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Steve Canterbury

Steve Canterbury

Like that poison ivy sprout that comes back every spring, legislation to create an Intermediate Appellate Court in West Virginia is back yet again. It’s no more necessary now than it has ever been, and it’s just as noxious as that stubborn poison ivy.

Those who desire it won’t tell us the real reason that they want such an intermediate court: simply put, they want certain types of appeals to take longer, namely those involving insurance and corporate cases.

“Wait,” one may protest. “Isn’t justice delayed justice denied?”

Nope, not to these guys. To them, justice delayed is money in the bank.

The longer it takes for a case to reach a final judgment or settlement, the better the chances are that the aggrieved or injured person will settle for a few cents on the dollar. That’s obviously a win for insurance companies and other corporate interests that find themselves on the wrong end of a lawsuit.

It’s also good news for their lawyers who bill by the hour. The longer a case is tied up in the court, the more billable hours result for those kinds of insurance defense attorneys.

Indeed, one of the laughable aspects of the so-called Citizens against Lawsuit Abuse is that they have never even mentioned the defense bar’s primary means of abusing the legal system — unnecessary, continuous delay. That’s as abusive to the justice system as anything that’s done by overly zealous plaintiffs’ attorneys (whose own ways of abusing the system have been gleefully and frequently reported by CALA’s barrage).

At first, in prior years, those who pushed for the intermediate appellate court included all manners of cases, including criminal defense cases. But when some legislators raised reasonable objections regarding the dramatic increase in costs for the public defenders and for the Attorney General’s Office, not to mention all of the county prosecutors’ offices, the legislation’s drafters this year simply dropped all criminal appeals from consideration.

Why pretend any longer that the lobbyists for the intermediate appellate court give a hoot about the criminal justice system? After all, those same lobbyists turn out the “Judicial Hell Hole” list annually, and nary a word is uttered in that report about the criminal justice system.

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Not that it’s especially surprising, but the creation of an intermediate appellate court is all about this: money, certain people’s money. It will save some specific industries great amounts of money and allow certain kinds of lawyers to make more money.

It has nothing to do with the taxpayer’s money, that’s for sure. Conservatively, operating the intermediate appellate court would cost the state $8 million or more annually. Each of the six judges not only has to have a support staff, but there also must be two clerks of court (one in a yet-to-be-designated southern location and one in the north) with their staff, technology, security and office space. There also would have to be some administrative employees located somewhere to handle everything from payroll to supplies.

The counties would pay more, too. This year’s bill apparently assumes that the three judges in the north and the three in the south would move from county courthouse to county courthouse to hold their oral arguments. Not only would this be a logistical nightmare to manage with the circuit courts, it apparently is an unfunded mandate for counties to provide the necessary space and security (since court marshals are paid by the counties).

Several years ago, Nevada voters approved the establishment of an intermediate appellate court, after failing to do so in two previous elections. The Nevada Supreme Court justices all endorsed its creation. At the time, this wasn’t lost on those West Virginia legislators who were advancing yet another bill to create a West Virginia version of that court. This was especially important because at least four of West Virginia’s own justices at that time publicly opposed another layer of court.

So those legislators asked Nevada Chief Justice James Hardesty to testify via video before an interim committee. He certainly must have disappointed them with what he told them. He said that Nevada had a backlog of over two thousand cases, that his state’s Supreme Court needed the help that an intermediate court could provide.

West Virginia has no corresponding backlog of cases. In fact, the entire caseload annually for the Supreme Court isn’t even half of what Nevada’s backlog is. Even though the last term of the court released the lowest number of written opinions in decades, there is no indication that our court has any kind of backlog.

Without thousands of backed-up cases, Justice Hardesty said that, in such a situation, he didn’t really understand why an intermediate appellate court needed to be created.

But before we jump to conclusions, we have to consider that he probably wasn’t thinking of the insurance and industry lobbyists and their attorney allies. He was probably just thinking about what was best for the taxpayers in our state, the ordinary citizens. What a novel idea.

Steve Canterbury is a former administrator of the West Virginia Supreme Court of Appeals.

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