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Achieving judicial reform: State leaders applaud Justice’s Intermediate Court of Appeals appointments

12/29/2021

CHARLESTON, W.Va. (Bluefield Daily Telegraph) The third time was the charm for Gov. Jim Justice when the state Legislature earlier this year finally approved the creation of a state Intermediate Court of Appeals.

Justice said he had “championed” the court of appeals in his 2019 and 2020 State of the State addresses and again this year and finally succeeded.

On Tuesday, Justice announced the three judges who will fill the seats on the court.

The Governor appointed Thomas E. Scarr of Huntington for a term of two-and-a-half years, Daniel W. Greear of Charleston for a term of four-and-a-half years, and Donald A. Nickerson Jr. of Wheeling for a term of six-and-a-half years.

“This is an incredible step for our state that reflects the values of West Virginians and continues to make West Virginia more and more business friendly,” Justice said. “Throughout the years, I’ve always tried to champion judicial reform in West Virginia. I thank our legislators and everyone who has worked to make this historic day a reality and I congratulate our appointees.”

The Intermediate Court of Appeals is a body that hears appeals from the lower courts before they advance to the state Supreme Court of Appeals and its creation has been pushed for many years

The move gives the state Supreme Court more leeway in which cases will be heard and will ease its workload.

In the past, some legislators from both parties have opposed the court, based primarily on whether it is needed and the price tag, which has been estimated at more than $8 million just to create it.

However, during the 2020 legislative debate on creating the court, former Mercer County Delegate John Shott said such a court is needed because it helps support the right of appeals and it is a “proactive” move to serve a state that anticipates growth.

In the nation, 41 of 50 states now have an intermediate court of appeals.

West Virginia Senate President Craig Blair released a statement applauding the move.

“Today is an outstanding day for West Virginia’s legal system and another step forward in making our state the ideal place for job creators and families alike,” he said. “The creation of an Intermediate Court of Appeals has been a goal of mine for several years, and I am excited to see it become a reality today.”

Blair said he was thankful Justice believed “in our vision and working with us as we passed this bill. I also thank him for appointing our House of Delegates friend and colleague Dan Greear as one of the Court’s new judges. Dan’s experience, knowledge, and temperament make him an ideal person to serve the State of West Virginia in this new role.”

Roger Hanshaw, Speaker of the House of Delegates, also supported the effort.

“The House of Delegates has been proud to work with Gov. Jim Justice on a number of key legal reforms over the past several years, including the creation of the new Intermediate Court of Appeals to serve the State of West Virginia,” he said in a statement. “The House of Delegates, the Senate and the governor have worked together to respond to the challenges and opportunities for improvement in the state’s legal climate raised by some of our major employers and are happy to join together again today with the appointment of three distinguished legal professionals to serve as the founding judges of the West Virginia Intermediate Court of Appeals.”

The court also has the support of the West Virginia Chamber of Commerce.

Steve Roberts, president of the state Chamber, said Thomas E. Scarr, Daniel W. Greear and Donald A. Nickerson Jr. “will work to interpret and apply the law in a fair manner to all parties who come before this appellate body.”

“I would be remiss if I did not give special thanks to Senate Judiciary Chairman Charles Trump,” he said. “Senator Trump has been a champion of an intermediate appellate court and this would not have occurred without his hard efforts. I would also like to give special thanks to Chief Justice Evan Jenkins and the rest of the West Virginia Supreme Court of Appeals. They have spent this entire year working to create the best intermediate court of appeals in the nation and I am confident they have succeeded at that goal.”

The West Virginia Hospital Association also released a statement supporting the appointments.

“The West Virginia Hospital Association applauds the Governor for his appointments to the newly established West Virginia Intermediate Court of Appeals,” the association said. “This Court will help guarantee a right of appeal and add stability and predictability to the law in West Virginia. As major employers in West Virginia, hospitals believe this Court will help create a rational, consistent, and stable body of law. The Governor’s appointees are esteemed and dedicated lawyers that will serve our state well.”

Rebecca McPhail, president of the West Virginia Manufacturers Association said creating the court “has been a goal of ours, and we are excited to see that Governor Justice has named three judges who are known to be exceedingly fair and balanced.”

“Having this new avenue for appellate proceedings means West Virginia will join the vast majority of states that have a special court to review decisions from trial courts and various administrative agencies,” she said. “Having this mid-level appellate court ready to handle administration appeals means our Supreme Court will be able to focus on those issues of utmost importance in the legal system.”

“Governor, I want to thank you for this great honor,” Scarr said on his appointment. “I’m looking forward to working with the other judges in the Supreme Court to establish the Intermediate Court of Appeals.”

“I want to thank you, Governor, for the faith that you’ve placed in me and thank you for this opportunity,” Greear said. “I look forward to working with my fellow judges, the Supreme Court, and the Legislature to make sure that we make this court a success and that it serves all West Virginians”

“Governor, thank you very much for this appointment to such an important, prestigious position in our judicial system. I’m flattered, I’m humbled, and I gratefully accept,” Nickerson said. “I pledge to work very hard with the other judges to make this court a success, and I pledge to always be professional and ethical, as I’ve been my whole career.”

“The Supreme Court welcomes Governor Justices’ appointments to the new Intermediate Court of Appeals and congratulates each of these well-qualified individuals on being selected. We are committed to working together to improve our justice system,” said Chief Justice Evan Jenkins.

Scarr is president of the West Virginia State Bar and has specialized in civil litigation, labor and employment law, and white-collar criminal defense at Jenkins Fenstermaker, PLLC. He has a bachelor’s degree from the University of Virginia and a law degree from the Marshall-Wythe School of Law at the College of William and Mary.

Greear served as chief of staff for the House of Delegates in 2014, then was appointed to serve as an interim Kanawha circuit judge in 2018 before returning to the House of Delegates as chief counsel later that year. He is a former member of the House of Delegates. He has a bachelor’s degree from Liberty University and a law degree from the West Virginia University College of Law.

Nickerson specializes in assisting business clients, residential and commercial real estate transactions, and trust and estate planning and administration. He is a current Ohio County commissioner, a former Wheeling Municipal Court judge and fiduciary commissioner. He has a bachelor’s degree from West Liberty University and a law degree from Capital University.

The appointees must be confirmed by the West Virginia Senate during the 2022 regular session. After the initial appointees’ terms end, Intermediate Court of Appeals judges will be elected in nonpartisan races to 10-year terms.

According to a statement released by the Supreme Court, the Intermediate Court of Appeals “will hear appeals from circuit courts in civil cases and those concerning guardianship or conservatorship; appeals from family courts, not including appeals from domestic violence proceedings; appeals from state agencies or administrative law judges; and appeals from decisions or orders issued by the Workers’ Compensation Office of Judges after June 30, 2022, until its termination, and from orders or decisions of the Workers’ Compensation Board of Review after June 30, 2022.”

The statement also said the Supreme Court “may, on its own accord, obtain jurisdiction over any civil case appealed to the Intermediate Court of Appeals. A party may file for a direct review by the Supreme Court and the Supreme Court may grant the motion if the appeal involves a question of fundamental public importance and involves exigencies. While the Intermediate Court of Appeals has the discretion to determine which cases require oral argument, it will issue a written decision on the merits in each appeal that is properly filed and within its jurisdiction. An opinion, order, or decision of the Intermediate Court of Appeals will be binding precedent for the decisions of all circuit courts, family courts, magistrate courts, and agencies unless the opinion, order, or decision is overruled or modified by the Supreme Court of Appeals.”

Story by Charles Boothe of the Bluefield Daily Telegraph

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