Intermediate appellate court a 'full step' to legal reform, panel says

By Lawrence Smith | Feb 2, 2012




CHARLESTON - Though a positive step forward, panelists at a legislative forum said revised rules of appellate procedure the state Supreme Court adopted a year ago don't go far enough in providing meaningful legal reform in West Virginia.

Legal reform was the topic of discussion at a legislative breakfast co-hosted by the West Virginia Chapter of the Associated Builders and Contractors and West Virginia Citizens Against Lawsuit Abuse on Tuesday, Jan. 31 at the Charleston Marriott.

The panel, which was moderated by former Justice John F. McCuskey, featured Marc E. Williams, with the Huntington office of Nelson, Mullins, Riley and Scarborough; George E. Carenbauer, a former chairman of the state Democratic Party and member of the Charleston law firm of Steptoe and Johnson; and John R. Merinar Jr., also a member of Steptoe and Johnson in its Clarksburg office.

Among the topics discussed was an intermediate appellate court. Williams applauded the Court in adopting its revised rules in December 2010 which, among other things, clarifies that a defendant has a right to appeal a lower court's decision, and will receive a written opinion by the Court.

However, he said the memorandum opinions which comprised the bulk of the Court's written opinions last year are a half step forward. Because they have no precedent value, Williams said the memorandum opinions still leave many areas of the law murky.

The role of a state supreme court, Williams said, is to develop law with an intermediate appellate court having the responsibility of reviewing mistakes by the trial courts based on decisions rendered by the supreme court. Since decisions by the intermediate appellate court would also have precedential value "it would be a full step forward rather than a half step."

"It is worth it to get it right," Williams said.

The weakness in just revising the appellate rules, Carenbauer said, is that the rules can be changed. An intermediate appellate court helps both civil and criminal defendants in allowing a new set of eyes looking at case outside the jurisdiction where the case was originally heard.

Carenbauer admitted cost is an issue in deciding to formally create an intermediate appellate court. In the bill that passed the state Senate last year creating it, was "bare bones" Carenbauer said in that it stipulated the court would use existing facilities as necessary.

According to Merinar, an area of law where mischief has been created due to the lack of an intermediate appellate court and precedential decisions is trespasser liability. A movement is afoot particularly with revisions to the Restatement of Torts, a treatise that summarizes general principles of tort law, to give make property owners provide the same standard of care to trespassers as guests.

It is not only "a terrible idea for West Virginia" given how rural the state is, but also it turns centuries of common law on its head, Merinar said. Fortunately, he said SB 367, which passed the Senate Wednesday and was referred to the House, places strict limits on trespasser liability without affecting existing statutes and case law dealing with related matters such as attractive nuisances.

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