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Jenkins appears before Senate committee on intermediate court bill

CHARLESTON, W.Va. — The Senate Judiciary Committee began, once again, deliberating a bill to create an intermediate appeals court.

Mike Romano

The bill is SB 266, handed down from the governor.

The committee has yet to hear from supporters or opponents; it received an overview of the bill Friday morning and offered questions to committee counsel and Supreme Court Justice Evan Jenkins.

Sen. Mike Romano, D-Harrison, occupied most of the time devoted to questions and, as he has in the past, led the voices of opposition to the proposed court. “We’re simply adding another layer of government,” he said, and they would need a pretty significant justification for that.

Hallway talk among opponents adds that the intermediate court would favor some deep-pocketed businesses over regular folks and allow an extra two or so years delay in justice for regular folks.

The committee is handling a committee substitute with changes from the introduced version. Under the revised bill, the court would begin operating July 1, 2020, the first day of Fiscal Year 2021.

Evan Jenkins

The court would consist of a panel of three appointed judges. The introduced version envisioned two panels, one in the north, one in the south.

The panel would handle appeals of civil cases, guardianship and conservatorship cases, family courts, administrative agency decisions and Workers’ Compensation Review Board decisions.

It would not hear criminal cases, juvenile proceedings or child abuse and neglect cases, among others.

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

Judges would serve 10 year terms. In order to set up a rotation, the initial panelists would serve a six-year, eight-year and 10-year term, respectively. Judges would earn $130,000 per year, halfway between circuit judges at $126,000 and Supreme Court justices at $136,000.

A fiscal note puts the initial cost at $7.6 million with annual cost after that of $6.34 million. Committee counsel noted that the figure was based on two three-judge panels.

Jenkins told the committee that three fewer judges, six fewer clerks and three fewer secretaries, the initial figure should be down to less than $5 million, and the court will present a new note to the committee.

Mike Woelfel

Opponents question why the court is needed. As Romano put it, “What is the justification for spending at least $6 million,” and probably far more when other agency court costs are factored in.

Neither counsel nor Jenkins could speak to the why, but they offered some factual information.

Before 2011, the court’s handling of appeals was discretionary. The vast majority of appeals were returned without explanation or decision. (Figures presented at a Hose Judiciary meeting on a separate bill showed that from 2006-’10, it received 12,050 appeals and issued decisions on just 607.)

In 2010, the Supreme Court amended its rules to make West Virginia a right-to-appeal state. It now issues two types of written decisions in all cases: memorandum decisions that rely on and apply existing law and are more concise; and signed opinions that, in most cases, establish new points of law.

In 2017, the Supreme Court saw 1,153 cases filed; 828 led to memorandum decisions and 115 to signed opinions (cases can overlap years). Under this bill, 429 of those memorandum decisions would go to the appeals court.

In 2018, it 1,147 cases were filed: it issued 687 memorandum decisions and 67 signed opinions. Under this bill, 409 of those cases would go to the appeals court.

Sen. Mike Woelfel, D-Cabell, provided some chuckles for the committee before suggesting an alternate function for the court.

“I was the only member of my caucus to support this last year. I voted on the floor for it,” he said.

Charles Trump

Chair Charles Trump, R-Morgan, responded, “We’re counting on you again, too.”

Woelfel paused and smiled, “Well, it’s not an election year.”

He asked counsel to look into the constitutionality of having the appeals court handle just criminal and aubse and neglect appeals, which would be more than 500 cases per year.

Thinking along the model of the business courts, he said this would allow those cases that require speedy decisions to get them, and allow the Supreme Court to handle the other matters it now hears.

Still to come for the committee will be testimony from bill supporters and opponents, and members’ proposed amendments to the bill. The committee is expected to resume work when it meets Monday morning. The agenda has not yet been posted.

A separate but related House bill is also in the hands of Senate Judiciary. HB 2164 says: “All appeals shall be afforded a full and meaningful review, and an opportunity to be heard, by the West Virginia Supreme Court of Appeals, and a written decision on the merits shall be issued, as a matter of right.”

Some had hoped that passage of the House bill would forestall movement on the intermediate court bill.





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