When Gov. Jim Justice announced his support for the Legislature to form an intermediate court of appeals, Republican leaders in the Senate rose to their feet in applause.
Members of the House of Delegates from both parties, however, are skeptical or outright opposed to what they see as an unnecessary layer of government and millions in new spending to support big-business interests — potentially imperiling a Senate GOP priority.
This isn’t the first year the Legislature has attempted to form an appellate court between the circuit court and Supreme Court levels. Last year, Senate Republicans and one Democrat passed legislation 23-11 to do as much. No House committee took it up. Over the past 20 years, similar efforts have failed as well.
West Virginia is one of nine states without an intermediate appellate court. The bill as written would form two intermediate courts in the northern and southern halves of the state. The court would not have its own home and would meet somewhere “convenient to the litigants in a facility provided by the Administrative Director” of the Supreme Court.
It would hear appeals of civil, family, administrative and guardianship cases. It would not take up criminal, juvenile, child abuse and neglect, and other proceedings.
The cost of the court remains to be seen. Justice’s budget estimated it at $5 million exactly. Last year’s bill carried a fiscal note of about $10 million annually after its first year.
Gregory Bowman, dean of the law school at West Virginia University, said he didn’t have any strong feelings one way or another about the court.
“Is it an absolute need? No. Could it be beneficial in some ways? Yes,” he said. “It will be an additional burden, though; it will increase the size of government, and it will increase the cost of government.”
He said the idea has its pros and cons. On the one hand, he said there’s a lack of established case law in West Virginia, and more courts mean a more robust production of legal interpretation.
On the flip side, not only is the court pricey, but it’ll extend the litigation process and make it more difficult for individuals to bring suits against powerful companies that can better afford legal services.
Consideration of the bill comes as the Supreme Court’s workload has plummeted in recent years. According to 2014 court data, that year saw more than a 60 percent drop off in new case filings from 15 years prior, largely due to the privatization of workers’ compensation. For instance, in 1999, 65 percent of all filings were workers comp cases, compared to 22 percent in 2014.
In 2017, the court handled 221 civil cases, 258 criminal cases, 241 domestic cases and 271 administrative cases.
One voice pushing the legislation comes from the state Chamber of Commerce. Chamber President Steve Roberts said while the court may be expensive, West Virginia needs a reputation as a state that ensures fairness and justice in its courts to attract business.
“My pitch is that West Virginia needs to fully embrace the 21st century, and the 21st century requires us to modernize our system in a number of ways,” he said. “As the law has become more complex, we need more interpretation of the law, and an intermediate appellate court is a substantial vehicle for providing more interpretation of what the law actually means.”
Conversely, Stephen New, president of the West Virginia Association for Justice, which represents trial lawyers in the state, said the idea is overly expensive, unneeded, and will only drag out litigation and devalue plaintiff’s cases.
He also called the notion a “betrayal” of conservative principles of small government and limited spending.
“I think even average people understand that if they go through a lawsuit process, it’s going to take somewhere between a year and a half and two and a half years,” he said. “If you tell that person now, in addition, add another 18 months to that, I think that they understand that. I think they think that is too long to get a final resolution on some legal matter.”
Of 34 Senators in the chamber, 14 are Democrats. Last year the Republican majority passed an intermediate courts bill unanimously, along with Sen. Mike Woelfel, D-Cabell.
However, the House presents a tougher road. Of 100 members, 41 are Democrats, the rest being Republicans. While Roberts said he thinks it will pass the Senate, the House has been “harder to corral.”
In interviews, seven House Republicans shared some degree of opposition to an intermediate appellate court, and others were undecided. Likewise, House Minority Leader Tim Miley, D-Harrison, said he doesn’t know of any supportive House Democrats.
House Judiciary Chairman John Shott, R-Mercer, put his take bluntly.
“I’m not convinced we need it,” he said.
Given the House has voted to codify a pre-existing rule with the Supreme Court that forces it to offer a “meaningful review” and written decision on every request for appeal, he said there’s no ambiguity about a right to appeal in the state.
Delegate Pat McGeehan, R-Hancock, said he’s against it as well.
“It’s unnecessary, new government spending on an unnecessary institution,” he said. “I also believe that it’s one way for larger businesses ... to sort of bottleneck and bleed dollars out of smaller businesses when they have contractual disputes. Large business can afford the costs, they can drag the lawsuit out forever, and they’ll probably be connected more to any of those judges, because large businesses have executives with a lot of established capital.”
In the Senate, Judiciary Chairman Charles Trump, R-Morgan, is more supportive. He said while the Supreme Court’s workload is down, an intermediate appellate court would free it up to develop new areas of jurisprudence in larger cases.
“I think if some portion of those went to an intermediate appellate court first, it would allow the state Supreme Court to do what it can do so well, which is development of opinions that include syllabus points and development of areas of the law and jurisprudence that they maybe can’t get to now,” he said.
As it stands, the bill has a long road to passage. It needs to worm through the committee process in the Senate, clear the Senate, and do the same in the House, before it reaches the governor’s office.
Trump said the committee process will likely begin within a week or two.