia Child Advocacy Office in the 1990s.
* Deanna Ray Rock is a family court judge for the 23rd Judicial Circuit in Hampshire, Mineral, and Morgan counties. She was elected to the seat in 1996. Prior to her service on the bench, Rock was an attorney from 2003 to 2016, and she also has a nursing degree.
* James L. Rowe is a retired circuit court judge for the 11th Judicial Circuit in Greenbrier and Pocahontas counties. Rowe continues to serve as a senior status judge, a category of retired judges who fill temporary vacancies or are appointed to oversee certain cases. Rowe retired from the bench in 2016 after serving as a judge for 20 years. He was appointed to the bench by former governor Gaston Caperton in 1997.
* Dan Greear is a former circuit court judge for the 13th Judicial Circuit in Kanawha County. The chief of staff to former House Speaker and current state Supreme Court Justice Tim Armstead, Greear was appointed to the bench by Justice in 2019 to fill a vacancy due to the retirement of Judge James Stucky. He ran for election to the seat but was defeated by attorney Tera Salango in 2020. Greear returned to the House of Delegates as counsel to House Speaker Roger Hanshaw, R-Clay. Greear was also an unsuccessful Republican candidate for state Attorney General in 2008.
* Debra Scudiere is a former circuit judge for the 17th Judicial Circuit in Monongalia County. She was appointed by Justice in 2019 to fill the vacancy left by Judge Russell M. Clawges Jr. when he retired. She ran for election and was defeated by former assistant county prosecutor and West Virginia University attorney Cindy Scott in 2020. During her brief tenure, Scudiere was appointed by the state Supreme Court to the Mass Litigation Panel. Prior to her judicial appointment, Scudiere was an attorney for the Kay Casto & Chaney law firm.
BLIND JUSTICE?
One applicant for the ICA made national news a few years ago for the quality of his decisions and sleeping on the job.
Harry C. Taylor II is an attorney based in Charleston. At one point, Taylor served as an administrative law judge for the Office of Disability Adjudication and Review at the Social Security Administration. Taylor received notoriety after being accused of rubber-stamping disability claims.
According to a 2014 report from the U.S. House of Representatives Committee on Oversight and Government Reform, Taylor had a disability approval rate of 94% with another 68% of his decisions awarded without holding a hearing. According to the report, Taylor awarded approximately $2.5 billion in Social Security benefits between 2005 and 2013.
"An internal review found the majority of ALJ Taylor's decisions contained medical expert assessments that were not consistent with his ultimate findings of disability," a summary of the report's findings read.
According to the report, Taylor was recommended for suspension twice, including serving a 14-day suspension in 2011 after co-workers complained about Taylor falling asleep.
"In addition to multiple allegations of misconduct, ALJ Taylor slept at work and during hearings many times," the report continued. "Four years after the first documented allegation that ALJ Taylor was sleeping at work, he was finally disciplined … However, ALJ Taylor continued to violate agency policies, and was recommended for another suspension in April 2013. More than a year later, the recommendation for his suspension is still pending and ALJ Taylor continues to decide a full load of cases."
Taylor and other administrative law judges mentioned in the report appeared before the House Committee on Oversight and Government Reform in 2014. According to written testimony, Taylor pushed back on the report's accusations.
"I have always been a person driven to work. With very few hobbies except those of my children, my dedication and attention has always been on my work days, nights, and even weekends," Taylor wrote. "It is said that I am a 'workacholic (sic).'"
It's unclear when Taylor stopped working for the Social Security Administration or what Taylor has done since, though he remains an active member of the bar. Taylor also ran unsuccessfully for the 2018 special election for state Supreme Court justice.
MAKING THEIR CASE
Several applicants have experience as county prosecutors, assistants to U.S. Attorneys and Attorneys General or lawmakers who helped develop the criminal code.
* Putnam County Prosecuting Attorney Mark A. Sorsaia has served as his county's top attorney since his 1996 election, serving as an assistant prosecuting attorney in 1988. Now in his seventh term, Sorsaia has also ran unsuccessfully for Governor in the 2011 special Republican primary election. Sorsaia is a past vice president of the West Virginia Association of Counties, has served on the Board of Directors of the West Virginia Prosecuting Attorneys Association, and has served as the chairman of the Executive Committee of the West Virginia Prosecuting Attorneys Institute.
* S. Benjamin Bryant, an attorney with the Carey, Douglas, Kessler and Ruby law firm in Charleston, is a former Assistant U.S. Attorney for 11 years. He also clerked for Charles H. Haden II, a Judge of the U.S. District Courts for the Southern and Northern District of West Virginia between 1975 and 2004. Bryant joined Carey, Scott, Douglas & Kessler in 2005.
* Donald A. Nickerson Jr. is an attorney at the Spillman Thomas and Battle law firm in Wheeling and was elected to the Ohio County Commission in 2019. Nickerson also serves as the vice president and trust officer for WesBanco Bank and United Bank, Inc. Nickerson has judicial experience, having served as Wheeling's municipal court judge between 1999 and 2019. He also worked as fiduciary commissioner in Ohio County between 1999 and 2004. From 1990 to 1992, Nickerson was an assistant attorney general in Ohio and general counsel for the Ohio Department of Natural Resources.
Rounding out the list of applicants with prior prosecutorial experience or elected office include: Edward Ryan Kennedy an attorney Littler CaseSmart, a Clarksburg city council member, and a former Clarksburg Mayor; Charleston attorney John J. Balenovich, a former assistant commonwealth attorney in Kentucky from 2008 to 2018; Gregory Alan Tucker, an attorney in Summersville, a former state senator for 11th Senatorial District, and a vice chairman of the Senate Judiciary Committee; and Crystal L. Walden of Charleston, director of Public Defender Services.
Other ICA applicants include: Lewisburg attorneys Robert J. Frank and Christine B. Stump; Chester attorney Joseph L. Ludovici; Madison attorney Howard R. Nolen; Terra Alta native Ronald Reece, an administrative law judge for the West Virginia Public Employees Grievance Board; Bridgeport attorney Jenna L. Robey; Thomas E. Scarr, an attorney with the Jenkins Fenstermaker law firm in Huntington; Mychal Sommer Schulz, an attorney with the Baust Calland law firm in Charleston; Hamlin attorney William J. Stevens; Charleston attorney Keith Bryant Walker, and Wheeling attorney Martin P. Sheehan.