News & Publications - Guide to Supreme Court Procedure

GUIDE TO SUPREME COURT PROCEDURE

This short version of the Rules of Appellate Procedure is provided for members of the general public who are not lawyers or litigants. A complete copy of the Rules of Appellate Procedure is available in the Supreme Court Proceedings section of the Court Rules page.

Types of Arguments
Types of Opinions/Decisions
How to read an opinion
Petition for rehearing
Mandate
Original Jurisdiction
Appeals from Circuit Court
Public Service Commission Appeals
Abuse and Neglect Appeals
Workers' Compensation Appeals
Human Rights Commission Appeals
Certified Questions

TYPES OF ARGUMENTS

Rule 19 Oral Argument

Cases suitable for Rule 19 argument include, but are not limited to:

Cases involving assignments of error in the application of settled law;
Cases claiming an unsustainable exercise of discretion where the law governing that discretion is settled;
Cases claiming insufficient evidence or a result against the weight of the evidence;
Cases involving a narrow issue of law; and
Cases in which a hearing is required by law.

Upon conclusion of the argument, the case will be considered by the Court in chambers. Thereafter the Court will

Decide the case on the merits by issuing a memorandum decision or an opinion;
Set the case for oral argument under Rule 20; or
Issue an appropriate order.

Rule 20 Oral Argument

Cases suitable for Rule 20 argument include, but are not limited to:

Cases involving issues of first impression;
Cases involving issues of fundamental public importance;
Cases involving constitutional questions regarding the validity of a statute, municipal ordinance, or court ruling; and
Cases involving inconsistencies or conflicts among the decisions of lower tribunals.

Upon conclusion of the oral argument, the Court will

Decide the case on the merits by issuing a memorandum decision which explains the reasons why the Court is not issuing an opinion;
Decide the case on the merits by issuing an opinion; or
Issue an appropriate order.

Oral argument under either Rule 19 or Rule 20 is not necessary when:

all of the parties have waived oral argument; or
the appeal is frivolous; or
the dispositive issue or issues have been authoritatively decided; or
the facts and legal arguments are adequately presented in the briefs and record on appeal, and the decisional process would not be significantly aided by oral argument.

Types of opinions/decisions

(From State v. Marcus Patrele McKinley, 13-0745, filed September 29, 2014)

Signed opinions containing original syllabus points

Signed opinions containing original syllabus points have the highest precedential value because the Court uses original syllabus points to announce new points of law or to change established patterns of practice by the Court.

Signed opinions that do not contain original syllabus points

Signed opinions, both those including new syllabus points and those not containing new syllabus points

Signed opinions, both those including new syllabus points and those not containing new syllabus points, are published opinions of the Court. As such, they should be the primary sources relied upon in the development of the common law.

Memorandum decisions

Memorandum decisions are decisions by the Court that are not signed, do not contain syllabus points by the Court, and are not published. While memorandum decisions may be cited as legal authority and are legal precedent, their value as precedent is necessarily more limited; where a conflict exists between a published opinion and a memorandum decision, the published opinion controls.

How to read an opinion

The FRONT PAGE of each opinion indicates the Supreme Court case number, the style of the case (petitioner and respondent identities), the name of the judge and the county circuit court the case originated in, the lower court case number, and the decision of the Supreme Court.

AFFIRMED means the decision of the lower court is upheld.

REVERSED means the decision of the lower court is overturned.

DIRECTIONS means the opinion contains directions to a lower court on how to proceed based on the decision in the opinion.

SUBMITTED is the date the case was argued in front of the Justices (or was ready for decision if there was no oral argument).

FILED is the date the opinion was released by the Supreme Court Clerk’s Office.

ATTORNEY NAMES: The petitioners’ attorneys are listed on the left and the respondents’ attorneys on the right, unless otherwise indicated. Anyone desiring to speak to the attorneys can look up their contact information on the Membership Directory Search section of the West Virginia State Bar website, www.wvbar.org.

"Justice XXX delivered the Opinion of the Court" means that Justice wrote the opinion. If no other Justice is listed, it is a unanimous, or 5-0, decision. Any Justice listed as concurring agrees with the majority decision. For example, if one Justice is listed as delivering the opinion of the Court and two others are listed as concurring, it is a 5-0 decision.

Any Justice listed as dissenting disagrees with the majority decision. If one Justice is listed as dissenting, it is a 4-1 decision. If two are listed as dissenting, it is a 3-2 decision. A Justice can both concur in part and dissent in part to a particular opinion. The correct way to report such a decision would be to say, "Justice XXX wrote the Opinion. Justice (or (Justices) YYY concurred in part and dissented in part." If three Justices are in the majority, one dissents and one dissents in part and concurs in part, the correct way to report that is to say, “Justice XXX wrote the opinion. Justice YYY dissented. Justice ZZZ concurred in part and dissented in part.”

SYLLABUS POINTS are required by the Constitution and are a summary of the opinion. They are listed in an opinion in the order in which they appear in the opinion, not in order of importance.

Signed opinions that do not contain original syllabus points also carry significant, instructive, precedential weight because such opinions apply settled principles of law in different factual and procedural scenarios than those addressed in original syllabus point cases. These syllabus points are distinguishable because they reference to syllabus points in previous opinions at the end.

LAYOUT OF OPINIONS: There is a brief summary of the case and the Court’s decision, a section on the factual and procedural background, a section on the Standard of Review (the type of legal review the Supreme Court will apply to the case), a point-by-point discussion of the arguments on appeal, and a brief conclusion.

Petition for rehearing (Rule 25)

A petition for rehearing may be filed within thirty days of the release of any memorandum decision or opinion, unless the time for filing is changed by Supreme Court order. A petition for rehearing is granted only in exceptional cases. A response to a petition for rehearing is not required, but an opposing party may file a response within fourteen days of the filing of the petition for rehearing. The Court may refuse the petition; grant the petition and direct further proceedings, including issuing a modified opinion or memorandum decision; or take such other action that is necessary to accomplish substantial justice in the case.

Mandate (Rule 26)

Issuance of the mandate terminates jurisdiction of the Supreme Court in an action before the Court. An opinion or memorandum decision of the Court considering the merits of a case is not final until the mandate has been issued. The mandate contains a summary description of the judgment of the Court and any direction as to costs or other matters. The mandate must be read and construed together with the opinion or memorandum decision in the case.

Original Jurisdiction (Rule 16)

Types: Mandamus, prohibition, habeas corpus, or certiorari.

These cases are under the original jurisdiction of the Supreme Court. Issuance by the Court of an extraordinary writ is not a matter of right, but of discretion sparingly exercised.

Mandamus:

A type of original jurisdiction petition; an order of a superior court requiring a public body, inferior court, or public official to perform a required duty.

Prohibition:

An order issued by a court of superior jurisdiction to halt the performance of a particular act by an inferior court, state agency, or public official.

Habeas corpus:

"You have the body." A writ of habeas corpus requires that a person be brought before a judge. It is used mainly by inmates who allege due process violations, but occasionally is used in child custody cases.

Certiorari:

A procedure for removing a case from a lower court to a higher court for review.

Steps in original jurisdiction cases:

The petition must contain a statement as to whether oral argument is necessary. If it is, the petition must say whether the case should be set for a Rule 19 argument or a Rule 20 argument, and why.
The Supreme Court will issue a scheduling order indicating the date on or before which a response may be filed or other deadlines. Failure to comply with a scheduling order may result in sanctions, dismissal, or both.
Consideration of the petition. After the response or summary response has been filed, or upon the date set forth in the scheduling order, the petition will be deemed to be mature. The Court may then
1. Issue a rule to show cause, which unless otherwise provided, stays all further proceedings in the underlying action;
2. decline to issue a rule to show cause (the petitioner can pursue the same issues on appeal following a final order in the lower court); or
3. issue an order appropriate to the circumstances of the case.

The rule to show cause will indicate a date when the action will be submitted for decision, either upon the papers previously submitted without further argument, or upon oral argument under Rule 19 or Rule 20. The rule to show cause may be made returnable to a lower court for further proceedings.

Appeals From Circuit Court (Rule 5)

Step 1. Notice of appeal. Within thirty days of the judgment being entered in circuit court, the party appealing must file a notice of appeal in the Supreme Court Clerk’s Office and serve notice on all parties to the action in circuit court, on the circuit court clerk, and on each court reporter from whom a transcript is requested. The Supreme Court may extend the time period for filing a notice of appeal for good cause.

Step 2. Scheduling order. The Supreme Court will issue a scheduling order that will indicate the dates on which the petitioner's brief, the response brief, the reply brief, and the designated record or appendix shall be filed; whether a transcript will be prepared and the date the transcript is due and the deadlines for filing motions. If a party fails to comply with a scheduling order the Court may impose sanctions or dismiss the appeal, or both.

Step 3. Perfecting the appeal—timing. Unless otherwise provided by law, an appeal must be perfected within four months of the date the judgment being appealed was entered in circuit court. A circuit judge or the Supreme Court can extend the deadline for up to two months for good cause. An appeal is perfected by timely and properly filing in the Supreme Court Clerk’s Office the petitioner's brief and the appendix record. Failure by the petitioner to perfect an appeal will result in the case being dismissed.

Step 4. Appeal is mature. After the response brief or summary response has been filed and any reply brief deemed necessary has been filed (or the time for filing a reply has expired), the appeal will be deemed to be mature, and the Court will fully consider the written arguments of all parties to the appeal. Thereafter, the Court will:

decide the case on the merits without oral argument;
set the case for oral argument and then decide the case on the merits; or
issue an appropriate order after considering any written and oral arguments made by the parties (e.g. the appeal is premature because it is an appeal from an interlocutory ruling, or the appeal is dismissed because the case has been settled).

Public Service Commission Appeals (Rule 14)

Step 1. Filing the appeal. Appeals must be filed within thirty days of the entry of a Public Service Commission final decision.

Step 2. Perfecting the appeal. An appeal is perfected upon the timely and proper filing of a petitioner's brief and appendix in the office of the Supreme Court Clerk.

Step 3. Transmission of record. Within thirty days of receiving notice that an appeal has been perfected, the Commission must send the Supreme Court Clerk the record of proceedings before the Commission, including all the evidence.

Step 4. Scheduling order. The Supreme Court will issue a scheduling indicating the date a statement of reasons must be filed by the Commission, the date any respondent's brief must be filed, and the date for oral argument.

Step 5. Consideration of the appeal. At the conclusion of oral argument, the case will be submitted to the Court for its consideration. The Court may,

decide the case on the briefs without further argument,
issue a written decision on the merits, or
issue an appropriate order.

Abuse and Neglect Appeals (Rule 11)

Step 1. Notice of appeal. Within thirty days of the judgment being entered in circuit court, the party appealing must file a notice of appeal in the Supreme Court Clerk’s Office and serve notice on all parties to the action in circuit court, on the circuit court clerk, and on each court reporter from whom a transcript is requested. The Supreme Court may extend the time period for filing a notice of appeal for good cause.

Step 2. Scheduling order. The Supreme Court will issue a scheduling order that will indicate the dates on which the petitioner's brief, the response brief, the reply brief, and the designated record or appendix shall be filed; whether a transcript will be prepared and the date the transcript is due and the deadlines for filing motions. If a party fails to comply with a scheduling order the Court may impose sanctions or dismiss the appeal, or both.

Step 3. Perfecting the appeal—timing. Unless otherwise provided by law, an appeal must be perfected within four months of the date the judgment being appealed was entered in circuit court. A circuit judge or the Supreme Court can extend the deadline for up to two months for good cause. An appeal is perfected by timely and properly filing in the Supreme Court Clerk’s Office the petitioner's brief and the appendix record. Failure by the petitioner to perfect an appeal will result in the case being dismissed.

Step 4. Perfecting the appeal. Unless otherwise provided by law, an appeal in an abuse and neglect case must be perfected within sixty days of the date the judgment being appealed was entered. A circuit judge or the Supreme Court may, for good cause, extend that deadline up to two months. An appeal is perfected by the timely and proper filing in the Supreme Court Clerk’s Office of the petitioner's brief and the appendix record, if required. Failure by the petitioner to perfect an appeal may result in the case being dismissed.

Step 5. Responsibilities. The guardian ad litem for any minor child involved in an abuse and neglect appeal must file a brief – or a summary response in an appropriate case – and if argument is held the guardian must appear and present argument unless otherwise specifically ordered by the Supreme Court.

Step 6. Consideration of the appeal. After the response brief or summary response has been filed and any reply brief has been filed, the appeal will be deemed to be mature. The Supreme Court then will consider the written arguments of all parties to the appeal. The Court will either:

decide the case on the merits without oral argument;
set the case for oral argument and decide the case on the merits; or
issue an appropriate order after considering any written and oral arguments made by the parties (e.g. the appeal is premature because it is an appeal from a decision that is not final, or the appeal is dismissed because the case has been settled).

Workers' Compensation Appeals (Rule 12)

Step 1. Filing the appeal. Appeals must be filed within thirty days of the decision by the Workers' Compensation Board of Review that is being appealed.

Step 2. Perfecting the appeal. An appeal from a decision of the Workers' Compensation Board of Review is perfected when a properly prepared appeal is filed in the Supreme Court Clerk’s Office.

Step 3. Service of papers. All papers filed in a workers' compensation appeal shall be served on all parties to the appeal or, if represented, upon their attorneys, and upon the successor to the Workers' Compensation Commission and the Workers' Compensation Board of Review.

Step 4. If the respondent wants to file a brief, it has to be filed within thirty days of receipt of the petitioner's brief.

Step 5. If the respondent files a brief or summary response, the petitioner has twenty days to file a reply brief.

Step 6. Consideration of the appeal. After the response brief or summary response has been filed and any reply brief has been filed, the appeal will be deemed to be mature, and the Court will consider the written arguments of all parties to the appeal. The Court will either:

decide the case on the merits without oral argument;
set the case for oral argument and decide the case on the merits; or
issue an appropriate order after considering any written and oral arguments made by the parties (e.g. the appeal is premature because it is an appeal from a decision that is not final, or the appeal is dismissed because the case has been settled).

Step 7. Decision. The Court shall certify its decision upon the merits of the appeal to the Workers' Compensation Board of Review and, in an appropriate case, to the successor to the workers' compensation commissioner.

Human Rights Commission Appeals (Rule 15)

Step 1. Appeals must be perfected within thirty days of the entry of a final order of the Human Rights Commission or a final order of the Circuit Court of Kanawha County ruling on an appeal from the Human Rights Commission. An appeal is perfected upon the timely and proper filing of the petitioner's brief and appendix in the Supreme Court Clerk’s Office.

Step 2. Transmission of record. Within thirty days of receipt of notice that an appeal has been perfected, the Commission must send to the Supreme Court Clerk the record of the proceedings before the Commission, including all the evidence.

Step 3. Respondent’s brief. Within forty-five days of receipt of the petitioner's brief, the respondent shall file a brief or summary response.

Step 4. Reply brief. Within twenty days of receipt of the respondent's brief or summary response, the petitioner may file a reply brief.

Step 5. Consideration of the appeal. After the response brief or summary response has been filed and any reply brief has been filed, the appeal will be deemed to be mature, and thereafter the Court will fully consider the written arguments of all parties to the appeal. Thereafter, the Court will

decide the case on the merits without oral argument;
set the case for oral argument and decide the case on the merits; or
issue an appropriate order after considering any written and oral arguments made by the parties (e.g. the appeal is premature because it is an appeal from a decision that is not final, or the appeal is dismissed because the case has been settled).

Certified Questions (Rule 17)

Certified questions by a West Virginia circuit court or administrative tribunal

Step 1. Certification orders. In cases where questions have been certified pursuant to the provisions of West Virginia Code §5-11-11, §23-5-15, or §58-5-2, the order of certification must contain a concise statement of each question of law, the answer to each question of law by the circuit court or administrative tribunal, a notation of the extent to which the action is stayed pending resolution of the certified questions, and a directive to the parties to prepare a joint appendix of the record sufficient to permit review of the certified questions.

Step 2. The Supreme Court will issue a scheduling order.

Step 3. The parties to a certified question case must file a joint appendix.

Step 4. The Supreme Court may, in its discretion, schedule the case for argument under Rule 19 or Rule 20, issue an order declining to accept the certified question, or issue an otherwise appropriate order.

Certified questions by federal and other courts

Step 1. The clerk of the court where the certification order was entered is required to transmit the order certifying questions and a list of the docket entries in the case to the Supreme Court Clerk.