Wednesday, June 4, 2008

Should West Virginia Have An Intermediate Appellate System?

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.


Alex said...

I'm in favor of intermediate WV appellate courts similar to Federal circuit courts to which one would have an automatic right of appeal. I think certiorari discretion should remain the same from the State Supreme Court to those intermediate courts much like it is in the federal system (minus oddities stemming from original jurisdiction or certain statutes).

Costs are hard to ignore. The system might require 4-5 regional 3-judge courts at $100k+ per judge not to mention the personnel, buildings, etc. Many millions per year. But, ok, that's off the table.

I agree with the reasons you advanced for the intermediate appellate courts, Brian (general right to appeal, more precedents)

Playing devil's advocate, the only counterargument I can think of (besides institutional costs) is that of an added layer of transactional costs. With more decisions would come more litigation costs and more restraints based on the increased precedents. As you know, this State is Open For Business, and nobody messes with our business.
(If we really were a business hotbed that argument might be more plausible)

Brian said...


Your comment made me recall a third major benefit that I see yet somehow forgot to mention in my original post. Having an intermediate appellate court would almost certainly significantly improve the work output of the Supreme Court. Why? Consider this: when the U.S. Supreme Court grants cert. on a legal issue, that issue in the case has (usually) been extensively considered and written about by a district court judge and a circuit court appellate panel. The SCOTUS Justices have said on many occasions how important and useful those prior treatments are to what they do when they take a case. Indeed, in the Gartner legal writing interviews I linked to a while back several Justices said the first thing they do after granting cert is not to read the parties' merit briefs but to read the most recent lower court opinion. The work of the federal lower courts plays an essential role in "packaging" the dispute that comes before SCOTUS.

By contrast, in our state trial court judges rarely issue useful discussions of disputed legal issue, and there's no other level to further shape the case or send it back to the trial court for more consideration if needed. (How many opinions have you read where the WV Supreme Court bitches about an incomplete record in a case? Or perhaps more aptly, how many opinions have you read where the Court doesn't do so?)

In my view, creating an intermediate level would greatly improve the quality of the WV Supreme Court's functioning (indeed, second only to getting more legalistic and fair Justices on the bench by changing the way they are selected).

Alex said...

I think that's a good point, Brian.

I've gone back and forth about the elected judges issue.

For awhile I thought I was too enthralled with the nobility and professionalism of the federal judiciary. To counter that I made a conscious effort to articulate the higher value of the majoritarian government principals of our elected judiciary.

Slowly I realized that the values of majoritarianism -- partisan striving and compromise -- really can't have a place in the one branch of government that should resist partisanship and political solutions.

This is still somewhat elitist, and sometimes I still feel that it is right to get no more or no less than what you vote for, but on the whole I think I could go for some sort of non-partisan selection/election of judges.

Anne said...

Thanks for the hat-tipping!