Commission on The Future of the West Virginia Judicial System

Final Report

CONTENTS

Forward .................................................................... i

The Commission ..................................................................... iii

Chapter 1: The History ............................................................. 1

Chapter 2: The Context ............................................................ 4

Chapter 3: The Methods .......................................................... 11

Chapter 4: The Plan ................................................................. 15

Chapter 5: The Recommendations

Access to Justice .................................................................... 18

Expedition and Timeliness ....................................................... 32

Equality, Fairness, and Integrity ............................................... 46

Independence and Accountability ............................................ 58

Appendices

Appendix A: Supreme Court Administrative Order

Appendix B: Overview of the West Virginia Judicial System

Appendix C: Data Collection Forms and Summaries

Appendix D: Recommendation Summary

Appendix E: Acknowledgments

i

FOREWORD

The thirty-eight members of the Commission on the Future of the West Virginia Judicial Systemrepresent a broad spectrum of West Virginians. Some of us are attorneys, business leaders, or laborleaders. Others are leaders from the executive, legislative, or judicial branches of State government.Some head civic organizations and educational institutions. We vary by age, sex, race, educationalbackground, politics, the area of the State we call home, and in many other ways.

Despite our differences, we are united by our concern for the citizens of West Virginia and our beliefthat West Virginia’s court system must change to meet the demands of our changing society and tobetter serve the citizens of this great State.

When the Supreme Court of Appeals appointed us to serve on this landmark Commission in August1997, we dedicated ourselves to conducting a comprehensive review of the state of West Virginia’sjudicial system while keeping in mind the far-reaching implications of our task. We engaged inextensive information gathering. We held nine public hearings across West Virginia; surveyed alljudicial officers and court personnel; distributed exit questionnaires to petit jurors; surveyed a randomsample of State Bar members; conducted a statewide public opinion poll; and accepted submissionsthrough the mail and E-mail. We thank the many West Virginians whose thoughtful contributionsbroadened and enhanced the recommendations in this report.

The Commission reached consensus on the vast majority of the recommendations found in this report;the only written dissent concerns the selection of judges. Some of these recommendations aredirected to the Supreme Court of Appeals, others will require legislative action, and still others willrequire a coordinated effort between all three branches of government.

It is our hope that this report will be much more than a scholarly overview of West Virginia’s courtsystem. The implementation of the recommendations contained within this report will help create asystem of justice that is accessible to all, timely in its decision-making, fair and equal in its treatmentof those who use it, and accountable to the State’s citizens.

ii

THE COMMISSION

David C. Hardesty, Jr., ChairPresidentWest Virginia University

Michael Bonasso, Esq.Flaherty, Sensabaugh & Bonasso President, 1997-98Defense Trial Counsel of West Virginia

Jim BowenPresidentWest Virginia AFL-CIO

Adell ChandlerPresident, 1997-98County and Circuit Clerk AssociationCircuit Clerk, Cabell County

The Honorable Franklin D. CleckleyProfessorWest Virginia University College of Law

Otis G. CoxSecretaryDepartment of Military Affairs and Public Safety

Honorable Oshel B. CraigoChair, Finance CommitteeWest Virginia Senate

Honorable John R. FrazierPresident, 1997-98West Virginia Judicial AssociationCircuit Judge, Ninth Judicial Circuit

Elaine Harris, Subcommittee ChairInternational RepresentativeCommunication Workers of America

Cheryl L. Henderson, Esq.

President, 1996-98 Mountain State Bar Henderson, Henderson & Staples, L.C.

Samuel HicksPresidentCounty Commission Association

Virginia Jackson Hopkins, Esq.Executive DirectorProsecuting Attorneys’ Institute

Patrick Kelly, Esq. General Counsel to the Governor

Honorable Robert S. KissSpeaker West Virginia House of Delegates

Jack KlimPresidentD & E Industries, Inc.

James R. LeePresident, 1996-97WV Association of Probation OfficerProbation Officer, First Judicial Circuit

Beth LongoPresident, 1997-98Family Law Master AssociationFamily Law Master, Region 12

Karen LukensBoard of DirectorsLeague of Women Voters

Dr. Henry R. MarockieSuperintendentWest Virginia Department of Education

iii

Laurie McKeownCoordinatorTEAM for West Virginia Children

Honorable Harold K. MichaelChair, Finance CommitteeWest Virginia House of Delegates

Hershel MullinsPresident, 1998Magistrate AssociationMagistrate, Monongalia County

Catherine Munster, Esq., Subcommittee ChairCourt Improvement Oversight BoardMcNeer, Highland, McMunn &Varner

D.C. Offutt, Jr., Esq., Subcommittee Chair Offutt, Fisher & NordPresident, 1997-98West Virginia State Bar

Joan E. OhlSecretaryDepartment of Health & Human Resources

Larry PaxtonDirectorAppalachian Center for Independent Living

Bruce Perrone, Esq.Litigation DirectorLegal Aid Society of Charleston

Robert E. "Bob" PhalenPresidentUMWA, District 17

Bill RaneyPresidentWest Virginia Coal Association

Diane ReeseTeam CoordinatorWest Virginia Coalition Against Domestic Violence

John A. Rogers, Esq.

Executive DirectorPublic Defender Services

Laura Rose, Esq.Laura Rose & AssociatesPresident, 1997-98West Virginia Trial Lawyers

Honorable W. Richard StatonChair, Judiciary CommitteeWest Virginia House of Delegates

Caroline StokerMagistrate Court ClerkMonongalia County

Ken SummersPresident and CEOOne Valley Bank

Thomas R. Tinder, Esq., Subcommittee ChairExecutive DirectorWest Virginia State Bar

Honorable Earl Ray TomblinPresidentWest Virginia Senate Honorable William R. WootonChair, Judiciary CommitteeWest Virginia Senate

1

CHAPTER 1

THE HISTORY

Laws and institutions areconstant ly tending togravitate. Like clocks, theymust be occasionally cleansed,and wound up, and set to truetime.

--HENRY WARD BEECHER

The Supreme Court of Appeals of WestVirginia appointed the Commission on theFuture of the West Virginia Judicial System inthe Fall of 1997 to conduct a comprehensivereview of the State’s court system. Citing thelack of a thorough, critical review of thesystem since the “Judicial ReorganizationAmendment” of 1974 and the changing natureof the problems that the court system wasbeing asked to address, the Supreme Court’sAdministrative Order of October 2, 1997established the Commission and directed thatit:

First, examine the trends, both internal andexternal to the court system, which areaffecting the role of the court as an institutionand the delivery of its services;

Second, assess the performance of the courtsystem in light of established standards offairness, accessibility, timeliness, andaccountability;

Third, identify the strengths upon which tobuild, as well as the obstacles to overcome, toenable the court system to improve its

performance;

Fourth, make recommendations as tostructural, organizational, and proceduralchanges that will ensure a just, effective,responsive, and efficient court system into thenext century; and

Fifth, develop a general plan to implement therecommendations.

The Commission’s membership was broad-based and diverse and reflected the SupremeCourt’s interest in forming a partnership withthe other two branches of government, the bar,private-sector business and labor interests,advocacy groups, and other community basedorganizations to develop a plan for the courtsystem.

At its first meeting in October of 1997, theCommission adopted a set of guidingprinciples in order to focus its deliberations onwhat the court system should achieve, and not--at least initially-- on what the court systemshould look like. The strategy was to identifythe desired outcomes and then design thestructures and processes that would achievethose outcomes. The five principles, based onnationally recognized standards of courtperformance, also express the judicial system’sfundamental values. The Commission termedthese principles the Criteria for Excellence inJudicial Administration.

The first is ACCESS TO JUSTICE --insuring that all people can use the courts byeliminating physical, economic, and proceduralbarriers and by making the justice systemconvenient, understandable, and affordable.

Second, EXPEDITION AND TIMELINESS-- insuring that cases are processed in a timely

2

manner and resolved with finality, thatschedules are met, and that changes in lawsand procedures are promptly implemented.

Third, EQUALITY, FAIRNESS, ANDINTEGRITY-- insuring that the courtsrespect the dignity of every person, regardlessof race, class, gender, or other characteristic,that court procedures adhere to relevant laws,procedural rules, and policies, and that casesare decided upon legally relevant factors.

Fou r th , INDEPENDENCE ANDACCOUNTABILITY -- insuring that thejudicial system maintains its distinctiveness asa separate branch of government, monitors andcontrols its operations and use of resources,and educates and accounts to the public for itsperformance.

F i f t h , P U B L I C T R U S T A N DCONFIDENCE -- insuring public respect forthe court system and compliance with itsdecisions.

At its initial meeting, the Commission alsoapproved a work plan which included anintensive period of information gathering anddata collection through April 1998. As part ofits Administrative Order establishing theCommission, the Court mandated that theperspectives and opinions of both those whowork within the system and those who use thesystem be considered in this process. Pursuantto this work plan, the Commission held ninepublic hearings; conducted a random samplesurvey of members of the State Bar;distributed exit questionnaires to petit jurorsserving during the period; surveyed all judicialofficers and other court personnel; includedseven court-related questions on a statewidepublic opinion telephone poll; and acceptedwritten submissions via the mail and at its web

site. A summary of the research methods andinformation collection is included as Chapter 3of this report.

During this process, the Commission heardfrom many differing perspectives and interests.Some of the submissions were poignant, someaddressed very specific individual concerns,but all were thoughtful and sincere. Theprocess yielded a great deal of information,and the Commission is grateful to the manyemployees of the court system, members of thebar, representatives of agencies andcommunity organizations, and concernedcitizens who took the time and effort torespond. There were individuals who wantedthe Commission to investigate or re-try theircases, but even in the accounts of these andother litigants, there were often insights intoprocedural and structural problems in thesystem. Litigants are considered to be biasedobservers of the court system, but they areoften very capable of separating the outcomeof their case from their perception of whetherthe procedures were fair, decision-makerswere neutral and unbiased, and whether theywere treated with dignity and respect.

During this phase of its work, the Commissionalso benefited greatly from the work of manyprevious and ongoing court-relatedcommittees, commissions and task forces. For example, the State Bar’s Commission onChildren and the Law and JudicialImprovement Committee, the CourtImprovement Oversight Board, the JudicialAssociation’s Rules Committee, the SupremeCourt’s Gender Fairness Task Force, and theGovernor’s Family Violence CoordinatingCouncil--to cite just a few examples. Clearly,the Commission’s work is built on these andother efforts and reflects the progress alreadyachieved in many areas.

3

After all of the information and data wascompiled, sorted and sifted, 26 issues wereidentified for the Commission’s consideration.They represented a broad spectrum ofconcerns, from caseloads to computers, fromsentencing to security, from mediation to meritselection, and from education to ethics. InMarch of 1998, the Commission convened aFocus Group meeting with approximately 70representatives of the court system, othergovernment agencies, the public and privatebar, and other interested associations andindividuals to help it prioritize these issues.The focus group ranked the issues in terms ofimportance as well as their urgency and thelikelihood they could be “fixed” as the result ofthe Commission’s and court system’s efforts. In mid-April, two informal focus groups werealso held with the faculty of the College ofLaw to discuss the issues.

The Commission held its second meeting onApril 30, 1998. To make its task moremanageable, the Commission subdivided intofour subcommittees to address the issuesarrayed under the first four themes of theCriteria for Excellence. These subcommitteesmet through the summer and their workresulted in the generation of 26 reports whichwere delivered to the Administrative Office ofthe Courts on August 15, 1998. These reportsare excellent resources on each topic. Theycontain concise overviews of each issue,outline sources of information and data,present findings and conclusions, and makerecommendations for change. Thesubcommittee reports are compiled in acompanion volume to this report which isavailable upon request to the AdministrativeOffice of Courts.

The subcommittee reports were distributed toall Commission members in mid-September

and the 162 recommendations that emergedfrom the subcommittee process were taken upby the Commission at its third meeting onSeptember 24, 1998. Three issues--thejurisdiction of a proposed family court, aproposed intermediate appellate court, andmerit selection of judicial officers--could notbe fully discussed and voted upon within theallotted time on that day and were the subjectof an additional meeting on October 13, 1998.Amendments to the original subcommitteerecommendations and areas of substantialdebate are discussed under their respectiveissues in Chapter 5 of this report.

It was the Commission’s responsibility torecommend what is best for the judicialsystem, not just the easiest or quickests o l u t i o n s . T h e C o m m i s s i o n ’ srecommendations range from dramaticproposals for change to the structure andapproach of the courts in some areas to minorrefinements of the system. Some are quitespecific, while others are more abstract. Thereare a few issues that require study beyond thatwhich could be accomplished in theCommission’s tenure, and so therecommendations are more circumspect.Some of the recommendations can beaccomplished immediately, others will requireplanning, fund-shifting, and/or coordination ofefforts by a number of individuals or agencies. The final report of the Commission on theFuture of the West Virginia Judicial Systemwas presented to the Supreme Court ofAppeals on December 1, 1998. Discussion ofthe report will likely lead to more ideas forchange or redirection of the course theCommission has charted. That would be awelcome response and signify the true successof the Commission’s work.

4

CHAPTER 2

THE CONTEXT

Scarcely any political question arisesin the United States which is notresolved, sooner or later, into ajudicial question.

--Alexis de Tocqueville

With the Supreme Court’s establishment of anentity to examine the future of the courtsystem, West Virginia joined an ever growingnumber of states making a commitment tosuch an effort. To date, more than half of thestates have formed a futures commission ortask force. A number of others have conductedcourt futures activities, such as conferences orresearch projects. Most of these efforts sharecommon goals and objectives. The impetus toengage in both critical self examination andstrategic planning is found in the challenge ofproviding justice in a rapidly changing world.Despite its homogeneity, relatively low crimerate, stationary population, and stablecaseload volume, West Virginia is not immuneto the pressures which have affected statecourt systems nationwide. For example:

C the demand that courts resolveproblems and not just decide cases;

C the increasingly complex nature of thelaw and legal disputes;

C the heightened demands andexpectations on the part of court usersand the public for “user-oriented” and“community-oriented” courts;

C the dramatic impact of technologicaladvances on the exchange ofinformation and communication;

C the rise of alternative forums for theresolution of disputes;

C the unprecedented scrutiny of judicialsystem performance by funding bodies,the news media, and the public;

C the diminished public trust andconfidence in all governmentinstitutions including the judicialsystem; and

C the tension to accommodate changewhile retaining the traditionalpurposes, responsibilities and values ofthe court system.

In addition to these broad trends impinging onthe West Virginia judicial system, there wereforces at work within the current court systemthat presented challenges and spurred theformation of the Commission.

First, the time was right. Article 8, Section5 of the West Virginia Constitution providesthat judicial circuits may only be realigned bythe Legislature in the year preceding the fullterm election of judges. Therefore, ifstructural or jurisdictional changes wereneeded in the present court system, theseproposals needed to be considered inconjunction with circuit realignment in 1999,prior to the year 2000 election. The nextopportunity for redrawing of circuitboundaries will not occur until 2007.Likewise, the four year terms of family lawmasters expire on July 1, 1999.

5

Second, the nature of the court’s business ischanging. Certain trends in the caseload atboth the trial and appellate court level are agrowing concern. In 1997, more than 64,000cases were filed in the circuit courts of theState. As is shown in Figure 1, the circuitcourt caseload has experienced somefluctuations since the beginning of the decade,but has been relatively stable over time. As isalso shown in Figure 1, the total volume offilings is fueled primarily by the civil caseloadwhich consistently constitutes 75% to 80% ofthe circuit court docket. However, a dramaticchange has occurred within the civil caseload.

Figure 1

As Figure 2 illustrates, “general civil” actions,which include personal injury, malpractice,product liability, contract cases and similarmatters, decreased by 11% from 1990 to 1997,from 17,243 to 15,394. Domestic relationscases, on the other hand, increased by avigorous 47% during the same period, from14,582 filings in 1990 to 21,410 in 1997. Theresult is that domestic cases, which were one-third of the civil and one-quarter of the total

caseload in 1990, are now 43% of the civil and33% of the total caseload statewide. Domesticcases outnumber general civil case filings in 26of the 31 circuits. This increase in volumecoupled with the increased complexity offamily law cases is clearly taxing the family lawmaster system and is a factor in a rising senseof litigant dissatisfaction with performance inthis area.

Figure 2

*Includes administrative agency appeals, adoptions, and miscellaneous petitions.

In addition to these changes in circuit court,the number of petitions for domestic violenceprotective orders filed in magistrate courtincreased by almost 200% since 1990, fromapproximately 5,200 to over 15,500 in 1997.This dramatic growth, illustrated in Figure 3,has been accompanied by changes in thedomestic violence law designed to grantvictims greater protection and relief andenhance the system’s response to these cases.While necessary and beneficial, these changeshave also made the application of the law moreintricate and time-consuming. The demand, interms of both volume and complexity, hasexceeded the capacity and original vision ofthe role of magistrate court in this process.

6

Figure 3

The greater volume and complexity of family-related cases entering the court system hasprompted many court participants andobservers to call into question the system’sfragmented approach to family law matters.There is a growing recognition of thepotential for delay, conflicting orders, lack ofcoordination of services, and the likelihoodthat a family might appear before five or moredifferent judicial officers in the course ofresolving its legal problems.

At the appellate level, the Supreme Court ofAppeals continued to experience a steadyincrease of cases. A total of 3,114 petitionswere filed in 1997, a 53% increase over thenumber filed in 1987, and the second highestnumber of filings in the Court’s history. Thegrowth in the Court’s caseload is attributablealmost exclusively to an increase in workers’compensation cases. As compared to 1996,the number of petitions filed in 1997 fellslightly across most categories; however thenumber of workers’ compensation cases rosesignificantly, from 1,534 to 1,708, an 11%increase. Since 1987, the number of workers’compensation petitions has increased by morethan 100%. As Figure 4 shows, workers’

compensation cases now constitute 54% of theCourt’s docket, up from 41% in 1987.

Figure 4

Case Types as a Percentage of 1997 Total Caseload

* Original Jurisdiction includes: habeas, mandamus, and prohibition**Other includes: certified questions, writs of certiorari, petitions and ethics cases

Even without the worker’s compensationcases, the West Virginia Supreme Court wouldhave the largest number of total filings and thehighest number of filings per justice of anycomparable appellate court in the country.West Virginia is one of only ten states withoutan intermediate appellate court despite the factthat its filings exceed the total number ofappellate cases in one third of the states thatdo have an intermediate appellate court.

Third, the demographics of the courtsystem’s clientele is changing. WestVirginia’s population level has fluctuated forhalf a century. After declining in the 1950sand 1960s, it increased in the 1970s only tobegin to decline again in 1983. A decrease of160,000 through the 1980s followed anincrease of 210,000 over the 1970s. The latestprojections indicate a population that will be

7

fairly stable over the next 30 years at 1.8million. Given the strong positive correlationbetween population and case filings, there islittle expectation that West Virginia willexperience dramatic caseload growth in theforeseeable future. However, there is more todemographic change than just populationgrowth and decline.

Nationwide, changes in divorce, marriage, andlabor force participation rates, migrationpatterns, and lifestyle preference, along withpopulation aging, have substantially altered thetraditional family. In the past 25 years, WestVirginia experienced a decline in the absolutenumber and rate of marriages and an increasein the number of divorces. In 1980,approximately 8% of births were to unmarriedwomen; that figure increased to 30% by theearly 1990s. The percent of births tounmarried teens was 6% in 1980, but over10% in 1990. At the same time, the number ofchildren in poverty rose from approximately19% in 1980 to more than 26% in 1990.

By the year 2020, demographers estimate that18% of West Virginia’s population will be 65years of age or older, above the national rateof 15%. It is also forecast that some 60% ofthose over 65 by 2020 will be women, and byage 80, women will likely compriseapproximately 70% of the elderly in the State.The consequences of this aging of thepopulation on the court system could bedramatic in terms of the types of cases cominginto the system, such as elder abuse, pensiondisputes, age discrimination actions, wills andtaxes, and even right-to-die litigation.

Although West Virginia has not experiencedthe influx of ethnic and minority groups thathas occurred in other states, there is increasingdiversity in the population. The impact of this

increase in diversity is confined to certain areasof the State and the groups involved oftenrepresent a distinctive labor pool. The courtsystem must be prepared to accommodate andaddress the needs of a more pluralistic society.

Fourth, technology holds great promise butalso creates great demands. The last decadehas seen a significant growth in the uses oftechnology to address different aspects ofcourt operations and judicial decision-making. New technology can make a substantialcontribution toward improving judicial systemaccessibility, efficiency, and productivity, butit must be embraced, actively used andmanaged. It must also not be imposed onoutmoded structures and processes that havenot been reviewed for their efficiency andeffectiveness. However, the court system cannot proceed at a leisurely pace, evaluating andweighing every advance or installation. Therewill be increasing pressure from the public andusers of the system for the court system toprovide access to court information via thetechnological innovations commonly used bythe private sector, to pay court fees and othercosts electronically, and to have system widecommunication capabilities.

While the State of West Virginia and thejudicial system have embarked on one of themost promising and progressive technologyprojects in the nation (2001 Courtroom of theFuture), there are also some bumps on ourinformation superhighway. All circuit clerkoffices are not computerized and the 45 thatare automated have a variety of casemanagement systems. Magistrates courts haveuniform software, but at both levels of courtscomputer systems are generally not networkedintra-county, much less inter-county, nor arethey linked with the Administrative office orother state agencies. There is little information

8

transfer or communication capability.Moreover, some courts need even morefundamental communication technology, suchas additional telephone lines, facsimilemachines, and electronic library services.

Finally, the poor public perception of courtsystem performance has to be addressed ifconfidence in the system and its decisions isto be maintained. The judicial system cannot ignore the general erosion of confidence inthe courts, as well as all public institutions,which has occurred over the last decades. Toassess the perceptions of West Virginiacitizens, the Commission participated in astatewide, random sample, telephone surveydesigned to answer the basic question “Howare we doing?”

The specific questions used in the survey werefashioned around the themes of the Criteria forExcellence in Judicial Administration, theconceptual framework that guided theCommission’s work, and were broad attemptsto assess the public’s view of suchfundamental issues as the accessibility,fairness, equality, and accountability of thejudicial system. While a certain percentage ofthe 712 respondents had direct experience withthe courts, the majority had not. Therefore,the results provide more of an insight into theprevailing community impressions of thejudicial system and its decisions than a userevaluation. The sources of the respondents’perceptions, absent direct participation in thecourts, are a matter of speculation, but mayinclude the media, experiences of friends andfamily members, and over-arching attitudestoward all government institutions.

Two facets of the broad concept of accesswere addressed in the survey: cost andprocedural difficulty. Slightly more than a

third of the respondents did not believe thatWV courts were affordable for ordinarypeople and a little more than a quarter ratedthem as difficult or extremely difficult tounderstand.

On the standard of equality, fairness, andintegrity, respondents were first asked to agreeor disagree with the statement “West Virginiacourts treat people equally.” The results areshown in Figure 5. While approximately aquarter of the respondents were neutral on thisquestion, almost half disagreed or stronglydisagreed with the statement. Only 4% of therespondents strongly agreed that WV courtstreat people equally.

Figure 5

Respondents were also asked to react to theassertion that “People get the justice theydeserve.” Figure 6 displays the responses.

9

Figure 6

Again, while a little more than a quarter of therespondents were neutral, close to half eitherdisagreed or strongly disagreed with thisalternative statement about the fairness andequality of the court system.

Public trust and confidence in the WV judicialsystem was gauged by both a communityperspective and a personal perspectivequestion. Asked to agree or disagree with thestatement that “The courts have a positivereputation in my area,” respondents alignedthemselves as shown in Figure 7.

Figure 7The Courts Have a Positive Reputation in My Area

With 42% of the respondents agreeing orstrongly agreeing with this statement, the courtsystem fared somewhat better in this instancethan on previous measures. Once again,approximately a quarter of respondents wereneutral on this question. A third of the sampledisagreed or strongly disagreed with the notionthat the courts enjoyed a positive reputation intheir community.

Respondents were also asked how muchconfidence they personally had in the decisionsof WV courts. Figure 8 shows the results.

Figure 8How Much Confidence Do You Have in the

Decisions of West Virginia’s Courts?

The lack of a “neutral” response category onthis item may contribute to the convergence onthe “somewhat confident” answer. Still, onceagain, the results are more positive than onsome other measures, with less than a third ofthe respondents expressing little or noconfidence in the courts’ decisions.

In the final question, respondents were askedto agree or disagree with the simple statement:“The justice system works.” The answers are

10

displayed in Figure 9. This question wasmeant to address the issue of accountability,but it also speaks to all of the main tenets ofthe Criteria for Excellence, includingconfidence, fairness and integrity, andaccessibility.

Figure 9The West Virginia Justice System Works

Again, 25% of the respondents were neutralon this issue, but the remainder were almostevenly divided between agreement anddisagreement with the statement.

While West Virginia’s results are on a par withthose obtained in other states, or in someinstances, somewhat more positive, they arestill cause for concern. Clearly, the responsesspeak to problems not just with the courtsystem but with all of government and thelegal system as a whole. Respondents often donot understand the distinctions betweengovernment entities or the particular role ofthe courts in the system of justice. Still,whether the ratings are justified is not theissue. The court system must have asubstantial measure of public confidence tomaintain its independence and support. Oneway the judiciary can improve publicperceptions is to take definite steps to improvecourt performance.

11

CHAPTER 3

THE METHODS

No set of legal institutions orprescriptions exists apart fromthe narratives that locate itand give it meaning. Onceunderstood in the context ofthe narratives, law becomesnot merely a system of rules tobe observed, but a world inwhich we live.

--ROBERT M. COVER

In accordance with the work plan adopted bythe Commission on the Future of the WestVirginia Judicial System at its initial meetingon October 13, 1997, a number of datacollection methods were pursued throughoutthe Fall of 1997 and Winter of 1998. Theseactivities, designed to discover the mostcritical issues facing the State’s court system,included: conducting public hearings;surveying all judicial officers and courtpersonnel; polling petit jurors; surveying arandom sample of members of the State Bar;participating in a statewide telephone publicopinion poll; accepting written submissions viathe mail and e-mail; and convening a focusgroup meeting to prioritize issues.

PUBLIC FORUMS

In compliance with the Supreme Court’smandate that the Commission solicit andevaluate the views of those who use the courts

every day, nine public forums were conductedthroughout the State between November 1997and January 1998. Hearings were held inBeckley, Charleston, Elkins, Huntington,Logan, Martinsburg, Morgantown,Parkersburg and Wheeling. Commissionmembers served as moderators, and transcriptswere made of the proceedings. Over 400people attended the forums, and 85individuals, representing a diverse array oforganizations and interests, made oralpresentations to the Commission. Twelvepersons, who chose not to speak publicly,submitted their comments in writing at theforums. A brief summary of the speakers andissues discussed at each public hearing isincluded in Appendix C.

JUDICIAL OFFICER AND COURTPERSONNEL SURVEY

In order to benefit from the accumulatedexperience and expertise of the approximately950 individuals who work in the court system,the Commission distributed a questionnaire toall employees with their mid-February 1998paycheck. In addition, the questionnaire wassent to all circuit clerks with instructions todisseminate copies to all of their deputies. Thesurvey form is shown in Appendix C. Theopen-ended questionnaire, designed to elicitissues and concerns as well as possiblesolutions, was to be answered anonymously;the employee was asked only to list his or herjob title.

Of the thousand or so individuals surveyed,there were 90 respondents. They included onejustice, ten circuit court judges, four familylaw masters, 14 magistrates, two law clerks,nine judicial secretaries, 32 circuit clerks anddeputies, 11 magistrate clerks and deputies, 14

12

probation officers, two court reporters, andone Administrative Office employee. Threerespondents did not indicate their position.

Many diverse issues were raised, a number ofwhich concerned training needs, internaloperating procedures or personnel problems.Common systemic themes included: the needfor uniformity across counties/courts; biaseffecting accessibility; physical facilities andsecurity; domestic violence procedures;domestic relations case jurisdiction andprocedure; juror selection procedures; juveniledetention and treatment facilities; juvenile caseprocessing time; mental hygiene caseprocessing; accountability of probationofficers; the needs of pro se litigants and theirimpact on the system; the need for increaseduse of new technology; and the timeliness ofcase disposition.

JUROR EXIT QUESTIONNAIRES

The Commission requested that all circuitcourts distribute juror exit questionnaires topetit jurors in service between December 1,1997 and March 30, 1998. A copy of thequestionnaire, designed to providedemographic, utilization, and attitudinal dataon the jury pool, is shown in Appendix C.More than 1,400 petit jurors, representing 31of the 55 counties, completed and submittedquestionnaires. The sample reflects only thosejurors who were qualified and reported forservice; it is not reflective of the larger array ofjurors who were summoned but weredisqualified or excused from service nor thoseon the master list. A summary of the results ofthe juror exit polling is included in AppendixC.

STATE BAR SURVEY

To ensure that the large number of attorneyspracticing in the court system wereencouraged and had ample opportunity toexpress their concerns and suggestions, theCommission conducted a random samplesurvey of active members of the State Bar.The survey form, shown in Appendix C, wasdesigned, in part, to render a preliminarypriority list, from the Bar’s perspective, of theissues already identified via the public forumsand written submissions. Of the approximately3,800 active State Bar members, 1,346received questionnaires and 450 responded.

The top five issues that emerged from therequest to rank the most crucial issues from alist of seventeen statements were: the role andneed for an intermediate appellate court; meritselection of judges; uniform rules andprocedures; judicial elections; and,accountability of judicial officers. Completerankings are shown in Appendix C.

In addition to the ranking exercise, more thanhalf of the attorney respondents took theopportunity to answer the open-endedquestions, either to emphasize or elaborate ontheir rankings or to put forth new issues andsuggest reforms. Among the most frequentlycited matters were: the perception that biasand politics effect judicial decision making; theconcern that judges do not rule in a timelymanner; the lack of uniform statewide rules ofprocedure; the need for law clerks at thecircuit court level; the desirability of a unifiedfamily court system; the perceived problemswith judicial elections and campaigns; thedegree of assistance for pro se litigants; andthe lack of a requirement that magistrates belicensed attorneys.

13

WVU SOCIAL INDICATORS SURVEY

With the assistance of Dr. Ronald Althouseand the staff at the West Virginia UniversitySurvey Research Center, the Commissionconstructed a limited number of questions forinclusion on the Center’s annual SocialIndicators Survey. This statewide, randomsample, telephone survey gave theCommission the opportunity to measure thegeneral public’s perceptions of the judicialsystem. The results are an importantsupplement to the opinions and concernsgathered from those who work within thesystem or who have experienced the courtsystem as a party to a case. A series of“screen” questions allowed results to beanalyzed by whether respondents had hadcontact with the system. The substantivequestions were broad assessments of courtperformance:

[1] Do you consider West Virginia courts affordable for ordinary people?[2] How understandable are West

Virginia’s courts?[3] Do people get the justice they deserve?[4] Do West Virginia courts treat people

equally?[5] Do the courts have a positive

reputation in your area?[6] How much confidence do you have in

decisions of West Virginia’s courts?[7] Does the justice system work?

The responses of the 712 citizens whoparticipated in the survey are analyzed andpresented in Chapter 2.

WRITTEN SUBMISSIONS

The Commission encouraged writtensubmissions, via the mail and through theSupreme Court’s website, at each of the publichearings, through letters sent to numerouspublic organizations, in advertisements postedat every court location, and in The WestVirginia Lawyer. The Chair of theCommission, David Hardesty, also urged themembers to have their constituent groupssubmit written comments. Approximately 75people responded by mail. Some of theseletters were from court employees, barmembers, public officials or organizations;however, a majority of the letters were fromprivate citizens. Five other persons sent theircomments via the Internet.

By far the most common issues raised in thewritten submissions focused on domesticrelations law and the Family Law MasterSystem, including specific concerns about childsupport awards, custody determinations, andvisitation. Other frequently cited areas ofdiscussion included: the creation of anintermediate court of appeals; various aspectsof the domestic violence protective orderprocess; judicial accountability; judicialelections/merit selection of judges; magistratetraining; and the timeliness of entering orders.

I S S U E I D E N T I F I C A T I O N B YCOMMISSION MEMBERS

Although not part of the formal data collectionactivities of the Commission’s work plan, themembers of the Commission engaged in asmall group “brain storming” session at its firstmeeting on October 13, 1997 in response tothe question of “If there was one thing youwould change and immediately begin to workon in the court system, what would it be?” TheCommission’s list included:

14

[1] consolidation of domestic issues into afamily court, and modification of thefamily law master system;

[2] creation of new criminal and juveniledetention and treatment facilities;

[3] integration of alternate disputeresolution mechanisms in the courtprocess;

[4] implementation of advancedtechnologies in the courts;

[5] timeliness of court proceedings andcase processing;

[6] statewide procedural uniformity;[7] increased public education;[8] juries representative of the population

from which they are drawn;[9] enforcement of ethics rules;[10] appellate access;[11] increased security;[12] improved access;[13] review of magistrate system and

overlapping jurisdiction questions;[14] judicial selection; and[15] magistrates’ and family law masters’

physical facilities.

FOCUS GROUP MEETING

The Commission’s data collection activitieswere capped by a Focus Group meetingconvened in Morgantown on March 30, 1998.Participants were nominated by Commissionmembers. The purpose of the meeting was toanalyze and prioritize the issues mostcommonly heard throughout the datacollection process. Of the fifty-sevenparticipants, 23% were judicial officers andother court personnel, 32% were privateattorneys, 14% were public sector attorneys,and 23% were from various agencies andorganizations that interact with the courtsystem on a routine basis.

The Focus Group engaged in three separateexercises. First, the participants ranked the 27issues arrayed under the major headings of theCriteria for Excellence in JudicialAdministration in order of importance. Second, they rated the feasibility or “do-ability” of the same issues. Third, theyreviewed the ten issues which were determinedto be both most important and most feasibleand ranked them as to their urgency. TheFocus Group’s perception of the mostimportant, feasible and urgent issues was:

[1] Uniformity of court policies, rules ofprocedure and forms;

[2] Unification and coordination of courtservices in cases involving families;

[3] Timeliness of case processing andcourt procedures;

[4]tie Integration of alternative disputeresolution mechanisms in the courtprocess;

[4]tie Accountability of judicial officers andother court personnel;

[6]tie Accessibility and efficiency of theappellate process;

[6]tie Appropriateness of magistrate courtjurisdiction, especially in domesticviolence cases;

[8] Enforcement of the ethics code;[9] Sufficiency of training opportunities

for judicial officers and other courtpersonnel; and

[10] Representativeness and inclusivenessof jury panels and utilization andeducation of jurors.

15

CHAPTER 4

THEPLAN

You imagine what you desire;you will what you imagine;and at last you create whatyou will.

--GEORGE BERNARD SHAW

The Commission envisions a court system forthe citizens of West Virginia that is accessibleand responsive, timely in its decisions andprocesses, fair and just, and accountable for itsrulings, conduct, and use of resources. Asbefits its role, it is a wholly independent entity,but collaborates with other agencies andorganizations so that it may more effectivelyfulfill its mission. Every individual and matterthat comes before it is accorded respect anddignity. It is a system marked by integrity.

The bricks and mortar of this vision areconta ined in the Commiss ion’srecommendations, and the Commission isproud of the body of broad-based and far-reaching recommendations proposed.However, for the present, they are only wordson paper. Their importance, force and effectlie in their implementation. Making thathappen will take the leadership, active supportand persistence of those who demand a courtsystem that meets the standards which havebeen the focus of the Commission’s work.

Many of the Commission’s recommendationscan be accomplished by the Supreme Courtthrough its administrative authority, others will

require the Legislature to pass or amendlegislation or to propose constitutionalamendments. Full implementation will requireparticipation by the Governor, the State Barand local bar associations, the judiciary andother court personnel, county commissions,prosecutors, public defenders, sheriffs, andvarious committees and governmentalagencies.

The Commission has purposefully chosen notto create a list prioritizing implementation ofthe recommendations for several reasons.First, it was clear from the informationgathered during the data collection processand the commentary heard at both the March1998 Focus Group meeting of “stakeholders”and the April 1998 focus group meeting ofWest Virginia University College of Lawprofessors that each and every issue was“urgent” in the eyes of some stakeholder in thesystem. Second, the Commission believes thateach body with the power and authority toimplement the recommendations has theknowledge and the expertise necessary toappropriately prioritize implementation.Finally, some of the recommendations willinvolve substantial costs to implement, eventhough they may result in long term savings aswell. Available funding will necessarilydetermine in part the implementation scheduleof some recommendations.

While all the changes proposed will not beachieved at once or necessarily in the exactform advanced, it is possible to sketch thebroad outlines of the structure and agenda ofthe court system the Commission proposes.Such a snapshot may not do justice to thebreadth and depth of the specificrecommendations presented elsewhere in thisreport, but, it serves to emphasize the basicthemes on which members of the Commission

16

agree.

The structure of the West Virginia JudicialSystem will change:

C An intermediate appellate court willprovide greater access to litigants,more timely decisions, and theopportunity to develop a written bodyof administrative law.

CC A family court will treat the family unitholistically, with specially trainedjudges, supported by case managersand other appropriate personnel,hearing all family law cases includingpetitions for domestic violence finalprotective orders, child abuse andneglect and other juvenile matters.

CC Circuit and magistrate court clerkoffices will be merged and under thefull administrative and budgetarycontrol of the Supreme Court in orderto enhance communication betweenthe levels of court, maximize the use oftechnology, and consolidateadministrative support.

C The administrative and technicalsupport available to local courts will beenhanced by the addition to theAdministrative Office of Courts of fourregional trial court administrators andan oversight coordinator for childabuse and neglect cases.

C Court Appointed Special Advocateswill be available statewide to advocatefor the best interests of children inabuse and neglect proceedings, andthere will be more volunteer lawyers

and mediators to serve pro se and low-income litigants.

The court system will be assisted by otherentities that will conduct research,formulate pol icy , and managedevelopments in several broad areas:

C An Office of Alternative DisputeResolution will oversee and evaluatethe use and integration of alternativesto the traditional adversarial process inthe court system.

C A Commission on Sentencing Policy,composed of representatives of allbranches of government, will conductresearch on sentencing trends,establish sentencing goals andpriorities, and evaluate the impact ofsentencing practices on correctionalresources.

C A Committee on Technology in theCourts will encourage and coordinatethe use of technology in the courts forthe benefit of those who work withinthe system, litigants, and the public.

C A Court Facilities Commission willestablish minimum standards for courtfacilities and review compliance withthese standards statewide.

The establishment and application ofuniform policies, rules, procedures, andforms across courts will be a priority:

CC The Supreme Court will promulgaterules in a number of new areas,

17

including, procedural rules forjuvenile delinquency cases, trialcourt administrative rules,rules on alternative disputeresolution practice, and rulesto guide judicial officers andcourt personnel in theirinteractions with self-represented litigants.

C The Administrative Office will developand implement a number of standardforms and guides, many especiallydesigned to assist self-representedlitigants.

C Training and on-site technicalassistance will focus on enforcinguniformity of procedures and the useof standard forms.

Barriers to meaningful access to the legalsystem will be identified and removed:

C Self-represented litigants will beprovided with the information andservices necessary to enable them toeffectively access the courts.

C Current efforts to insure access to thecourts and court programs for thosewith physical and mental impairmentswill be accelerated.

C Specific measures will be enacted toinsure adequate legal representationfor low income litigants in civil cases.

C A multi-faceted approach will be takento address the cost effectiveness andefficiency of indigent defenserepresentation.

C Court access will be enhanced throughthe application of new technologies.

C Accurate and understandableinformation will be made available tolitigants, victims, and the generalpublic.

The use of technology to facilitate courtoperations, case management, and publicaccess will be encouraged and supported.

CC The 2001 Courtroom of the Futureproject will be expanded beyondcriminal arraignments to include,among other matters, domesticviolence hearings, testimony of childvictims/witnesses, and pro seassistance.

C Communication technologies,including fax and electronic filingsystems, will be available in allcourthouses and court offices.

C Computer systems will be integratedand networked across judicial officesand related agencies.

C Information systems will be enhanced,integrated, and allow for monitoringand evaluation of court systemoperations and projects.

Training and education of judicial officersand other court personnel will be bothmore expansive and more specialized.Jurors will also become better students oftheir cases.

Public education and community outreachwill be a core function of the court system.

18

The court system itself will be a “learninginstitution,” expanding its data collectionand research and evaluation responsibilitiesin order to better monitor system andprogram performance.

18

ACCESS TO JUSTICE

The phrase “Equal Justice For All” should not be an empty one. Our countryhas a government and a legal system grounded on the legal importance of everycitizen. Even schoolchildren can repeat our credo that no one is above the law,but we must also assure that no one is beneath the law.

--P. NATHAN BOWLES, PRESIDENT LEGAL AID SOCIETY OF CHARLESTON

ISSUE 1: ADEQUACY OF PROSE REPRESENTATION ANDSERVICES

West Virginia’s courts haveexperienced a significant increase in thenumber of litigants not represented by counselor “pro se” litigants. This increase has causeda strain in the court system because pro selitigants: generally take more of the court’stime than those represented by counsel; oftenseek legal advice from court clerks, judges andother court staff; and may be less preparedwhen presenting their cases.

Pro se litigants are most likely toappear in domestic relations cases. The Statehas an ever-increasing number of domesticcases, 45% of all civil filings and 34% of thetotal circuit court caseload statewide.Additionally, pro se litigants are the rule, notthe exception, among those seeking orresponding to a petition for a domesticviolence protective order; the number ofpetitions for such orders increased 200%between 1990 and 1997. This trend towardincreased pro se litigation is expected tocontinue.

The State’s courts, under theadministrative leadership of the SupremeCourt of Appeals, should provide informationand services to pro se litigants that will enablethem to better use the judicial system.Strengths already exist within the court systemupon which to build pro se services. Forexample, the Supreme Court requires circuitclerks to provide pro se litigants with formsapproved by the Court for use in domesticrelations cases. Other forms, not approved bythe Court, are available on an ad hoc basisfrom judicial officers, court clerks, the Stateand local bar associations, programs sponsoredby the West Virginia University College ofLaw and by various social service offices. TheCourt also uses technology to provide helpfulinformation through its Internet home page(http://www.state.wv.us/wvsca/). Finally, theCourt participates in the Courtroom of theFuture project, one element of West Virginia2001, a joint initiative between the State andBell Atlantic-WV. The project involves use of“ATM” technology which allows for state- of-the-art video-conferencing between a judicialoffice and second facility such as a jail, prisonor educational institution.

In addition to those actions taken by

19

the Supreme Court, many differentorganizations located around the State providepro bono or reduced-cost legal services.Some of these service providers have creatededucational clinics for pro se litigants.

While each of these sources provideimportant information, there has been little, ifany, coordination between the various pro seassistance providers. A multi-disciplinary,multi-organizational approach toward thedelivery of information and other services topro se litigants should continue but must becoordinated under the leadership of theSupreme Court to create consistent courtrules of procedure and policy, helpful fill-in-the blank forms, and informational brochuresto ensure the adequacy of pro serepresentation and services.

To ensure access to justice by pro selitigants, the Commission makes the followingrecommendations:

1.1 The Supreme Court should amend allrelevant rules to provide more explicitguidance to court personnel, attorneysand the public as to the duties andlimitations placed on each in casesinvolving pro se litigants and shouldprovide training for court personnel onhow to assist pro se litigants.

1.2 The Supreme Court should provideself-represented litigants withinformation and services to enablethem to better use the courts. TheCourt should work with the Bar, legalservice providers and others to createa centralized system for developingand distributing uniform pleadings,motions, and other forms, andinformational brochures describing

court structure and procedure. TheCourt should further require theAdministrative Office to develop apilot project to distribute forms andbrochures via computer and othermultimedia technology. These formsshould be formally adopted byadministrative order.

1.3 The Supreme Court shouldaggressively use state-of-the-arttechnology throughout the courtsystem to better serve the public by:seeking the assistance of the NationalCenter for State Courts through its"Public Access to the Courts TechnicalAssistance Program;" identifyingpotential sources of grant funding;consulting with other states that haveused grant moneys to assist in thedevelopment of technology programsused to enhance the delivery ofinformation to pro se litigants;requiring the Administrative Office ofCourts to focus on the selection andimplementation of new technology andthe maintenance of an informationdatabase; and by continuing itsinvolvement in the West Virginia 2001Courtroom of the Future project.

1.4 The Supreme Court should requirelocal court clerks to designate one ormore persons to serve as pro sefacilitators who would provideindividual assistance to pro se litigants,attend mediation training, and identifycases involving pro se litigants suitablefor mediation.

ISSUE 2: U N I F O R M I T Y O FCOURT POLICIES, RULES OFPROCEDURE, AND FORMS

20

The Commission’s March 1998 FocusGroup identified the need for “uniformity ofcourt policies, rules of procedure and forms”as the most important, fixable and urgent issueconfronting the judicial system. Under itsConstitutional administrative authority, theSupreme Court is responsible for promulgatingrules of practice and procedure for the State’scourts including the RULES OF CIVIL

PROCEDURE FOR TRIAL COURTS OF RECORD

and 25 other sets of rules governing almostevery area of court-related activity.

When surveyed, members of the WestVirginia State Bar cited variations in writtenand unwritten local court rules, policies andprocedures as the most problematic“uniformity” issue. The Supreme Court hasresponded to this critical problem byappointing a Judges’ Rules Committee, madeup of circuit court judges from around theState, charged with drafting uniform rules.These rules will be presented to the Courtalong with the updated and reorganized TRIAL

COURT RULES.

A second critical uniformity issueregards the circuit court and magistrate courtclerks’ offices. In each of the State’s 55counties, the circuit courts are served by anoffice of the circuit clerk, where pleadings andother papers of record are filed. The positionof circuit clerk is an elected positionestablished by the Constitution, and eachcircuit clerk’s office is under the budgetarycontrol of its county commission. While thecircuit clerk is subject to the supervisorycontrol of the chief judge of the circuit court,the circuit clerk’s staff is composed of countyemployees. Conversely, magistrate clerkoffices are entirely under the budgetary andadministrative control of the Supreme Court.Magistrate clerks maintain magistrate court

files and computer records separate from thoseof the circuit clerk. The Supreme Court’s lackof budgetary control over the circuit clerks’offices poses obstacles to the Court’s effortsto promote uniformity in the judicial system.

To ensure efficient use and applicationof uniform rules, policy and procedure, theCommission makes the followingrecommendations:

2.1 The Supreme Court should makeevery effort to adopt rules that willensure the uniformity of court policies,rules of procedure, and forms in allstate courts.

2.2 The Legislature should transfer fulladministrative and budgetary controlof circuit clerk offices to the SupremeCourt of Appeals, and merge theoffices of the circuit court clerk andmagistrate court clerk into a single,unified “Clerk of Courts” office in eachcounty. The Supreme Court shouldrequire the Administrative Office ofthe Courts to make a plan to facilitatethe transfer of control of circuit clerkoffices and the merger of the circuitand magistrate clerk offices, takinginto consideration facilities,technology, grand parentingtechnology, protection of currentemployers, and other matters.

Commentary: Supreme Court administrativeand budgetary control would allow for greateruniformity in: personnel matters; procedural,policy and form matters; the creation of courtsecurity plans and Americans withDisabilities Act (ADA) compliance plans;and in the cost-effective purchase,distribution and maintenance of moderninformation and computer technology. Lackof full control has resulted in substantialvariations in procedure, technology, and

21

employee compensation within andbetween counties. For example,many of the administrative andrecord-keeping functions of thecircuit clerk are duplicated in themagistrate court clerk’s office ineach county; most notably, eachoffice has its own computer system,they are not linked, and there is nosharing of information orcommunication capabilities. Mergerwould not require a Constitutionalamendment as certain constitutional,statutory and rule provisions alreadyexist which vest substantialadministrative control of circuitcourt offices under the direction ofthe Court (see W. VA. CODE §51-1-17).

2.3 The Legislature should transfer thecircuit clerks’ election-related duties toan appropriate agency. However, tomaintain the current system of checksand balances and to assure the integrityof the electoral process, official ballotsshould be delivered to, and held by, thecircuit clerk or the new Clerk of theCourt until needed for votingpurposes.

Commentary: The election duties of thecircuit clerk’s office (i.e., preparation of theballot, candidate filing, and conductingabsentee voting) place an undue burden onthe circuit clerk and are inconsistent with theclerk’s record-keeping and court fee-collection functions.

2.4 As the transfer of the circuit clerks’offices to the budgetary control of theSupreme Court would result insignificant savings to countycommissions, the Legislature shouldstatutorily mandate that savingsrealized by a county commission bedeposited into a fund for the purpose

of making improvements to thecounty’s court facilities. Priorityshould be given to improvementsnecessary for increased security andADA compliance. Counties withadequate facilities should be permittedalternative uses of the funds.

2.5 The Legislature should require thatclerk fees currently being depositedinto the general county fund under theprovisions of W. VA. CODE § 59-1-31should be deposited into a specialcounty fund, analogous to themagistrate court fund (see W. VA.CODE § 50-3-4). These fees shouldbe used to defray the expenses ofproviding services to circuit courts.All expenditures from such fund wouldbe governed by Supreme Courtsupervisory rules.

ISSUE 3: COMPLIANCE WITHPHYSICAL ACCESSIBILITYSTANDARDS

The landmark Americans withDisabilities Act (“ADA”), enacted July 28,1990, provides individuals with disabilitiescomprehensive civil rights protection in theareas of employment, public accommodations,state and local government services andtelecommunications. Title II of the ADArequires all state and local government entities,including courts, to make their services,programs and activities accessible toindividuals with disabilities. Courts may alsobe impacted by the Rehabilitation Act of 1973,which prohibits discrimination by any state orlocal government on the basis of handicap infederally-assisted programs and activities.

In response to the passage of the ADA,

22

the Supreme Court created the “ADA and theCourts Committee” to: assess court facilitycompliance with ADA standards; providetechnical assistance and corrective suggestionsto ADA coordinators and court personnel; andto hold annual training conferences for countyADA coordinators and county commissions.

As part of the plan to assess facilitycompliance, the ADA and the CourtsCommittee asked each county to submit acompliance evaluation and transition plan.Only 29 of the State’s 55 counties respondedto the request. Some of the State’s mostpopulous counties were among the 26 that didnot respond. Of those counties that didrespond, some provided a comprehensiveADA plan, others provided a plan thataddressed some but not all ADA issues, andseveral sent only an informal letter response.

The responses clearly show that manyof West Virginia’s court facilities have majorADA compliance deficiencies. Very few of thecompliance plans described any alternatives forprogram accessibility, even where clearbarriers were identified. No county laid outthe procedure by which a person with adisability could obtain accommodation oraccess. Most plans focused on mobilitybarriers and failed to address communicationbarriers such as hearing and sight barriers.Eleven of the 29 responding counties failed toaddress courtroom conditions, twelve did notidentify an ADA coordinator, and thirteenrespondents did not provide a timetable forimplementing corrections.

In addition to the creation of the ADAand Courts Committee, the Supreme Court hasestablished a procedure by which a personwith a disability may file a grievance with theCourt’s ADA Coordinator in the event ofdisability-related discrimination in employment

practices and policies or in the provisions ofservices, activities, programs or benefits in thejudicial system. The Court has requested thata “Notice of Compliance with Title II of theAmericans With Disabilities Act of 1990(ADA)” be posted in each county’s courtfacilities. That notice provides contactinformation for the Court’s ADA Coordinator.

To ensure compliance with physicalaccessibility standards, the Commission makesthe following recommendations:

3.1 The Supreme Court should create astandardized court-facility ADAassessment form, provide qualified,trained persons to conduct assessmentsin every county, and set a timetable forcompletion of assessments. Personsconducting the assessments shouldmake recommendations and assist increating transitions plans using astandardized format created by theSupreme Court. Assessment andtransition plans should focus on ALLaspects of ADA compliance, includingaccommodations for the blind, deaf,hard-of-hearing, physically disabledand others with unique accessproblems.

3.2 The Supreme Court through theADA and Courts Committee mustfollow-up on each county’scompliance and/or progress with itstransition plan through the use ofadditional assessments and continuedassistance.

3.3 The Supreme Court should maintainthe ADA and Courts Committee’sannual training and monitoringprograms for ADA coordinators and

23

court personnel. TheCommittee should continue todevelop continuing educationplans.

3.4 The Supreme Court should develop adatabase of information toaccommodate the needs of personswith disabilities, such as creating a listof interpreters for deaf or hearingimpaired persons.

ISSUE 4: ACCESS FOR THE POORAND THOSE WITH LIMITEDINCOMES

In our system of technical and complexlaws, representation by an attorney is anessential element of justice. Both the UnitedStates Constitution and the West VirginiaConstitution guarantee that indigent criminaldefendants are provided with attorneyrepresentation. However, there is no similarright to legal representation for low incomecitizens involved in civil disputes. Those whocannot afford to hire an attorney have onlytwo choices: (1) hope that they can beassisted by the limited network ofinadequately-funded civil legal assistanceprograms, or (2) do it themselves without anytrained legal assistance. In some counties inWest Virginia, it is estimated that more thanhalf of the litigants appearing in family lawcases are not represented by a lawyer.

There is an enormous need for civillegal representation for West Virginians withlimited incomes. The State Bar’s 1990 LegalNeeds Survey found that during the precedingyear: 69% of the low-income persons whoresponded had experienced a legal problem;

low-income households with children wereespecially vulnerable, 91% faced some legalproblem; and nearly 50% of low incomehouseholds with senior citizens hadencountered legal problems.

Over the past twenty years, theprovision of civil legal assistance to poorpeople in West Virginia has steadily erodeddue to drastic cuts in federal funding. Largeswaths of West Virginia that once had locallegal aid offices now are one or two hoursdriving time (if you have a reliable car) fromthe nearest legal services program. Shrinkingfederal funds have been supplemented, but notreplaced, by the "Interest on Lawyer TrustAccounts" (IOLTA). Implemented by theWest Virginia Supreme Court of Appeals in1991, the IOLTA Program generatedapproximately $800,000 for civil legalassistance in 1997. No direct state fundingsupports the provision of legal assistance topoor people.

Other states utilize a variety of state-based funding sources for provision of legalassistance to low-income people, none ofwhich are currently in use in West Virginia.The most widespread of these include: a civilfiling fee add-on, devoted to legal services,used in 19 states; direct state appropriation forlegal services to the poor, approved in 19states; state allocation of other public andgrant funds, found in 41 other states; statewideannual lawyer fund drives, used in 27 states;voluntary bar dues check-off or add-on,implemented in 24 states; and class actionresiduals, directing undistributed funds fromclass action lawsuits to civil legal serviceprograms, implemented in 12 states.

In addition to providing freerepresentation, legal assistance programs

24

provide other services for low income litigantssuch as pro se clinics that teach participantshow to handle their own simple family lawcases and simple bankruptcies.

The court system also provides somevery limited assistance to low-income litigants.Most circuit clerk and family law masteroffices maintain a stock of family law formsand provide them to members of the public.Moreover, the Supreme Court has recentlyagreed to provide partial funding for a videopresentation of the substantive informationportion of a pro se divorce clinic. This videoshould enable other legal services programsand pro bono volunteer lawyers to presentmore clinics with less preparation time.

Many have suggested that privateattorneys should fill the gap by donating theirservices to handle cases withoutcompensation. In fact, the West Virginia StateBar and the state's civil legal aid programssince 1990 have operated one of the mosteffective statewide coordinated Pro BonoReferral Programs in the country. Still, thesepro bono cases amount to less than a fifth ofthe number of cases handled by the legal aidprograms.

To ensure access to justice by the poorand those with limited incomes, theCommission makes the followingrecommendations:

4.1 The Legislature should increasemonetary resources available tosupport the provision of civil legalassistance to low-income peoplethrough the existing network of civillegal assistance providers by:dedicating revenue from a legislatedincrease in civil filing fees; creating a

direct State fiscal appropriation; andby dedicating specific abandonedassets from lawyer trust accounts andunclaimed court bonds to the supportof civil legal assistance programs.

Commentary: Nineteen other states haveappropriated funds for civil legal assistance,including neighbors Virginia, Maryland andPennsylvania. Presently abandoned assetsescheat to the state along with all other formsof abandoned property.

4.2 The State Bar should expand the useof volunteer lawyers to serve pro seand low-income litigants, andimplement nominal fee arrangementsto provide supplementary funding forthe civil legal assistance programs.

Commentary: Many private attorneys arereluctant to volunteer because they believethat low-income clients would makeunreasonable demands upon their time absenta "fee restraint." To address this problem,some low-income clients could be charged anominal fee in pro bono referral cases. Thisfee would then be donated by the volunteerattorney to the referring civil legal assistanceorganization. Because the legal aid systemcannot charge for its services, a separateentity, such as the State Bar, would berequired to administer the program.

4.3. The State Bar should implement aprogram of volunteer pro bonomediators, specially targeted topromote resolution of pro se cases,who would donate their standard andnominal fees for the support of civillegal aid programs.

Commentary: Fees for mediators pose asignificant barrier to mediation of pro sedisputes, but mediation could be highlysuccessful in many pro se court cases.Mediation in such cases would reduce the

25

The Supreme Court’s 1997 Statistical Reportreveals that West Virginia’s appellate filingscontinued at a near record pace in 1997. Under the section entitled “New PetitionsFiled,” the report states that:

In calendar year 1997, 3,114 petitions werefiled with the Supreme Court of Appeals. Thisis the second highest number of filings in theCourt's history: up 12 from the 1996 figure of3,102 (now the third highest number of filings)and only 66 below the 1991 record of 3,180. Ascompared to 1996, the number of petitions filedin 1997 fell slightly across most categories;however, the number of workers' compensationfilings rose significantly-- from 1,534 to 1,708,an increase of more than 11%. While thenumber of appeals in most categories appears tohave leveled off, the number of workers'compensation appeals continues to grow.

load on the court system and provideincreased satisfaction to litigants.Because the legal aid system cannotcharge for its services, a separateentity, such as the State Bar, wouldbe required to administer theprogram.

Comments on the Commiss ion’sDeliberations: The subcommittee thataddressed this issue proposed that theCommission recommend the imposition of acivil response fee, payable by defendants, toraise funds to pay for civil legal assistance tolow income people and to help alleviate thefinancial burden clerks’ offices face when acase is filed with large numbers of defendants.In response, several commissioners opposedthe recommendation on the ground that it wasunfair to require a defendant to pay a fee todefend against a suit that the defendant had nochoice in bringing. After thorough debate, thefull Commission defeated the proposal.

ISSUE 5: ACCESSIBILITY ANDEFFICIENCY OF THEAPPELLATE PROCESS

The Supreme Court has taken actionon multiple fronts to make the appellateprocess accessible and efficient.Notwithstanding these ongoing efforts, theappellate process is now threatened by acontinuously increasing caseload thatundermines the ability of the Court to spendadequate time considering, deciding andwriting its opinions.

Comparing case load data from otherstates with only one appellate court confirmsthat the Supreme Court of Appeals of WestVirginia is the busiest appellate court of itstype in the nation. In 1996, data from theNational Center for State Courts revealed that

West Virginia’s appellate caseload was morethan 1.5 times that of Nevada, the next busieststate with only one appellate court. In fact,the number of filings at the Supreme Court ofAppeals was greater than the number ofappellate filings in the states of Delaware,Rhode Island, South Dakota, Vermont andWyoming combined, each of which has onlyone appellate court. Amazingly, in 1996 thenumber of filings at the Court exceeded thetotal number of appellate filings in twelve ofthe thirty-nine states that have an intermediateappellate court.

As the Court enters the newmillennium, the Office of the Clerk projectsthat the caseload will continue to grow,particularly in the areas of civil and workers'compensation appeals. In fact, it is anticipatedthat workers' compensation appeals willcontinue to represent more than 50% of theCourt's docket. At the end of 1997, althoughthe Court was able to clear 99.07% of allpetitions filed (including 94.38% of theworkers' compensation cases), the Court stillhad 512 cases pending (361 of which were

26

workers' compensation appeals and 90 ofwhich were civil appeals).

To ensure the accessibility andefficiency of the appellate process, theCommission makes the followingrecommendations:

5.1 The Legislature should create anIntermediate Court of Appeals as soonas possible with the followingparameters:

Commentary: Only 10 other states in theUnited States have not established anintermediate appellate court. None of thosestates have a caseload comparable in numberor character to the cases now handled by theWest Virginia Supreme Court of Appeals.No other state has a workers’ compensationappeals docket of the same magnitude asWest Virginia. Even if the workers’compensation docket was removed, the Courtwould still have a caseload greater than mostof the other appellate courts that operatewithout an intermediate appellate court. Afull time intermediate appellate court wouldallow the justices of the Supreme Courtadequate time to consider and write opinionsthat have a defining impact on matters of lawand public policy. Moreover, the creation ofan intermediate appellate court would relievethe Supreme Court from hearing anddeciding routine cases that do not involveunresolved issues of law, constitutionalchallenges or public policy.

a. The Intermediate Court of Appealsshould be a single, statewide court,housed in close proximity to the WestVirginia Supreme Court of Appeals sothat it can share the Supreme Court’sOffice of the Clerk, law library, andlegal staff and thereby decreaseadministrative costs and promoteefficiency.

b. To dispose of a greater number ofcases, the intermediate appellate courtshould be comprised of a sufficientnumber of justices to enable it todivide into no less than two panels.For example, a six-memberintermediate appellate court dividedinto two, three-judge panels wouldhear twice the case load as the same

27

court sitting en banc.

c. Intermediate appellate court justicesshould be selected by the same methodutilized to select Supreme Courtjustices and trial judges.

d. Intermediate appellate court justicesshould serve eight-year staggeredterms.

e. The Intermediate Court of Appealsshould have jurisdiction over appealsfrom all administrative agencies,including workers' compensationappeals. Administrative appeals wouldcome from the highest administrativeappeal level created by individualgovernmental agencies or from boardsof appeal created by the Legislature.

f. Criminal and civil appeals and originaljurisdiction writs would continue to befiled with the Clerk of the SupremeCourt. The Supreme Court wouldcontinue to hear original jurisdictioncases and determine which civil andcriminal appeals it would keep andwhich would be sent to theIntermediate Appellate Courts.

Commentary: Cases involving a review oftrial court decision-making or well-established points of law would mostappropriately be heard by the IntermediateCourt of Appeals. Assignment methodsshould be flexible to account for the type andcomplexity of the case involved.

g. The Supreme Court and theIntermediate Court of Appeals shouldissue a written opinion for each casethat it hears.

h. Each litigant should be guaranteed oneappeal-of-right either at theIntermediate Court of Appeals or atthe Supreme Court.

i. Appeals from the Intermediate Courtof Appeals to the Supreme Courtwould be at the Supreme Court’sdiscretion. The Intermediate Court ofAppeals could certify questions to theSupreme Court on unresolved issuesof law. The Supreme Court wouldhave discretion as to whether it wouldaccept the certification.

5.2 The Legislature should allow theState a limited right to appeal pre-trialrulings in criminal cases where thejudge’s ruling precludes the State fromproceeding with the case.

Comments on the Commiss ion’sDeliberations: After a comprehensive andlengthy discussion, the Commission voted toapprove the recommendations listed abovewith one addition. A majority of theCommission voted to add recommendation5.2, regarding the State’s limited right toappeal pre-trial rulings in criminal cases.Proposed amendments, defeated by majorityvote of the Commission, included: deleting theprovision requiring that all criminal and civilappeals be mandatory or appeals-of- right;adding a recommendation that the Courtwould not be required to write an opinionregarding a case it refused to hear; andremoving the recommendation that the Courtcould reassign criminal and civil appeals to theIntermediate Court of Appeals.

ISSUE 6: RECOGNITION OF THERIGHTS OF VICTIMS IN CRIMINALAND JUVENILE PROCEEDINGS

28

In 1981, the West Virginia Legislatureenacted the “Crime Victims CompensationAct.” Under the Act a fund was established topay compensation and medical benefits toinnocent crime victims. The system is fundedthrough assessments against persons convictedof misdemeanor offenses, other than non-moving traffic offenses. Claims against thefund are commenced by filing an applicationwith the Clerk of the Court of Claims.

Three years after it passed the CrimeVictims Compensation Act, the Legislatureenacted the “Victim Protection Act of 1984.”Under the Act, victims of a felony or theirfamilies are granted certain “rights” under thelaw, such as the right to: notice of courtproceedings; attend public proceedings; makea statement to the court about bail, sentencing,or a plea agreement; notice of parole hearings;attend a parole hearing and to address theparole board; notice of a defendant’s orconvict’s escape or release; an order ofrestitution from the convicted offender; a finaldisposition of the proceedings relating to thecrime, free from unreasonable delay;consideration of the safety of the victim indetermining the defendant’s release fromcustody; and notice of these rights and theright to enforce them. The Act also sets forthspecific guidelines for the fair treatment ofcrime victims and witnesses.

Other West Virginia statutes thatbenefit victims of crime include: W. VA. CODE

§ 48-2A-9 regarding law-enforcementresponse to family violence; W. VA. CODE §18B-4-5a regarding crimes committed oncampus of institutions of higher education; W.VA. CODE § 14-2B-2 regarding thedistribution of crime profits to crime victims;W. VA. CODE § 49-5-13b regarding the

court’s authority in a juvenile proceeding torequire the child or his parents to makerestitution or reparation to an aggrieved partyfor actual damages or loss caused by theoffense; W. VA. CODE § 7-4-4 regarding thecreation of the Prosecutor's Advisory Counciland the authority of the Council to seek fundsfor victim advocates; W. VA. CODE § 48-2A-1 et seq. regarding the prevention of domesticviolence and protective orders; and W. VA.CODE § 61-2-9a regarding the crime ofstalking.

A federal statute of significance tocrime victims in West Virginia is the Victimsof Crime Act (VOCA) under which grants areawarded and administered by the WestVirginia Division of Criminal Justice Services.VOCA grants are used to provide directservices to victims of crime with priority givento eligible programs providing direct servicesto victims of rape/sexual assault, spousalabuse, child abuse and previously under-servedvictims of violent crime. VOCA grants haveenabled the development of a number of victimassistance and advocacy projects in WestVirginia including: the Victim AssistanceProgram Inc., serving Hancock, Brooke andOhio Counties and Victim/Witness Assistanceprograms in both Cabell and Putnam Counties.

The Division of Criminal JusticeServices also administers the STOP ViolenceAgainst Women Program, mandated under thefederal Violence Against Women Act of 1994.The West Virginians Against ViolenceCommittee serves as the advisory board toWest Virginia’s STOP Program. In 1997, theprogram funded 23 projects in West Virginiain excess of $1.1 million dollars. For example,STOP grants help fund the Coalition AgainstDomestic Violence which sponsors thirteen

29

shelters for victims of domestic violencelocated throughout the State. Each shelteralso provides outreach programs for victims ofdomestic violence. STOP grants also fund theWest Virginia Foundation of Rape InformationServices which assists victims of sexual assaultstatewide. Other recently implemented STOPgrant programs include the Forensic MedicalExamination Fund and the West VirginiaDomestic Violence Protection Order Registry.

The Supreme Court of Appeals alsoacts to indirectly assist victims of crime bytraining magistrates, probation officers, familylaw masters, and circuit judges about domesticviolence issues.

To ensure the recognition of the rightsof victims in criminal and juvenile proceedings,the Commission makes the followingrecommendations:

6.1 The Legislature should considerproviding more protection to victimsof crimes committed by juveniles.

Commentary: West Virginia law providesmany rights to victims of crimes committedby adults, however, the statutes concerningcrimes committed by juveniles recognize onlyone remedy: the right to restitution.

6.2 The Supreme Court should developstandard victim notification and otherforms.

6.3 The Supreme Court should considerthe needs of crime victims whenimplementing new technology so thatit enables victims of domestic violenceor child victims/child witnesses totestify via video-conference.

6.4 The Supreme Court should add

victims’ rights information to its webpage, and include links to otherresources for victims of crime.

6.5 The Supreme Court should ensurethat court clerks in each county haveon-line access to informationalbrochures for victims of crime andstandardized forms for use in assistingvictims of crime, and are networkedinto the databases collecting crime andperpetrator statistics.

6.6 The West Virginia Supreme Courtof Appeals, the West VirginiansAgainst Violence Committee, and theDivision of Criminal JusticeServices should continue theeducational functions they havealready undertaken on an annual basis.

6.7 The State’s prosecutors should assistin expanding Victim AssistancePrograms, now located in about tencounties, to those remaining countiesthat do not have them

6.8 It is vitally important that theSupreme Court take a leadership rolein victims’ rights by continuing tosponsor training of court personnelabout victims’ rights and byauthorizing the use of technology tobenefit victims of crime.

ISSUE 7: ADEQUACY OFSECURITY FOR THE PUBLIC ANDCOURT PERSONNEL AT ALLLOCATIONS

Citizens who use the courts expectcourt facilities to be safe. However, many ofthe State’s judicial officers have stated that

30

court security is one of the most seriousconcerns facing the judicial system. TheLegislature and the Supreme Court of Appealshave recognized this concern and taken stepsto improve security both at the appellate andtrial court levels.

In 1996, the Legislature created theWest Virginia Court Security Fund (the“Fund”) under the Department of MilitaryAffairs. All moneys credited to the Fund mustbe used to improve court security. The Fundis administered by the Court Security Board(the “Board”) whose members determinewhich counties will receive grants under thefund. To date, thirty-two counties havereceived grants. A county seeking assistancefrom the Fund must prepare a comprehensivesecurity plan. The Legislature has detailedwhat each court security plan shall include.Outside the requirement to create a securityplan to receive Fund moneys, no county isrequired to develop a security plan.

The Supreme Court of Appeals hasacted on multiple fronts to improve courtsecurity. To improve its own security theCourt hired a Court Marshal. Additionally, thecourt continues to take an active role inpromoting education and training forcourtroom bailiffs, and has participated withthe Circuit Courts of Kanawha and CabellCounties in the West Virginia 2001 CriminalJustice Application Project. The goal of thisjoint project is to use “ATM” technology todevelop the “Courtroom of the Future”through the use of state-of-the-art video-conferencing. Kanawha and Cabell Countiesare using ATM technology to conduct criminaldefendants’ “initial appearance” hearings viavideo conference, where defendants remain atthe local or regional jail and the magistratesremain in the courthouse. This system not

only saves money due to decreasedtransportation costs and officer hours, but italso increases security by keeping inmates injail.

Despite these efforts, security variesgreatly from court to court and from county tocounty. Some counties have undertakensubstantial expense to improve courthousesecurity by remodeling or constructing newfacilities, through the expanded use oftechnology, and by employing specially-trainedpersonnel. Other counties, particularly thosein more rural areas, lack the capital and/ordirection to make needed improvements infacilities, technology or personnel. Anadditional stumbling block exists in countieswhere court offices are located in more thanone building. Multiple facilities are difficult tosecure and increase the cost of employingadvanced technology that heightens security.

The lack of uniform court security iscounterproductive to the goal of providingsafe facilities for the public and courtpersonnel. Additional funding is needed toprovide for more court security personnel.Moreover, the ways in which securitypersonnel are deployed should be reevaluated.Requiring a bailiff to sit in a courtroomthrough a proceeding that represents no threatto security is an inefficient use of a bailiff’stime. Court security is better served if bailiffsare deployed where they are most needed.The use of video monitors in courtroomswould allow bailiffs to provide surveillance inmore than one courtroom at a time.

To ensure adequate security for thepublic and court personnel, the Commissionmakes the following recommendations:

7.1 The Legislature should amend W. VA.

31

CODE § 51, Article 3, torequire each county to preparea court security plan under thes u p e r v i s i o n o f t h eAdministrative Office ofCourts whether or not thecounty is applying for a CourtSecurity Fund grant.

7.2 The Supreme Court and/or theLegislature should formulateadditional applications of the ATMtechnology currently being used in theCourtroom of the Future project.Once these applications aredetermined, the Courtroom of theFuture pilot project should beexpanded to include those applicationsand additional counties.

7.3 The Court in conjunction with localsheriffs should develop a policy whichprioritizes deployment of bailiffs withina court facility. Consideration shouldbe given to: the type of procedurebeing held in a courtroom; the risk ofviolence during that proceeding; thenumber of bailiffs available; and theneed for security in hallways or otherareas. The need for court security isespecially acute in those courts thathear family law and domestic violencecases.

7.4 The Supreme Court should exploreways to use technology in the courts toimprove the efficiency andeffectiveness of bailiffs.

7.5 Where court facilities are housed inmul t ip le bui ld ings , countycommissions should include plans forconsolidation of those facilities into

one courthouse or, alternatively, intoone courthouse annex. This concern iscritical to increase accessibility by thepublic to court services and to allowthe courts to cost-effectively andefficiently use technology to enhancesecurity.

7.6 The Court should continue its trainingof court bailiffs as well as other courtpersonnel in the area of court security.

7.7 The Court Security Board shouldmake efforts to identify sources ofavailable grants or donations from theState and Federal Governments, aswell as from the private sector, for usein this and other matters important tothe court system.

7.8 The Legislature should work withcounty governments to identify othersources of additional funding forsecurity personnel.

Comments on the Commission’sDeliberations: Upon plenary review of theAccess to Just ice subcommit teerecommendations, the full Commission addedthe last sentence to recommendation 7.3, toemphasize the need for enhanced security infamily law and domestic violence cases.

32

EXPEDITION AND TIMELINESS

Our Law says well, ‘To delay justice, is injustice.’

--WILLIAM PENN

ISSUE 8: TIMELINESS OF CASEPROCESSING AND COURTPROCEDURES

The West Virginia Constitutionprovides that “justice shall be administeredwithout sale, denial or delay.” Similaradmonitions are included in the RULES OF

CIVIL PROCEDURE, the RULES OF CRIMINAL

PROCEDURE, and even the CODE OF JUDICIAL

CONDUCT which states: “A judge shall disposeof all judicial matters promptly, efficiently, andfairly.” The Supreme Court embraced theseprinciples when it adopted the RULES ON TIME

STANDARDS FOR CIRCUIT COURTS in 1992.Compliance with time standards is monitoredthrough a statistical reporting system thatshows the age of the pending and disposedcases in a court. Judges receive individualreports detailing compliance rates on each typeof case, as well as rankings that compareperformance across judges and circuits.

At the time of the implementation ofthe TIME STANDARDS, procedural rules inmany areas of the law were reviewed andamended to streamline and standardize caseprocessing. For example, the RULES OF CIVIL

PROCEDURE were amended to require judgesto hold case scheduling conferences and toissue time frame orders. Still, delay is one of

the most common complaints about the courtsby litigants, attorneys, and the general public.The concern is not simply the time it takesfrom filing to final disposition in a case, butalso the delay in obtaining rulings on motions,the promptness with which hearings and jurytrials are conducted, and the delay inherent incertain scheduling practices.

When the American Bar Associationadopted model time standards for caseprocessing in 1984 it recognized that delaydevalues judgments, creates anxiety in thelitigants, and results in the loss or deteriorationof the evidence upon which rights aredetermined. Accumulated delay producesbacklogs that waste court resources,needlessly increase lawyer fees, and createconfusion and conflict in allocating judicialtime. For example, at the time of the filing ofa personal injury case, the litigant may havealready been in negotiation with the defendantor the insurer for almost two years. The factthat the court system may only delay theresolution of the matter further subjects thesystem to public criticism and the loss of theconfidence.

In some types of cases, delay may belife-threatening such as child abuse or neglect,juvenile delinquency, family violenceproceedings, elder abuse, and often-volatile

33

divorce proceedings. Delay cannot be toleratedin these cases because it may lead to continuedviolence, abuse, injury and death. Even in theabsence of the threat of physical or emotionalharm, family law related matters are in crucialneed of a timely resolution so that the familycan be reorganized and stability restored.

The timeliness of case processing andcourt procedures was a frequent concern ofthose testifying at the Commission’s publichearings or submitting written materials.While delay was not always the main focus, itoften appeared to be an aggravating orcontributing factor to general dissatisfactionwith the system or the outcome of a particularcase. Similarly, almost a quarter of theattorneys who responded to the Commission’sBar Survey ranked timeliness as one of the fivemost significant issues the Commission shouldaddress. Additionally, the Commission’s FocusGroup ranked timeliness as the third mosturgent of the ten most important and fixableissues facing the court system.

At the end of calendar year 1997, thetime standard compliance rate for general civilcases in West Virginia was just short of thegoal of 75%. At 72%, the compliance rate forfelony cases was also short of the goal of 80%compliance in criminal cases. In addition,statewide data often masks considerablevariation in the performance of individualcourts. For example, while statewidecompliance in general civil jury cases was 74%as of December 31, 1997, more than half ofthe circuit courts were not in compliance, anda quarter of the circuit courts were below50%. Compliance with time standards indivorce and other family law cases, whichconstitute almost 30% of the total pendingcivil caseload, has made only modestimprovement over time. At 57% compliance

for divorces and 64% compliance for otherdomestic cases, this area of the law continuesto average well below the goal of 75%compliance.

To ensure the timeliness of caseprocessing and court procedures, theCommission makes the followingrecommendations:

8.1 The Supreme Court should adoptuniform rules for filing and obtainingrulings on motions, including a timestandard for dispositive motions and arequirement that judges enter an orderexplaining any delay in ruling on adispositive motion. The AdministrativeOffice should establish an exceptionreporting system for dispositivemotions that are ripe for decision andhave been pending for more than threemonths. The local court would berequired to report such cases andexplain the reason(s) for delay.

8.2 The Administrative Office of theCourts should employ three to fourregional trial court administrators toprovide training and technicalassistance to local courts in the areasof court and case management.

Commentary: While the AdministrativeOffice of the Courts monitors compliancerates and actively works with judges andother court personnel to improve casemanagement procedures, the large number ofjudicial offices and the state’s geographymake it difficult to provide one-on-onetechnical assistance to courts experiencingproblems.

34

ISSUE 9: U N I F I C A T I O N A N DCOORDINATION OF COURTSERVICES IN CASES INVOLVINGFAMILIES

Aside from traffic infractions, theaverage individual is most likely to interactwith the court system in a domestic relationscase. It is here that the court system touchesthe most households and where it has its mostpersonal impact. National statistics show thatalmost 50% of current marriages will end indivorce. In West Virginia, divorces and otherdomestic relations case filings increased by47% between 1990 and 1997, from 14,582filings to more than 21,000. If juveniledelinquency, abuse and neglect, adoption, anddomestic violence civil protective order casesare included, the total “family law” caseloadwould exceed 30,000 cases per year.

In the current court system, a family incrisis could encounter five different decisionmakers in the course of attempting to resolveits problems: a magistrate, to hold hearings ona domestic violence petition; a family lawmaster, to hear evidence on a divorce; a circuitjudge, to conduct an abuse and neglectproceeding; a different circuit judge to conducta delinquency proceeding regarding thebehavior of one of the children, and a panel ofcounty commissioners to conduct a proceedingregarding a contested legal guardianship of aminor. This fragmented and duplicative systemis clearly a strain on the resources of the courtsystem of a small state. Moreover, when thereis no coordination between different segmentsof the court system, it is possible that a judgehearing a child abuse and neglect case may notbe aware of a pending divorce, a disputednon-testamentary legal guardianship, a juveniledelinquency proceeding, and/or a recent

domestic violence petition. This lack ofintegration and consolidation does not servethe best interest of the families, interferes withthe ability of the system to provide a qualityresolution, and does not make efficient use ofjudicial resources.

Since 1980, the American BarAssociation has studied and endorsed a“unified” approach to family law cases. In its1993 study of the unmet legal needs ofchildren and their families, the ABArecommended the adoption of unified familycourt systems in all jurisdictions. At a 1998National Summit Meeting on Unified FamilyCourts, the ABA reiterated its support for aunified family court system. To date,approximately twenty-five states have eitherestablished a unified family court or a modelunified family court pilot project.

While there is no one definitive modelof a unified family court, those developed thusfar share several common characteristics: (1)comprehensive jurisdiction of all family lawcases, including juvenile matters; (2) a “onejudge/one family” case assignment system; (3)provision and coordination of comprehensivesocial services; (4) support staff, such as casemanagers, who assist the court in movingcases through the court system, providecoordination of services, avoid duplication ofservices, and assist the court in gathering vitalevidence; and (5) specialized training ofjudicial officers and support personnel.

To ensure the unification andcoordination of court services in casesinvolving families, the Commission makes thefollowing recommendations:

9.1 The Legislature should eliminate theFamily Law Master system and the

35

Juvenile Referees, effective11:59 p.m. on December 31,2000 and create a UnifiedFamily Court, effective January1, 2001.

Commentary: The Supreme Court cancreate a Unified Family Court as a division ofthe Circuit Court; however, the Legislaturewould have to add any additional judgepositions necessitated by these changes, andwould have to abolish the Family Law Mastersystem.

Delay is inherent in the Family Law Mastersystem due to the fact that masters are notcircuit judges and, therefore, their finalrecommendations are appealable to circuitcourt. Masters are not permitted to hearcontempt cases or enforce their orders. Theaddition of more family law master positionsmight allow some types of cases to beprocessed more rapidly, but this solution doesnot meet the need for an integrated approachto interrelated problems in the same family,ignores the inherent problems offragmentation of court services to families incrisis; and does not address the delay causedby the constitutional restrictions on themasters’ powers. Abolishing the family lawmaster system and increasing the number ofcircuit judges so that they can hear family lawcases is also not the solution. This change,without the creation of a “family court” or“family division,” will not resolve issuesrelating to overlapping jurisdiction,conflicting court orders, and absence and/orduplication of services.

9.2 The Legislature should require thatUnified Family Court judges gainoffice in the same manner, and havethe same status, pay, and benefits ascircuit judges.

Commentary: Other states with UnifiedFamily Courts have determined that equalstature for Unified Family Court Judges andadequate additional support personnel are

absolutely essential to the success of thisplan.

The status of family court judges affects thecourt’s ability to command necessaryresources as well as attract and retainqualified personnel. In addition, there areplaces in this state where, because ofgeographical and case load considerations,judicial efficiency requires one person tofunction as both a general jurisdiction circuitjudge and as a family court judge.

9.3 The Legislature should require thateach family court judge have thefollowing personnel: (1) a secretary,with the same duties and pay as asecretary to a circuit judge; (2) a courtreporter, with the same duties and payas a court reporter to a circuit judge;(3) juvenile probation officers with thesame duties and pay as currently exist.In addition, two other supportfunctions should be provided toeffectively improve use of judicialresources: (4) a case manager, whowould perform case intake, makereferrals to alternative disputeresolution programs and outsideagencies, coordinate family services,monitor case processing, and performhome studies in custody and visitationcases, but not abuse cases; and (5) afacilitator, who would negotiate inaccordance with federal guidelinestemporary child support amounts,prepare orders where parties are inagreement, establish pro seinformation programs and activelyassist pro se litigants to ready theircases for presentation, coordinate withcommunity-based volunteer programs,and oversee parent-educationprograms.

36

Commentary: The job description of thefacilitator would be written to satisfy therequirements for partial funding through thefederal IV-D reimbursement for child supportand paternity hearings. It should also benoted that both the case manager andfacilitator functions could be filled in avariety of ways, either by the direct funding ofthese positions within the budget of theCourt, by having the case manager functionfilled by a social worker from the DHHR staffwho would be assigned solely to the Court, byhaving the facilitator function performed bystaff hired through the use of the fund nowproviding law clerks for circuit judges, orthrough any other available funding method.

9.4 The Legislature should give theUnified Family Court exclusivejurisdiction over the following types ofcases: civil child abuse and neglect;adoption; juvenile delinquency andstatus offender proceedings, exceptjuveniles transferred to adult status;domestic violence final protectiveorder hearings; emancipation; namechange; paternity; divorce, property,and equitable distribution issues;custody; UIFSA (Uniform InterstateFamily Support Act); elder abuse; allchild support matters, includingmodifications; alimony; custody;visitation; contempt of any of theseproceedings; legal guardianship of aminor, including non-testamentaryguardianships; and foster care.

9.5 The Chief Justice of the SupremeCourt should be granted the authorityto appoint general jurisdiction circuitjudges to specific unified family courtcases, if an ethical conflict shouldarise, or if the family court judge isunavailable due to illness or absencefrom the area. The Chief Justice

should also be granted the right totemporarily reassign portions of thefamily court caseload to generaljurisdiction judges if he or she deems itnecessary to effectively manage thecaseload of that circuit.

9.6 Prior to the 1999 Legislative Session,the Supreme Court shouldrecommend to the Legislature thenumber of judicial positions needed forthe Unified Family Court caseload foreach circuit, and the number of totaljudicial positions for each circuit. Thisassignment should be reviewed everyeight years when the overall alignmentof judicial circuits is reviewed.

Commentary: For example, in a largerjudicial circuit there may be two judgesassigned to the family law caseload as well astwo general jurisdiction circuit court judges.In a small circuit, on the other hand, only onejudge would be assigned to the family courtcaseload, and that judge might also beresponsible for a small part of the generaljurisdiction docket.

9.7 The Supreme Court should providefamily court judges specialized trainingin appropriate areas of the law, such asdomestic violence, child supportissues, use of mediation, child abuseand neglect, and the social-psychological dynamics of familyproblems and their resolution. Thistraining would be in addition to thetraining normally provided to newcircuit judges.

Commentary: Research and experience inother jurisdictions have shown mediation tobe an effective tool in the resolution of familylaw cases, because, unlike the adversaryprocess, it does not fuel hostility, oftenresults in better compliance, and reduces

37

relitigation rates. Mediation hasbeen made available to litigants infamily law cases in West Virginiaonly in the last two years through apilot project in the EasternPanhandle. However, despiteits many benefits, mediationprograms are inappropriate forcertain types of family law cases;namely, those involving issues ofabuse and neglect, spousal abuse, ormental illness of a party, those caseswhere substance abuse might impairthe ability of a party, and those caseswhere the child support formula isrequired to be applied.

In addition to the use of mediation, many ofWest Virginia circuit courts are utilizingparent education programs to lessen thenumber of contested custody cases in thecourt system by providing information toparents about how their children can beaffected by their divorce and teachingmethods of dealing with inevitable problemsand questions. National studies have shownthat when parent education is coupled withmediation the chances of successfullymediating a custody/visitation agreement aregreatly improved.

9.8 The Supreme Court should makeevaluation an integral part of theimplementation and operations of theUnified Family Court system. Thatevaluation component should bedesigned to address the goals of allstakeholders in the system andmeasure both qualitative andquantitative outcomes.

Comments on the Commiss ion’sDeliberations: The Commission debated atlength the recommendation that certainjuvenile delinquency matters be heard by theUnified Family Court. All agreed that cases ofjuveniles transferred to adult status should notbe heard by the Unified Family Court but

proposed amendments regarding the included:vesting juvenile delinquency jurisdiction withthe Unified Family Court, but allowing familycourt judges the option of transferring felonycases to the circuit court; and conversely,keeping felony juvenile delinquencyjurisdiction in the circuit court, but allowingcircuit court judges to transfer appropriatecases to the family court. Both proposedamendments were defeated by a slight majorityof those voting.

In light of its recommendation tocreate a Unified Family Court, the Commissionvoted to endorse the then-proposed JudicialReform Amendment. That amendment wasdrafted to amend Article 8 of the WestVirginia Constitution, which contains theblueprint for the State’s judicial system. Theamendment was defeated during the generalelection held November 3, 1998.

ISSUE 10: P R O V I S I O N O FTREATMENT AND PLACEMENTO P T I O N S I N J U V E N I L EDELINQUENCY AND ABUSE ANDNEGLECT CASES

Whether children have been abused and/orneglected or determined to be delinquent, thecourt may order that they be removed fromtheir homes. Approximately 3,000 of WestVirginia’s children were in out-of-homeplacements in June of 1998. About 2,153 ofthese children were in the custody of theDepartment of Health and Human Resources.The remaining 847 were in the custody of theDivision of Juvenile Services. In addition, the70 beds available for juvenile detention werefilled to capacity during most of 1997. Eachyear, thousands of other children are at-risk ofentering out-of-home placements, as evidencedby the more than 8,000 juvenile cases which

38

were filed during 1997 alone. Many out-of-home placements might be avoided, or at theleast shortened, if there was early provision ofsocial services to families and children at thelocal level.

In 1997, the Legislature created theChild Placement Alternatives Corporation(CPAC), a public corporation, to address theneeds of children in, or at-risk for, out-of-home placements. In October, 1997, after anextensive study of the situation, the CPACBoard of Directors concluded that over 48%of the children in out-of-state placement couldbe returned to their community if propersupport services were available. In addition,they found that over 22% of the childrenstudied could be returned to their communityafter only a short-term placement, threemonths or less, if adequate support serviceswere available at the local level. In fact, only7% of the children studied needed long-termplacement in an out-of-state facility, typicallythe most expensive type of placement. As ofJune 30, 1998, 246 children remained in out-of-state facilities.

CPAC has not been the only group toreview the placement of children in this State.Indeed, the issue of juvenile facilities and theprovision of social services to children hasbeen under almost constant study for the lastfive years. In 1994, the Supreme Court’sAdvisory Committee on Child Abuse andNeglect submitted a report. In 1995,then-Governor Gaston Caperton appointed atask force to review juvenile detentionfacilities, that made recommendations thathave yet to be fully implemented. The CourtImprovement Oversight Board, established in1994, continues to study the court system’sperformance in child abuse and neglect casesand submitted its first report to the Supreme

Court in 1996. In 1997, the Legislaturecreated the Division of Juvenile Services andcharged it with the task of developing athree-year plan for providing juvenile services.This plan was completed in early 1998. Mostrecently, the 1998 Legislature authorized theRegional Jail and Correctional FacilityAuthority to review juvenile detention facilitiesand report by October 1, 1998.

The availability of a balanced system ofcare could help to resolve problems beforechildren must be removed from home. Such asystem would include community-based mentalhealth services, counselors to work with bothfamilies and children, educational assistanceand tutoring, respite care, substance abusecounseling, and a variety of other services. Ifsuch a system were in place, a continuum ofappropriate placement options would beavailable, including therapeutic foster homes,assessment foster homes, emergency shelters,psychiatric hospitals for out-patient andin-patient treatment, family counselors, andother levels of residential care.

The Commission on the Future hasmade extensive findings and conclusions aboutplacement options in juvenile cases. Thesefindings and conclusions may be found in thecompanion volume to this report availablefrom the Administrative Office of Courts.

To ensure the provision of adequatetreatment and placement options in casesinvolving juveniles, the Commission makes thefollowing recommendations:

10.1 Prior to placing a child in anout-of-home placement, the SupremeCourt in conjunction with otherrelated agencies should provideinformation to a circuit judge listing allof the available options for both

39

community services and forplacement, and including themulti- disciplinary treatmentteam’s recommendation.

10.2 The Supreme Court should continueto encourage other agencies andprivate organizations to establish abalanced system of care for provisionof treatment to the State’s children.

Commentary: Although these agencies andorganizations are outside the direct control ofthe court system, it is important for theSupreme Court to continue to provideleadership in the identification of gaps in thesystem, and to foster development of plans tomeet the needs of the children who are eitherin out-of-home placement or at-risk of suchplacement.

10.3 The Supreme Court shouldencourage the Regional Jail andCorrectional Facility Authority tocontinue to review existing juveniledetention facilities, form a plan forcreating new facilities, and give a highpriority to the completion of thesefacilities to alleviate currentovercrowding.

10.4 The Legislature should act to allowuninsured or underinsured familiesaccess to mental health services,including appropriate psychiatricresidential placement, without theneed to have the child placed in fostercare to obtain such services. Such aprovision would allow a low-costalternative to high-end hospitalizationor other costly out-of-homeplacement.

10.5 The Legislature and related agenciesshould establish additional in-state

substance abuse treatment programs.

Commentary: Substance abuse treatment isthe cause of many out-of-state placements forchildren. While it appears that our state hasmade some progress in this area, morefacilities are needed. While this issue isoutside of the direct control of the courtsystem, the Supreme Court should take aleadership role in working with agencies andorganizations to develop a plan for theseservices.

10.6 The Supreme Court in conjunctionwith the State Bar should provideadditional training and information ontreatment and placement options tolawyers and judicial officers who dealwith these issues.

10.7 The Supreme Court shouldpromulgate uniform rules of practiceand procedure in juvenile delinquencycases.

10.8 The Supreme Court should expandthe jurisdiction of the CourtImprovement Oversight Board toinclude review of juvenile delinquencycases and services.

ISSUE 11: EFFECTIVENESS ANDEFFICIENCY OF THE CHILDNEGLECT AND ABUSE CASEPROCESS

In 1994, the Supreme Court ofAppeals began an extensive study of the courtsystem’s processing of child abuse and neglectcases. Concerned with problems of delay andlack of oversight identified in some abuse andneglect cases presented on appeal, the Courtestablished an Abuse and Neglect AdvisoryCommittee. This Committee was dissolvedafter completing its assigned tasks, including

40

the development of a set of procedural rulesfor abuse and neglect cases. A new entity, theCourt Improvement Oversight Board, wascreated to continue the work of monitoringand improving court performance in the areaof child abuse and neglect. Significant changesin the processing of abuse and neglect caseshave occurred as the result of the SupremeCourt’s and Legislature’s implementation ofthe recommendations of these two bodies.

In the Fall of 1998, the CourtImprovement Board will launch a pilot projectin the Twenty-Third Judicial Circuit (Berkeley,Jefferson, and Morgan Counties) to implementa model system for court performance in abuseand neglect cases. This program will includecross-disciplinary training for all participants inabuse and neglect cases; free continuing legaleducation training and a mentoring program toencourage lawyers to represent parents andchildren in these actions; rigorous caseflowmanagement procedures; enhancedinformation system development; and anemphasis on early intervention, assessment andeffective planning. Successful features of thispilot project will be replicated in other circuits.

The number of child abuse and neglectcases reaching the courts in West Virginia hassteadily increased in the last eight years.During that time, petitions filed in circuit courtincreased by 88 %, from 426 in 1990 to 801 in1997. Despite the progress made in the lastfour years and the promising on-going efforts,the current structure of the court system is notwell-designed to absorb the demands of thisincreased volume and ill-suited to bring abouta timely and comprehensive resolution of thesematters.

Regarding compliance with timestandards, only a little over a third of the

pending juvenile delinquency cases are incompliance with time standards, as are onlyslightly more than half of the child neglect andabuse cases. While there has been greatimprovement in the processing of child abuseand neglect cases, in some circuits, these casesas well as juvenile delinquency cases rank nearthe bottom of all categories in time standardcompliance. Moreover, there are significantdifferences between circuits, with some areasreporting near 100% compliance, while othercircuits struggle with 30 to 40% compliancerates. Full compliance with time standards isparticularly critical in abuse and neglect andjuvenile cases as these have the highest risk ofimminent danger and long term irrevocabledamage to human life and welfare.

To ensure the effectiveness andefficiency of the child abuse and neglect caseprocess, the Commission makes the followingrecommendations:

11.1 The Supreme Court should employan Oversight Coordinator to identifysystemic problems in the investigation,treatment, and resolution of casesinvolving child maltreatment orjuvenile delinquency, recommendadministrative or legislative changesnecessary to address these problems,provide technical assistance to local orregional multidisciplinary treatmentteams (MDTs) in coordination withDepartment of Health and HumanResources (DHHR) staff, refer specificcases to an attorney for an independentdecision as to whether a specialguardian ad litem should beappointed, perform randomcompliance audits on the use of MDTsand the filing of case plans, and workto ensure compliance with timestandards, statutes and procedural

41

rules in child abuse and neglectand juvenile delinquency cases.

Commentary: MDTs are treatment planningand implementation teams that arespecifically designated for each child. Theteam is composed of the child’s parents andcounsel as well as treatment professionalsinvolved with the child such as schoolofficials, counselors, social workers, andjuvenile probation officers.

11.2 In coordination with the State Officeof Technology, the Supreme Courtand the DHHR should develop anintegrated computer system to monitorthe progress of child abuse and neglectcases in the system.

11.3 The Supreme Court and relatedagencies should develop procedures toensure that all children in the State’scustody, including juvenile delinquents,have written case plans; and that caseplans are disseminated to all partiesand filed with court.

Commentary: The latter mandate could besatisfied if a certificate of service listing allparties served and the date that the plan wasfiled with the court was required to beappended to all case plans.

11.4 The Supreme Court and the StateBar should continue extensive trainingof judges and lawyers in the area ofchild abuse/neglect. This trainingshould specifically encourageacceptance and use of CourtAppointed Special Advocate (CASA)volunteers.

Commentary: CASA volunteer programs areavailable in sixteen counties in this state.CASAs are trained community volunteers,appointed by circuit court order, who provide

the court with a full report on the child’scircumstances and insure that the child ismoved through the child welfare and courtsystems in a sensitive and expedient manner.The CASA volunteer gathers informationrelating to the child’s welfare throughinterviews, document review and observation,and conducts an independent assessment ofthe facts. The CASA then prepares a writtenreport with recommendations for the courseof action that is in the best interest of thechild and presents it to the judge and allparties in the case. The CASA also monitorsthe progress of the case and keeps the courtinformed as to compliance with court orders.

11.5 The Legislature and/or the SupremeCourt should establish a fund toprovide grants to assist CASAprograms statewide.

Commentary: The expansion of the CASAprogram in the State has been slow andsporadic due to a lack of funding fortraining, supervision, and coordination of thevolunteers. As a result, there is a seriousdisparity in the availability of this essentialprogram. In part, this disparity is based uponeconomic factors which favor wealthier,urban circuits--it also results from the lack offunds to sustain programs which weresuccessful in getting start-up funds. Fundingfor the CASA program would providecommunities the opportunity to employ acoordinator to train volunteers, organize theappointment of volunteers to individual cases,supervise the volunteers, and providetechnical assistance and expertise. Withoutfunding assistance from the State, it isunlikely that CASA programs will be viablein many counties. This disparity in servicesto needy children is unjust and unfair.Community-based CASA programs wouldorganize, develop a written plan for theirdelivery of services, and then apply to theSupreme Court for a grant to cover thatportion of the expenses of their program thatcannot be covered by local funds. The Courtwould administer the fund, developguidelines for the application and funding

42

process, issue grants to thequalifying programs, and monitoreffective and cost-efficient use of thefunds.

11.6 The West Virginia UniversityCollege of Law and West VirginiaContinuing Legal Education shouldcontinue to make available courses inthe area of family law; for exampledomestic violence, child abuse andneglect, or child support.

Comments on the Commiss ion’sDeliberations: The subcommittee thataddressed this issue proposed that the StateBar amend its Continuing Legal Education(CLE) requirements to include that at leastthree credit hours per CLE reporting periodmust be earned in an area of family law; forexample, domestic violence; child abuse andneglect, or child support. After full discussionof the matter, a majority of the Commissionrejected this proposal, and in its placesubstituted recommendation 11.6.

ISSUE 12: P E R C E P T I O N O FFRIVOLOUS LITIGATION ANDEXCESSIVE DAMAGE AWARDS INCIVIL CASES

Tort cases represent a relatively smallpercentage of the total civil docket nationwide,but the tort liability system is the subject ofmuch debate in Congress, state legislatures,and the media. Businesses and insurancecompanies are concerned that increasedlitigiousness, especially in the area of personalinjury law, drives up the cost of products,services, and insurance. In response to thedemand for change, many states implementedreforms in tort laws in the 1970s and 1980s.

The American Bar Association (ABA)reported in 1996 that tort cases comprise lessthan 2% of the total caseload and only 6% ofthe civil caseload in state courts. The ABAalso noted that while other categories of civillitigation, such as family law cases, areexpanding, the volume of tort litigation hasbeen declining since the early 1990s. Statisticscompiled by the National Center for StateCourts (NCSC) also do not support the idea ofa tort litigation “explosion.” Utilizing datafrom 16 state courts, the NCSC found thattotal tort filings rose 69%, or an average of3% per year, between 1975 and 1996.

Statistics on the number of tort casesfiled in West Virginia are not available becausethese cases are not distinguished from othergeneral civil case filings in the caseloadreporting system maintained by theAdministrative Office of the Courts. However, the number of general civil cases,which includes tort actions as well as contractcases, debt collection suits, extraordinarywrits, and other civil matters, decreased by23% in the last five years, from almost 20,000cases in 1993 to just over 15,000 in 1997.

Suits filed by prisoners are alsoincluded in the debate about frivolouslitigation. The most common prisoner suitsare habeas corpus petitions which are filed byincarcerated individuals seeking to overturnconvictions or gain release from confinement.It is not uncommon for multiple habeaspetitions to be filed by the same inmate. Sincethey are usually prepared without theassistance of legal counsel, the pleadings areoften incomprehensible or incomplete and failto state grounds for relief. Habeas corpuspetitions are time consuming for court staffand the personnel involved in transportingprisoners from correctional facilities to the

43

courthouse.

The Commission reached no consensuson the need, or lack of need, forcomprehensive tort reform in West Virginia.However, it did make extensive findings andconclusions about tort litigation in WestVirginia and across the nation. These findingsand conclusions may be found in thecompanion volume of this report availablefrom the Administrative Office of Courts.

To assess the perception of frivolouslitigation and excessive damage awards in civilcases, the Commission makes the followingrecommendations:

12.1 The Supreme Court should undertakea study of the tort liability system,including the collection of data on thesize of jury verdicts in each category ofcivil case, the number of defenseverdicts, the number and amount ofpunitive damage awards and post-trialoutcomes. The results should bedisseminated to the general publicthrough news releases.

12.2 The Administrative Office of theCourts should institute a reportingsystem for habeas corpus petitionsfiled in the circuit courts.

12.3 The Supreme Court should continueto train circuit judges in the methodsthat are available to discourageindiscriminate filing of cases anddefenses, such as sanctions, dismissals,and payment of another party’sattorneys fees. Specific informationshould be provided on how to handlepost-judgment motions for the reviewof damage awards.

12.4 The Supreme Court should continueto train judges on the benefits of usingtime frame and scheduling orders incivil cases, so that cases that are notbeing vigorously prosecuted or casesthat have no basis in fact can beidentified at the earliest possible date.

12.5 The Supreme Court should continueto train judges on the benefits ofmediation and other alternativedispute resolution mechanisms in orderto facilitate the efficient and cost-effective settlement of cases.

12.6 The Supreme Court should update itspost-conviction habeas corpus form toinclude guidelines and instructions,and disseminate the form to inmatesfor use. Consideration should also begiven to providing other forms andinstructions for inmates use anddeveloping systems to facilitatein-house review and assistance inhabeas corpus proceedings.

ISSUE 13: INTEGRATION ANDCOORDINATION OF TECHNOLOGYIN THE COURT SYSTEM

To meet the demands of the Twenty-first century, it is imperative that there be acomprehensive plan for the integration andcoordination of technology within the courtsystem. Presently, every judge and family lawmaster office has computer capability. Judgeshave access to legal reference materials on-lineand e-mail through the Internet.

At the magistrate court level, SupremeCourt funding and oversight of thecomputerization process has ensured softwareuniformity. Forty-four magistrate courts are

44

currently computerized and use standardsoftware. All magistrate courts are slated tobe automated by the end of fiscal year 1999.

A different situation exists at the circuitcourt level where individual counties, not theSupreme Court, have budgetary control. Presently about 45 of the 55 circuit clerks’offices are automated. Twenty-five of thosecounties have uniform case managementsoftware provided at no charge by theSupreme Court. The other 20 counties use avariety of unrelated software systems.

At both levels of court, computersystems are generally not networked intra-county, much less inter-county, nor are theylinked with the Administrative Office of Courtsor other state agencies. There is littleinformation transfer or communicationcapability. Moreover, some courts lack evenfundamental communication technology, suchas additional telephone lines, facsimilemachines, and electronic library services.

The Supreme Court’s technology planrequires that all court employees be providedwith the most advanced personal computersand up-to-date software. All judicial offices inlarger counties, including probation and clerkof court offices, will be linked via file servers.The model for this type of system is now beingfine-tuned in Cabell County and will includestate-of-the-art “citrix servers” which alleviatethe need to continually update personalcomputers. The technology plan also calls forthe use of standard software in all circuit clerkoffices and computer terminals in allcourtrooms. In addition, the court system willmake the hardware and software changesnecessary for the federally-mandatedcentralized reporting of criminal casedispositions, domestic violence protective

orders, and, in the future, child support orders.

At the same time, the State and thejudicial system, in conjunction with BellAtlantic-WV, are embarking on one of themost promising and progressive technologyprojects in the nation. A pilot project on theuse of ATM (Asynchronous Transfer Mode)technology is currently underway in Kanawhaand Cabell Counties. ATM technologyprovides video conferencing between multiplelocations and is capable of supporting highspeed video, voice and data applicationssimultaneously. The pilot project is initiallyusing the technology for the initial appearancesof criminal defendants, but the potentialapplications seem almost limitless and span anumber of court system operations. ATMtechnology will eventually be implemented ona statewide basis; 25 counties are scheduledto be up and running by the end of 1999.When the installation process is complete,West Virginia will be the first state in thenation to have this technology availablestatewide.

To ensure the integration andcoordination of technology in the courtsystem, the Commission makes the followingrecommendations:

13.1 The Supreme Court should continueits full support and involvement in thetesting and expansion of ATMtechnology.

Commentary: The ATM technology hastremendous potential for use in the courtsystem. In addition to the “initialappearance” pilot project in Cabell andKanawha Counties, it could be used toprovide cost-efficient, divorce-related parenteducation programs to rural counties, holdemergency domestic violence hearings whenthe judicial officer must attend to a docket in

45

another county, allow domesticviolence victims to file emergencypetitions from a shelter, providehealth care consultations toprisoners, allow a magistrate onnight-call duty in one county torespond to emergencies in anothercounty, allow the State MedicalExaminer to provide testimony incounty courts, and facilitate thetestimony of child witnesses outsideof the courtroom.

13.2 The Supreme Court should appoint acommittee on “technology in thecourts” composed of representativesfrom all segments of the judicialsystem. This committee shouldencourage and support the use oftechnology in the courts; set policiesand establish rules on its use;disseminate information to the public;and insure that the implementation oftechnological advances within thecourt system is done in partnershipwith the Governor’s recently createdState Office of Technology.

13.3 The Supreme Court should

standardize and network computersystems in both circuit and magistratecourt, across other judicial offices, andto related agencies and organizations.Software systems should have full casemanagement functionality.

13.4 The Supreme Court should provideelectronic mail, fax capabilities, andother communication technologies inevery county courthouse for the use ofjudicial and court officers and allsupport staff.

13.5 The Supreme Court should pursuethe rules and technology to allow for

electronic filing, and considerationshould be given to instituting a pilotproject on electronic filing of masslitigation cases.

Commentary: Electronic filing of law suitsand related pleadings is allowed in courtsacross the nation, however, West Virginia hasneither the enabling rules nor the necessarytechnology and programming to permitelectronic filing.

46

EQUALITY, FAIRNESS AND INTEGRITY

Injustice anywhere is a threat to justice everywhere. We are caught in aninescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.

--MARTIN LUTHER KING, JR.

ISSUE 14: REPRESENTATIVENESSAND INCLUSIVENESS OF JURYPANELS/UTILIZATION ANDEDUCATION OF JURORS

The statutes governing petit and grandjury selection were substantially re-written in1986, completing a long overduemodernization of the entire jury system.Perhaps the most notable change was theswitch from a subjective “keyman” method ofselecting potential jurors to a system requiringrandom selection from a combination of votersregistration and drivers license lists.

In 1991, the Supreme Court adopted“STANDARDS RELATING TO JURY USE AND

MANAGEMENT,” a set of guidelines designedto maximize the efficiency and effectiveness ofthe jury system while minimizing theinconvenience to individual citizens. Like theAmerican Bar Association’s standards relatingto jury use, West Virginia’s version ispremised on the assumption that efficientadministration and management will guaranteepreservation of the jury system and enhancethe quality of the decision-making process.

Since 1991, little in the way of true jurysystem reform has occurred in West Virginia.

Terms of service, juror orientation, juryselection processes, and other aspects of juryduty have remained virtually unexamined andunchanged in most local courts. Testimony atthe Futures Commission’s public hearings andin written submissions expressed concernsabout the representativeness of petit jurypanels and the treatment and compensation ofjurors. Additionally, almost a quarter of therespondents to the State Bar survey ranked thejury issue in the top five items the Commissionshould consider. The Focus Group ranked theissue of jury representativeness and utilizationamong the ten most important, fixable andurgent issues facing the court system. Broaderparticipation results in a better cross-section ofthe public serving on jury duty and distributesthe burden as well as the educational benefits of servicemore equitably across the eligible population.

Meanwhile, across the nation, the juryreform movement has gone beyond modifyingthe simple mechanics of jury selection toinclude addressing issues such as thecommunication of information to jurors, jurorstress, and the juror decision-making process.Other jurisdictions have found that certaintechniques and innovations are effective inconserving juror time, saving costs, and

47

increasing the willingness of citizens to serveas jurors.

In 1997, the Judicial ImprovementCommittee of the State Bar submitted a reporton jury reform to the Supreme Court and,subsequently, to this Commission. In line withthe growing national recognition that jurorsmust be permitted to become more active in atrial, the Committee recommended that:orientation materials be augmented;preliminary jury instructions be expanded;jurors be allowed to take notes and beprovided notebooks in appropriate cases; and“plain English” be used in jury instructionswith copies of instructions provided to jurors.The Committee also raised concerns about thelength of the term of service and the privacyrights of jurors.

To ensure the representativeness andinclusiveness of juries and the education ofjurors, the Commission makes the followingrecommendations:

14.1 The Legislature should set the term ofjury service from no less than one weekto no more than six weeks. The actualterm of availability, from one to sixweeks, should be tailored to meet theneeds of the particular court.

Commentary: The majority of courts in thestate have a term of jury service that is the sameas the calendar term, generally a period of threeto four months. Even if the use of a telephonecall-in system prevents unnecessary jurorappearances, the period of availability may stillbe a problem. Calling the court each eveningfor weeks and avoiding potential schedulingconflicts is as burdensome as reporting. One-third of the jurors completing exitquestionnaires rated the court’s scheduling oftheir time as merely adequate or poor. Shorterterms of service reduce the personal andfinancial burden upon those serving and their

employers and permit persons to serve whowould otherwise be excused for personal orcommunity hardship reasons.

14.2 The Supreme Court should providestandardized computer software to allcourt clerk offices to support the changeto a shorter term of service, includingthe selection and summoning process,attendance records, and payroll.

Commentary: Because a reduced term of servicewill greatly increase the administrative effortand cost required to qualify and summon morejurors, it is critical that court clerks haveimproved automation support.

14.3 Through its rule-making authority, theSupreme Court should require thatjudges: provide a more thorough jurororientation and pre-trial and post-trialinstructions; permit juror note-takingduring trial, and testimony review byvideo or transcript during deliberations;and give jury instructions in “plainEnglish.”

14.4 In order to provide a more willing jurorpool, the Legislature and the SupremeCourt should increase jurorreimbursement so that jurors do not haveto “pay to serve.”

Commentary: While juror reimbursement is notmeant to compensate for lost wages, the currentjuror reimbursement of $15 per day and $.32per mile may not cover out-of-pocket expenses.

14.5 The Supreme Court should requirelocal courts not to excuse potentialjurors from service except in cases ofextreme hardship.

14.6 The Supreme Court should requirelocal courts to make provisions for juror

48

privacy in cases where there is a fear ofpotential retaliation or the threat ofharm.

14.7 The Legislature should address theissue of equalizing the number ofperemptory challenges for theprosecution and defense in criminal trialsafter a full and complete hearing on theissue by all interested parties.

Comments on the Commiss ion’sDeliberations: After considered deliberation,the Commission modified recommendation14.1 by removing the language “or one trial”from the phrase “no less that one week to nomore than six weeks or one trial.”

The Commission also wrestled with aproposed recommendation that would haverequired future magistrates to be licensed topractice law. That recommendation wasdefeated by a majority of the Commission’smembers.

ISSUE 15: I N T E G R A T I O N O FA L T E R N A T E D I S P U T ERESOLUTION MECHANISMS INTHE COURT PROCESS

Alternative dispute resolution (ADR) isa collection of strategies for resolving legaldisputes without the time and expenseordinarily associated with conventional trialcourt process. Some of the most commonlyused ADR methods include mediation,arbitration, early neutral case evaluation, mini-trials, summary jury trials, and judicialsettlement conferences.

Perhaps the most widely-used form ofADR is mediation. Mediation is an informal,non-adversarial process where a neutral third

person, the mediator, helps the parties toresolve some or all of the differences betweenthem. Decision-making authority remains withthe parties; the mediator does not act as ajudge but instead, assists the parties inreaching their own settlement agreement.

Throughout West Virginia, manydifferent governmental bodies are using ADRto resolve legal disputes on an ad hoc basis.

During the early 1990s, the United StatesDistrict Court for the Northern District ofWest Virginia began a mediation programknown as “Settlement Week.” The parties incases assigned to the program by the DistrictCourt must attempt to mediate their dispute.The cases are mediated by volunteer attorneystrained in mediation techniques. On average,thirty to sixty percent of the cases mediatedduring a settlement week are successfullyresolved.

In 1993, the Supreme Court of Appealsadopted the RULES OF PROCEDURE FOR

COURT-ANNEXED MEDIATION IN THE CIRCUIT

COURTS OF WEST VIRGINIA. The RULES

govern mediation of civil cases in the circuitcourts, including appeals and administrativeorders, but excluding domestic relationsmatters. Under the RULES, the State Bar isrequired to maintain a list of attorneysqualified to serve as mediators in the circuitcourts. To be included on the State Bar’s list,an attorney must take the Bar’s basicmediation course, and have mediated at leastfive disputes.

In 1996, the Kanawha County CircuitCourt instituted its own settlement weekproject known as S.W.A.R.M. Week. Heldbiannually, each of the five S.W.A.R.M.Weeks held to date have resolved about half of

49

the two to three hundred cases mediated.Local attorneys volunteer their time to mediatethe cases. S.W.A.R.M. Weeks havesignificantly lightened Kanawha County’s civilcase docket.

Also in 1996, the Supreme Courtinstituted the “Parent Education and MediationPilot Project” in Berkeley, Jefferson andMorgan Counties. This on-going projectaddresses the impact on children of custodyand visitation disputes and parental separation.Parents of minor children who file for adivorce must attend a parent education classthat addresses the difficulties children mayencounter and offers helpful information toassist families through the divorce process.Mediation of child custody and visitation ismandatory unless the case is not appropriatedue to the incidence of domestic violence or amarked imbalance of bargaining positionsbetween the parties. About half of thosereferred to mediation have resolved theircustody and/or visitation disputes.

Over the past few years, several privatecommercial enterprises have been created thatoffer mediation services. Some of thesegroups are comprised of retired judges.Additionally, many other individuals, bothattorneys and non-attorneys, advertise thatthey will mediate a case for a fee.

In 1998, the Legislature created the“West Virginia Alternate Dispute ResolutionCommission” to: study ways to finance andstructure ADR programs; define programgoals and objectives, and determine the typesof cases to be resolved by those programs;make the programs uniform statewide; andevaluate the advantages of establishingcertification or licensure requirements forADR practitioners. The ADR Commission is

scheduled to issue its report by the end of1998.

In 1998, the Supreme Court establisheda workers’ compensation mediation pilotproject to: return control of a case to theparties; allow for speedier resolution of cases;reduce costs paid by parties; and to reduce theCourt’s caseload and the time spent onworkers’ compensation cases. The Courtselects cases for mandatory mediation, but anyparty may opt for mediation. An oversightcommittee will evaluate the project inDecember 1998.

Although each of these applications ofADR is beneficial to the judicial system, WestVirginia has no statewide office thatcoordinates, oversees or synthesizes the use orintegration of ADR, or that oversees, trains orcertifies ADR practitioners. Many other stateshave an Office of Alternative DisputeResolution that performs these functions.

To ensure the integration of ADRmechanisms, the Commission makes thefollowing recommendations:

15.1 The Legislature should consider therecommendations of the West VirginiaAlternate Dispute ResolutionCommission along with the following.

15.2 The Legislature should create astatewide “Office of Alternate DisputeResolution” to systematically integrateADR into the court system and increasethe use of ADR statewide.

15.3 The Office of Alternate DisputeResolution should: standardize practiceand procedural rules; establishqualifications and ethics rules for ADR

50

practitioners; set out project priorities;determine who will train practitioners;establish a training protocol andcontinuing education programs; providetechnical assistance to start ADRprograms in counties that do not havethem; educate the public and appropriategovernmental agency personnel aboutADR; formulate means to gatherstatistical data needed to analyze theimpact of ADR use; and allocate fundingand grants.

15.4 ADR should be employed in thefollowing types of cases: family lawcases, except those cases involvingdomestic abuse or violence against anadult or child; civil litigation; stateagency and labor cases, including casesfiled with the State Employee GrievanceBoard; workers’ compensation claimsand appeals; public education-relatedcases; and environmental-impact cases.

15.5 Parties to appropriate civil cases shouldbe required to attempt to resolvedisputes through ADR methods.

Comments on the Commission’sDeliberations: One of the subcommittees thataddressed this issue proposed that mediationbe attempted in family law cases involvingdomestic abuse or violence against an adult orchild. Another subcommittee alsorecommended mediation and parent educationin all family law cases but excluded frommediation all cases involving family violence.After a review of the available literature ofprograms mediating instances of familyviolence, the full Commission rewrote therecommendation to read as it appears now inrecommendation 15.4.

ISSUE 16: APPROPRIATENESS OFTHE ADVERSARIAL MODEL INMENTAL HYGIENE PROCEEDINGS

West Virginia uses an adversarial modelof mental hygiene. Mental hygienecommissioners hear petitions for theinvoluntary commitment of persons alleged tobe mentally incompetent, mentally retarded oraddicted and, as a result of that condition, area danger to self and others. This person isknown as the respondent. The petition forinvoluntary commitment is filed by anapplicant who is represented by theprosecuting attorney’s office. The countysheriff is required by statute to transport andto maintain custody of the respondent until thepetition is denied or the respondent is taken toa mental health facility.

Most mental hygiene cases begin with anevent or crisis that causes the applicant, oftena family member, to believe that a personneeds to be hospitalized. The applicant filesa verified petition for commitment with thecircuit clerk’s office. The mental hygienecommissioner reviews the petition todetermine if the allegations are sufficient tohave the respondent taken into custody for anexamination by a physician or psychologist.Once approved, the commissioner issues a“pick up” order that is given to the countysheriff’s department, and appoints counsel forthe respondent.

The sheriff’s department delivers the therespondent to a physician or psychologist foran examination at, or arranged by, acommunity mental health center. If thephysician or psychologist finds evidence ofmental illness, mental retardation, or addiction,and evidence that, due to that condition, therespondent is a danger to self or others, the

51

physician or psychologist “certifies” therespondent. If the examination does not takeplace within three days, the respondent mustbe released.

Once the respondent has been certified,he or she must be taken before the mentalhygiene commissioner for a probable causehearing within 24 hours. At the hearing, thecommissioner decides whether there isprobable cause to believe that the respondentis mentally ill, mentally retarded or addicted,and is a danger to self or others. If thecommissioner finds probable cause, therespondent is taken to a mental health facilityfor a detailed examination to be conducted bya staff physician at the facility within five days.If necessary, an agent of the mental healthfacility must file for the respondent’s finalcommitment within ten days following thedate of admission. If any of these timedeadlines are not met, the respondent mustbe released. Less than 20% of allcommitment cases proceed to a finalcommitment hearing and less than aquarter of these result in a finalcommitment order.

Some chief judges require magistratesto hold emergency detention hearings whenthe mental hygiene commissioner or a judge isunable to hear the petition. The chief judgemay also require magistrates to preside overprobable cause hearings. Mental hygienecommissioners and those magistrates requiredto hold probable cause and emergencydetention hearings must attend a trainingcourse provided by the Supreme Court.

Testimony presented at the public forumsindicated that the present mental hygienesystem is antiquated and demeaning. Theprimary concern is that the family member who

petitions for the respondent’s involuntarycommitment often has to testify against his/herloved one. This procedure can destroy familybonds when they are needed most. However,adversarial models of commitment are notdiametrically opposed to therapeutic models;in fact, therapeutic models are often integratedinto the adversarial process. Moreover, theadversarial model serves an important role inpreventing respondents from being wrongfullycommitted to mental health facilities.Adversarial mental hygiene proceedings maybe appropriate if changes occur that result infamily members not having to testify againsttheir loved ones.

Given the present adversarial model inmental hygiene proceedings, the Commissionmakes the following recommendations:

16.1 The Legislature should requirecommunity mental health centers toprovide crisis intervention services to allpersons likely to be committed prior tothe commitment hearing. Mobile, face-to-face, crisis intervention servicesshould also be provided by communitymental health centers.

Commentary: The State’s fourteen communitymental health centers assist persons in crisisbefore their problems become so severe that

commitment is warranted. Moreover, the use ofcrisis intervention teams at these centers hasresulted in a 50% reduction in “finalcommitment” proceedings.

16.2 The Department of Health and

Human Services’ Office of BehavioralHealth Services needs to exert greateroversight control over the communitymental health centers so that the servicesprovided are consistent and quality isensured.

52

16.3 The Legislature should require thecounty prosecutor or the mental healthcenter (as opposed to family members)to present petitions for commitment.

16.4 The Legislature should appoint a“Mental Health Commission” to reviewthe current mental hygiene system. TheCommission should be made up ofmembers of the legislature, governor’soffice, judicial system, advocates,defense counsel, prosecutors, familymembers and other appropriateindividuals. Among other things, theCommission should consider: whethermental hygiene commissioners should beallowed to extend a continuance beyondforty-eight hours in cases of medicalemergency; and whether mental hygieneprocedures should include a pre-hearingscreening process provided by thecommunity mental health centers.

16.5 The Legislature should require, and the

Supreme Court should prepare,continuing mental health educationprograms for judges, mental hygienecommissioners, magistrates andprosecutors. The number of hours andspecific topics addressed should bedetermined by the Mental HealthCommission.

ISSUE 17: E F F E C T I V E N E S S O FCURRENT SENTENCING POLICY

Ideally, a sentencing policy articulatesthree standards: (1) the principles to befollowed in sentencing; for example, sentencesshould be proportional to the severity of thecrime; (2) the goals to be achieved; forexample, time served in prison by violentoffenders should be increased; and (3) the

resource priorities; for example, communitypunishment options are to be used first withnon-violent offenders with little or no priorrecord. An effective sentencing policy must besupported by adequate prison, jail andcommunity resources.

The dramatic change in sentencingphilosophies that swept the rest of the countryin the 1970s had little impact in this State.West Virginia does not have a sentencingpolicy; judges have wide discretion insentencing except for legislatively-mandatedmaximums, and a parole board determines theactual length of time offenders spend incustody. In many other jurisdictions,structured sentencing systems, such assentencing guidelines, “three strikes”provisions, and mandatory minimums, haveconstrained judicial discretion and replacedparole boards.

The most beneficial impact of asentencing policy is its ability to help reducecorrection-system overcrowding. WestVirginia has had a problem with prison and jailovercrowding for the last decade. In a patternrepeated in many states nationwide, thesolution to this problem in West Virginia hasbeen to construct new correctional facilities.However, without some attempt to address thelarger policy issues (such as alternativepunishments, prison intake, management ofcapacity and resources, funding sources, andpublic attitudes), construction of additionalbeds will continue to provide only temporaryrelief. For example, Mount Olive CorrectionalCenter opened in 1994 with space forapproximately 600 inmates. However, itreached capacity shortly after it openedbecause many prisoners had been housed inregional and local jails waiting for prison spaceto open up. Moreover, in August, 1998, the

53

Division of Corrections projected the Statewill have 4,509 adult inmates by mid-2001,with bed space for only 4,085. The Divisioncalled for the construction of an 1,800-bed,$100 million medium security prison in orderto avoid severe overcrowding that could resultin the mandated early release of prisoners.

To ensure the effectiveness of currentsentencing policy, the Commission makes thefollowing recommendations:

17.1 The Legislature should work with thecourt system, the State Police,Corrections, and Probation and Parole toestablish an integrated informationsystem capable of collecting andanalyzing data on criminal casedispositions.

Commentary: West Virginia is just beginningto develop criminal justice research andstatistical analysis capacity. As a result, there islittle information or analysis available onsentencing trends or the impact of changes insentencing laws. This lack of data makes itsdifficult for officials to accurately predict theneed for additional beds in jails and prisons.

17.2 The Legislature should establish aCommission on Sentencing Policycomposed of representatives of allbranches of the government, to conductresearch on sentencing trends, establishsentencing goals and priorities, identifyeffective intermediate sanctions, andevaluate the impact of changes insentencing policy on correctionalresources.

17.3 The Legislature should explore thefeasibility of utilizing specialized facilitiesin order to remove specific non-violentoffenders, such as those arrested for

DUI, from prison and jail facilities.

Commentary: The use of intermediatesanctions, sentences that are between traditionalprobation and incarceration, reduces the needfor prison space while maintaining public safetyand offender accountability. Boot camps andcommunity service are examples of intermediatesanctions. Another alternative is the use ofspecialized facilities, such as the DWICorrectional Treatment Facility in Baltimore,Maryland. Placement at such a facility providesan inmate the opportunity for rehabilitationthrough treatment. A court-imposed restitutionfee is assessed on all participants.

17.4 The Legislature should take victims’rights into account when determiningsentencing policy and sentencestructures.

ISSUE 18: PERCEPTION OF BIASAND DISPARATE TREATMENT

It is fundamental to the integrity of thecourt system that it be free of bias. Thespecial role of the judiciary in our system ofgovernment demands not only that justice bedispensed impartially, but that the perceptionof impartiality be maintained.

Bias can affect the judicial process inmultiple ways. First, individuals can be deniedrights or burdened with responsibilities solelyon the basis of their membership in a particulargroup. Second, individuals can be subjected tostereotypes that ignore their individualcircumstances. Third, individuals can betreated differently on the basis of theirmembership in a particular group wheremembership in the group is irrelevant to thedispute at hand. Finally, a particular group canbe subjected to a law, rule, policy, or practicewhich produces worse results for it, than forother groups or the population as a whole.

54

A number of people spoke or sent lettersto the Commission about the issue of bias anddisparate treatment in the court system basedupon gender, race, political influence,economics or the existence of a “good oldboy” network.

Regarding bias on the basis of race, theCommission heard testimony that addressedthe African-American community’s lack ofconfidence in the court system. This lack ofconfidence was engendered by: the under-representation of African-Americans on juries;disparate sentencing practices; inequality insetting bond in criminal cases; lack ofenforcement of hate crime statutes; and under-representation of minorities in the lawenforcement and judicial system workforces.The Commission also received a 1995 reportprepared by the Juvenile Justice Committee,Minority Youth and the Juvenile JusticeSystem, which showed that African-Americanjuveniles had a 16% arrest rate whileconstituting only 3% of the population.African-American juveniles were alsocommitted to detention centers at twice therate of non-minority juveniles, and theproportion of African-Americans adjudicateddelinquent was the same as that for non-minority youth, again out of proportion withthe representation of African-Americans in thetotal juvenile population.

More limited concern was expressedabout perceived pro-prosecution bias on thepart of judicial officers. The criminal justiceprocess has multiple points where bias canaffect outcomes: arrest; filing of criminalcharges; setting bond; the jury trial; andsentencing. It is essential that data on theoutcomes of these events, the crime, and thecharacteristics of the defendant be madeavailable so that patterns of disparate

treatment and biased decision-making can beidentified.

Considerable testimony and many writtensubmissions were received by the Commissionon the perception of bias against males in childcustody, child support, and visitation cases.Both the “primary care taker rule” in custodydecisions and the statutory formula used tocalculate child support were cited as sourcesof this bias. The perception of bias in thisarea of the law was previously documented bythe Supreme Court Task Force on GenderFairness in the Courts in its 1996 Final Report.The Task Force on Gender Fairness in theCourts also documented patterns of biasagainst women and men in other areas offamily law, domestic violence cases, criminallaw, civil damage cases, and the court as awork environment.

While it is difficult to document theexistence and effects of what somerespondents termed the “good old boy”network, national level research conducted bythe Rural Justice Institute found that the smallscale, insularity, and shared history of manyrural communities results in courts wherefamiliarity, knowledge of players and parties,and comity are the driving forces. Thisenvironment of interconnection is furtherenhanced by the relative homogeneity of thebench, bar, and court system personnel.

Little quantitative or rigorous qualitativeinformation currently exists to validate theseperceptions. Bias does not always appear informs that are easily measured or readilyassessed. However, the court system must beconcerned with bias and disparate treatmentregardless of its source and assume aleadership role in eliminating laws, rules,practices, behaviors and attitudes that produce

55

this perception.

With the goal of eradicating bias anddisparate treatment in the courts and theperception of the same, the Commission makesthe following recommendations:

18.1 The Supreme Court should participatein the development of criminal justiceand court information systems designedto include the data necessary todocument bias and discrimination in allareas of the system. At a minimum,information on the gender andracial/ethnic background of courtparticipants should be available.

18.2 The Supreme Court should integratediversity training into the educationalprograms of all judicial officers andcourt personnel. The issue of bias anddiscrimination should be addressed in allrelevant substantive and proceduralcourses as appropriate.

18.3 The Supreme Court and the Bar shouldencourage an increase in the number ofwomen and minorities on the bench andin the judicial workforce.

18.4 The Supreme Court should increase itspublic education efforts so that citizensunderstand the role of courts and theirrights and responsibilities in the courtsystem. Providing information on thejury selection system should be apriority.

18.5 The Legislature and the SupremeCourt should explore methods toenhance the representativeness of jurypools including the use of additionalsource lists to increase the inclusion of

minorities.

ISSUE 19: THE APPROPRIATENESSO F M A G I S T R A T E C O U R TJURISDICTION, ESPECIALLY INDOMESTIC VIOLENCE CASES

The magistrate court system, createdunder the Judicial Reorganization Amendmentof 1974, replaced the Justice of the Peacecourts which existed in the Virginias since1616. That constitutional amendment alsoplaced the magistrate courts under the generalsupervisory control of the Supreme Court ofAppeals which is responsible for promulgatingmagistrate court rules.

Each of the State’s 55 counties has amagistrate court; the number of magistratesper county varies from two to ten dependingupon the population of the county. There arecurrently 157 magistrates throughout theState.

The Supreme Court provides anorientation for new magistrates and annual orbi-annual continuing education classesthereafter. Additionally, the Court providesmagistrates with summaries of new laws andforms that assist them in performing theirduties.

Magistrate courts have originaljurisdiction in criminal matters, but do nothave authority to try or otherwise dispose ofcases where the defendant can be convicted orsentenced as a felon. Additionally, somecircuit court judges enter an administrativeorder that permits magistrates to hearemergency and/or predispositional mattersinvolving juveniles and mental hygienehearings. In 1997, the State’s magistratesheard 4,239 mental hygiene and 2,658 juvenile

56

proceedings.

Magistrate courts have originaljurisdiction in civil matters where the amountin controversy does not exceed $5,000.Magistrates also conduct temporary and finalhearings for domestic violence protectiveorders and hear petitions involving civilcontempt of those orders.

In 1997, 363,919 cases were filed in theState’s magistrate courts. Of those, 318,815were criminal cases. Civil case filings totaled45,068.

Magistrate courts have regular businesshours not unlike those of the countycourthouses. In counties having more thanfour magistrates, magistrates may be found intheir offices during evening, weekend andholiday hours as designated by the chief circuitjudge. In every county, one magistrate is on-call at all times other than regular office hours.Magistrates need not stay at the magistratecourt when they are on call. However, theymust appear at the courthouse, or at any otherappropriate location, for matters regardingemergency search warrants, for petitions fordomestic violence protective orders, and forthe purpose of holding emergency custodyproceedings in child abuse and neglect cases.For the magistrates’ other on-call duties, initialappearances and bond matters, a magistrate isonly required to call in at certain times.

To ensure the appropriateness ofmagistrate jurisdiction, especially in domesticviolence proceedings, the Commission makesthe following recommendations:

19.1 Magistrate Jurisdiction: TheLegislature should amend the domesticviolence statute so that magistrates hear

petitions for temporary domesticviolence protective orders only.Temporary orders should be returnableto, and final protective orders should beissued by, a judge, whether it be a familycourt judge, circuit court judge, orfamily law master. Judicial officershearing final protective order cases mustbe able to schedule and hear the casewithin the statutorily required period oftime (currently five days from the datethe temporary protective order wasissued).

The Legislature should modify themental hygiene statute so thatmagistrates are precluded from hearingmental hygiene cases. A mental hygienecommissioner has the training andexperience to deal with juvenile andadult mental health issues; the magistrateshould only have jurisdiction in cases ofemergency when a mental hygienecommissioner is unavailable; mentalhygiene orders issued by a magistrateshould be returnable to the mentalhygiene commissioner within a specifiedperiod of time.

19.2 Qualifications: The Supreme Courtshould provide more continuing legaleducation for magistrates.

19.3 Twenty-Four Hour On-Call: Everydefendant should have the opportunity tomake bail before having to go to jail.Therefore, the Legislature shouldrequire magistrates to be available 24hours a day. One way to meet this goalis to use the new “ATM” technologywhich would allow magistrates to holdproceedings by video conference. Thatway, a magistrate in one county could

57

hear proceedings occurring duringnighttime hours, weekends and holidaysin several counties.

Commentary: At the Commission’spublic forums, witnesses testified thatcriminal defendants often spend time injail awaiting a magistrate to call in,whereas if a magistrate were at thecourthouse 24 hours-a-day, thedefendant could make bond immediatelyand avoid jail time.

19.4 Setting Bail: The Legislature should seta uniform bail schedule; a defendant’sbail should be determined by the charge. Under a uniform schedule, themagistrate would not have to appear.The Legislature would need to determinewho, other than a magistrate, couldcollect bail money. However,magistrates should appear to set bailoutside of the uniform schedule at therequest of law enforcement or when thedefendant is charged with a violentoffense.

19.5 Uniformity: The Supreme Courtshould require that all magistrate rules beapplied uniformly in every county.Uniformity will prevent forum shopping.

Comments on the Commiss ion’sDeliberations: After debating the issuessurrounding the creation of a uniform bailschedule, the Commission voted to add thestatement that magistrates should appear to setbail where the defendant was charged with a“violent offense.”

58

INDEPENDENCE AND ACCOUNTABILITY

The greatest scourge an angry Heaven ever inflicted upon an ungratefuland a sinning people, was an ignorant, a corrupt, or a dependent Judiciary.

--JOHN MARSHALL

ISSUE 20: APPROPRIATENESS OFTHE JUDICIAL ELECTIONPROCESS/CONSIDERATION OFMERIT SELECTION

MAJORITY OPINION

Nationwide, judicial selection forappellate and general jurisdiction courts isaccomplished under four generally recognizedmethods. Eight states, including WestVirginia, utilize partisan elections for theselection of all of their appellate and trialjudges. Thirteen other states also select theirjudges by popular election, but on nonpartisanballots. In sixteen states, judges are chosen bymeans of a merit selection process involving anonpartisan nominating commission, typicallymade up of lawyers and members of the publicwho investigate and evaluate applicants for thebench. This nominating commission thensubmits the names of the most highly qualifiedapplicants to the governor of the state for finalselection. Five other states utilizegubernatorial or legislative appointment to thebench without a nominating commission.Finally, nine states employ a combination ofmerit selection and other methods (usuallypopular election) for selection of judges at

various appellate and trial court levels.

Currently, in West Virginia allSupreme Court justices, circuit judges andmagistrates are selected in partisan elections.Supreme Court justices are elected for 12-yearterms; circuit judges for 8-year terms; andmagistrates for 4-year terms. Family lawmasters are appointed by the Governor for 4-year terms.

Obtaining qualified, competent, fairand impartial judges is, of course, the centralconcern under any judicial selection method.The ongoing debate in this State, as well as inother states, focuses upon which selectionmethod best serves this end. The partisanelection system now used in West Virginiapreserves the electorate's choice of localjudges and the Supreme Court justices whoserve on a statewide basis. Concerns raisedabout this method of judicial selection includeimpartiality problems (real or perceived)arising from the political process when judicialcandidates must campaign for a position forwhich they are ultimately expected to remainimpartial. Much of this concern arises fromthe practice of financing these campaignsthrough contributions that often come from

59

lawyers and litigants.

Nonpartisan election of judges presentssimilar problems, but is considered to removesome of the political aspects from a campaign.Nonpartisan elections for judges are alsosometimes criticized because party affiliation isremoved from the limited information availableto voters regarding judicial candidates.Specifically, because judicial candidates areethically prohibited from stating their positionson (or "prejudging") particular issues,nonpartisan status further limits theinformation voters have about a candidate.Proponents of nonpartisan elections believe,however, that party affiliation should beconsidered irrelevant when selecting judgeswho are expected to act fairly and impartially.

Merit selection methods eliminate thecampaign and related financing issuespresented by the elective process. Meritselection is viewed as a screening processwhere the commission or other body makingthe initial selections has available a substantialamount of information about each applicantnot generally available to the public in ajudicial election. This selection method alsodraws from a larger pool of candidates sincemany well-qualified applicants are reluctant toengage in the popular election process. Meritselection, however, deprives voters of theirright to choose their own judges directly, andstill remains a "political" process in thenominating commission as well as in the finalappointment decision by the governor orlegislature. Retention elections are often usedin merit selection states after an appointedjudge's initial term, where the voters get tochoose whether to retain or reject theappointed judge. Critics of the meritselection/retention election process point outthat a sitting judge, whether it be an incumbent

by popular election or by merit selection, holdsa substantial advantage, and is not likely to beremoved from the bench absent somesignificant controversy regarding the judge'sperformance.

A political process is invariablyinvolved in whatever method is chosen for theselection of circuit court judges, whether it beby nominating commission and subsequentappointment or by popular election at thepolls. Although each system of judicialselection has its own positive and negativeattributes, the current method of selectingjudges by the vote of the electorate shouldremain as the principal method in this Stateunless and until another selection method isproven superior.

A system of merit selection is currentlyused on a voluntary basis under ExecutiveOrder of the Governor for the selection ofjudges to fill midterm vacancies. That processutilizes a nominating commission andsubsequent appointment by the Governor.This method appears workable and beneficial,and should continue in all vacancies occurringat the Supreme Court level as well as theCircuit Court level.

To ensure the appropriateness of thejudicial election process:

20.1 The State of West Virginia shouldcontinue to use the popular partisanelection system for the selection ofSupreme Court justices, circuit courtjudges and magistrates.

20.2 If a Unified Family Court judge systemis created by the Legislature, itsjudges should be selected in the samemanner as Supreme Court justices,

60

circuit court judges andmagistrates, that is, by partisanelection.

20.3 The Legislature should pursue acourse of action that would enable itto codify the system of selection andappointment of justices and judgescurrently utilized on a discretionarybasis under Executive Order of theGovernor to fill vacancies on theSupreme Court and in Circuit Courtsfor all midterm vacancies.

Comments on the Commissions Deliberations:The Commission spent considerable timereviewing and deliberating the Independenceand Accountability subcommittee’s proposedrecommendations. Those recommendationsincluded both a majority and a minority report.The subcommittee’s majority report wasapproved with two exceptions. First, themajority report recommended that judicialcandidates (justices, judges and magistrates)be elected on a nonpartisan basis. At theCommission’s October 13, 1998 meeting, alarge majority of those voting amended thatrecommendation, 20.1, to read as it does now.Second, the subcommittee’s majority reportrecommended that Unified Family Courtjudges be selected by a meritselection/retention election system. A largemajority of those voting amended therecommendation, 20.3, to read as it now.

The Independence and Accountabilitysubcommittee’s minority report included onlyone recommendation:

20.1m The Legislature, by proposedconstitutional amendment for voterapproval, should establish a meritselection and retention election method

for selection of all appellate and trialcourt judges in this State. Theconstitutional amendment shouldprovide for one judicial nominatingcommission for the Supreme Court ofAppeals (and any other intermediateappellate court later created); and onenominating commission for eachjudicial circuit. Appointment by theGovernor to an initial term would bemade from those qualified applicantsselected by the nominatingcommission. The appointed judgewould then be subject to retentionelection by majority vote for eachsubsequent term. If the voters chosenot to retain a particular judge, thenomination and appointment processwould begin over again.

A motion to amend recommendation20.1 with recommendation 20.1m was made atthe Commission’s October 13, 1998 meeting.That motion was defeated by a majority ofthose voting.

The Independence and Accountabilitysubcommittee’s minority report has been filedherein as a dissent to the Commission’srecommendations.

ISSUE 20: APPROPRIATENESS OFTHE JUDICIAL ELECTION PROCESS/CONSIDERATION OF MERITSELECTION

MINORITY OPINION

A minority of the Commission file thisdissenting opinion.

Our judicial system is based on theprinciple that an independent, fair and

61

competent judiciary will interpret and applythe laws that govern us. In this country, thepublic debate regarding various judicialselection methods is driven by two divergentvalues--judicial independence and judicialaccountability. While not diametric opposites,each of these values emphasizes differentfacets of the judicial role. Judicialindependence emphasizes the need foreffective isolation and separation of our judgesfrom political influences; while judicialaccountability focuses on the connectionbetween those who govern and thedemocratically governed. The method chosenfor selecting our judges, therefore, should bethe one that best serves the central values ofmaintaining the independence of the judiciary,under the leadership of judges who arequalified, competent and impartial decision-makers; yet also recognizes that some form ofaccountability to the people will prevent abuseof judicial powers.

The isolation required by judicialindependence is necessary to preserve theunbiased nature of judicial decisions. Suchdecisions must be based upon the legal meritsof each controversy, not personal favor, whimor other prejudicial influences. Judicialaccountability, on the other hand, emphasizesthe judge's responsibility to society as a wholeand its citizens. As with all public stewards,judges should be occasionally called upon torender an accounting of their stewardship.Merit selection of judges with judicialretention elections is the system of judicialselection best suited to keeping in properbalance the vital principles of judicialindependence and judicial accountability.

Merit selection is a way of choosingjudges that uses a nonpartisan commission ofpublic officials, lawyers and non-lawyers to

locate, investigate and evaluate applicants forjudgeships. The nominating commission thensubmits the names of the most highly qualifiedapplicants (usually three) to the appointingauthority (usually the governor), who mustmake a final selection from the list. Retentionelections for subsequent terms of office permitthe citizenry to determine whether eachappointed judge should continue in office orwhether the appointment process should beginanew.

West Virginia is one of only eightstates that utilize partisan elections for theselection of all of their appellate and trialjudges. Thirteen other states also select theirjudges by popular election, but on nonpartisanballots. These methods do not allow forrational judicial selection for several reasons.Elections are premised on the assumption thatthe public is well-informed about the judicialcandidates. In fact, it is common knowledgethat, principally due to the nature of judicialcampaigns, the public is largely uninformedabout judicial candidates, and in many casesmust simply rely upon name recognition as thebasis for voting decisions. Most incumbentjudges are easily re-elected and often rununopposed. Elections also discourage manywell-qualified people from seeking judicialoffice. Many qualified attorneys have aphilosophical distaste for politics and politicalcampaigning, and thus refrain from seekingoffice. Elections also compromise theindependence of the judiciary. Judicialofficers, unlike other elected officials, shouldnot be governed by political issues andpolicies. Judges should be left to impartiallyinterpret the laws made by the policy-makers.Finally, with regard to judicial elections, asignificant problem is presented by judges whomust campaign and seek campaigncontributions, often from the lawyers and

62

litigants who appear before them. Thesejudicial campaigns also interfere with gettingcourt business accomplished during re-electiontime.

A merit selection and retention systemfor choosing judges is better for the followingreasons:

a. Merit selection not only sifts outunqualified applicants, it searches outthe most qualified.

b. Judicial candidates are spared thepotentially compromising process ofparty slating, raising money andcampaigning.

c. Professional qualifications areemphasized and political credentialsare de-emphasized.

d. Judges chosen through merit selectiondo not find themselves trying casesbrought by attorneys who gave themcampaign contributions.

e. Highly qualified applicants will bemore willing to be selected and serveunder merit selection because they willnot have to compromise themselves toget elected.

f. A more diverse bench, inclusive ofwomen and minorities, will beencouraged.

Although no method can completelyeliminate politics, a merit selection/retentionsystem does spare candidates from thepotentially compromising process of raisingmoney and campaigning. This system givesthe public a better-informed voice through

participation on nominating commissions andvoting in retention elections. A substantialmajority of the states in this country use asystem of merit selection for choosing some orall members of the judiciary. In fact, in thisState, governors over the past decade haveutilized a nominating commission to selectqualified appointees to fill midterm vacancieson the trial court bench. While no system ofjudicial selection is perfect, the merit selectionand retention election method is best-suited tobalancing the central principles of judicialindependence and judicial accountability.

To ensure the appropriateness of thejudicial election process, a minority of theCommission makes the followingrecommendation:

20.1m The Legislature, by proposedconstitutional amendment for voterapproval, should establish a meritselection and retention election methodfor selection of all appellate and trialcourt judges in this State. Theconstitutional amendment shouldprovide for one judicial nominatingcommission for the Supreme Court ofAppeals (and any other intermediateappellate court later created); and onenominating commission for eachjudicial circuit. Appointment by theGovernor to an initial term would bemade from those qualified applicantsselected by the nominatingcommission. The appointed judgewould then be subject to retentionelection by majority vote for eachsubsequent term. If the voters chosenot to retain a particular judge, thenomination and appointment processwould begin over again.

63

Commentary: Judges are public officialsdifferent than the officials of the other twobranches of government--executive andlegislative. Judges are not makers of law orpolicy, but are to impartially interpret thelaw. Judges must interpret the law withoutthe pressures of day-to-day politics.

There is a high correlation betweenthe amount of money raised in a judicialcampaign and election. Judges should not beput in a position of raising money, that oftencomes from lawyers and litigants, a practicewhich undermines the perceived and actualimpartiality of the judiciary.

The lack of background andsignificant information on judicial candidatesavailable to voters, coupled with inability ofjudges to speak to specific issues because ofthe Code of Judicial Conduct, leads to anuninformed electorate when it comes tochoosing judges at the polls. By contrast, anominating commission under a meritselection system has the ability to carefullyscreen and investigate the qualifications,competency and fitness of every applicantseeking appointment to the bench.

ISSUE 21: ADEQUACY OF PUBLICEDUCATION AND COMMUNITYOUTREACH EFFORTS RELATEDTO THE COURTS

Much of what the public knows aboutthe courts is gleaned from either mediaaccounts of actual cases or fictional stories ofcourtroom drama in books, on television andat the movies. A lack of understanding abouthow the court system works, or worse,misperceptions about how judicial matters arehandled, can lead to significant publicdissatisfaction with the courts.

Citizens come into contact with thecourts at key points in their lives, such as whenthey are divorced, involved in a custody

dispute, or are a party to civil litigation.Citizens also come into contact with the courtsystem when they serve as jurors. Adequatejuror orientation prior to jury duty is criticallyimportant so that jurors can fairly andknowledgeably carry out their vital role asfact-finders.

Many different governmental bodieshave a role in educating the public about thejudicial system.

The State Board of Education requiressecondary schools to offer an elective coursein government.

The Young Lawyers section of theWest Virginia State Bar is in the process ofrevising and reissuing a basic informationbooklet on the magistrate court system for thegeneral public and litigants. There is a needfor development and distribution of a similarinformation booklet on civil and criminalmatters in circuit courts.

The Supreme Court has developed anInternet website for public access to SupremeCourt information. Moreover, the Courtrecently appointed an Information ServicesDirector to facilitate the flow of information tothe public and press, and to develop projectsfor public education and outreach regardingthe courts. Some projects being proposedinclude: a public education program--LegalAdvancement for West Virginia Students(LAWS)--involving local circuit courts andschools, culminating in Supreme Courtargument hearings in various locales;production, in association with West VirginiaPublic Radio, of a week-long series on theState's court system; the update of aninformational brochure on the Supreme Court;and the establishment of a regularly held media

64

day to promote greater understanding amongpress members regarding the workings of thecourts.

To ensure that there is adequate publiceducation and community outreach effortsrelated to the courts, the Commission makesthe following recommendations:

21.1 The efforts of the Supreme Court andthe State Bar directed toward publiceducation and community outreachshould be continued. The SupremeCourt’s LAWS program should becoordinated with the state and localboards of education as an adjunct tothe government course offered insecondary schools.

21.2 The Legislature and local courtsshould establish and expand parenteducation and mediation programsstatewide.

Commentary: Court-annexed mediationprograms are a valuable component of thejudicial system, as an alternative means ofearly and effective resolution of civil disputes,particularly those in the family law areaexcluding cases involving family violence.There is a need for more public educationregarding mediation and mediation programs.

21.3 The Supreme Court should design auniform comprehensive program forjuror orientation and then implement iton a statewide basis. Judges andcircuit clerks should be trained toprovide juror instruction under thisprogram.

21.4 The Supreme Court shouldencourage and assist local circuitcourts and magistrate courts to

establish programs to bring studentsinto the local courts, with the aid ofeach local bar, for educational sessionsculminating in mock trial participationby the students.

21.5 The Supreme Court and the StateBar, including its Young LawyersSection, should coordinate theirefforts and develop informationalbooklets and video tapes for publicdistribution that explain basic courtfunctions, procedures and operations.

ISSUE 22: RESPONSIBILITY FORI N D I G E N T D E F E N S EREPRESENTATION

Under the Sixth Amendment to theUnited States Constitution and under Article3, Section 14 of the West VirginiaConstitution, an indigent person must beprovided, without cost, an attorney torepresent him or her in the defense of acriminal, juvenile or other case involvingsignificant jeopardy to liberty or due processinterests of the indigent individual. In WestVirginia, the responsibility for indigentrepresentation is carried out by two methods.

First, the appointed counsel system,utilizing private attorneys, operates in all 55counties of the State. Approximately 800appointed counsel and service providers arereimbursed annually by the West VirginiaOffice of Public Defender Services (PDS) forfees and expenses incurred in therepresentation of indigents. The PDS officenow pays in excess of 28,000 bills per year.

The second method for providingindigent representation is through the Public

65

Defender Corporation system, that is overseenby the PDS. The Public Defender systemoperates 18 offices in 15 circuits (involving 23counties); each office operates as a non-profitlegal corporation with its own board ofdirectors. The system provides 102 full-timelawyers and 59 support personnel devotedexclusively to indigent defense.

The total number of cases handled byprivate appointed counsel and public defenderscontinues to increase, growing approximately16% per year. This increase stems from avariety of causes including: significantincreases in drug-related cases; increasedfilings involving domestic violence and childabuse and neglect; and the substantial increasein the number of State Police (over 200 newofficers) that has resulted in more arrests.

In each of the past eight years, the Public Defender offices handled cases at theaverage rate of less than $200 per case.Private appointed counsel costs have risenyearly over the same period, currentlyaveraging $545 per case. However, attorneysfees, whether charged by a public defender orappointed counsel, average $250 or less inalmost half (48%) of all cases. Becausecaseloads have continued to increasedramatically over the past several years,budget shortages of the funds necessary for thepayment for appointed counsel are a recurrentproblem.

To ensure adequate and cost-effectiveindigent defense representation, theCommission makes the followingrecommendations:

22.1 The Legislature should consideralternate methods of compensation forappointed private attorneys, such as

flat-rate contracts or part-timeemployment by Public Defenderoffices.

22.2 The Legislature should establishadditional Public Defender offices inthe counties most likely to achieve thegreatest cost savings and to avoidnegative economic impact on the localprivate bar.

22.3 Because conflicts of interest arise inmany criminal cases, so that both thePublic Defender office and privatecounsel must be appointed, the PublicDefender Corporat ions inconjunction with Public DefenderServices should establish a “separate-office method” to keep those cases inthe Public Defender office.

22.4 The Legislature should establish apilot project to study the accuracy ofself-reported financial information on“client eligibility affidavits” used todetermine whether or not an individualis indigent. The results of thatprogram would indicate whether astatewide audit program would resultin significant savings because fewerpersons would qualify for free attorneyrepresentation.

22.5 The Legislature should reviewwhether the current list of offenseswhere indigents must be providedcounsel without cost involve someproceedings where appointed counselis not constitutionally required. If suchproceedings are ident i f ied ,consideration should be given toeliminating them from the statutory listof cases where appointed counsel is

66

required. Child abuse andneglect and mental hygieneproceedings should not beconsidered in the Legislature’sreview.

22.6 Under its rule-making authority, theSupreme Court should require thatcircuit and magistrate courts schedulehearings and other court appearancesin criminal matters so as to reduce"waiting in court" time that increasescosts in appointed counsel cases.

22.7 The Legislature should adjustpenalties with regard to a number ofminor offenses so as to avoid possiblejail time and, therefore, the right tocounsel.

22.8 The Supreme Court should requirethat all judges assess costs against alldefendants whether or not thedefendants are represented by a PublicDefender.

Comments on the Commiss ion’sDeliberations: In view of the heightenedvulnerability and needs of participants in childabuse and neglect and mental healthproceedings, the Commission added the lastsentence to recommendation 22.5 whichremoves child abuse and neglect and mentalhygiene proceedings from the list of cases theLegislature should consider in its review.

Upon further review of theserecommendations, the Commission addedrecommendation 22.8.

ISSUE 23: ENFORCEMENT OFTHE ETHICS CODE

Public confidence in the courts, and theactual effectiveness of the judicial system, islargely dependent upon the ethical conduct andleadership of its judges. The West VirginiaSupreme Court of Appeals is required byArticle 8, Section 8 of the West VirginiaConstitution to use its inherent rule-makingpower to "from time-to-time, prescribe, adopt,promulgate, and amend rules prescribing ajudicial code of ethics, and a code ofregulations and standards of conduct andperformances for justices, judges andmagistrates, along with sanctions and penaltiesfor any violation thereof." Under thisconstitutional authority the Supreme Court "isauthorized to censure or temporarily suspendany justice, judge or magistrate having thejudicial power of the State, including one of itsown members, for any violation of any suchcode of ethics, code of regulations andstandards, or to retire any such justice, judgeor magistrate who is eligible for retirement."

Under the current constitutionalprovision the Supreme Court has no absoluteremoval authority (except in cases of disabilityretirement) in disciplinary cases involvingjudges, but the court does have the authorityto suspend a judge for up to one year.Ultimate removal authority should be left toexisting methods, including impeachment andthe ability of voters not to re-elect a particularjudge.

The Supreme Court has established theJudicial Investigation Commission(Commission) for the investigation andhandling of complaints against judicial officersincluding justices, judges, family law masters,mental hygiene commissioners andmagistrates. The Commission determineswhether probable cause exists to formallycharge a member of the judiciary with a

67

violation of the CODE OF JUDICIAL CONDUCT.If probable cause is found, the Commissioneither issues a written admonishment to thejudge, or in more serious circumstances, thematter is referred for further proceedingsbefore the Judicial Hearing Board. Followingproceedings before the Judicial Hearing Board,a recommendation is submitted to the SupremeCourt for its final determination of theappropriate sanction, if any.

One of the most problematiccomplaints heard by the Judicial InvestigationCommission arises from actions taken byjudicial candidates in conducting electioncampaigns. These complaints are often notresolved under the Commission’s normalprocedure until after an election has been wonor lost. Consequently, a need exists for thecreation of a system to promptly resolve thosecomplaints prior to election day. Theestablishment of an election committee to dealwith charges of judicial election violations inan expedited process would better addresscampaign conduct complaints.

A second problematic issue involvescampaign financing practices in judicialelections, where substantial amounts of moneyare raised from lawyers and litigants.Campaign fund-raising is a matter of publicconcern because the practice negatively affectsthe perception of fairness in the judicialsystem. However, the current rules of ethicsand procedure whereby judges are prohibitedfrom knowing who contributes to a judicialcampaign are sufficient safeguards as long asthey are strictly enforced. The suggestion of ablind trust procedure for election financingwould create more problems than solutions.

Utilization of the highest appellatecourt as the final arbiter of judicial ethics

complaints is common to virtually every state,and appears to be the most workable solutionin view of separation-of-powers issues as wellas other practical problems of establishing apanel of persons outside of the judiciary tomake findings and conclusions on judicialethics issues. Therefore, the currentprocedures for the handling of complaintsagainst judicial officers including justices,judges, family law masters, mental hygienecommissioners and magistrates through theJudicial Investigation Commission, the JudicialHearing Board and the Supreme Court ofAppeals is a workable and effective system inmost respects. However, the final sanctionsimposed upon judicial officers by the SupremeCourt in cases of judicial ethics violations areoften too light, and leave the public with theimpression that judges are above the law.

To ensure the enforcement of theethics code, the Futures Commission makesthe following recommendation:

23.1 The Supreme Court shouldpromulgate rules and procedures forthe establishment of an electioncommittee to deal promptly withcharges of election violations madeagainst judicial candidates, so that suchcharges are dealt with in anexpeditious fashion prior to electionswhere possible.

ISSUE 24: ACCOUNTABILITY OFJUDICIAL OFFICERS AND OTHERCOURT PERSONNEL

In the process of resolving criminalcharges and civil controversies in the judicialsystem, there will always be perceived"winners" and "losers" in every case. Theadversarial process leaves many litigants

68

dissatisfied with the final judgment. Aproperly functioning court system cannotprovide every litigant with his or her desiredfinal outcome, however, it can be expected toprovide a fair and regular process leading tothe final outcome.

It is well-documented that whenlitigants are afforded an opportunity to havetheir cases heard in the regular course ofestablished procedures with prompt hearingsand trials, views of fairness and satisfaction inthe judicial process are shared by both thewinners and losers. A vital part of this fair andregular process is the justified expectation thatjudges will render decisions in a timelymanner.

One of the greatest public concernsover the operation of the State's judicialsystem is delay in the judicial decision-makingprocess. Under both the CODE OF JUDICIAL

CONDUCT and the RULES ON TIME

STANDARDS, the judicial officers in this Stateare required to conduct case proceedings in areasonably prompt manner and renderdecisions in a timely fashion.

Litigants who believe that their casesare not being timely adjudicated have twooptions: (1) file an ethics complaint against thejudicial officer; or (2) petition a higher courtfor an order to compel the offending judicialofficer to proceed with the case. This order isknown as a “writ of mandamus.” However,the judicial ethics procedures and sanctions,while generally effective under mostcircumstances, are not well-suited to providerelief when a judicial officer fails to make atimely decision. Moreover, it is unfair torequire attorneys or parties in a particular caseto either file an ethics charge or a petition fora writ of mandamus when a judicial officer

fails to make a timely decision.

To ensure the accountability of judicialofficers, the Commission makes the followingrecommendations:

24.1 In order to provide a better system forenforcement of case processing timestandards, the Supreme Court shouldrequire "exception reporting" of allout-of-compliance cases to theAdministrative Office of Courts on aregular basis under a formalizedprocess.

24.2 The Supreme Court shouldspecifically define time standardviolations and promulgate a system ofimmediate and automatic sanctions tobe imposed when judicial officers areout-of-compliance.

ISSUE 25: FITNESS OF PHYSICALFACILITIES

Many of West Virginia’s countiessuffer from a lack of adequate court facilities.These inadequacies include insufficient space,poor design for functional efficiency andsecurity; inaccessibility for individuals withdisabilities; decentralized locations; andinsufficient parking spaces.

Adequate facilities for the fair andprompt administration of justice are a concernnot only of judges, lawyers and courtpersonnel, but also of central importance tothe citizens of this State whose lives andproperty are only as secure as the courts whichadjudicate and protect their rights. Theconcepts of efficient judicial operations andpublic confidence are closely related to thequestion of facilities. Poorly designed,

69

cramped or otherwise inadequate courtroomscan markedly reduce the efficiency of courtfunctions, and thereby diminish publicconfidence in the judiciary. Failure toadequately provide appropriate and well-designed space for supporting judicialpersonnel can seriously impair the competencyof the courts to resolve issues properly.

The cost of designing, building orotherwise providing, and maintaining a propercourthouse is the principal responsibility ofeach county, through its county commission;but that responsibility should also be shared bythe Judiciary and the Legislature for the benefitof all citizens in this State.

To date, neither the Supreme Courtnor the Legislature has adopted standards forcourt facilities. However, in 1994, theSupreme Court did promulgate STANDARDS

FOR FAMILY LAW MASTER FACILITIES toprovide beneficial guidance to local courts andcounty commissions in establishing appropriatefamily law master facilities.

Uniform minimum standards for allcourt facilities in the State need to bedeveloped and adopted. While justice is notguaranteed by adequate courthouse facilities,the absence of adequate facilities underminesthe effectiveness of the entire judicial system.

To ensure the fitness of courtfacilities, the Commission makes the followingrecommendations:

25.1 The Legislature should establish acourt facilities commission made up ofpersons with the expertise andbackground to establish minimumphysical facility standards.

25.2 Once minimum standards areestablished, each county commissionshould be required to file a proposedcompliance plan under the standards.Provision should be made for waiversor exemptions from this requirementwhen a county’s facilities alreadysatisfy the minimum standards.

25.3 The Legislature should establishfunding sources to providesupplemental funding for countycommissions to achieve compliancewith the minimum standards.

ISSUE 26: S U F F I C I E N C Y O FTRAINING OPPORTUNITIES FORJUDICIAL OFFICERS AND OTHERCOURT PERSONNEL

Adequate training for all judicialofficers and other court personnel is critical forthe proper functioning of any judicial system.Without initial training and continuingeducation regarding developing areas of thelaw, judicial officers and staff are left withoutthe fundamental guidance necessary for theproper performance of their duties. TheSupreme Court of Appeals, the AdministrativeOffice of Courts and the West Virginia JudicialAssociation have exhibited substantialdedication to the task of judicial training andcontinuing education for court officers andsupport personnel. Training programs forjudicial personnel are conducted separately foreach discipline or position, such as family lawmaster training, probation officer training,magistrate assistant training, judicial secretarytraining, etc.

Current educat ional / t rainingrequirements and opportunities for existingSupreme Court justices and circuit judges are

70

adequately provided through the cooperativeefforts of the Supreme Court AdministrativeOffice and the West Virginia JudicialAssociation in accordance with the court rulesrequiring continuing judicial education.Justices and judges attend two 3-to-4-day-longeducation seminars annually. Newly elected orappointed judges attend the Supreme Court’s“New Judge Orientation Program” and,additionally, are offered the opportunity totake specialized training courses at either theNational Judicial College or the AmericanAcademy of Judicial Education; judicialofficers are not required to take this training.

Magistrates are currently provided one,2-3 day training seminar annually; additionaltraining is needed to provide timely training onnew and amended legislation.

Under a new program established bythe Supreme Court, in the next few years allcircuit judges will be provided law clerks; thefirst ten of those law clerks began work duringAugust 1998. A system of formalized trainingfor these law clerks has been put into place bythe Supreme Court’s Office of Counsel.

All court officers and staff wouldbenefit from interdisciplinary regional meetingsor training sessions that would include alljudicial officers and staff from each county orcircuit. Moreover, it is vital that the Courttrain judicial officers and court personnelabout issues relating to all forms of familyviolence including child abuse and neglect andelder abuse.

To ensure the sufficiency of trainingopportunities for judicial officers and othercourt personnel, the Commission makes thefollowing recommendations:

26.1 The Supreme Court through itsAdministrative Office of Courts shouldprovide a second training session forMagistrates each year, to be heldshortly after the conclusion of thelegislative session, to provide updateson changes in the law.

26.2 Under its rule-making authority, theSupreme Court should require newlyelected and appointed judges to takespecialized training courses.

26.3 The Supreme Court should considerproviding more training sessions forjudicial secretaries and other supportpersonnel.

26.4 The Supreme Court’s trainingprogram for all existing and newcircuit court law clerks should beexpanded to include at least once-annual training sessions. This trainingcould, in part, satisfy the State Bar’scont inu ing lega l educa t ionrequirements applicable to all licensedattorneys in this state.

ADMINISTRATIVE ORDER

SUPREME COURT OF APPEALS OF WEST VIRGINIA

WHEREAS, the West Virginia Supreme Court of Appeals is committed to a court system whichis fair, accessible, efficient, and accountable; and

WHEREAS, it is the responsibility of the Court as a public institution to ensure that it effectivelymeets the needs of the citizens which it serves; and

WHEREAS, the structure and procedures of the West Virginia Judicial System have not beensubject to a thorough, critical examination since the "Judicial Reorganization Amendment" of1974; and

WHEREAS, transformations in the social and cultural landscape in the ensuing twenty years havedramatically changed the nature of the problems which the court system is being asked to resolve;

NOW, THEREFORE, IT IS ORDERED that the Chief Justice appoint a Commission on theFuture of the West Virginia Judicial System and direct that it:

(1) Examine the trends, both internal and external to the court system, which are affecting the roleof the court as an institution and the delivery of its services;

(2) Assess the performance of the court system in light of established standards of fairness,accessibility, timeliness, and accountability;

(3) Identify the strengths upon which to build as well as the obstacles to overcome to enable thecourt system to improve its performance;

(4) Make recommendations as to structural, organizational, and procedural changes that willensure a just, effective, responsive, and efficient court system into the next century; and

(5) Develop a general plan to implement the recommendations; and

IT IS FURTHER ORDERED that in this endeavor the Commission consider the experiencesand perspectives not only of the judicial officers and others who work within the system, but alsothose individuals, organizations, and agencies that are served by the court system; and

IT IS FURTHER ORDERED that the Commission submit its deliberations andrecommendations to the Supreme Court of Appeals in the form of a final report by December 1,1998.

ENTER: OCTOBER 2, 1997

APPENDIX B

WEST VIRGINIA’S COURT SYSTEM: YESTERDAY AND TODAY

THE 1863 CONSTITUTION

The West Virginia Supreme Court of Appeals and the State’s first courts of limitedjurisdiction were established by the 1863 Constitution. Initially, the Supreme Court was manned byonly four justices. The first courts of limited jurisdiction were based on a township system; eachtownship elected a local justice to handle civil claims and criminal misdemeanors. Ten years later,during the 1872 Constitutional Convention, the township courts were abandoned in favor of countycourts. A justice of the peace system, similar to the one used in Virginia since 1661, was alsoestablished at the same time to handle small claims. The justices of the peace were paid from feescollected in their courts.

The 1880 judicial amendment to the West Virginia Constitution removed most of the countycourts’ judicial function but left the justice of the peace system intact.

THE 1974 JUDICIAL REORGANIZATION AMENDMENT

The court system established by the 1880 judicial amendment remained substantiallyunchanged for over a century. In fact, the only change of note was the 1904 addition of a fifth justiceto the bench of the Supreme Court of Appeals. Consequently, by the 1960s, a hodgepodgecollection of statutorily mandated courts existed alongside the justice of the peace courts, neither ofwhich were supervised nor assisted by the Supreme Court of Appeals. Moreover, jurisdiction andappellate process was overlapping and confusing.

In 1967, a citizens committee frustrated by the inefficiency of that antiquated system met inCharleston with the goal of formulating a modern judicial model for the State’s courts. Prominentcitizens from around the State were invited to participate in this landmark work. The resultingconstitutional amendment, known as the Judicial Reorganization Amendment, was ratified by generalelection on November 5, 1974.

Among other things, the Judicial Reorganization Amendment

! unified the State’s lower courts under the administrative supervision of the Supreme Court of Appeals;

! collapsed intermediate statutory courts of record into the circuit courts; ! abolished the Justice of the Peace Courts;! mandated creation of a magistrate court system; and ! converted county courts into county commissions.

B - 2

In effect, the Judicial Reorganization amendment secured a more businesslike managementof the courts and promoted simplified and more economical judicial procedures.

CURRENT STRUCTURE

Since 1974, West Virginia has operated a uniform, statewide court system consisting of theSupreme Court of Appeals and the trial courts: circuit court; magistrate court; and municipal court.

The Supreme Court of Appeals

The Supreme Court of Appeals of West Virginia, comprised of five justices elected to twelveyear terms, is the court of last resort. In addition to its extraordinary writ powers, it has appellatejurisdiction over all matters decided in the circuit courts, including criminal convictions affirmed onappeal from magistrate court.

The Circuit Courts

The circuit courts are courts of general jurisdiction. They have jurisdiction over all civil casesat law exceeding $300; all civil cases in equity; proceedings in habeas corpus, mandamus, quowarranto, prohibition and certiorari; and all felonies and misdemeanors. The State is divided into 31circuits; each circuit is comprised of from one to four counties. There are currently 62 circuit courtjudges. The circuits are to be evaluated for redistricting in 1999.

The circuit courts also receive recommended orders from special masters appointed to reviewfamily law, mental hygiene and juvenile matters.

West Virginia has 14 full-time and 13 part-time family law masters in 17 regions. The FamilyLaw Master regions are to be evaluated for redistricting in 1998. Family law masters hear casesinvolving divorce, child custody and support.

There is one Mental Hygiene Commissioner in each of the State’s 55 counties. TheseCommissioners make recommendations regarding conservatorships and guardianships, a functionformerly served by County Commissions.

West Virginia has two full time juvenile referees located in Charleston and Huntington.Juvenile referees hold detention hearings when a child is arrested or taken into custody.

The Magistrate Courts

Magistrate Courts, known as courts of limited jurisdiction, hear all misdemeanors andconduct preliminary examination in felony cases. Their civil jurisdiction extends to matters involving$5,000 or less. There is a magistrate court in each of the State’s 55 counties. The number of

B - 3

magistrates per county varies from two to ten. West Virginia currently employs 157 magistrates; themagistrate’s term of office is four years.

The Municipal Courts

The jurisdiction of municipal courts is constitutionally limited to those cases involvingordinance violations. Municipal courts are administered locally. There are 122 municipal judgesstatewide.

Appendix C

Recap of the Commissions Nine Public Hearings C-1

Court Personnel Survey C-3

State Bar Survey C-4

State Bar Survey - Statistics C-6

Juror Service Exit Questionnaire C-7

Juror Service Exit Questionnaire - Report C-9

RECAP OF THE COMMISSION’S NINE PUBLIC HEARINGS

The MARTINSBURG FORUM was held on Tuesday, November 4, 1997. Laura Rose,President of the West Virginia Trial Lawyers Association, served as moderator. Twenty of thesixty-six persons in attendance addressed the Commission. Included among the speakers were:James Tolbert, President of the West Virginia Chapter of the NAACP; Richard L. Douglas,Chairman of the Child Support Enforcement Division of DHHR; Vicki Douglas, LegislativeRepresentative from the 52nd District; and Mike Thompson, Prosecuting Attorney from JeffersonCounty. Twelve of the speakers addressed family law or the need for a family court. Six personsaddressed the judicial election process. Other comments focused on juvenile justice, access, pleabargaining, advanced technology, establishment of an intermediate court of appeals, bias in thecourts, alternative dispute resolution, order enforcement, and frivolous lawsuits.

Held on Wednesday, November 5, 1997, the MORGANTOWN FORUM was moderatedby Jack Rogers, Executive Director of the Public Defender Corporation. The Morgantown forumwas unique in that many of the 48 attendees were either members of the bar or court employees.Four of the ten speakers discussed the judicial election process. Two persons discussed the needto enforce time standards. Other topics of discussion included the need for a family court or morefamily law masters, bail bondsman, private process servers, and circuit court rules. Among thespeakers were: Professor Forest J. Bowman, President of the West Virginia Bar Association;Attorneys Chilton Wise and Wesley Metheny; Process Server, Allen Spiker; and Bail Bondsman,David Shane.

The ELKINS FORUM, moderated by Karen Lukens, Past-President of the League ofWomen Voters, was held on Thursday, November 6, 1997. With 45 persons in attendance, theElkins forum had a markedly different flavor than that of the previous two forums. Only one ofthe eleven speakers, Karla Schartiger of Elkins Women’s Aid in Crisis, represented a publicgroup. Moreover, despite the specifically stated caveat that the Commission could not assist withindividual cases, the majority of the speakers discussed a specific case. Most of these casesinvolved a non-custodial father and the family law master system. A few other issues wereaddressed, including widow/widowers’ rights, the judicial election process, domestic violence, andthe need for an intermediate court of appeals.

The BECKLEY FORUM was held on Wednesday, November 12, 1997. The moderatorwas the Honorable William Wooton, Judicial Chair of the West Virginia Senate. Six of the 29persons in attendance addressed the Commission. All six speakers addressed family law ordomestic violence matters. Four of the six speakers related issues arising out of their own cases,which included judicial compliance with time standards, gender bias, judicial accountability, and apro se litigant’s experience in navigating the system. The two remaining speakers, Gloria Martin,Advocate at the Family Refuge Center in Lewisburg, and Wilma Cook of Beckley’s Women’sResource Center, addressed domestic violence issues, which included courthouse security, judicialtraining, and accessability.

The CHARLESTON FORUM, held on Thursday, November 13, 1997, tied with

C-2

Martinsburg for the greatest number of speakers and tied with Parkersburg for the largestattendance. Otis Cox, Secretary of the Department of Military Affairs and Public Safety, servedas moderator. Twenty of the eighty attendees addressed comments to the Commission. Speakersincluded: Barbara Baxter, Bar Commission on Children and the Law; Sue Julian, Co-Chair of theCoalition Against Domestic Violence; Ellender Stanchina, President of the League of WomenVoters; C. Page Hamrick, family law master, and several persons representing various fathers’rights groups. Seven speakers discussed the family law master system, and four persons discussedvictim/ victim’s family’s rights in criminal cases. At least two speakers addressed each of thefollowing issues: procedure in abuse and neglect cases, domestic violence, the judicial electionprocess, and recusal procedure.

Held on Tuesday, November 18, 1997, the LOGAN FORUM had the lightest attendanceof the eight forums, with 21 attendees. Moderator, D. C. Offutt, Jr., President of the WestVirginia State Bar, accepted comments from six speakers. All but one speaker focused his or hercomments on the FAMILY LAW MASTER system. Specifically addressed were: the proceduresurrounding temporary protective orders; judicial accountability; and enforcement of visitationorders. Two of the six speakers had previously presented their comments regarding gender biasand fathers’ rights at the Charleston forum.

The WHEELING FORUM, held on Wednesday, November 19, 1997, was the shortest ofthe eight forums. Moderator, Tom Tinder, Executive Director of the West Virginia State Bar,received comments from four of the 23 persons in attendance. Two speakers addressed thejudicial election process, one speaker proposed jury nullification, and another discussed tortreform.

The PARKERSBURG FORUM, held on Thursday, November 20, 1997, was the last ofthe eight forums. Although matching the Charleston figure for largest in attendance, theParkersburg forum was unique in that none of its speakers represented public groups. Moderator,Bruce Perrone, Executive Director of the Legal Aid Society of Charleston, took comments from16 of the 80 people in attendance. Seven of the sixteen speakers discussed fathers’ rights inrelation to family law masters. Four of those speakers had already spoken at another forum. Inaddition to the family law master system, the other most frequently addressed issues were childabuse and neglect proceedings, the proposed amendments to West Virginia’s Rules of CivilProcedure, and the possible creation of an intermediate court of appeals.

The HUNTINGTON FORUM was held on Thursday, January 15, 1998. Of the 12 peoplein attendance, only one speaker addressed comments to the Commission. That speaker, JackVital, appearing on behalf of the Judicial Improvement Commission of the State Bar, made 17specific recommendations regarding the jury system.

COMMISSION ON THE FUTURE OF THE WEST VIRGINIA JUDICIAL SYSTEM

C-3

COURT PERSONNEL SURVEY

As part of its ongoing effort to identify the most significant and crucial issues facing ourcourt system, the Commission on the Future of the West Virginia Judicial System is asking allcourt personnel to complete the survey included below. Your experience and perspective makesyou uniquely qualified to assist the Commission in its work. You need not identify yourself byname, but please indicate your position title (probation officer, magistrate assistant, etc.) In thespace provided. Please return the survey form to the Administrative Office by February 15,1998.

Position Title:

Please list and briefly describe the three most important issues you believe the judicial system mustaddress to ensure that it effectively and efficiently provides its services to the public into the nextcentury. These issues may be structural or procedural--nothing is “off-limits.” In formulatingyour responses, you may want to consider questions of access to the courts, the timeliness ofproceedings and decision-making, fairness, independence of the judiciary, and accountability ofthe system ans system participants.

(1)

(2)

(3)

Please list and briefly describe any changes or solutions might suggest to address the issues youhave identified.

C-4

COMMISSION ON THE FUTURE OF THE WEST VIRGINIA JUDICIAL SYSTEM

STATE BAR SURVEY

The following is a list of the issues most frequently addressed at the nine public hearings anddiscussed in written submissions to the Commission. Please indicate which of these issues you believe arethe most important for the Commission to consider by selecting the top five and ranking them by placing a 1(most important) through 5 (least important of the five) in the space provided to the left of the issuestatement.

Physical, economic and procedural barriers to access to the courts and special problemsfacing unrepresented litigants.

Coordination of court services in cases involving families and children and theavailability of social and other support services in these cases.

Training of court personnel and uniformity of procedures in the area of domestic violence.

The need for, and role of, an intermediate court of appeals.

The current system of judicial elections, including the use of partisan ballots and fund-raising.

Merit selection/appointment of judges.

Broader, more representative jury panels and better-informed jurors.

The use of alternative dispute resolution mechanisms in the courts, especially the role ofmediation in domestic relations cases.

Greater accountability for all judicial officers.

Recognition of the rights of victims in criminal prosecutions, especially the plea bargainingphase, and in juvenile proceedings.

The level of security for the public and court personnel at all levels and locations of thecourt.

Tort reform.

Juvenile case processing, especially treatment and placement options.

The use of technology in the courts.

Uniform statewide policies, rules and procedures in the courts.

Delay in case processing.

Biased and disparate treatment in the courts.

Please list and briefly describe any other issues you believe the judicial system must address toensure that it effectively and efficiently provides its services to the public into the next century. These issuesmay be structural or procedural -- nothing is “off-limits.” In formulating your responses, you may want toconsider questions of access to the courts, the timeliness of proceedings and decision-making, independence

C-5

of the judiciary, and accountability of the system and system participants.

(1) ______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

(2) ______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

(3) ______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

Please list and briefly describe any changes or solutions you might suggest to address the issues you haveidentified.

____________________________________________________________________________________

____________________________________________________________________________________

____________________________________________________________________________________

____________________________________________________________________________________

PLEASE RETURN TO THE ADMINISTRATIVE OFFICE IN THE ENVELOPE PROVIDEDBY

FEBRUARY 23, 1998THANK YOU FOR YOUR ASSISTANCE

STATE BAR SURVEYN = 409

C-6

Issue

Percent ofRespondents

Ranking in Top 5

Percent ofRespondents

Ranking as No. 1AverageRank*

ModalRank*

Merit Selection of JudicialOfficers

49% (202) 15% (61) 2.5 1

Intermediate AppellateCourt

49% (202) 14% (59) 2.6 1

Uniform Rules andProcedures

46% (187) 9% (37) 3.0 4

Judicial Elections 43% (178) 11% (44) 2.6 2

Accountability of JudicialOfficers

40% (163) 6% (23) 3.1 3

Alternative DisputeResolution

37% (154) 7% (30) 3.1 4

Bias and DisparateTreatment

32% (131) 6% (23) 3.2 5

Coordination of FamilyLaw Cases

31% (125) 8% (32) 2.8 1

Delay in Case Processing 23% (93) 6% (25) 2.9 1

Jury Representation 22% (91) 3% (12) 3.2 3

Juvenile Case Processingand Treatment

20% (84) 3% (13) 3.1 4

Tort Reform 20% (83) 4% (17) 3.1 5

Use of Technology in theCourts

20% (82) 2% (6) 3.7 5

Barriers to Access to theCourts

17% (71) 3% (12) 3.1 4

Domestic Violence 14% (59) 1% (4) 3.5 4

Security 13% (52) 2% (7) 3.5 5

Victim Rights 11% (45) 1% (4) 3.6 5

*Average and modal rank among those respondents ranking the issue in the top 5.

C-9

INTRODUCTION

As part of the data collection effort for the Commission on the Future of the West VirginiaJudicial System, the circuit courts of the State were asked to distribute exit questionnaires to allpetit jurors serving in their courts for the period of December 1997 through March 1998. A copyof the questionnaire is included as Appendix A. The questionnaire was designed to gatherinformation on juror utilization as well as selected demographic and attitudinal data.

This analysis is based on the more than 1400 questionnaires received as of April 30, 1998. The sample includes 31 of the 55 counties and represents a fair cross section of larger, more urbancourts and smaller rural jurisdictions. It is important to note that the sample consists of jurorswho have performed jury service; that is, they have been summoned, qualified, and reported to thecourt at least once. Therefore, it is not necessarily representative of the master list in itsdemographics, or reflective of the larger pool of potential jurors who were summoned but wereeither disqualified or excused from service. In addition, the sample is from a limited time period. While there is no reason to believe that jurors in service during other times of the year would beremarkably different in terms of their demographic characteristics, service patterns, or reactions tojury duty, there is always the possibility that there may be some seasonal variation in thecomposition and responses of the potential juror pool.

As appropriate, the descriptive analysis is examined based on the length of the jurors’ termof service and whether or not the juror actually served on a trial during the period. The length ofthe term of service is differentiated because it is an important factor in jurors’ willingness andability to serve, it determines the burden which jury duty poses on employers and the community,and it influences the representativeness and inclusiveness of the juror pool. For purposes of theanalysis, a “short” term of service was defined as any period of six weeks or less. Participation ina trial is isolated since it has been shown in national level research to have a significant impact onattitude toward service and willingness to serve again. It appears that actually serving on a trialinstills a certain faith in the system and makes jurors feel that their time is well spent.

JUROR POOL PROFILE

The promise of a jury of one’s peers is a hallmark of our nation’s justice system. Thesample of jurors completing exit questionnaires provides some insight into the composition andbalance of the available juror pool in the State. It should be noted that comparisons withdemographic data derived from the 1990 Census is for illustrative and benchmark purposes onlyand is not meant to imply any statistically significant differences or similarities. There are multiplereasons why there would not be a perfect correspondence between the makeup of the generalpopulation and the characteristics of the pool of jurors in service at any given time.

C-10

Generally, the sex division of thejuror pool parallels the breakdown bysex in the population as a whole. Fifty-five percent of the potential jurors werefemale, and 45% were male ascompared to a 52% female and 48%male division in the population as awhole. As Figure 1 shows, however,the age distribution is somewhatskewed from the general population. The juror pool tends to have lessrepresentatives from the younger andolder age groups than the overallpopulation distribution would suggest. The under representation of those 65years of age and older is no doubtlargely the result of the automatic

excuse granted upon request from those in this category, as well as the qualification thatindividuals be physically and mentally able to perform service. The inclusion of 18-to-24 year-olds may be diminished by their absence from voter registration and driver license lists, thesources of the master list. Clearly the majority of jurors in the pool are disproportionately fromthe 35 to 54 age group.

The racial composition of the juror pool closely mirrors the racial mix of the population asa whole. Three percent of West Virginia’s population is African American and 1% is of otherethnic or racial background. Two percent of the sample juror pool is African American and closeto 1% is of other racial or ethnic origin.

As shown in Figure 2, the majority of prospective jurors (67%) are employed either full orpart time. Only 8% are self employed, while 11% are retired and 10% are homemakers. Unemployed individuals and students are a negligible part of the pool. Although there is no

directly comparable Census data,statewide estimates on “employment”show approximately 53% of thepopulation in the labor force and 9%unemployed.

C-11

Approximately half of the prospective jurors have a college degree or at least one year ofcollege level courses. Only 10% lack a high school diploma. As Figure 3 shows, the juror pool isbetter educated and more likely to have completed some level of higher education than the generalpopulation. Census figures indicate that 33% of the population lacks a high school diploma, 36%has a high school education, and only 30% has some college or a college degree.

There is nosignificant variation on these demographic patterns among those jurors who served on one ormore trials during the term or among jurors who served a shorter term of jury duty.

JUROR SERVICE PATTERNS

The average juror reported for service on 3 days during the term. Only 5% of the jurorswere called into court on 10 or more days. Short-term-of-service jurors were more likely to havecome to court more than the average number of days, while long-term jurors were more likely tohave reported on only one day.

The average juror participated in 2 jury selections during the term. Fourteen percent ofthe jurors who reported were never involved in the selection process, while only 9% of the jurorsparticipated in 5 or more voir dires while in service. The term of service bore no relationship tothe likelihood of participating in a voir dire.

As shown in Figure 4, 46% of the jurors in service during the period were never impaneledon a jury. One-third were seated in only one trial and an additional 12% in two trials. Less than10% participated in 3 or more trials during the period. Performance in this regard is slightlybetter than the national standard on juror utilization which calls for at least 50% of the availablejuror pool to be involved in a trial. The likelihood of serving on a jury was not related to thelength of the term of service.

C-12

Excessive time spent waiting while on jury duty is one of the most commonly heldstereotypes about service. The data suggests that this was part of the experience for those inservice during the period under study. While 43% of the jurors reported that they spent less than50% of their time waiting, 22% said they spent almost all of their time in service waiting to beutilized, and more than one-third estimated time waiting to be between 50% and 75% of theirtotal time in service. The length of term of service did not noticeably affect the jurors perceptionsin this regard.

Jurors who participated in at least one trial during their service had a different impressionof the amount of time spent waiting than the overall sample. More than three-quarters estimatedit to be 50% or less of their time in service while only 5% reported that they spent almost all oftheir time waiting. Figure 5 compares these responses.

C-13

ATTITUDES TOWARDS JURY SERVICE

Jurors’ attitudes about their experience in service is one predictor of whether they will bewilling to serve again if summoned. Clearly, jurors in the sample were positive in their evaluationof jury duty. As shown in Figure 6, when asked about their impression of jury service, more thanhalf of the jurors reported that it was favorable and an additional one-third said it was morefavorable than before they had served. Only slightly more than 10% said their impression of juryduty was unfavorable or less favorable than before they had served. These results did not varybased on whether the jurors had served on a trial or by the length of the term of service.

Despite the overallpositive review, almost one-fifth of the jurors reported that service had posed a hardship for them.These jurors were more likely to express an unfavorable view of jury duty than the pool. Inwritten comments submitted with the questionnaires jurors cited such factors as the uncertainty ofthe schedule, the impact on their job, and most notably the loss of income or other monetary costincurred as the result of service.

FINANCIAL IMPACT OF SERVICE

The exit questionnaire attempted to ascertain the financial impact of jury duty on thosewho serve. Obtaining estimates from this instrument is flawed, however, in that it is likely thatthose who stand to lose the most or incur the greatest expense are excused from service and donot ever report to the court. Even so, 18% of those completing the questionnaire reported thatthey lost income as the result of service. Estimates of the amount lost per day varied widely, butaveraged around $50 per day. Twenty percent of the jurors reported that their employer did notpay them while they were in service.

The majority of jurors reported no expenses incurred as the result of service. Approximately 25% said they paid from $.50 to $5.00 per day for parking and another 40%

C-14

reported meal expenses averaging around $5.00. Only a very small percentages of jurors reportedtransportation, child care, or other expenses incurred as a result of service. Again, it may be thatthose who faced a substantial burden in this regard were excused.

RATINGS OF AMENITIES

As part of the exit survey process, jurors were asked to rate certain aspects of jury serviceon a scale from “excellent” to “poor.” Figure 7 shows the percentage of jurors rating a variety ofphysical and other factors associated with jury duty as excellent or good. Of note in this chart isthe overwhelming percentage of jurors--97%--rating treatment by court personnel as excellent orgood. In fact, a full 70% rated this aspect as excellent. National level research indicates thattreatment by personnel is a primary factor influencing overall impressions of jury service.

Orientation and the juror handbook made available through the Administrative Office ofthe WVSCOA were also well received in the sample, although the majority of responses were inthe “good” rather than the “excellent” range on these items. It should also be noted thatapproximately 20% of the jurors were in courts that do not distribute the handbook.

Some aspects of service rated by the jurors are not under the direct control of the court orits personnel, but are a function of a courthouse’s physical accommodations. In most courthousesin the State, jurors must wait in the courtroom, there is no assembly area, and facilities for eatingand parking are limited. Therefore, it is not surprising that these amenities would receive lowermarks. Physical comfort was rated as only adequate or poor by almost one-third of the jurors,and more than 50% ranked parking and eating facilities as merely “adequate” or “poor”. On thepositive side, the lack of physical and other comforts did not detract from jurors perceptions oftheir personal safety. Only 10% rated personal safety as adequate or poor.

Jurors’ ratings of thescheduling of their time

C-15

received somewhat mixed reviews. While two-thirds of the jurors gave it high marks, anotherquarter ranked it as adequate and the remaining 10% as poor.

APPENDIX DINDEX OF RECOMMENDATIONS BY GOVERNMENTAL BODY

Issue SupremeCourt

WV Leg Co Comm’n State Bar Others

1 1.11.21.31.4

1.2 1.2 (legal assistance)1.4 (court clerks)

2 2.22.2

2.22.32.42.5

2.4

3 3.13.23.33.4

3.13.2

4 4.1 4.24.3

5 5.15.2

6 6.26.36.46.56.66.8

6.1 6.6 (Division of CJS)6.6 (WVAV)6.7 (prosecutors)

7 7.17.27.37.47.6

7.17.27.57.8

7.17.57.8

7.3 (sheriffs)7.7 (CSB)

8 8.18.2

D-2

9 9.19.59.69.79.8

9.19.29.39.4

Issue SupremeCourt

WV Leg Co Comm’n State Bar Others

10 10.110.210.310.610.7

10.410.5

10.6 10.3 (RJ/CFA)10.7 (CIOB)

11 11.111.211.311.411.5

11.5 11.4 11.2 (O of T)11.2 (DHHR)11.6 (WVU C of L)11.6 (WVUCLE)

12 12.112.212.312.412.512.6

13 13.113.213.313.413.5

13.2 (O of T)

14 14.214.314.414.514.6

14.114.414.7

D-3

15 15.115.415.5

15.115.215.315.415.5

15.1 (WV ADRC)

16 16.5 16.116.316.416.5

16.2 (DHHR OBHS)

D-4

Issue SupremeCourt

WV Leg CoComm’n

StateBar

Others

17 7.1 17.117.217.317.4

17.1 (State Police)17.1 (DOC)

18 18.118.218.318.418.5

18.5 18.3

19 19.219.5

19.119.319.4

20 20.220.3

20.1 (State)

21 21.121.3

21.2 21.1 21.2 (circuits)

22 22.622.8

22.122.222.422.522.7

22.3 (PDS/PDC)

23 23.1

24 24.124.2

25 25.125.3

25.2

26 26.126.226.326.4

Totals 77 49 7 7 23

iv

ACKNOWLEDGMENTS

The Commission received a great deal of assistance throughout its deliberations. To all the interestedcitizens, members of the Bar, faculty of the College of Law, judicial officers, and other courtpersonnel who participated in the public hearings, responded to surveys, joined in the focus group,wrote or otherwise provided information, we extend our appreciation.

We are indebted to Dr. Dan Straub of the National Center for State Courts who facilitated themeetings and assisted in the development of the conceptual framework and plan for our work.

Special thanks are due those who chaired the four subcommittees and the staff attorneys who assistedthem.

D.C. Offutt, Access to Justice Subcommittee ChairKeith Jones, Staff Attorney

Catherine Munster, Expedition and Timeliness Subcommittee ChairSusan Perry, Staff Attorney

Elaine Harris, Equality, Fairness, and Integrity Subcommittee ChairJulia Hurney, Staff Attorney

Tom Tinder, Independence and Accountability Subcommittee ChairJohn Hedges, Staff Attorney

Finally, we extend our appreciation for the competent and diligent assistance of the staff of TheAdministrative Office of the Courts.

Ted Philyaw, Administrative Director

Mary Durkin, Deputy Director

Alison Chambers, Attorney and Commission Liaison

Pepper Bryan, Administrative Secretary

Pam McCracken, Administrative Assistant