Court budget oversight and intermediate appeals court measures move forward

CHARLESTON, W.Va. — Amid questions about cost, the Senate Finance Committee passed a bill that would establish a long-discussed intermediate appeals court.

A few minutes later, the committee passed a resolution that would give the Legislature greater oversight of the judicial system’s budget.

The resolution still would need a two-thirds majority on the Senate floor, a two-thirds majority on the House floor and then a vote of the citizens on next November’s ballot.

Both measures gained steam against the backdrop of questions over Supreme Court purchasing priorities, including reports of expensive couches, rugs, chairs and inlaid floor designs.

Supreme Court Chief Justice Allen Loughry has argued against removing the judicial system’s financial independence, citing separation of powers.

“We believe in the separation of powers and think all three branches ought to be co-equal and, of course, that we ought to have control of our budget,” Supreme Court Administrator Gary Johnson said Thursday afternoon in the hallway outside the Senate Finance room.

Johnson spoke before the Senate Finance Committee earlier Thursday, saying the court also does not support an intermediate appeals court. Johnson also contended there would be significant cost.

He said the justices on Monday “voted to oppose the concept of an intermediate appellate court. They did not get into the details in case something about the constitutionality of it should come up later. But they voted to oppose the concept because they felt it would have undue delay and additional costs to the tax payers.”

Democrats on the committee were also critical of both measures.

Doug Facemire

Senator Doug Facemire, D-Braxton, said the budget oversight resolution invites financial retaliation if the Legislature and the Supreme Court disagree on policy matters. “This is a slippery slope,’ he said.

Facemire also spoke against the intermediate appeals court, calling it expensive and unnecessary.

“As a business owner, why do I want this?” Facemire said several times.

Because the court system currently has financial independence, it was asked to provide a fiscal note projecting the cost of an intermediate appeals court.

On behalf of the Supreme Court, Johnson submitted a fiscal note earlier this week estimating the cost at $11.7 million the first year. After that, the estimate was $10.3 million.

MORE: Read the fiscal note for the intermediate appeals court.

The Republican majority on the committee questioned the projected personnel costs of $8.7 million. The intermediate court would have northern and southern districts with three judges each.

The Supreme Court suggested that, in addition to the six judges, 86 additional personnel would be necessary.

And although the bill called for a traveling court that could hear arguments in existing federal or county courthouses or even at higher education institutions, the Supreme Court’s estimate called for setting up a physical courtroom in each district “with appropriate furnishings and security.”

Any courtroom would need to have “a sufficient gravitas to allow litigants to understand the importance of the court and of the proceedings.”

Facemire contended that as long as the Supreme Court has control of the judicial system’s budget, it’s the court’s opinion that matters.

“It doesn’t make any difference. What we’re presenting is opinions and this that and the other. It’s already been established the Supreme Court is going to decide what number we go off of,” Facemire said.

The Republican majority had such doubts about the estimate, it requested and received two more.

One was an assessment by the Legislative Auditor’s office. Staffers called other states with intermediate appeals courts to ask how much it costs to run them. For example, the staffers relayed, Mississippi’s costs $5.5 million to run.

That effort led Legislative Auditor Aaron Allred to conclude, “The Supreme Court’s fiscal note is inflated.”

Allred, too, pointed to the current financial independence of the judicial system to say that, as it stands, the Supreme Court’s word would be final on cost.

“As the constitution is now, we think the fiscal note is inflated, but it doesn’t mean it’s inaccurate because as the constitution is now, the court could spend whatever it wants because it’s in charge of its own budget,” Allred said.

Finance Chairman Craig Blair also asked committee counsel Rob Capehart to produce his own estimate. Capehart projected significantly lower costs, suggesting some could be accomplished as the intermediate court filters some of the Supreme Court’s duties.

His estimate was $2.9 million for the first year.

After that, Capehart said, the intermediate court would cost $2.4 million.

Facemire raised a question about fiscal notes generally.

“Numerous times we have questioned fiscal notes. And you know what we found? It depends on who is producing the fiscal note,” he said. “Remember that. It cuts both ways.”

Following the meeting, Blair said he was deeply skeptical of the Supreme Court’s cost estimate. So that’s why he asked for additional projections.

“When the Supreme Court sent that in, we looked at it and said ‘Wait a minute, these numbers are inflated,'” said Blair, R-Berkeley.

“And it said right on the letter coming in that they opposed this. So, wait a minute. We needed to go and look outside.”

Blair said he, too, has seen fiscal notes that he didn’t trust.

“We have witnessed over the years where fiscal notes have been provided that were meant to deter or encourage whatever legislation is before us,” Blair said. “That is not what I’m in the business of doing up there. I’m in the business of getting the right information out for the committee so they can make the right decision.”

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