THEIR VIEW: W.Va. appeals process too restrictive

By JOHN YODER

HARPERS FERRY -- Our state currently has one of the most restrictive appeals processes in the nation. It is one of only 10 states in the nation without an intermediate court of appeals.

West Virginians do not have the right to an automatic appeal of potential legal errors made at the trial court level. Instead of an automatic right to appeal, those who seek to appeal decisions of trial judges have to request permission of the Supreme Court through what is known as a writ of certiorari. The Supreme Court then decides whether to allow the appeal to be filed or not.

Richie Heath, executive director of West Virginia Citizens Against Lawsuit Abuse, recently wrote that the "state's 100 percent discretionary appeals process has been rejected by every other state in the nation, and has resulted in the loss of hundreds of jobs and millions of dollars in investment for West Virginia."

An example cited by him as to how the lack of an intermediate court of appeals hurts the business climate involves Chesapeake Energy. When Chesapeake halted construction on a proposed $40 million regional headquarters in Charleston, it cited West Virginia's lack of an automatic right of appeal as the main reason for its pull-out.

As I pointed out in last month's column, the U.S. Chamber of Commerce has now rated West Virginia's court system for four years in a row as the most anti-business court system of all the states. Not only has it been rated dead last in the Chamber's rating, but West Virginia has frequently been criticized as a judicial hell-hole. The business community in West Virginia supports an intermediate court as a way of improving the business climate in West Virginia.

In my opinion, the devil is in the details as to whether a court of appeals will help or hurt. If we only have a single court of appeals for the whole state without divisions, and if judges for the intermediate court are elected in the same partisan political process as the current Supreme Court justices, it would only add another layer of bureaucracy to the process. The intermediate court of appeals would be just as busy as the Supreme Court, and one would still have to go to Charleston for a final appeal. It would take longer to get to the highest court, since one would need to go through the court of appeals process to get to the high court.

I personally favor an intermediate court of appeals consisting of three divisions, with headquarters of the three divisions located in Huntington, Morgantown, and Martinsburg. With judges elected only from each of the three divisions rather from the state at large, judicial races for each region would cover less territory and therefore be less expensive. In addition, the judges elected to each region would more closely reflect the characteristics and needs of that region.

With three regions, the appeals process would be quicker and less expensive. The West Virginia Supreme Court could select its cases, as the U.S. Supreme Court currently does, based upon divisions disagreeing with each other. If the Martinsburg division, for example disagreed with the Morgantown division, the Supreme Court would most likely want to hear conflicting cases to resolve the conflict between the two divisions, to provide uniformity. On the other hand, if all three divisions ruled the same way on similar cases, it would be a good indication to the Supreme Court that there is no need to take the issue up on appeal, since there would be a consensus.

The West Virginia Supreme Court is addressing this issue by issuing new rules to handle appeals, similar to the rules for appeals issued by the United States Court of Appeals for the Fourth Circuit. While I agree that these rule changes are long overdue, I do not see how they are going to make judicial decisions more predictable, and therefore more business friendly, as long as judges and justices are still elected in partisan political races.

A very legitimate argument against an intermediate court of appeals, and especially one with divisions as I have proposed, is that it will cost taxpayers more money. The alternative, however, may be that we continue to lose businesses and jobs to other states, and when we lose businesses and jobs to other states, we lose tax revenue that may outweigh the cost by many times.

In order to fully consider this issue, it seems to me that we need a serious cost-benefit analysis, to determine whether the long-term benefits of creating an intermediate court of appeals with divisions would outweigh the costs. Only then will we be able to make a knowledgeable and informed decision. In any event, we need to continue trying to find ways to improve our courts to create a better climate for businesses that create jobs and provide tax revenue, rather than sweeping the dirt under the rug.

Yoder, a Republican, is a judge in the state's 23rd Judicial Circuit, and he is running for the state Supreme Court this fall against Democrat Tom McHugh.

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