Bill would set up review of state appellate procedures

CHARLESTON – House Speaker Rick Thompson is calling for a year-long study of the state Supreme Court’s new appellate rules.

Thompson and a group of lawmakers are sponsoring House Concurrent Resolution 44, a bill that aims to analyze recent rules that require the court to provide its reasons for refusing an appeal.

Groups like the American Tort Reform Association, which placed the state No. 2 on its annual Judicial Hellholes report in December, complain that the rules still don’t ensure a right of appeal in the state.

“After lengthy review of the state’s civil justice system by an independent commission, the state Supreme Court enacted significant new appellate rules that ensure a review and written decision on each appeal filed with that court, yet critics outside West Virginia continue to attack our courts, calling them unfair,” Thompson said.

“I would like for the Legislature to thoroughly examine the new appellate rules and their effect on civil procedure.”

Currently, the state Supreme Court handles all appeals and has implemented a rule that requires it to put in writing its decision to refuse to hear an appeal. The state Senate had passed legislation that would have created an intermediate court, but it was defeated in the House Judiciary Committee.

“The bill later failed in the House Judiciary Committee, as Chief Justice Menis Ketchum hoped it would,” the Judicial Hellholes report says. “He continued to reiterate his position, backed by the plaintiffs’ bar, that an intermediate appeals court is unnecessary.

“Tellingly ironic was what the (former) president of the personal injury lawyers’ trade group called this proposal to ensure everyone’s right to a meaningful appeal: A ‘jackass stupid idea.’”

The current president of the state’s trial lawyer group, the West Virginia Association for Justice, said in December that an intermediate appellate court would be a waste of taxpayer money and would delay resolution of lawsuits further.

“It would be unbelievably costly and a waste of resources,” said Scott Blass, an attorney with Wheeling’s Bordas & Bordas. “Just because we’re doing well fiscally and staying appropriately frugal doesn’t mean we need to waste money.”

Other House members who sponsored the bill are: Majority Leader Boggs, D-Braxton; Majority Whip Mike Caputo; D-Marion, Judiciary Chairman Tim Miley, D-Harrison; Finance Chairman Harry Keith White, D-Mingo; Speaker Pro Tem Randy Swartzmiller, D-Hancock; and Delegates Bob Ashley, R-Roane; Kevin Craig, D-Cabell; John Ellem, R-Wood; Tim Manchin, D-Marion; Jim Morgan, D-Cabell; Amanda Pasdon, R-Monongalia; Daniel Poling, D-Wood; Doug Skaff, D-Kanawha; Peggy Smith, D-Lewis; and Josh Stowers, D-Lincoln.

West Virginia Chamber of Commerce President Steve Roberts joined Thompson at the announcement.

“This is the kind of initiative West Virginia businesses want to see coming from our Legislature,” Roberts said. “Our members will be encouraged that lawmakers are working to ensure our state’s court system treats everyone fairly. I hope that this measure receives further bipartisan support as it moves through the legislative process.”

Legal reform group Citizens Against Lawsuit Abuse says its recent poll showed 57 percent of those polled supported the creation of an intermediate appellate court.

"West Virginia is the only state in the nation that does not have an automatic right of appeal, but the personal injury lawyer-led House of Delegates and their supporters have come together to say the state needs to spend legislators' time and taxpayers' dimes on continued study of the need for an intermediate appellate court in West Virginia," CALA executive director Greg Thomas said.

"Neither WV CALA's 30,000 supporters nor the voting public at large want to see the appellate court and right of appeal deferred to a study commission for a year's time.

"The personal injury lawsuit industry loves to have a state where there is no automatic appeal - it puts a gun to the head of defendants to 'settle or else gamble on the decision of a lower court' on what may be very complicated legal issues , and it  puts a fad wad of cash in the personal injury lawyers' pockets."

Jennifer Bundy, the public information officer of the state Supreme Court, said Thomas' statement is inaccurate.

She says the state, even now, has always had an automatic right of appeal because any case can be appealed. The 2010 rules merely changed the process to "appeal by permission" to an "appeal by right," she said.

"Appeal by permission" means the court can refuse to review and issue an opinion, while "appeal by right" means the court issues written decisions in every properly prepared appeal.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.