The IAC (West Virginia’s Intermediate Appellate Court) is here. Whether the reader opposed it or agrees with the need for an IAC, it is a reality.
Senate Bill 275 is now law, effective July 1, 2022. The new Act calls for three justices serving staggered 10-year terms. The governor, after January 1, 2022, makes the initial transitional appointments for partial terms, pending election, of basically a year and a half, three years and a half, and six years and a half. The voters choose after that.
But the devil is in the details. Where will the IAC sit to hear argument? Where will IAC appeals be filed? Will the IAC be guided by the current Rules of Appellate Procedure? How much IAC business will be conducted remotely? Will the IAC justices be “circuit riders”? How will domestic violence case and appeal timelines be observed over the unwieldy geography of 55 counties? Will pro se parties have meaningful and equal access to the IAC and on the same level as litigants who have “lawyered-up”? How many support staff will the IAC have and where will they report to work? Certainly, these are practical but important and apparent logistical considerations for the actual and real implementation of an effective IAC.
Of much greater significance and vital to the integral and eventual success of the IAC, will be the qualifications of the three justices, which are as indispensable to that hoped for success of the IAC, as its location, appellant access, and day-to-day operation. In short, from its inception, problems will plague (bad word in 2020) the IAC. No part of the IAC creation and functioning is more nearly critical than the jurisdictional fact that all appeals from the 47 Family Court Judges presiding over 55 West Virginia counties will go directly to the IAC, now by-passing the circuit court review that has been in place for over 20 years. Yet, the embryonic IAC statute neglects and fails to prescribe the qualifications for the three justices, who also must deal with Workers’ Compensation, Civil Appeals and administrative cases. What does this mean to the divorcing minimum wage worker? Why should this be a concern to the retired grandparent and his access to his little granddaughter? How will this delay a child support modification for a single mother?
Statistics throw some stark light on this issue. Baseline data found at the West Virginia Supreme Court’s website, shows that there were 39 Domestic Violence and Family case appeals to the West Virginia Supreme Court in 2020, compared to 27 such appellate filings in 2019, or up roughly 31%.
Now compare those figures to the quantity of appeals taken from West Virginia Family Courts to West Virginia Circuit Courts in 2020, reviewable only by the IAC after July 1, 2022. According to the West Virginia Supreme Court’s Statistical Database as of May 13, 2021, there were 338 such Domestic Violence and Family case appeals filed from 55 Counties. This means that, all trends remaining at current levels, an IAC with two LESS justices than the Supreme Court and an undetermined number of support personnel and no place to hang their collective robes, will have to deal in a given year with nearly ten times more family court appeals than the Supreme Court processed in the same year! Even if the foreboding prospect of an IAC dampens 50% of the family litigants’ fervor or zeal for appeal, the Domestic Violence and Family Law appellate case load will still be over 4 times more than those the Supreme Court treated in 2020.
Clear Message: The inescapable and unavoidable conclusion is that at least one of the three IAC justices MUST have substantial and palpable background as a Family Law practitioner or as a Family Court Judge, or preferably both. To ignore this fact is to consign the IAC to being the first victim of its own viscosity. Even worse, the second set of casualties will be the families, children and grandparents who will suffer from the ponderous and formidable learning curve for uninitiated justices in those domestic relations cases that touch every West Virginian. Euripides reminds us that “a bad beginning makes a bad ending.”
James Douglas is a Family Court Judge from Kanawha County.