Mark Sadd: What is the cost of not creating appellate court? (Opinion)

The most consequential issue going on in the West Virginia Legislature is the proposal for a new intermediate appeals court.

In a flip of typecast, the minority Democrats oppose a new layer in the judiciary, claiming it would be too costly, while the majority Republicans, supporting it, claim the price of justice surpasses the cost to the taxpayers.

Can we put a cost on justice? Of course, we do through the choices we make. How to measure the cost is altogether another matter, depending on who is doing the calculations. The so-called fiscal notes attached to Senate Bill 275 are only a part of the story.

Lacie Pierson reported in Tuesday’s Gazette-Mail that the House Finance Committee “couldn’t pin down an exact cost for” the proposed intermediate court. The West Virginia Supreme Court puts the annual price, after the costs to establish the new court, at “just below $7.2 million” for six new elected judges, two new clerks’ offices in Beckley and Clarksburg, personal clerks for the judges, staff employees and the apparatus of computers, equipment, paper, subscription services and coffee pots.

Because a new layer of judicial review will give parties more time to grind through the system, the attorney general and Public Defender Services estimate their annual costs will increase by $2 million and $1.2 million, respectively, to deal with the work. Yet SB 275 would eliminate the Workers’ Compensation Appeals Board and send its caseload to the new court. That would save $2.5 million a year.

Sen. Richard Lindsay, D-Kanawha, emphatically opposes SB 275.

“There is no reason, no good reason for this ... . It’s not essential for us. We don’t need this. It just adds another layer of money and government for our system of government ...,” Lindsay, a lawyer no less, clamored from the Senate floor.

Delegate Doug Skaff, D-Kanawha, tallied the fiscal notes at $13 million, as if to scare off the growing support of Republicans, appealing to their distaste for bigger government. “I think there’s so much unknown here, and I don’t even have a fiscal note here that adequately describes what the cost will be to the citizens of West Virginia,” he said.

I am guessing that Skaff would measure the cost to the citizens solely in taxpayer funds. It would be a mistake to measure the cost only that way, though. Skaff and all lawmakers should ask: What would be the cost to West Virginians if a new intermediate court of appeals is not created? (Indeed, apart from the issue, why not eliminate popular judicial elections, a move that would save candidates, voters and interest groups millions of dollars on needless campaigns?)

One of the traps of legislating is failing to measure the costs of laws, regulations and government action or inaction that are externalized, or shifted to the public.

Regarding the cost of inaction, legislators should consider whether our appellate court performs at least three essential functions well: correcting errors made in civil and criminal cases; clarifying and unifying the law; and building public confidence in the courts. In each of these, I suggest our current system isn’t up to par.

Is the Supreme Court reversing lower court decisions at rates similar to other states? If our reversal rate is low, and I believe it is, then that would support the need for an intermediate court of appeals to dig into more cases, searching for error.

How many parties get to present their cases to judges? In West Virginia, the answer is few. To the surprise of many, the Supreme Court doesn’t hear many arguments, an unsatisfying environment to worried and exhausted litigants.

How many written decisions guide people in how to act in the future? West Virginia jurisprudence is well known for its lack of what are called major decisions in many emerging areas of law and life.

In 2009, Matt Bowles and I wrote the topical “Appealing Changes: A Case for Expanding Appellate Review in West Virginia’s Judiciary.” There is chapter in a book called “The Rule of Law: Perspectives on Legal and Judicial Reform in West Virginia.”

Bowles and I called for two things: the guaranty of an appeal of right, which, at the time, West Virginia among the states uniquely did not have. Now it does. We also called back then, as voices in the wild, for the creation of an intermediate court of appeals. Using statistics that are now 15 years old, we wrote: “[T]he case for an intermediate appellate court is even stronger based on fundamental concerns for quality of review and current systemic inadequacies.”

“The question” for lawmakers, we wrote, “is not whether a certain number of cases are filed, pending or processed.” Nor today is the question about its direct cost the most important question in the debate.

If the courts are the last refuge of a civil society, then maintaining them is the most essential function of the state. And if that is true, the most important question is whether West Virginians are getting the quality of justice they deserve.

Mark Sadd is a Charleston lawyer

and former Daily Mail business editor.

Reach him at msadd@lewisglasser.com

or follow @mark_sadd on Twitter.