West Virginia Judiciary

Rules of Appellate Procedure

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Part IX. General Provisions

 

Table of Contents Full Table of Contents
  1. Service of papers
  2. General rule on form and filing of documents
  3. Computation and extension of time
  4. Public access to case records and confidentiality
  5. Substitution of parties
  6. Media access
  7. Definitions and rules of construction

Service of papers
  1. Service. Unless otherwise provided in these rules, every pleading, brief, appendix, designation, motion, or other paper required by these rules to be filed with the Court shall be served upon other parties to the case in the following manner:
    1. If such party is represented by an attorney, service shall be made upon such attorney, unless otherwise ordered by the Court.
    2. If the party is not represented by an attorney, service shall be made upon the party.
    3. If no appearance has been made by a party, either in the appeal or in the action from which the appeal is taken, no service is necessary. Service shall be made upon an attorney or party by delivering a copy to him, or by mailing a copy to his last known address. In original jurisdiction cases, service shall be made by any method prescribed by Rule 4 of the Rules of Civil Procedure. Delivery within this rule means personally handing a copy to the party or attorney, or leaving a copy with a clerical employee or other responsible person at the office of an attorney. Service by mailing is complete upon mailing.
    4. Service by facsimile transmission is permissible in accordance with Rule 12 of the West Virginia Trial Court Rules.
  2. Certificate of Service. Papers presented for filing shall contain an acknowledgement of service by the person served or proof of service in the form of a statement of the date and manner of service and of the names of the persons served, certified by the person who made service. Proof of service may appear on or be affixed to the papers filed. The Clerk may permit papers to be filed without acknowledgement or proof of service, but shall require such to be filed promptly thereafter.

General rule on form and filing of documents
  1. Paper size, format, and spacing. All briefs, motions, and other papers required to be filed with the Court shall be printed or typed and reproduced by any duplicating or copying process which produces a clear black image on white paper. The individual copies shall be securely bound with metal staples or fasteners at the top left corner and the page size shall be eight and one-half inches by eleven inches. The text shall be double-spaced and be no smaller than twelve-point proportionally spaced or eleven-point nonproportionally spaced type. Footnotes and indented quotations may be single-spaced and footnote text shall be no smaller than eleven-point proportionally spaced or ten-point nonproportionally spaced type. Margins shall be no less than one inch.
  2. Cover page and caption. The cover page of briefs, summary responses, appendices, petitions, responses and motions shall contain (1) In the Supreme Court of Appeals of West Virginia; (2) the docket number of the case, if assigned; (3) the official caption of the case as set forth in the scheduling order, if one has issued; (4) a brief descriptive title indicating the nature of the document; and (5) the name, address, telephone number, West Virginia State Bar identification number, and e-mail address of the counsel or party, if unrepresented by counsel, filing the document.
  3. Page limits and number of copies. Page limitations do not include the cover page, table of contents, table of authorities, or certificate of service. The page limitations and number of copies required to properly file a document under these Rules are as follows:

    Type
    of Document

    Page Limit

    Number Required

    Notice of appeal (Rule 5, Rule 11, Rule 13)

    Form plus required attachments

    Original and 5 copies

    Petitioner's brief and respondent's brief (Rule 10, Rule 11, Rule 13 through 15)

    40 pages

    Original and 10 copies

    Reply brief (Rule 10, Rule 11, Rule 13 through 15)

    20 pages

    Original and 10 copies

    Summary response (Rule 10, Rule 11, Rule 13 through 15)

    15 pages

    Original and 10 copies

    Appendix in appeals from circuit court (Rule 7) and appendix in original jurisdiction cases (Rule 16)

    None

    Original and 1 copy

    Workers' compensation
    docketing statement (Rule 12)

    Form plus required attachments

    Original and 3 copies

    Workers' compensation
    appendix (Rule 12)

    None

    1 Original

    Workers' compensation
    petitioner's brief and respondent's brief (Rule 12)

    20 pages

    Original and 5 copies

    Workers' compensation
    reply brief (Rule 12)

    10 pages

    Original and 5 copies

    Original jurisdiction petition and response (Rule 16)

    40 pages

    Original and 10 copies

    Certified question
    joint appendix (Rule 17)

    None

    Original and 1 copy

    Petition for rehearing and
    response (Rule 25)

    15 pages

    Original and 10 copies

    Motion and response (Rule 29 through 33, Rule 40, Rule 41)

    15 pages

    Original and 5 copies

    Amicus curiae briefs (Rule 30)

    25 pages

    Original and 10 copies

    Appendix by amicus curiae (Rule 30)

    None

    Original and 1 copy

    Petition for bail and response (Rule 34)

    15 pages

    Original and 10 copies

  4. Citations of authority. Citations of authority shall be made in the body of a document, except citation in a footnote is permissible only if more than five authorities are cited together. Citation to an opinion of this Court must use the full parallel citation and may indicate if the opinion is per curiam, e.g. Fauble v. Nationwide Mutual Fire Ins. Co., 222 W.Va. 365, 664 S.E.2d 706 (2008)(per curiam).
  5. Facsimile filing. In accordance with Rule 12 of the West Virginia Trial Court Rules, the Clerk may permit certain filings required under these Rules to be made by facsimile transmission. Even with the consent of the Clerk, documents necessary to docket or perfect an action before the Court may not be filed by facsimile unless accompanied by a motion for leave to file by facsimile, setting forth good cause. In extraordinary circumstances, the Clerk may provide prior consent to exceed the twenty page limit for facsimile filings set forth in Trial Court Rule 12.03(c). If a facsimile filing is accepted by the Clerk, the Clerk will provide by return facsimile a notice of acceptance, and a statement of the photocopying charges that apply under Trial Court Rule 12.03(l). If a facsimile filing is accepted by the Clerk, the filing of the original shall not be required unless ordered by the Court or directed by the Clerk.
  6. Filings immediately prior to argument. No documents shall be filed less than forty-eight hours prior to a scheduled argument in a proceeding unless specifically requested by the Court.
  7. Improper form or filing. The Clerk may refuse to accept for filing a brief or other paper which does not comply with the Rules of Appellate Procedure and is unaccompanied by a motion for leave to file such brief or other paper despite such noncompliance. If a brief or other paper is returned to counsel or a party, if unrepresented by counsel, for correction and resubmission, a motion for leave to file out of time must accompany any resubmission out of time. To constitute a proper filing, a document must be received by the Clerk on or before the date it is due. Under this rule, the mere act of placing a brief or other paper in the mail on or before the due date does not constitute a proper filing.

Computation and extension of time
  1. Computation of time. In computing any period of time prescribed by these rules, by an order of the Supreme Court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period extends until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule, "legal holiday" includes New Year's Day, Martin Luther King, Jr. Day, President's Day, Memorial Day, West Virginia Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the President, Congress of the United States, Governor, or Legislature of West Virginia.
  2. Enlargement of time. The Court for good cause shown may upon motion enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time.
  3. Additional time after service by mail. Whenever a party is required or permitted to do an act within a prescribed period after service of a paper upon him and the paper is served by mail, three days shall be added to the prescribed period. Provided, however, that this provision does not apply to extend the deadline provided by law or these rules for docketing or perfecting an appeal, and further does not apply to extend any deadline set forth in an order or notice of this Court.

Public access to case records and confidentiality
  1. General rule. In all cases in which relief is sought in the Supreme Court, all pleadings, docket entries, and filings related thereto (hereafter "case records") shall be available for public access unless otherwise provided by law or by a rule of this Court, or unless otherwise ordered by the Court in accordance with this Rule.
  2. Means of public access. Case records that are available for public access may be reviewed in person at the Clerk's Office in the State Capitol or be reviewed electronically if the records are posted to the Court's website. Case records posted to the website may include, but are not limited to: the order of the lower tribunal that is subject to the appeal, certified question, or original action; the briefs filed by the parties in cases set for argument under Rule 20, even if the case is otherwise confidential; and the orders and decisions of this Court. Case records in pending cases may be reviewed at the Clerk's Office in the State Capitol during regular business hours. Case records in disposed cases may be reviewed at the Clerk's Office during regular business hours, provided that sufficient advance notice is provided. Written requests for copies of documents must be addressed to the Clerk,  be specific, and provide sufficient advance notice. Charges for copies of documents in case records provided by the Clerk's Office are set forth in an administrative order that is posted to the Court's website. There is no charge for access to case records using the Court's website.
  3. Case records already determined to be confidential by a lower tribunal. Either in the notice of appeal or in the petitioner's brief, whichever is filed first, the appealing party shall indicate that the case record or a portion of the case record was determined to be confidential by the lower tribunal, and shall cite the authority for the confidentiality.  Unless otherwise provided by order of this Court, upon filing, the portion of the case record determined to be confidential by the lower tribunal shall remain confidential. Whenever a party files a pleading or other document that is confidential in part or in its entirety, the party shall identify, by cover letter or otherwise, in a conspicuous manner, the portion of the filing that is confidential.  Any party or other person with standing may file a motion to unseal the case record or portion of a case record in this Court, setting forth good cause why the case record should no longer be confidential.  An opposing party may respond to the motion within ten days from the date of filing of the motion. Upon its consideration, the Court may, in its discretion, issue an order unsealing all or part of the case record, or issue an order denying the motion.
  4. Case records not previously determined to be confidential. Any party or other person with standing may file an original and the number of copies required by Rule 38 of a motion to seal the case record or portion of a case record in this Court. The motion must state the legal authority for confidentiality. Upon filing of the motion to seal, the case record or portion of the case record that is the subject of the motion shall be kept confidential pending a ruling on the motion.  An opposing party may file a response to a motion to seal within ten days of the date of filing of the motion.  Upon its consideration, the Court may, in its discretion, issue an order sealing all or part of the case record, or issue an order denying the motion.
  5. Personal identifiers restricted.  In order to protect the identities of juveniles and in order to avoid the unnecessary distribution of personal identifiers, any document filed with the Court other than an appendix must comply with the following standards.
    1. Initials or a descriptive term must be used instead of a full name in: cases involving juveniles, even if those children have since become adults; cases involving crimes of a sexual nature that require reference to the victim of such crime; abuse and neglect cases; mental hygiene cases; and cases relating to expungements.
    2. Personal identifiers such as birth date and address may be used only when absolutely necessary to the disposition of the case.
    3. Social Security numbers may not be used under any circumstances.
    4. Sensitive financial or medical information may be used only when necessary to the disposition of the case.
  6. Briefs in Rule 20 argument cases. Because of the important public interest in cases set for oral argument under Rule 20, briefs in Rule 20 argument cases will be posted to the Court's website, even if the case is confidential under this Rule. A party who does not wish the brief to be posted to the Court's website must file a motion to seal the brief at the time the brief is filed, and the Court will consider the matter.
  7. Restriction of electronic records.  Any party or other person with standing may file an original and the number of copies required by Rule 38 of a motion to restrict access to a case record or portion of a case record that has been posted to the Court's website.  The motion shall be served upon all other parties to the case and any other concerned persons. The motion shall state good cause why access to the case record through the Court's website should be restricted and shall specifically state the relief requested.  An opposing party may respond to the motion within ten days of the date of filing of the motion. Upon its consideration, the Court may, in its discretion, issue an order granting or denying the motion and directing such action as may be appropriate. Any case record subject to restricted electronic access shall be available for public inspection in person at the Clerk's Office in the State Capitol during regular business hours.
  8. Oral argument open to the public. All oral arguments under Rule 19 or Rule 20 are open to the public and broadcast live on the Court's website. In presenting oral argument, parties must be mindful not to disclose the identity of juveniles and other personal identifiers contained in subsection (e) of this Rule.

Substitution of parties
  1. Death of a party. If a party dies after an appeal is filed, the personal representative of the deceased party may be substituted as a party on motion that complies with Rule 38 filed by the representative or by any party with the Clerk. The motion of a party shall be served upon the representative in accordance with the provisions of Rule 37. If the deceased party has no representative, any party may suggest the death on the record and proceedings shall then be had as the Court may direct. If a party against whom an appeal may be taken dies after entry of a judgment or order in the circuit court, but before an appeal is docketed, a petitioner may proceed as if death had not occurred. If the appeal is docketed, substitution shall be effected in the Supreme Court in accordance with this subdivision. If a party entitled to appeal shall die before an appeal is docketed, the notice of appeal and petitioner's brief may be filed and presented as if death had not occurred by his personal representative, or, if he has no personal representative, by his attorney of record within the time prescribed by these rules. After the notice of appeal is filed, substitution shall be effected in the Supreme Court in accordance with this subdivision.
  2. Substitution for other causes. If substitution of a party in the Supreme Court is necessary for any reason other than death, substitution shall be effected in accordance with the procedure prescribed in subdivision (a).
  3. Public officers; death or separation from office. When a public officer is a party to an appeal or other proceeding in the Supreme Court in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. When a public officer is a party to an appeal or other proceeding in his official capacity, he may be described as a party by his official title rather than by name, but the Court may require his name to be added.

Media access
  1. General rule. In proceedings that are open to the public, the Court may, in its discretion, permit a member of the media to utilize cameras or equipment used for word processing in and around the courtrooms in which the Court may sit, provided that the orderly procedures of the Court are not impaired or interrupted.
  2. Prior notice and compliance with rules required. Members of the media who wish to cover a Court proceeding shall notify the public information officer as far in advance as is practicable. If the public information officer is not available, the Clerk must be notified. It shall be the duty of media personnel to affirm that they have read this Rule and will abide by the same and further, to demonstrate to the public information officer, or to the Clerk, sufficiently and in advance of any proceeding, that the equipment sought to be used does not produce a distracting sound or light. A failure to provide advance notice may preclude the use of such equipment in any proceeding.
  3. Termination of coverage. After the proceedings have commenced, the Clerk or the public information officer shall terminate coverage of any portion of the proceedings or of the remainder of the proceedings if the Clerk, or the public information officer, determines that continuing coverage is disturbing the proceeding, will impede justice, or will create unfairness for any party.
  4. Nonjudicial meetings. Media coverage of any nonjudicial meeting or other gathering in the courtrooms shall be determined by the concurrence of the sponsoring group and the public information officer or the Clerk, and shall be conducted in accordance with this Rule. These rules shall not limit media coverage of ceremonial proceedings conducted in court facilities under such terms and conditions as may be established by the public information officer.
  5. Equipment and personnel. Broadcast media should arrive at least thirty minutes prior to oral arguments to begin setting up equipment.  All equipment must be in place and tested no less than fifteen minutes in advance of the time scheduled for the court proceeding. The following equipment and persons shall be the maximum equipment and broadcast personnel permitted to actively cover proceedings in the courtroom at any one time: (1) one portable television camera or film camera with not more than one person operating the same; (2) one still photographer with one camera and not more than two lenses and necessary related equipment. Only still camera equipment that does not produce distracting sound or light shall be employed in the courtroom. Only television equipment which does not produce distracting sound or light shall be employed in the courtroom. No artificial lighting (other than that normally present in the courtroom) shall be employed in the courtroom except that, with the concurrence of the public information officer or the Clerk, modifications and additions may be made to lighting in the courtroom, if such modification or additions are installed and maintained without public expense. Reporters who wish to utilize laptop computers to take notes must do so in an area provided for that purpose, and must be in place before proceedings begin. Space will provided on a first-come first-served basis.
  6. Live audio feed must be used. Only film and video cameras without working audio pickup shall be employed in the courtroom. Audio recording equipment of any kind is not permitted in the courtroom. Instead, members of the media must utilize the live audio feed in a designated location in the courtroom. The live audio feed is available as a microphone level or line level signal and requires a female XLR connector. Members of the media are responsible for providing their own equipment suitable to connect to the live audio feed.
  7. Location of equipment and personnel. Video or film camera equipment shall be positioned in such location in the courtroom as shall be designated by the Clerk. All camera equipment shall be positioned only in such area. Any additional television equipment shall be positioned in an area outside the courtroom if that is technically possible. Cables and wiring must be placed in a safe and unobtrusive manner. A still camera photographer shall position himself or herself in such location in the courtroom as shall be designated by the Clerk. The photographer shall assume a fixed position within the designated area and shall act so as not to create a disturbance or call attention to himself or herself through further movement. The photographer shall not move about the courtroom. Unless expressly permitted by the Clerk, representatives of the media shall not move about the courtroom while a proceeding is in progress, and equipment, once positioned, shall not be moved during a proceeding.
  8. Courtroom conduct.  Broadcast, print, or other media interviews will not be permitted inside the courtroom at any time. Broadcast, print, or other media interviews may be conducted in the hallway outside the courtroom in an area designated by the public information officer.  Distribution of printed material, including pamphlets or flyers of any kind, is prohibited both in the courtroom and in the hallway outside the courtroom on days when the Court is in session. Photographers, videographers, and technical support staff covering a proceeding shall avoid activity that might distract participants or impair the dignity of the proceedings.  All media personnel shall observe the customs of the Court, and appropriate dress is required.
  9. Pooling arrangements. Any pooling arrangements among those seeking to provide camera coverage shall be the sole responsibility of media persons. The Clerk, or the public information officer, will not resolve any dispute regarding the same unless a case has attracted nationwide interest.  In those instances, the public information officer and Clerk will be in charge of pooling arrangements.
  10. Rebroadcast of webcast prohibited. The live webcast of oral arguments is provided by the Court as a public service and is not intended to provide an official record of proceedings. The webcast may not be rebroadcast in any manner, in whole or in part, without the prior express written permission of the Court.
  11. Waiver of rules. The Court may, in its discretion, modify or waive parts of this Rule when the circumstances require.

Definitions and rules of construction
  1. Definitions
    1. "Appeal" — The procedure by which a case is brought from a lower tribunal to the Supreme Court of Appeals.
    2. "Brief" — A document filed by the parties to an action before the Court under Rule 10 that sets forth the arguments and issues that the parties wish the Court to consider.
    3. "Certificate of Service" — The statement signed by counsel or unrepresented party describing the date and manner of serving a particular filing on another party.
    4. "Docketing" — Assignment of a case number and placement of an action on the Court's docket by the Clerk upon the receipt of timely and proper filing of an action before the Court.
    5. "Lower Tribunal" — The circuit court, family court or administrative agency from which an appeal is taken or an original jurisdiction proceeding is prosecuted.
    6. "Mature" — Unless otherwise provided by order, a case is mature for consideration by the Court when the deadline for all briefs to be filed has passed.
    7. "Notice of Appeal" — The mandatory notice filed to inform the Court and the other parties that a petitioner intends to perfect an appeal from a final judgment of a circuit court, in the form prescribed by these rules.
    8. "Party" — Where a party is represented by counsel, the term party applies to counsel; where a party is not represented by counsel, the term party applies to the self-represented litigant.
    9. "Perfected" — An appeal is perfected upon the proper and timely filing of the petitioner's brief and appendix. An original jurisdiction action is perfected upon the timely and proper filing of the petition and appendix, if an appendix is required.
    10. "Petitioner" — A party who takes an appeal or prosecutes an original proceeding in the Supreme Court of Appeals.
    11. "Respondent" — A party against whom an appeal is taken or an original jurisdiction proceeding is prosecuted in the Supreme Court of Appeals.
    12. "Submitted" — At the conclusion of oral arguments, a case is submitted for final consideration by the Court.
    13. "Summary response" — A document filed in lieu of a brief by the respondent to an action before the Court under Rule 10 or Rule 16, which is deemed to be a waiver of oral argument.
  2. Rules of Construction. (1) Words in the singular number include the plural, and in the plural include the singular. (2) Words of the masculine gender include the feminine and the neuter. (3) The word "person" shall include corporations, societies, associations, and partnerships, if not restricted by the context. (4) References to "the Court" mean the Supreme Court of Appeals of West Virginia. (5) References to "the Rules" or "these Rules" mean the Rules of Appellate Procedure.