According to the Supreme Court of Appeals of West Virginia’s website, West Virginia is one of only 11 states with one appellate court, and the court is the busiest appellate court of its type in the United States.

But West Virginia’s membership in the single-appellate-court club could be in jeopardy. Last November, the West Virginia Independent Commission on Judicial Reform issued its final report in which it recommended that the legislature establish an "intermediate court of appeals." The report made several recommendations regarding the structure and composition of the court, and separately recommended that the Supreme Court of Appeals "undertake a study to determine the need for and the feasibility of a business court pilot project similar to those discussed herein [business courts in Maryland and South Carolina]."

I don’t think there’s much doubt that the commission’s recommendation was based, at least in part, by Chesapeake Energy’s decision in May 2008 to cancel the construction of its regional headquarters in Charleston after the Supreme Court of Appeals refused its petition for appeal from a verdict  of $404 million in a class action relating to the calculation of natural gas well owners’ royalties.

Since then, business groups, such as the West Virginia Chamber of Commerce, have kept up the pressure on the Supreme Court of Appeals, claiming that because West Virginia is the only state not to offer an appeal as of right, the state is an unattractive setting for businesses to locate.

In fact, West Virginia Governor Joe Manchin filed an amicus brief in support of DuPont’s appeal from a verdict of nearly $400 million in a medical-monitoring class action, in which he urged the court to accept DuPont’s appeal. (The court did accept DuPont’s appeal and is expected to issue its decision during this term.)

So here’s where it gets interesting. Last Monday, Chief Justice Robin Jean Davis appeared before a joint meeting of the House and Senate Judiciary Committees to report on the court’s revision of its rules. (In the interest of disclosure, and not for any particular reason, I practiced with Chief Justice Davis almost eleven years.)  She was asked about the West Virginia Chamber of Commerce’s position that the legislature should "enact an appeal of right from all final judgments in the Circuit Courts."

According to a story by AP reporter Lawrence Messina, her response was that the policy statement needs to be rewritten: "For anybody with the caliber of lawyers that business has and the chamber has to make such a broad assertion that is flat-out wrong, is just almost inexcusable."

Messina also wrote on his blog, Lincoln Walks At Midnight, about Chief Justice Davis’ appearance, and noted that she expressed her personal opinion, which she said is shared more or less by her colleagues on the court, that West Virginia does not need an intermediate appellate court. She explained that the court’s caseload is declining, the establishment of an intermediate court would cost $8-15 million per year, and would add significantly to the time required for an appeal. 

But the back and forth continues. On February 2, Steve Roberts, president of the West Virginia Chamber of Commerce, wrote an open letter to Chief Justice Davis, in which he asked, in light of her statements about an absolute right of appeal, "[w]hy do so many people, including citizens, lawyers and even experts outside of West Virginia, believe that West Virginia does not have a right of appeal?" He also asked — rhetorically, I assume — whether the cause of civil and criminal justice is served by West Virginia’s appellate justice system, "when there is a mounting public perception that it does not?"

In response, Rory Perry, II, the Supreme Court of Appeals’ Clerk, responded to Roberts with an open letter of his own, written at the Chief Justice’s direction. Perry reviewed proposed new rules that provide that "all petitions for appeal from a final circuit court order will be accepted for complete review," that "all parties will be required to participate and file legal briefs," and "the Court will decide every case on the merits after considering the legal positions of the parties and completely reviewing the record." 

Perry explained that not every appeal will result in oral argument, nor will every appeal result in an opinion that has precedential value. But the court will end its past practice of "issuing refusal orders that do not explain the reasons for the Court’s decision."

Messina wrote an analysis piece that appeared in both Charleston newspapers this morning, in which he explained that the dispute boils down to the difference between a "right of appeal," which is what exists under the court’s current procedures, meaning that any party has the right to appeal an adverse judgment, but may not receive a decision on the merits, and an "appeal as of right," which is what the Chamber and other organizations want, meaning that any party has the right to appeal and to receive a decision on the merits of the appeal.

Here’s what troubles me about about the Chamber’s position. Its manufactured outrage about the lack of an "appeal as of right" is disingenuous in the extreme, to put it mildly. The Chamber acts as thought it just discovered that the court’s appeal procedures don’t guarantee that a party’s petition for appeal will be accepted for a decision on the merits, even though that has been the procedure for decades. And suddenly, the lack of an "appeal as of right" is used as a justification by businesses not to expand their operations (or build their headquarters) here, even though the rules haven’t changed. But you wouldn’t know that by listening to the Chamber.