West Virginia will debate creation of an intermediate appellate court: only 9 states lack an IAC

With the creation in 2015 of the Nevada Court of Appeals, only 9 states lack an intermediate appellate court (IAC) among them West Virginia. The legislative session the state will once again debate creation of such a court.

First, some background (from this 2013 post)

West Virginia rewrote its entire judiciary article (Article VIII) in 1974 at a time when many states were starting to create their own IACs. The legislature at the time it adopted SJR 6 of 1974 hedged its bets: rather than creating an IAC it provided that “The judicial power of the state shall be vested solely in a supreme court of appeals and in the circuit courts, and in such intermediate appellate courts and magistrate courts as shall be hereafter established by the Legislature…” (emphasis added).

Since then, and in particular since 1999, the state’s debated two different methods for creating such an IAC.

The first would have an IAC with its own judges dedicated and solely elected/appointed/named to that court. The second would have an IAC made up of 2 lower court judges (active or retired Circuit Court judges) sitting with 1 Supreme Court justice. This particular practice of having active trial and appellate judges from the state’s other courts sitting as an IAC was popular in states in the 1800s but has been abandoned.

SB 9 of 2016 takes the first more modern approach to the question of an IAC. The new Intermediate Court of Appeals would have its own judges (6) divided into two panels of 3 (Northern District and Southern District).

  • Judges would be initially appointed before July 1, 2017 by the governor from a list provided by the state’s Judicial Vacancy Advisory Committee; the committee would send 3 names for each vacancy but the governor could ask for more names. After appointment the judges would be subject to nonpartisan elections by district starting in 2018.
  • The Clerk of the Supreme Court would be clerk of the Intermediate Court of Appeals, a relatively common practice (Alaska, Colorado, Connecticut, Hawaii, Iowa, Kansas, and Tennessee provide that the clerk of their court of last resort is also the IAC’s clerk)
  • The court would use a “deflector” system: an appeal would be filed with the Supreme Court which would then either take the case itself or “deflect” it down to the Court of Appeals. Again, this is a relative common practice (Iowa, Idaho, Mississippi and Nevada’s new IAC use this system).

SB 9 has been filed in the Senate Judiciary Committee.