W.Va. Senate Judiciary Committee Clears Intermediate Courts, Bill Now Calls For Elected Judges

Jan 28, 2020

The West Virginia Senate Judiciary Committee has approved a bill that would create an intermediate appellate court system. But amendments to the proposal Monday changed the way judges would take seats on the proposed bench — now calling for nonpartisan elections rather than gubernatorial appointments. 

Senate Bill 275, which committee members began work on Friday, has appeared in recent legislative sessions but has failed to make its way to the governor’s desk. 

The bill would create an intermediate court system with two three-judge panels. Those judges would serve 10-year terms and the panels would be split between two districts — proposed in the bill as a northern and southern district — splitting the state’s population as evenly as possible and keeping circuit court circuits in tact.

The new layer of courts would handle appeals from civil cases as well as family court, guardianship and workers’ compensation decisions. 

However, the intermediate court of appeals would not have jurisdiction over criminal cases, juvenile cases, abuse and neglect proceedings, mental hygiene proceedings or Public Service Commission appeals.  

Senate Judiciary Chair Charles Trump, R-Morgan, said the proposal has lingered around the Legislature for more than a decade.

“It was and has been recommended by every study commission that has ever been appointed to study our judiciary in West Virginia, the most recent of which was a 2009 study commission appointed by Gov. [Joe] Manchin,” Trump said in an interview. “Sandra Day O'Connor served on it, and they recommended that we create an intermediate Court of Appeals.”

The West Virginia Supreme Court Court of Appeals says it would cost about $7.5 million in its first year and then about $6.3 million annually. The Consolidated Public Retirement Board points to an annual price tag of $55,000.

However, the state Insurance Commissioner has determined it will save the state about $2.4 million each year — putting the cost of the new court system at about $4 million each year.

Operations of the new court would begin July 1, 2021. The governor would make initial appointments on Jan. 1 of next year. 

In committee Monday, minority Democrats questioned whether current Gov. Jim Justice should be allowed to make initial appointments to the court, considering the election year cycle and a looming inauguration — possibly one of a new governor. The initial appointments would come after the 2020 election but before the gubernatorial inauguration. 

During his State of the State address as the 2020 session kicked off, Gov. Justice gave a passing endorsement of an intermediate court of appeals.  

“Last year, I came to you with the idea of an Intermediate Court of Appeals. I really truly believe that it is a part of putting us on our way to restore honor and integrity to our system even better,” Gov. Justice said. “We need to do it.  And I think we can get it across the finish line this year.  It will help us in lots and lots of different ways.”  

Committee members adopted an amendment from Sen. John Pitsenbarger, R-Nicholas that would reel in the governor’s power to set the intermediate court’s make-up. 

The approved amendment calls for non-partisan election of intermediate court judges following those initial appointments. Those elections would be staggered beginning with the May 2022 primary.

“I just feel more comfortable with it that way,” Pitsenbarger said. “And I feel that the constituents would also like to have input on those judges.”

A second adopted amendment came from Sen. Charles Clements, R-Wetzel. That change would force the governor to make the initial appointments based on recommendations of eligible judges from the Judicial Vacancy Advisory Commission. 

Democrats stretched out conversation on the matter for some time into Monday afternoon. Sen. Mike Romano, D-Harrison — who has called the new court system unnecessary — offered an amendment that would end the intermediate courts after 10 years should the Legislature not act. Romano’s amendment failed on a voice vote.

Additionally, an effort to stall the bill indefinitely failed to take hold. Sen. Mike Woelfel, D-Cabell, moved for the committee to table the bill, which was rejected on a 7-10 vote.

The Committee Substitute of Senate Bill 275 now heads to the upper chamber’s Finance Committee.