In opinion, Loughry says West Virginia is an 'appeal by right' state

By Chris Dickerson | Feb 10, 2017

CHARLESTON – The Chief Justice of the West Virginia Supreme Court says the state is “an appeal by right jurisdiction.”

In a Feb. 8 opinion about the involuntary hospitalization of a Kanawha County woman, Chief Justice Allen Loughry used a case point to stress that “all properly perfected appeals are reviewed by the (West Virginia Supreme) Court and result in a written decision on the merits of each appeal.”

In the opinion, Loughry writes that the petitioner had discounted the Supreme Court’s ruling in a previous case, relying on a case styled Hammons v. West Virginia Office of the Insurance Commissioner. In that ruling, the majority of the Court wrote that “given the abbreviated factual and legal discussion set forth in this court’s memorandum decisions, we cannot say that such prior decisions have fully considered and analyzed the applicable statutory and jurisprudential law as thoroughly and thoughtfully as does our extensive discussion of the issue herein.”

In the Hammons case, the majority’s comments addressed a group of workers’ compensation memorandum decisions, but Loughry said this case was a chance to further explain the matter.

“We take this opportunity to reassure the legal community and the public that ‘there is no question that memorandum decisions are pronouncements on the merits that fully comply with the constitutional requirements to address every point fairly arising upon the record and to state the reasons for a decision concisely in writing,’” he wrote, quoting a 2014 case styled State v. McKinley before also quoting Court Clerk Rory Perry’s 2015 caseload report. “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 2010, the state Supreme Court amended its Rules of Appellate Procedure to include the “historic switch from appeals by permission to appeals by right.”

“To be clear, West Virginia is an appeal by right jurisdiction, which means that all properly perfected appeals are reviewed by the Court and result in a written decision on the merits in each appeal,” Loughry again wrote. “The National Center for State Courts, an independent, nonprofit court improvement organization providing research, education, and information services, recognizes West Virginia as an appeal by right state.

“Under our amended rules, ‘every properly perfected appeal ... result[s] in a written decision on the merits.’ Because appeal by right greatly increased the number of written decisions issued by this court, we created memorandum decisions through Rule 21 of our revised appellate rules.”

Loughry says the court began issuing memorandum decisions in December 2010 to “reinforce the fact that every appeal will receive a decision on the merits that sets forth the considered judgment of the court.”

“Memorandum decisions ‘are issued in cases that address no new point of law’ and in three primary circumstances,” Loughry notes.

Those are when:

* The court finds no substantial question of law and the court does not disagree with the decision of the lower court as to the question of law;

* Upon consideration of the applicable standard of review and the record presented, the court finds no prejudicial error; or

* Other just cause exists for summary affirmance.

Loughry writes that a review of the court’s memorandum decisions issued during the last six years shows they are “distinguishable from opinions in that they address cases in which there is no substantial question of law or no prejudicial error, and are almost always used to affirm a lower court’s decision. … Indeed, we reaffirm the precedential value of our memorandum decisions, as discussed below.

He says the court’s decisions address “every point fairly arising upon the record” and are “binding authority upon any court” if concurred in by a majority of the justices. He also says memorandum decisions “may be cited as legal authority, and are legal precedent.”

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