The House Judiciary Committee on Friday approved a proposal for an intermediate court of appeals in West Virginia, overcoming more than five hours of pointed questioning and sometimes hot-blooded debate throughout the course of the day.
Senate Bill 275 has made it further than other proposals for the intermediate court have during the past three years. It got there after a day of specific and tense questioning of witnesses and some indirect insults exchanged among delegates toward the end of the debate Friday evening.
As of 6 p.m. Friday, the measure was set to go before the House Finance Committee, although chatter at the end of the meeting indicated there was a chance the Finance Committee would not take up the bill, instead allowing it to advance to the full House of Delegates for consideration.
House Judiciary Committee members substantially changed some practical and functional aspects of the court bill, which would increase the cost of establishing the court to at least $8.5 million. Among the biggest changes to the bill was allowing criminal cases to be appealed to the intermediate court and pushing back the court’s beginning date to January 2023.
Those changes didn’t drastically alter the reasons people supported or rejected the establishment of the court.
Supporters still said the court would attract new business to the state by providing clarity in the law. Opponents said the legal caseload in West Virginia doesn’t necessitate another court, especially when the state is too strapped for money to pay for it.
Delegate Terry Waxman, R-Harrison, said she supports the intermediate court because economists have said it would benefit the state.
“Until we have the foundation of a thriving, growing, sustainable economy, we’re not ever going to have enough money to get all the things that are needed in our state,” Waxman said. “The foundation of that thriving, diversified, sustainable economy is having a legal system that is viewed as fair and predictable. That’s what makes it a good place to do business.”
Delegate Sean Fluharty, D-Ohio, said no evidence has been presented showing that any businesses have indicated they would establish a location in West Virginia if the state established an intermediate court.
“This is nothing more than an IOU that’s been years in the making,” Fluharty said. “That’s what the elections come with in this place, and this is paying it back.”
Legislators have gone back and forth about whether there’s a backlog of cases before the Supreme Court, citing various data points from the high court and past state commissions that studied the courts system.
The Gazette-Mail reached out to Supreme Court justices for their take on whether there is a case backlog.
“The Court maintains a longstanding record of processing cases in shorter time frames than recommended by the National Center for State Courts,” justices said through spokeswoman April Harless. “Except in extraordinary circumstances, each case is decided and a written opinion is issued in the same term of court in which it is argued.“
A study by the National Center for State Courts followed cases tried in 2005. The study followed their appeals in state courts from 2005 through 2010. It showed that 95% of civil appeals at the state level were resolved in 546 days and 95% of criminal cases were disposed in 818 days.
During the morning meeting, the committee heard from Senate Judiciary Chairman Charles Trump, R-Morgan, and Sara Canterbury, general counsel for the Judiciary Committee.
During the evening meeting, delegates asked questions of the West Virginia Supreme Court Administrative Director Joe Armstrong and Supreme Court Clerk Edythe Nash Gaiser.
They also questioned Anthony Majestro, representing the West Virginia Association for Justice, and Chief Administrative Law Judge Brad Crouser, of the Workers Compensation Office of Judges within the state Offices of the Insurance Commissioner.
Committee members’ questioning focused on issues like where the court would be housed and how to file appeals. The bill requires that anyone filing an appeal to the intermediate court would do so via an electronic system.
Under questioning by Delegate Andrew Byrd, D-Kanawha, Armstrong said the Supreme Court doesn’t have an e-filing system and that only certain counties in West Virginia have e-filing capabilities, meaning filing lawsuits and other points in a court case can be done only in person or by mail.
Armstrong said the Supreme Court, being responsible for the practical aspects of establishing the court, would have to make accommodations to set up the e-filing system to comply with the proposed law.
House Judiciary members made a few key changes to the bill Friday.
The way the bill stands now, the Supreme Court would decide which appeals it would consider and which it would reject. 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 to hear.
As the name of the new panel suggests, the intermediate appeals court would provide a level of appeal between the county-based circuit courts and the Supreme Court.
The bill previously allowed for two exceptions where someone could bypass the intermediate court and go straight to the Supreme Court: if their appeal involved a question of “fundamental public importance” and if time were a factor in a given case and, therefore, required immediate consideration by the court.
The House Judiciary on Friday added a provision that would allow people to bypass the intermediate court and go straight to the Supreme Court if their case involves an issue that isn’t covered by existing law or legal precedent.
The committee also made it so the intermediate court would hear appeals in criminal cases, which is what added the bulk of the extra cost to establishing and operating the court. That means the 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 committee rejected an amendment that would have allowed the intermediate court to hear appeals in child abuse and neglect cases. Those still will go straight from circuit or family courts to the Supreme Court, along with mental hygiene cases or appeals from the West Virginia Public Service Commission.
The committee also drastically changed the case flow regarding workers’ compensation cases.
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. An amendment from the committee on Friday would allow those cases to 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.
The committee on Friday amended the bill to allow for judges to be elected during the May 2022 primary election, and the court would begin operation in January 2023.