Legal groups disagree about Loughry's 'appeal by right' statement

By Chris Dickerson | Feb 15, 2017

CHARLESTON – Two groups that frequently butt heads are doing it again, this time over a recent state Supreme Court opinion saying West Virginia 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.”

For years, West Virginia Citizens Against Lawsuit Abuse has said the state needs an intermediate court of appeals. Earlier this month, current WV CALA Executive Director Roman Stauffer said the state doesn’t have the guaranteed right of appeal.

“West Virginians realize that we’re an outlier in this area (not having an intermediate court of appeals) – one of the only states without a guaranteed right of appeal,” he said. “The demand for an intermediate court of appeals continues to grow.”

When asked about Loughry’s opinion, Stauffer again mentioned the lack of that intermediate court.

“We appreciate the guidance from Chief Justice Loughry on the utilization of memorandum decisions by the Supreme Court of Appeals,” he said. “This memorandum decision is the second guidance about the court’s use and weight of memorandum decision in two years. There is no doubt that West Virginia continues to be one of nine states without an intermediate level court, making us out of line with a majority of other states.”

However, the president of a statewide group for trial lawyers agreed with Loughry’s opinion.

“As Chief Justice Loughry stated, appeal by right has existed in West Virginia at least since the new appellate rules were adopted in 2010,” Jane E. Peak, president of the West Virginia Association for Justice, told The West Virginia Record. “This fact has been verified by the National Center for State Courts' Court Statistics Project as well.

“For Citizens Against Lawsuit Abuse and others to continue to claim that appeal by right doesn't exist is just plain wrong. Just because all appeals are not decided in favor of the party CALA supports does not justify ignoring reality.”

In the Hammons case Loughry mentioned, 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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Organizations in this Story

West Virginia Association for Justice West Virginia Citizens Against Lawsuit Abuse West Virginia Supreme Court of Appeals

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