Yesterday I attended a presentation by Supreme Court of Appeals of West Virginia Clerk Rory Perry, II on the court’s revised Rules of Appellate Procedure, which were released for public comment. The seminar was the first of ten that Rory will give across the state over the next two weeks in order to familiarize members of the Bar and the public with the revisions, which are extensive. Here are the revised rules, the court’s press release regarding the rules, and its description of the seminars and public comment period. I have also included a diagram prepared by the clerk’s office, which Rory described accurately as looking like a "subway map," of how appeals from circuit court under revised Rule 5 will be handled.
There are 43 revised rules, as opposed to the current 29. Eighteen of the rules are completely new, while nearly all of the rest have been modified. In fact, only two of the current rules are unchanged. Following the public comment period, which ends on July 19, the rules become effective on December 1, 2010.
Although the press release notes that the revised rules "are not a response to criticism from any party or special-interest group[,]" the court was criticized earlier this year for what the West Virginia Chamber of Commerce contended is the current rules’ failure to provide a party with an appeal as of right, as opposed to the right to appeal, which is what currently exists.
Under the revised rules, the biggest (substantive) change from current practice is that in every properly-filed appeal, the court will issue a decision on the merits, as opposed to its current practice, where appeals that the court decides not to hear on the merits are refused, with no explanation for the court’s action. However, Rory pointed out that currently even when the court refuses a petition for appeal, it does so only after the petition has been considered by every member of the court and their clerks and considered at a conference. (That has not always stopped disgruntled litigants from maintaining that their rights have been prejudiced.)
Revised Rule 5(h), which deals with the court’s consideration of an appeal from circuit court, describes how the court will rule on appeals — this same description, which Rory described as thematic, appears in other rules:
After the response brief or summary response has been filed in accordance with Rule 10, and any reply brief deemed necessary has been filed (or the time for filing a reply has expired), the appeal will be deemed to be mature, and the Court will fully consider the written arguments of all parties to the appeal. Thereafter, the Court will: (1) decide the case on the merits without oral argument; or (2) set the case for oral argument and then decide the case on the merits; or (3) issue an appropriate order after considering any written and oral arguments made by the parties (e.g. the appeal is premature because it is an appeal from an interlocutory ruling, or the appeal is dismissed because the case has been settled).
Under the revised rules, the court’s motion docket, where the court invites a petitioner to present argument, is being eliminated. Oral argument by both parties will be permitted under Rules 19 or 20. Rory explained that appeals on the Rule 20 docket, which is basically the court’s current argument docket, will be more likely to be precedent-setting, as opposed to appeals under Rule 19, which will be more law-of-the-case variety.
Other significant changes are in Rule 6, assembling the record, and Rule 7, preparing the appendix, which are intended to enable the parties and the court to identify with specificity the relevant documents on appeal and then to cite to those documents, similar to current practice in federal appellate courts.
Although the current rules specifically provide for appeals in abuse and neglect, workers’ compensation, and family court cases, those rules have been modified as Rules 11, 12, and 13, respectively. The court has created new Rule 14 dealing with public service commission appeals and new Rule 15 dealing with human rights commission appeals.
In order to learn in detail about the revised rules, I encourage you to attend one of the eight remaining seminars (the schedule in listed in the press release and on the court’s website). In addition to being informative and an efficient use of your time (90 minutes), the seminar provides 1.8 hours of CLE credit at no cost. Also, for further assistance, comments by the clerk are provided for every rule and summarize the effect of the revision. The comments are not a substantive part of the rules, though.
Every facet of the appellate process is more complicated under the revised rules, which I don’t say as a criticism, but as an observation that prosecuting or defending an appeal in West Virginia will take more time and care, and necessarily cost more money, than in the past. Because West Virginia has only one appellate court (which I don’t think will change for the foreseeable future), there has not been the need — or at least the opportunity – for a dedicated appellate advocacy bar (leaving aside practitioners’ specializations).
In West Virginia, more often than not, if you handled the case before the trial court, you would handle the appeal, unless you or your client decided that a change of counsel was advisable. But the revised rules may contribute to the development of a dedicated appellate practice bar, because some lawyers, particularly those who handled an appeal only occasionally, may decide that lawyers who practice before the court more regularly are better able to represent a party on appeal.