CHARLESTON, W.Va. — The intermediate appeals court bill heads to the Senate floor after approval by a divided Senate Finance Committee on Monday.

Finance made to changes to the bill that came from Judiciary. One of those changes pleased the gas industry but earned the ire of royalty owners.

Under SB 266, the three-judge court would begin operating July 1, 2020, the first day of Fiscal Year 2021.

The panel would handle appeals of civil cases, guardianship and conservatorship cases, administrative agency decisions and Workers’ Compensation Review Board decisions. A provision to have the court handle family court appeals was stricken, with that duty returned to circuit courts.

The state Supreme Court would have discretionary review of appeals court decisions.

Judges would serve 10-year terms and earn $130,000 per year, halfway between circuit judges at $126,000 and Supreme Court justices at $136,000.

A new fiscal note lowers the price of the court. The bill originally envisioned two three-judge panels, with an initial cost of $7.6 million an annual cost thereafter of $6.34 million. The revised price tag is $4.3 million initially, and $3.36 million thereafter.

Supreme Court Justice Evan Jenkins — a former state senator — appeared to field questions. He stressed several times that the court has decided to take no position on the bill; policy falls to the Legislature.

West Virginia Legislature

Sen. Doug Facemire, D-Braxton

Sen. Doug Facemire, D-Braxton, tried several times to pin Jenkins down on his opinion, but Jenkins didn’t budge. “We are working very hard to restore accountability and transparence,” is all Jenkins would say.

Facemire chose to draw a conclusion from that: “I would hope if you all thought this would be better, you would support it.”

Jenkins said bill supporters say it isn’t about court caseload. Except for 2018, when impeachment proceedings disrupted the court’s schedule, it handles on average 900 to 950 cases per year, and is able to meet its constitutional mandate to consider all cases and deliver a written decision.

Jenkins said supporters believe that an intermediate court would help build a deeper body of precedential case law to provide more certainty and clarity for the legal community.

He presented a chart that illustrated how the new court might divide the work between itself and the Supreme Court based on the bill’s mandates. In 2017, the intermediate court would have handled 390 cases compared to the Supreme Court’s 763. The numbers for 2018 would be 365 and 782.

Judiciary had amended into the bill an amendment proposed by Sen. Charles Clements, R-Wetzel, on behalf of the royalty owner community, which believes an intermediate court will delay justice in favor of the deep-pocketed gas industry, which could afford to drag out royalty disputes for another two years. His amendment sent those disputes directly to the Supreme Court.

In Finance, Sen. Eric Tarr, R-Putnam, proposed to put those cases back in the intermediate court’s purview. He said the businesses want a predictable legal environment and the gas industry in particular is looking to invest in the state. The Judiciary amendment could cloud the issue.

His proposal passed on a divided voice vote.

Committee chair Craig Blair, R-Berkeley, then put the amended bill up for a vote to send to the full Senate. He didn’t allow time for debate or discussion. It passed in a 9-6 show of hands along party lines.

After the meeting, West Virginia Royalty Owners Association President Tom Huber commented on the removal of the amendment. “It’s a bad bill. Now we’ll have to fight it.” One measure might be to see if the amendment can be restored on the Senate floor.

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