The West Virginia Supreme Court of Appeals is the court of last resort for disputes arising under the laws of West Virginia. It is also the state's only appellate court, with the power to review and possibly correct the decisions of the state's circuit (trial) courts and some administrative agency decisions. This article offers an introductory assessment of the Supreme Court of Appeals' functions, focusing on its two primary functions: the review of the decisions of other West Virginia courts and state administrative agencies and the management of the state judiciary. In the discussion of these functions, this article compares the Court to other American appellate courts, assesses the Court's performance of its functions, and offers recommendations for improvements.
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 Govem Amen'ca (Neely 1981, 1983, 1984, 1986, 1988, 1990). 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 (WV Blue Book 1974,1983,1989).
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, workers' compensation claimants, as well as 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 (Oder 1988a, 1988b, 1988c). Eventually, Miller won renomination while Workman pulled out a narrow victory over McGraw for the second nomination.
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 (Wold and Culver 1987; Tarr and Porter 1988, Grodin 1989). 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 with the authors that "I don't like the idea of having to raise the kind of money we have to raise" (Brisbin and Kilwein 1992). 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 soand-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 diff erence to me, and I don't think it makes any difference to any justice when it comes up (Brisbin and Kilwein 1992).
Nevertheless, the justice also added:
... it's 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 (Brisbin and Kilwein 1992).
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..." (Brisbin and Kilwein 1992).
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 (Brisbin and Kilwein 1992).
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 (Brisbin and Kilwein 1992).
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.
The Appellate Review Process
The five members of the Supreme Court of Appeals determine the scope and pace of their work. 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 cerliorari, habeas corpus, mandamus, or a prohibition that affects 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 (trial) 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 (National Center for State Courts 1991).
A court's role in politics and public policyrnaking 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 1 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 workers' compensation cases. In 1991, 61.2 percent of appeals to the Court involved workers' 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 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. 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 (West Virginia Supreme Court of Appeals 1990a; National Center for State Courts 1991).
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 (National Center for State Courts 1991). 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 (McQuain 1991). 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 purposively chosen to be a Court readily accessible to litigant demands.
Processing Cases
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.
The 31 circuit courts are the civil and criminal trial courts in the state. They try serious crimes and more costly civil claims, and they consider minor criminal and civil cases when a party is dissatisfied with the decision of the magistrate court which was assigned the adjudication of their claims. Circuit court judges also review and enforce the divorce, child custody, child support, and related decisions of the state's family law master system. 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.
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 appellant's 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 authors 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 (Brisbin and Kilwein 1992). 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 (Brisbin and Kilwein 1992).
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-foothigh ceiling and walls surrounded by doric columns of Danby Vermont white marble and burgundy drapes, accoutered with walnut benches, seating and panelling, 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 travelled 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 20 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.
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 case 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 (Hall 1990).
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 (Glick and Pruet 1986; Brisbin and Kilwein 1992).
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..." (Brisbin and Kilwein 1992).
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 (Council of State Governments 1990; Hall 1990). 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 (Brisbin and Kilwein 1992). 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.
Public Policyrnaking by the
Supreme Court of Appeals
West Virginia's Supreme Court of Appeals has emerged as a significant entity in state policymaking on a number of important issues (Hagen 1986). 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 (Rumble 1968; Purcell 1973).
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 (Hagen 1986). Currently all of the justices appear keenly aware of their role in state politics and policymaking (Brisbin and Kilwein 1992).
Several efforts to rank the "activism" or policy innova-
tion 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
(Baum and Canon 1982; Caldiera 1983; Fino 1987).
Another study completed in 1986 indic - ated 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 (Hagan 1986). 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, the authors categorized its decisions since the Reorganization Amendment went into effect in 1976 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 article'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 Pollcymaking:
Doctrinal Change and Agenda-Setting
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 Court was most likely to engage in innovative policymaking through doctrinal change in cases involving tort law (the law of accident-related harms). For example, in Bradley v. Appalachian Power Company (1979), 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 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 in Price v. Halstead (1987) 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. In Morningstar v. Black and Decker Mfg. Co. (1979) 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, in Blankenship v. General Motors Corp. (1991), 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 Appeal Board. 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.
The Supreme Court of Appeals produced innovative, agenda-setting opinions in cases dealing with educational finance. In Pauley v. Kelly (1979), parents in Lincoln County filed a class action lawsuit against the state treasurer contending that the state educational funding system denied their children their 14th Amendment right to the equal protection of the laws and contravened state constitutional provisions on educational finance. The Court, relying on a provision in the state constitution requiring a "thorough and efficient sys
tem of free schools," upheld the parents. Justice Harshbarger, after a lengthy historical analysis and review of other states' treatment of the issue, concluded that the constitutional provision demonstrated that education was a fundamental constitutional right in the state. Any discrimination or classification with regard to the exercise of the right could stand only if there was a compelling state interest to justify the unequal classification. Turning to the pattern of state financing and the Lincoln County system, he ordered an evaluation of the financing system by the circuit court that had tried the case. Specifically, he ordered inquiry into inequities in state financial assistance formulas that governed the distribution of state aid to local districts, in supplemental state aid for local districts, in property tax appraisal, in allocation of funds from the state school building fund, and the roles of state and local officials in affecting the efficiency of the operation of the schools. Later, in Board of Education v. Rockefeller (1981), the Court also interpreted the state constitution to require the state to provide a preliminary factual justification before reducing appropriated funding for public schools.
These decisions forced the issues of state and local school finance, taxation for educational purposes, and educational operations onto the state's political agenda. However, the Court has recently displayed more caution in educational policy disputes. For example, during a state teacher strike in 1990 it refused to become involved in the dispute and limited the power of circuit judges to provide injunctive relief beyond the boundaries of their circuit.
The Court has also used state law to initiate innovative change in the executive branch. For example, in conjunction with the federal courts, the Court forced the state to reconstruct its prison system, to establish alcohol treatment and detoxification programs, and provide emergency care to the state's homeless. It has also required the state Workers' Compensation Commissioner to abide by statutory guidelines, promulgate certain rules and regulations, and pay selected afforneys' fees. Moreover, the state's Public Employees Insurance Board was required to implement a statutory policy on extended group insurance benefits for spouses and dependents of state workers and the state's Board of Mine Safety was ordered to conduct its duties as mandated by statute and to promulgate rules and regulations according to a procedure established by statute.
Incremental Policyrnaking
Although much of the Supreme Court of Appeals' work involves the interpretation of statutes, it occasionally complements, in increments, the legislative policy codified in the state's statutes. For example, in Murreder v. Murreder (1978), the Court clarified statutes on the assignment of real property and financial contributions for child support. The Court also complemented child custody law by adopting the primary caretaker rule. It assigned custody to the parent who had previously been primarily responsible for the care and nurturing of the child. The rule effectively met legislative guidelines eliminating gender-based presumptions in awarding custody but, since mothers normally are the primary care givers, it complemented the statute by introducing an additional policy guideline often favorable to maternal custody. The justices also complemented child support statutes by permitting circuit judges extensive contempt powers to enforce child support orders. The justices read custody law so the fathers of illegitimate children could have standing to seek visitation rights. Finally, the justices modified the common law on the equitable distribution of property upon divorce to fit modern notions of marital partnership. The state legislature codified critical elements of this modification. In controversies over the joint ownership of real estate at the time of divorce, the Court clarified the statutory and common law. The result was a different treatment of joint ownership or tenancy if it existed between a husband and wife as opposed to unmarried owners. The new treatment of joint tenancy allowed a more flexible assignment of property rights at the time of divorce.
The federal nature of the American judicial system permits state courts to develop policy standards that are not in conflict with the United States Constitution as interpreted by the Supreme Court of the United States. Consequently, the Supreme Court of Appeals has elaborated, by incremental change, some federal rulings. Examples include the Court's development of two tests to determine if state tax law contravened the Commerce Clause of the United States Constitution as interpreted by the federal Supreme Court, and the Court's elaboration of the federal and state right to petition and to protest the behavior of a firm to the government without fear of defamation suits. The Supreme Court of Appeals also independently used state law or construction of the state constitution to provide more liberal readings of rights than the federal Supreme Court did when construing the United States Constitution (Miller 1987). These incremental adjustments o federal high court rulings include the Supreme Court of Appeals recognition of a right to the equal funding of education in all state public schools, a right to proportionality in the sentencing of habitual offenders, a right to media access to pretrial hearings, and a due process protection against punishment for addiction to alcohol.
The Court has rarely engaged in incremental adjustments of federal court rulings. One of the few examples was a case in which religious parents sought to teach their children at home. The U.S. Supreme Court, in Wisconsin v. Yoder (1972), permitted the Amish an exception from mandatory school attendance policies. However, in State v. Riddle (1981), the West Virginia justices concluded that religious parents had to send
their children to a public school or provide at-home instruction that met state standards. Another example of a restriction on federal rulings is a West Virginia decision that required West Virginia prison officials to hold persons convicted under state law in West Virginia. The federal Supreme Court had said it was not a violation of federal due process for a state to hold prisoners in outof-state facilities.
Policy Stasis and Policy Involution
Although the Supreme Court of Appeals does engage in innovation and incremental adjustment of public policy, the justices' most common choices are stasis and involution. For example, the justices have chosen not to refine the meaning of the Uniform Commercial Code, Article Two, which affects sales transactions in the state, or to modify its text (Cardi 1991).
Another example is the treatment of cases that several members of the Courl call "screw ups" or obvious legal mistakes. These cases are also sometimes referred to as "home cooking" or errors indicating bias in favor of a local litigant and against state administrative actions. These are cases where the circuit court or agency erred in the application of existing doctrine or procedures and failed to practice stare decisis. Most of these errors occur in procedural or evidentiary aspects of a case, and the Supreme Court of Appeals recognizes that the constitutional requirement of due process of law demands they point out these errors and, normally, order a new trial or administrative hearing. Also, the Court has tended to conform to the dictates of the federal constitution and the standards set by the Supreme Court of the United States. This is especially true for cases involving the 14th Amendment's privileges and immunities clause, 4th Amendment exclusionary rule standards related to unwarranted searches, and the federal Miranda v. Arizona rule on fights during custodial interrogations.
As with its rejection of "palimony" cases, the Court has refused to create new doctrine fashioned by other courts when the doctrine contravened West Virginia common law and statutes. Finally, as with its support of most aspects of the state legislature's preparation of a budget digest, it can choose to avoid policy pronouncements about central legislative practices. Most of the Court's decisions thus either reinforce established policies about adjudication or elaborate on the approved models of procedure and evidentiary analysis.
The Court and the Polity
Despite the Court's ability to engage in policyrnaking, its decisions have, at times, been rejected by other policymakers. For example, the Supreme Court of the United States has overturned some Supreme Court of Appeals decisions. A recent important example is a case involving the assessment practices of county as sessors (Abdalla 1989). Several coal companies in Webster County challenged the county's assessment practices, objecting to the assessor's decision to assess their recently acquired properties at full market value while other properties in the county continued to be assessed at far less than full market value. In 1987, the Supreme Court of Appeals, in the case of In re 1975 Tax Assessments against Oneida Coal Co., refused to change the county's system of property assessment. The Court, with Justice Neely dissenting, let stand the decision by the Webster County commissioners, sitting in their dual capacity as the county's Board of Equalization and Review, that a coal company cannot seek to lower its assessment from full market value even though other property in the county was assessed at only a fraction of its full value. Instead, the coal company could only seek to have the other properties in the county reassessed to their full market value.
Oneida Coal and other similarly affected firms appealed the Court's decision to the Supreme Court of the United States. The federal high court unanimously held, in Allegheny Pittsburgh Coal Company v. County Commission of Webster County, WV (1989), that the disparities in the assessment of the properties did not satisfy the state's requirement of a uniform tax rate. Additionally, the intentional lack of uniformity created by the county commissioners, as the Board of Equalization and Review, violated the Equal Protection Clause by selecting out some individuals for discriminatory treatment. The U.S. Supreme Court's decision not only chastened the West Virginia Supreme Court of Appeals, it returned assessment practices onto West Virginia's political agenda.
The Supreme Court of Appeals also has chosen to accommodate itself to federal Supreme Court decisions. In 1978, the state Court prohibited prosecutorial commentary at drunk driving trials concerning a defendant's refusal to take a breathalyzer test. In 1983, the federal court permitted the commentary. Later that same year, the state Court reversed its 1978 decision and followed the federal interpretation rather than establishing an independent state ground to prohibit the commentary.
The Court has also encountered occasional opposition to its policies from the state legislature. For example, the Court's preference for maternal custody of children a er divorce was changed to a gender neutral rule by the legislature (only later to be adjusted again by the Court); in 1983 the legislature modified the workers' compensation statute to heighten the burden of proof or evidence a worker must show to sue for recovery for employer willful misconduct or intentional injury; and in 1987 the legislature criticized and altered the Court's decision on judicial retirement.
The Court's decisions have also been altered by the public. For example, in 1982 the public approved the Tax Limitation and Homestead Exemption Amendment. It altered the Court's decision in Killen v. Logan County Commission (1982). That decision overturned the prac
10
tice of assessing properties at a percentage of their full market value. It held that county assessors must develop a uniform methodology for making their assessments and that those assessments must reflect the full market value of the property. It also held that the state tax commissioner was to ensure the uniformity of assessment practices throughout the state by correcting local errors in property assessments and that all property assessments were to be kept up-todate. The 1982 Amendment permitted the state to phase in the new property assessments over a tenyear period and set assessments at 60 percent of full market value instead of the Court-mandated 100 percent of full market value.
There is little comparative data available to accurately measure the degree to which other state appellate courts find their policy choices revised or rejected by federal courts, state legislatures, and the public. The little data that does exist suggests that the Supreme Court of Appeals' experience with external hostility is relatively mild when compared to other states (Wold and Culver 1987; Tarr and Porter 1988; Grodin 1989). Nevertheless, the implications of events in West Virginia are that the Supreme Court of Appeals can find its choices rejected or restricted when it chooses policy stasis, as in Oneida Coal, as well as when it chooses policy innovation. Also, circuit judges and magistrates know that their choices can be rejected or modified by the Supreme Court of Appeals. Although hard data on the frequency of the rejection of any West Virginia judicial choices is hard to come by, the mere knowledge of the cost of rejection might limit what policy choices seem feasible to a judge or magistrate. The perception of the costs of rejection might thus promote policy stasis or involution and a degree of stability in the law.
Policymaking for the Judicial Branch
Another 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 also has policy consequences for the availability of justice in West Virginia.
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 has permitted the Court to create what is commonly called a "unified court system" (Ashman and Parness 1974). 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.
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 (Pugh et al., 1984). 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 evidentiary rules or procedures inconsistently. 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 added in 1974 and 1981, supervises some as
pects 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 (Philyaw 1991). 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 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 (WV Supreme Court of Appeals 1990b). Consequently, since 1976 the Court's role in financial and personnel management has permitted the development of policies and practices that are designed to ensure greater 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 survey of judges and magistrates conducted by the authors in the fall of 1991 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.
Discipline of the Bar
The Supreme Court of Appeals 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 (Philyaw 1991; Tinder 1992). 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 primary responsibility of the State Bar is the discipline, suspension, and disbarment of attorneys for breach of professional ethics and conduct. Currently, the State Bar 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 (Bailey 1990; Tinder 1992). Consequently, the justices can shape the character of the state's legal profession.
Conclusion and Recommendations
The Supreme Court of Appeals is a very busy court, yet it is a court readily accessible to the public and a court interested in public education in the law. When compared to other state supreme courts, it plays a fairly typical role in state public policy matters. Although the Court is not the doctrinal innovator that a few state Supreme Courts are, it has engaged in a constant effort to adjust common law issues like tort law and interpretations of commercial law to remain in line with national legal trends. Unlike federal courts, the West Virginia Supreme Court of Appeals does not address a docket replete with critical civil liberties issues. Like most state supreme courts it maintains a practical tort law, clears up mistakes in trial court procedures, especially in criminal and family law matters, sorts out the meaning of state statutes and regulations, manages the bench and bar of the state, and gives litigants dissatisfied with the decision at trial a second chance to rectify the wrongs they have allegedly suffered.
The one serious problem the Court faces is its increasing caseload. The escalating number of petitions for review places demands on court resources, like the time of judges and law clerks and the costs of processing paperwork, that detract from time afforded the cases selected for argument. Since a very large number of the petitions question the decisions of the Workers' Compensation Appeal Board, but since few of these petitions merit review, some change could be initiated in the manner by which parties challenge administrative agency rulings. The state legislature might want to create a special Court of Administrative Review to consider workers' compensation cases and the appeals of administrative agency rulings, like those of the Public Service Commission, that now burden the dockets of circuit courts, especially the very busy Kanawha County circuit court. Courts for administrative review are rare in the United States. Although the Commonwealth Court in Pennsylvania largely performs this function, special administrative review courts are an integral part of the judiciary in European countries like the Netherlands (Raad van State, n.d.).
The Supreme Court of Appeals also needs more funds to address the problems confronting the lower judiciary that was noted in our previous article on those courts. The extreme fiscal frugality of the state of West Virginia especially affects the Administrative Office's effort to manage the judiciary and secure efficient and effective justice in its subordinate courts. Despite these problems, the Supreme Court of Appeals remains a distinguished political institution that West Virginians can point to with pride.
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