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To Create an IAC or Not?

Posted on September 22, 2015 at 2:45 PM

Call me odd, but one of the things I like to do is to go to the West Virginia Supreme Court website, and read through the new opinions.  My particular favorite is a juicy civil case, with an engaging fact pattern, a novel question about the law, and a well reasoned, understandable, and USABLE explanation of the law.  Too often, however, I have to make my way through heaps of WC (Workers' Compensation Appeals), the vast majority of which are MD (Memorandum Decision). (I take nothing away from workers' compensation cases, but it is just not an area of law that I am involved with.)  Likewise, insofar as I understand them, I take no real issue with memorandum decisions.  (Memorandum decisions apply to all appellate case types, civil, family, workers' compensation, abuse and neglect, etc., they just seem to appear most often in workers' compensation cases because workers' compensation cases seem to take up such a large part of the Court's docket.)  Memorandum decisions do just what they are supposed to:  they decide a specific question for a specific case.  A memorandum decision can be cited as pursuasive authority, but you won't find them in any reporter, rather only on the Court's website, and they do not add to the thin thing that is West Virginia jurisprudence.  Rule 21(d) of the West Virginia Rules of Appellate Procedure, provides that a memorandum decision which reverses a circuit court should only be issued in limited circumstances.  In other words, so long as you agree with the circuit court, a MD is a very useful thing, but if you take issue with a circuit court ruling, a MD will offer you little guidance, or solace.

My real purpose in writing this post, however, does not have to do with workers' compensation decisions or memorandum decisions directly, but rather, with the question:  does West Virginia need an intermediate court of appeals (sometimes referred to as an IAC)?  West Virginia is one of only ten states that does not have an intermediate court of appeals.  I have to confess that even as I write this blog post, I am not completely decided one way or the other as to whether West Virginia ought to have an intermediate court of appeals.

Prior to a rule change, appeals to the Supreme Court of Appeals of West Virginia were "by permission". This was, understandably, a big issue for big business, who felt, rightly or wrongly that they got treated shabbily in West Virginia courtrooms, and argued for that reason alone West Virginia should have an intermediate court of appeals. Now, however, all appeals are a matter of right. In other words, if you've got the time, and the dime, and your ox has been gored in the lower court, the Supreme Court of Appeals of West Virginia will hear your case. Despite that rule change, some still argue that West Virginia needs an intermediate court of appeals.

The present arguments in favor of an intermediate court of appeals are as follows:

1) To decrease the burden on the Supreme Court of Appeals, and allow that Court to focus on criminal and civil cases;

2) By allowing the Court to focus on the fewer civil and criminal cases that are appealed, the Court would, as a matter of course, issue fewer memorandum decisons, and the guidance that could be drawn from the decisions that were issued, which make up the  West Virginia jurisprudence, would be improved.

The arguments in opposition to an intermediate court of appeals are:

1) There would be a delay in a litigant obtaining sought after relief;

2) The intermediate court of appeals would add costs to West Virginia's already struggling economy; and

3) The intermediate court of appeals would provide just one more layer of government where everyday West Virginians would suffer at the hands of well-funded litigants such as insurance companies, banks, and big business. 

Both positions seem to have merit. I mean, who wouldn't want more clear laws? On the other hand, who wants to pay for more lawyers? In this instance, however, the identity of the groups advocating for, and against an intermediate court of appeals in West Virginia is, for me, telling.  Arguing in favor of an intermediate court of appeals is a coalition of primarily republican, primarily big business oriented interests, CALA (Citizens Against Lawsuit Abuse) and their ilk, and academically inclined lawyers.  Those arguing against an intermediate court of appeals are probably the rest of the people of West Virginia.        

CALA and it's confederates, big business, and the republican party, which are generally in favor of what they call "fiscal restraint", are forced, in this instance to argue that the total West Virginia judiciary makes up only 3% of the West Virginia's economy, so "[a]dding an appeals court would be a relatively minor expense."  Charleston Gazette-Mail, Editorial, Jan. 5, 2015.  In my experience, whenever an entity is forced to abandon one of its' core principles in order to get something else, there is generally some chicanery, or subterfuge going on.  That subterfuge was identified by Paul T. Farrell, Jr., president of the West Virginia Association for Justice, who said "[w]hat they want is to try to create a new layer of judges that the richest companies in West Virginia can appoint themselves...[t]he whole key is that this is an agenda that is just the newest wave of how the rich can attack our judicial system because they don't want a democracy."  Appeals declining in WV but some still want intermdiate court, www.statejournal.com, Mar. 7, 2012.

Looking at what I do for a living, and the arguments for and against an intermediate court of appeals, I think, in the end, I will have to join Farrell, and the others who say that West Virginia does not need an intermediate court of appeals.  But, what about clearer laws, some might say.  I agree, clearer laws would be nice.  Being able to have a question about a point of law, and go to a reporter and always be able to have a case on point that addresses that particular issue of law is great.  In the end, however, I don't want to be one of those lawyers who value the "logical coherency of the system itself over the well being of individuals."  John Chipman Gray, The Nature and Sources of the law, Columbia University Press, pg. 263 (1909).  I think I would prefer to stand in front of a jury made up of the people of West Virginia, sling the law, thin as it is, as subject to as many interpretations as it might be, and let the jury decide the case...after all, these are the peoples' courts.       

Categories: The law

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