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The New West Virginia Intermediate Court of Appeals Nears Hearing Its First Cases

June 28, 2022

Since the creation of the State of West Virginia, the West Virginia Supreme Court has provided the only review of the decisions of the trial courts and administrative agencies. That meant that the West Virginia Supreme Court was the only court that created binding case law. While Article VIII of the West Virginia Constitution has long authorized the creation of “such intermediate appellate courts … as shall be hereafter established by the Legislature,” the legislature for decades had declined to act upon that authorization. That all changed in 2021 when Governor Justice signed Senate Bill 275, which created the West Virginia Intermediate Court of Appeals.

The new Intermediate Court of Appeals will have three judges, who will initially be appointed by the governor. Each seat will eventually be elected on a non-partisan basis for ten-year terms, with staggered elections starting in 2024. The first three judges are Thomas E. Scarr of Huntington, Daniel W. Greear of Charleston, and Donald A. Nickerson Jr. of Wheeling. A new courtroom has been constructed in the City Center East building in Charleston, but the Intermediate Court of Appeals is also empowered to hear arguments in other locations as well as virtually. The court has selected Grant County (Petersburg), Lewis County (Weston), Morgan County (Berkeley Springs), Raleigh County (Beckley), and Wetzel County (New Martinsville) to host satellite courtrooms for virtual arguments with the judges in Charleston. The goal was to make it that no one in West Virginia would have to drive more than 90 minutes to reach an Intermediate Court of Appeals courtroom.

The jurisdiction of the Intermediate Court of Appeals is exclusively civil and exclusively appellate. The new court has no original jurisdiction and holds appellate jurisdiction over final judgments in civil cases, family-court cases, guardianship and conservatorship matters, and certain agency appeals, including appeals from the Health Care Authority, Insurance Commissioner, and Workers’ Compensation Board of Review. Criminal appeals will continue be heard only by the West Virginia Supreme Court, which will also continue to hear all appeals in juvenile, commitment, child-neglect, and domestic-violence matters.

The new Intermediate Court of Appeals will issue written decisions in each appeal, which will be binding precedent on all lower courts and agencies unless they are overruled or modified by the West Virginia Supreme Court. Appeals from the Intermediate Court of Appeals to the West Virginia Supreme Court will be by petition, and the West Virginia Supreme Court has the discretion to grant or deny any appeal. Changes to the West Virginia Rules of Appellate Procedure are pending.

One of the goals of the creation of the Intermediate Court of Appeals was to expand the body of West Virginia judicial precedent, with more opinions providing more guidance on more areas of civil law. The new Intermediate Court of Appeals will also lighten the caseload of the West Virginia Supreme Court and allow the West Virginia Supreme Court to focus on difficult and influential decisions instead of spending its time correcting trial-court errors and weeding out frivolous appeals. For civil cases, the West Virginia Supreme Court will transition from an error-correcting court to a court that only accepts significant disputes for decision.

With a new court, new rules, and new procedures, July 1, 2022, will mark one of the most significant dates in the history of the West Virginia judiciary.

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