Ihlenfield

Sen. William Ihlenfield, D-Ohio

CHARLESTON – Democratic lawmakers say a bill establishing an intermediate court of appeals in West Virginia would give businesses, such as energy companies and insurers, an unfair advantage over individuals.

They attempted to amend the bill Friday so that if an intermediate court is established, it could also hear criminal and juvenile cases. Republicans rejected that amendment.

Senate Bill 275 would establish an intermediate court of appeals – a court that would hear appeals of cases from lower courts before appeals to the state Supreme Court of Appeals.

Among cases that the court would hear, as spelled out in the bill, are appeals of civil cases and guardianship cases; cases from family courts; decisions of the Health Care Authority; and decisions by the Workers’ Compensation Board of Review.

Friday, during second reading of the bill in the West Virginia Senate, Sen. William Ihlenfeld, D-Ohio, attempted to amend the bill so that it could also hear appeals of criminal cases, child abuse and neglect cases, juvenile proceedings, orders of commitment, and decisions by the Public Service Commission.

Ihlenfeld, a former U.S. attorney, told a story from his days as a prosecutor in Ohio County. He said that in 1999, Yassar Abdelhaq had checked into a hotel with his girlfriend but didn’t leave at check-out time.

“They called the police, and the police, out of concern for Mr. Abdelhaq’s girlfriend, broke into the room,” he said. “And they found Mr. Abdelhaq alive, but they found Dana Tozer was dead. She had been stabbed – we ultimately determined 233 times.”

Even so, a judge required an officer who had investigated the case to serve on the jury, Ihlenfeld said. That decision was ultimately rejected by the state Supreme Court.

“When you increase the opportunities for appellate review, you are going to identify more errors,” he said. “You’re going to see more red flags. You’re going to have more opportunity to correct mistakes like the one I just described.”

He said that the court “appears to exist for corporations and not for people.”

“I think if we’re going to expand appellate jurisdiction to matters that concern money, that concern dollars, why in God’s name would we not expand it to matters that involve one’s liberty?” he said.

Sen. Charles Trump, R- Morgan, Senate Judiciary chairman, spoke in opposition to the amendment, saying it would create delay in resolving cases and add substantial cost to the bill.

“It’s interesting some of the people who have not been enamored with the idea of an intermediate appellate court from the beginning have articulated those as objections to the creation of the court,” he said.

Sen. Mike Romano, D-Harrison, said that rejecting the amendment would mean denying access to the court for “the people who need it the most. The people accused of crimes. The people whose rights we must zealously defend.”

“Justice for some – U.S. Chamber of Commerce, the insurance industry, but not for all,” he said.

Republicans rejected Ihlenfeld’s amendment, with a 20-14 vote. Locally, Sen. Sue Cline, R-Wyoming, and Sen. Rollan Roberts, R-Raleigh, voted against the amendment. Both are also sponsors of the bill.

Democrats said rejecting the amendment was evidence the bill is meant to serve corporations.

In an interview, Ihlenfeld said, “This bill will be good for corporations. It will be good for large law firms. It will be good for lawyers who bill by the hour. It won’t be good for individual litigants in civil matters because they can’t afford protracted litigation.”

He noted that a land owner is already at a financial disadvantage when fighting an energy company.

“Now you’re going to add an extra layer to that and an individual land owner will have to fund an extra layer of litigation,” he said.

He said that because of the delay, people will be more likely to “be forced to accept a settlement that’s less than the value of the case because they need to survive.”

“A corporation knows this,” he said. “Insurance companies know this.”

The U.S. Chamber of Commerce supports the bill. Danielle Waltz, a Charleston lawyer speaking on behalf of the U.S. Chamber of Commerce, said the bill would “modernize” West Virginia’s court system, noting that only nine states lack intermediate courts.

She also said the bill would make West Virginia a more attractive place to do business.

“One, West Virginia is outside the norm as far as (how) its legal system is constructed. And so I think when you have something that’s outside of what businesses are used to dealing with, it makes them uncomfortable,” she said.

She added that West Virginia’s judicial system lacks “predictability” and said that if the bill passes, lower courts will be able to look to the intermediate court for more guidance.

In an interview, Sen. Mike Romano, D-Harrison, said only four states with under 2 million people have intermediate courts.

He also took issue with the notion the bill would create more guidance for lower courts, because the state Supreme Court could still overturn intermediate court decisions.

He suggested that the bill’s $12 million fiscal note is inaccurate, as it doesn’t account for new buildings and more lawyers for government agencies.

“Think of all the things we could do with $20 million,” he said. “We barely have enough money to pay attention.”

He noted that a 2014 report by the state Supreme Court stated that the Supreme Court was handling fewer cases. In 1999, 3,569 cases were filed, compared to 1,346 in 2014 – a 60 percent decline.

He said the only people the bill would benefit are the “insurance industry and people who make money off a slow-moving court system.”

Sen. Roberts said “circuit judges have more pressure on them than ever because of the foster care crisis for instance, where they have to process twice as many cases now as what they did just not too many years ago.”

He said that because of that pressure, some cases may be more likely to need “another look.”

“I’m not necessarily for another layer of bureaucracy, but in this case, to be able to have that other look at certain cases that can maybe give people more confidence in the court system rather than just one person, a circuit court judge being the final say, and then you have to make that leap up to the Supreme Court,” he said.

He said that in some rural areas, “circuit court judges have been known to make decisions that were based on, seemingly based or allegedly based, on too much familiarity, according to people outside of the situation.

“Therefore, it renders their decisions questionable, and so the intermediate court would help eliminate some of the questionable things.”

As for whether the bill unfairly benefits corporations, Roberts noted that the bill allows for the court to hear appeals from individuals.

“But I will say even if it only helped businesses, then our businesses do need help,” he said. “Businesses are people.”

Sen. Rich Lindsay, D-Kanawha, a personal injury lawyer, said the court would create a new “power dynamic” between insurance companies and people who’ve been injured.

He said trial dates are usually set for 12-16 months from filing, and intermediate court would create more delay, or result in companies telling victims they will agree to give them less money, or appeal the case.

Meanwhile, the injured person needs the money, while “the insurance company – they can sit on that money as long as possible,” he said.

“An intermediate court can do nothing but hurt injured folks,” he said. “That’s all it can do because it delays justice.”

The bill is up for passage in the state Senate Monday. It will then go to the West Virginia House of Delegates.

Email: ebeck@register-herald.com and follow on Twitter @3littleredbones

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