In 2008, the West Virginia Supreme Court refused to hear appeals
in the Tawney and Wheeling Pitt cases, cases that
garnered national headlines as two of the five largest jury
verdicts in the United States that year. The Court's
refusal to consider these appeals without any explanation shocked
many, and it highlights 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 the Court's refusal to consider
these appeals led Governor Manchin to appoint an "Independent
Commission on Judicial Reform" to review West Virginia's
court system. The Commission found, among other things, that
West Virginia needs an intermediate court of appeals. The
Commission recognized that our Supreme Court of Appeals is already
one of the busiest in the Nation, and an intermediate appellate
court would lighten its workload. It also would serve two
other important purposes. It would ensure that
litigants are afforded the opportunity to have their cases
substantively reviewed on appeal, thereby bolstering public
confidence in our judicial system, and the decisions of that court
also would 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
proposing revisions to the procedural rules governing
appeals. These proposed 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 recently noted, a court
speaks only through its opinions, and it is these opinions that
provide the bases for a court's decision and establish the
precedent that individuals and businesses can rely upon for
guidance in conducting their affairs in West Virginia.
Under the proposed rules, "opinions" issued by the Court
fulfill both of these functions. Such would not be the case,
however, with respect to cases disposed of by "memorandum
decisions." These decisions would have "no
precedential value" and could not be cited as legal precedent
anywhere. Indeed, they are not to be
published in the West Virginia Reports. Once rendered, it
would be as if they never happened and those living and working in
West Virginia would be unable to rely on those decisions, even if
made of them, for guidance in terms of conforming their activities
to the law of the state. In other words, the rationale
contained in memorandum decisions cannot be cited, relied upon, or
applied by any other individuals or set of facts and would have no
binding effect on any future court, including the Supreme Court
itself, if called upon to rule upon the same or similar set of
facts.
What is the practical effect then of these proposed
rules? With deference to the obvious effort that has
been devoted to drafting these rules, their practical effect
appears to be minimal. In cases where the Court is
disinclined to render an "opinion", rather than denying a
petition without explanation, the Court may simply issue a
memorandum decision that says no more than that it "finds no
substantial question of law presented by the appeal and does not
disagree with the decision of the lower tribunal."
Such a decision would provide little, if any, additional
insight into the reasoning of the Court beyond that afforded by the
current procedure.
West Virginia has long had a reputation as an unfavorable forum for
corporate defendants. Whether deserved or not, the refusal of
our highest court to meaningfully consider extraordinary judgments
such as those rendered in the Tawney and Wheeling
Pitt cases only serves to deepen that perception.
West Virginia's businesses have no desire to wait until a
lawsuit is brought or a verdict rendered to have questions of law
governing their conduct answered. To the extent there are
ambiguities in our laws, our court system should interpret these
laws in a way that clearly establishes parameters for future
conduct and publish them. In order to do so, given the
current workload of our Supreme Court, the only way that is likely
to occur is through the establishment of an intermediate appellate
court to which litigants have an automatic right of appeal.
Our Supreme Court can then focus its resources on addressing those
cases which, after having been reviewed by the appellate court,
warrant additional consideration because of the scope of their
application or their importance on a statewide basis.
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