TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Tuesday, October 20, 2009

Guest Blogger Victor Schwartz on "A Government Appointed Independent Commission on Judicial Reform Is Considering Establishing a Right of Appeal in West Virginia: It Should Be Done"

Today, we have a special guest blogger, Victor Schwartz, who, among other notable accomplishments, is one of the authors of the widely-used torts casebook, Prosser, Wade & Schwartz's Torts.

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Recently, I responded affirmatively to the very gracious invitation of Carte Goodwin, Chairman of West Virginia Governor Joe Manchin’s newly created Independent Commission on Judicial Reform, to testify about the need for an intermediate appellate court in the state of West Virginia.

We had written about the need for such a court in a West Virginia Law Review article, West Virginia As A Judicial Hellhole™: Why Businesses Fear Litigating In State Courts, 111 West Virginia Law Review 757 (2009).

Trial judges’ decisions in West Virginia are highly unlikely to be subject to appellate court review.  There is no intermediate court of appeals.  The states highest court, the Supreme Court of Appeals, requires that three of its five Justices agree for the Court to take a case.  In most cases, the Court declines to do so.  West Virginia is the only state where this is true.  Judges are human beings, like the rest of us.  We all can benefit from having someone review our work.  I know that I do so in my practice.

The Independent Commission’s members who are considering whether some form of appellate review should be established in West Virginia are highly respected persons within the West Virginia legal community and include the Dean of West Virginia Law School, Joyce McConnell.

In my judgment, the Commission is fair and balanced.

Most witnesses who testified before the Independent Commission were local practitioners.  A very effective witness who testified in favor of establishing an intermediate appellate court was an attorney named Mark Sadd with the firm Louis Glasser Kayce and Rowans.  He proposed a single intermediate court of appeals with nine judges that would preside in rotating panels of three.  Mr. Sadd testified that such a court should grant a right of first appeal in most cases.  Mr. Sadd indicated that the creation of such a court would bring about both the reality and perception of justice in the state.  He submitted an extensive paper on the topic derived from his book chapter in The Rule of Law: Perspectives on Legal and Judicial Reform in West Virginia.

Also testifying was Jack Rogers, Executive Director of the Public Defender Unit in this state.  He stressed the need for intermediate appellate court review in criminal cases.  He said that the state’s highest court denied appeal in almost five out of six cases.  His office had data showing that in 75% of life in prison cases, an appeal was denied.

The only other “out of state witness” other than myself who testified was Michael D. Evans, the Oklahoma Administrative Director of the Courts.  Mr. Evans described the Oklahoma system of appellate review and how it had worked effectively in his state.

A local West Virginia Worker Compensation Board of Review Official, Rita Helmick, testified that the state’s Supreme Court of Appeals is overwhelmed with worker compensation cases and they would be better handled by a specialized court.

The witness for the state’s Association of Justice (plaintiffs’ lawyers) testified that the West Virginia trial judges rendered justice, and if they did not, such action was corrected by the state’s higher court.  My testimony gave examples that suggested that this was an overly optimistic assessment of West Virginia jurisprudence.

One of the practical issues that stand in the way of establishing broad appellate review of trial court decisions in West Virginia is cost.  In that regard, Mike McKowen, the Director of Revenue of the state, estimated that the creation of an intermediate court of appeal would have an annual cost of approximately $7.8 million.  This would include salaries, rent, and all related expenses.  He proposed alternative ways this revenue could be created, including filing fees, or additional tax on cigarettes.  Clients with whom I have worked would be glad to pay a filing fee if there were an appeal as a right in West Virginia.  If a party were successful on appeal, basic fairness suggests that the cost of the fee should be shifted to the losing party.

In my testimony, I showed why:

  • West Virginia’s lack of appellate is a major concern for those who might consider establishing a place of business in the state;
  • The absence of review has clearly resulted in the denial of justice to defendants.  Specifics were provided, some included: 

o    A $405 million verdict, including $270 million in punitive damages, that found two major natural gas suppliers – Chesapeake Energy and NiSource, Inc. – liable for underpaying landowners under a royalties contract.  No appellate review.

o    A $100 million punitive damages award against Massey Energy for a coal shipment dispute with Wheeling-Pittsburg Steel.  No appellate review.

  • The denial of appellate review of punitive damages raises serious issues under the Constitution of the United States;
  • West Virginia is the only state in the United States where there is no right to appeal on the merits of a case;
  • The need for an intermediate appellate court is even greater now than in 1998 when an earlier Commission recommended an intermediate court of appeals.  Specifics were provided to the Commission.

The Commissioners asked constructive and helpful questions.  Some individual members asked additional questions after the formal portion was over.

A right of appeal could be established by requiring the Supreme Judicial Court of Appeals to hear all cases on the merits, but the Court would be overwhelmed by such a requirement.  Additional “judge power” is needed.  I am hopeful that the Independent Commission will seek justice and recommend to the Governor and legislature that the state establishes an intermediate court of appeals.

In informal discussions with some of the trial judges who were present, they suggested that an automatic right of appeal in all cases might be too costly and unmanageable.  They may be right.  Certainly, an appeal should be a right in civil cases where the amounts of damages are more than $100,000 and in any case, where punitive damages are awarded.

The right to appeal a trial court decision is a fundamental part of our system of justice.  Governor Manchin is to be commended for establishing a mechanism, The Independent Judicial Reform Commission, as an excellent vehicle to establish this basic right in West Virginia.

- Victor E. Schwartz
Chair, Public Policy Group 
Shook Hardy & Bacon, L.L.P.

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