Appeals declining in WV but some still want intermediate court - Business, Government Legal News from throughout WV

Appeals declining in WV but some still want intermediate court

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Although appeals to the state's Supreme Court may be declining, some groups think the need for an intermediate court is increasing.

According to a document Chief Justice Menis Ketchum handed out at several Senate and House committee meetings, the state Supreme Court has experienced a "severe decline" in appeals filed from 2006 to 2010. In fact, overall filings are down by 42 percent.

The total number of appeals has declined by 56 percent since 2007. This number stabilized in 2011.  

"In the mid 2000s, the Supreme Court had a heavy caseload caused by a massive volume of workers' compensation appeals during the transition to the new workers' compensation system," Ketchum's memo stated, noting workers' compensation claims have declined 82 percent since 2007. "These appeals inflated the number of appeals and made the court extremely busy."

However, even with this decline, some say the state still is need of an intermediate court. Richie Heath, executive director of West Virginia Citizens Against Lawsuit Abuse, said the state's numbers still justify the need.

"The last three states that created an intermediate appeals court — Utah, Nebraska and Mississippi —we still outpace them in terms of filings," Heath said. "Our Supreme Court is one of the busiest appellate courts in the nation with the exception of Nevada, which is actively pushing for an intermediate court based on numbers similar to our own."

However, Heath said numbers are not the only factor. Heath explained the goal of an intermediate court is two-fold — to increase review of circuit court decisions and to aid in the development of West Virginia law.

Others, such as Paul T. Farrell Jr. president of the West Virginia Association for Justice, ask why the state needs another layer of court. Farrell said the push for an intermediate court is a "jackass stupid idea."

"What they want is to try to create a new layer of judges that the richest companies in West Virginia can appoint themselves," he said. "The whole key to this is that this is an agenda that is just the newest wave of how the rich can attack our judicial system because they don't want a democracy."

Several bills before the Legislature are pushing for the creation of an intermediate court. One bill would utilize current judges to serve on a rotating panel.  

Another bill, Senate Bill 420, would have appeals first reviewed by the state Supreme Court. The high court would decide whether to keep the appeal or send it to an intermediate court. This bill was referred to the Senate Judiciary Committee on Jan. 25.

"All the cases still go to the Supreme Court," Farrell said. "I think if someone wants to introduce it in the Legislature, then what we need is an intermediate Legislature. Not a single one of our 65 elected judges or our five Supreme Court justices believe we need an intermediate court. The only reason we would need it is if courts are too busy."

During a recent a legislative breakfast hosted by CALA and the West Virginia chapter of the Associated Builders & Contractors, Delegate Jim Morgan, D-Cabell, said a new intermediate court would add a tremendous delay in receiving a final decision.

According to Ketchum's memo, 99 percent of appeals currently are disposed by written decision within eight to 10 months from the date the legal briefs are filed. The memo additionally stated 90 percent of civil cases are settled through mediation.

Marc Williams, a partner at Nelson Mullins Riley & Scarborough, said the number of cases delayed through the process would be "very small."

"The number of cases going through both the Supreme Court and the intermediate courts are very small," he said. "The delay is relatively minor, and it's worth it to get it right. Think of how long it takes trial judges to get some cases resolved. Some cases are 10 to 11 years old."

Morgan then asked if business courts would help. Ketchum said in his memo business courts would cause an additional reduction in appeals.

The proposed business court, or complex commercial litigation court, would have jurisdiction across the state and would handle cases involving contract disputes between multiple businesses, sales and commercial code disputes, non-consumer debts, shareholder disputes, non-competition agreements, intellectual property disputes, malpractice lawsuits involving corporations and torts between businesses.

"It will be a significant step forward but it wouldn't really affect the issues," Williams said. "The only thing business courts do is provides judges training in law for business to business disputes."

Morgan asked why the state would need an intermediate court if state Supreme Court justices and circuit judges do not appear to be overworked.

"They are resolving by opinion a significantly higher number of cases than they used to," Williams said. "It used to, on average, deal with a range of 60-80 opinions rendered in any year. Now, there are 400 to 500."

Another topic of debate at the Legislative breakfast dealt with the state Supreme Court's changes to appellate rules and procedures.

"The new rules eliminated the appeal by permission and replaced it with an appeal by right," the memo stated. "As confirmed by the National Center for State Courts, each appeal is now fully decided on its merits with a written decision."

However Williams said this was only a "half-step" forward.

"Intermediate courts would allow West Virginia law to develop much broader than it is," he said. "The Supreme Court hears a limited number of cases and hundreds of issues are left unresolved."

According to Ketchum's memo, 578 decisions out of 678 total cases were resolved by memorandum opinions in 2011. The memo additionally stated there were 45 per curiam decisions and 55 signed decisions in 2011.

"Memorandum decisions only decides that one case," Williams explained. "If I have a case similar to the facts but it was decided by a memorandum decision, I can't take that decision and say the Supreme Court has already decided it."

Cost also remains a big issue for some opposed to intermediate courts, and with the Supreme Court looking at slashing its budget, an intermediate court might not be in the immediate future.

"If they're in a budget slashing mode, it's probably not going to want to add that layer of court," Heath said. 

Morgan mentioned the cost, which ranges from $3 million to $10 million a year.

"It seems that money would be better spent for economic development in this court system and remove us from the hellhole report," he said.

Williams said the court would be a "relatively inexpensive" way to provide predictability to the state's judicial climate.

"The question comes down to this," Farrell said. "Why should the taxpayers spend an extra $10 million a year creating an intermediate appellate court when our Supreme Court already reviews each and every case?"

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