By David Lillard

Imagine this. A couple of West Virginia high-school kids commit some pranks one weekend. Local officials decide to teach them a lesson, and file criminal charges. One of the kids, call him Ted, happens to be 18 years old, an adult. The case is heard by a circuit court judge who only recently took office—the guy ran for judge after tiring of his career as a government lawyer doing arcane administrative work. The judge is new to criminal law. He is in over his head, outmatched by the prosecutor, and blows the case from the bench. Ted gets jail time.

In nearly every other state, Ted could appeal to a higher court and have his case heard to see if the trial judge made any errors in the case. Not in West Virginia. Ted’s only recourse here is a petition to the state’s Supreme Court of Appeals, and hope they agree to hear his case. Odds are they won’t. According to the state public defender’s office, the high court refuses to hear appeals on 84 percent of the criminal petitions they receive—75 percent of defendants facing life in prison won’t have their cases heard.

West Virginia’s Supreme Court is the busiest in the United States. In 2007, it received 3,959 petitions. That’s 1,500 more than Nevada, the second busiest state without an intermediate. In 2008, thanks to a new system for worker’s comp cases, the court received “only” 2,411 filings. Nearly everyone agrees this is too heavy a load for the court.

Appellate courts review actions or decisions by trial courts on questions of law or procedural error. Unlike trial courts, appellate courts don’t have juries or witnesses. Their reviews are restricted to the evidence and exhibits that were presented at the original trial.

In most states, a defendant has the right for his case to be heard on its merits by an appeals court; an appeal as of right, it’s called. And only a handful of states do not have an intermediate appellate court to hear appeals. West Virginia is the only one with neither.

What West Virginia does have, according to the Governor-appointed Independent Commission on Judicial Reform, whose honorary chair was former U.S. Supreme Court Justice Sandra Day O’Connor, is a broken judicial system that has lost public confidence. The commission’s report, issued in late 2009, also says the West Virginia judicial system is polluted by its campaign-finance system and partisan elections, and teeters on a total loss of integrity.

The commission strongly recommended creating an intermediate appellate court.

Meanwhile, in Charleston

By the end of February, more than a thousand bills were pending in the legislature. They ranged in purpose from the mundane, like creating a barber’s apprentice program, to local home rule. Few bills have generated as much public rancor as the bill to create an intermediate appellate court.

The state’s chamber of commerce wants it. They think an intermediate court would mete out better justice than the Supreme Court. The Chamber faults the state’s judiciary for Chesapeake Energy’s decision to scrap plans to build a regional headquarters in Charleston after the Supreme Court refused its petition for appeal from a $404 million verdict. They claim frivolous lawsuits are driving businesses from West Virginia. But you know the old joke: What’s the definition of a frivolous lawsuit is? Answer: a lawsuit.

The West Virginia Association for Justice, a plaintiff’s lawyers trade group, opposes creating the court. “Adding a layer of appeal would incentivize insurers to draw out cases,” said one Jefferson County lawyer. Faced with the near certain prospect of an appeal, plaintiff’s lawyers would be less willing to take on the risk of contingency cases. “Imagine how difficult it would be for a lawyer to take a case with a $20,000 claim when you have to plan, in effect, for trial and appeal,” the lawyer.

The Supreme Court says they don’t need another court either, thanks very much. They say it will cost too much, about $8 million a year. They also say they already review every case—they just choose not to hear each one.

At this point, the sides can’t even agree on what the definition of “right” is. Plaintiff’s lawyers and the Supreme Court contend West Virginians already have a right of appeal. The court reviews every petition, then decides which to hear. Business groups say this is hogwash: Sure, everyone has the right to file an appeal, but the court chooses to hear only  a small percentage each year. Proponents of the new court don’t want a right to appeal, they want an “appeal as of right” in which each appeal would have its day in court.

The Commission of Judicial Reform agrees with the Chamber. West Virginia’s Supreme Court of Appeals, the commission says, “serves as the state’s only level of appellate review and maintains a completely discretionary docket, with no appeal as of right.”

So, far no one seems too concerned about Ted spending time in jail.

Money Can’t Trump Justice

Here’s how appeal petitions work. It begins when a petitioner files a designation of record and petition for appeal, indicating what portion of the record made in the lower court that the petitioner would like the Supreme Court to review.

The Supreme Court’s staff counsel reviews the petition, prepares a summary of the arguments, and circulates it all to the justices, who review the files. The Court meets to discuss each petition. They refuse some of the petitions outright, and decide to hear oral arguments on some. Other petitions get oral presentation on the motion docket, where petitioners get a chance to persuade the court to hear their case. The court decides which of these petitions to add to its docket.

They do this between 2,000 and 3,000 times a year. This means if justices spent only 30 minutes on each case, between their individual review and their conference, just deciding which cases to hear could occupy three quarters of a calendar year. That’s before they hear a single case.

Senator Herb Snyder, meanwhile, thinks there is more support for the court than meets the eye. “People are concerned about the price tag, about $8 million a year,” he said. “But, we can’t let money trump justice.”

Snyder and a group of Senate Democrats did introduce a bill in the 2010 regular session to create an intermediate appellate court. Five Republican Delegates introduced a similar measure in the House. No one expected the bill to advance this year, but they will  re-introduce it next year.

Paying for Elections

Another recommendation from the Commission on Judicial Reform is to try using public financing for judicial elections. Campaign money, they said, has poisoned the system. The poster child for this cause was Justice Brent Benjamin, who in 2008 brought notoriety to the state when he refused to recuse himself in a case against Massey Energy. Massey’s president Don Blankenship had spent millions more on Benjamin’s campaign than all his other supporters combined. The case landed in the U.S. Supreme Court, which ruled that elected judges must recuse themselves from cases where exceptionally large campaign contributions from interested parties create the appearance of bias.

In the commission’s opinion, public financing might fix this problem. As of this writing, the prospects of a deal in this session look dim. As Senator Snyder put it, “Anything with money attached is difficult right now.”

Tell that to Ted.