As seen in the September 17th issue of The
State Journal.
In 2008, the West Virginia Supreme Court refused to hear appeals in
the Tawney and Wheeling Pitts cases. Those two
cases involved awards exceeding a half a billion dollars
collectively and represented two of the five largest judgments in
the United States that year. This action by the Court, which was
taken without explanation, shocked many. It also highlighted the
fact that, unlike virtually every other state, there is no
automatic right to have a judgment in a civil or criminal case
substantively reviewed by an appellate court in West
Virginia.
The criticism that followed led Governor Manchin to appoint an
"Independent Commission on Judicial Reform" to review our
court system. Among that Commission's findings was that this
State needed an intermediate court of appeal. The Commission
recognized that our Supreme Court is already one of the busiest in
the Nation. An intermediate appellate court would lessen that
workload. It would also serve two other important purposes:
- ensure that litigants were afforded the opportunity to have their cases substantively reviewed on appeal, thereby bolstering public confidence in our judicial system.
- establish legal precedent that would, in turn, provide certainty regarding how our laws would be applied going forward.
Surprisingly, the Supreme Court opposed legislative efforts to
create this court. It has, instead, attempted to address the
concerns that led to the Commission's recommendation by means
of changes in its procedural rules governing appeals. These
changes, according to the Court, will ensure that every appeal is
completely and carefully reviewed by the entire Court and disposed
of in a decision on the merits.
Unfortunately, the proposed rules, in the opinion of many, fall
short. While they do provide that each appeal will be disposed of
either by means of a "full opinion" or a "memorandum
decision," the distinction between the two is critical. As
Chief Justice Davis has recently noted, a court speaks only through
its opinions. In terms of appellate courts, those opinions again
serve two core functions. They explain why the Court has decided to
appeal as it has and they establish precedent that can be relied
upon in the future.
Under the proposed rules, "opinions" issued by the Court
fulfill both those core functions. However, not so in cases
disposed of by "memorandum decision." Those decisions
will have "no precedential value" and cannot be cited as
legal precedent anywhere. Indeed, they are not to
be published in the West Virginia Reports.
Why This Distinction?
The commentary accompanying the proposed rules does not say. Given the Court's workload, however, one can surmise that it is largely a function of resources. The proposed rules will triple the number of decisions by the Court. If each of those decisions were to establish legal precedent, the resources needed to carefully craft those decisions would far exceed those available.
What Then is the Practical Effect of These New Rules?
With deference to the obvious hard work that has gone into the
drafting of these rules, their practical effect appears to be
minimal. In cases where the Court is not disposed to render an
"opinion", rather than denying a petition without
explanation, the Court may issue a memorandum decision that says no
more than that it "finds no substantial question of law and
does not disagree with the decision of the lower tribunal."
Such a decision will provide little insight as to the reasoning of
the Court beyond that afforded by the current procedure. Moreover,
such summary decisions will offer absolutely no guidance as to how
the law will be applied to similar cases in the future.
The only way to address the concerns that led the Governor's
Commission to recommend the creation of an appellate court, is to
follow that recommendation. This would provide a system of justice
similar to those in 40 of our 50 sister states as well as that
established at the federal level. The opinions of that court would
serve to enhance the body of law that may be looked to for
precedence while freeing up the Supreme Court to consider cases
that involve constitutional or substantive policy issues of
statewide significance. While there are costs associated with
establishing such a court, those costs, when considered in the
context of the larger state budget, are not insurmountable.
Moreover, when the benefits of such a court are factored in, those
costs pale by comparison.
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