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Chief justice's comments spark outcry

By John O'Brien | Feb 3, 2010


CHARLESTON, W.Va. (Legal Newsline) - Groups are reacting to West Virginia Supreme Court Chief Justice Robin Davis' recently commenting that the state has no need for an intermediate appellate court.

The idea was encouraged in a report released last year by the Independent Commission on Judicial Reform, a group created by Gov. Joe Manchin that featured former U.S. Supreme Court Justice Sandra Day O'Connor.

Davis told the state Senate and House judiciary committees Monday that adding another appellate level would slow the appeals process further. She also cited cost as a factor.

"(T)o those who argue that West Virginia can't afford to establish and operate an intermediate level appeals court, I'd politely respond that the state can't afford not to do so," said Tiger Joyce, president of the American Tort Reform Association.

"Establishing such a court would send an unmistakable signal to business leaders that the state will give them a fair shake. Such a court would more than pay for itself in fairly short order as more companies, large and small, expanded in or relocated to the Mountain State.

"Tax revenues would grow and state policymakers would then have the wherewithal to make other wise investments in the future of the state's workers and families."

The ATRA routinely picks the entire state as a "Judicial Hellhole" in its annual report, giving it the top spot in 2008.

The West Virginia Chamber of Commerce's policy statement 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.

When asked during her testimony about that, Davis referred to her earlier comments that any party in any case under the state Constitution has an absolute right to appeal a case, and that 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."

West Virginia Citizens Against Lawsuit Abuse executive director Richie Heath said there is a significant difference between the right to file an appeal and the right to file appeal on the merits.

The Court may accept appeals of circuit court decisions, or decline them without explanation.

Court Clerk Rory Clark wrote back to Roberts Wednesday, saying that proposed new court rules will allow the Court to "decide every case on the merits after considering the legal positions of the parties and completely reviewing the record."

"Your letter underscores the deep misunderstanding that members of the public have about proceedings in this Court," Clark added.

"To reiterate what the Chief Justice stated in the Legislative chamber: under current law, every West Virginia litigant has the absolute right to file an appeal from a final decision of the circuit courts, and from administrative tribunals as provided by law. To the extent that any person or group states otherwise, they are, as the Chief Justice said, flat-out wrong.

"Both the Governor and the Chief Justice have publicly stated that the revision of the appellate rules under consideration by the Court will contain procedures to ensure that all properly filed appeals from decisions of the circuit courts will be fully reviewed, including decisions on the merits, in every single case.

"Of course, this does not mean that every appeal will result in an oral argument, or will result in an opinion that makes precedent statewide. No appellate court in the nation permits oral argument in every case."

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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