The West Virginia Supreme Court of Appeals is a powerful institution. The Court presides over the judiciary, one of the three branches of state government.  While the branches are co-equal to ensure a balance of powers, it can be argued that the Court is superior among equals.

As per the State Constitution, “The Court shall have power to promulgate rules for all cases and proceedings, civil and criminal, for all of the courts of the State relating to writs, warrants, process, practice and procedure, which shall have the force and effect of law.”

Additionally, the State Constitution gives the Court control over the Judiciary’s budget, which this year is just over $140 million.  The Legislature has no oversight of the budget.

The Court has five members, each elected for 12-year terms.  A simple majority vote of three members can have a far reaching impact.

The Supreme Court is the state’s court of last resort. It is the alpha and the omega of justice in West Virginia.

However, that may be changing. The State Senate has now advanced to the floor two measures that would trim the sails of the Court.

The first, SJR3, is a proposed amendment to the Constitution that would give the Legislature control over the Judiciary’s budget. (The Legislature already has the authority to determine the budgets for the legislative and executive branches.)  It’s worth noting that even the U.S. Supreme Court and most state judiciaries must get legislative approval for their budgets.

This kind of proposed power shift would normally be wildly controversial; however, the Court’s well publicized profligate spending on office furnishings has triggered bi-partisan outrage at the Capitol.  I

The proposed amendment will likely get the necessary two-thirds vote in each chamber, and then it will be up to the voters to decide whether they want to make the change.

The second measure, SB 341, is the creation of an intermediate court of appeals.  This dates back to a 2009 report from a commission created by Governor Joe Manchin and chaired by U.S. Supreme Court Justice Sandra Day O’Connor.

The report concluded, “An intermediate court could help the Supreme Court of Appeals in accommodating the vast, and growing, appellate needs of West Virginia. An intermediate court would increase the ability to address potential errors by trial courts, and could also help to develop consistency in the law and provide additional guidance to lower courts and litigants alike.”

The current Supreme Court opposes the move. That was made clear when Court Administrative Director Gary Johnson submitted to the Senate Finance Committee a requested budget for the new court.

“The Court has authorized me to indicate that it opposes the concept of an intermediate appellate court because such a court is not needed, will cause unnecessary delay and will increase costs,” Johnson wrote.

His memo included an estimated cost of $11.7 million for the first year.  Senate leaders scoffed at the number, accusing the Supreme Court of padding the prediction to try to discourage its creation.  Senate President Mitch Carmichael called it “comical.”

The Senate Finance Committee developed its own detailed budget and concluded the intermediate court would cost only $2.9 million the first year—just one-quarter of the Supreme Court’s estimate.

An independent judiciary is crucial for fair and impartial adjudication and public confidence.  Critics of the Legislature’s efforts fear that will be compromised under the proposed changes. However, a number of legislators now believe the Court has used that independence to create a greater-than-equal branch.

 

 

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