CHARLESTON -- The West Virginia Supreme Court of Appeals introduced a plan last May to “comprehensively change” the way the court handle appeals.

The changes were supposed to remedy calls from several groups, including an independent judicial reform committee commissioned by Gov. Joe Manchin and a committee commissioned by the Supreme Court itself, recommending an intermediate court of appeals.

Instead, the court has received several criticisms during a recent public comment period which ended July 19. People most critical of the proposed changes say the state still needs an intermediate appellate courts, and the changes proposed do little to fix a system described by some as broken. The public comment period generated thoughts from people throughout the state.

Brenda Nichols Harper, general counsel for the West Virginia Chamber of Commerce, wrote the Supreme Court’s effort is, “cosmetic at best.”

Her comments for the chamber said the memorandum decisions the court wants to issue would likely provide little clarification of the law and so offer “inadequate guidance for the circuit courts and litigants.”

“If these rules are adopted, litigants, in fact, will have no greater right to have adverse judgment by the lower courts reviewed on a substantive basis than currently exists,” Harper wrote.

West Virginia is one of only two states in the nation that do not offer an automatic right of appeal in cases. The state’s highest court also has been criticized for not having an intermediate appellate court despite having one of the heaviest caseloads in the country.

The chamber also pointed out the court staff will be additionally burdened trying to produce explanations on why certain cases were denied rather than heard at the appellate level.

“Further, the rules threaten to increase the workload of an already overburdened Supreme Court, while requiring only superficial appellate review of most cases,” Harper wrote.

Richie Heath, the executive director of West Virginia Citizens Against Lawsuit Abuse, said the court missed its mark in ensuring appellants are ensured review of their case based on the merits — or given proper explanation as to why or why not their case was denied.

Heath said the independent reform commission recommended the creation of an appellate court, and the Supreme Court is not heeding that advice.

Another key rule change is one several lawyers said will place additional burden of cost on those making the appeal.

Don McDaniel and Dwayne Adkins, both of whom are public defenders in Logan County, wrote, “It will cause a tremendous chilling effect on this area of the law whereby most solo practitioners or small offices will eschew the endeavor of even attempting an appeal to the West Virginia Supreme Court.” Lonnie Simmons, an attorney with DiTrapano, Barrett and DiPero in Charleston, wrote, “the cost alone may be the reason some appeals will not be filed.”

Charleston attorney David Schles, who has a private practice, said the proposed rules will place a tremendous burden on individuals and small firms. He said the burden will be felt in terms of the time it will take to meet all of the requirements and the cost of binding the appendixes.

Schles, who also handles appeals in the U.S. 4th Circuit Court of Appeals, said the cost of compiling appendices for federal cases could exceed $100,000. He said the cost of doing similar appendices for state court cases could be thousands of dollars. It would be so costly, he said, because no printing firms in the state currently provide that type of binding and printing service. That differs from other places, such as the 4th Circuit’s home city of Richmond, Va., which has printers who specialize in that type of work.

“I am a solo attorney with no staff to paginate, bind and organize hundreds of pages of documentation properly,” Schles said. “That is going to be difficult, so I see a lot of solo lawyers deciding to continue handling appeals at the state level taking on the work themselves to assure it is correctly done.”

Schles said the federal court utilizes a different system although it requires appendices similar to the rule proposal. He said the federal court actually vouchers the cost of the binding.

“I am allowed to hire firms at no cost to manage these appendices. The firm invoices the court and sends back a confirmation of the work they did, and the court pays for it, which is a tremendous relief,” Schles said.

He also said lawyers for both sides of the case file a joint appendix and index.

Schles pointed out that the federal system is more efficient because all documents are uniform and filed electronically. At the state level, clerks in different circuits may file reports differently from each other making it difficult to reference.

“Some clerks label their paperwork differently which may create (citation) problems,” Schles said.

Schles said overall he believes lawyers will continue to do appeals. But he said the cost and time associated with assembling the appendices likely will be passed on to clients.

“It is a cost. Anyway you look at it. It will be a passed on expense and will add a significant degree of cost on to clients,” Schles said.

“Hopefully someone in the state will have the entrepreneurial insight to open a shop capable of handling this kind of printing to cut costs.”