West Virginia is another step closer to an intermediate appeals court, but the structure of the court underwent a few significant changes Thursday morning.
The House of Delegates Judiciary Committee advanced a version of Senate Bill 275 that would give the Mountain State a single-district intermediate court with three judges, instead of the two-district court with six judges that had been up for consideration this year — and at least the previous three years.
The changes to the bill came after the committee heard an hour of comments from the public and lobbyists Thursday, the majority of whom spoke against the bill before the committee made its changes.
With the committee’s approval, the bill now heads to the House Finance Committee.
If it passes, the changes the House made will have to be approved by the Senate before it could go to Gov. Jim Justice for his consideration. Justice has said he supports an intermediate court in West Virginia, one of 10 states in the country that does not have such a court.
The committee’s amendment didn’t change the types of cases the court would review.
By getting rid of a district, the committee’s amendment is expected to cut $2.1 million from the cost of operating the court, House Judiciary General Counsel Joey Spano said Thursday morning.
Instead of $7.89 million to operate two districts, the court now is expected to cost $5.7 million annually to operate, Spano said. The only exception would be the first operating year of the court, when it’s expected to cost $3.6 million.
When the measure passed the Senate with two districts, it was estimated to cost $7.61 million to implement the court.
Most of the savings would come from simply having fewer people working for the court where appeals in certain cases from family and circuit courts, and certain state agencies, would go before they would go to the West Virginia Supreme Court.
Other big changes to the bill include limiting an intermediate court judge’s term to 10 years, where there had been a 12-year term when the Senate approved the bill last week.
The House’s version of the bill keeps an intermediate court judge’s salary at $142,500
Another key change in the bill is that filing and other fees collected by the court now will go to the The Ryan Brown Addiction Prevention and Recovery Fund.
Previous versions of the bill had those fees going to the West Virginia State Police Forensic Laboratory. The bill does not take away any court fees or other funding the State Police already receives.
“I felt we had the ability to make a difference,” House Judiciary Chairman Moore Capito, R-Kanawha said. “If we were going to see some of these filing fees, how could they be the most impactful to everyday West Virginians? If we’re going to ask them to trust us — for us to tell them we think this is a good idea — you should be reasonable stewards of how you manage it and how you stand it up.”
The bill didn’t change much in the way of which cases would be appealed to the intermediate court versus going straight to the West Virginia Supreme Court, but the new bill allows the state Supreme Court to “pluck,” as Capito put it, cases under consideration by the intermediate court, particularly if those cases are time sensitive.
Delegate Chad Lovejoy, D-Cabell, the ranking Democrat on the Judiciary Committee, said the existing court system provides more due process and equity than the proposed intermediate court would.
“The truth of the matter is, it expands government where it is not needed,” Lovejoy said. “There’s no place for it, and it is not necessary. We have pressing issues in West Virginia and we’ve started to tackle some of them — broadband, hunger, and the education system. Our house is on fire, and we’re building a new deck. I don’t think that’s the way to go.”
If SB 275 becomes law as-is, the single panel of three judges will begin hearing appeals in certain cases in July 2022. They would consider appeals that now go to the Supreme Court, the Workers’ Compensation Review Board or the West Virginia Insurance Commission’s Office of Judges.
Seven types of cases may be appealed, but not automatically, to the intermediate court:
- final judgments of circuit court judges in civil cases;
- final judgments of family court judges;
- final judgements of circuit court judges in guardianship and conservatorship matters;
- judgments in administrative appeals, which, by law, are filed in Kanawha Circuit Court;
- decisions by the West Virginia Health Care Authority regarding certificates of need;
- decisions from the Office of Judges in the West Virginia Insurance Commission, before the office is terminated; and
- final orders of the Workers Compensation Board of Review issued after June 30, 2022.
Cases that would be automatically appealed to the Supreme Court, and bypass the intermediate court altogether, include criminal, juvenile, child abuse and neglect, and mental hygiene cases, as well as certified questions of law from circuit and federal courts.
The committee Thursday rejected amendments that would have kept the Office of Judges intact and required abuse and neglect cases, as well as criminal appeals, to go to the intermediate court.
On Thursday, Supreme Court Justice Evan Jenkins presented the committee with data on the types of cases the court heard during the past five years.
In 2020, 790 cases were appealed to the Supreme Court, Jenkins said.
If an intermediate court had been in place and reviewing cases as defined in SB 275, 299 of those cases would have gone to the intermediate court first, and 491 of them would have been appealed directly to the Supreme Court, based on the data Jenkins and Supreme Court Clerk Edythe Nash Gaiser compiled.
With a different system and case flow in place, Jenkins said it’s difficult to say whether the court’s caseload would drastically change. The 2020 data couldn’t predict the caseload future since the establishment of the intermediate court would create an entirely different case flow of appeals.
“We don’t know and cannot project ... based on yesterday’s filings what tomorrow’s workload will be,” Jenkins said.
Before the committee presented the new version of the bill, at least a dozen people made their voices heard on it.
Supporting the bill during the hearing were representatives from the West Virginia Manufacturer’s Association, the West Virginia Chamber of Commerce, and Americans For Prosperity-West Virginia.
The bill’s supporters echoed much of the same points for supporting the bill — it would attract business and industry to the state because it would provide a more consistent and more efficient legal system in the state.
People speaking against the bill said it would do the exact opposite of that, likewise going over similar points that have been made against the bill.
They said the bill would put business and profits over justice and equity for West Virginians, including small businesses and that the money being spent on the court would be better spent on schools, COVID-19 relief and other community support.
Representatives from the West Virginia Coalition Against Domestic Violence, West Virginians for Clean Elections, and the West Virginia Chapter of the ACLU also spoke against the bill.
Capito said the comments he heard during the hearing Thursday morning amounted mostly to what he said were normal concerns toward a system that was new to the state, calling the court “a new lens we can view our judicial system through.”
“I understand the concerns,” Capito said. “I’m confident we crafted a concept that I really do think will be beneficial to the judicial system going forward.”