COMMITTEE SUBSTITUTE

FOR

COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 307

(By Senators Kessler (Acting President), Hall, Unger, Jenkins, Plymale, Foster, Minard, Prezioso, McCabe, Stollings, Browning, Palumbo, Green, Beach, Boley, Nohe, K. Facemyer, Sypolt, Barnes, Wells and Klempa)

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[Originating in the Committee on Finance;

reported February 28, 2011.]

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A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §51-1B-1, §51-1B-2, §51-1B-3, §51-1B-4, §51-1B-5, §51-1B-6, §51-1B-7, §51-1B-8, §51-1B-9 and §51-1B-10, all relating to authorizing a new court to be known as the Intermediate Court of Appeals; requiring the court to be operational by January 1, 2013; providing three judges for the court; establishing qualifications for judges; establishing jurisdiction of the court; providing that all appeals will be reviewed and a written decision on the merits issued; providing that all appeals will be filed with Supreme Court of Appeals; providing that Supreme Court will either keep the appeal or send it to the Intermediate Court; providing that appeals in certain administrative cases are discretionary; authorizing appeals from Intermediate Court to the Supreme Court; authorizing Governor to make initial appointments by July 1, 2012; creating staggered terms; providing for elections for ten-year terms after initial appointments; authorizing a Chief Judge of the Intermediate Court; authorizing staff for the court and the judges; providing for compensation and expenses of judges and staff; providing for temporary assignment of circuit court judges; providing that the Supreme Court will govern the pleading, practice and procedure of the Intermediate Court through rules; authorizing the Supreme Court to provide the facilities, furniture, fixtures and equipment for the Intermediate Court; providing for electronic filing of all documents with the Intermediate Court; providing that decisions of the court have precedential effect; requiring written decision on the merits; and providing that the budget of the Intermediate Court will be part of the Supreme Court budget.

Be it enacted by the Legislature of West Virginia:

    That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §51-1B-1, §51-1B-2, §51-1B-3, §51-1B-4, §51-1B-5, §51-1B-6, §51-1B-7, §51-1B-8, §51-1B-9 and §51-1B-10, all to read as follows:

ARTICLE 1B. INTERMEDIATE COURT OF APPEALS.

§51-1B-1. Intermediate Court of Appeals established; location.

    (a) In accordance with article VIII, section one of the West Virginia Constitution, the West Virginia Intermediate Court of Appeals is created. The court shall be established and operable on or before January 1, 2013. The Intermediate Court shall be located in Charleston, Kanawha County. The Intermediate Court of Appeals is a court of record and shall issue, as appropriate in each appeal, written opinions, orders and decisions.

    (b) The Intermediate Court may, for the purposes of hearing oral arguments, meet at the seat of state government or any county seat.

§51-1B-2. Judges; qualifications.

    (a) The Intermediate Court of Appeals shall consist of three judges, initially appointed by the Governor in accordance with section four of the article.

    (b) An Intermediate Court of Appeals judge must be a resident of the state, a member in good standing of the West Virginia State Bar, and admitted to practice law in this state for at least ten years prior to appointment or election.

    (c) An Intermediate Court of Appeals judge may not engage in any other business, occupation or employment inconsistent with the expeditious, proper and impartial performance of his or her duties as a judicial officer. An Intermediate Court of Appeals justice is not permitted to engage in the outside practice of law and shall devote full time to his or her duties as a judicial officer.

§51-1B-3. Jurisdiction; deflective rights of Supreme Court; discretionary appeals.

    (a) The Intermediate Court of Appeals shall not have original jurisdiction.

    (b) Petitions for appeal shall be filed with the Supreme Court of Appeals. Those cases for which the Supreme Court elects not to grant petitions for appeal shall be transferred to the Intermediate Court of Appeals.

    (c) The Intermediate Court of Appeals has jurisdiction to hear appeals from final judgments or orders entered by a circuit court in any civil or criminal case, appeals from the Workers Compensation Board of Review, and the Public Service Commission.

    (d) All appeals shall be reviewed and a written decision on the merits issued by either the Supreme Court of Appeals or Intermediate Court of Appeals as a matter of right except for the following appeals, which shall be discretionary with the Courts:

    (1) Appeals from the Workers’ Compensation Board of Review established by section eleven, article five, chapter twenty-four of this code;

    (2) Appeals from orders of the Public Service Commission established by article one, chapter twenty-four of this code;

    (3) Appeals from decisions of circuit courts of administrative appeals of an agency as defined in article one, chapter twenty-nine-a of this code; and

    (4) Appeals of misdemeanor convictions.

    (e) Within thirty days after a decision by the Intermediate Court, any aggrieved party may petition the Supreme Court of Appeals by petition for writ of certiorari as provided by the West Virginia Rules of Appellate Procedure.

§51-1B-4.Number of Intermediate Court Judges; initial appointment; election; term of office; vacancy; chief judge.

    (a) There shall be three judges of the Intermediate Court of Appeals. The Governor shall, on or before July 1, 2012, appoint the initial judges from names submitted by the Judicial Vacancy Advisory Committee established pursuant to section three-a, article ten, chapter three of the West Virginia Code. The committee shall recommend three qualified nominees for each position for Intermediate Court of Appeals judge. If the Governor does not select a nominee for the position of judge from the names provided by the committee, he or she shall notify the committee of that circumstance and the committee shall provide additional names for consideration by the Governor.

    (b) The committee is responsible for reviewing and evaluating candidates for possible appointment to the Intermediate Court of Appeals by the Governor. In reviewing candidates, the committee may accept applications from any attorney who believes himself or herself qualified for the judgeships. The committee may accept comments from and request information from any person or source.

    (c) Of the initial appointments, one judge shall be appointed for a term of four years, one judge shall be appointed for a term of six years and one judge shall be appointed for a term of eight years. Upon the expiration of each term, the judge’s position shall be filled by election, for a ten year term, in the same manner as with the Supreme Court of Appeals.

    (d) After the initial appointments are made, any vacancy in office shall be filled in the same manner as vacancies on the Supreme Court of Appeals.

    (e) One judge of the Intermediate Court of Appeals shall be chosen chief judge of the Intermediate Court. The manner of choosing the chief judge and providing for periodic rotation of the position of chief judge shall be determined by rules to be established by the Supreme Court of Appeals.

§51-1B-5. Compensation and expenses of Intermediate Court judges and staffs.

    (a) The annual salary of an Intermediate Court of Appeals judge shall be $118,OOO. Reimbursement for expenses shall be at a rate established by the Supreme Court of Appeals.

    (b) Each judge of the Intermediate Court of Appeals may employ two law clerks and one secretary. The Intermediate Court of Appeals may employ a clerk and the necessary staff to carry out the administrative duties of the court or, with the permission of the Supreme Court of Appeals, the administrative and other support staff of the Supreme Court of Appeals may carry out the administrative duties of both courts. The compensation of the staff of the Intermediate Court of Appeals shall be established by the judges of the Intermediate Court of Appeals with the approval of the Supreme Court of Appeals.

§51-1B-6. Temporary assignment of circuit court judges.

    Upon the occurrence of a vacancy in the office of Intermediate Court of Appeals judge, the disqualification of an Intermediate Court of Appeals judge or the inability of an Intermediate Court of Appeals judge to attend to his or her duties because of illness, temporary absence, or any other reason, the Chief Justice of the Supreme Court of Appeals may assign any senior status circuit judge or circuit judge of any judicial circuit that is not from the same circuit as the appeal before the Intermediate Court to hear and determine any and all matters then or thereafter pending in the Intermediate Court to which the absent Intermediate Court judge is assigned.

§51-1B-7. Rules of practice and procedure.

    Pleading, practice and procedure in matters before the Intermediate Court of Appeals shall be governed by rules promulgated by the Supreme Court of Appeals.

§51-1B-8. Facilities.

    (a) The Administrative Director of the Supreme Court of Appeals shall provide the necessary physical facilities, furniture, fixtures and equipment necessary for the efficient operation of the Intermediate Court of Appeals.

    (b) In order to minimize costs, the director may (1) contract with the Department of Administration, county commissions and private parties to provide for space that is suitable for the Intermediate Court of Appeals, and (2) shall make existing courtrooms throughout the state available for use by the Intermediate Court of Appeals at times convenient both to the Intermediate Court of Appeals and the local court.

§51-1B-9. Electronic filing of all documents and orders.

    All documents filed in connection with an appeal to the Intermediate Court of Appeals shall be filed electronically. The court shall electronically file and publish its orders and decisions which shall, unless stated by the court to be per curiam or unpublished, have precedential effect.

§51-1B-10. Budget.

    The budget for the payment of the salaries and benefits for the Intermediate Court of Appeals judges and staff, facilities, furniture, fixtures and equipment shall be included in the appropriation for the Supreme Court of Appeals. To the extent possible, the Supreme Court shall designate existing facilities and existing staff members for use by the Intermediate Court of Appeals to minimize costs for establishing and operating the Intermediate Court of Appeals.