CHARLESTON – A new report from the clerk of the state Supreme Court stresses that the Justices have written a decision in every properly prepared appeal since rules changes took effect five years ago.
In his report, Rory Perry, says 2011’s Revised Rules of Appellate Procedure allow all litigants to have their appeals reviewed on the merits.
“Appeal by right means that each properly prepared appeal is required to be reviewed on the merits,” Perry writes in the report, which can be found online. “Before 2011, all appeals were discretionary; they were reviewed, but about three-fourths were refused with no explanation and no decision on the merits.
“As a result of perceived flaws in this process, the Supreme Court undertook a study of how the appeal process could be improved.”
That meant conducting education seminars across the state and reviewing public comments by dozens of interested lawyers and groups. That led to the court modernizing the rules for consideration of appeals.
“Cases are now fully briefed before being considered,” Perry writes in his report. “Litigants agree on the record and prepare it for the court to review.”
Now, Perry says, specific criteria are established for cases to be argued. Most importantly, he says, the court must issue a decision on the merits in all properly prepared appeals.
Perry’s report stands in contrast to recent press releases from West Virginia Citizens Against Lawsuit Abuse that say the state doesn’t not have an appeal of right.
“West Virginia continues to be the only state in the country that doesn’t provide an appeal of right for either civil or criminal litigants,” WV CALA Executive Director Roman Stauffer said in a recent release. “And our state is one of only nine with no intermediate court of appeals.”
Incoming Chief Justice Menis Ketchum disagrees with WV CALA’s comment.
“The appeal by right is guaranteed by law in West Virginia,” Ketchum says. “This (Perry’s) report confirms we write a written decision on the merits in every appeal in a timely manner.”
Perry’s report shows that from 2006 to 2010, 12,500 appeals were refused. Since then, none have been refused. In turn, the number of decisions on merit have increased from 670 from 2006 to 2010 to 5,003 since then.
“All of the decisions on the merits issued by the court establish legal precedent,” Perry writes. “Signed opinions that establish or review important points of law are eventually published and distributed in bound volumes throughout the state. Memorandum decisions are issued in cases that address no new point of law. …
“Memorandum decisions address all properly developed assignments of error, and are not an indicator that the court has given short shrift to an appeal. In fact, in many routine cases, the litigants themselves request that the court issue a memorandum decision rather than a signed opinion.”
Other points in Perry’s report include:
* The Supreme Court’s caseload fell by more than half in the last 15 years, largely due to legislative changes in the administration of workers’ compensation cases. In 2014, there were only 239 civil appeals.
* Most cases are decided within six to nine months of when the case is fully briefed and mature for the Supreme Court to decide. The clearance rate for pending appeals in 2014 was 120 percent overall.
* Almost half – 46 percent – of appeals that reached the Supreme Court in 2014 already had been reviewed by another tribunal. Appeals from decisions of state agencies are first reviewed by appellate boards and circuit courts before they are appealed to the Supreme Court.
* About 40 percent of appeals are handled by court-appointed counsel paid for by the state.
* Appeals by self-represented litigants have increased since 2011, from less than 1 percent to 14.5 percent.
Perry’s report also discusses how “many appeals are poorly prepared.”
“Briefs that appear to be pieced together in a hurried manner by cutting and pasting memoranda previously submitted to a circuit court, the Workers' Compensation Board of Review, or some other tribunal that does not have the same briefing requirements as this Court,” he writes, mentioning issues including a lack of citation of authority, failure to structure an argument applying applicable law, disorganized appendices and briefs missing a “concise, accurate and clear condensation of the argument made in the body of the brief.”
“These deficiencies are not mere procedural niceties,” Perry writes. “They run to the very core of the court’s ability to review an appeal. The Administrative Order cautioned that deficient appeals would be subject to sanctions and possible dismissal.
He said many litigants do not meet deadlines even though those are laid down by a scheduling order early in the case.
“In 2014, for example, there were 299 motions for extension of time filed,” Perry writes. “If there is good cause shown, the court will often grant an extension, which requires issuing an amended scheduling order. … Despite all of this effort, the court continues to decide cases that are poorly developed.”