Appellate Procedure in West Virginia: Why Rule 4a's Expedited Petition Process Isn't Attractive to Attorneys

Article excerpt

West Virginia is unusual in that it has no intermediate appellate court; (1) petitions for appeal of circuit court decisions go directly to the state's highest court, the West Virginia Supreme Court of Appeals. Appellate review in the supreme court of appeals is totally discretionary; there is no constitutional right of review. (2) Thus, all parties to a controversy seeking resolution by the court must first petition the court for review. (3) Yet, the supreme court of appeals is one of the busiest in the country, prompting the National Center for State Courts to note that "West Virginia receives more appeals in their one-level appellate court than some states with two-tiered appellate court systems." (4) In fact, 3,029 petitions for appeal were filed with the court in year 2000, of which 578 were civil petitions. (5) Although the court ultimately rendered 1,459 final substantive decisions in all classes of cases, (6) its 28.5% rate of review for civil petitions demonstrates that the petitioner in a civil case has only a slightly better chance than one in four of having the petition accepted for appeal. In view of these odds, a less expensive process for petition seemingly would be attractive to lawyers, particularly those representing clients with weaker appellate cases or fewer dollars to spend. (7)

In fact, an expedited petition process does exist; it permits the lawyer to file the petition without the transcript of testimony taken in the lower court. (8) This option not only saves the petitioner the time associated with preparing and reviewing the transcript, but also saves the considerable expense of having the court reporter prepare the transcript. Yet, less than one percent of cases are filed this way, (9) indicating that lawyers believe that the expedited process is unnecessary or unwise. This article explains the expedited process and argues why more attorneys filing petitions in West Virginia should consider it. The article also briefly summarizes the other alternatives for expediting appeals in West Virginia and suggests why attorneys favor those alternatives over the rule-based process for expediting the appeal at the petition stage.

I. THE EXPEDITED PETITION

The procedures governing both the usual and the expedited process of appeal from the circuit court are set out in the West Virginia Rules of Appellate Procedure. While Rule 4 outlines the usual steps for filing and transmitting a petition for appellate review, the supreme court of appeals has recognized the need for an alternative process of petitioning for appeal that is "inexpensive and expeditious." (10) The expedited process is described by Rule 4A.

The expedited appeal procedure under Rule 4A parallels the usual petition process of Rule 4 in many ways. Under either rule, the petitioner must designate the record within thirty days of entry of the final order prompting the appeal. (11) This requirement allows the circuit clerk to begin compiling the record in a timely manner. In either instance, the attorney must complete an extensive docketing statement, which gives an overview of the case. Finally, although there is no filing fee for the petition itself, the petitioner in either instance must pay, or post a bond to cover payment, for the expense of preparing and indexing the record, the fee for filing and certifying the record, and the cost of transmitting the appeal to the supreme court.

Despite these similarities in the rules for petitioning for appeal, lawyers should not be misled into believing that Rule 4A offers little advantage over Rule 4. The expedited petition can result in a substantial savings of time and money for the attorney who wants to quickly and inexpensively test the court's willingness to hear the appeal. The Rule 4A expedited process saves money because the petitioner does not have to pay for the transcript. Indigence is not a bar to obtaining a transcript in West Virginia because the petitioner can file an affidavit of indigency with the circuit clerk's office, (12) and if the circuit court approves the appeal on this basis, the state will pay for the transcript and the costs of preparing the record. …