CHARLESTON — The Senate Judiciary on Monday approved SB 266, the intermediate appeals court bill, and sent it on to Finance.
The committee was divided but the bill passed on an apparently party-line voice vote. Members approved one amendment to benefit property owners in oil and gas cases and denied one proposed to discourage insurance companies from delaying cases.
The committee also heard for two layers representing two layers’ professional groups – one for the bll, one against.
Mark Hayes, vice president of the 500-member West Virginia Defense Trial Counsel, spoke for the bill. He said the organization would welcome adding to the body of law creating precedent. Too often in West Virginia, legal precedent is not fully developed or nonexistent, which makes it hard to counsel clients.
A court with a mandate to publish its opinions would help defense lawyers immensely. The state Supreme Court’s memorandum decisions are available online but not published and not always easily accessible. It’s easier to work in surrounding states. “We’re an outlier.”
An intermediate court would reinforce the right of appeal in the state, he said. “The permanency that a new court of appeals would create would help resolve the issues that we have with that right being just written down in a [Supreme Court] rule and not by statue or creating an additional court.
Among other selling points, he said, it would free circuit courts from heating administrative and family court appeals, and help trim their backlog. And trimming the original bill’s setup of two panels of three judges down to one will provide more consistency and predictability in decisions.
“All we practicing lawyers want and our clients want is fairness, consistency and predictability in our court system.”
On the other side of the coin, Tony Majestro spoke for the West Virginia Association for Justice, a 500-member plaintiffs’ attorney organization.
The cheapest, most efficient way to guarantee that all Supreme Court decisions are published and accessible, he said, would be to order in code that memorandum decisions be published. But memorandum decisions really aren’t that hard to find; they’re available via all search engines lawyers use.
An intermediate court will create one setback, he said. Federal courts don’t recognize lower court rulings as binding precedent.
So if many of the cases now leading to binding memorandum decisions go to the lower court, “The federal judge can say, ‘Ah, I don’t think that’s what the Supreme Court would do. I think the law ought to be something else.’”
Majestro agreed with Sen. Mike Romano, D-Harrison, that an intermediate court will allow well funded insurance companies to add 12 to 18 months to cases and pressure small businesses and private plaintiffs to settle for less or surrender so they can keep paying their bills and feed their kids.
“It’s the opposite of efficient,” he said. “It costs money and it takes time.”
Sen. Charles Clements, R-Wetzel, proposed the successful amendment. It adds to the bill’s list of cases that an intermediate court would handle those disputes involving surface rights and mineral rights with gas companies.
An extra layer of appeal, he said, will give deep-pocket gas companies unfair judicial advantage over property owners. The amendment passed in a roll-call vote, 13-4.
Romano offered a similar amendment that flopped in a voice vote. He proposed to also send directly to the Supreme Court any case where an insurance company is involved in the defense or is a defendant.
Insurance companies with unlimited funds for defense attorneys, he said, “can literally starve small businesses and individuals into the ground.”
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