The Supreme Court of Appeals of West Virginia on May 17 released Revised Rules of Appellate Procedure for a sixty-day public comment period.

“The revised rules modernize and comprehensively change the appellate process to provide a decision on the merits in every appeal and ensure greater transparency at every step,” said Chief Justice Robin Jean Davis.

“I’m proud to say that I have been Chief Justice of our state five times. I’ve been a member of the Court for almost fourteen years. We have accomplished many great things in that time.  But we have never taken on a task as monumentally important to our system of justice as what we are doing now,” Chief Justice Davis said. 

After the rules were released, Supreme Court Clerk Rory Perry II conducted an unprecedented number of free continuing legal education seminars around the state. The public and the press were invited as well as the legal community.  More than five hundred people attended the ninety-minute seminars in Charleston, Wheeling, Fayetteville, Parkersburg, Buckhannon, Logan, Morgantown, Moorefield, Martinsburg, and Huntington.  Clerk Perry also gave a half-dozen other lectures for smaller groups of attorneys who requested them.   

The rules are posted on the Supreme Court website at www/state.wv.us/wvsca/rules/appellate-revisions.htm.

The rule changes are comprehensive. In the public comment version, only two previous rules remain the same. Eighteen of the rules are new or contain new material. The rest have been rewritten, and many have been substantially rewritten.  Clerk Perry has written extensive “Clerk’s Comments” at the end of each rule summarizing the changes in that rule and the purpose of those specific changes.

“The Rules of Appellate Procedure were written in 1864 and have been amended and modified several times, but the last major change was after the Judicial Reorganization Amendment of 1974. Now, rules that do not conform to modern legal practice simply have to be fixed,” Chief Justice Davis said.

“Times have changed.  Transparency is the rule of government today.  The rules have to be comprehensible to all interested constituencies and to the public-at-large,” Chief Justice Davis said.

For example, “The proposed rules indicate the Court’s acknowledgement that we understand the public has a right to know why we decide to hear arguments in one case and not another,” Chief Justice Davis said.

The nomenclature “grant” and “refuse” will no longer be used because a decision on the merits will be issued in every properly filed appeal.  Those decisions either will be in the form of a full opinion or memorandum decision. Memorandum decisions will be non-precedential but will be subject to rehearing; they will not be published in the West Virginia Reports.

“No court of last resort in the country allows full oral argument in every case that is appealed, and no court of last resort issues a full opinion in every appeal. The revised rules are consistent with this general national practice,” Chief Justice Davis said.

The revised rules require a record that is more specific.  They also require a response to be filed in every appeal from circuit court before the Court will decide the issues in the case.  

Decisions on the merits

Under the revised rules, the current Motion Docket will be eliminated.  Instead, the Court will have two separate argument dockets – under either Rule 19 or Rule 20 of the revised rules. 

Currently, there are no written criteria for why the Court decides to put a case on the Argument Docket.  The revised rule adapts criteria for Rule 20 arguments from the Final Report of the Independent Commission on Judicial Reform and spells out that the Court will put a case on the Rule 20 Docket if

• it involves an issue of first impression;
• it involves an issue of fundamental public importance;
• it involves a constitutional question regarding the validity of a statute, municipal ordinance, or court ruling; or if
• it involves inconsistencies or conflicts among the decisions of lower tribunals.

Under the revised rules, for cases on the Rule 19 Docket, the Court can issue a memorandum decision, issue an opinion, or refer those cases to the Rule 20 Docket for another argument and a full opinion, or issue an appropriate order (for example, if the appeal is premature or the case has settled). 

In Rule 19 Docket cases, both sides will appear to make five-minute arguments.   Therefore, the Rule 19 Docket affords an expanded opportunity for oral argument.  A case can be put on the Rule 19 Docket if

• the assignments of error involve the application of settled law;
• the case claims an unsustainable exercise of discretion where the law governing that discretion is settled;
• the case claims insufficient evidence or a result against the weight of the evidence;
• the case involves a narrow issue of law; or if
• a hearing is required by law, as in a case involving an appeal from a Public Service Commission decision.

Under the revised rules, the Court also may issue memorandum decisions affirming the decision of a lower court

• in cases in which no substantial question of law is presented and the Court does not disagree with the decision of the lower tribunal; 
• if upon consideration of the applicable standard of review and the record presented, the Court finds no prejudicial error; or
• if other just cause exists for the Court to affirm or reverse the case summarily. In these cases, the memorandum decision shall contain a succinct statement of the reason the underlying decision is being affirmed or reversed.

Providing greater transparency

One of the main goals of the revised rules is to provide greater transparency in the appellate process.  This is achieved in many ways.

For the first time, the Court has established in its appellate rules written criteria for deciding whether oral argument should be held in a case.

Appellate briefs will continue to be provided on the Court website in all Rule 20 Docket cases before oral argument, as has been the Court’s practice since 2004.  However, new Rule 40 requires attorneys to be more careful in document preparation. For example, the use of juvenile names, personal identifiers, Social Security numbers, and sensitive financial or medical information will be restricted in Supreme Court filings because they eventually may be posted on the Internet. Rule 40 also provides a process to request that the Court redact or remove documents from the Court’s website.   

Rule 40 requires that cases which were confidential in a lower court, like child abuse and neglect, will remain confidential in the Supreme Court.  However, because there is an important public interest in cases on the Rule 20 Docket, appellate briefs in those cases will continue to be posted on the Court’s website, even if they are otherwise confidential.  A party who does not want a brief to be posted must file a motion to seal and the Court will consider the matter.

An effort also has been made, as much as possible, to make the revised rules more readable so they are more accessible to the general public. 

Throughout the rules, sections governing the Court’s consideration of cases have been added that clearly outline the decision options at each critical stage.

Media access rules that previously were separate now have been incorporated into the revised rules, as Rule 42, to make them easier to find and follow. The major changes to the media rules accommodate modern court and media practices.

The sixty-day comment period ended July 19.  The Court will consider the comments before voting on the rules during the fall term of Court.  It is anticipated that the rules will go into effect on December 1.