State to Launch Intermediate Court of Appeals

By Brian J. Skinner, Esq.

Gov. Jim Justice recently announced the state is accepting applications of candidates interested in serving as judges on the newly created Intermediate Court of Appeals.

During the 2021 regular session, the West Virginia Legislature enacted Senate Bill 275, or the West Virginia Appellate Reorganization Act of 2021. Legislators debated an Intermediate Court of Appeals bill during the previous three years. In 2020, the Senate passed a bill to create an intermediate appellate court, but the House of Delegates rejected it, largely along party lines, on the next-to-last day of the regular legislative session.

This year, however, the bill made it through both chambers of the Legislature. The governor signed the bill into law on April 8.

Currently, the West Virginia Supreme Court of Appeals is the sole appellate court in the state. However, the West Virginia Constitution has long explicitly authorized the Legislature to establish an intermediate court of appeals.

Advocates of an intermediate court of appeals argued the court is necessary to provide clarity and predictability in West Virginia’s judicial system. Additionally, supporters asserted the creation of the court would attract more businesses to the state and expedite justice for people who need it most.

Opponents of the court noted the West Virginia Supreme Court’s caseload has dropped significantly in recent years and that an intermediate court would likely empower corporations to draw out legal proceedings to the disadvantage of working people.

The new Intermediate Court of Appeals has no original jurisdiction. Instead, it will serve as the first court of appeal of the final judgments or orders of a circuit court in civil cases and guardianship or conservatorship proceedings.

The Intermediate Court also will review final judgments or orders of a family court; final judgments, orders, or decisions of an agency or an administrative law judge that currently are appealable to the Circuit Court of Kanawha; final orders or decisions of the Health Care Authority; final orders or decisions of the Office of Judges; and final orders or decisions of the Workers’ Compensation Board of Review.

The Intermediate Court of Appeals is expressly prohibited from reviewing judgments or final orders issued in criminal, juvenile, and child abuse and neglect cases. It also is unable to hear appeals of orders of commitment and decisions of the Lawyer Disciplinary Board, the Judicial Investigation Commission, and the Public Service Commission. The court also is unable to hear interlocutory appeals, decide certified questions of law, or grant or review the decision of a circuit court regarding extraordinary remedies.

The Intermediate Court of Appeals will be made up of three judges elected on a nonpartisan basis to serve staggered 10-year terms. Initially, the governor will fill the seats on the court based on recommendations of the Judicial Vacancy Advisory Commission.

The governor shall select one judge who will serve a two-and-one-half-year term that will expire on Dec. 31, 2024; one judge who will serve a four-and-one-half-year term that will expire on Dec. 31, 2026; and one judge who will serve a six-and-one-half year term that will expire on Dec. 31, 2028.

After the initial appointment, voters will elect judges to the Intermediate Court of Appeals on a nonpartisan basis, by division, during the primary election.

The new Intermediate Court of Appeals is subject to the administrative control, supervision, and oversight of the Supreme Court of Appeals.

Appeals, opinions, orders, and decisions of the Intermediate Court of Appeals must be in writing and are binding precedent for the decisions of all circuit courts, family courts, magistrate courts, and agencies unless the Supreme Court of Appeals overrules or modifies the opinion, order or decision.

The Supreme Court of Appeals has discretionary review, by petition, of the decisions or orders of the Intermediate Appellate Court. The Supreme Court of Appeals may issue a stay of a case pending the appeal and has the discretion to grant or deny the petition for appeal of a decision by the Intermediate Court of Appeals.

The Intermediate Court of Appeals will begin its work on June 30, 2022. In the meantime, the Supreme Court of Appeals has announced plans to implement the court, including the creation of an advisory council.

Brian is the former counsel to the West Virginia House of Delegates Judiciary Committee and counsel to the West Virginia Senate Minority Caucus. He was also general counsel to the West Virginia State Health Officer and Commissioner for the Bureau for Public Health. He has almost two decades of experience as a strategic advisor and chief legal counsel to both executive and legislative branch public officials.