It is finally here. The final report of the West Virginia Independent Commission on Judicial Reform was released Sunday, Nov. 15, 2009.

The 151-page study is a sweeping review of the entire state judicial system. Governor Joe Manchin used Executive Order No. 6-09 to establish the Independent Commission on Judicial Reform to “study the need for broad systemic judicial reforms including, but not limited to, adopting a merit-based system of judicial selection, enacting judicial campaign finance reforms or reporting requirements, creating an intermediate court of appeals, proposing constitutional amendments or establishing a court of chancery.”

The report dealt with three key issues:

The first is an erosion of the public’s confidence in the State’s justice system as a neutral and unbiased arbiter. Even in 1998, when the Commission on the Future of the West Virginia Judicial System published its report and recommendations, it was already clear that poor public perception of the courts was a growing concern. In a telephone survey conducted for that report, 46% of respondents stated that they did not agree that West Virginia courts treated people equally (with only 30% agreeing), and roughly the same number disagreed that those who went before the courts received justice (with around 26% agreeing). In light of the increases in campaign spending since 1998 and a recent decision by the United States Supreme Court dealing with the impact of multimillion dollar campaign expenditures on the ability of judges to preside over certain cases, it is certainly reasonable to assume that the public’s perception of West Virginia’s courts is no better today than eleven years ago, and perhaps even worse.

The second trend is the steadily increasing caseload before the Supreme Court of Appeals. While the number of cases heard by the State’s circuit courts has remained relatively stable over the past decade, the Supreme Court of Appeals has seen its annual number of filings more than double over the past twenty-five years.

Third is the surge in judicial campaign expenditures in the past few years. Candidates running for a seat on the Supreme Court of Appeals in 2000 raised a total of $ 1.4 million. In 2004 that number doubled to $2.8 million, and in 2008 it was $3.3 million. As campaign spending has increased, so too has the perception that interested third parties can sway the court system in their favor through monetary participation in the election process. This perception strikes at the very heart of the judiciary’s role in our society.

So what are the solutions to these three problems?

First, the Legislature should adopt a public financing pilot program for one of the two open Supreme Court of Appeals seats in the 2012 election. West Virginia has witnessed a steady and substantial increase in the amount of money raised and spent by candidates in elections for Supreme Court of Appeals seats. As campaign expenditures rise, so too does the threat of bias, and certainly the public perception of bias, as candidates face mounting pressure to accept donations from lawyers and parties that may appear before them once they take a seat on the bench. This Commission therefore recommends a public financing pilot program to investigate the potential for removing the specter of out-of control and otherwise troublesome spending from judicial elections. In conjunction with implementation of this public financing experiment, the Commission recommends that the Secretary of State’s office publish a “voter’s guide” for judicial candidates, which will serve as a non-partisan source of information to supplement (and perhaps replace) advertisements and other information now paid for by individual campaigns.

Second, the Legislature should codify a version of the advisory committee process currently used by the Governor to assist in the appointment of candidates to fill interim vacancies in the judiciary. The Constitution (and by extension, a statutory provision) grants the executive the authority to appoint a successor when a vacancy occurs during a judicial term. Today, over forty percent of sitting circuit court judges were originally appointed in this manner. Governor Manchin, as well as his immediate predecessors, has utilized advisory committees to vet, interview, and recommend candidates for these positions. However, the specific role and procedures of these committees remains undefined. The Commission believes that this process would benefit from a more standardized procedure, and therefore recommends that the Legislature codify these committees, establish membership and terms, and articulate uniform procedures for assisting the executive in filling such vacancies.

Third, the Legislature should act to establish an intermediate appellate court. By virtually any measure, the Supreme Court of Appeals is one of the busiest state appellate courts in the entire country. An intermediate court, comprised initially of appointed judges, would ease the burden on the Supreme Court of Appeals, free the high court to continue hearing a discretionary docket focused on important or novel legal issues and expand the core functions of our appellate judicial system. The Commission recommends that the proposed intermediate court employ a “deflective” form of case distribution, in which all cases will continue to be filed in the Supreme Court of Appeals, and then the Supreme Court, upon review of the case pursuant to rules and procedures it has established, can make a decision regarding whether to retain the case or to transfer (or “deflect”) the case to the intermediate court.

In addition to the above recommendations, the panel is also pushing for the creation of a business court.

While there is no imminent crisis with regard to the handling of business cases by West Virginia’s courts, such cases continue to grow more complex. As this trend continues, parties and judges alike will benefit from specific rules and judicial training aimed at handling cases brought under technical business statutes. Moreover, the success of business court pilot programs in other states, South Carolina in particular, warrants an investigation of the potential efficacy of such a system in this state.

Of course, don’t take out word for it. Read the full report below:

West Virginia Independent Commission on Judicial Reform: Final Report

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