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SB589 SUB1 Senate Bill 589 History

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Key: Green = existing Code. Red = new code to be enacted
COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 589

(By Senator s Kessler, Palumbo , Browning, Snyder, Jenkins, Foster and McCabe)

____________

[Originating in the Committee on the Judiciary;

reported February 26, 2010.]

____________



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, §51-1B- 10 and §51-1B- 11 , all relating to creation of the Intermediate Court of Appeals; providing a right to appeal orders of a circuit court in any civil or criminal case; establishing time limits for filing certain pleadings; authorizing certification of certain cases to the Supreme Court of Appeals; providing for transfer of appeals erroneously filed with the Supreme Court of Appeals or the Intermediate Court of Appeals; authorizing certified questions to the Supreme Court of Appeals; providing for appellate review by the Supreme Court of Appeals; authorizing three judges for the Intermediate Court of Appeals; providing for the initial appointment of judges followed by election of judges; providing staggered terms of eight years for judges; authorizing a chief judge of the Intermediate Court of Appeals; providing compensation for Intermediate Court of Appeals judges and staff; authorizing Supreme Court of Appeals to develop rules for pending, practice and procedure; providing for the temporary assignment of circuit court judges in certain cases; requiring the Administrative Director of the Supreme Court of Appeals to provide necessary facilities, furniture, fixtures and equipment; requiring electronic filing of documents and orders; and providing that the budget of the Intermediate Court of Appeals is part of the budget of the Supreme Court of Appeals.

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, §51-1B-10 and §51-1B-11, all to read as follows:
ARTICLE 1B. INTERMEDIATE COURTS 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. At any time the Chief Justice of the Intermediate Court and the Chief Justice of the West Virginia Supreme Court of Appeals determine that it would be in the best interests of justice, the Intermediate Court may be divided into two districts. The two intermediate courts of appeals shall be designated as "The West Virginia Intermediate Court of Appeals, Northern District" or "Northern District" and "The West Virginia Intermediate Court of Appeals, Southern District" or "Southern District." The Intermediate Court of Appeals is a court of record and shall issue, as appropriate in each appeal, written opinions, orders and decisions.
(b) If formed, the Northern District shall be comprised of the following judicial circuits: first, second, third, forth, fifth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second, twenty-third, and twenty- sixth.
(c) If formed, the Southern District shall be comprised of the following judicial circuits: sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, twenty-fourth, twenty- fifth, twenty-seventh, twenty-eighth, twenty-ninth, thirtieth, and thirty-first.
(d) The Intermediate Court may be located in the seat of state government, any county seat for the purpose of hearing oral argument, or may be located in a fixed location.
§51-1B-2. Jurisdiction; appeals; transfer of cases; certification of cases; and certified questions.

(a) Notwithstanding any provision of this code to the contrary, the Intermediate Court of Appeals shall hear appeals from final judgments, interlocutory decrees or orders entered by a circuit court in any civil or criminal case. The Intermediate Court of Appeals may affirm, modify, vacate, reverse, reverse with further instruction or remand a judgment, decree or order entered by a circuit court. All such appeals are appeals of right. The Intermediate Court of Appeals does not have original jurisdiction.
(b) Petitions for appeal to the Intermediate Court, and the designation of record, shall be filed within sixty days of the entry of an appealable order of a circuit court. The response to the petition shall be filed within thirty days. The court shall issue a decision in the case within six months of the receipt of the response to the petition or other filings required by the court.
(c) No case erroneously filed in either the Supreme Court of Appeals or the Intermediate Court may be dismissed because it was filed in the wrong court. It shall be transferred and considered properly filed in the court with jurisdiction if the appeal was timely made though erroneously filed.
(d) The Intermediate Court, prior to final determination, may certify for transfer any case before it to the Supreme Court of Appeals for its review and final determination, if the Intermediate Court finds:
(1) The subject matter of the appeal may have significant public impact;
(2) The case would invalidate an amendment to the state Constitution;
(3) The case requires a determination that a state statute, county ordinance, or agency rule is invalid on the grounds that it is unconstitutional, on its face or as applied, under either the state or United States Constitutions;
(4) The case involves a question of first impression or a novel legal question;
(5) The case involves issues upon which there is an inconsistency in the decisions of the Intermediate Court; or
(6) The case load of the Intermediate Court is such that the expeditious administration of justice requires certification to the Supreme Court of Appeals.
(e) The Supreme Court of Appeals shall consider the certification and may accept the case for final determination or remand it to the Intermediate Court for disposition.
(f) The Supreme Court of Appeals may order the Intermediate Court to certify any case that meets any criteria listed in subsection (d) of this section.
(g) The Intermediate Court may certify questions of law to the Supreme Court of Appeals as provided in the rules of appellate procedure.
(h) The parties, by agreement, may waive their right to appeal a case to the Intermediate Court of Appeals and file an appeal directly with the Supreme Court of Appeals.
(i) The Supreme Court of Appeals may accept or deny any request for transfer or appeal by issuing a written decision in accordance with the West Virginia Rules of Appellate Procedure.
§51-1B-3. Supreme Court of Appeals review.
Within thirty days after a final decision by the Intermediate Court, any aggrieved party in interest may appeal the decision to the Supreme Court of Appeals by writ of certiorari as provided by the West Virginia Rules of Appellate Procedure.
§51-1B-4. Qualifications of Intermediate Court of Appeals judges.
(a) An Intermediate Court of Appeals judge must be a resident of this state, a member in good standing of the West Virginia State Bar, and admitted to practice law in this state for at least eight years prior to appointment or election. If the Intermediate Court of Appeals becomes two districts, a judge must, at the time he or she takes office, and thereafter during his or her continuance in office, reside in the district for which he or she is a judge.
(b) An Intermediate Court of appeal 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 judge 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-5. Number of Intermediate Court judges; initial appointment; election; term of office; vacancy; chief judge.

(a) There shall be three judges for the Intermediate Court of Appeals. The Governor shall appoint the initial judges from names submitted by the "Intermediate Court of Appeals Nominating Committee." The nominating committee shall recommend three qualified nominees for each position for Intermediate Court of Appeals Judge. If the Governor does not select a nominee for a judgeship from the names provided by the nominating committee, he or she shall notify the nominating committee of that circumstance and the committee shall provide additional names for consideration by the Governor.
(b) The nominating committee consists of the following members: (1) The President of the West Virginia State Bar, who serves as chairperson of the committee; (2) the Dean of the West Virginia College of Law; (3) an experienced appellate attorney selected by the Board of Governors of the West Virginia State Bar; (4) an active or retired circuit court judge selected by the Judicial Association; and (5) an active or retired Supreme Court of Appeals justice selected by the Judicial Association.
(c) The nominating committee is responsible for reviewing and evaluating candidates for possible appointment to the Intermediate Court of Appeals by the Governor. In reviewing candidates, the nominating committee may accept applications from any attorney who believes himself or herself qualified for the judgeships. The nominating committee may accept comments from and request information from any person or source.
(d) If the chief judge of the Intermediate Court and the chief justice of the Supreme Court of Appeals determine it is in the best interests of justice to have two districts for the Intermediate Court, they shall notify the Governor and the President of the West Virginia State Bar so that the nominating committee may be reconvened and begin the nominating process set forth in this section to choose the nominees for the new judgeships. Any sitting Intermediate Court of Appeals judge who resides in the new district shall become a judge in that district and his or her vacant position will be filled as provided by law. One new judge shall be appointed for a term of four years, one shall be appointed for a term of six years and one shall be appointed for a term of eight years. If a sitting judge becomes a judge in the new district he or she shall continue in that position until the expiration of his or her term. The sitting judge will take the place of a new appointment whose term is closest to the unexpired term of the sitting judge.
(e) 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 judgeship shall be filled by election for a term of eight years.
(f) Vacancies in office shall be filled in the same manner as vacancies on the Supreme Court of Appeals.
(g) One judge of the Intermediate Court of Appeals shall be chosen Chief Judge of the Intermediate Court. The manner of choosing chief judge and providing for periodic rotation of the position of chief judge shall be determined by rule of the court.
§51-1B-6. Compensation and expenses of Intermediate Court judges and staffs.

(a) The salary of an Intermediate Court of Appeals judge shall be $119,000 per year. Reimbursement for expenses shall be at a rate established by the Supreme Court of Appeals.
(b) Each judge of an Intermediate Court of Appeals may employ one law clerk and one secretary. The Intermediate Court shall 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, use the administrative and other support staff of the Supreme Court of Appeals to carry out the administrative duties of both courts. The compensation of the staff of the Intermediate Courts of Appeals shall be established by the judges of the Intermediate Court with the approval of the Supreme Court of Appeals.
§51-1B-7. Rules of practice and procedure.
(a) Pleading, practice and procedure in matters before the Intermediate Court of Appeals are governed by rules promulgated by the Supreme Court of Appeals.
§51-1B-8. Temporary assignment of circuit court judges.

(a) Upon the occurrence of a vacancy in the office of Intermediate Court of Appeals judge, the disqualification of an Intermediate Court judge or the inability of an Intermediate Court 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-9. Facilities.

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. In order to minimize costs, the director may contract with the Department of Administration, county commissions and private parties to for space that is suitable for the Intermediate Court of Appeals.
§51-1B-10. 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.
§51-1B-11. 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.


NOTE: The purpose of this bill is to create the Intermediate Court of Appeals.

This article is new; therefore, strike-throughs and underscoring have been omitted.
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