W.Va. appellate court, right of appeal bill dies in committee

By Chris Dickerson | Mar 4, 2010


CHARLESTON, W.Va. (Legal Newsline) -- A state Senate bill that would have created an intermediate appellate court and a guaranteed right of appeal has died in committee.

SB589 was defeated by a Senate Finance Committee vote on Tuesday.

State Sen. Jeff Kessler, D-Marshall, was one of the sponsors of the bill.

"I'm sorely disappointed that it happened," Kessler said of the defeat Wednesday. "I was hopeful that it would at least get to the full Senate for discussion.

"I'm shocked as much as anything, though, by the opposition from the minority party to this bill."

The topic of an intermediate appellate court and a guaranteed right of appeal has been a hot topic this legislative session. Chief Justice Robin Jean Davis' comments earlier this year about how she doesn't see the need for such a court has sparked a war of words. The Court is in the process of updating rules about appeals.

The president of the West Virginia Chamber of Commerce said he also is "deeply disappointed" by the vote to kill the bill.

"The Chamber appreciates the Senate Judiciary Committee's unanimous support for this bill," Steve Roberts said Wednesday. "We also commend the statements of support provided for the bill during the Finance Committee meeting by Senator Brooks McCabe. The Senate Finance Committee indicated that it wanted to hold off on the creation of this new court system pending new rules on appellate practice that are being developed by the state Supreme Court.

"The Chamber calls on the high court to complete these new rules as soon as possible and present these forpublic input and reaction. But, we believe an intermediate court still is needed since the proposed rule changes will not change the fact that our state Supreme Court will be the only one in the nation with discretionary appeals."

Currently, parties can petition the state Supreme Court for an appeal. But the appeal isn't guaranteed.

Roberts said that's the rub.

"If I asked (Chief Justice) Robin Davis for a million dollars, do you think she'd give it to me?" he said. "There is a big difference between asking and receiving.

"I've been stopped by people at my church who say they understand what we're talking about. In West Virginia, you can ask for an appeal. But that doesn't mean you will get it."

Roberts said the lack of a right of appeal is a civil rights issue.

"It's a fundamental and basic right of appeal," he said. "West Virginia continues to be the only state in the nation where people who receive a life sentence aren't guaranteed an appeal. We need change, and by now, with a 10.5 percent unemployment rate, having lost 70,000 jobs since January 2008, it ought to be obvious to everybody that major employers are avoiding West Virginia.

"The trial bar and their friends on the Supreme Court can say anything they want, but that doesn't change the fact that we've lots 70,000 jobs since January 2008. We've had major corporations leave the state because they couldn't get lawsuits heard on appeal. To say they're not going to address that problem is short-sighted."

Roberts said the Chamber is asking Gov. Joe Manchin to consider including this topic for any special sessions later this year.

Kessler said he doubts the issue will be taken up in a special session because Manchin has said he wants to see what the state Supreme Court does in updating its appeals rules.

The executive director of West Virginia Citizens Against Lawsuit Abuse also said his group was disappointed that the proposal is dead in the water.

"It's unfortunate that state lawmakers failed to pass the chief recommendation of Gov. Manchin's Independent Commission on Judicial Reform," Richie Heath said Thursday. "It has been more than a decade since the state Supreme Court's own judicial reform commission first recommended the creation of an intermediate appeals court with one automatic appeal of right.

"The reputation of West Virginia's courts will continue to suffer until our state guarantees full appellate review for all litigants -- a right provided by almost every other state in the nation."

Despite cost estimates of anywhere from $5 to $14 million annually for an intermediate appellate court, Roberts said he doesn't think cost is the major factor.

"Every legislator I've spoken to says money is not the factor," he said. "It's politics. Even though this is a civil rights issue, it's the politics of the plaintiffs bar working against us in an election year. Once again, a legislative session is going to close, and West Virginia is going to be the only state in the nation that doesn't guarantee appeals on very major verdicts."

In fact, Roberts said the state already has a model to handle appeals, and it costs about $1.5 million each year.

"We have a three-judge appellate system within the workers' comp system," Roberts said. "It's made up of three lawyers who sit in judgment of your workers' comp case. But again, what price justice?"

Steve Canterbury, administrative director of the state court system, said Thursday that the Court has not taken an official stance on the bill and the issues. But he did say he had discussed some related issues in hearings.

"I've reminded people that, yes, the cost is high, and it would grow because it will be annual," he said. "The proposal doesn't address such costs as security, court reporting, a location to have the court, offices, etc.

"Also, the amount of time is prohibitive, with a right of oral argument. It would create an incredible backlog.

"And third, the Court still is working on the rules that, they believe, will address most -- if not all -- of the issues addressed about this issue. Why not see if the court has rules that do address these issues. If they are, we've avoided a multi-million dollar adventure that would be permanent.

"If there still are problems, then the Legislature can come in and create code for an intermediate appellate court."

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