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Intermediate court of appeals gets another legislative review

CHARLESTON, W.Va. — Debate will likely fire up in earnest this week over a perennial state government issue: whether West Virginia should establish an intermediate court of appeals.

The Senate Judiciary Committee introduced a bill last week and got a first glance at its contents. But the committee held off on arguing about, amending or passing the bill until this week.

An intermediate appeals court has come up before — for example, in  1999, 2003, 2010, 2011, 2012, 2013 and 2014. West Virginia is one of nine states without one.

With the state Supreme Court under scrutiny this year after stories about spending on expensive couches and rugs, some observers think this is the moment an intermediate court of appeals could ride a wave of momentum.

Still, another layer of the court system is likely to face significant questions — including whether it’s truly necessary and how much it might cost.

What would the court be like?

The bill has the court starting by July 1, 2019.

The court would be divided with one district in the northern part of the state and a second in the southern part of the state.

Arguments would be heard throughout the districts in locations considered convenient to litigants. Facilities could include courtrooms in county courthouses, courtrooms in federal courthouses, county commission rooms or even rooms at higher education institutions.

Appeals would be reviewed as a matter of right. The intermediate court could decide whether oral arguments are necessary.

Besides taking civil appeals from the broader courts system, the intermediate court of appeals would also take over the duties of the Workers Compensation Board of Review, which would be terminated.

Criminal appeals would continue to be heard by the Supreme Court.

The intermediate court of appeals would be subject to the administrative control, supervision and oversight of the West Virginia Supreme Court of Appeals.

Who would serve?

There would be six total judges — three in each district.

Initially, according to the introduced bill, judges would be appointed by the governor with consent by the Senate. The judges would serve 10-year terms.

The original bill introduced in the Senate described a system of elections after the initial appointments.

But the Judiciary Committee seems likely to instead consider a structure that would keep the positions filled through appointments by the governor and consent by the Senate with the possibility of reappointment.

The governor would select from a list of names provided by the Judicial Vacancy Advisory Commission.

The judges in the intermediate court would be paid $130,000 a year, putting the pay at a level between current Supreme Court justice and circuit judge salaries.

Why is it needed?

Advocates traditionally have pointed to the certainty provided by an intermediate court. They say appeals are more likely to receive a thorough review with an intermediate court system. Advocates also say an intermediate court would reduce the caseload on the Supreme Court.

“I think it will do a couple of salutory things if it becomes law,” said Senate Judiciary Chairman Charles Trump, R-Morgan.

“I think it will spread the workload out a little bit that exists now, which is right now between the circuit judges and the Supreme Court. And I’m hopeful it would give our Supreme Court an opportunity to spend more of its time on the issues that court deems to be most important for development of the law for the whole state.”

Justices on the Supreme Court have said an intermediate court isn’t necessary. The Supreme Court has pointed to its own mandatory appellate review, where “each properly prepared appeal is fully decided on its merits, and appeals are no longer refused.”

During one of West Virginia’s recent debates over the intermediate court, Justice Margaret Workman penned an article titled, “Intermediate Appeals Court: We Don’t Need It, and We Can’t Afford It.”

Workman contended the the state judiciary should operate “in a frugal, effective manner” instead of “wasting taxpayer funds” on an additional appellate court.

Senator Mike Romano, D-Harrison, a member of the Judiciary Committee agrees with that assessment.

“All of the evidence we’ve heard over the past three years is that this court is unnecessary,” Romano said.

He said he would like to see a direct appeal for workers compensation cases.

“But the rest of these cases, there’s not that many,” Romano said. “Our Supreme Court hears 100 percent of them. They issue an opinion in 100 percent of them so I really think it’s much ado about nothing.”

How much would it cost?

That’s one of the big questions — especially while the state is just now emerging from major revenue problems over the past several years.

A fiscal note estimating the cost has been requested from the Supreme Court, but it hasn’t been submitted yet.

Trump agreed cost is a concern.

“It never really was able to hit an agenda of one of the judiciary committees in the House or Senate the last two years because of our budget situation,” Trump said.

“I have to concede, there is some cost associated with this. We’re going to do our very best to try to quantify it because that goes into the mix of the evaluation of whether we can do it.”

Romano argues whatever the cost is, it’s too much.

“At a time when our state’s struggling and the revenues haven’t been consistent over the past few years, we’ve really been in a deficit situation — and unfortunately, I hear that’s going to return,” Romano said.

“Until we get financially stable and really start to generate some excess revenues, I think it’s a bad idea to spend what’s probably going to be several million dollars to establish this court.”

What other questions are there?

Romano says he’s concerned about convenience for those involved in court cases, particularly if the court locations vary.

“You’re going about a wide geographical area,” he said. “I also think the way they split up the districts also split up some different counties.

“Our circuit courts are primarily set by counties, and I think that’s going to cause confusion about which of the intermediate court appeals districts you appeal to. The last thing you want to do for litigants is cause more headaches.”

Will it go forward this time?

“I never try to handicap chances of passage,” Trump said.

He added, “I’m hoping to get lots of feedback, both from members of the committee and from the citizens of West Virginia. I’m eager to know what the citizens think about it.”

Romano isn’t in favor. But he thinks it’s probably going to happen.

“The Democrats have many fewer votes than the Republicans. It’s probably going to pass if they want it to pass,” Romano said. “So I’m going to try help them pass the best bill that I can and work with them as much as I can to accomplish their goal.”

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