As all of my in-state readers know (or should know), West Virginia is one of a relatively few states that has no intermediate appellate court system. The Charleston Gazette had a story regarding this judicial peculiarity on Monday, reexamining the issue in light of the Supreme Court of Appeals' decision to deny certiorari in a case involving a multi-hundred million dollar verdict against Chesapeake Energy, leaving Chesapeake with no appellate avenue. (Chesapeake subsequently canceled its plans to build a new headquarters complex in Charleston.)
The article doesn't actually raise any new arguments either for or against the idea that we should create an intermediate court, but it did contain a couple of factual points that struck me as quite interesting and that, admittedly, I hadn't known. First, though (as far as I know) Hell has not yet frozen over the state Chamber of Commerce and the state trial lawyers advocacy group agree that West Virginia should have some type of intermediate appellate system. Second, West Virginia is even more idiosyncratic in its appellate setup than I realized:
The Supreme Court has total discretion over accepting appeals. It refused nearly 62 percent of the petitions it considered between 2000 and 2006, the latest year for available figures. In 2006, its rejection rate reached nearly 84 percent.
West Virginia's is also the only "court of last resort" with such complete discretion among the 10 states lacking an intermediate appeals court, according to the nonpartisan National Center for State Courts. Of the rest, all must accept civil [note: I assume the reporter meant criminal here] appeals except New Hampshire, which is mandated to accept only capital murder death penalty cases.
I knew that our Supreme Court has total discretion in hearing appeals -except regarding worker's compensation claims, it should be noted- but I didn't know that we were basically* the only state with such a scheme, even among other states with no intermediate system.
As you might be able to tell, I agree that West Virginia should have an intermediate appellate court system. Having a right to appeal, at least in criminal and important civil cases, is beneficial to the administration of justice. Moreover, as it stands I don't think the Supreme Court produces enough precedential decisions, particularly in certain unsexy areas of the law, to give lower courts and administrative agencies the guidance they need to adjudicate consistently, and I highly doubt that solutions focusing only on the Supreme Court's docket -like requiring the Justices to take certain types of cases- would make much of a dent in the problem. The first objection usually raised in response to proposals to create an intermediate system is cost, and while that's certainly a serious point I'm sure there are reasonable ways to fund the change.
But what about more purely jurisprudential objections? Any readers who would object to creating an intermediate appellate court system if the cost issue was off the table? And for those readers who, like me, favor creation of an intermediate level, what sort of system would you like to see set up? (For instance, what sort of cases would generate an automatic right of appeal?) My inquiring mind wants to know....
* Yes, I realize that if New Hampshire didn't have the death penalty it would be in our class as well. Although once New Hampshire politicians realized that their state was the only state besides West Virginia in the category they might well feel an urge to change their system.
Correction: Turns out The Charleston Gazette was basically wrong about New Hampshire’s Supreme Court: it has a de facto policy of automatically accepting appeals in most types of cases that are appealed from trial courts. I regret passing along the error. Hat tip to court-o-rama for a link to a correct discussion of the New Hampshire Supreme Court’s role.