CHARLESTON – Once again, Senate leadership’s dream of creating an intermediate appeals court died in the House of Delegates.
SB 275 is the intermediate court bill. The House spent just over an hour and a quarter debating it. And then killed it.
As it was amended in the House on Thursday, it would handle appeals of circuit court civil and criminal cases, guardianship and conservatorship cases; child abuse and neglect, foster care and juvenile justice cases; family court decisions; contested administrative agency decisions; Worker’s Comp Board of Review decisions; and writs of habeas corpus (where prisoners can claim unlawful detention).
As it was amended in the House on Thursday, it would handle appeals of circuit court civil and criminal cases, guardianship and conservatorship cases; child abuse and neglect, foster care and juvenile justice cases; family court decisions; contested administrative agency decisions; Worker’s Comp Board of Review decisions; and writs of habeas corpus (where prisoners can claim unlawful detention).
The court would have northern and southern districts with three judges for each. The court would be launched July 1, 2023. The judges for each panel would be elected to staggered terms – four, six and 10 years – in the May 2022 primary. Where no candidate got more than 40 percent in May, a runoff would follow. Following those terms, all judges would be elected to 10-year terms.
The bill allowed parties to move for direct appeal to the Supreme Court for such things as issues of fundamental public importance or time urgency. Because the extra layer of appeal can delay some cases, the party that moved for further appeal to the Supreme Court faced an interest penalty if it fails again.
Among the opponents, Delegate Nathan Brown, D-Mingo, said he disagrees that this was the way to move the state’s business interests forward. People are concerned about roads, foster care, broadband. “Those are the issues that I think will attract business to West Virginia.”
The 2009 study that recommended an intermediate court is outdated, he said. The population and Supreme Court’s caseload have both shrunk. The new court will harm small businesses that won’t be able to afford the extra step.
With criminal appeals added to the court, he said, it would require crime victims to relive their trauma an additional time. An assistant prosecutor, he recalled the case of a group of kids who were violently prostituted and raped from Mexico to West Virginia. “I can only think of those children having to relive their story to a stranger one more time.”
Delegate Chad Lovejoy D-Cabell, said the total amount of appeals has fallen 67% since 1999 while civil appeals have dropped 56% in the last 15 years. “This new court is not necessary in West Virginia.”
While proponents noted that the amended bill put off court costs until after it’s launched in 2022-2023,
Lovejoy cited the cost estimates floating for the court: $8.5 million for the first year for technology, equipment and furniture and $7.2 million thereafter; another $2 million from the attorney general; $1.2 million for Public Defender Services for criminal appeals. (The cost would be offset by elimination of the Office of Judges for Worker’s Comp cases, at a savings of $2.6 million, according to the Insurance Commission.)
Minority Leader Tim Miley, D-Harrison, pointed out that the Supreme Court already doesn’t work three months out of the year and hasn’t come hollering for help.
Opposition was bipartisan. Delegate Tony Paynter, R- Wyoming, said the court won’t help struggling small businesses. “Another layer of bureaucracy is not the answer.” And Delegate Scott Cadle, R-Mason, said “This won’t do anything for the working people.”
Hovering in the middle, Delegate John Kelley, R-Wood, said he was still undecided and didn’t know how he was going to vote (he voted yes). He’s heard arguments on both sides from his constituents.
He was talking recently to an executive of a major manufacturer in Parkersburg who plans to move his division out of state when his kids finish school in two years, he said. The executive told him this was “because of the legal climate that we have in the state of West Virginia. That says a lot. That gentleman’s comments have worked on me and have rattled in my mind since we started this process.”
He continued, “I came to this institution to try to create jobs.” He has grandchildren ranging in age from 11 months to 18 years. “If I can keep my grandchildren in the state of West Virginia with a quality job, I’m going to do it.”
Among the supporters, Majority Leader Any Summers, R-Taylor, cited criminal appeals and said every person deserves access to justice. “I believe our people deserve a true right of appeal for their convictions and their judgments regardless of the price.”
Delegate Tom Azinger, R-Wood, said DuPont is one of the biggest employers in his district and wants an intermediate court. So do other big businesses. “If we want to bring big employers who pay big wages to West Virginia we need this court.”
Judiciary chair John Shott, R-Mercer, closed the debate, pointing out that the courts current rule of issuing either a memorandum decision (which he called “cursory review”) or a written opinion in each case is just a rule that can change any time three of them want to. At the whim of three, he said, the situation could easily return to the late 1990s and early 2000s when less than 10% of the people who appealed got heard.
The bill failed 44-56. Miley then made a tactical use of House rules, moving to reconsider the bill. Killing that motion would prevent any bill proponents from resurrecting the bill the rest of the session. An effort to keep the bill technically alive by tabling Miley’s motion failed 43-57 and the motion to reconsider died 42-58. Miley voted against his own motion and his tactic succeeded.
Locally, the vote on the bill itself fell along party lines: The three Republicans voted for it, the nine Democrats against it.
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