The Register-Herald, Beckley, West Virginia

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February 25, 2010

Judiciary panel OKs appeals court plan

By Mannix Porterfield Register-Herald Reporter

CHARLESTON — A proposed intermediate court of appeals, assuring every West Virginian a day before the bench, cleared the Senate Judiciary Committee after a lengthy explanation Thursday.

While the Supreme Court has disparaged the idea as unneeded, the Senate panel moved ahead, at least to get the debate started.

Earlier, Chairman Jeffrey Kessler, D-Marshall, voiced doubts the bill would be enacted this session.

But by getting the measure out, he hoped to get some serious conversation going on the idea.

Before exiting his panel, Sen. Richard Browning, D-Wyoming, altered the bill so that electronic filing is allowed.

Majority Leader Truman Chafin, D-Mingo, a practicing attorney, pointed out the proposed new court could handle up to 2,500 cases a year, contrasted with 1,000 averaged by the Supreme Court.

“They can’t do it,” he said. “One of the things that needs to be done, we’ve got to get up to date on electronic reporting.”

Judiciary committee counsel Rita Pauley explained the intent is to start with three judges, but the number could double if interest is there.

If that occurs, she said, there would be a northern and southern district court.

The court could hear appeals from all orders by circuit courts in civil and criminal matters, but wouldn’t sustain original jurisdiction.

Appeals would be filed within 60 days, with a response due in one month and all decisions to be made in six months, but there may be times when further briefs or filings are required, she pointed out.

“So it’s not like you’ve got 60 days to file, 30 days to answer, and boom, you’re going to get a decision immediately,” Pauley told the panel.

“The court will have jurisdiction that’s pretty broad.”

An intermediate court may certify any case to the higher court if it has major public impact, could invalidate a constitutional amendment, demands a ruling on the constitutionality of a rule, is a case of first impression, offers a novel question or the caseload simply dictates a transfer, Pauley noted.

Judges would be paid $119,000 annually and must be a state resident, a member of the West Virginia State Bar in good standing, have eight years of law experience and cannot have an outside law practice or any other business or employment that would raise questions of impartiality.

The governor would pick the first three judges, one for a four-year term, the second for six years and the third for eight.

After that, judges would be elected.

Pauley said the advice and consent of the Senate isn’t a requirement.

Kessler said he felt it wise to limit the scope of politics in the selections by keeping the Legislature out of the picture.

All but 13 states have some form of intermediate court, Pauley said.

The judiciary counsel wasn’t sure if the appellate court was precisely what the governor’s special judicial commission on reform had in mind.

“Overall, the concept complies with those recommendations to have an intermediate court of appeals ... so that everyone has their day in court,” she told Sen. Dan Foster, D-Kanawha.

No fiscal note was attached to the bill, but Pauley said Kessler and his staff worked to trim expenses.

“But it’s still not going to be free,” she added.

— E-mail: mannix@register-herald.com

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