Miscellaneous

Making West Virginia More Appealing

By Anne Skove, Esq.

If you're in Texas, you probably think every state has two courts of last resort. If you're in New York (or watch way too much Law & Order) you might think that courts of general jurisdiction everywhere are called "supreme." If you're in West Virginia, you might think the intermediate court of appeals and court of last resort are one and the same (bka Supreme Court of Appeals), but you could soon be mistaken.

A new initiative to establish an intermediate court of appeals in West Virginia is underway. Proponents (no peeking to the end of this post to see who they are, take a wild stab!) say the move would be good for business because it would give corporate defendants (of which there are many) an automatic appeal to the state's court of last resort. Unlike most states without an intermediate court of appeal, West Virginia's court of last resort has full discretion to accept or reject appeals.

While we believe that automatic appeals are good in that they are, as defense counsel claim, less subjective, we're not quite as sure defendants would fare better under the proposed system. Wishful thinking? We have never seen evidence for or against this idea.

Funding seems to be the primary con. ATRA argues that West Virginia's state constitution provides for an intermediate appellate court, but citizens have so far refused to fund it. No argument from anyone that the change would represent a large undertaking and major structural change, affecting the entire court system.

The West Virginia Supreme Court of Appeals claims to be "the busiest appellate court of its type in the United States." Indeed, 3031 petitions were filed there in 2005, with %16 accepted. It's hard to tell how those numbers stack up when compared to differently-situated states. West Virginia's "type" consists of itself only. Just a few other state courts of last resort (California, Louisiana, Michigan, Puerto Rico, New Hampshire, and Virginia) allow discretionary appeals.

According to the National Center for State Courts, "West Virginia's large growth [in appellate caseload] between 2004 and 2005 is largely due to a rise in the number of workers' compensation petitions, the possible result of administrative transitions in the decision-making body at the agency level." (Examining the Work of State Courts, 2006, p. 70.)

What do intermediate appellate courts (or IACs, as the National Center likes to call them) do for courts of last resort (or COLRs)? "IACs may issue more opinions because they are often the only court to which the aggrieved party has a right of appeal. Moreover, because an IAC's opinion may later be examined by a COLR, judges in IACs are more inclined to explain their interpretation of the law for later review by the higher court." (Examining, p. 72.)

See the wholly ATRA-authored No Appeal? No Justice: Appellate Court Is Key, Sherman Joyce, State Journal (June 5, 2008). Check out New Hampshire's own explanation of its mandatory appeals process, because this article does not quite get it right.

See also W.Va. Appeals Refusals May Reveal Judicial Gap, AP/Herald-Dispatch (June 1, 2008), which notes (surprise surprise!) that the state Chamber of Commerce is for the new court. Taking a more fair and balanced approach, this article cites the president of the West Virginia Association for Justice as well, who claims that the unanimous refusals were legitimate.

From the blogosphere, see the thought-provoking Should West Virginia Have An Intermediate Appellate System?, Law, Politics, and Miscellaneous Nonsense (June 4, 2008).

Full post as published by court-o-rama.org on June 05, 2008 (boomark / email).