THEIR VIEW: State Supreme Court promises better appeals process

By The West Virginia Record | Feb 12, 2010


CHARLESTON -- State Supreme Court Justice Menis Ketchum says when everyone else was watching the Super Bowl on Sunday, he was poring over legal documents.

"Hell, I read briefs," the outspoken justice told to the House Finance Committee Tuesday. "That's what I like to do."

Ketchum's vent was prompted by continued lawmaker questioning concerning how the state Supreme Court is going to change its rules to improve the appeal process. Court critics -- the state Chamber of Commerce and some lawyers -- contend it's too hard to get a verdict reviewed.

The debate started several years ago when the high court refused the appeal of a $400 million verdict against Chesapeake Energy and NiSource. Business leaders cited that decision and the inability to have the verdict thoroughly reviewed as evidence of the judicial system's hostility toward business.

But the complaints aren't just from business. There are attorneys in West Virginia who believe the state needs an intermediate appellate court that would correct circuit court errors and provide an automatic review of every verdict.

The current members of the Supreme Court disagree and they chafe at the suggestion of a new level of courts. Ketchum said if the state budgeted $8 million annually for a new appellate court, "it'll be $15 million by the time the bureaucrats get done."

But if the five state Supreme Court justices want to avoid being forced to divide up their considerable power with another court they must overhaul the appeal process. They are working on that now—Ketchum said they're in their fifth draft—and the new rules should be ready for review by spring.

Chief Justice Robin Davis has already spelled out some of the reforms. The biggest change requires the justices to provide a detailed explanation of why a request for an appeal is denied.

Currently, lawyers are only told only that their petition is denied; no reason is given. That limited response creates the impression of an arbitrary decision. It sounds like something out of "The Wizard of Oz" where those making the request of the Great and Powerful are not permitted to look behind the curtain.

The high court says the new rules are going to pull that curtain away creating greater transparency with the appeal process. That means there will be a record of what the justices insist they already do -- review each petition thoroughly.

The rule changes will also put more pressure on the lawyers petitioning for a full appeal before the high court. I'm told that some petitions are little more than legal versions of a request for a "do-over" because their side lost.

Under the new rules lawyers are going to have to submit sharper, more legally-sound arguments. Sloppy work will get called out in more detailed responses from the justices.

West Virginians need confidence that the justice system is fair and that when mistakes are made there are legitimate and transparent procedures to correct them. Ketchum claimed Tuesday that the five justices "can take every appeal, we can study them and we can do it standing on our heads."

No need for the gymnastics, judge, but we'll hold you to the rest of the promise for a better appeals system.

Kercheval is host of TalkLine, broadcast by the MetroNews Statewide Radio Network from 10 a.m. to noon Monday through Friday.

More News

The Record Network