THEIR VIEW: A script even Hollywood couldn't write

By The West Virginia Record | Jan 20, 2010


CHARLESTON -- In the movies, when the jury hands down an unjust verdict, the scrappy underdog lawyer — isn't it always either Henry Fonda or Al Pacino? — exclaims with steely resolve: "We're gonna take it all the way to the Supreme Court!"

He does and he wins and in a cheap suit, no less. Vindicated, he descends the courthouse steps and the camera pans to a happy jurisprudential ending.

Films and crime novels have largely formed the popular impression that lawyers can appeal their clients' cases to a higher court when juries and trial court judges get things wrong. (And, let's face it, like the rest of us mortals, they sometimes do.)

The belief is largely true. Henry Fonda's framed client would have the right to have his case reviewed for mistakes in an appellate court not only in make-believe Hollywood but in Maine, Illinois, Kentucky, Mississippi and, in most civil and criminal cases, in every other state —- with the exception of one.

That's right. You guessed it.

You would have a better chance to have your case reviewed for a decision by an NBC studio executive than you would by the West Virginia Supreme Court. I grant you this is a bit of hyperbolic kidding around. But it underscores this point: West Virginia now is the only state in which its appellate court maintains an entirely discretionary docket.

That means that three justices, that is, a majority of our five-member Supreme Court, get to decide which cases to accept for decisions on the merits. To put it another way, West Virginia's judiciary now is the only court system in the United States that gives no appeal of right in any instance.

In West Virginia, not even a criminal defendant convicted of first-degree murder who faces life imprisonment —- a complete deprivation of his liberty — has the right to have his case heard on appeal and to be reviewed on its merits.

When companies investigate West Virginia as a place to do business, one of the first things they look into is our legal system. When they learn that our state does not have an appeal of right, their responses are of a piece: "You've got to be kidding."

No, we're not. Then, the click on the other end of the line. "Hello? Are you there?" No, they're not.

These are not imaginary tales of non-investment or, in one well-known instance, disinvestment. Recall the case of Chesapeake Energy, which abandoned its eastern U.S. headquarters in Charleston specifically because its request for appellate review of a huge punitive damages verdict against the company was denied. (Suggested headline for the sad story: "Chesapeake Energy Gassed: HQ Capital Plans Flame Out.)

Our dubious distinction has been, in a word, unappealing. And it finally has caught the attention of our political decision-makers.

Last year, Gov. Joe Manchin laudably created the Independent Commission on Judicial Reform. Retired U.S. Supreme Court Justice Sandra Day O'Connor served as the honorary chairwoman while Charleston lawyer, Carte Goodwin, ably chaired the distinguished panelists, who made a number of fundamental recommendations. Implementing any one of its proposed reforms would vastly improve our state's legal and judicial systems and align West Virginia with the norms of civil and criminal justice.

But here is one recommendation that really caught my eye: "[T]he Commission respectfully urges that [an appeal of] right be extended to all litigants either through legislative enactment or, if necessary, as part of the development of court rules and processes ..."

To some surprise, Gov. Manchin in last week's State of the State address revealed that the Commission's pointed exhortation might (with emphasis on "might") have done the trick.

"Through their constitutional rule-making authority," Gov. Manchin announced, "the Supreme Court of Appeals will soon issue rules for public comment that are intended to ensure there will be full appellate review by the Court of all final decisions on the merits issued by the circuit courts in West Virginia."

The next day, the Supreme Court confirmed this turn of events, with proposed new rules and public comments to follow in weeks.

What will happen next? Will there finally be more complete justice in West Virginia? This storyline on the fate of a true-blue appeal of right has turned into a real Hollywood cliffhanger.

Sadd, a Charleston lawyer, is the author of "Appealing Changes: A Case for Expanding Appellate Review in West Virginia," a chapter in the recently published book, The Rule of Law: Perspectives on Legal and Judicial Reform in West Virginia.

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