28 November 2010

Appealing Sturm und Drang

An Intermediate Court of Appeals?

A chief goal of some business interests in West Virginia in the upcoming session of the Legislature is to establish an intermediate Court of Appeals.

When I talk about the legal structure of Mother West Virginia, I always picture myself talking to Mum in the UK and Flick Down Under, so I’ll refrain from rushing ahead. People go to court to resolve disputes and everywhere in the civilized world there is some sort of court of general jurisdiction, a court for citizens to obtain justice. Wherever the English Common-Law model of justice is followed, that court of general jurisdiction is where juries will sit. In West Virginia, the court of general jurisdiction is called the circuit court and a circuit usually consists of one or more counties. Circuit Judges are elected in partisan elections.

You have to have a safeguard against error, passion and prejudice. If you have any system and declare that what you have is perfect, you’re wrong. And so, in the Common-Law jurisdictions, there are courts of appeal. Someone who is dissatisfied with what a trial court does can appeal the case and ask a “higher” court to review what the trial court did and correct mistakes. Generally, the limitation is that the lower court decision is given great deference in its factual determinations because that’s where the live witnesses were heard. Here in West Virginia, there is a single appellate court, the Supreme Court of Appeals of West Virginia. And so, the loser at Circuit Court has one chance to correct mistakes. In nearly every other state, there is at least one intermediate court between the trial court and the Supreme Court of the state.

One thing which powers the desire in West Virginia for the Intermediate Court of Appeals is the perception that jury verdicts are too high. (That’s an oversimplification, of course.) Another motivation is that appeals in West Virginia are not a matter of right, that is, the Supreme Court doesn’t have to hear the appeal. (See below the recent changes to the rules.), And so, there is the very real fear that someone will eat an unjust verdict and then have no way to know that someone will at least listen to their claim that it is unfair.

The Supreme Court of Appeals has responded to the concern by altering the Rules of Appellate Procedure. Formerly, if you filed a petition for appeal, the court could deny it with a two sentence order. Under the new rules, the Court will issue a “memorandum opinion,” that is, a short opinion which says why they are rejecting an appeal. The Court said before that they did carefully read every petition for appeal but, like so much of what happens in any courthouse, that was behind closed doors. The Court reasons, I presume, that the memorandum opinion will prove that every case has been given individual attention by the justices.

The problem here is that we have five Supreme Court justices (also selected by partisan election) and they have exactly 168 hours in every week to pursue their vocation, to care for their families, and for refreshment and sleep. The justices themselves cannot review every appeal much more thoroughly than they already are doing. They are ably assisted by very smart lawyer-law clerks, some the “superstars” of their law school classes, but those aren’t the people who were elected to rule on cases.

The “formula” answer for a lawyer who does not represent big business interests or insurance companies is that we do not need an intermediate appeal court because we can trust our circuit judges and juries.

Right, like I’ll follow a formula. Here again – you think you have a perfect system? If so, you probably have other hallucinations. Just because business interests, who are the loudest at the moment, want such a court, should other interests oppose their position? That’s pretty sloppy thinking. I cannot help but conclude that a just result justly arrived at is safe on appeal.

That being said, please remember that not a lot of people want justice in the abstract. That’s the sad secret of our justice system. People want to win. People want to find advantage for themselves. In our system of partisan elections and indeed in systems of nonpartisan elections, the heavy money does not closely track law school transcripts or superior intellect. How will a prospective judge vote in cases in which I’m interested? That’s the question. So it’s not so much the concept of an intermediate appellate court or a discussion of whether it’s needed or at least whether it would be quite useful. The Devil is in the details.

The real questions are who will the judges be (which means how will they be selected), how strict will the legal standards of appeal be, in other words, how much deference will be given to the actions of the trial court, and how transparent will the process the? I don’t hear much discussion in the last two questions, perhaps because they represent fairly settled law. A trial court should be granted a lot of discretion on determinations of fact. And if we say that an Intermediate Court is a good idea because people haven’t been adequately heard, then we should expect a genuine, reasoned written opinion in every case. Question number one is where the rubber meets the road. I will not reprise the endless discussion about partisan election versus nonpartisan election versus appointment versus retention elections versus mixed schemes ad nauseum. My own tin can version of statistical analysis, thinking about the judges I’ve known over the years, tells me that the Bell Curve follows any selection method. Two of the genuinely finest judges before whom I practiced died over the past week – United States District Judge Robert Maxwell and state Circuit Judge Les Fury. Judge Maxwell was appointed; Judge Fury elected.

A final consideration is that appeals be promptly resolved, for the great majority of appeals are not about million-dollar judgments. They are about child custody and alimony, boundary line disputes, people waiting in jail or waiting to find out if they have to go to jail, or other questions vital to just a few common citizens. We need to consider their rights, too.

Yes, I know this part of the post is dreadfully dull. It’s funny – looking rationally at important public issues should be dull in a lot of instances. Does the Sesame Street generation have the patience to govern America?

Minor Observations –

Ho, ho, ho, asking the obvious -

The State Journal, a statewide newspaper in West Virginia which focuses on business issues, ran an editorial on the question of whether the confusion and competing interests concerning a special election for governor in 2011 will prevent the Legislature from dealing with more substantive issues. The title of the editorial was “Will Politics Trump Good Government?”

The obviousness of the answer is pitiful, just pitiful, to quote noted philosopher Jed Clampett.

Gun Show

There is an ad today’s Times-West Virginian for the gun show which comes the Fairmont two or three times a year. Sometime in the future, I’ll make a stab at describing the experience and spirit of the gun show. The ad in today’s paper includes the line:

Get Your Guns While You Still Can!

I understand that creating a fear of lack is a marketing technique. But, to my Second Amendment, compatriots: Listen. Are you listening? Over the short term, there will be no shortage of firearms. Before the midterms, gun rights were pretty secure in Congress. You think maybe the midterms hurt? With the Heller/McDonald decisions, constitutional law is on the side of a liberal interpretation of the Second Amendment. So, relax.

The Catch of the Breath, “Liberal” Defined

No, no, no, when I talk about a liberal interpretation of the Second Amendment, I’m Nancy Pelosi and I'm not talking about an interpretation that restricts firearms to members of an organized militia who may only carry muzzle-loading flintlocks. Those who read that into what I wrote are succumbing to the propaganda paranoia coming from media zealots who are more interested in book sales and Nielsen ratings than in advancing rational and helpful political and social thought. “Liberal” and “conservative” are names placed on two dinky little pigeonholes nailed together by someone other than We the People and into which interests other than We want to cram every conceivable political or economic thought. How can we pretend to be a Land of the Free if we blithely let someone else hand us a list of our own “approved” beliefs? The “liberal” to which I refer includes the definitions:

favorable to or in accord with concepts of maximum individual freedom possible;
favoring or permitting freedom of action, esp. with respect to matters of
personal belief or expression; of or pertaining to representational forms of
government rather than aristocracies and monarchies; not strict or rigorous;
free; not literal: a liberal interpretation of a rule.

A restrictive non-liberal reading of the Second Amendment would activate the militia clause in a manner which the United States Supreme Court (in McDonald) decided was not intended by the founders.

Once words start scaring us, we are no better off than Pavlov’s dogs.

Almost Heaven

I really love the John Denver song, Almost Heaven, West Virginia. He makes reference to the Blue Ridge mountains which are more commonly identified with the Commonwealth of Virginia but which lie partially in West Virginia. [A little bit of nickel knowledge: the “blue” in Blue Ridge refers to the color imparted in the atmosphere by natural chemicals from trees.] On the other hand, when Denver makes reference to the “Shenandoah River,” I always cringe a little bit. The edge of the Shenandoah watershed defines a part of the border between Virginia and West Virginia, with all of the Shenandoah lying on the Virginia side. I thought we settled this one in the Civil War. Okay, I still like the song.

Good Example by the President

Pres. Obama is going around sporting a fat lip with stitches in it from injury while playing basketball. What an excellent example for young people. These are the bumps and bangs of real-life, not the puny intakes of breath from the Xbox NBA basketball game. For that matter, all of the presidents going back to Theodore Roosevelt (with perhaps two or three exceptions) have been quite active people. There's a lesson there.

A Wise Hobbyhorse?

Why in the world would anyone ever refer to himself or herself as “wise”? That is cockiness incarnate. I have been treated to professional advertising lately, most of it by lawyers, where the advertisers lay claim to the sobriquet “wise” and award themselves with the mantle of “wisdom.”

Even when “I am the greatest!,” I run into the fray looking like a blowhard and I also run the risk of meeting Joe Frazier and getting knocked on my ass.

The simple fact is that neither I nor anybody I know is anywhere near smart enough to refer to themselves as “wise.” This is a determination to be made only by others, and only invariably after a long and consistent history of intelligence, moderation and moral rectitude.

Maybe wisdom this a good goal to shoot for. But unlike a merit badge, there is no guaranteed path and you are not in control.

Pippa passes.


1 comment:

Jim N. said...

Hey Roger,

Enjoyable reading, Sir! Even the Intermediate Court of Appeals question. Especially interesting was the definitions of "Liberal," an inclination that probably best describes my stance. One way I like to think about the Conservative/Liberal so-called divide is to say that conservative impulses desire to preserve those values/customs/practices that are worth saving; on the other hand, liberal tendencies allow natural, evolutionary changes to occur where necessary, needed, and lead to the greater common good--you know, justice for all, etc. Just one "not wise" person's way of thinking. Thanks for your thoughts.