The West Virginia House of Delegates was poised on Thursday to either keep alive a bill that would establish an intermediate court of appeals or keep the Mountain State’s judicial system as-is.
The arguments supporting and against an intermediate court haven’t materially changed for the past three years, but the House vote set for Senate Bill 275 on Friday will represent the furthest that any intermediate court proposal has come in recent legislative sessions.
Legislators generally have agreed that the ripples from the substance abuse disorder crisis in the state have specifically crashed hard on the court system with an uptick in criminal drug and property cases as well as child abuse and neglect and subsequent child custody cases as people who are addicted to drugs are arrested for various crimes and often lose custody of their children.
Where they don’t agree is how to address those issues or whether another level of court in West Virginia will help alleviate those cases. They also can’t pin down a price tag on the court that’s estimated to cost at least $8 million in its current form and up to $15 million once it’s operating.
Debate Thursday centered around amendments proposed to the bill, which has experienced some substantial changes since it passed the Senate on Feb. 10.
The most contested amendment Thursday was one Delegate Chad Lovejoy, D-Cabell, proposed regarding the location of the court, which has been a big sticking point for the bill in the House.
The way the bill is now is the way it originally left the Senate. It provides that the court will hold hearings in locations most convenient to the parties in a given case. The bill already holds that the state Supreme Court, as the administrative arm of all of the courts in the state, can assist in facilitating locations at existing courthouses and judicial facilities throughout the state.
Lovejoy and Delegate Brandon Steele, R-Raleigh, went back and forth over the location of the court, with Steele saying it was better for the court to be housed in a permanent location rather than floating throughout the state or headquartered in Charleston, where Steele said there was a high concentration of judges and attorneys whose perspectives are more centralized to the state bureaucracy.
“By having these physical locations either in the deep south or up in Clarksburg, towards the northern part of the state, you’re going to have the opportunity for six judges that are getting elected to be people that have a different mindset, that have a different mentality, that have a different outlook on the law that is crafted by the geographic location and not just crafted by their proximity to the Charleston bureaucracy,” Steele said.
The House Judiciary Committee on Feb. 29 approved an amendment from Steele to make it so the court, which is divided into two divisions, respectively would be located in Clarksburg and Beckley.
Establishing the court to operate based on convenience for the parties in a case made the court more accessible to more people in the state, Lovejoy said.
“I think [Steele] hits on a good point that centralized locations impact the ability of folks out in the field to contribute to the process,” Lovejoy said. “The same logic that would apply when he says ‘Charleston is bad because ...’ is no better than ‘These other two cities are better because ... .’ I submit the better way is let’s let all of our communities, our people, our businesses are the ones that’s going to be in this court, let’s have it here.”
Right now, appeals from county-level circuit and family courts go to the West Virginia Supreme Court.
If the Legislature establishes an intermediate court of appeals, it would provide a level of appeal between the county-based circuit and family courts and the Supreme Court.
With an intermediate court, the Supreme Court justices would decide which appeals they would consider, and wouldn’t be required to issue opinions in every case that came before them. Right now, the high court legally may reject cases, but, in practice, justices issue opinions for every case appealed to the court. However, they select which cases will get hearings.
In 2018, 937 cases were appealed to the Supreme Court, and 929 were appealed there in 2019, according to data compiled by the Supreme Court Clerk’s Office. Domestic appeals, which include child welfare cases, made up 36 percent of the appeals in 2018 and 33 percent of the appeals in 2019.
Under the new court, the Supreme Court would be able to pick and chose which cases it would consider, meaning the court wouldn’t have to issue an opinion on every appeal made to it.
Right now the bill allows three provisions that people could use to bypass the intermediate court and go straight to the Supreme Court: if their appeal involves a question of “fundamental public importance,” if time were a factor in a given case and, therefore, required immediate consideration by the court, and if their case involves an issue that isn’t covered by existing law or legal precedent.
The intermediate court would hear appeals in criminal cases, civil cases, conservatorship and guardianship cases, family court decisions, administrative agency decisions and Workers’ Compensation Board of Review decisions.
The House amended the bill Thursday to add child welfare cases as being appealed to the intermediate court.
Mental hygiene cases or appeals from the West Virginia Public Service Commission would go straight to the Supreme Court bypassing the intermediate court altogether.
The creation of the intermediate court would mean the elimination of the Workers’ Compensation Office of Judges. That would mean worker compensation reviews would go through the Workers’ Compensation Board of Review, and any appeals of the board’s decisions would be heard by judges on the intermediate court. The way the bill stands now, those cases could be further appealed to the Supreme Court.
The intermediate court would be a two-district court, a 27-county northern district and a 28-county southern district. Each district would have a panel of three judges who would serve 10-year terms on the bench and be elected during the regular nonpartisan judicial elections during the primary election in a given election year.
Judges for the court will be elected during the May 2022 primary election, and the court would begin operation in January 2023.
The regular legislative session will end Saturday.