W.Va. chief justice advocates fine-tuning of appellate process

Lawrence Smith Feb. 2, 2010, 4:58pm


CHARLESTON, W.Va. (Legal Newsline) - Though agreeing there's a perceived problem in the way the West Virginia Supreme Court handles appeals, the Court's chief justice said the solution in fixing it is not with an intermediate appellate court.

Chief Justice Robin Jean Davis was the featured speaker during a joint meeting of the West Virginia House and Senate judiciary committees held in the House chamber on Monday. The joint committee asked Davis to provide the Court's opinion on a proposed appellate court between the state's 31 judicial circuits and the Supreme Court.

During her 10-minute presentation, Davis told the committee she was opposed to the idea of an intermediate appellate court. Though she qualified her position as that of her own, Davis said while the opinions of the other four justices "may vary a few degrees, I think you will find we are not too different in our attitudes about an intermediate appellate court."

For Davis, the cost factor is the biggest reason she opposes an intermediate court. A conservative estimate on a proposed court's annual operating budget could run annually between $7 million-$8 million.

Another factor in her opposition, Davis said, is time. Only "special interests" who like the idea of a drawn out appeals process would benefit from an intermediate court.

"Adding another layer of appeals to the process would simply slow the appeal down much further," Davis said.

The perception that the Court does not take all appeals seriously, Davis said, is the driving force behind the call for intermediate court. Since perception is reality, Davis said the court is taking action to make the appeals process more transparent and user-friendly.

Before discussing the Court's plan, Davis said the assertion that all appeals are not fully reviewed "could not be further from the truth." Twice, Davis said all petitions for appeal "are read and reviewed by all five members of our court."

The rules of appellate procedure, which have seen various revisions in the 146 years since they were first written are "obtuse" and only for lawyers and judges, Davis said. The Court, she said, is undertaking a review of the rules to make them less lawyerly.

"Rules once written for legal eyes only must now be comprehensible and understandable for all interested parties and the public at large," Davis said.

Since the review process is ongoing, Davis said she could not discuss in detail the proposed changes.

In keeping with current practice, Davis said that won't mean every party will automatically be granted an audience before the Court.

On the other hand, in breaking with current practice, the Court will start offering brief opinions on why it declined to hear arguments in the appeal.

Though revisions to the appellate rules will be conducted by the Court's staff, the public will have an opportunity to provide its input, Davis said. The final revision of the new appellate rules will only occur when following the public comment period on the proposed rule changes.

Following her presentation, Davis took questions from the members. Del. Cliff Moore, D-McDowell, asked if the changes were the result of a true need for reform or brought about by the pressure of special interest groups.

"I think both to be perfectly honest," Davis said.

She added, in fairness, while the state has gotten a "bad rap" by some civil cases where the jury returned a favorable ruling for the plaintiff with a large award, the appellate rules are "antiquated."

Expressing a concern about "a person's right to address the court system is determined by how much money is available," Del. Danny Wells, D-Kanawha, asked Davis if she would support an intermediate appellate court if cost was not a factor.

She said she would not based on the simple fact that as opposed to years past, the Court's caseload is decreasing, particularly in the area of workers' compensation cases.

According to Davis, the number of workers' compensation cases appealed to the Court last month was 16. Eight years ago, the Court was getting 225 cases a month.

"Why in the world would we want to add another layer of appeals when our work is declining?" Davis asked.

Seizing on Davis' remarks about workers' compensation appeals, Sen. Frank Deem, R-Wood, asked if reforms to workers' compensation laws enacted by the Legislature during the last decade played a factor in reducing the caseload. Her answer was an unequivocal yes.

"I think the Legislature deserves a whole lot of credit on streamlining it because when you folks write the statutes then its not decide which way personally which way we want the cases to go, it's to follow the law," she said.

Finally, Del. Kelly Sobonya, R-Cabell, asked Davis to respond to a policy statement by the West Virginia Chamber of Commerce, one of the chief proponents of an intermediate appellate court.

It says West Virginia is the only state that does not provide an appeal of right in any case, and the Court accepts 27 percent of all civil judgments from the lower courts. Sobonya wondered if that put the state "out of the mainstream" in regards to "judicial fairness."

Referring to her earlier comments that any party in any case under the state Constitution has an absolute right to appeal a case, Davis said the Chamber's statement "is flat-out wrong."

"Somebody needs to re-write the policy statement," she said, "If anybody with the caliber of lawyers that business has and the Chamber has to make such a broad assertion is just almost inexcusable."

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