Supreme Court sees more decisions, stable separates - WOWK 13 Charleston, Huntington WV News, Weather, Sports

Supreme Court sees more decisions, stable separates

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As the West Virginia Supreme Court's fall term nears with oral arguments starting Sept. 4, justices are preparing for what will be the end of the busiest year the court has seen in terms of released decisions. 

So, just how busy is 2013 compared to years past? 

Well, the court issued 828 decisions in the January term alone, compared to 951 decisions for both terms in 2012. 

And that number has been on the increase since 2010, when the Rules of Appellate Procedure were released. 

West Virginia Supreme Court Chief Justice Brent Benjamin said he anticipates 50 percent more written decisions by the end of this year compared to last year. 

"We will have a very busy fall," Benjamin said. "In the nine years I've been on the court, and I was talking to Justice (Robin) Davis about this, this is probably one of the largest dockets — most intense dockets — that we've had for a fall term" 

In the fall term, justices have half the time to hear and decide cases. 

"It's going to be a very, very exhausting term," Benjamin said. 

New rules

West Virginia Supreme Court Clerk Rory Perry II recently presented findings to a legislative interim committee, saying the new rules are working.  

Perry explained the court switched to an appeal by right, instead of the previous process of appeal by permission. 

Under the previous rules, circuit clerks from each county would send big boxes of materials when an appeal was filed. Perry said when this happened, lawyers wouldn't have the files as they were preparing their cases.  

This also made it expensive for circuit clerks, Perry said. 

Another frustration came from refusals. 

"We reviewed each case and in some cases, we would have a short order saying the appeal is refused," Perry recalled. "We knew, as court personnel, that the case is carefully reviewed, but it was difficult and increasingly frustrating for members of the public and business community to understand the review of a case that was ‘refused.'" 

This led the court to start looking at processes in other states, eventually coming up with the new rules. 

Now, a decision is issued in every case. A memorandum decision, which makes up a majority of the issued decisions, is defined as an "abbreviated decision on the merits of a case," and they can be cited in court. 

"Cases were reviewed by the court but refused under the old discretionary review system," Perry said. "Since it's an appeal by right, not a single appeal has been refused. Not a single one will be." 

Perry also commented on the Legislature's action of privatizing workers compensation, saying numbers of those cases have gone down since reforms. Judging by the first part of 2013, Perry predicts 30 percent of filings being workers compensation. And he said he doesn't see filings returning to the high levels they once were. 

A unanimous court?

For 2013, the number of dissents filed was steady with the fall 2012 term; however, the number of opinions has increased. 

For the court's first term, justices filed 11 dissents, 12 concurs and five concur/dissents in part out of 46 opinions. Benjamin said this number, in particular, shows justices' attitudes toward one another. Benjamin noted that in 2004, 48 percent of decisions had dissents. 

However, when considering concurs and dissents, it's important to remember that it is rare to have a dissent with a memorandum decision. 

"The cases we have are every bit as difficult as they always have been," Benjamin said. "What I think is being reflected here is an ability of this court to really, really work hard to reaching consensus where possible, and that's important because when we issue unanimous decisions, it gives solid direction of where the law is going or not going." 

This doesn't mean that justices will always agree with each other. 

"As one of the five, I can say we also disagree often and when initially deciding the cases, we often disagree and sometimes we disagree with some passion, but the key to this court is that we continue to work together and continue to discuss and hone down the issue, focus on it and continue to discuss the case and work together," Benjamin said. "That often gets the better result." 

With these separate opinions, Benjamin said it can get personal and court observers can get a "better view of the justice" by reading their separate opinions. 

"A concur is done for a few reasons," Benjamin said. "It can be that you agree with the results but not necessarily the legal reasoning. Another reason is they want to go further into the issue and write separately because the law needs to be focused on or emphasize something. Or in some cases, judges are human and they may be upset about something in the case and just want to vent." 

Benjamin said the first part of 2013 had very legally strong separate opinions. 

"There was a time 10 years ago, for instance, when the court was known for writing emotional separate opinions," Benjamin said. "There was not a lot of law to them. They were just attacking the other justices or attacking the viewpoints of the litigants. A lot felt that was unseemly. What you're seeing now is separate opinions that are enlightening." 

Other 2013 issues 

Benjamin said the first 2013 term also was important for court observers because it was the first time seeing in action the state's newest justice, Allen Loughry. 

"Most people felt based on the way he ran his race that he was running and supported the direction the court had taken," Benjamin said. "That certainly reflected in his voting. To the extent that one term isn't enough to really see where you actually end up, the first term of 2013 showed us that Justice Loughry is a very thoughtful, in depth and, as one could anticipate, a good writer. … I think we very much got a sense that he was exactly what he represented himself to be in the election. He's going to be a team player, going to be a person who brought a different view to the table but is also willing to listen." 

Benjamin said the first term also showed the court's stability. 

"Certainly, since 2009, we have seen a court that is more likely than not to decide a case in a unanimous matter but that doesn't mean it's an easy case. The cases we had in these last terms have been tough cases. Many have been controversial. What you're seeing is five different judges from five different backgrounds working toward the same goal of respecting and listening to each other."