West Virginia Senate Bill 275: Summary

During the 2021 Session, West Virginia’s Legislature considered a variety of changes to West Virginia law, including repeal of the state income tax, amendment of pollutant standards to comport with federal law, and limitations on COVID-related claims, absent malice. The Legislature also considered and Governor Justice signed into law Senate Bill 275, establishing an intermediate court of appeals in West Virginia. Joining the other 41 jurisdictions that have an intermediate appeals court, West Virginia’s Intermediate Court of Appeals (ICA) will be operational by July 2022.  Over the intervening period, West Virginia’s Supreme Court will be called upon to address issues including staffing, location, procedures and related rules for the new court.

In passing the enabling legislation for the ICA, the Legislature and Governor Justice identified and approved the broad parameters of the ICA, including that it will review civil cases, workers’ compensation cases and final orders from family court. Some matters will bypass the ICA. Others will be open to petition to bypass the ICA.

With strong support of business and industry, the ICA is slated to reduce the time and expense involved in litigation in West Virginia. Over the next year, we will continue to monitor the ICA’s evolution in West Virginia. We at SMS remain a resource to you at all times to guide you through litigation and appellate practice, including the ICA, and to that end, below please find a detailed summary of the SB275 and West Virginia’s Intermediate Court of Appeals.

The Legislature cites West Virginia’s Constitution as its authority for creating the Intermediate Court of Appeals (ICA).  The ICA shall be established and operational on July 1, 2022, and will serve two geographical districts: The Intermediate Court of Appeals for the Northern District and the Intermediate Court of Appeals for the Southern District. 

Each district of the ICA shall conduct proceedings and issue opinions in panels of three judges, who will preside in yet-to-be-determined locations that could include vacant courtrooms, county commission rooms, and even available spaces on college campuses. 

The ICA will hear appeals arising as follows:

1. Final judgments or orders of a circuit court in a civil case, entered after June 30, 2022;

2. Final judgments or orders of a family court, entered after June 30, 2022;

3. Final judgments or orders of a circuit court concerning guardianship or conservatorship matters, pursuant to §44A‑1‑1 et seq. of this Code;

4. Final judgments, orders, or decisions of an agency or an administrative law judge entered after June 30, 2022, heretofore appealable to the Circuit Court of Kanawha County pursuant to §29A‑5‑4 or any other provision of this Code;

5. Final orders or decisions of the Health Care Authority issued prior to June 30, 2022, in a certificate of need review, but transferred to the jurisdiction of the Intermediate Court of Appeals upon termination of the Office of Judges pursuant to §16-2D-16a of this Code;

6. Final orders or decisions issued by the Office of Judges after June 30, 2022, and prior to its termination, as provided in §16-2D-16 and §23-5-8a of this Code; and

7. Final orders or decisions of the Workers’ Compensation Board of Review pursuant to §23‑5‑1 et seq. of this Code, entered after June 30, 2022.

Appellate jurisdiction will remain with the Supreme Court of Appeals for the following matters:

1. Judgments or final orders issued in any criminal proceeding in this state;

2. Judgments or final orders issued in any juvenile proceeding pursuant to §49‑4‑701 et seq. of the West Virginia Code;

3. Judgments or final orders issued in child abuse and neglect proceedings pursuant to §49‑4‑601 et seq. of the Code;

4. Orders of commitment, pursuant to §27‑5‑1 et seq. of the Code;

5. Final decisions of the Public Service Commission, pursuant to §24‑5‑1 of the Code;

6. Interlocutory appeals;

7. Certified questions of law; and

8. Extraordinary remedies, as provided in 53-1-1 et seq.  of the Code, and any appeal of a decision or order of another court regarding an extraordinary remedy.

The legislation also provides a potential workaround for a party who prefers the traditional direct appeal to West Virginia’s Supreme Court. Specifically, after appeal to the ICA but prior to any proceedings, a party may petition the Supreme Court for direct review before the Supreme Court, to bypass the ICA, as it were, if the following circumstances exist:

1. The appeal involves a question of fundamental public importance; and

2. The appeal involves exigencies, in which time is of the essence, necessitating direct review of the appeal by the Supreme Court of Appeals.

The particulars of the petition, transfer, and remand have yet to be determined, as the legislation asks the Supreme Court to promulgate rules for these processes. Decisions issued by the ICA are appealable to the Supreme Court, but the Court is returning to its previous petition process, whereby a party must petition the Court for the right to further appeal before the State’s highest court.

The initial panel of ICA judges will be selected from a list generated by the Judicial Vacancy Advisory Committee. The Committee will identify eight potential judges, from which list Governor Justice, with consent of the Senate, will appoint the first panel. In order to serve as a judge on the ICA, a person must meet the following eligibility criteria:

1. The person must be a member, in good standing, of the West Virginia State Bar;

2. The person must be admitted to practice law in the State of West Virginia for 10 years prior to appointment or election to the ICA;

3. The person must be a resident of the State of West Virginia for five years prior to appointment or election to the ICA;

4. The person must be a resident of the district of the ICA in which he or she serves; and

5. The person may not be engaged in the practice of law while serving as a judge of the ICA.

After this initial appointment, judges will be elected on a nonpartisan basis to ten-year terms.

The full text of SB275 is available on the Legislature’s website at SB 275 Text (wvlegislature.gov)  and we at SMS remain a resources to you as well. We will continue to update you as the ICA takes shape through the Supreme Court’s rulemaking and next year’s (intervening) legislative session.

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DISCLAIMER: The information and materials contained in this post are provided for general informational purposes only and are not intended to be legal advice. No attorney-client relationship is formed nor should any such relationship be implied. Readers and visitors should not act upon any information contained herein without seeking professional legal counsel from a qualified attorney. For more information, contact Shuman McCuskey and Slicer PLLC.

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