West Virginia Judiciary

Rules of Appellate Procedure

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Part IV. Original Jurisdiction and Certified Questions

 

Table of Contents Full Table of Contents
  1. Original jurisdiction
  2. Certified questions

Original jurisdiction
  1. Applicability. This rule governs all cases seeking a writ of mandamus, prohibition, habeas corpus, or certiorari under the original jurisdiction of the Supreme Court. Issuance by the Court of an extraordinary writ is not a matter of right, but of discretion sparingly exercised.
  2. Docketing the petition. An original jurisdiction action will be docketed upon the timely and proper filing with the Clerk of the Supreme Court of an original and the number of copies required by Rule 38 of: (1) a petition in the format set forth in subsection (d) of this Rule; and (2) an appendix prepared in accordance with subsection (e) of this Rule.
  3. Service. One copy of the petition and appendix shall be served, in accordance with Rule 37, on each of the respondents. If one or more of the respondents is an elected or appointed judicial officer, one copy of the petition and appendix shall be mailed or otherwise provided to the office of the elected or appointed judicial officer. If one or more of the respondents is an official of the State, or if the petition seeks relief based upon an argument that a statute, rule or other practice is unconstitutional under the state or federal constitution, the petitioner shall, in addition to service under Rule 37, serve a copy of the petition and appendix upon the Attorney General of the State of West Virginia at: State Capitol, Room E-26, 1900 Kanawha Blvd. East, Charleston WV 25305. If one or more of the respondents is a county official, the petitioner shall serve one copy of the petition and appendix upon the prosecuting attorney of such county.  A petition seeking expedited or emergency relief must be served upon all respondents contemporaneously with the filing of such petition with the Clerk, and the petitioner must provide adequate proof of such contemporaneous service.
  4. Contents of petition. The petition shall be captioned: "State of West Virginia ex rel. [name of petitioner] v. [name of respondent(s)]". In the case of a petition for mandamus or prohibition involving an action pending in a lower tribunal, the petition shall name the presiding judicial officer of the lower tribunal as a respondent in the action. In the case of a petition for writ of habeas corpus, the petition shall name the person having custody of the body of the petitioner as the respondent. An original jurisdiction petition shall, insofar as applicable, follow the format requirements prescribed by Rule 10 and Rule 40(e), and contain the following sections in the order listed, immediately following the cover page required by Rule 38(b).
    1. Table of contents. If the petition exceeds five pages it must contain a table of contents, with page references to the sections of the petition and the argument headings. The table of contents does not need a page number and does not count toward the page limit.
    2. Table of authorities. If the petition exceeds five pages, it must contain a table of authorities containing an alphabetical list of cases, statutes and other authorities cited, with references to the pages of the petition where they are cited. The table of authorities does not need a page number and does not count toward the page limit.
    3. Questions Presented. The petition opens with a list of the questions that are presented for review, expressed in terms and circumstances of the case but without unnecessary detail. The statement of a question will be deemed to include every subsidiary question fairly comprised therein.
    4. Statement of the case. Supported by appropriate and specific references to the appendix, the statement of the case must contain a concise account of the procedural history of the case and a statement of the facts of the case that are relevant to the questions presented. The statement of the case must clearly set forth any deadlines or upcoming events that are relevant to the questions presented and relief requested.
    5. Summary of Argument. The summary of argument should be a concise, accurate, and clear condensation of the argument made in the body of the petition, and need not contain extensive citation to legal authorities. The summary may not be a mere repetition of the headings under which the argument is arranged.
    6. Statement Regarding Oral Argument and Decision. The petition must contain a statement as to whether oral argument is necessary pursuant to the criteria in Rule 18(a). If the party deems oral argument to be necessary, the party must indicate whether the case should be set for a Rule 19 argument or a Rule 20 argument, and why. If the party requests a Rule 19 argument, the party must state whether the case is appropriate for a memorandum decision. If the party requests that the minimum time for argument set forth in Rule 19 or Rule 20 will not be sufficient, the party may request a specific amount of additional time for argument and explain why the party believes that good cause exists for granting additional time;
    7. Argument. The petition must contain an argument, exhibiting clearly the points of fact and law presented, the standard of review applicable, with citations to the authorities relied upon, all arranged under headings that correspond with the questions presented. The argument must explain why the original jurisdiction relief sought is not available in any other court or cannot be had through any other process. The argument must contain appropriate and specific citations to the appendix, including citations that pinpoint when and how the issues were presented to the lower tribunal. The Court may disregard questions presented that are not adequately supported by specific references to the appendix.
    8. Conclusion. The petition must end with a conclusion, specifying the relief to which the party believes himself to be entitled.
    9. Verification. In the case of a petition for mandamus or prohibition, the petition must contain a verification as required by West Virginia Code § 53-1-3. The verification does not count toward the page limit.
    10. Certificate of Service. A certificate of service as required by Rule 37, and further indicating that all persons upon whom a rule to show cause should be served, if granted, have been timely provided a copy of the petition and appendix, and indicating the name, address, and telephone number of all such persons, must be attached to the end of the petition. The certificate of service does not count toward the page limit.
  5. Appendix. Insofar as applicable, an appendix must follow the format, page numbering, and general requirements prescribed by Rule 7, and contain the following items in the order listed:
    1. A copy of the decision sought to be reviewed, and all other orders that are necessary for a fair review of the questions presented. If a written decision has not been issued, a copy of the portion of the transcript where the decision is set forth is sufficient;
    2. Pleadings, motions and other filings, if their sufficiency, content or form is in issue or material;
    3. In a criminal case, the indictment or information;
    4. In an abuse and neglect case, the abuse and neglect petition;
    5. Documents relevant to the case that are contained in the record of the lower tribunal. Documents that are relevant and material to the case but not contained in the record of the lower tribunal may be provisionally included in an appendix only if the documents are clearly identified in the table of contents to the appendix and if the petitioner files a motion for leave to include documents not contained in the record, setting forth good cause why the documents should be considered. An opposing party may respond to the motion within ten days of the date the motion if filed;
    6. Material excerpts from official transcripts of testimony or from papers in connection with a motion. Such excerpts must contain all the testimony or averments upon which the petitioner relies and upon which it may be reasonably assumed the respondent will rely. If transcript excerpts are misleading or unintelligible by reason of incompleteness or lack of surrounding context, the entire transcript must be provided;
    7. Copies of exhibits, including photographs or maps, to the extent practicable;
    8. The certification required by Rule 7(c)(2), modified to certify that the appendix as a whole is sufficient to permit the Court to fairly consider the questions presented in the petition.
  6. Scheduling order. As soon as practicable after the petition is filed, the Court will issue a scheduling order. The scheduling order may, as appropriate to the circumstances, set forth the date on or before which a response may be filed or prescribe other deadlines.  Failure to comply with a scheduling order may result in sanctions, dismissal, or both.
  7. Response. If required by the Court, the respondent shall, within the time prescribed, file an original and the number of copies required by Rule 38 of a response.  Unless otherwise provided, the response must comply with the page limitations set forth in Rule 38, and must conform to the requirements of subsection (d) of this Rule, except that no statement of the case or statement of facts need be made beyond what may be deemed necessary in correcting any inaccuracy or omission in the petition. If the response does not contain an argument in response to a question presented by the petition, the Court will assume that the respondent agrees with the petitioner's view of the issue.  The respondent may, in accordance with the applicable portions of Rule 7(g), file and original and the number of copies of an appendix required by Rule 38 at the same time the response is filed.
  8. Summary response. Instead of a response, the respondent may file an original and the number of copies required by Rule 38 of a summary response. A summary response need not comply with all the requirements for a response set forth in this Rule but must contain an argument responsive to the questions presented, exhibiting clearly the points of fact and law being presented and the authorities relied on, and a conclusion, specifying the relief to which the party believes himself entitled. A party who files a summary response is deemed to have consented to the waiver of oral argument.
  9. Consideration of the petition. After the response or summary response has been filed, or upon the date set forth in the scheduling order, the petition will be deemed to be mature. Thereafter the Court will fully consider the written arguments of the parties. Upon its consideration, the Court may, in its discretion, decline to issue a rule to show cause, issue a rule to show cause, or issue an order appropriate to the circumstances of the case.
  10. Rule to show cause. If the Supreme Court determines to issue a rule to show cause, the Clerk shall so notify the parties. Unless otherwise provided, the issuance of a rule to show cause in prohibition stays all further proceedings in the underlying action for which an award of a writ of prohibition is sought. If the Supreme Court declines to issue a rule to show cause, such determination shall be without prejudice to the right of the petitioner to present a petition to a lower court having proper jurisdiction, unless the Supreme Court specifically notes in the order denying a rule to show cause that the denial is with prejudice. An order declining to issue a rule to show cause does not prevent the petitioner from pursuing the same issues on appeal following a final order in the lower court. If a response was not required in a scheduling order, then the rule to show cause will set forth the deadline for filing a response. The rule to show cause may set forth a briefing schedule if additional briefing would assist the Court in deciding the questions presented. The rule to show cause shall set forth a date when the action will be submitted for decision, either upon the papers previously submitted without further argument, or upon oral argument under Rule 19 or Rule 20, and shall further set forth such other matters as appropriate to the circumstances of the case. The rule to show cause may be made returnable to a lower court for further proceedings.
  11. Discovery. In the event that the response raises a genuine issue of material fact, the parties may advise the Clerk of the Supreme Court in writing of any proposed schedule for taking and filing depositions, which shall be subject to the approval of the Court. No other or further discovery shall be allowed, except by leave of the Supreme Court.
  12. Reference. In an original jurisdiction proceeding, the Supreme Court, on its own motion or upon written motion of the parties, may determine that because of the complexity of the factual issues involved, the proceeding should be referred to a special master or commissioner for the purpose of supervising the taking of depositions and to make such findings of fact as the Supreme Court may direct. Any such findings of fact made by the special master or commissioner shall be in writing and the parties shall have the right to file written objections thereto before the findings are considered by the Supreme Court.
  13. Argument. If permitted by the Court, argument in an original jurisdiction case shall be held in accordance with Rule 19 or Rule 20.

Certified questions
  1. Certified questions by a West Virginia circuit court or administrative tribunal
    1. Certification order—contents. In cases where questions have been certified pursuant to the provisions of West Virginia Code § 5-11-11, § 23-5-15, or § 58-5-2, the order of certification complying with statutory requirements must further contain a concise statement of each question of law, the answer to each question of law by the circuit court or administrative tribunal, a notation of the extent to which the action is stayed pending resolution of the certified questions, and a directive to the parties to prepare a joint appendix of the record sufficient to permit review of the certified questions.
    2. Transmittal of certification order. Upon entry of the order of certification, the clerk of the circuit court or the administrative tribunal is directed to transmit the order certifying questions and a list of the docket entries in the case to the Clerk of this Court.
    3. Scheduling order. As soon as practicable after receipt of the order of certification, the Court will issue a scheduling order, and the case will proceed in accordance with Rule 5 through Rule 10. The scheduling order shall designate which party in the case is responsible for filing the petitioner's brief and which party is responsible for filing the respondent's brief.
    4. Joint Appendix. As directed in the order of certification or as directed by this Court, the parties to a certified question case must file an original and the number of copies required by Rule 38 of a joint appendix that complies with the format, page numbering, and general requirements in Rule 7. The joint appendix must be filed at the same time the petitioner's brief is filed, unless otherwise provided.
    5. Briefs. Briefs in certified question cases are subject to Rule 10 and to the page limitation and number of copies required by Rule 38; provided, however, that briefs in certified question cases need not strictly comply with the content requirements for assignments of error in Rule 10(c)(3). Instead, the petitioner's brief must assign the specific points of legal error that arise from the circuit court's answer to the certified question, with the respondent's brief to follow a similar pattern. The Court may modify the briefing schedule in order to suit the circumstances of the case.
    6. Consideration of the question. After the response brief or summary response has been filed, and any reply brief deemed necessary has been filed (or the time for filing a reply has expired), the certified question is deemed to be mature for full consideration by the Court. Upon its consideration, the Court may, in its discretion, schedule the case for argument under Rule 19 or Rule 20, issue an order declining to accept the certified question, or issue an otherwise appropriate order.
  2. Certified questions by federal and other courts.
    1. Certification order—transmittal. In cases where questions have been certified pursuant to the provisions of the Uniform Certification of Questions of Law Act, West Virginia Code § 51-1A-1, et seq., the clerk of the court where the certification order was entered is required to transmit the order certifying questions and a list of the docket entries in the case to the Clerk of this Court.
    2. Scheduling order. As soon as practicable after receipt of the order of certification, the Court will issue a scheduling order, and the case will proceed in accordance with subsection (a) of this Rule, except that the Court may suspend briefing until after the Court has determined whether to accept the certified questions.
    3. Consideration of the question.  At a date set forth in the scheduling order, or, if briefing has been ordered, after the response brief or summary response has been filed, and any reply brief deemed necessary has been filed (or the time for filing a reply has expired), the certified question is deemed to be mature for full consideration by the Court. Upon its consideration, the Court may, in its discretion, schedule the case for argument under Rule 19 or Rule 20, issue an order declining to accept the certified question, or issue an otherwise appropriate order.
  3. Order declining to accept. An order declining to accept a certified question is not subject to the rehearing procedure in Rule 25.