Gov. Jim Justice said Tuesday that he thinks “we got it right” when he announced the three men he appointed to serve in the inaugural term of the West Virginia Intermediate Court of Appeals.
Huntington lawyer Thomas Scarr, House of Delegates General Counsel Dan Greear and Wheeling attorney Donald Nickerson Jr. will be subject to approval from the West Virginia Senate before they can be sworn in as judges on May 1, 2022. The court is to begin operation July 1.
Intermediate court judges are paid an annual salary of $142,500.
Justice also used the conference to commend the Legislature, particularly Senate Judiciary Chairman Charles Trump, R-Morgan, for their work to pass the law establishing the court.
“It continues to make West Virginia more and more business friendly, more and more attractive to people that want to come to West Virginia, more in-tune with what’s going on across our nation,” Justice said. “We don’t want to be Washington, D.C. We don’t want to be left — the one puppy that doesn’t get fed. We want goodness in West Virginia.”
The initial terms on the court are staggered. If confirmed, Scarr will serve 2½ years, while Greear will serve 4½ years and Nickerson will serve 6½ years. The intermediate court judge terms will be up for election in nonpartisan races in 2024, 2026 and 2028, respectively. The judges elected from those races will serve 10-year terms.
West Virginia Supreme Court justices issued a statement Tuesday with Chief Justice Evan Jenkins congratulating the three and welcoming “each of these well-qualified individuals” on their appointments.
“We are committed to working together to improve our justice system,” Jenkins said.
Justice John Hutchison, who will become chief justice on Jan. 1, said he looks forward to working closely with the new judges to establish the intermediate court.
The Supreme Court and its administrative staff provide administrative oversight for all courts in West Virginia, including the intermediate court. They are in the process of setting up the filing, personnel and other systems for the court leading up to its opening.
Scarr is an attorney with Jenkins Fenstermaker in Huntington, a law firm founded by Jenkins’ grandfather. Scarr also is president of the West Virginia State Bar.
“I’m looking forward to working with the other judges and the Supreme Court to establish the Intermediate Court of Appeals,” Scarr said.
Greear serves as general counsel to House Speaker Roger Hanshaw, R-Clay.
Justice appointed Greear to serve temporarily as a Kanawha County circuit judge in 2018. Greear lost an election bid to finish that judicial term, which expires in 2024, to Judge Tera Salango.
The governor talked about his familiarity with Greear and emphasized how the court needs to “reflect the values of West Virginians.”
“This Intermediate Court of Appeals needs to have a conservative flavor to it,” Justice said in announcing Greear’s appointment. “It needs to be fair beyond belief, we all know that, but I think this man will do a wonderful job.”
Hanshaw released a statement Tuesday saying he is “pleased by the announcement of three outstanding men to help open West Virginia’s Intermediate Court of Appeals,” particularly that Greear had served in the House, as staff and as a member in 1995 and 1996, with dignity.
“When the House voted on this bill, I said it strikes a good balance of what our institutions of government should be, and I believe that even more so, especially after hearing the names of our new judges, one of whom I’ve worked closely with for years,” Hanshaw said. “In addition to many other distinctions throughout his career, Dan Greear has served as counsel to the House of Delegates for several years, and I have all the confidence in the world in his abilities.”
Nickerson is an attorney with the Wheeling office of Spilman Thomas & Battle, and he serves as an Ohio County commissioner, a position he was first elected to in 2018. He served as a municipal court judge for the city of Wheeling from 1999 to 2019, according to his biography on the Spilman Thomas & Battle website.
“I don’t know him personally, but I know of his experience,” Justice said. “I can tell you the job he will do will be phenomenal.”
Nickerson pledged to work hard with the other judges to make the court a success and maintain his personal ethical and professional standards.
“It’s an important, prestigious position in our judicial system,” Nickerson said. “I’m flattered. I’m humbled by it, and I gratefully accept it.”
The intermediate court judges will consider appeals that now go to the Supreme Court, the Workers’ Compensation Review Board or the West Virginia Insurance Commission’s Office of Judges. The Office of Judges will be terminated, and the Workers’ Compensation Review Board will be expanded.
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 judgments of circuit court judges in guardianship and conservatorship matters.
- Judgments in administrative appeals, which, by law, are filed in Kanawha County 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 that office is terminated.
- Final orders of the Workers’ Compensation Board of Review issued after June 30, 2022.
Cases that will be automatically appealed to the Supreme Court, and bypass the intermediate court altogether, include criminal, juvenile, child abuse and neglect, domestic violence petitions and mental hygiene, as well as certified questions of law from circuit and federal courts.
After the intermediate court issues a ruling, that case may be appealed to the Supreme Court.
Justice noted Tuesday that this is the second round of significant judicial appointments he’s made during his term. In addition to appointing the three intermediate court judges, he appointed three justices to the Supreme Court — Jenkins, Tim Armstead and Hutchison — in 2018 in the wake of impeachment proceedings against sitting justices at the time.
West Virginia voters elected Jenkins, Armstead and Hutchison to the court in subsequent elections in 2018 and 2020.
“How could you argue with the quality and the integrity of those people?” Justice asked. “You can’t. There’s no way. It’s the same responsibility we have right now, to make the right choices. Absolutely it’s one thing to have a historic moment when you’re making these appointments, but you’ve got to get it right. I really believe, with all in me, I’ve got it right.”
Correction: This story has been updated to correct the title of House general counsel Dan Greear. A previous version of the story misstated his job title.