Bill Text: WV HB3040 | 2018 | Regular Session | Introduced
Bill Title: Creating a new court to be known as West Virginia Intermediate Court of Appeals
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2018-01-10 - To House Judiciary [HB3040 Detail]
Download: West_Virginia-2018-HB3040-Introduced.html
WEST virginia Legislature
2017 regular session
By
[
to the Committee on the Judiciary.
A BILL to amend and
reenact §3-1-17 of the Code of West Virginia, 1931, as amended; to amend and
reenact §3-4A-11a of said code; to amend
said code by adding thereto a new section, designated §3-5-6e; to amend and
reenact §3-5-7 and §3-5-13 of said code; to amend and reenact §3-10-3 and §3-10-3a
of said code; to amend and reenact §6-5-1 of said code; to amend said
code by adding thereto a new article, designated §51-1B-1, §51-1B-2, §51-1B-3, §51-1B-4,
§51-1B-5, §51-1B-6, §51-1B-7, §51-1B-8, §51-1B-9, §51-1B-10, §51-1B-11 and §51-1B-12;
and to amend and reenact §58-5-1 of said code, all relating to creating a new
court to be known as West Virginia Intermediate Court of Appeals; requiring election of judges of the intermediate
court of appeals be on nonpartisan basis; requiring elections be on a division
basis when more than one judge is to be elected; providing for timing and
frequency of election; providing for commencement of terms of office;
establishing ballot design and printing; providing that elections be held on
same date as primary election; requiring nonpartisan ballots; establishing
filing announcement of candidacies, including timing, location and necessary
information; providing for order of appearance of offices on the ballot;
establishing ballot content; providing procedures for filling of vacancies;
providing occasions for special elections to be held to fill vacancies;
requiring intermediate court of appeals be operational by July 1, 2018;
establishing northern and southern districts; providing three judges for each
district; establishing qualifications for judges; establishing court
jurisdiction; providing for deflective review; providing West Virginia Supreme
Court of Appeals will either keep an
appeal or transfer it to intermediate court; designating the clerk of the supreme court as the clerk
of the intermediate court of appeals; providing that certain appeals to be
reviewed as a matter of right and those matters in which the appeals are
discretionary; providing appeals in
certain administrative cases are discretionary; authorizing appeals from intermediate
court to supreme court; authorizing Governor make initial appointments by July
1, 2017; creating staggered terms; providing for elections for ten-year terms
after initial appointments; authorizing a chief judge; authorizing staff for
court and judges; providing for compensation and expenses of judges and staff;
providing for temporary assignment of circuit court judges; authorizing supreme
court to provide facilities, furniture, fixtures and equipment for intermediate
court; establishing precedential effect of intermediate court orders and
decisions; providing budget of intermediate court be part of supreme court
budget; and providing for severability.
Be it enacted by the
Legislature of West Virginia:
That §3-1-17 of the
Code of West Virginia, 1931, as amended, be amended and reenacted; that §3-4A-11a of said code be amended and reenacted; that said
code be amended by adding thereto a new section, designated §3-5-6e; that §3-5-7
and §3-5-13 of said code be amended and reenacted; that §3-10-3 and §3-10-3a of
said code be amended and reenacted; that §6-5-1 of said code be amended and
reenacted; that said code be amended by adding thereto a new article,
designated §51-1B-1, §51-1B-2, §51-1B-3, §51-1B-4, §51-1B-5, §51-1B-6, §51-1B-7,
§51-1B-8, §51-1B-9, §51-1B-10, §51-1B-11 and §51-1B-12; and that §58-5-1 of
said code be amended and reenacted, all to read as follows:
CHAPTER 3. ELECTIONS.
ARTICLE 1. GENERAL
PROVISIONS AND DEFINITIONS.
§3-1-17. Election of
circuit judges; county and district officers; magistrates.
(a) There shall be elected,
at the time of the primary election to be held in 2016, and every eighth year
thereafter, one judge of the circuit court of every judicial circuit entitled
to one judge, and one judge for each numbered division of the judicial circuit
in those judicial circuits entitled to two or more circuit judges; and at the
time of the primary election to be held in 2016, and in every fourth year
thereafter, the number of magistrates prescribed by law for the county.
Beginning with the election held in the year 2016, an election for the purpose
of electing judges of the circuit court, or an election for the purpose of
electing magistrates, shall be upon a nonpartisan ballot printed for the
purpose.
(b) There shall be elected,
at the general election to be held in 1992, and every fourth year thereafter, a
sheriff, prosecuting attorney, surveyor of lands, and the number of assessors
prescribed by law for the county; and at the general election to be held in
1990, and every second year thereafter, a commissioner of the county commission
for each county; and at the general election to be held in 1992, and every
sixth year thereafter, a clerk of the county commission and a clerk of the
circuit court for each county.
(c) Effective with the
primary election of 2016, all elections for judge of the circuit courts in the
respective circuits and magistrates in each county will be elected on a
nonpartisan basis and by division as set forth more fully in article five of
this chapter.
(d) At the time of the primary
election to be held in the year 2018, and every tenth year thereafter, there
shall be elected one judge to each district of the intermediate court of appeals;
at the time of the primary election is to be held in 2020, and every tenth year
thereafter, one judge to each district of the intermediate court of appeals;
and at the time of the primary election to be held in 2022, and every tenth
year thereafter, one judge to each district of the intermediate court of appeals.
Effective with the primary election held in the year 2018, the election of judges
of the intermediate court of appeals shall be on a nonpartisan basis and by
division as set forth more fully in article five of this chapter.
ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.
§3-4A-11a. Ballots tabulated electronically; arrangement,
quantity to be printed, ballot stub numbers.
(a) The board of ballot
commissioners in counties using ballots upon which votes may be recorded by
means of marking with electronically sensible ink or pencil and which marks are
tabulated electronically shall cause the ballots to be printed or displayed
upon the screens of the electronic voting system for use in elections.
(b) (1) For the primary
election, the heading of the ballot, the type faces, the names and arrangement
of offices and the printing of names and arrangement of candidates within each
office are to conform as nearly as possible to sections thirteen and
thirteen-a, article five of this chapter.
(2) For the general
election, the heading of the ballot, the type faces, the names and arrangement
of offices and the printing of names and the arrangement of candidates within
each office are to conform as nearly as possible to section two, article six of
this chapter, except as otherwise provided in this article.
(3) Effective with the primary
election held in 2016 and thereafter, the following nonpartisan elections are
to be separated from the partisan ballot and separately headed in display type
with a title clearly identifying the purpose of the election and constituting a
separate ballot wherever a separate ballot is required under this chapter:
(A) Nonpartisan elections for judicial offices, by
division, of:
(i) Justice of the Supreme
Court of Appeals;
(ii) Judge of
the Intermediate Court of Appeals;
(ii) (iii) Judge of the circuit court;
(iii) (iv) Family court judge; and
(iv) (v) Magistrate;
(B) Nonpartisan elections
for board of education; and
(C) Any question to be voted upon.
(4) Both the face and the
reverse side of the ballot may contain the names of candidates only if means to
ensure the secrecy of the ballot are provided and lines for the signatures of
the poll clerks on the ballot are printed on a portion of the ballot which is
deposited in the ballot box and upon which marks do not interfere with the
proper tabulation of the votes.
(5) The arrangement of
candidates within each office is to be determined in the same manner as for
other electronic voting systems, as prescribed in this chapter. On the general
election ballot for all offices, and on the primary election ballot only for
those offices to be filled by election, except delegate to national convention,
lines for entering write-in votes are to be provided below the names of
candidates for each office, and the number of lines provided for any office
shall equal the number of persons to be elected, or three, whichever is fewer.
The words "WRITE-IN, IF ANY"
are to be printed, where applicable, directly under each line for write-ins.
The lines are to be opposite a position to mark the vote.
(c) Except for electronic
voting systems that utilize screens upon which votes may be recorded by means
of a stylus or by means of touch, the primary election ballots are to be
printed in the color of ink specified by the Secretary of State for the various
political parties, and the general election ballot is to be printed in black
ink. For electronic voting systems that utilize screens upon which votes may be
recorded by means of a stylus or by means of touch, the primary ballots and the
general election ballot are to be printed in black ink. All ballots are to be printed, where applicable, on
white paper suitable for automatic tabulation and are to contain a perforated
stub at the top or bottom of the ballot, which is to be numbered sequentially
in the same manner as provided in section thirteen, article five of this
chapter, or are to be displayed on the screens of the electronic voting system
upon which votes are recorded by means of a stylus or touch. The number of
ballots printed and the packaging of ballots for the precincts are to conform
to the requirements for paper ballots provided in this chapter.
(d) In addition to the
official ballots, the ballot commissioners shall provide all other materials
and equipment necessary to the proper conduct of the election.
ARTICLE 5. PRIMARY ELECTIONS AND
NOMINATING PROCEDURES.
§3-5-6e. Election of Judges of the Intermediate Court
of Appeals.
(a) An election for the purpose of electing a judge or judges of
the intermediate court of appeals shall be held on the same date as the primary
election, as provided by law, upon a nonpartisan ballot by division printed for
this purpose. For election purposes, in each election at which shall be elected
more than one judge of the intermediate court of appeals, the election shall be
by numbered division corresponding to the number of judges being elected. Each
judge shall be elected at large from the entire district as set forth in
section one, article one-b, chapter fifty-one of this code.
(b) In each
nonpartisan election by division for a judge of the Intermediate Court of Appeals, the candidates for
election in each numbered division shall be tallied separately and the board of
canvassers shall declare and certify the election of the eligible candidate
receiving the highest number of votes cast within a numbered division to fill
any full terms.
(c) In case of
a tie vote under this section, section twelve, article six of this chapter
controls in breaking the tie vote.
§3-5-7. Filing
announcements of candidacies; requirements; withdrawal of candidates when
section applicable.
(a) Any person who is eligible and seeks to hold an office
or political party position to be filled by election in any primary or general
election held under the provisions of this chapter shall file a certificate of
announcement declaring his or her candidacy for the nomination or election to
the office.
(b) The certificate of
announcement shall be filed as follows:
(1) Candidates for the
House of Delegates, the State Senate, judge of the Intermediate Court of Appeals, circuit
judge, family court judge, and any other office or political position to be
filled by the voters of more than one county shall file a certificate of
announcement with the Secretary of State.
(2) Candidates for an
office or political position to be filled by the voters of a single county or a
subdivision of a county, except for candidates for the House of Delegates,
State Senate, circuit judge or family court judge, shall file a certificate of announcement
with the clerk of the county commission.
(3) Candidates for an
office to be filled by the voters of a municipality shall file a certificate of
announcement with the recorder or city clerk.
(c) The certificate of
announcement shall be filed with the proper officer not earlier than the second
Monday in January before the primary election day and not later than the last
Saturday in January before the primary election day and must be received before
midnight, eastern standard time, of that day or, if mailed, shall be postmarked
by the United States Postal Service before that hour. This includes the offices
of justice of the Supreme Court of Appeals,
judge of the Intermediate
Court of Appeals, circuit
court judge, family court judge and magistrate, which are to be filled on a
nonpartisan and division basis at the primary election.
(d) The certificate of
announcement shall be on a form prescribed by the Secretary of State on which
the candidate shall make a sworn statement before a notary public or other
officer authorized to administer oaths, containing the following information:
(1) The date of the
election in which the candidate seeks to appear on the ballot;
(2) The name of the office
sought; the district, if any; and the division, if any;
(3) The legal name of the
candidate and the exact name the candidate desires to appear on the ballot,
subject to limitations prescribed in section thirteen of this article; five
of this chapter
(4) The county of residence
and a statement that the candidate is a legally qualified voter of that county;
and the magisterial district of residence for candidates elected from
magisterial districts or under magisterial district limitations;
(5) The specific address
designating the location at which the candidate resides at the time of filing,
including number and street or rural route and box number and city, state and
zip code;
(6) For partisan elections,
the name of the candidate's political party and a statement that the candidate:
(A) Is a member of and affiliated with that
political party as evidenced by the candidate's current registration as a voter
affiliated with that party; and (B) has not been registered as a voter
affiliated with any other political party for a period of sixty days before the
date of filing the announcement;
(7) For candidates for
delegate to national convention, the name of the presidential candidate to be
listed on the ballot as the preference of the candidate on the first convention
ballot; or a statement that the candidate prefers to remain "uncommitted";
(8) A statement that the person filing the certificate of
announcement is a candidate for the office in good faith;
(9) The words
"subscribed and sworn to before me this ______ day of _____________,
20____" and a space for the signature of the officer giving the oath.
(e) The Secretary of State
or the board of ballot commissioners, as the case may be, may refuse to certify
the candidacy or may remove the certification of the candidacy upon receipt of
a certified copy of the voter's registration record of the candidate showing
that the candidate was registered as a voter in a party other than the one
named in the certificate of announcement during the sixty days immediately
preceding the filing of the certificate: Provided, That unless a signed
formal complaint of violation of this section and the certified copy of the
voter's registration record of the candidate are filed with the officer
receiving that candidate's certificate of announcement no later than ten days
following the close of the filing period, the candidate may not be refused
certification for this reason.
(f) The certificate of
announcement shall be subscribed and sworn to by the candidate before some
officer qualified to administer oaths, who shall certify the same. Any person who knowingly provides false information on
the certificate is guilty of false swearing and shall be punished in accordance
with section three, article nine of this chapter.
(g) Any candidate for delegate to a national convention may
change his or her statement of presidential preference by notifying the
Secretary of State by letter received by the Secretary of State no later than
the third Tuesday following the close of candidate filing. When the rules of
the political party allow each presidential candidate to approve or reject
candidates for delegate to convention who may appear on the ballot as committed
to that presidential candidate, the presidential candidate or the candidate's
committee on his or her behalf may file a list of approved or rejected candidates
for delegate and the Secretary of State shall list as "uncommitted"
any candidate for delegate who is disapproved by the presidential candidate.
(h) A person may not be a candidate for more than one
office or office division at any election: Provided, That a candidate
for an office may also be a candidate for President of the United States, for
membership on political party executive committees or for delegate to a
political party national convention: Provided, however, That an
unsuccessful candidate for a nonpartisan office in an election held
concurrently with the primary election may be appointed under the provisions of
section nineteen of this article to fill a vacancy on the general ballot.
(i) A candidate who files a certificate of announcement for
more than one office or division and does not withdraw, as provided by section
eleven of this article, five of this chapter from all but one
office prior to the close of the filing period may not be certified by the
Secretary of State or placed on the ballot for any office by the Board of Ballot
Commissioners.
§3-5-13. Form and
contents of ballots.
The following provisions
apply to the form and contents of election ballots:
(1) The face of every
primary election ballot shall conform as nearly as practicable to that used at
the general election.
(2) The heading of every
ballot is to be printed in display type. The heading is to contain a ballot
title, the name of the county, the state, the words "Primary
Election" and the month, day and year of the election. The ballot title of
the political party ballots is to contain the words "Official Ballot of
the (Name) Party" and the official symbol of the political party may be
included in the heading.
(A) The ballot title of any separate paper ballot or portion
of any electronic or voting machine ballot for all judicial officer officers
shall commence with the words "Nonpartisan Ballot of Election of Judicial
Officers" and each such office shall be listed in the following order:
(i) The ballot title of any
separate paper ballot or portion of any electronic or voting machine ballot for
all justices of the Supreme Court of Appeals
shall contain the words "Nonpartisan Ballot of Election of Justice(s) of
the Supreme Court of Appeals of West
Virginia". The names of the candidates for the Supreme Court of Appeals shall be printed by division without references
to political party affiliation or registration.
(ii) The ballot
title of any separate paper ballot or portion of any electronic or voting
machine ballot for all judges of the Intermediate Court of Appeals shall contain the
words "Nonpartisan Ballot of Election of Judge(s) of the Intermediate
Court of Appeals".
The names of the candidates for the Intermediate Court of Appeals shall be printed by
division without references to political party affiliation or registration.
(ii) (iii) The ballot title of any separate paper
ballot or portion of any electronic or voting machine ballot for all circuit
court judges in the respective circuits shall contain the words "Nonpartisan Ballot of Election of circuit court
Judge(s)". The names of the
candidates for the respective circuit court judge office shall be printed by
division without references to political party affiliation or registration.
(iii) (iv) The ballot title of any separate paper
ballot or portion of any electronic or voting machine ballot for all family
court judges in the respective circuits shall contain the words
"Nonpartisan Ballot of Election of Family Court Judge(s)". The names
of the candidates for the respective family court judge office shall be printed
by division without references to political party affiliation or registration.
(iv) (v) The ballot title of any separate paper
ballot or portion of any electronic or voting machine ballot for all
magistrates in the respective circuits shall contain the words
"Nonpartisan Ballot of Election of Magistrate(s)". The names of the
candidates for the respective magistrate office shall be printed by division
without references to political party affiliation or registration.
(B) The ballot title of any
separate paper ballot or portion of any electronic or voting machine ballot for
the Board of Education is to contain the words "Nonpartisan Ballot of
Election of Members of the ______________ County Board of Education". The
districts for which less than two candidates may be elected and the number of
available seats are to be specified and the names of the candidates are to be
printed without reference to political party affiliation and without designation
as to a particular term of office.
(C) Any other ballot or portion of a ballot on a question
is to have a heading which clearly states the purpose of the election according
to the statutory requirements for that question.
(3) (A) For paper ballots, the heading of the ballot is to
be separated from the rest of the ballot by heavy lines and the offices shall
be arranged in columns with the following headings, from left to right across
the ballot: "National Ticket", "State Ticket", "County
Ticket" and, in a presidential election year, "National
Convention" or, in a nonpresidential election year, "District
Ticket". The columns are to be separated by heavy lines. Within the
columns, the offices are to be arranged in the order prescribed in section thirteen-a
of this article.
(B) For voting machines,
electronic voting devices and any ballot tabulated by electronic means, the
offices are to appear in the same sequence as prescribed in section thirteen-a
of this article and under the same headings as prescribed in paragraph (A) of this subdivision. The number of pages, columns or
rows, where applicable, may be modified to meet the limitations of ballot size
and composition requirements subject to approval by the Secretary of State.
(C) The title of each office
is to be separated from preceding offices or candidates by a line and is to be
printed in bold type no smaller than eight point. Below the office is to be
printed the number of the district, if any, the number of the division, if any,
and the words "Vote for ________" with the number to be nominated or
elected or "Vote For Not More Than ________" in multicandidate
elections. For offices in which there are limitations relating to the number of
candidates which may be nominated, elected or appointed to or hold office at
one time from a political subdivision within the district or county in which
they are elected, there is to be a clear explanation of the limitation, as
prescribed by the Secretary of State, printed in bold type immediately
preceding the names of the candidates for those offices on the ballot in every
voting system. For counties in which the number of county commissioners exceeds
three and the total number of members of the county commission is equal to the
number of magisterial districts within the county, the office of county
commission is to be listed separately for each district to be filled with the
name of the magisterial district and the words "Vote for One" printed
below the name of the office: Provided, That the office title and applicable
instructions may span the width of the ballot so as it is centered among the
respective columns.
(D) The location for
indicating the voter's choices on the ballot is to be clearly shown. For paper
ballots, other than those tabulated electronically, the official primary ballot
is to contain a square formed in dark lines at the left of each name on the
ballot, arranged in a perpendicular column of squares before each column of
names.
(4) (A) The name of every candidate certified by the
Secretary of State or the Board of Ballot Commissioners is to be printed in
capital letters in no smaller than eight point type on the ballot for the
appropriate precincts. Subject to the rules promulgated by the Secretary of
State, the name of each candidate is to appear in the form set out by the
candidate on the certificate of announcement, but in no case may the name
misrepresent the identity of the candidate nor may the name include any title,
position, rank, degree or nickname implying or inferring any status as a member
of a class or group or affiliation with any system of belief.
(B) The city of residence
of every candidate, the state of residence of every candidate residing outside
the state, the county of residence of every candidate for an office on the
ballot in more than one county and the magisterial district of residence of
every candidate for an office subject to magisterial district limitations are
to be printed in lower case letters beneath the names of the candidates.
(C) The arrangement of
names within each office must be determined as prescribed in section thirteen-a
of this article.
(D) If the number of
candidates for an office exceeds the space available on a column or ballot page
and requires that candidates for a single office be separated, to the extent
possible, the number of candidates for the office on separate columns or pages
are to be nearly equal and clear instructions given the voter that the
candidates for the office are continued on the following column or page.
(5) When an insufficient
number of candidates has filed for a party to make the number of nominations
allowed for the office or for the voters to elect sufficient members to the board
of education or to executive committees, the vacant positions on the ballot
shall be filled with the words "No Candidate Filed": Provided,
That in paper ballot systems which allow for write-ins to be made directly on
the ballot, a blank line shall be placed in any vacant position in the office
of board of education or for election to any party executive committee. A line shall separate each candidate from every other
candidate for the same office. Notwithstanding any other provision of this
code, if there are multiple vacant positions on a ballot for one office, the
multiple vacant positions which would otherwise be filled with the words
"No Candidate Filed" may be replaced with a brief detailed
description, approved by the Secretary of State, indicating that there are no
candidates listed for the vacant positions.
(6) In presidential
election years, the words "For election in accordance with the plan
adopted by the party and filed with the Secretary of State" is are
to be printed following the names of all candidates for delegate to
national convention.
(7) All paper ballots are to be printed in black ink on
paper sufficiently thick so that the printing or marking cannot be discernible
from the back: Provided, That no paper ballot voted pursuant to the
provisions of 42 U. S. C. §1973, et seq., the Uniformed and Overseas
Citizens Absentee Voting Act of 1986, or federal write-in absentee ballot may be
rejected due to paper type, envelope type, or notarization requirement. Ballot
cards and paper for printing ballots using electronically sensible ink are to
meet minimum requirements of the tabulating systems and are to conform in size
and weight to ensure ease in tabulation.
(8) Ballots are to contain
perforated tabs at the top of the ballots and are to be printed with unique
sequential numbers from one to the highest number representing the total number
of ballots printed. On paper ballots, the ballot is to be bordered by a solid
line at least one sixteenth of an inch wide and the ballot is to be trimmed to
within one-half inch of that border.
(9) On the back of every
official ballot or ballot card the words "Official Ballot" with the
name of the county and the date of the election are to be printed. Beneath the
date of the election there are to be two blank lines followed by the words
"Poll Clerks".
(10) The face of sample
paper ballots and sample ballot labels are to be like other official ballots or
ballot labels except that the word "sample" is to be prominently
printed across the front of the ballot in a manner that ensures the names of
candidates are not obscured and the word "sample" may be printed in
red ink. No printing may be placed on the back of the sample.
ARTICLE 10. FILLING VACANCIES.
§3-10-3. Vacancies in
offices of state officials, United States Senators and judges.
(a) Any vacancy occurring in the offices of Secretary of
State, Auditor, Treasurer, Attorney General, Commissioner of Agriculture, or in any office created or made elective
to be filled by the voters of the entire state, is filled by the Governor of
the state by appointment and subsequent election to fill the remainder of the
term, if required by section one of this article.
(b) Any vacancy occurring in the offices of justice of the
Supreme Court of Appeals, judge of the Intermediate Court of Appeals, judge
of a circuit court or judge of a family court is filled by the Governor of the
state by appointment and subsequent election to fill the remainder of the term,
as required by subsection (d) of this section. If an election is required under
that subsection, (d) of this section the Governor, circuit court
or the chief judge thereof in vacation, is responsible for the proper
proclamation by order and notice required by section one of this article.
(c) Any vacancy in the office of magistrate is appointed
according to the provisions of section six, article one, chapter fifty of this
code, and subsequent election to fill the remainder of the term, as required by
subsection (d) of this section.
(d) (1) When the vacancy in
Justice of the Supreme Court of Appeals, Judge of the Intermediate Court of Appeals, judge
of the circuit court, judge of a family court or magistrate occurs after the
eighty-fourth day before a general election, and the affected term of office
ends on December 31 following the next election, the person appointed to fill
the vacancy shall continue in office until the completion of the term.
(2) When the vacancy occurs
before the close of the candidate filing period for the primary election, the
vacancy shall be filled by election in the nonpartisan judicial election held
concurrently with the primary election, and the appointment shall continue
until a successor is elected and certified.
(3) When the vacancy occurs
after the close of candidate filing for the primary election and not later than
eighty-four days before the general election, the vacancy shall be filled by
election in a nonpartisan judicial election held concurrently with the general
election, and the appointment shall continue until a successor is elected and
certified.
(e) When an election to
fill a vacancy is required to be held at the general election according to the
provisions of subsection (d) of this section, a special candidate filing period
shall be established. Candidates seeking election to any unexpired term for justice
of the Supreme Court of Appeals, judge of the Intermediate Court of Appeals, judge
of a circuit court, judge of the family court or magistrate shall file a
certificate of announcement and pay the filing fee no earlier than the first
Monday in August and no later than
seventy-seven days before the general election.
§3-10-3a. Judicial
Vacancy Advisory Commission.
(a) The Judicial Vacancy Advisory Commission shall assist the Governor in
filling judicial vacancies. The commission shall meet and submit a list of no
more than five nor less than two best qualified persons to the Governor within
ninety days of the occurrence of a vacancy, or the formal announcement of the
justice or judge by letter to the Governor of an upcoming resignation or
retirement that will result in the occurrence of a vacancy, in the office of justice
of the Supreme Court of Appeals, judge of the Intermediate Court of Appeals, judge
of a circuit court or judge of a family court. The Governor shall make the
appointment to fill the vacancy, as required by this article, within thirty
days following the receipt of the list of qualified candidates or within thirty
days following the vacancy, whichever occurs later.
(b) The commission shall
consist of eight appointed members. Four public members shall be appointed by
the Governor for six-year terms, except for the initial appointments which
shall be staggered in accordance with subsection (c) of this section. Four
attorney members shall be appointed by the Governor for six-year terms, except
as provided in that subsection, (c) of this section from a list
of nominees provided by the board of Governors of the West Virginia State Bar.
The Board of Governors of the West Virginia State Bar shall nominate no more
than twenty nor less than ten best-qualified attorneys for appointment
to the commission whenever there is a vacancy in the membership of the
commission reserved for attorney members. The commission shall choose one of
its appointed members to serve as chair for a three-year term. No more than
four appointed members of the commission shall belong to the same political
party. No more than three appointed members of the commission shall be
residents of the same congressional district. All
members of the commission shall be citizens of this state. Public members of
the commission may not be licensed to practice law in West Virginia or any
other jurisdiction.
(c) Of the initial
appointments made to the commission, two public members and two attorney
members shall be appointed for a term ending two years after the effective date
of this section, one public member and one attorney member shall be appointed
for a term ending four years after the effective date of this section, and one
public member and one attorney member shall be appointed for a term ending six
years after the effective date of this section.
(d) The Governor, or his or
her designee, the President of the West Virginia State Bar and the Dean of the
West Virginia University College of Law shall serve as ex officio members
of the commission.
(e) Members of the
commission shall serve without compensation, except that commission members are
entitled to reimbursement of travel and other necessary expenses actually
incurred while engaged in official commission activities in accordance with the
guidelines of the Travel Management Office of the Department of Administration, or its successor entity. The Governor's Office office shall cooperate with the
commission to ensure that all resources necessary to carrying out the official
duties of the commission are provided, including staff assistance, equipment
and materials.
(f) The commission shall
adopt written policies that formalize and standardize all operating procedures
and ethical practices of its members including, but not limited to, procedures
for training commission members, publishing notice of judicial vacancies,
recruiting qualified individuals for consideration by the commission, receiving
applications from qualified individuals, notifying the public of judicial
vacancies, notifying state or local groups and organizations of judicial vacancies
and soliciting public comment on judicial vacancies. The written policies of
the commission are not subject to the provisions of chapter twenty-nine-a of
this code, but shall be filed with the Secretary of State.
(g) A majority of the commission plus one shall constitute
a quorum to do business.
(h) All organizational meetings of the commission shall be
open to the public and subject to the requirements of article nine-a, chapter
six of this code. An "organizational meeting" means an initial meeting to discuss the commission's procedures and requirements for a judicial vacancy.
The commission shall hold at least one organizational meeting upon the
occurrence of a judicial vacancy. All other meetings of the commission are
exempt from the requirements of that article. nine-a, chapter six of
this code
(i) The commission shall
make available to the public copies of any applications and any letters of
recommendation written on behalf of any applicants. All other documents or
materials created or received by the commission shall be confidential and
exempt from the provisions of chapter twenty-nine-b of this code, except for
the list of best-qualified persons or accompanying memoranda submitted to the
Governor in accordance with the provisions of subsection (j) of this section,
which shall be available for public inspection, and the written policies
required to be filed with the Secretary of State in accordance with subsection
(f) of this section.
(j) The commission shall
submit its list of best-qualified persons to the Governor in alphabetical
order. A memorandum may accompany the list of best-qualified persons and state
facts concerning each of the persons listed. The commission shall make copies
of any list of best-qualified persons and accompanying memoranda it submits to
the Governor available for public inspection.
CHAPTER 6. GENERAL
PROVISIONS RESPECTING OFFICERS.
ARTICLE 5. TERMS OF
OFFICE; MATTERS AFFECTING THE RIGHT TO HOLD OFFICE.
§6-5-1. When terms of
office to begin.
The terms of officers,
except when elected or appointed to fill vacancies, shall begin respectively as
follows: That of Governor, Secretary of State, State Superintendent of Free
Schools, Treasurer, Auditor, Attorney General and Commissioner of Agriculture,
on the first Monday after the second Wednesday of January next after their
election; that of a member of the Legislature, on December 1, next after his or
her election; and that of the justices of the Supreme Court of Appeals, the judges of the Intermediate Court of
Appeals, the judges of the several circuit courts, the judges
of the family and other inferior courts, the county commissioners, prosecuting
attorneys, surveyors of land, assessors, sheriffs, clerks of the circuit, or other
inferior courts, clerks of the county commissions, magistrates, on January 1,
next after their election.
Whenever a person is
elected or appointed to fill a vacancy, his or her term shall be as prescribed
by chapter three of this code.
CHAPTER 51. COURTS AND
THEIR OFFICERS.
ARTICLE 1B. THE WEST
VIRGINIA INTERMEDIATE COURT OF APPEALS.
§51-1B-1. The West
Virginia Intermediate Court of Appeals.
(a) In accordance with
Section 1, Article VIII of the West Virginia Constitution, the West Virginia
Intermediate Court of Appeals is created. The intermediate court is a court of
record and shall issue, as appropriate in each appeal, written opinions, orders
and decisions. The court shall be established and operable on or before July 1,
2018. The West Virginia Intermediate Court of Appeals shall be divided into two
districts: The Intermediate Court of Appeals for the northern district and the Intermediate
Court of Appeals for the southern district.
(b) The Intermediate Court
of Appeals for the northern district is comprised of the following judicial
circuits: first, second, third, fourth, fifth, fifteenth, sixteenth,
seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second,
twenty-third and twenty-sixth.
(c) The Intermediate Court
of Appeals for the southern district is comprised of the following judicial
circuits: sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth,
fourteenth, twenty-fourth, twenty-fifth, twenty-seventh, twenty-eighth, twenty-ninth,
thirtieth and thirty-first.
(d) The Intermediate Court
of Appeals may be located in any seat of county government located in the
district it serves for the purpose of hearing oral argument or may be located
in a fixed location in the district it serves.
(e) The clerk of the supreme
court shall act as clerk of the Intermediate Court of Appeals. The clerk shall
keep a complete record of the cases and proceedings of the Intermediate Court
of Appeals. The clerk, subject to the
approval of the supreme court, may employ additional staff for the performance
of duties relating to the court of appeals and designate a deputy clerk to
oversee the administration of the Intermediate Court of Appeals.
§51-1B-2. Judges;
qualifications.
(a) The Intermediate Court
of Appeals shall consist of six judges, three judges in each district,
initially appointed by the Governor in accordance with section five of this
article.
(b) An Intermediate Court
of Appeals judge must be a resident of the district in which he or she will
preside, a member in good standing of the West Virginia State Bar and admitted
to practice law in this state for at least ten years prior to appointment or
election to the Intermediate Court of Appeals.
(c) An Intermediate Court
of Appeals judge may not engage in any other business, occupation or employment
inconsistent with the expeditious, proper and impartial performance of his or
her duties as a judicial officer. An Intermediate Court of Appeals judge is not
permitted to engage in the outside practice of law and shall devote full time
to his or her duties as a judicial officer.
§51-1B-3.
Jurisdiction; deflective rights of the West Virginia Supreme Court of Appeals;
discretionary appeals.
(a) The Intermediate Court
of Appeals shall not have original jurisdiction.
(b) A notice of appeal
shall be filed with the West Virginia Supreme Court of Appeals in accordance
with Rule 5 of the West Virginia Rules of Appellate Procedure. After the proper
filing of a notice of appeal, the supreme court shall either transfer the case
to the Intermediate Court of Appeals or issue a scheduling order in accordance
with Rule 5(d) of the West Virginia Rules of Appellate Procedure.
(c) The Intermediate Court
of Appeals has jurisdiction to hear appeals from final judgments or orders
entered by a circuit court in any civil or criminal case, appeals from the Workers'
Compensation Board of Review and the Public Service Commission.
(d) All appeals shall be
reviewed, and a written decision on the merits shall be issued by either the supreme
court or the Intermediate Court of Appeals as a matter of right except for the
following appeals, which shall be discretionary with the courts:
(1) Appeals from the Workers'
Compensation Board of Review established by section eleven, article five,
chapter twenty-three of this code;
(2) Appeals from orders
of the Public Service Commission established by article one, chapter
twenty-four of this code;
(3) Appeals from decisions
of circuit courts of administrative appeals of an agency as defined in article
one, chapter twenty-nine-a of this code; and
(4) Appeals of
misdemeanor convictions.
(e) Within thirty days
after a decision by the Intermediate Court of Appeals, any aggrieved party may
file a notice of appeal with the supreme court as provided by the West Virginia
Rules of Appellate Procedure.
§51-1B-4.
Precedential effect of Intermediate Court decisions.
Unless stated by the
court to be per curiam or unpublished, all orders and decisions of the Intermediate
Court of Appeals shall have precedential effect.
§51-1B-5. Number of
Intermediate Court Judges; initial appointment; election; term of office;
vacancy; Chief Judge.
(a) There shall be three
judges for each district of the Intermediate Court of Appeals. On or after
February 1, 2018, the Judicial Vacancy Advisory Commission, established
pursuant to section three-a, article ten, chapter three of this code, shall
publish notice of the judicial vacancies for the Intermediate Court of Appeals
and begin accepting applications from qualified individuals for the position of
judge of the Intermediate Court of Appeals. The committee shall recommend three
qualified nominees for each position for Intermediate Court of Appeals judge.
The Governor shall, on or before July 1, 2018, appoint the initial judges from
names submitted by the Judicial Vacancy Advisory Committee pursuant to section
three-a, article ten, chapter three of this code. If the Governor does not
select a nominee for the position of judge from the names provided by the
committee, he or she shall notify the committee of that circumstance and the
committee shall provide additional names for consideration by the Governor.
(b) The committee is
responsible for reviewing and evaluating candidates for possible appointment to
the Intermediate Court of Appeals by the Governor. In reviewing candidates, the
committee may accept applications from any attorney who believes to be
qualified for the judgeships. The committee may accept comments from and
request information from any person or source.
(c) Of the initial
appointments for each district, one judge shall be appointed for a term set to
expire on December 31, 2018, one judge shall be appointed for a term set to
expire on December 31, 2020, and one judge shall be appointed for a term set to
expire on December 31, 2022.
(d) After the initial
appointment, the judges of the Intermediate Court of Appeals for each district
shall be elected at large from the entire district on a nonpartisan basis by
division for a ten-year term of office as set forth in article five, chapter
three of this code.
(e) If a vacancy occurs
in the office of judge of the Intermediate Court of Appeals, the Governor shall
fill the vacancy by appointment as provided in sections three and three-a,
article ten, chapter three of this code.
(f) One judge of the Intermediate
Court of Appeals shall be chosen chief judge. The manner of choosing the chief judge
and providing for periodic rotation of the position of chief judge shall be
determined by rules to be established by the Supreme Court.
§51-1B-6.
Compensation and expenses of Intermediate Court of Appeals Judges and staffs.
(a) The annual salary
for judges on the Intermediate Court of Appeals shall be $118,000.
Reimbursement for expenses shall be at a rate established by the supreme court.
(b) Each judge of the Intermediate Court of Appeals
may employ two law clerks and one secretary. The Intermediate Court of Appeals
may employ a clerk and the necessary staff to carry out the administrative
duties of the court or, with the permission of the supreme court, the
administrative and other support staff of the supreme court may carry out the
administrative duties of both districts. The compensation of the staff of the Intermediate
Court of Appeals shall be established by the judges of the Intermediate Court
of Appeals with the approval of the supreme court.
§51-1B-7. Temporary
assignment of circuit court judges.
Upon the occurrence of a
vacancy in the office of an Intermediate Court of Appeals judge, the
disqualification of an Intermediate Court of Appeals judge or the inability of
an Intermediate Court of Appeals judge to attend to his or her duties because
of illness, temporary absence or any other reason, the chief justice of the supreme
court may assign any senior status circuit judge or circuit judge of any
judicial circuit that is not from the same circuit as the appeal before the Intermediate
Court of Appeals to hear and determine any and all matters then or thereafter
pending in the Intermediate Court of Appeals to which the absent Intermediate Court
of Appeals judge is assigned.
§51-1B-8. Facilities.
(a) The administrative director
of the supreme court shall provide for the requisite physical facilities,
furniture, fixtures and equipment necessary for the efficient operation of the Intermediate
Court of Appeals.
(b) In order to minimize
any costs associated with the necessary facilities for the Intermediate Court
of Appeals, the director shall make existing courtrooms throughout the state
available for use by the Intermediate Court of Appeals at times convenient both
to the Intermediate Court of Appeals and the local court.
(c) The director may
also contract with the Department of Administration, county commissions and
private parties to provide for space that is suitable for the Intermediate Court
of Appeals.
§51-1B-9. Rules of
practice and procedure.
All pleadings, practice
and procedure in matters before the Intermediate Court of Appeals shall be
governed by the rules promulgated by the supreme court.
§51-1B-10. Electronic
filing of all documents.
All documents filed in
connection with an appeal to the Intermediate Court of Appeals shall be filed
electronically.
§51-1B-11. Budget.
The budget for the
payment of the salaries and benefits for the Intermediate Court of Appeals judges
and staff, facilities, furniture, fixtures and equipment shall be included in
the appropriation for the supreme court. To the extent possible, the supreme court
shall designate existing facilities and existing staff members for use by the Intermediate
Court of Appeals to minimize the costs for establishing and operating the court.
§51-1B-12.
Severability.
The provisions of this
article are severable. If any portion of
this article is declared unconstitutional or the application of any part of
this article is held invalid, the remaining portions of this article and their
applicability shall remain valid and enforceable.
CHAPTER 58. APPEAL AND ERROR.
ARTICLE 5. APPELLATE
RELIEF IN SUPREME COURT OF APPEALS.
§58-5-1. When appeal
lies.
(a) A party to a civil action may appeal to the Supreme
Court of Appeals from a final judgment of any circuit court or from an order of
any circuit court constituting a final judgment as to one or more but fewer
than all claims or parties upon an express determination by the circuit court
that there is no just reason for delay and upon an express direction for the
entry of judgment as to such claims or parties.
(b) The defendant in a criminal action may appeal to the
Supreme Court of Appeals from a final judgment of any circuit court in which
there has been a conviction or which affirms a conviction obtained in an
inferior court.
(c) All appeals pursuant
to this section shall be reviewed as a matter of right, and a written decision
on the merits shall be issued, by either the supreme court or the Intermediate Court
of Appeals except for the following appeals, which shall be discretionary with
the courts:
(1) Appeals from the
Workers' Compensation Board of Review established by section eleven, article
five, chapter twenty-three of this code;
(2) Appeals from orders of the Public
Service Commission established by article one, chapter twenty-four of this
code;
(3) Appeals from decisions of circuit
courts of administrative appeals of an agency as defined in article one,
chapter twenty-nine-a of this code; and
(4) Appeals of misdemeanor convictions.
NOTE: The purpose of this bill is to create an
Intermediate Court of Appeals. The bill requires election of judges of the intermediate
court of appeals be on nonpartisan basis. The bill requires elections be on a
division basis when more than one judge is to be elected. The bill provides for
timing and frequency of election. The bill provides for commencement of terms
of office. The bill establishes ballot design and printing. The bill provides
that elections be held on same date as primary election. The bill
requires nonpartisan ballots. The bill establishes filing announcement of
candidacies, including timing, location and necessary information. The bill
provides for order of appearance of offices on the ballot. The bill establishes
ballot content. The bill provides procedures for filling of vacancies. The bill
provides occasions for special elections to be held to fill vacancies. The bill
requires Intermediate Court of Appeals be operational by July 1, 2018. The bill
establishing northern and southern districts. The bill provides three judges
for each district. The bill establishes qualifications for judges. The bill designates the clerk of the
Supreme Court as the clerk of the Intermediate Court of Appeals. The bill
provides that certain appeals to be reviewed as a matter of right and those
matters in which the appeals are discretionary.
The bill establishes court jurisdiction. The bill provides for deflective
review. The bill provides West Virginia Supreme Court of Appeals will either
keep an appeal or transfer it to intermediate court. The bill provides appeals
in certain administrative cases are discretionary. The bill authorizes appeals
from intermediate court to supreme court. The bill authorizes Governor make
initial appointments by July 1, 2017. The bill creates staggered terms. The
bill provides for elections for ten-year terms after initial appointments. The
bill authorizes a Chief Judge. The bill authorizes staff for court and judges.
The bill provides for compensation and expenses of judges and staff. The bill
provides for temporary assignment of circuit court judges. The bill authorizes
Supreme Court to provide facilities, furniture, fixtures and equipment for
Intermediate Court. The bill establishes precedential effect of Intermediate
Court orders and decisions. The bill provides budget of Intermediate Court be
part of Supreme Court budget. The bill provides for severability.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.