The just and legitimate resolution of disputes is one of the most important services provided by government. In the United States the federal and state governments share this governmental responsibility. Although legislative and executive branch officials resolve disputes, the settlement of most disputes is a judicial branch responsibility. This monograph provides a comparative introduction to the organization and operations of the West Virginia judiciary. After a brief introduction to the organization of the judiciary, the second and third parts of the monograph focus on West Virginia's Circuit and Magistrate Courts and the Family Law Master system. These courts are a trial judiciary which adjudge the bulk of the legal disputes and maintain public policies related to social and economic order in the state. The fourth part details the supervisory role of the Supreme Court of Appeals in the state's judicial system. An overview of the procedures and policy role of the Court of Claims follows. Each part opens with a discussion of the court's personnel. Then, the court's operations and procedures are examined, followed by an analysis of the methods the court uses to ensure its legitimacy and credibility. The discussion of each court closes with comments on the outcomes of the court's operations. Finally, the monograph considers citizen evaluations and the need for changes in the operations of the state's judicial system.

____________
    The author would like to thank Dr. John C. Kilwein for his outstanding contributions to the design of the questionnaires, the conduct of interviews, the preparation of the tables, and the drafting of the essays from which much of this monograph is derived. Ted Philyaw and the staff of the Administrative Office of the Supreme Court of Appeals most graciously supplied the some of the data and documentary information used in this essay. Judge Frank Jolliffe and Magistrate Carol Wolfe advised us on the construction of judicial and magistrate questionnaires. Joseph Patten managed the administration and coding of the judiciary questionnaire data and ensured its confidentiality. Funds for the completion of the study, data from the West Virginia Political Attitudes Survey, and editorial assistance was provided by the Institute for Public Affairs.

Part 1. The Organization of West Virginia Courts

    The organizational structure of the West Virginia judiciary is defined by provisions in the state's constitution and supplementary statutory provisions. The Judicial Reorganization Amendment to the state constitution adopted in 1974, which became effective in 1976, established a "unitary" or hierarchical judicial system within the state. The system was patterned after the system adopted in New Jersey in 1947. The amendment completely replaced the disorganized judicial system provided for in Article VIII, the Judicial Power article of the West Virginia Constitution. In comparison to many other states, the Amendment provided for a very simple assignment of judicial tasks.

Supreme Court of Appeals

    West Virginia's Supreme Court of Appeals is an appellate court charged with the review of trial court decisions and certain other adjudicatory duties. Regardless of whether a case is taken to the Supreme Court of Appeals on appeal or on original jurisdiction by receipt of documents called writs of certiorari, habeas corpus, mandamus, or prohibition from the Court, or as a certified question of law from a federal or circuit court, all petitioners must petition the justices to docket or list the case for consideration). Thus, the Supreme Court, by majority vote, has complete discretion over its docket. Only the West Virginia Supreme Court of Appeals and the New Hampshire and Wisconsin Supreme Courts, among all federal and state appellate courts, have complete discretion to select their own docket. Although the Reorganization Amendment permitted the state legislature to create intermediate courts of appeals, none have been established. West Virginia is one of only thirteen states, eleven of which have smaller populations, that have no intermediate appellate court. Also, West Virginia is among a group of eighteen states with only five, rather than the more typical seven or nine seats on its court of last resort.

Circuit Courts

    West Virginia's thirty-one circuit courts, with jurisdiction over all criminal, civil, and juvenile matters, serve as the state's comprehensive trial court of general jurisdiction. In contrast to thirteen other states, West Virginia does not have specialized courts for probate, chancery cases, or family cases. It also does not have unique courts for certain geographical areas of the state. Circuit judges are currently paid $65,000 yearly salary. The 1974 Reorganization Amendment allowed the state legislature to fix the number of circuits and the number of circuit judges. Using these powers the state legislature increased the number of circuit judges from thirty in 1966 to sixty-two beginning in 1993. It also rearranged the boundaries of the circuits. In 1993, fourteen circuits will include more than one county, but thirteen circuits will have only one judge. In the circuits serving more than one county, court must be regularly scheduled in each county and the judge or judges normally ride the circuit. The Supreme Court of Appeals retains the authority to reassign judges and magistrates from one circuit or county to another on a temporary basis. Under authority granted in a 1991 statute, the Court also can assign senior and retired circuit and Supreme Court of Appeals judges to try cases and reduce caseloads across the state.

Magistrate Courts

    The Reorganization Amendment replaced the Justice of the Peace Courts with a system of Magistrate Courts. The Constitution apportions at least two magistrates to each county. It also provides counties with greater populations additional magistrates through an apportionment scheme for a current total of 152 magistrates. In 1992, Kanawha County had the largest number of magistrates, ten, while thirty-one counties had the minimum of two. The number changed in January 1993 because of the adoption of a new system of allotment by the state legislature.
The Constitution grants magistrates county-wide limited jurisdiction over criminal matters and small civil claims. The Reorganization Amendment left it to the legislature to detail magistrate's duties, and a comprehensive legislative act in 1976 fixed the number, salary, qualifications, and discipline of magistrates. It defined available supporting staff, the duties of clerks and assistants and state and county financial support for the office. It also delineated the civil and criminal jurisdiction of the office, its basic pretrial and trial procedures, and the costs, fines, and other remedies that a magistrate might levy.

    The legislature has amended the magistrate act several times since 1976, largely to adjust salaries, to reapportion the number of magistrates, to adjust court costs and to permit the payment of fines by credit card. The magistrate act originally established a three-tier salary schedule for the compensation of magistrates. It thus abandoned the fee system that characterized the pre-1976 justice of the peace system. The act, as amended in 1987, created two different salary levels for magistrates based on the population of the county. In 1993, the salary became $23,625 in counties with less than 10,000 people and $30,000 in the more populous counties.

    Also, the magistrate act established a selection and training system. It also prohibits magistrates from holding office if they are the member of the immediate family of any other magistrate in the county. The magistrate act also requires magistrates to attend and complete a course of instruction after their election and attend continuing education sessions after assuming office. The Supreme Court of Appeals, through its Administrative Office, was assigned to conduct the courses of instruction. As far as the author is able to determine, this is one of very few laws in the United States which require post-election education of an elected public official. Magistrates who fail to attend instruction sessions are subject to penalties imposed through the state's system of judicial discipline.
The magistrate act outlines magistrate court procedures, and the Supreme Court of Appeals used its rule-making authority to promulgate additional procedural rules to govern the operations of these courts. In addition, the act establishes the jurisdiction of magistrate courts to include civil claims with a value of $3,000 or less and cases about unlawful entry or detainer of real estate. However, magistrates cannot consider actions in equity, eminent domain, real estate titles and liens, false imprisonment, malicious prosecution, or slander and libel. The statute defined the criminal jurisdiction of the magistrate court to include misdemeanors or minor crimes, preliminary examination on felony warrants, the issuance of arrest and search warrants (except in capital cases), and the setting of bail. Bail can be set up to the amount of the potential fine unless there is a potential for jail time. Then it becomes a matter of the employment of sound discretion by the magistrate. Magistrate courts employ six person juries at the request of the parties. West Virginia and Texas are the only states that afford the unqualified right to jury trial in their lowest tier of courts. West Virginia Magistrate Courts are more restricted in their civil jurisdiction than similar courts in thirteen states.

Other Courts

    The Reorganization Amendment of 1974 banned the creation of other county courts of special jurisdiction, and it eliminated the special jurisdiction criminal and family law courts which had once existed in the state. It permitted the continuation of existing municipal courts, with 122 judges, but their authority was limited to the enforcement of municipal ordinances, typically traffic offenses. The Amendment required compensation of municipal judges by salary, not fee. It also changed the name of the county courts, which were composed of the county commissioners, to county commissions. They are charged with duties in probate, guardianship, and election disputes concerning county and district offices. Although the Reorganization Amendment permits the state legislature to create intermediate courts of appeals, none have been established.

Family Law Masters

    In 1986, the state legislature created a unique family law master system to fulfill its responsibilities under the federal Child Support Enforcement Amendments of 1984. The family law masters replaced the use of divorce commissioners, who were local lawyers appointed by the circuit judge to adjudge divorce, custody, and child support conflicts. Family law masters are attorneys appointed for twenty-one regions of the state for four year terms by the governor. Two masters serve in the Kanawha County region.

    West Virginia is the only state to use this system to deal with family law matters. All of the other states have established a special division or assigned specific judges of the trial court of general jurisdiction to these matters, or assigned them to a family court, a probate court, or, in New York, a surrogate's court. Other states assigned certain family law matters, such as child support payments issues to an administrative agency.

The Administrative Office, Support Services, and Budget

    Several offices support the judiciary. The most important of these is the Administrative Office of the Supreme Court of Appeals. It manages the state appropriated finances for the courts, and it administers judicial branch personnel policies, including equal employment opportunity, compensation, job classification, and health and retirement policies for state judicial branch employees. Circuit courts receive most of their finances from a state appropriation, but bailiffs and security personnel, courtrooms, and office space are provided by county commissions. Also, the Clerk of the Circuit Court, an elected post in each county, manages case filings and records and collects court fees. The clerks are subject to an annual audit by the state's Department of Revenue and Taxation, and the Supreme Court of Appeals has ruled that they must operate under the direction of the Supreme Court of Appeals and the judges of their circuit.

    Circuit judges are free to appoint commissioners in chancery and general receivers (lawyers who manage complex cases or enforce judicial orders), official reporters, and jury commissioners. Official court reporters are employees of the Supreme Court of Appeals and are subject to its "regulation, control, and discipline." Magistrate court clerks and deputy clerks are assigned to serve the magistrate court by the judge or chief judge of the circuit court for that county. However, the office of magistrate clerk is an option chosen by the circuit judge for counties with fewer than three magistrates. Magistrates can employ their own assistants. Since the office is not created by statute, only three of the forty-one circuit judges responding to a questionnaire from the author had access to law clerks. Two of the clerks were part-time and one judge shared a law clerk with another judge.

    The state legislature and governor cannot reject the Supreme Court of Appeals' appropriation request for the state judiciary. Presently, the judiciary receives an annual appropriation form the state government of approximately $34 million. However, the courts actually spend slightly more than that amount because they are able to generate additional revenue through various fees and court costs and because some of their costs, like office space and security, are paid for by county government. For example, fees and court costs collected by Magistrate Courts are remitted by local clerks to the Administrative Office to create a pool of additional financial resources for these courts. Also, family law master staff and facilities funds come from fiscal contribution agreements between the child advocate office, county commissions, and the administrative office and through fees and costs assessed by the masters. The family law masters also collect fixed fees for some services. Thus, unlike some states, full fiscal control of the judicial branch is not totally vested in the highest court. The magistrate's courts alone garnered fines and remittances of $13.81 million in fiscal year (FY) 1987-88, $14.26 million in 1988-89, and $15.76 million in 1989-90. In FY 1989-90 the $15.76 million in income resulted in allocations of $3.96 million to the state's School Fund, $2.91 million to the recipients of worthless checks, $0.46 million to county treasuries, and $8.42 million to various state governmental accounts.

Part II. The Trial Judiciary: The Circuit Courts and Magistrate Courts

    Trial courts are responsible for the consideration of civil and criminal law suits and the evaluation and issuance of a judgment about the evidence offered by both parties to the suit. This section describes the politics, personnel, and procedures and operations of West Virginia's primary trial courts: the Circuit Courts and the Magistrate Courts. Also, a description of the methods used by these judiciaries to maintain public confidence in their operations and an analysis of the policy outcome of trial litigation is offered. Since the state of West Virginia publishes very little information about its judiciary, a mail survey of the state's circuit judges and magistrates was conducted in the autumn of 1991 to learn about their procedures, attitudes, and organizational maintenance activities. Of the 155 magistrates in office at the time of the survey, 67.7 percent (105) replied, and of 59 sitting circuit judges, 69.5 percent (41) replied. The response rates rank as very good for mail surveys.

Politics: Judicial Selection and Judicial Political Activity

    The Judicial Reorganization Amendment of 1974 retained the historical process of electing members of West Virginia's judiciary by partisan ballot. Many other states have changed the selection processes or party nomination practices to ensure more socio-political diversity or less partisanship in the judiciary. For example, thirty-three states have adopted some form of nominating commission and gubernatorial appointment scheme for the selection of some of their judges, known as "merit selection." West Virginia, Arkansas, and Texas are the only states selecting all judicial officers on a partisan ballot. The Reorganization Amendment kept the staggered terms of Justices of the Supreme Court of Appeals at twelve years. It also retained the terms of circuit judges at eight years, with all of them being selected in the same election year. In 1992, the voters selected ten Republican and fifty-two Democrat circuit judges. Magistrate terms were fixed at four years beginning in 1977. Of the magistrates responding to the survey, 77.1 percent identified themselves as Democrats, 21.9 percent identified themselves as Republicans, and one magistrate indicated no party affiliation.

    The Reorganization Amendment also established a new requirement that Supreme Court of Appeals justices must have been admitted to the practice of law for ten years prior to election. Circuit Court judges must be admitted to legal practice for five years. Survey data revealed that the state's circuit judges had a median of twenty-four years of legal practice, with a range from five years to forty-three years. The median years of service as circuit judge was seven. Data gathered through the judicial survey indicates that most of these judges (75.6 percent) were in private practice immediately prior to their election as judges. Of the judges who were in private practice, 69.7 percent claimed a general, nonspecialized practice and 27.2 percent had a specialized civil practice.

    Of the sample, 17.1 percent of the judges were serving in prosecuting attorney offices immediately prior to judicial service. Only one circuit judge had specialized in the private practice of criminal law. Both the percentage of circuit judges in private practice and working as attorneys is greater than in average found in a 1977 national survey.

    Magistrates do not have to possess a law degree. Of the magistrates responding to the survey, only three (2.9 percent) possessed a law degree, while 22.9 percent had earned a college degree, 45.7 percent claimed some college level instruction, 24.8 percent held only a high school diploma, and 3.8 percent possessed a G.E.D. The majority of magistrates (52.4 percent) had a career in the private sector prior to their election, while 20 percent were civil servants and 12.4 percent held other elected office. The range of careers was very diverse - from farmer to police officer to homemaker. Comparable national data on magistrates and other petty court judges does not exist.
Survey responses revealed that West Virginia's circuit judges and magistrates are politically active and politically aware. Nearly half (46.3 percent) of the circuit judges responding to the survey considered themselves to be politicians. However, only 16.2 percent of the magistrates considered themselves to be politicians. Yet, of the magistrates, 4.8 percent reported they were very involved and 43.8 percent reported they were involved to some extent with their county party organization. No circuit judges said that they were very involved and only 24.4 percent said that they were involved to some extent with their county party organization. Magistrates also reported they spent more time campaigning for office (52.9 percent spent more than nine hours a week in 1988) than did the circuit judges (41.7 percent spent more than nine hours a week in 1984). Thus, it appears that many magistrates act like politicians even if they not consider themselves to be politicians.
Circuit judges and magistrates also report extensive contacts with state legislators. As indicated in Table 1, circuit judges and magistrates pay a great deal of attention to the actions of the legislature, regularly communicate with at least one member of the legislature, and discuss all sorts of political issues with legislators. Interestingly, circuit judges and magistrates much more frequently discuss general political issues with legislators rather than personal matters or matters affecting the courts. Normally circuit judges and magistrates confine their communications to less than five legislators. These are probably senators and delegates that serve the locality of the court. Finally, the circuit judges have a more positive perspective on the performance of the legislature than do the magistrates, but neither section of the judiciary gives the legislature high marks.

    Despite the frequent contact with the legislature, the circuit judges and magistrates reported few ex parte contacts (improper discussions of a case outside the courtroom or without the presence of the parties) about pending cases initiated by state legislators or local officials. Only one of the circuit judges and only six magistrates reported any ex parte contact or case discussions initiated by a state legislator, and only one of the respondents reported ex parte contacts with state legislators more frequently than once a month. Six circuit judges reported ex parte contacts initiated by city or county officials, but none of the judges reported contacts more frequently than once a month. However, 25.7 percent of the magistrates surveyed reported ex parte contacts by city or county officials, although the frequency of the contacts was less than once a month.

    As indicated by the data in Table 2, judges and magistrates report few contacts with other public officials. Only roughly one out of ten circuit judges and magistrates reported weekly contacts with other public officials about most aspects of judicial operations. Conversely, roughly one out of four judges and magistrates reported no contact with other public officials on aspects of judicial operations. The survey data also indicated that circuit judges most frequently contacted the Administrative Office of the Supreme Court of Appeals about personnel matters, budget, procedural rules, jurisdictional issues, and salary and benefits. They most frequently contacted county officials about facilities, and they most frequently contacted state legislators about the revision of statutes. Magistrates' contacts with public officials were most commonly with the Administrative Office, followed by state legislators, county officials, the Supreme Court of Appeals justices, and, almost never, federal officials. Like the circuit judges, magistrates usually contacted the Administrative Office about personnel, budgetary, procedural rules, and jurisdictional issues. Magistrates contacted county officials most frequently about facilities issues, and the most frequently contacted state legislators about salary and benefits.
 

Question/Response

Circuit Judges

Magistrates

Do you pay attention to the actions of the state legislature?
 

Great	56.1%	77.1%
Some	31.7	21.19
Not Much	12.2	1.1
None	0.0	0.0

Do you regularly communicate with a state legislator?
 

Yes	92.7%	89.5%
No	4.9	6.7
No Response	2.4	3.8

The number of legislators with whom there is communication:
 

One	9.8%	6.7%
Two	26.8	39.0
Three	19.5	16.2
Four	4.9	13.3
Five or More	31.6	11.5
No response or None	7.3	13.3

The communication with the state legislator is about (may mention more than one):
 

Judicial Affairs	43.9%	42.9%
Personal Matters	24.4	16.2
General Political Issues	85.4	75.2
Other	9.8	6.7

What is your evaluation of the legislature on issues affecting your court?
 

Excellent	7.3%	0.0%
Good	48.8	12.4
Only Fair	29.3	33.3
Poor	14.6	54.3

What is your overall evaluation of the state legislature?
 

Excellent	0.0%	0.0%
Good	46.3	17.1
Only Fair	34.1	55.2
Poor	19.5	3.8

Source: Circuit Judge and Magistrate Surveys conducted by the Institute for Public Affairs, 1991.
 

Court facilities
 

Circuit Judges	7.3%	26.8%	29.3%	29.3%	2.4%	4.9%
Magistrates	13.3	24.8	29.5	18.1	5.7	8.6

Support Personnel
 

Circuit Judges	14.6	24.4	24.4	24.4	7.3	4.9
Magistrates	31.4	17.1	18.1	11.4	11.4	10.5

Court Budget
 

Circuit Judges	36.6	22.0	24.4	7.3	0.0	9.8
Magistrates	41.9	13.3	23.8	4.8	1.0	15.2

Salaries & Benefits
 

Circuit Judges	19.5	39.0	24.4	7.3	0.0	9.8
Magistrates	13.3	21.9	42.9	9.5	3.8	8.6

Procedural Rules
 

Circuit Judges	9.8	46.3	22.0	12.2	2.4	7.3
Magistrates	17.1	21.9	26.7	14.3	8.6	11.4

Jurisdictional Issues
 

Circuit Judges	22.0	46.3	8.9	9.8	4.9	7.3
Magistrates	23.8	28.6	19.0	15.2	4.8	8.6

Revision of Statutes
 

Circuit Judges	12.2	41.5	29.3	12.2	0.0	4.9
Magistrates	17.1	21.9	38.1	11.4	2.9	8.6

Source: Circuit Judge and Magistrate Surveys conducted by the Institute for Public Affairs, 1991.

Personnel: A Portrait of the Judiciary

    During the past quarter century the selection of magistrates, judges, and justices has produced a judiciary that, like the judiciaries of almost all states, remains overwhelmingly white and male. There are only two black circuit judges in West Virginia, only one of the magistrates responding to the survey chose black as a racial identity, and no other judges or magistrates identified themselves as members of another racial group. Also, despite the election of a female justice to the Supreme Court of Appeals, in 1992 only one circuit judge and forty-nine (31.4 percent) of the magistrates were female. Like trial court judges in other states, most West Virginia circuit judges are middle aged. None of the respondent judges were under age 30, 2.4 percent were in their 30s, 29.3 percent were in their 40s, 26.8 percent were in their 50s, 26.8 percent were in their 60s, and 4.8 percent were over age 70 (9.8 percent did not respond to the question). Magistrates are, on average, younger than circuit judges. Survey results indicated that 1 percent of the respondent magistrates were under age 30, 25.0 percent were in their 30s, 21.9 percent were in their 40s, 34.3 percent were in their 50s, 11.4 percent were in their 60s, and 4.8 percent were over age 70 (1.9 percent did not respond).

    Of the circuit judges responding to the survey, 82.9 percent had attended the West Virginia University College of Law, the state's only law school, and had acquired their initial perception of the role of attorneys and the law in the same legal community. Interestingly, 90.2 percent of the circuit judges and 95.2 percent of the magistrates attended elementary school in West Virginia. Since extensive research suggests the formation of political values is most salient during a person's elementary school years, the West Virginia judiciary largely acquired its fundamental orientations toward law and politics within the state in the decades before 1960.

Personnel: Judicial Education

    In West Virginia all newly elected circuit judges are attorneys, but they are attorneys without special skills in judging. Like most states, West Virginia has taken steps to train new judges. The Supreme Court of Appeals has encouraged and financially supported the training of circuit judges in various out-of-state programs like the American Academy of Judicial Education and the National Judicial College which offer courses on procedural and operational management of courts. Also, each year the Supreme Court of Appeals requires circuit judges to attend two three-day long state judicial conferences that feature presentations on changes in current state law and federal decisions affecting state court procedures and trends in the law, criminal penalization, alternatives to adjudication, and other timely topics. Of the judges responding to the survey, 56.1 percent reported attending the program of the National Judicial College, 61.0 percent reported attending the program of the Academy of Judicial Education, 41.5 percent reported attending other judicial training programs. Only two judges reported no judicial training at all.

    Magistrates must attend training sessions scheduled by the Supreme Court of Appeals or face disciplinary action. One goal is to ensure that, during their four year term, magistrates have completed substantial classroom training and have passed four tests on their studies to demonstrate their knowledge of law and procedure. West Virginia's training requirement for magistrates exceed national norms. West Virginia appears to rank with Pennsylvania in making a strong effort to ensure a legally well-informed lower court judiciary. Some states still provide no training for nonlawyer judges.

Procedures and Operations: Courtroom Work Groups as a Setting for Activity

    The term "courtroom work group" is often used to describe the representatives of the various independent offices that interact to adjudicate or settle legal conflicts. What is striking about the majority of courtroom work groups in West Virginia is their small membership. The majority of West Virginia circuit judges (60 percent) work in a circuit with only one or two judges. In 1977, only 28.4 percent of trial courts across the nation had only one or two judges. The small number of circuit judges in West Virginia means that West Virginia's judges generally handle a case throughout its adjudication from pleadings to remedy. None of the judges responding to the survey reported handling only certain stages of the adjudication or specific types of cases, unlike 40.9 percent of trial judges in a national sample. The vast majority of West Virginia magistrates work in counties with two or three magistrates. In 1992, only eleven counties had more than three magistrates, thirteen counties had three magistrates, and thirty-one counties had but two magistrates.

    Although West Virginia's circuit judges and magistrates generally work apart from one another, suggesting a generalist and isolated judiciary, this conclusion must be qualified. West Virginia circuit judges and magistrates do occasionally sit outside their circuit or county. The assignment, managed by the Administrative Office of the Supreme Court of Appeals, normally occurs when there are conflicts of interest or delay problems in a particular court. Of the circuit judges, 90.2 percent reported sitting outside their circuit a median number of ten times. When adjusted for years of service, this amounts to one to two times a year. Of the magistrates, 81 percent reported sitting outside their county at least once, with a median number of five times. Thus, West Virginia judges and magistrates do not always work with a small work group in a totally isolated environment in case after case.

    West Virginia has a small bar of about 3,100 active attorneys, of whom 1,129 (36 percent) practice or work for the government in Kanawha County. Most attorneys graduated from the West Virginia University College of Law (approximately 75 percent) and work in small partnerships or as solo practitioners.

    West Virginia is an integrated bar state which means that all attorneys admitted to practice by the Board of Law Examiners, an arm of the Supreme Court of Appeals, must join, pay dues, and submit to the regulations of the West Virginia State Bar. A quasi-governmental body, the West Virginia State Bar operates under the supervision of the Supreme Court of Appeals. The primary tasks of the State Bar are the supervision of legal ethics -- its "highest priority," -- the management of programs for the mandatory twenty-four hours of continuing legal education required yearly for all bar members, the management of the IOLTA program, which provides funds for free civil legal assistance in the state and a pro bono or free legal assistance referral project, and the pursuit of proposals for legal or judicial reform suggested by its many committees. Although the Bar remains small and local in its training, in all respects, it administers programs typical of nationwide practices.
The relatively small size of the West Virginia State Bar affects the composition of courtroom work groups. In their most recent fifty civil cases, the magistrates reported the appearance of fewer than fifteen different attorneys as plaintiff attorneys 88.6 percent of the time. They also reported fewer than fifteen different attorneys appearing as defendant attorneys 87.6 percent of the time. Circuit judges reported contacts with more attorneys. Nearly half of them (46.4 percent) saw more than thirty different plaintiff attorneys and 29.3 percent saw more than thirty different defense attorneys in their most recent fifty civil cases. But, when compared to data from a national survey of judges, the number of lawyers appearing before the West Virginia courts was low.

    In criminal cases the circuit judges and magistrates see the same prosecuting attorney or assistant prosecuting attorney in case after case -- only 165 full and part time prosecuting attorneys serve the 31 circuits and 55 magistrate courts. Elected on a partisan ballot, prosecuting attorneys operate in the isolated environment of their county. Their criminal practice is not regulated by any agency or individual except the circuit judge. They do not follow any statewide standard for operating procedures or documentation practices, and they have no institutionalized method of communication with prosecuting attorneys in other counties. Such isolation, and independence is not common in the urban centers where most American criminal cases arise.

    Criminal defense counsel for indigent persons is provided either by one of thirty-two public defenders assigned to eleven of the thirty-one judicial circuits, seven of whom serve the thirteenth circuit in Kanawha County, or by judicially appointed attorneys. The public defender system is a new feature of the court system; only three offices operated prior to 1990 and the establishment of a branch of this system in all circuits remains incomplete. Data from FY 1991 indicates that public defenders appeared in roughly 4 percent of non-traffic criminal cases heard by circuit and magistrate courts and roughly 15 percent of all cases where counsel was appointed for indigent persons.

    The public defender system is directed by a small state agency called Public Defender Services. It publishes a Criminal Law Digest, sponsors seminars for the training of the defense bar and other criminal court participants, manages the finances of all defense services, and provides limited appellate defense services for indigent persons upon request. It has one attorney for indigent appeals. The oversight of each circuit's defender services remains partially in the hands of its Public Defender Corporation board. The selection of appointed defense counsel and the control of its services remains with the circuit judges. However, Public Defender Services compensates and audits the expenses of appointed counsel. The current payment rate is $45 per hour for office work and $65 per hour for court time to a maximum of $3000 per case.

    The survey questioned judges about the quality of the lawyers in their circuit. With regard to preparation of documents for the court, the circuit judges rated 63.5 percent of the lawyers as excellent or above average. Excellent or above average ratings went to 53.7 percent of the lawyers for case preparation and case management skills, 48.8 percent for settlement skills, and to 65.8 percent for trial skills. Nationally, judges ranked as excellent or above average 42 percent of lawyers' case preparation and management skills, 44 percent of lawyers' settlement skills, and 43 percent of lawyer's trial skills. Thus, in comparison to other American judges, West Virginia circuit judges seem especially pleased with the trial, and to a lesser extent, the case preparation and management skills of the state's lawyers.

    To evaluate the work of the other members of the courtroom work group, circuit judges and magistrates were asked to assess the supporting staff for the courtroom work group. The questionnaire specifically asked judges and magistrates to rank the efficiency of their secretaries, the probation office, the clerk serving their court, and, for circuit judges, their reporter on a seven point scale. As indicated in Table 3, the ratings generally were quite positive. The vast majority of secretaries, court reporters, probation officers, and clerks won high evaluations from magistrates and circuit judges. These evaluations were higher than evaluations of such personnel in the national survey of judges.

    Overall, the data on court size, the size of the bar, and the judicial evaluations of attorneys and staff leaves the impression of a small but cooperative set of courtroom work groups where judges and magistrates respect those persons with whom they work. At least from the vantage point of judges, most members of the work group are professionals who perform tasks with efficiency.

Procedures and Operations: Daily Tasks of the Judiciary

    The survey asked West Virginia circuit judges and magistrates to estimate the time that they spent on various tasks during a typical work week. Although these estimates should be regarded with caution, they give some sense of the amount of time devoted to some tasks as opposed to others and they provide for a comparison to the activities of judges in a national sample. The median self-reported estimated time for judicial and magistrate activities is presented in Table 4.
In general, when compared to data from the national survey, the time spent by West Virginia circuit judges on various tasks per week is roughly equivalent to the time spent by judges in other states. A possible exception is that West Virginia circuit judges might spend less time presiding at trials than judges elsewhere in the nation. Because of a lack of national data, it is impossible to compare the daily tasks of West Virginia magistrates to their full-time equivalents in other states.

    The survey data suggests that most West Virginia circuit judges like the mix of work on their schedule. When asked to indicate the variety of issues in their caseload on a seven point scale from too little to too much variety, 75.6 percent selected the mid-point on the scale. Nationally, the mid-point figure was 62 percent. When asked about their control of their work time on a similar scale, 58.5 percent indicated full or nearly full control of their work time (scale positions 6-7), and 34.3 percent selected scale positions (3-5) that indicated some control. Nationally, judges have indicated less control over work time. On a seven point scale asking about pressure to move cases, 24.4 percent chose scale positions (6-7) indicating they perceived too much pressure and 65.9 percent chose positions (3-5) between too much and too little pressure. Nationally, 31.8 percent of judges perceived too much pressure and 64.7 percent adopted more moderate positions. Most of the circuit judges indicated that new court rules that require speedier processing starting in July, 1992 would increase the pressure to move cases. Slightly more than half, 53.7 percent, expect more or much more pressure while 41.5 percent anticipate no change.

    Magistrates also indicated satisfaction with the variety of cases before them. The vast majority of magistrates, 81.9 percent, indicated positions between too little and too much variety.

Table 3
Evaluations of Supporting Staff Efficiency
 

Officer

Most Efficient (6-7)

Mid-Range (3-5)

Inefficient (1-2)

No Response

Secretary
 

Circuit Court	85.3%	12.2%	0.0%	2.4%
Magistrate Court	88.6	8.6	1.9	1.0

Probation Office
 

Circuit Court

80.4

12.2

4.9

2.4

Clerk
 

Circuit Court	70.8	19.5	2.4	7.3
Magistrate	60.9	34.2	2.9	1.9

Court Reporter
 

Circuit Court

78.1

12.2

2.4

4.9

Source: Circuit Judge and Magistrate Surveys conducted by the Institute for Public Affairs, 1991.

Task

Circuit Judges

Magistrates

Presiding at jury trial	8.0 hours	1.5 hours
Calendar	6.0	10.0
Administrative work	4.5	3.0
Preparing Decisions	4.5	2.0
Conferences and negotiation	4.0	1.5
Presiding at non-jury trial	4.0	9.0
Reading case files	4.0	3.0
Keeping up with the law	3.5	3.0
Socializing with work group	1.5	1.0
Travel time, on circuit	1.5	1.0
Waiting time, on parties	1.0	2.0
Other job time	0.5	4.0
Total, median hours per week	43.0	41.0
On Call	NA	49.5

Source: Circuit Judge and Magistrate Surveys conducted by the Institute for Public Affairs, 1991.

    They seemed to consider themselves in control of their work time. Two-thirds, 66.6 percent, selected a scale position (6-7) indicating full or nearly full control of their work time. Magistrates also indicated that they felt less pressure to move cases. Of the magistrates, 23.8 percent indicated that there was too little pressure on them to move cases (scale positions 1-2) and 56.1 percent took a position between too little and too much pressure.

    Most the cases before circuit judges and magistrates do not go to trial. Data for FY 1991 collected by the Administrative Office indicate that circuit judges disposed of 2 percent of adjudged cases (57,509) by bench trial and 1.7 percent of all cases by jury trial (cases pending are excluded from this analysis). Circuit court judges disposed of 1.2 percent of civil cases, 6.9 percent of criminal cases, and 0.2 percent of juvenile cases by jury trial. They disposed of 1.1 percent of civil cases; 4.9 percent of criminal cases, and 5.7 percent of juvenile cases by bench trial. Clearly trial was a more common option in criminal cases; however, the rate of trial dispositions in FY 1991 varied widely from circuit to circuit. In six circuits there were no civil bench trials, in twenty-one circuits there were no criminal bench trials, and in twenty-three circuits there were no juvenile bench trials. Six of the circuits had no bench trials at all during the year. In contrast, the third circuit (Doddridge, Pleasants, and Ritchie counties) disposed of 27 percent of civil cases, 44.8 percent of criminal cases, 30.6 percent of juvenile cases, and 29.1 percent of all of its cases by bench trial. Disposition of civil cases by jury trial ranged from 0.09 percent in the thirtieth circuit to 5.8 percent in the sixteenth circuit (Marion County). Disposition of criminal cases by jury trial ranged from 0.6 percent in the twenty-second circuit (Hampshire, Hardy, and Pendleton counties) to 19.5 percent in the twenty-sixth circuit (Lewis and Upshur counties). The disposition of juvenile cases by jury trial ranged from 0 percent in twenty-four of the state's circuits to 6.6 percent in the twenty-sixth circuit. In the sixteenth circuit 8.7 percent of all cases (N=1,618) went to jury trial, but in the thirtieth circuit only 0.5 percent of all cases (N=1,250) went to jury trial. In the sixteenth circuit 33.6 percent of all cases (N=1,618) were disposed of at trial, but only 0.4 percent of all cases in the in the twenty-second (N=1,031) and thirtieth circuits (N=1,250) were disposed of at trial.

    The volume of a circuit's caseload appears to be unrelated to the choice of a mode of disposition, indicating that local judges or the local legal culture determine the preference for trials and the extent of public resolution of disputes by a judge. The use of trials is not determined by the court's work load. Despite the variance in the number of trial dispositions per judge, circuit judges did not frequently preside or decide at trials with even minor policy enforcement implications. In FY 1991, the average West Virginia circuit court judge sat in 36.9 trials leading to a verdict, including 17.4 trials before a jury and 19.5 bench trials, and disposed of a total of 958.5 cases.

    Data from FY 1991 indicate that most magistrate courts made 0.1 percent of their total of 319,314 dispositions by jury trial (N=365) and 1 percent by bench trial (N=31,901). The number of bench trials as a percentage of total dispositions varied wildly, from zero in Calhoun County to 61.8 percent in Lewis County. Magistrates held very few jury trials, from zero in Barbour, Brooke, Lewis, Lincoln, Pendleton, and Randolph Counties to a maximum of thirty-three trials in Harrison County. The magistrates' trials were normally for various misdemeanor and motor vehicle offenses; only 41 of the 365 jury trials were for civil (small) claims. Indeed, criminal cases cataloged and disposed of as motor vehicle (N=137,944), worthless check (N=61,964), and "other misdemeanors" (N=66,952) occupied most of the magistrates' time. Only 11.6 percent of the cases they disposed of were civil disputes (N=45,460). The average magistrate sat on 204.5 bench trials, 2.3 jury trials, and disposed of 2046.9 cases in FY 1991. Again, as with the circuit courts, the magistrates are expeditiously processing cases and the choice of trial appears to be unrelated to the court's work load.

    The survey included specific questions concerning personal injury automobile accident cases and aggravated (armed) robbery. Circuit judges reported that it took a median time of 12.5 hours to try, from jury selection to verdict, a personal injury automobile accident case and a median time of 16 hours to try an aggravated (armed) robbery. These figures are near the norm for rural and Southern states. Magistrates reported that a typical non-jury debt collection case took a median time of one hour and a typical non-jury driving under the influence of alcohol case took a median time of two hours. Comparable national data is not available.

    The survey also asked specific questions concerning the circuit court judges' and magistrates' approach to trials and settlements. Table 5 reproduces the responses to questions about trial activity. In most categories the judges and magistrates differ minimally on their approach to trials. Most reported taking extensive notes, engaging in limited questioning of witnesses, and making few interruptions of counsel's arguments. The largest percentage differences were in responses to the questions about the expedition of testimony. Circuit judges more commonly encouraged counsel in chambers and in court to expedite testimony. Because most trials in magistrate's court are brief, magistrates probably sensed no need to encourage expeditious inquiry.

    The survey also asked about judicial case settlement tactics. Although West Virginia rules of criminal procedure prohibit judicial participation in plea bargaining, 26.8 percent of the circuit judges and 11.4 percent of the magistrates reported that they "occasionally participate in plea negotiation discussions." Obeying the court rule, 73.2 percent of the West Virginia judges and 81.9 percent of magistrates reported that they only ratified in open court the plea bargains arranged outside their presence. Nationally, when rules against judicial participation in plea bargaining exist in a jurisdiction, 87 percent of the judges only ratify plea agreements. Another 6.7 percent of West Virginia magistrates attend plea negotiation discussions but did not participate in them. The typical technique in civil settlement conferences, as indicated by 65.9 percent of the circuit judges, is to intervene subtly and offer suggestions. At the national level, the frequency of this choice is a nearly identical 67.9 percent. Another 24.4 percent of the circuit judges did not participate in settlement conferences or found them to be inappropriate, similar to 21.8 percent nationally, while only 4.9 percent of the West Virginia judges adopted an aggressive posture and used direct pressure on counsel.

    Finally, the survey asked the magistrates and circuit judges to evaluate themselves. Table 6 reports their responses together with responses from a national survey using the same categories. The data suggests that West Virginia circuit judges tend to evaluate their skills somewhat more negatively than did the national sample of judges or the sample of West Virginia magistrates. Indeed, not one of 105 magistrates evaluated themselves below average or poor in any of the three categories of skills about which they were questioned. Negotiation was the one skill that the circuit judges marked their skill less strongly over all and consistently lower than the national sample of judges. The reason for this pattern is not clear.

Taking notes
 

Cicuit Judges	51.2%	29.3%	19.5%	0.0%	0.0%
Magistrates	46.7	43.8	7.6	1.0	1.0

Questioning witnesses
 

Circuit Judges	2.4	19.5	61.0	14.6	2.4
Magistrates	4.8	26.7	59.0	8.6	1.0

Encouraging counsel to expedite testimony, when in chambers
 

Circuit Judges	7.3	39.0	39.0	14.6	0.0
Magistrates	3.6	18.1	36.2	40.0	1.9

Encouraging counsel to expedite testimony, in the courtroom
 

Circuit Judges	2.4	24.4	51.2	29.3	2.4
Magistrates	1.0	14.3	39.0	41.9	3.0

Interrupting counsel during legal argument to expedite, clarify or advise
 

Circuit Judges	7.3	24.4	36.6	29.3	2.4
Magistrates	1.9	12.4	42.9	38.1	4.8

Source: Circuit Judge and Magistrate Surveys conducted by the Institute for Public Affairs, 1991.

Adjudication
 

WV Circuit Judges	18.9%	62.2%	13.5%	2.7%	2.7%	37
WV Magistrate	22.9	50.5	26.7	0.0	0.0	105
National Trial Judges	31.0	54.1	14.8	0.1	0.0	2,975

Administration
 

WV Circuit Judges	18.9	43.2	27.0	10.8	0.0	37
WV Magistrates	18.1	41.9	40.0	0.0	0.0	105
National Trial Judges	18.4	39.4	36.5	5.3	0.4	2,960

Community Relations
 

WV Circuit Judges	24.3	45.9	21.6	8.0	0.0	37
WV Magistrate	28.6	41.9	40.0	0.0	0.0	105
National Trial Judges	21.7	35.2	35.4	6.9	0.8	2,941

Negotiations
 

WV Circuit Judges	0.0	36.4	42.4	15.6	6.1	33
WV Magistrates	NA	NA	NA	NA	NA	NA
National Trial Judges	16.7	34.2	37.9	9.0	2.2	2,831

Source: Circuit Judge and Magistrate Surveys conducted by the Institute for Public Affairs, 1991; John Paul Ryan, Alan Ashman, Bruce Sales, and Sandra Shane-DuBow, American Trial Judges (New York: The Free Press, 1980), p. 162

Organizational Maintenance: Community Relations

    Organizational maintenance is the activity of members of an institution, like the courts, to protect their job and the legitimacy of their enterprise. Because judges are significant public figures in any community, they might act to defend themselves against opposition or criticism. Especially West Virginia circuit judges and magistrates might confront criticism that demands defensive action on their part. However, the survey data revealed that only 51.3 percent of the responding circuit judges and only 42.7 percent of the responding magistrates reported hotly contested judicial elections in which their actions might be challenged. Only 58.5 percent of respondent judges and 43.8 percent of the magistrates reported extensive newspaper coverage of their court. They reported infrequent court watcher projects (none for the judges and only 8.8 percent of magistrates), few college or university research projects about their court (only 12.2 percent of judges and 16.2 percent of magistrates), and occasional visits by public school students (reported by 70.7 percent of circuit judges and 36.2 percent of the magistrates).

    Nevertheless, because of the need to maintain the prestige of their office or the law and, often, their own desire to establish contacts with community leaders and voters, circuit judges and magistrates spend some time associating with segments of the public beyond the confines of their official contacts. The data in Table 7 indicates that most of the judges and magistrates spend between one and eight hours per month on community relations activities. Only small percentage differences (less than five percent) separate the time devoted to community relations by West Virginia's circuit judges and magistrates from the national pattern.

    Judges also have the opportunity to devote time to professional bar associations. However, 46.3 percent of the judges reported they devoted no time to organized bar activities, and 39 percent devoted only one or two hours a month to such activities. As attorneys, judges must be members of the West Virginia State Bar. However, only six claimed membership in the American Bar Association. Twenty-seven said that they belonged to a county or city bar association, reflecting the local orientation of their associations.

Organizational Maintenance: Judicial Performance, Ethics, and Discipline

    To maintain the prestige and legitimacy of the judicial function, the judiciary has developed procedures to ensure the competency and integrity of its members. However, other than elections, there is no regular procedure for evaluating the competency of the performance of West Virginia's judiciary. The Supreme Court of Appeals does, however, exert some control over circuit judge competency through appellate review and through its power to hold circuit judges in contempt of court for actions counter to Supreme Court of Appeals orders. It also has the authority to censure or temporarily suspend any justice, judge or magistrate for violation of ethical rules it establishes or to retire judges when physically or mentally incapacitated. Recommendations for disciplinary action against justices, judges, and magistrates are referred to the Supreme Court of Appeals through a complaint process established by court rules. Complaints about the integrity of judicial officers are received by a nine member Judicial Investigation Commission which is composed of two circuit judges appointed by the West Virginia Judicial Association, a magistrate appointed by the West Virginia Magistrates

Source: Circuit Judge and Magistrate Surveys conducted by the Institute for Public Affairs, 1991; John Paul Ryan, Alan Ashman, Bruce Sales, and Sandra Shane-DuBow, American Trial Judges (New York: The Free Press, 1980), p. 42.
 

    Association, a family law master appointed by the West Virginia Family Law Master Association, two lawyers appointed by the West Virginia State Bar, and three lay persons selected by the Governor. In recent years the Commission has considered between 99 and 132 complaints a year.
Once the Commission's secretary receives a complaint the part-time counsel and three investigators on contract to the Commission conduct confidential investigations of potential violations of the canons of the Judicial Code of Ethics or of questions of the physical or mental incapacity of judges. After consideration of the evidence about a complaint mustered by counsel at one of about six meetings a year, the Commission can choose to file a complaint with the Judicial Hearing Board by majority vote. The Judicial Investigation Commission has also issued a series of advisory opinions to educate judges about ethical standards. Some information on ethics also is placed in a newsletter sent to judges and magistrates with their paychecks.

    The Judicial Hearing Board, with nine members selected in the same fashion at the Commission, considers the complaint. If the complaint cannot be resolved by a prehearing conference or any related remedial action, it will hold a public hearing on the record. If the Board finds an ethical violation it can recommend admonishment, public or private reprimand, temporary suspension from duties for up to a year, and a fine of up to $5,000 against the judicial officer. It can recommend retirement if the judge is incapacitated. The Supreme Court of Appeals will then decide whether to accept and enforce the recommendation of the Judicial Hearing Board. Circuit judges and magistrates can be removed from office only by the independent acts of impeachment by the House of Delegates and conviction, by two-thirds vote, of the state Senate.

    In rare, extraordinary cases the Supreme Court of Appeals can act to discipline a judge without having to follow this procedure. Magistrates can also be removed from office after conviction of a felony, a misdemeanor involving moral turpitude, or a willful violation of statutory duties or court rules established by the Supreme Court of Appeals. In some respects, West Virginia's disciplinary practice is atypical. In most states the removal or retirement of unfit judges is left at least in part to the judiciary or a judicial qualifications commission. However, in West Virginia, like Arkansas, Massachusetts, New Hampshire, Tennessee, Vermont, and Wisconsin, the judiciary or a commission cannot remove judges who are found to be unfit for office.

Policy Outcomes: The Disposition Of Cases

    The ultimate measure of the quality of any political institution is its policy product. Most frequently, the West Virginia judiciary's policy product is the settlement of personal disputes and the penalization of criminal law offenders. Nationally, courts have experienced an upsurge in litigation. Data on dispositions collected by the National Center for State Courts is reported in Table 8. Although the Center reported a low civil litigation rate for West Virginia in comparison to other states on which there is available data, in the period between 1978 and 1991 both the circuit and magistrate courts experienced a significant increase in case dispositions. The increase in cases was most noticeable in the criminal category, especially in the magistrate courts where state statutes redefined some traffic offenses involving alcohol use as crimes.

Circuit Courts
 

Civil	34,838	42,695	NA	41,092	45,183	38,652	46,810
Fam. Law	NA	NA	NA	NA	NA	12,199	15,042
Criminal	6,178	7,540	NA	6,105	6,455	7,042	6,897
Juvenile	6,251	7,201	NA	6,533	6,357	6,450	6,015
Total	47,267	57,706	NA	53,730	57,985	52,144	59,722

Magistrate Courts
 

Civil	38,838	52,311	NA	53,558	50,559	48,832	45,460
Criminal	100,893	118,147	NA	113,195	127,476	142,279	135,910
Traffic	115,711	106,864	NA	110,331	104,954	97,524	137,944
Total	255,128	277,322	NA	277,084	282,974	288,635	319,314
Grand Total	302,395	285,028	NA	330,814	340,974	340,779	379,036

Source: National Center for State Courts, State Court Caseload Statistics: Annual Report 1978 (Williamsburg, VA: National Center for State Courts, 1983), pp. 434-435; National Center for State Courts, State Court Caseload Statistics: Annual Report 1980 (Williamsburg, VA: National Center for State Courts, 1984), p. 474; National Center for State Courts, State Court Caseload Statistics: Annual Report 1984 (Williamsburg, VA: National Center for State Courts, 1986), pp. 78, 84, 90, 94; National Center for State Courts, State Court Caseload Statistics: Annual Report 1986 (Williamsburg, VA: National Center for State Courts, 1988), pp. 163, 173; National Center for State Courts, State Court Caseload Statistics: Annual Report 1988 (Williamsburg, VA: National Center for State Courts, 1990), pp. 119, 129, 137, 146, 152. Data for FY 1991 supplied by the West Virginia Administrative Office.

    Yet, the courts did not often have to dispose of cases in a formal manner. As noted, trials are a rare occurrence. Most cases ended with a disposition arranged by the parties, including 96.3 percent of the cases filed in circuit courts and 89.9 percent of the cases filed with magistrates. What happens to these cases? Most criminal cases are bargained to a guilty plea by prosecutors. Negotiations between the parties settle many civil cases. Cases are not pursued by the parties. And, judges and magistrates dismiss cases. Magistrates indicated that they dismissed a median of 10 percent of their cases. Thus, the attrition of cases is enormous. Consider small civil claims filed in FY 1991. In these cases the parties expeditiously disposed of most cases without a trial (37,092 cases or 81.6 percent of 45,460 claims). Only 659 (7.9 percent) of 8,368 civil small claims tried in magistrate court were appealed to circuit court, and of these only 66 cases resulted in circuit court trials. Consequently, magistrates and circuit judges have relatively limited opportunity to enforce, adjust, or innovate local legal policy. They primarily manage the routine disposition of disputes.

Part III. The Family Law Master System

    As noted previously, the legislature created the West Virginia family law master system in response to federal legislation. In its current operational mode, the twenty-two family law masters act as agents of the circuit court judges. They serve as part-time officers to whom the chief judge or judge of the local circuit court is to refer matters affecting the assignment of child custody and disputes about child custody, child visitation rights, child support payments, and paternity. All masters are attorneys, but they do not have to have experience in family law or long service at the bar. They receive limited yearly training from a supervisor in the Administrative Office, but they are free to adopt local rules of practice and documentation within the confines of the law. They often operate in less than satisfactory facilities and have only a part-time assistant.

Procedures and Operations

    Since family law master districts do not often correspond to the boundaries of circuit courts, the masters often serve under the jurisdiction of two or three chief circuit judges. Circuit judges can, upon motion, revoke the referral of a case to a master. In the performance of their duties the family law masters are in frequent contact with Child Advocates, the child support enforcement arm of the state's Department of Health and Human Resources. Child Advocates offers alternative mediation and counseling so parties can avoid taking post-divorce or other child support matters to the family law master, enforces and collects child support and medical support obligations, and establishes the paternity of illegitimate children. These functions are performed both for welfare recipients (to offset the cost of AFDC [child welfare] payments under what is called the "IV-D" program) and, in a more limited fashion, for other parties.

    Case management is not fully in the hands of the family law master. A family law case starts with a filing of a claim for divorce, child custody, and, or child support with the Clerk of the Circuit Court. Parties can do this with a private attorney, through the local Child Advocate who handles the documents and fees, or pro se (for themselves) with the assistance of materials provided by the Clerk. After process is served on the defendant, the attorney, Child Advocate, or the party must secure a hearing date with the master. Ineffective communication with the Clerk's Office can delay the transference of files related to previous child support or custody decisions to the family law master. To further investigate the case, family law masters possess subpoena and contempt of court powers.

    Family law masters have the power to hold hearings on the record that employ an adversarial, due process mode of procedure. They can issue decisions that are subject to review and enforcement by the circuit court either by order or after trial. Since the Supreme Court of Appeals has not established procedural rules for their courts (these are now under consideration), some family law masters will conduct hearings with less of the formality of a trial and more along the lines of a settlement conference. However, a survey by an independent auditor reported wide variations in procedural formality and practices. Most hearings are brief and rarely take more than one hour, so masters average about 110 hearings a month. The masters' schedules are often flexible so they can address emergency situations, and the time spent on what is officially a part-time job can approach full-time standards. To further investigate the case, masters possess subpoena and contempt of court powers. Also, they often set aside specific periods for hearing cases presented by the Child Advocate. Because of the press of business, routine cases must wait a month to two months after filing for a hearing date. After a hearing, the master normally advises counsel or the Child Advocate to draft an order consistent with the findings announced by the master at the conclusion of the hearing. The draft order, due in ten days, is reviewed, modified if necessary, and sent to the parties for review and the filing of possible objections. After ten more days the recommended order is sent to the Circuit Judge for review, possible modification, and signing. Circuit judges also retain the power to cite a party for the contempt of family law masters, procedural rules, and final orders. Objections to the order very rarely result in a hearing before the circuit judge, but regardless, the family law master might not be informed of any objections filed with the judge. Salient information in the order is recorded into a computerized network of child support and custody information to assist the Child Advocate in enforcement of support orders.

Policy Outcomes

    Data collected by the Administrative Office indicates a marked increase in domestic relations issues normally disposed of by family law masters -- from 7,846 dispositions in 1987 to 15,722 dispositions in fiscal year (FY) 1991. Statewide, domestic relations cases accounted for 26.1 percent of the circuit court docket in FY 1991, but these cases mostly absorbed family law master time. Family law masters each disposed of a mean of 715 cases in fiscal 1991. However, their work is probably underestimated by examining the number of dispositions. Many hearings consider modification or enforcement of previous dispositions, but no record of the number of hearings, the number of cases referred to circuit judges for action, or the form of circuit judge action exists. Therefore, the basic policy product of family law master activity is ongoing peace keeping in domestic relations and the ongoing protection of the interests of the children of divorce.

Part IV. The West Virginia Supreme Court of Appeals

    The West Virginia Supreme Court of Appeals is the court of last resort for disputes arising under the laws of West Virginia. It is the state's only appellate court, with the power to review and possibly correct the decisions of the state's circuit courts and some administrative agency decisions. After describing the politics and operations of the Court, an introductory assessment of the Supreme Court of Appeals' functions is offered, focusing on its political context. Procedures for reviewing the decisions of other West Virginia courts and state administrative agencies, the Court's management of the state judiciary and state bar, and its policy decisions are also presented.

The Political Context of Appellate Justice

    West Virginia's voters elect the justices of the Supreme Court of Appeals for twelve year terms using a partisan ballot. With only one exception, all of the justices elected to the Court during the past 20 years have been Democrats and most of them were politically active in partisan politics prior to their election. For example, Darrell McGraw, who served on the Court from 1977 to 1989, had ties to reform interests and the United Mine Workers union. Richard Neely, a justice from 1973 to the present, was the grandson of a former governor and United States Senator. Despite a conservative approach to the use of judicial power in some major cases, he has openly admitted to the importance of politics in judging and has written a number of books and pamphlets to that effect, including one with the decidedly political title of: How Courts Govern America. James Sprouse, a former state legislator, left the bench to seek the Democratic gubernatorial nomination. Failing to secure the nomination, he was later appointed to the federal Court of Appeals for the Fourth Circuit. Fred H. Caplan, justice from 1962 to 1981, was a former state legislator and member of West Virginia's Public Service Commission. Sam R. Harshbarger, justice from 1976 to 1983, had been active in county Democratic politics. William T. Brotherton, Jr., justice from 1983 to the present, was the former majority leader of the West Virginia Senate. Thomas E. McHugh, justice from 1981 to the present and Margaret Workman, justice from 1989 to the present, both had been elected as Kanawha County circuit judges and had worked in the campaigns of various Democratic politicians.
Only five Republican justices have served on the Court since 1970 -- John Carrigan, Edwin Flowers, Charles Haden, Oliver Kessel, and Donald Wilson. They served on the Court for only a brief time because they were appointed to fill vacancies by Governor Arch Moore, a Republican. With the exception of Haden, they all subsequently lost their seats in the next general election. Haden resigned after being elected to the Court to accept a federal judicial appointment.

    Because 63 percent of the registered voters in West Virginia are Democrats, compared to only 38 percent who are Republicans, the most important electoral contests for seats on the Court in recent memory have occurred in the Democratic primary. The 1988 Democratic primary has earned a place in the folklore of the state's legal community. In contrast to previous elections for the Court, the prominence of the Court's policy role as a campaign theme and the cost of the election made the election unique. The three challenger candidates (Fred Fox, John Hey, and Margaret Workman) labeled the two incumbent candidates (Darrell McGraw and Thomas Miller) as activists who made decisions that went beyond proper limits of judicial power. The incumbents were accused of using the Court to make policies that aided special interests like labor unions, tort (personal injury) claimants, worker's compensation claimants, and criminal defendants. The Democratic challengers all promised to act in a more restrained manner if they were elected to the Court. The candidates spent a total of $749,000 during the primary, forcing many of them to seek financial and other assistance from various organized interest groups. Campaign contributions reflected the candidates' positions on the Court's policy role. Most of the challengers' campaign contributions came from business and industry groups. Most of the incumbents' contributions came from labor organizations. There was also heavy spending on radio and television advertising. Eventually, Miller won renomination while Workman pulled out a narrow victory over McGraw for the second nomination. In contrast, the 1992 election Justice McHugh ran for reelection with no significant opposition in either the Democratic primary or the general election.

    The 1988 primary election suggests that West Virginia judicial elections are not always low-key political events. When organized and financially solvent interests perceive that they have been damaged by a justice, they will move to oust the justice. In this regard, the 1988 Supreme Court of Appeals primary was not unusual when compared to the costly and conflictual nonpartisan Supreme Court elections in Ohio or Supreme Court judicial retention elections in California. Nevertheless, the cost of running for office concerns the current justices of the Court and the members of the state bar. For example, one of the current justices indicated in a recent interview that "I don't like the idea of having to raise the kind of money we have to raise." However, all of the justices interviewed indicated that contributions do not affect their judicial actions. This particular justice stated that:

    I think that (soliciting money) is bad, although I've never heard it mentioned that so and so gave money so we ought to rule in his favor. I can't remember who gave me money to tell you the truth. I can remember some of them but that never made any difference to me, and I don't think it makes any difference to any justice when it comes up.

Nevertheless, the justice also added:

...its bad to think that the only people that give you money are lawyers and why should they really be interested in good government if that's what we're turning out up here? The opinions ought to be based on fact and on the law and the general public ought to be interested too. Too many special interests, labor represents or backs a certain group and business backs a certain group and that's wrong.

    Despite the justices' recognition that the cost of campaigns, campaign donations from lawyers, and the practice of campaign statements and promises can create potential conflicts of interest, they indicated that elections have a positive side. As one justice noted, "In general, elected judges tend to be slightly more populist than appointed judges. In general, elected judges tend to be more substantially accommodating to the people who appear in their court because they're also their constituents...".

    The concern for reelection also encourages the justices to keep in touch with the public. For example, unlike the members of the Supreme Court of the United States, they are, for the most part, very willing to speak with members of the media. They are also more likely to agree to make presentations at public events and are even willing to submit themselves to interviews from university students and faculty researchers. They also recognize that publishing off of the bench can enhance their reelection prospects by increasing their name recognition among the public and their reputation among attorneys.

    The justices also indicated that they retained contacts with members of the bar and politicians after they ascended to the bench, but they all avoided any discussion of specific cases. The justices also maintain an informal liaison with the state legislature and regularly communicate with the President of the Senate, the Speaker of the House, and the chairs of the House and Senate Finance Committees about the judicial branch budget and legislation affecting the courts. They also reported occasional informal contacts with the governor's staff and, more rarely, with federal judges and the judiciary of other states. They also indicated that they frequently interact with circuit court judges at judicial conferences, bar meetings, social events, and when the judges come to the capitol to attend to business with the Administrative Office.

    In West Virginia judicial independence does not appear to be threatened by the partisan election of the Court or by its contacts with other office holders. However, the partisan electoral system does produce justices with an acute awareness of the political nature of many of their actions and with a willingness to be open to the public. West Virginia's Supreme Court's justices do not interpret judicial independence to mean that they must be isolated from the public's concerns.

Procedures of Appellate Review

    The five members of the Supreme Court of Appeals determine the scope and pace of their work and the procedures that they use to dispose of cases. As amended, the West Virginia Constitution gives the Supreme Court of Appeals jurisdiction in cases in which appellants petition for appeal, petition the justices for relief by seeking legal documents called writs of certiorari, habeas corpus, mandamus, or a prohibition that affect state executive branch operations or the enforcement of the law, and when parties request certification of a legal question from a case under consideration by a circuit court. The justices decide by majority vote whether to grant these petitions or other documents necessary for the initiation of review. Thus, the justices have complete discretion to fix their docket or the list of cases that they review. This is extremely unusual in the United States. Only two other courts, the New Hampshire Supreme Court and the Wisconsin Supreme Court, among all federal and state appellate courts, have no mandatory jurisdiction and full discretion to select their own docket.

    A court's role in politics and public policymaking is dependent on the universe of disputes it confronts. In recent years there has been an increasing demand on American courts for the resolution of all sorts of public and private disputes, and the Supreme Court of Appeals has not been immune to this trend. As Figure 2 illustrates, applications for review filed with the Supreme Court of Appeals rose from 1,159 in 1983 to 3,180 in 1991. Much of the increased demand for review came from parties seeking review of worker's compensation cases. In 1991, 61.2 percent of appeals to the Court involved worker's compensation cases. The remaining appeals involved civil cases (16.5 percent), criminal cases (5.7 percent), habeas corpus cases (4.7 percent) and other cases (11.9 percent). During the last decade, as indicated in Figure 2, the Court has also heard more cases, increasing both the number of petitions for review granted, from 397 in 1980 to 973 in 1991, and the number of cases docketed for decision, from 66 in 1969 to 588 in 1989. With the increase in petitions has come a different mix of petitions. Figure 3 shows an increasing share of petitions are for review of workers' compensation cases.

    As the press of business has increased, the justices have moved from the constitutionally mandated two sessions a year to nearly continuous sessions. In 1989, the increased caseload resulted in the disposition of 281 cases by a signed opinion, reflecting a detailed consideration of the case by the Court. This is an unusually high number of cases for a state Supreme Court. In 1989, the West Virginia Supreme Court produced about 85 percent more cases with signed opinions than did the Supreme Court of the United States and the number of opinions written per justice in West Virginia was the fifth highest in the nation, exceeded only by the courts of last resort in Hawaii, Indiana, Nebraska, and South Carolina.

    Despite the increasing caseload, the West Virginia Supreme Court of Appeals has not moved to reduce the number of cases it reviews by being more selective when screening cases for review. Data collected by the National Center for State Courts indicates that the West Virginia Supreme Court of Appeals is more likely than any other court of last resort in the nation to grant discretionary petitions for review. It granted review of 48.7 percent of the discretionary petitions in 1988 and 36.1 percent in 1989. These were the highest percentages in the nation, with Massachusetts being the next highest state each year with 34.8 percent granted in 1988 and 35.3 percent granted in 1989. Since the Court has no mandatory jurisdiction and since the total appellate filings per capita in West Virginia are only slightly above the national mean, these figures suggest that the justices are creating greater opportunities for the Court to affect a wide range of law and policy matters. Indeed, they even accept pro se (for oneself) petitions for review from unrepresented litigants dissatisfied with a circuit court ruling who wander into the Court Clerk's office in the Capitol Building. The result is that the Court has one of the highest rates of case filings per justice of any state court of last resort. It has purposefully chosen to be a Court readily accessible to litigant demands.

    The Court's procedural rules deserve special attention because they determine if and how final policy disputes are considered. For the most part, applications for review reach the Court from one of four arenas: from the circuit courts, from the Workers' Compensation Appeal Board, from the Judicial Hearing Board, or from the Hearing Panel of the West Virginia State Bar. A very few cases are remanded (returned for further consideration) to the Court by federal appeals courts or are certified to the Court by federal courts which are seeking a definitive interpretation of West Virginia law.

    In 1991, roughly 38 percent of applications for review made to the Supreme Court of Appeals asked for reconsideration of circuit court decisions. West Virginia is among a small number of states that permit an applicant for workers' compensation to appeal an adverse administrative determination directly to the court of last resort rather than to a trial or intermediate appellate court. As mentioned previously, applications for review of workers' compensation decisions account for more than 61 percent of the applications for review filed with the Court. Less than 1 percent of cases filed for review with the Court deal with the review of decisions about judicial conduct by the Judicial Hearing Board or lawyer conduct by the West Virginia State Bar's Hearing Panels.

    To appeal a case, to certify a case, or to seek a writ from the Court, litigants seeking relief first must file copies of a petition of up to fifty pages for the appropriate form of relief with the Clerk of the Court. Those seeking a writ must also offer any exhibits or affidavits that support their need for a writ, a memorandum on the legal authority for the writ, and a list of the persons on whom the writ is to be served. The filing must occur within four months of the circuit court decision in the case or within a specified period if the appeal challenges an administrative agency action. All respondent parties or their attorneys must then be served with copies of all documents filed by the petitioner. The respondents may then file a response of up to fifty pages in length with the Clerk or move to dismiss the appeal. Respondents in request for writs might enter into a procedure called discovery to specify the material facts of the dispute for the Court. The Clerk and his deputy and staff maintain all documents related to the case and distribute them to the justices' chambers.

    Since the Court is one of only three American courts of last resort with no mandatory cases on its docket, petitions for review are evaluated not just on the basis of initial briefs or written summaries of their claim, but, at the appellants request, at a "motion" or petition hearing before the justices. Petitioners must schedule the hearing on the Court's motion docket within thirty days of the filing of a petition. These hearings are mostly scheduled early in one of the Court's two yearly terms which begin in September and January, or during the special summer term common in recent years. At the hearing, the justices inquire into the reasons why the appellant's counsel thinks that the docketing of the case is necessary. Over thirty motions are heard on a typical day when the motion docket is scheduled, and some motions are also heard on days when oral arguments are heard or when a petitioner seeks an extraordinary session. Because many issues are relatively simple, the motion hearing is often less than the court-imposed limit of 10 minutes. Despite the rapidity of the hearings, they give attorneys an opportunity to emphasize the merits of their petition directly with the justices or to show cause why they need to have the Court issue a writ. Unlike federal appellate courts, any member of the state bar can argue a case before the Court. This leads to some variability in the quality of the appellate briefs and arguments that troubles some of the justices. Rarely, pro se petitioners will present the merits of their petition. The justices reported in their interviews with the author that they find the motion hearing to be of great value when determining their vote for review, and some of them indicated that they rely on it far more than the written briefs when evaluating the merits of the case. This procedure is not used in federal appellate courts. Cases there are selected for review without oral presentations and normally with a culling of the petitions for review by staff attorneys or law clerks.

    The Court's staff play a very important role in the processing of cases. For example, five staff attorneys, known as writ clerks, prepare summaries or "bench memoranda" on petitions for review that are not presented on the motions docket. The writ clerks also summarize in memoranda the workers' compensation appeal petitions, a special group of cases excluded from the motion docket. Recently, because of the press of Court business, the justice's personal and per curiam clerks (whose duties are explained below) have assisted in this task. The memoranda are presented by the writ clerk to the justices. At scheduled conferences, the writ clerk is requested to report to the justice's conference room where she or he stands at the end of the conference table opposite the Chief Justice and addresses questions about the petitions for review and memoranda. To facilitate this process, workers' compensation cases do not normally receive oral presentations from the writ clerk unless initial briefs disclose a novel issue.

    After the motion hearing or the writ clerk's presentation on the petition and brief, the justices decide whether to grant the docketing of a petition for appeal, certification, or a special writ by majority vote. Two votes for review will suffice when a justice is recused (does not hear the case because of possible conflict of interest) or is incapable of participation because of illness or special circumstances. The vote occurs at its weekly conference in reverse order of seniority on the Court.
Once the Court grants a petition for review, information on transcripts of previous adjudications must be filed by the petitioner with the Clerk. Transcripts must be made available to the Court after a petition is granted. Petitioners, now called appellants, also must file a brief, a summary of the legal arguments in favor of their claims of error in the lower tribunal, with the Clerk and the respondent party. Respondents, now called appellees, have fifteen days to file a brief in response. Parties who do not file a brief in the required time can be sanctioned by the Court. The Court also will allow parties not involved in the litigation to file briefs, called amicus curiae (friend of the court) briefs, to enlighten the justices about the ramifications of the case. The Court's rules provide that state officials and agencies do not need the Court's permission to file an amicus brief. Normally amicus curiae do not participate in oral argument.

    Some less significant and routine cases feature per curiam or brief opinions signed "by the Court" after the consideration of briefs but without oral argument. Justice Thomas Miller assumes the task of sorting out cases for per curiam disposition. Normally these are cases which raise no novel issues of law and cases that demand no clarification of existing law. The drafting of the 70 to 80 per curiam opinions or orders per year is then assigned in rotation to one of the five per curiam clerks of the Court. They are semi-permanent staff attorneys of the Court and are assigned one to each justice. Each justice monitors the work of their clerk.

    When the Court is in session it hears motions for review and considers oral arguments on docketed cases, called the "Argument Docket," on Tuesdays and Wednesdays. The amount of time dedicated to hearings and oral arguments decreases during the course of a term as more time is spent on the preparation of opinions. Oral arguments in cases granted review are heard in the courtroom in the East Wing of the state capitol. The courtroom is a nearly square space with a thirty foot high ceiling and walls surrounded by doric columns of Danby Vermont white marble and burgundy drapes, accoutered with walnut benches, seating and paneling, and with a frieze at the top of the wall with quotations from Thomas Jefferson and Abraham Lincoln. The justices sit at a long, straight elevated bench. The Clerk of the Court sits below them and to their right. In recent years the Court has traveled to the College of Law at West Virginia University for a day-long televised session.

    At oral argument, counsel speak from a podium for periods of up to twenty minutes, supervised by the Chief Justice, but, unlike the United States Supreme Court, the Chief allows occasional latitude in presentation time. Appellants are also allocated up to ten minutes rebuttal time, unknown in the United States Supreme Court. Appellees have no rebuttal time. The justices typically intervene in counsel's presentation with numerous questions about the case, so much so that counsel often try to state the key themes of their argument in simple declarative sentences at the opening of their presentation. Nearly all of the questions from the justices either attempt to clarify the facts of the case as they relate to alleged legal errors by the circuit court, the meaning of the law on the issue at hand, or ways of interpreting precedents both of the Court and other state supreme courts or federal courts. Although the questioning is serious, inadvertent humor often occurs.

    Thursdays are reserved for the justices' conference. At the conference, the justices, after ruling on petitions for review, consider the cases argued that week. The justices sit at a dark walnut table in the conference room adjacent to the courtroom, with the Chief Justice at the head of the table and two justices at each side. This white walled room with walnut wainscoting, a grandfather clock along the north wall, a reproduction of the West Virginia statehood statute between windows on the east wall, the conference table and chairs, and three other chairs, is spartan in appearance. Library carts hold relevant case materials and legal reference works. There is a stand with a large dictionary. Shelves on the south wall of the room contain sets of legal reporters and reference works.

    The discussion of cases opens with the Chief Justice and then proceeds with the comments of the other justices in reverse seniority and with additional colloquy that the justices describe as open and frank. Once the discussion of a cases is concluded, a vote is taken in reverse order of seniority. A justice in the majority then writes the Opinion of the Court for the case. The assignment of opinion writing duties rotates sequentially so that each justice writes in every fifth case in which she or he is in the majority. This is relatively unusual. Only eight other states: Illinois, Iowa, Maine, Montana, Oklahoma, Rhode Island, Texas, and Vermont, use this system for assigning opinions. Most states allow discretionary opinion assignment by the Chief Justice, as does the Supreme Court of the United States.

    Justices will occasionally trade their assignments, primarily to allow them to write on topics in which they have expertise. They can also write dissenting opinions, and, although they very rarely exercise this option, they can write concurring opinions which support the decisions of the majority but for different legal reasons. The Court's opinions are similar in form and length to those of other American state appellate courts. The Court's opinions are not as lengthy nor are concurring and dissenting opinions nearly as frequent as is the practice of the Supreme Court of the United States.
The justices have one or two personal law clerks to assist in the review of petitions for review and the accompanying briefs and in the drafting and documentation of opinions. These personal clerks, usually recent law school graduates, serve normally for a year, as is also the custom in federal appellate courts. Their research for the justices is expedited by the staff of the Supreme Court Law Library which is located in the East Wing of the Capitol. When a justice has a draft Opinion of the Court ready, it is circulated to the other justices. Unlike the Supreme Court of the United States, where the justices circulate opinions and communicate about them by memoranda, West Virginia's justices usually discuss their opinions personally with each other before the release of the final opinion. Almost all cases are disposed of either the term they are filed or within six months of the initial filing of the case with the Clerk. Such rapidity of decision is uncommon in many appeals courts. To echo one of the justices: "This is probably the fastest court of appeals in the world...".

    Although many state courts of last resort rotate the chief justiceship, West Virginia's Supreme Court of Appeals is the only one that does so yearly on the basis of seniority of service. Because the Chief Justice of the Supreme Court of Appeals lacks the internal control of opinion assignment held by the Chief Justice of the United States and because the Court is such a small body, the primary duties of the West Virginia Chief Justice are administrative. The chief manages the conduct of oral argument and the conference, keeping track of votes and case assignments at conference.
    Importantly, the Chief Justice assumes the supervision and oversees the agenda of special projects for the Administrative Office for the year. For example, when chief justice in 1991, Justice Thomas Miller initiated the Office's effort to revise aspects of the procedural rules for state courts. The Chief Justice also prepares a "State of the Judiciary Address," prepared for legislative presentation or readership and publication in The West Virginia Lawyer, and oversees the submission of the judicial budget and other requests for action by the state legislature.

Maintenance: Management of the Judiciary

    A very important function of the West Virginia Supreme Court of Appeals is the development of policies about the management of the state judiciary and state bar. These duties include the establishment of policies in situations of procedural rulemaking, fiscal and staff management, and oversight of the ethics of the bench and bar. The justices' decisions on court management seemingly affect only the internal workings of the judicial process, but they have an important but rarely visible effect on the ability of West Virginians to find relief for their grievances in court. Thus, the management of the judiciary maintains the availability of justice in West Virginia. Management activity also maintains, in a quite different way, the legitimacy and integrity of courts and the bar.

Procedural Rules

    The Judicial Reorganization Amendment of 1974 gave the Supreme Court of Appeals broad authority to determine institutional policy on a wide range of procedural aspects of judicial administration. The Court was empowered to "promulgate rules" and to exercise "general supervisory control" over all state courts. The supervisory power, in the amended Article VIII §3 and § 8 of the Constitution, permitted the creation what is commonly called a "unified court system" in which administrative authority for the judiciary is vested in a single court or individual. Using this power, which also made the Chief Justice the administrative head of all courts, the Supreme Court of Appeals has substantially altered the conduct of judicial business in the state. There is evidence of innovative and incremental institutional policymaking by the justices toward the maintenance of the autonomy and integrity of the judiciary.

    The supervisory power granted by the Reorganization Amendment allows the Supreme Court of Appeals to use procedural rulemaking to govern West Virginia Courts. Consequently, the Court has adopted a series of rules to govern judicial branch operations, including: Rules of Procedure for the Handling of Complaints Against Justices, Judges, Magistrates, and Family Law Masters in 1976 (amended five times), Rules of Criminal Procedure in 1981, Rules of Evidence in 1985, Rules of Civil Procedure for Magistrate Courts in 1988, Rules of Criminal Procedure for Magistrate Courts in 1988, Administrative Rules for the Magistrate Courts in 1988, Rules for Resolution of Court Scheduling Conflicts in 1989, and Rules Governing Camera Coverage of Courtroom Proceedings in 1989.

    Some court rules had existed prior to the adoption of the Reorganization Amendment in 1974, but they have been extensively revised. The Supreme Court of Appeals set forth Rules of Civil Procedure for Trial Courts of Record in 1960 and revised them twelve times, with a very extensive set of changes going into effect in 1992. Trial Court Rules for Trial Courts of Record were promulgated in 1960 and amended ten times. The Court's own Rules of Practice were superseded by Rules of Appellate Procedure in 1980. An earlier Code of Judicial Conduct was revised into a Judicial Code of Ethics in 1976.

    The Supreme Court of Appeals ability to promulgate procedural rules is important because the rules govern public access to the courts, the operations of courts, the costs of using courts, and the evidence that a party might present in arguing its case. The process of rulemaking starts with an initiative by the Supreme Court of Appeals calling for a new or revised set of rules. The judicial council (an advisory group of circuit judges), the circuit judges' and magistrates' associations, state bar committees, and the Supreme Court Administrator's staff all contribute suggestions toward the development of rules. The final drafts of rules are often prepared by law professors under contract with the Court. They are approved by the justices after consultation with the Supreme Court Administrator and his or her staff. Judges and the president of the State Bar may request hearings on the rules, but the Court is free to adopt such rules as it chooses. The rules have the force of law; as Justice Miller stated in State v. Davis: "We have traditionally held that under our rule-making authority, Article VIII, Section 3 of the West Virginia Constitution, rules promulgated by this Court have the force of law and will supersede procedural statutes in conflict with them."

    When compared to other states, the West Virginia Supreme Court of Appeals has achieved a significant but not extreme degree of central management over judicial procedures. Because of the continuing incremental elaboration of procedural rules by the Supreme Court of Appeals, other policy actions by the judiciary now take place in a rigorously defined context. Local judges are no longer free to practice policies that treat parties differently, to engage in often unfettered scheduling of cases, or to apply inconsistent application of evidentiary rules or procedures. A uniform state policy for institutional procedures now governs state judges. This policy is designed to achieve the goals of efficiency, equal treatment of parties, and the encouragement of open fact finding prior to trial in the hope that a settlement might occur.

Fiscal and Personnel Management

    Supporting personnel and fiscal resources are essential if a judiciary is to manage its business and administer its caseload. The 1974 Reorganization Amendment gave the Supreme Court of Appeals control over its personnel and some authority to establish policies governing many nonjudicial employees of the state's courts. For example, statutes empower the Supreme Court of Appeals to select its Clerk and the Clerk's subordinate staff and to create the Administrative Office of the Supreme Court of Appeals. The Clerk's office attends to the records and documents related to litigation before the Court. The Administrative Office, established in 1945 and assigned significant additional duties in 1974 and 1981, supervises some aspects of lower court nonjudicial personnel policy, keeps statistics on the business and operations of all state courts, prepares the budget for all state courts, handles equipment and supply purchases and management of property for all state courts, administers the finances used for the provision of legal representation for needy criminal defendants, and gives other operational assistance to the state judiciary. The head of the Administrative Office, the Administrative Director, manages the personnel and finances of the Court and handles minor inquiries about the Court. The Director also prepares with the justices the budget for all courts, discusses the budget with legislative leaders, and prepares new and modified court rules. The office also handles the income from court costs, fines, and remittances, and it supervises contributions to the state's School Fund, payments to the recipients of worthless checks, to county treasuries, and to various state governmental accounts including an account for the operation of magistrate courts.

    The preparation and negotiation of the state judiciary's budget by the Administrative Director is affected in part by the state constitution and past events. The state constitution contains a clause preventing the state legislature from decreasing any item in the judicial budget. In 1978, the state legislature attempted to decrease five items in the budget. Two concerned lawyers sought a writ of mandamus to force the clerk of the House of Delegates to publish the budget bill without the decreases. Four of the justices of the Court recused themselves, and Justice Darrell V. McGraw and four retired justices, recalled by McGraw pursuant to the state constitution, heard the case. They then granted the writ, and they confirmed the inherent power of the Court over its budget. Consequently, to avoid such separation of powers conflicts and maintain secure funding of the courts, both branches now confer on the judicial budget. However, conflicts still occur. In 1992, the Court reduced some items in its budget in response to a legislative-executive effort to reduce state spending by four percent. However, the Court did not cut the judicial budget by four percent, leading to critical comments from the state legislature.

    The state maintains no central case processing system for its state courts. Assistants attached to the Administrative Office handle the budget and the management of the family law master system. Judicial branch employees are not covered by the executive branch's civil service system. To prevent abuses in the judicial personnel system, the Administrative Office, with the support of the justices, has issued a personnel manual governing equal employment opportunity, compensation, job classification, and health and retirement policies for state judicial branch employees. The manual spells out in detail the various personnel policy responsibilities of the Administrative Director and all elected and appointed personnel. Consequently, since 1976, the Court's role in financial and personnel management has permitted the development of policies and practices that are designed to maintain efficiency, professionalism, and oversight of the conduct of judicial business.
The administration of state courts through the Administrative Office wins strong praise from circuit judges and magistrates. A recent survey of judges and magistrates conducted by this author revealed that in responding to the needs of the magistrates, 36.2 percent said the Administrative Office was very responsive, and 40 percent said it was often responsive (N=105). In responding to their needs, 80.5 percent of the circuit judges said that the Administrative Office was very responsive and 14.6 percent said it was often responsive (N=41). Only 22.9 percent of the magistrates and 4.9 percent of the circuit judges said that the office was not very responsive or not responsive to the needs of their courts. In comparison, magistrates and circuit court judges viewed the Supreme Court of Appeals as being somewhat less responsive to their needs than the Administrative Office. Approximately one out of every four (25.7 percent) of the magistrates and nearly half (43.9 percent) of the circuit judges found the justices very responsive to their needs. Also, fewer magistrates (33.3 percent) but more circuit judges (41.5 percent) said the Court was often responsive. The state legislature, on the other hand, was given much lower marks for its support for the judiciary. Not one of 105 magistrates gave the legislature an excellent rating on matters affecting their courts, 12.5 percent gave it a good rating, 33.3 percent gave it a fair rating, and 54.3 percent gave it a poor rating. The circuit judges also did not give the state legislature high marks on matters affecting their courts. Only 7.3 percent of them rated the legislature as excellent, 48.8 rated it as good, 29.3 percent rated it as fair, and 14.6 percent rated it as poor.

Control of the Bar

    The Supreme Court of Appeals plays a vital role in maintaining the integrity of the legal profession in West Virginia. It was granted responsibility in a 1945 state statute for the regulation of legal practice and the creation of an "administrative agency of the supreme court of appeals ... known as `the West Virginia state bar.'" The West Virginia State Bar therefore functions as a quasi-administrative agency of the Supreme Court of Appeals or as an "integrated bar" to which all persons admitted to the bar in the state must pay membership fees. Consequently, the Court has an ability to establish policies affecting the nature and availability of legal services in the state. As an offshoot of this situation, the Chief Justice and the leadership of the State Bar hold quarterly meetings, and the Administrative Director of the Court and the Executive Director of the State Bar hold monthly meetings to address matters any of them deem to be of concern. This informal supervision and consultation with the State Bar appears to be similar to or more intensive than that in the other integrated bar states. Also, during the past quarter century, the Supreme Court of Appeals has policed the West Virginia State Bar. It established Rules for the Admission to the Practice of Law in 1973 and Rules of Professional Conduct which recently replaced an earlier Code of Professional Ethics that had been adopted in 1947.

    The State Bar's primary responsibility is the discipline, suspension, and disbarment of attorneys for breach of professional ethics and conduct. Currently, it employs two attorneys and contracts with a private investigation firm to scrutinize the complaints it receives about attorneys from private citizens, judicial and other public officials, and through public reports of misbehavior, like arrests. Although the vast majority of complaints (there were 441 complaints in 1991) are related to fee disputes and client complaints about the outcome of cases and merit no further disciplinary action, approximately 15 percent of the complaints are taken to the Bar's Investigation Panel of its Committee on Legal Ethics. This panel, with six attorney and three citizen members selected by the president of the Bar, reviews the complaint and determines if there is "probable cause" or possible evidence of an ethical violation by an attorney. Determinations of possible ethical misconduct are referred to a Hearing Panel of six attorneys and four citizen members. It conducts trial-type hearings and develops findings and recommendations in cases about lawyer conduct. If a case merits disciplinary action such as an attorney's suspension, reprimand, or disbarment (about 15 to 18 complaints in recent years), the record, findings, and recommendation must be reviewed and approved by the full Legal Ethics Committee. The findings and recommendation are then sent to the Supreme Court of Appeals. The Court will afford the lawyer in question a hearing and an opportunity to raise objections to the findings. Only then can the Court order reprimand, suspension, or removal of the license to practice law in the state. Consequently, the justices can shape the character of the state's legal profession. Based on reports, the Court has disbarred an attorney for an excessive contingent fee, and it has assigned sanctions against an attorney for a wanton, vexatious, and oppressive suit under Rule 11 of the Rules of Civil Procedure.

    A series of case decisions have extended the scope of the Supreme Court of Appeals' supervision of the bar. The Court held that it has exclusive control of the practice of law under Article VIII of the state constitution, and it voided common law standards that permitted other courts to regulate lawyer behavior, except for contempt, in their courts. The exclusive power over legal practice also was used to strike down as unconstitutional an act of the legislature regulating qualifications for bar membership and actions of a state agency seeking to regulate legal practice in an administrative matter.

Policy Outcomes: The Supreme Court of Appeals and Public Policy

    West Virginia's Supreme Court of Appeals has emerged as a significant entity in state policy making on a number of important issues. The reasons for the Court's increasingly visible role in public policy probably originated in the national legal environment. Since 1950 the nation has witnessed the maturation of what has been referred to as American legal realism. It views the law as a judicial creation which reflects changes in the nation's social, economic, and political environments. It also accepts an active role for the judiciary as both appropriate and desirable. The advent of legal realism is symbolized by the Supreme Court of the United States' decisions on school segregation, reapportionment, the rights of criminal defendants, abortion and privacy rights, and a host of other topics. In the West Virginia Supreme Court of Appeals the change toward legal realism began with the election of new justices of the Supreme Court of Appeals in the 1970s. Currently all of the justices appear keenly aware of their role in state politics and policymaking.

    Several efforts to rank the "activism" or policy making activity of state supreme courts using data from the 1960s and 1970s placed the West Virginia Supreme Court of Appeals in the bottom quarter of all state high courts. Another study completed in 1986 indicated that the Court had become more active after 1976 in altering the policies of the state legislature, executive, and other governmental units in the broad categories of tort and workers' compensation law and in cases about governmental powers. However, it failed to differentiate among the different kinds of policy decisions reached by the Court and the significance of these decisions.

    For the purpose of evaluating the activism of the contemporary Court, its decisions since the Reorganization Amendment went into effect in 1976 were categorized as being either innovative, incremental, static, or involutional. When the Court created a new legal doctrine or overruled an old doctrine about the power of government or personal rights, its decision was placed in the innovative category. When the Court's decision expanded or contracted an existing doctrine, normally through the adjustment or "distinguishing" of prior precedent, it was placed in the incremental category. When the Court's decision reiterated existing interpretations and doctrine, known to lawyers as stare decisis, it was placed in the policy stasis category. When the decision involved the progressive complication of the law or the elaboration of existing doctrine in greater and greater detail it was placed in the involution of policy category.

    Because the scope of the Court's activity is so extensive and this chapter's goal is to introduce the reader to the Court, an exhaustive summary of all cases since 1976 is not presented. Instead, examples of each of these forms of policy choice are presented to provide evidence of the Court's role in the construction and legitimation of public policy in West Virginia.
Innovative Policymaking

    The Court's decisions reveal that the justices engaged in innovative policymaking either by making a doctrinal change, the independent creation of a new legal doctrine in state law or the creative filling of gaps in existing law and policy, or by agenda-setting, forcing other state policymakers to address political problems and modify existing policies. The justices were most likely to engage in innovative policymaking through doctrinal change in cases involving tort law or the law of accidents related harms. For example, the justices directly adopted a modified comparative negligence doctrine for the remedy of tort claims that greatly affected the ability of injured parties to recover damages in auto accidents. This new doctrine rejected the former common law doctrine of contributory negligence which prohibited injured parties from any recovery for an accident if they incidentally or partially caused the accident. The new doctrine allowed proportional recovery for parties contributing to an accident if their damages were less than 50 percent of the total accident losses. In a related issue, the Court changed negligence liability rules to permit suits by third parties against both the driver of a vehicle and the passengers who had encouraged or assisted a drunk driver to operate the vehicle.
The Court also revolutionized products liability law. The Court adopted a rule of strict liability which made the manufacturer responsible for harms caused by all types of products, not the narrow range of products called "inherently" dangerous by the old common law of torts. Additionally, the Court adopted the "crashworthiness doctrine" which is more liberal to plaintiffs in automobile products liability cases. Through changes like these, the justices have steered West Virginia's tort law and public policies to favor victims of harms more than in the past.

    The justices have also significantly liberalized the ability of workers to recover for injuries by narrowing the immunity of employers from suits by injured workers. Over the dissent of Justice Neely, the Court has held that workers can sue for injuries caused by intentional employer negligence or wanton, willful, and reckless misconduct. These claims were in addition to the compensation achieved through the administrative procedures of the Workers' Compensation. The Court has also allowed workers to be compensated on a temporary basis without an evidentiary hearing, fixed the end point for compensation at the maximum possible degree of employee recovery from injuries incurred at the workplace, ensured that the termination of compensation can take place only after a due process hearing, provided compensation for accumulated injuries rather than one accident, and liberally covered diseases resulting from workplace harms. Although the Court has not extended strict liability to harms caused by productive activity rather than by the products themselves, it has developed an abnormally dangerous activity doctrine that strictly assigns liability in certain employment injury situations. This has made it difficult to consider employee misfeasance in the consideration of workers' compensation cases.

    These new tort and compensation policies have required manufacturers and employers to take greater care in production and the cases expanded the ability of injured parties to obtain relief. However, they have also caused the costs of insurance for both drivers and businesses to increase, and they might have generated more litigation with its associated costs.

    Innov