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Dec 29, 2021
File Photo Current Ohio County Commissioner Don Nickerson has been appointed as one of three judges on West Virginia’s new Intermediate Court of Appeals.
CHARLESTON – Current Ohio County Commissioner Don Nickerson is moving to a new role – one of the first three judges of the new West Virginia Intermediate Court of Appeals.
Nickerson, Huntington attorney Thomas Scarr and former Kanawha County circuit court judge Dan Greear were appointed Tuesday as the West Virginia Supreme Court of Appeals gets the court ready by July.
Gov. Jim Justice announced the appointments in a ceremony Tuesday morning at the Capitol.
Scarr’s term lasts until 2024, while Greear’s ends in 2026, and Nickerson’s ends in 2028. Future ICA judges will be elected.
“Now, we are appointing an Intermediate Court of Appeals, an incredible step that reflects the values of West Virginians,” Justice said. “We want goodness for West Virginia, and this is another step where we make those moves.”
While the creation of an intermediate court has been recommended and talked about for more than 15 years, Justice first proposed creating the court in his first term.
“This is a historic day in West Virginia, without any question,” Justice said.
“But historic doesn’t mean anything if you didn’t get it right. I think we got it right. I’m really, really proud.”
In addition to his work as an Ohio County commissioner, Nickerson is an attorney at Spillman Thomas & Battle. He previously served as a vice president and trust officer for both WesBanco Bank and United Bank Inc., and has been a Wheeling Municipal Court judge.
He said the idea of being one of the first judges on this new court was “very exciting,” and something he had wanted to do for a long time.
“When I was in law school, I worked for a federal court of appeals judge,” Nickerson said. “So I have sort of a flavor of what an appeals court is like.
“I’ve wanted to do it ever since then. I’ve always liked the academic side of the law, which is what an appeals court judge deals with.”
Nickerson served as a Wheeling municipal court judge from 1999 until 2019, when he was sworn in as commissioner.
“But I wanted to move up in the court system and deal with the academic side of the law — that is what appeals court judges do,” he said.
Scarr is an attorney with the Jenkins Fenstermaker law firm with offices in Huntington and Clarksburg. His expertise is in the areas of civil litigation, labor and employment law, and state and federal white collar criminal defense.
Greear is a former circuit court judge for the 13th Judicial Circuit in Kanawha County. The chief of staff to former House Speaker and current state Supreme Court Justice Tim Armstead, Greear was appointed to the bench by Justice in 2019 to fill a vacancy due to the retirement of Judge James Stucky. He ran for election to the seat but was defeated by attorney Tera Salango in 2020.
Greear returned to the House of Delegates as counsel to House Speaker Roger Hanshaw, R-Clay. Greear was also an unsuccessful Republican candidate for state Attorney General in 2008.
The West Virginia Supreme Court of Appeals released a statement Tuesday afternoon welcoming the new judges.
“The Supreme Court welcomes Gov. Justices’ appointments to the new Intermediate Court of Appeals and congratulates each of these well-qualified individuals on being selected,” said Chief Justice Evan Jenkins. “We are committed to working together to improve our justice system.”
Justice was presented with three recommendations for each of the three seats on the new court last week by the Judicial Vacancy Advisory Commission, an eight-member panel consisting of attorneys and members of the public. The JVAC narrowed the recommendations from 29 applicants during the first week of December.
The ICA will hear noncriminal appeals of circuit court cases, family court cases and guardianships and conservatorships, appeals of administrative law judge decisions and final orders and decisions by the state Health Care Authority. The intermediate court also replaces the Workers’ Compensation Office of Administrative Judges with a Workers’ Compensation Board of Review, from where decisions can be appealed to the intermediate court.
The Legislature created the court with Senate Bill 275 in April after years of attempts. The new court is meant to help take the load off of the Supreme Court and allow the justices to focus on precedent-setting legal cases. The Supreme Court will still have the ability to seek jurisdiction over civil cases appealed to the intermediate court. Parties in cases would also be able to appeal to the Supreme Court, which could hear cases on its own discretion.
The American Tort Reform Foundation, publisher of the annual Judicial Hellholes list, removed West Virginia from that category and from its watchlist after West Virginia created the ICA. West Virginia was one of nine states without an intermediate appeals court.
The Supreme Court, as administrator of all circuit court judges, family court judges and magistrates, has been working to get the ICA ready for its July 1, 2022, start date. Jenkins created an advisory council for the ICA in August to help bring together multiple parts of the legal system in the planning for the new court.
The advisory council is working on finding physical locations for the ICA, using technology for virtual hearings, the new court’s rules and procedures and recommendations for the Legislature to consider in 2022.
Staff Writer Joselyn King contributed to this report.
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