West Virginia: Senate approves big changes to judiciary; constitutional amendment would let legislature control judiciary’s budget; creation of intermediate appellate court advances

The West Virginia Senate approved two big changes to the state’s judiciary yesterday

Judicial Budget Oversight Amendment

SJR 3 as approved addresses funding for the state’s judiciary. Currently the West Virginia judiciary is unique among all states in that it’s budget request must be approved by the legislature without a decrease

The Legislature shall may not amend the budget bill so as to create a deficit but may amend the bill by increasing or decreasing any item therein. Provided, That no item relating to the judiciary shall be decreased

SJR 3 as introduced would have reasserted legislative control, striking the “That no item relating to the judiciary shall be decreased” language.

SJR 3 as approved by the House Judiciary committee struck the language, but added a protection.

Provided, That the Legislature may not condition the increase or decrease of an item relating to the judiciary upon a particular ruling, order or decision of a court of this state.

SJR 3 as approved by the House Finance committee changed the wording further still

Provided, That the Legislature may not make any law that conditions the increase or decrease of an item relating to the judiciary upon a particular ruling, order, or decision of a court of this state

The Senate Finance language was approved by the full Senate. If approved by the House it would still have be approved by voters.

Intermediate Appellate Court (at least for the next 10 years)

SB 341 as amended and approved by the full Senate yesterday is the latest in a 20 year effort to get an intermediate appellate court in the state.

SB 341 would create a court with two geographic districts (Northern and Southern) each with its own panel made up of 3 judges. Judges would not be “borrowed” from other courts; prior proposals would have created 3 judge panels made of 1 Supreme Court justice sitting with 3 Circuit Court judges. The court would automatically sunset in July 2029.

Interestingly, the judges of the new court would NOT be subject to any sort of election. Instead there would be a 3-step process.

  1. The state’s existing Judicial Vacancy Advisory Commission, currently used to fill interim vacancies, would submit names to the governor for each vacancy.
  2. The governor would then appoint a person subject to Senate confirmation.
  3. Once appointed, the judge serves for 10 years and may be reappointed. (Some of the first set of judges would serve 6-year or 8-year terms in order to create a staggered term system).

Included is a provision that civil appeals would lie either to the Intermediate Court of Appeals or Supreme Court of Appeals and that in civil cases “shall be afforded a full and meaningful review, and an opportunity to be heard, by the West Virginia Supreme Court of Appeals or the Intermediate Court of Appeals, and a written decision on the merits shall be issued, as a matter of right.”

SB 341 now goes to the House.

West Virginia: latest in 20 year effort to create intermediate appellate court advances out of committee; judges would not be “borrowed” from other courts and would not be subject to elections

For almost 20 years West Virginia has seen semi-continuously legislative efforts to create an intermediate appellate court in the state. The latest iteration has now cleared its first legislative hurdle.

SB 341 as amended and approved by the Senate Judiciary Committee last week would create a court with two geographic districts (Northern and Southern) each with its own panel made up of 3 judges. Judges would not be “borrowed” from other courts; prior proposals would have created 3 judge panels made of 1 Supreme Court justice sitting with 3 Circuit Court judges.

Interestingly, the judges of the new court would NOT be subject to any sort of election. Instead there would be a 3-step process.

  1. The state’s existing Judicial Vacancy Advisory Commission, currently used to fill interim vacancies, would submit names to the governor for each vacancy.
  2. The governor would then appoint a person subject to Senate confirmation.
  3. Once appointed, the judge serves for 10 years and may be reappointed. (Some of the first set of judges would serve 6-year or 8-year terms in order to create a staggered term system).

An amendment in committee to allow for judges to be elected, or at least to put the question to voters on election vs. appointment, was rejected.

Removed from the original bill was a requirement that the new appellate court render decisions in 180 days. Instead, the court would have to issued reports on pending caseload.

SB 341 now goes to the Senate Finance Committee.

West Virginia: bill would specify governor’s power to furloughs employees, including court employees & judges

In February after the state’s credit was downgraded, West Virginia’s Governor asked the legislature for a bill to allow him to furlough employees. An amended version of the Senate bill (SB 446) was approved by the full Senate earlier today.

The bill as introduced, and its House counterpart (HB 2879), was unclear about the power of the governor to furlough judicial employees. (“The furlough must be inclusive of all employees within a designated department, agency, division, office, or program, regardless of the source of funds, place of work, or classification.”)

Under the bill as committee amended and approved by the Senate, the process for judicial furloughs would be out of the governor’s control. Specifically:

  1. The governor is expressly prohibited from ordering a furlough of constitutional officers, employees of constitutional officers, or members or employees of the judicial branch.
  2. When the Governor declares a fiscal emergency pursuant to SB 446, the Supreme Court of Appeals shall have authority to furlough employees and personnel of the judiciary under the Supreme Court of Appeals, including employees and personnel of the circuit courts, family courts and magistrate courts.
  3. Furloughs shall not be employed so as to completely close a court or court office.
  4. Nothing in the section of SB 446 discussing furloughs of judicial branch employees “shall be construed as granting authority for the furlough of elected judicial officers, nor shall it be construed as restricting or otherwise limiting the plenary authority of the Supreme Court of Appeals or the lower courts.”

SB 446 as amended was approved by the Senate 23-11 and is now on its way to the House.

West Virginia: Circuit Judge-Elect suspended from office for campaign flier may be impeached by legislature

A West Virginia Circuit judge-elect who was suspended from office for knowingly publishing false statements against his opponent in the 2016 election is now facing an impeachment effort in the state’s legislature.

During the 2016 election cycle for West Virginia’s 28th Circuit Court Steven Callaghan sent a mailer to voters showing the incumbent judge parting with then-President Barack Obama. No such party took place but Callaghan won the election by a mere 220 votes. A complaint was lodged with the state’s judicial disciplinary commission and during those proceedings and to this date Callaghan never took office (thus “Judge-Elect”).

The state’s Supreme Court of Appeals on February 9 suspended Judge-Elect Callaghan for 2 years without pay and ordered him to pay $15,000 in fines.  The judiciary’s proceedings are now part of a federal lawsuit by Callaghan alleging First Amendment violations, but the state’s legislature has taken the first step of its own towards impeaching and removing Callaghan from office.

HR 10 of 2017 as filed quotes portions of the Supreme Court of Appeals’ opinion in suspending and fining Callaghan. The resolution goes on to question whether the actions move into the area of “maladministration, corruption, incompetency, gross immorality, neglect of duty, or any high crime or misdemeanor”, the language under the state’s constitution for an impeachable offense. It would require a majority of the House to send articles of impeachment to the Senate, which would try Callaghan and could remove him from office on a 2/3rds vote.

HR 10 authorizes the House Committee of the Judiciary to investigate Callaghan’s conduct and report to the House either a recommendation to not impeach or, if to impeach, articles of impeachment.

HR 10 has been filed in the House Rules Committee.

 

West Virginia: bill requires circuit court clerks report to legislature, governor, and supreme court on cases that exceed time standards

I mentioned earlier this session the Florida House bill that would require that state’s supreme court provide a “detailed explanation” to the governor and legislature for cases that take longer than 180 days. Now at least 10 members of the West Virginia House want similar reports for that state’s general jurisdiction Circuit Courts.

Under HB 2685 as filed every circuit clerk would be required to produce a report at least quarterly to the Supreme Court of Appeals, Governor, and Legislature “listing all pending cases which have exceeded the time standards for trial courts as established by rules of the West Virginia Supreme Court of Appeals.” It is likely this is a reference to Trial Court Rule 16. Moreover, the reports would be available to the public on request.

HB 2685 has been filed in the House Judiciary Committee.

West Virginia: bill ends plurality wins for state’s supreme court & requires runoffs for top 2 candidates; other judicial races would not be affected

West Virginia’s current voting system for the state’s courts are both nonpartisan (as of 2015) and plurality-win. This meant that in the 2016 contest for the state’s Supreme Court of Appeals the victor (Beth Walker) defeated incumbent Brent Benjamin with only 39.62% of the vote in a 5-way race.

HB 2635 as filed would prohibit such a win in the future, at least for the state’s top court. Instead, if no candidate received a majority of votes, the top 2 candidates would face off in a runoff within 30 days.

Interestingly, this would not apply to the state’s other judicial races. For example in 2016 the Circuit Court District 10, Division 4 seat was won with only 25.49% of the vote in a 10-way race while Circuit Court District 15, Division 1 was won with only 32.67% in a 6-way race. Similar races occurred for the state’s Family Court (37.34% for District 16, Division 1 & 39.11% for District 24, Division 2, both 3-way races).

HB 1635 has been filed in the House Judiciary Committee.

West Virginia: bill to create intermediate appellate court filed; only 9 states don’t have an IAC

The latest bill in a decade-long effort to create an intermediate appellate court in West Virginia has been filed. SB 277 as introduced would create an Intermediate Court of Appeals. It appears to be similar if not identical to SB 9 of 2016, discussed here. 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 new Intermediate Court of Appeals would have its own judges (6) divided into two panels of 3 (Northern District and Southern District). Other versions of the bill introduced in the last decade would have had Circuit and Supreme Court judges/justices sitting in panels of 3, a practice popular in states in the 1800s but abandoned.

  • Judges would be initially appointed 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.
  • 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, Nevada, 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 IAC. Again, this is a relative common practice, for example Nevada’s new IAC uses this system.

SB 277 has been filed in the Senate Judiciary Committee.