New appellate rules unveiled in West Virginia

Kyla Asbury May 18, 2010, 9:00am


CHARLESTON, W.Va. (Legal Newsline) - The West Virginia Supreme Court released a set of revised rules for appellate procedure Monday for public comment.

Chief Justice Robin Jean Davis said the revised rules modernize and comprehensively change the appellate process in order to provide a decision on the merits in every appeal and ensure greater transparency at every step.

Of the now 43 rules, only two previous rules remain unchanged, 18 rules are new and many of the previous rules have been substantially rewritten, Davis said.

"The court spent months discussing the revised rules," Davis said. "The reason we wanted to revise the rules was because the current rules were outdated, they needed to be more cohesive and clear and they needed to be much more transparent."

Davis said the rules of appellate procedure were written in 1864 and have been amended and modified several times, but the last major change was in 1974.

"The rules did not conform to modern legal practice," Davis said. "Times have changed and the rules needed to be fixed."

Rory L. Perry II, clerk of court, said revising the rules has been a long and detailed process.

"The revised rules require a record that is more exacting and more detailed and requires a response to be filed in every appeal from circuit court before the Court will decide the issues in the case," Davis said.

Perry said one major change will require the party that files an appeal to be responsible for preparing a paginated and indexed record for appeal. Only material relevant and necessary for the Court to decide a case should be part of the appellate record.

Under the revised rules, the current motion docket will be eliminated and instead, the Court will have two separate argument dockets that are under either Rule 19 or Rule 20, Perry said.

"The revised rules provide for the court to issue a full written opinion in every case in assigned to a Rule 20 docket, which is similar to the current argument docket" Perry said. "Under the revised rules, the cases will be more carefully screened before reaching that stage."

Under the revised rules for cases under the Rule 19 docket, the court can now issue a memorandum decision, issue an opinion or refer the cases to the Rule 20 docket for another argument and full opinion, or issue an appropriate order, Perry said.

"We've made an effort as much as possible to make the revised rules more readable so they are more accessible to the general public," Perry said.

Letitia Chafin, the president of the West Virginia State Bar, said the revised rules will hopefully make things more understandable for people.

"Before, the rules were not clear to most people and concerns were raised by different groups," Chafin said. "Although people were being heard before, the revised rules will hopefully give them more confidence that they are being heard."

Chafin said everyone wants to know they are being heard and the revised rules will give a clear understanding to people.

"I'm impressed with the new rules because they are more in line with appellate courts," Chafin said. "It's a big change, but it's a welcomed change that is for the best."

New rules include Rule 3, which involves attorneys; Rule 4, which involves unrepresented parties; Rule 5, which involves appeals from circuit court; Rule 9, which involves transcripts; Rule 10, which involves briefs; Rule 11, which involves abuse and neglect appeals; Rule 14, which involves public service commission appeals; Rule 15, which involves human rights commission appeals; Rule 18, which involves the argument calendar; Rules 19 and 20, which involve the oral argument; Rule 21, which involves memorandum decisions; Rule 22, which involves opinions of the court; Rule 35, which involves docketing and filing in disciplinary cases; Rule 36, which involves consideration and disposition of disciplinary cases; Rule 38, which involves general rule on form and filing of documents; Rule 40, which involves public access to case records and confidentiality; and Rule 43, which involves definitions and rules of construction.

Perry will conduct nine more seminars on the revised rules of appellate procedure around the state. The seminars are free and open to the public. Attorneys who attend are eligible to receive 1.8 CLEs in office management and ethics.

The nine other seminars will be held on May 18 from 3:30 until 5 p.m. at the Ohio County Public Library auditorium in Wheeling; May 19 from 3:30 until 5 p.m. at the Fayette County Courthouse in Fayetteville; May 20 from 10:30 a.m. until noon at the Judge Black Judicial Annex in the Fort Boreman Room in Parkersburg; May 21 from 11 a.m. until 12:30 p.m. at the Upshur County Courthouse in Buckhannon; May 24 from 10:30 a.m. until noon at the Chief Logan State Park Conference Center in Logan; May 25 from 11 a.m. until 12:30 p.m. at the West Virginia University College of Law in the Marlyn E. Lugar Courtroom in Morgantown; May 26 from 1 until 2:30 p.m. at the South Branch Inn in Moorefield; May 27 from 2 until 3:30 p.m. at the Dunn Building in the County Commission Hearing Room in Martinsburg; and June 3 from 10:30 a.m. until noon at the Pullman Plaza Hotel in Huntington.

Comments on the revised rules must be in writing and received by the Supreme Court by July 19.

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