Overview of WV Appellate Procedure
To understand West Virginia’s Rules of Appellate Procedure, you must first understand the inner workings of appellate procedure within the state. The West Virginia Supreme Court of Appeals is the highest court in the state of West Virginia. As a state appellate court, the West Virginia Supreme Court of Appeals has discretionary jurisdiction over all cases from the trial level; in other words, the Supreme Court can choose which cases it wants to hear. These include Civil Cases, Criminal Cases, Equitable Matters, Domestic Relations Matters, Workers’ Compensation, and Tax Appeals. The West Virginia Supreme Court of Appeals has mandatory (or compulsory) appellate jurisdiction over these types of cases: Public Service Commission, Interlocutory Appeals(procedural decisions), Certification of Questions of Law, License Applications and Revocations, Attorney Discipline and Proceedings, Workers’ Compensation Board Review Orders, Tax Appeals, Worker’s Compensation Office of Judges Orders, All Other Workers’ Compensation Laws, and Public Employee Grievance Board Decisions .
There are four separate district courts at the intermediate level, including the Circuit Court of Monongalia and Preston Counties, the Circuit Court of Marion County and the Twelfth Judicial Circuit (Harrison and Doddridge Counties), the Circuit Courts of the Northern Panhandle and the Twenty-Third Judicial Circuit (Berkeley, Jefferson, and Morgan Counties). Each of these courts is headed by an elected Circuit Judge. Appeals from Circuit Courts lie to the West Virginia Supreme Court of Appeals. The West Virginia Supreme Court of Appeals is therefore, the final court of appeals in criminal and civil matters in West Virginia and the court of last resort in matters arising from West Virginia’s Intermediate Appellate Courts and Administrative Agencies.
Filing an Appeal in West Virginia
Before getting to the actual work of the appeal, the practitioner must meet a number of jurisdictional requirements for filing the appeal itself. The Rules of Appellate Procedure, effective July 1, 2010, now dictate that a notice of appeal must be filed within several kinds of time frames: a. 4 months after final order in circuit court or 4 months after entry of an order of the family court b. 30 days after final order in an administrative proceeding (30 days from service of notice of entry for federal court) c. 6 months after final order in magistrate court (90 days from service of notice of entry in federal court) d. 60 days for final order in Workers’ Comp Rule 3(e) talks about effecting the filing of the appeal, and the former provisions for simply mailing the notice of appeal to the court have been replaced by a more reliable system, where the notice of appeal may actually be delivered to the court via facsimile or e-mail. Items that are still subject to actual filing rather than electronic filing include the payment of the filing fee, a request to be excused from paying the fee, and the filing of the docketing statement. The docketing statement must be filed within 10 days after the filing of the notice of appeal, though the Rules specify that parties may agree to a later time. I expect that most practitioners will probably continue to file earlier docketing statements, even if they will be informing the court that the statement is being filed beyond the 10-day limit. The time frame for serving on other parties the docketing statement has expanded to roughly 20 days. After the docketing statement is filed, the notice of appeal is sent to the lower court for filing and assignment of a record number. The clerk is responsible for assigning the record number and notifying the appellate clerk, whereas under the old rule the outer clerk did both. There is some small additional work here by the circuit court clerk, as she must also notify the parties that the record has been assigned a number. As has happened since rule changes took place in the state circuit courts, the new appellate procedure rules can be found at the back of the West Virginia Code of Rules, under the title "Rules of Appellate Procedure."
Requirements of a Record on Appeal
The record on appeal in West Virginia typically consists of three documents: two written documents, the petition for appeal (W. Va. R. App. P. 10(a)) and appellee’s brief (W. Va. R. App. P. 10(b)), and one transcript, known as the lower tribunal transcript (W. Va. R. App. P. 9). These three documents are not classified permanently as documents. As time passes, a document may be admitted permanently to the record as a matter of public record or may be replaced or supplemented by a later version or document.
The lower tribunal transcript is the transcript of testimony, records, and proceedings in the court or administrative agency below the Supreme Court. The lower tribunal transcript is the one document that the Supreme Court must have to entertain an appeal. The right to direct appeal to the Supreme Court of West Virginia is a constitutional right. If the Supreme Court does not receive the lower tribunal transcript, for any reason, it will not take jurisdiction of the appeal.
Transcripts from the circuit court or administrative agency below are incorporated into the lower tribunal transcript. The entire lower tribunal transcript must be included in the lower tribunal transcript. Even sections of the lower tribunal transcript that do not seem relevant to the appeal must be included. Only when the lower tribunal transcript is incomplete or missing altogether will the Court permit an alternative to the lower tribunal transcript, such as a partial transcript or a statement of evidence.
The petitioner has certain responsibilities to ensure that the lower tribunal transcript is in the proper form. Counsel or an unrepresented party must file with the circuit court clerk a designation of the transcript sections needed for the appeal. Without agreement with opposing counsel (or the unrepresented party, for pro se cases), counsel has 120 days from the date of the order being appealed to file the designation. After that date, counsel has only 60 days to file the designation, and at the same time, must advise the opposing party of the designation. If counsel or the trial court fails to file the completed lower tribunal transcript by the deadline, then the Supreme Court may dismiss the case or the petition for appeal.
Practice: Briefs and Motions
A brief is any document filed with the appellate court in which one of the parties to the appeal sets forth its position and arguments on a point or points of law. It can be either an opening brief, a reply brief or an intervenor brief. Aside from initial pleadings—such as the notice of appeal and designation of the record—briefs are the only documents in an appeal that must be filed. See W.Va. R.App.Proc. 7(a).
The judiciary has promulgated a number of rules governing the content, form, and manner of filing briefs. See W.Va. R.App. Proc. 10, 22. Appellants are entitled to file more extensive briefs—50 pages for briefs in civil cases, 40 pages in criminal cases. Appellees are limited to 30 pages in civil cases and 20 pages in criminal cases. See W.Va. R.App. Proc. 10(b)(1)-(2). Appellants may file a reply brief in civil cases not exceeding 10 pages. Appellants in criminal cases do not have the right to file a reply brief. That is something the Court may permit "in its discretion." W.Va. R.App. Proc. 10(b)(3). Heirs at law or distributes who intervene on appeal are limited to 15 pages. Id.
A brief shall be signed by the attorney filing it, or only by the party if the party acts pro se. W.Va. R.App. Proc. 20. Counsel must sign all briefs submitted to the appellate court. Id. Briefs should not be stapled or "bound". W.Va. R.App. Proc. 20, 22. One copy of the brief must be hand served and one electronically filed. W.Va. R.App. Proc. 22. A self-represented litigant must also submit a copy of the brief in an electronic format. Id.
The distinction between an appellant’s and an appellee’s brief is a fine but important line. An appellant’s brief (i.e., a "brief of appellant") is often the first opportunity to present a case’s facts and legal theories to the appellate court. An appellee’s brief (i.e., a "brief of appellee") is often the first opportunity to respond to those arguments. The meaning of these terms is straightforward enough: the "appellant" is the party appealing and the "appellee" is the opposing party, who the appellant wishes to persuade—and who has the burden to show why the Court should affirm the lower court. Still, the terminology is a bit of a misnomer. A party appealing a case can actually be the "appellee" before the Court and get the first shot at arguing. A party wishing to challenge an order of the lower court can actually be the "appellant"—and actually should be the "appellant" if it is the party seeking to overturn a lower court ruling. See W.Va. R.App. Proc. 6, 10.
Whether the label "appellant" or "appellee" is used depends on the last order or judgment issued by the circuit court. If the lower court has ruled against you, you are the "appellant." If the lower court has ruled in your favor, you are the "appellee." At times, the true meaning of the words "appellant" or "appellee" can be lost because multiple orders have been issued. For example, a circuit court’s denial of a motion filed by the plaintiff can sometimes result in the aggrieved party filing a motion for reconsideration, resulting in yet another order being entered denying the motion. In such a case, the party who filed the motion for reconsideration may consider whether he or she is the true "appellee" or "appellant." The answer is not always intuitive.
The principal point is that these nomenclatures should not be taken literally. While the terms "appellee" and "appellant" may change with the lower court’s actions, the parties to an appeal and their rights never do. Beware of the fact that courts have the power to vindicate your rights if you are confused by the appellate nomenclature.
Although the rules governing briefs are of course extensive and detailed, the Court expects all parties to use their common sense, and most importantly, their legal education, in drafting their briefs. "Each party, in civil and criminal cases, shall provide a concise statement of the standard of review applicable for each issue presented in the brief." W.Va. R.App. Proc. 10(a). Although the Court is not bound by that statement, it does expect that litigants will "so inform the Court of the applicable law." Id. Likewise, this requirement is designed to "relieve the court of having to devote time and effort to ferreting out the rule of law, or laws, which controls a litigant’s assigned error, or errors, ostensibly based on factually analogous cases. . . . Many cases have been decided on an error viz-a-viz the controlling law, not the issue argued, and a comprehensive discussion, supported by citations to recognized authority, is required for effective resolution of the dispute." Id.
Oral Arguments Before the Court
Oral arguments before the West Virginia Supreme Court are typically held in the Charleston Headquarters of the Court or at some other location around the State, either in conjunction with a special session or by invitation of a local legal organization, such as a bar association or inn of court. The Court may also choose to consider a case "on the briefs" only, without oral argument, at its discretion. Subject to the discretion of the Court, oral arguments prior to the filing of the Court’s opinion will last no longer than thirty (30) minutes, exclusive of any rebuttal time. Parties have the option of splitting oral argument time, but under no circumstance are they allowed to exceed the allotted time. Argument time may be lost if an attorney is not fully prepared to argue when called before the Court. The Appellant of cross-appellant will be permitted a minimum of five minutes of rebuttal time. For multi-party cases, the time limitation will be fifteen (15) minutes for each party up to three (3) parties, and may be extended by the Court to the extent that economy of argument permits. Argument time for the fourth (4th) and any subsequent parties will be decided by agreement of those parties involved or the Court. Requested rebuttal time will always be in addition to the respective parties’ argumentative time.
Once the Court has assembled , the courtroom Deputy Clerk will identify the case under consideration and ask the parties to be seated. The Chief Justice of the Court is responsible for recognizing attorneys at oral argument. The Clerk may introduce the case as timely filed on "briefs, response, reply . . .[etc.]" and may identify the party recognized, even when the Chief Justice is not reciting this information. Parties who fail to be ready to present their arguments when recognized by the Court will lose their right to oral argument. Arguments are presented in the same order as the presentation of briefs in cases where oral argument is held. Thus, when the party initiating the appeal, the Appellant, is NOT the Cross-Appellant, Respondent, Appellant’s oral argument shall be first. After the Appellant has initiated his or her oral argument, Respondent may then respond. However, in cases where an Appellant is also a cross appeal, the Court may at its discretion allow the Appellant-Cross Appellant to argue first, even if the original Appellant did not cross appeal.
Decision of The Court and Post-Decision Matters
Decisions of the appellate courts are rendered by a majority of the panel having jurisdiction of a case. If a panel is evenly split on the decision a tie results, and the opinion of the circuit court is upheld. If an appellate court is split evenly on a motion or petition, the motion or petition is denied. Most of the motions decided by the Supreme Court are disposed of by a per curiam decision of the court, or by a unanimous decision of the court. A majority of the judges will have to concur in any decision which changes the judgment of a circuit court.
When a decision is rendered by the appellate court, it will ordinarily be remanded by the appellate court to the circuit court from which it originated. Generally, a mandate is issued by the court to the respective trial court clerk to give effect to the opinion, order or judgment. Mandates are issued by the court in civil cases only when the decision includes a judgment of the matter. In all other cases, the mandate may be issued upon motion of any party parties involved. The filing of a notice of appeal operates as a stay of a judgment of the circuit court only to the extent required by law. Therefore, the decree of the circuit court is enforced pending final disposition of an appeal unless upon motion and in accordance with W.Va.Code Sec. 58-5-3, the appellate court orders otherwise. A motion to enforce a mandate of the court or a cross-appeal from an order enforcing a mandate shall be governed by these rules. Rule 41(c) discusses what is necessary in a mandate issued by the court.
Helpful Hints Regarding Appeals
Successfully navigating the appellate process in West Virginia requires strict adherence to the rules set out in the West Virginia Rules of Appellate Procedure (the "Rules"). So, the most important tip is that you become familiar with these Rules and be aware that they have weaknesses. Supreme Court sanctions are few, and even adverse parties ignore the Rules without penalty. Take the time to familiarize yourself with the Rules and you will be rewarded.
The key times to remember the Rules are:
- The Notice of Appeal. The Notice of Appeal (Rule 6) is the first document you file in your appeal. You must file the Notice of Appeal within 30 days after entry of the judgment being appealed. And, if you are waiting on a post-trial motion to be ruled upon, the 30-day countdown does not begin until the ruling is entered; so don’t go filing the appeal early or you will lose a Rule 59(e) challenge (even if you win that appeal). If your Notice is filed late, you will need permission from the Supreme Court. The justices rarely grant extensions and your loss at the circuit court usually means you will lose on appeal. So, be sure to file the Notice on time. Never file an extension – they don’t exist for appeals from the circuit court and the justices don’t count them.
- The Docketing Statement. The docketing statement is due either the day the Notice of Appeal is filed (Rule 5(f)) or ten days later (Rule 5(g)). Don’t panic, you haven’t officially appealed and you won’t until the docketing statement is filed – so try to get it off right away. The statement must list all parties to the action and the specific grounds for appeal. Do these things, and you will avoid any trouble with the justices when you have your mandatory oral argument.
- The Appendix. Failure to designate proper evidence for your appendix sets the stage for grave problems during the merit stage, which is usually helpful to both parties and the court. Designate and then provide opinions on the appendix evidence you plan to use.
- The Brief. Whether you have a 15-page, 20-page, or 30-page brief, make sure that it says everything you need to say before the page limit, or else the justices won’t read it. The justices turn off and stop reading after they think they have enough information to render their decision, and they stop even if they are not finished reading "your story." The pages on the bottom of your brief are more important than the top pages. You need to put everything you want to say in the first 15 pages, and use the last three pages to say key points you need to make sure the court gets because any additional pages are not counted in the page limit. To add insult to injury, you can’t see these pages online or in the master copy you filed in the lower court. It is evil genius on the Supreme Court’s part, but that does not matter as you are the one who will pay if you do not know the tricks to this system.
Amendments to the West Virginia Rules of Appellate Procedure
In 2020, the West Virginia Supreme Court of Appeals issued an order proposing amendments to the West Virginia Rules of Appellate Procedure and requested public comment. Following the receipt of comments from several individuals and groups, the Supreme Court adopted most of the proposed amendments, effective January 1, 2021.
Components of the amended rules include the naming of parties in an appeal. Numerous rules were amended to reflect a rename of the term "appellee" in the context of business entities as opposed to individuals as "appellees . " The standards for technical corrections and a striking of precedent-effective decisions were also updated.
The final major amendment addressed was the implementation of Rule 12.11. This new rule contains information related to the expedited timeline for certain civil appeals. These specific civil actions include child abuse and neglect proceedings, child and family proceedings, proceedings regarding dependency and neglect cases, and final orders imposing sentence in criminal proceedings. Under the recently amended rules, these appeals will be expedited within 60 days from filing the petition for appeal.