Introduced Version
Senate Bill 589 History
OTHER VERSIONS -
Committee Substitute (1)
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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 589
(By Senator
s Kessler, Palumbo
, Browning, Snyder, Jenkins, Foster
and McCabe)
____________
[Introduced February 17, 2010; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
____________
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 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 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 cases. 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) When a party in interest alleges, or the court on its own
motion determines, that a case before the Intermediate Court is not
properly within the jurisdiction of the court, the Intermediate
Court shall refer the case to the Supreme Court of Appeals. The
Supreme Court of Appeals shall decide the question of jurisdiction
in a summary manner. The determination of the Supreme Court of
Appeals is final.
(d) A party in interest shall allege that a case is not
properly within the jurisdiction of the intermediate appellant
court by motion filed with the court within twenty days following
the date the record in the case is filed with the Clerk of the
Intermediate Court of Appeals. Failure to file a motion to
challenge jurisdiction waives the right to object or challenge the jurisdiction of the court.
(e) Any case within the jurisdiction of the Intermediate Court
of Appeals that is erroneously filed in the Supreme Court of
Appeals shall be transferred to the Intermediate Court by the
Supreme Court of Appeals.
(f) 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 and timely filed in the court with jurisdiction.
(g) The Intermediate Court, prior to final determination, may
certify 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.
(h) 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.
(i) The Supreme Court of Appeals may order the Intermediate
Court to certify any case that meets any criteria listed in
subsection (g) of this section.
(j) The Intermediate Court may certify questions of law to the
Supreme Court of Appeals as provided in the rules of appellate
procedure.
(k) 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.
(l) 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, admitted to practice law in this state for at least eight
years prior to appointment or election, and 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) 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.
(e) Vacancies in office shall be filled in the same manner as
vacancies on the Supreme Court of Appeals.
(f) 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 the courts. The compensation of 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.
§51-1B-10. Electronic filing of all documents.
All documents filed in connection with an appeal to the
Intermediate Court of Appeals shall be filed electronically.
§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.