By LAWRENCE MESSINA
CHARLESTON (AP) — Last week’s back-and-forth between West Virginia’s Supreme Court and its Chamber of Commerce has laid bare the prevailing criticism of the Mountain State’s judicial system.
Chief Justice Robin Davis touched off the exchange when she stood by her court’s handling of civil and criminal appeals.
“Some have claimed that there is no right to appeal in West Virginia,” Davis told lawmakers. “That’s just flat wrong.”
Those who say that include the chamber. The business group fired off an open letter to Davis following her remarks. Sticking with its stance, Chamber President Steve Roberts wrote that Davis’ statements “have caused great confusion.”
Supreme Court Clerk Rory Perry then responded on the chief justice’s behalf.
“Your letter underscores the deep misunderstanding that members of the public have about proceedings in this Court,” Perry said in his open letter. “(U)nder current law, every West Virginia litigant has the absolute right to file an appeal from a final decision of the circuit courts.”
The dispute may boil down to whether the “right to appeal” is the same as an “appeal of right.” The chamber, and other critics of West Virginia’ judiciary, contend that an “appeal of right” means more than the ability to file an appeal petition.
Such outside observers as the National Center of State Courts and the U.S. Bureau of Justice Statistics appear to side with the chamber on that question. So does the recent judicial study commissioned by Gov. Joe Manchin. And even Davis herself seemed to concede that a fuller review of criminal convictions may be warranted.
The nonpartisan center, the federal bureau and the Conference of State Court Administrators noted the different appeals processes in their most recent joint review of state judiciaries.
“Mandatory jurisdiction cases are those in which an appellate court is required to hear the merits of the case,” they explained in their 2007 Examining the Work of State Courts. “In contrast, the appellate court may choose whether or not to entertain a case that falls within its discretionary jurisdiction. If the court declines review of a discretionary appeal, the decision of the lower court stands.”
The report’s analysis of appeals heard that year found West Virginia alone with an entirely discretionary caseload. Among the rest, either an intermediate appeals court or the “court of last resort” heard mandatory appeals.
The only other state to come close is New Hampshire. Like West Virginia and nine other states, it lacks a midlevel appeals court. But it has long considered death penalty appeals automatic, and in 2004 adopted a “mandatory appeal” rule for other cases.
An earlier, extensive review of state appeals courts by the center counted 37 states where “final judgments of the trial court may be appealed as a matter of right” for all cases, and for at least some cases in another dozen.
But of West Virginia, it said that such judgments “may be appealed by filing a petition and record. There are no automatic appeals. They are entirely discretionary with the court.”
Part of the U.S. Department of Justice, the statistics bureau also set West Virginia apart for its lack of mandatory appeals in a 2006 review. In its open letter to Davis, the chamber cited the bureau’s similar findings in a 2004 report on state court organization.
West Virginia’s Supreme Court notes its discretionary nature in its annual statistics reports. In the 10 years ending in 2008, the latest for available figures, the court accepted just over one-fourth of the appeal petitions it received. When excluding workers’ compensation cases, the rate drops to slightly more than one in five.
Manchin’s Independent Commission on Judicial Reform described the Supreme Court as having “a completely discretionary docket, with no appeal as of right” in its November findings. It recommended adopting a midlevel appeals court to remedy that.
“The Commission respectfully urges that such a right be extended to all litigants either through legislative enactment or, if necessary, as part of the development of court rules and processes for the implementation of the intermediate court of appeals,” its report said.
Addressing the House Chamber, Davis said she personally opposes such a move and suggested her fellow justices generally feel the same way.
“Some people would suggest, however, that we need an intermediate appellate court because cases are not fully reviewed by our Supreme Court, and therefore an appellate court is necessary,” Davis told lawmakers. “Folks, nothing could be further from the truth. All petitions for appeal that are filed with the West Virginia Supreme Court are fully and fairly reviewed by all five members of our court.”
But Delegate John Frazier, D-Mercer, asked Davis about habeas corpus cases. A former circuit judge, Frazier recounted fielding an increasing number of these petitions during his time on the bench.
People sentenced to prison can file these to challenge aspects of their criminal cases. Inmates tend to file them after the Supreme Court rejects their direct appeals; the justices accepted just 15 percent of the criminal appeals received between 1999 and 2008.
“But if we had a court that would address that, either an intermediate court or a Supreme Court that would review each of those, then that would preclude them from any other filings,” Frazier told the chief justice.
Davis’ reply: “I do agree with that.”
