West Virginia Judiciary

Rules of Appellate Procedure

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Part VII. Motions and Other Requests for Relief

 

Table of Contents Full Table of Contents
  1. Stays
  2. Motions, expedited relief
  3. Amicus curiae
  4. Motions to dismiss the appeal
  5. Intervention
  6. Disqualification of a justice
  7. Post-conviction bail

Part VII. Motions and Other Requests for Relief

Stays
  1. Stay of circuit court order pending appeal. Any person desiring to present an appeal under Rule 5 may make an application for a stay of proceedings to the circuit court in which the judgment or order desired to be appealed was entered. Such application must be made by notice in writing to the opposite party at any time after the entry of the judgment or order to be appealed. The circuit court shall grant such stay in a criminal case as provided by West Virginia Code § 62-7-1, and may grant a stay suspending the execution of a judgment or order, modifying, restoring, or granting an injunction, or staying the execution of a criminal sentence or fine beyond the time mandated by statute. Such stay shall be effective: (1) until the expiration of the time provided by law for presenting an appeal; and (2) any additional period after an appeal has been perfected pending final disposition of the appeal, unless sooner modified by such court or by the Supreme Court.
  2. Application in Supreme Court for stay of circuit court order pending appeal. If the circuit court should refuse to grant a stay, or if the relief afforded is not acceptable, the applicant may, upon written notice to the opposite party, apply to the Supreme Court for a stay. Such application shall show the reasons assigned by the circuit court for denying a stay or other relief, and further show the reasons for the relief requested and the grounds for the underlying appeal. If the facts are subject to dispute, the application shall be supported by affidavits or other sworn statements. Such parts of the record that are relevant shall be filed with the application.  Any party may file a response to a motion for stay within ten days of the filing of the motion for stay.
  3. Bond. In civil cases the relief available in the circuit court or the Supreme Court under this rule may be conditioned upon the filing of a bond or other appropriate security in the circuit court, in such amount and upon such conditions as the court granting the stay feels is proper for the protection of the adverse party. The provisions of West Virginia Code § 58-5-14, are applicable. Such bond shall be filed within such time as provided by the circuit court or this Court. Failure to execute such bond may be grounds for the dismissal of the appeal.
  4. Bankruptcy stays—continuing status report. When any pending action in this Court may be subject to an automatic stay pursuant to the provisions of the United States Bankruptcy Code, the affected party must file with the Court a written notice of bankruptcy, and serve a copy on all other parties to the appeal, setting forth the circumstances and providing an estimate of the time period in which it may be necessary to stay the case in this Court. Any party to the case may respond to the notice of bankruptcy within ten days of receipt of the notice. Thereafter, the Court will issue an order staying the case or directing other appropriate relief. Every six months during the pendency of the stay, counsel of record for the party who filed the notice of bankruptcy must file a continuing status report with the Clerk stating whether the case pending in this Court is ripe for dismissal or lifting the automatic stay. Counsel for parties to the bankruptcy proceeding should provide counsel of record in this Court with sufficient information in a timely fashion to permit counsel to complete the continuing status report. Any party to the case pending in this Court may file a response or objection to the continuing status report within ten days of receipt.
  5. Stays in original jurisdiction matters—modification. A party to an original jurisdiction proceeding wherein the Court has issued a stay, either by rule or by order, may file a motion to modify the stay.  The motion shall set forth the specific reasons for the modification. Any other party to the case may file a response to the motion within ten days of receipt.  Thereafter, the Court will issue an order denying the motion, issue an order modifying the stay, or issue an otherwise appropriate order.
  6. Abeyance of consideration by the Court. A party to a pending case may request that the Court hold its consideration of a case in abeyance by filing a motion.  A motion to hold a case in abeyance must set forth the specific circumstances supporting the request, the duration of time in which the case should be held in abeyance, and whether the opposing parties to the case consent to the request.  Any party who does not consent to the request may file a response to the motion within ten days of the date the motion was filed. No deadline set forth in these rules is tolled until such time as the Court issues an order granting a motion to hold a case in abeyance. Cases held in abeyance will be placed on the inactive docket, and counsel of record must file a status report with the Clerk every six weeks. Upon termination of the abeyance as set forth in the order granting the motion, or at such other time as provided by the Court, the case will be placed on the active docket for consideration by the Court.

Motions, expedited relief
  1. Content of motions; response; reply not permitted. Unless another form is elsewhere prescribed by these rules, an application for an order or other relief shall be made by filing a motion for such order or relief with service on all other parties. The motion shall state with particularity the grounds on which it is based, and shall set forth the relief sought. If a motion is supported by affidavits or other papers, the supporting documents shall be served and filed with the motion. Any party may file a response in opposition to a motion within ten days of the filing of the motion. A reply to a response to a motion may not be filed without leave of Court.
  2. Determination of motions for procedural orders. Notwithstanding the provisions of the preceding paragraph as to motions generally, motions for procedural orders may be acted upon at any time, without awaiting a response thereto. Any party adversely affected by such action may request reconsideration, vacation, or modification of such action within ten days of the date of the order.
  3. Expedited relief. Any request for expedited relief in connection with an action pending before this Court shall be made by filing a motion for expedited relief, which shall be separate and distinct from filings otherwise required in the action. A copy of the motion for expedited relief must be provided to all opposing parties contemporaneously with filing, and the certificate of service must indicate the method of contemporaneous service, which may include electronic mail. The motion for expedited relief shall set forth in specific detail the reasons for the request. The mere fact that a litigation deadline is approaching is not a sufficient basis for requesting expedited relief. A motion for expedited relief from an order entered more than two weeks prior to the filing of the motion will be granted only for extraordinary reasons. Any party may file a response to the motion for expedited relief within two days of the filing of the motion. The Court may, at any time, direct that any case be expedited for consideration or decision.
  4. Form of papers; number of copies. All papers relating to motions must comply with the document requirements of Rule 38.
  5. Hearing. No oral argument shall be held on any motion, unless requested by the Supreme Court.

Amicus curiae
  1. When permitted. The State of West Virginia or an officer or agency thereof, or a County or Municipality of the State, may file an amicus curiae brief without the consent of parties or leave of the Court. Any other amicus curiae may file a brief only by leave of Court or if the brief states that all parties have consented to its filing.
  2. Notice to parties. An amicus curiae shall ensure that counsel of record for all parties receive notice of its intention to file an amicus curiae brief at least five days prior to the due date.
  3. Motion for leave to file. The motion for leave to file an amicus curiae brief must be accompanied by the proposed brief and appendix (if one is necessary), and must state: (1) the movant’s interest; (2) the reason why an amicus curiae brief is desirable and why the matters asserted are relevant to the disposition of the case; and (3) if an appendix is provided, a statement of why the material provided in the appendix is not otherwise readily available and why the materials in the appendix are relevant and necessary to the disposition of the case. Any party opposed to the motion may respond within ten days.
  4. Time for filing. Unless otherwise provided by the Court, an amicus curiae brief must be filed within the time allowed the party whose position as to affirmance or reversal the brief will support unless the Court for cause shown shall grant leave for later filing, in which event the Court’s order may specify a time period within which an opposing party may file a supplemental brief in response.
  5. Contents of brief and appendix. The amicus curiae brief need not strictly comply with Rule 10, but must include the following in the order listed:
    1. a cover page with the caption of the case and further identifying the party supported and whether the amicus curiae supports affirmance or reversal;
    2. a table of contents, with page references;
    3. a table of authorities with references to the pages of the brief where they are cited;
    4. a concise statement of the identity of the amicus curiae, its interest in the case, and the source of its authority to file;
    5. except for briefs presented as a matter of right on behalf of an amicus curiae listed in subdivision (a) of this Rule, a brief filed under this Rule shall indicate whether counsel for a party authored the brief in whole or in part and whether such counsel or a party made a monetary contribution specifically intended to fund the preparation or submission of the brief, and shall identify every person other than the amicus curiae, its members, or its counsel, who made such a monetary contribution. The disclosure shall be made in the first footnote on the first page of text.
    6. The argument, exhibiting clearly the points of fact and law presented and citing the authorities relied on, under suitable headings.
    An appendix must comply with the format, page numbering and general requirements of Rule 7 insofar as applicable.
  6. Oral argument. A motion of an amicus curiae to participate in the oral argument of a case on the Rule 20 docket will be granted only for extraordinary reasons.

Motions to dismiss the appeal
  1. By party. At any time after the filing of an appeal, any party to the action appealed from may move the Supreme Court to dismiss the appeal on any of the following grounds: (1) failure to properly perfect the appeal; (2) failure to obey an order of the Court; (3) failure to comply with these rules; (4) lack of an appealable order, ruling, or judgment; or (5) lack of jurisdiction. Such motion shall be filed and served in accordance with Rule 37.
  2. By Court. The Supreme Court may on its own motion notify any party who is in violation of the grounds set out in subsection (a) and fashion appropriate sanctions including the dismissal of the appeal.
  3. Hearing. No oral argument shall be held on such motion, unless requested by the Court.

Intervention

Upon timely motion, anyone shall be permitted to intervene in an original jurisdiction proceeding pending in this Court or in a case pending before this Court on a direct appeal from an administrative agency, but only when (1) a statute of this State confers an unconditional right to intervene; or (2) the representation of the applicant's interest by existing parties is or may be inadequate, and the applicant is or may be bound by judgment in the action. Intervention may be permitted in other cases in the discretion of the Supreme Court. A party to the case may respond to a motion to intervene within ten days of the date the motion was filed.


Disqualification of a justice
  1. Duty to inform. Upon appearance in any case in this Court, counsel of record must inform the Clerk, by letter with a copy to the opposing parties, of any circumstance presented in the case in which a disqualifying interest of a Justice may arise under Canon 2, Rule 2.11 of the Code of Judicial Conduct.
  2. Grounds for disqualification. A Justice shall disqualify himself or herself, upon proper motion or sua sponte, in accordance with the provisions of Canon 2, Rule 2.11 of the Code of Judicial Conduct or, when sua sponte, for any other reason the Justice deems appropriate.
  3. Motions for disqualification. A party to a proceeding in this Court may file a written motion for disqualification of a Justice within thirty days after discovering the ground for disqualification and not less than seven days prior to any scheduled proceedings in the matter. If a motion for disqualification is not timely filed, such delay may be a factor in deciding whether the motion should be granted.
  4. Contents of motion. The motion shall be addressed to the Justice whose disqualification is sought and shall state the facts and reasons for disqualification, including the specific provision of Canon 2, Rule 2.11 of the Code of Judicial Conduct asserted to be applicable, and shall be accompanied by a verified certificate of counsel of record or unrepresented party that: (1) he has read the motion and that to the best of his knowledge, information, and belief formed after reasonable inquiry that it is well grounded in fact and is warranted by existing law or good faith argument for the extension, modification, or reversal of existing law; and (2) that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
  5. Sanctions for improper motion. If a motion is signed in violation of paragraph (d) of this rule, the Court, with or without the participation of the Justice whose disqualification was sought, upon motion or upon its own initiative, may refer the matter to the appropriate disciplinary authority or may impose upon the person who signed it, an unrepresented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the motion, including reasonable attorney fees.
  6. Filing of motion. The number of copies of the motion required by Rule 38 shall be filed with the Clerk with service on all parties. Upon filing of the motion, the Clerk shall examine it to determine whether it conforms with the requirements of paragraph (d) and, retaining the original for the record, shall return the copies to the movant with instructions for correction of any nonconformity. The movant thereafter shall promptly advise the Clerk in writing of the abandonment of the motion or shall file the required number of copies of a corrected motion, with service on all parties. Once a proper motion is received, the Clerk shall promptly deliver a copy of the motion to each of the Justices.
  7. Decision on motion. As soon as practicable, the Justice sought to be disqualified shall notify the Clerk of his or her decision on the motion for disqualification and the Clerk shall promptly notify the other Justices and the parties of such decision.
  8. Appointment of substitute Justice. When any Justice is disqualified pursuant to the provisions of this Rule, the Chief Justice or Acting Chief Justice may, in his or her discretion, assign a senior justice, senior judge, or circuit judge to service for the disqualified Justice. The Chief Justice shall promptly notify the Clerk of the decision regarding the necessity of the appointment of a substitute Justice and the Clerk shall promptly notify the other Justices and the parties of such decision.

Post-conviction bail

Summary petitions for post-conviction bail shall be filed in accordance with the provisions of West Virginia Code § 62-1C-1. The petitioner shall file an original and the number of copies required by Rule 38 of the petition with the Clerk and shall serve a copy of the petition upon the prosecuting attorney in accordance with the provisions of Rule 37. The prosecuting attorney shall file a response and the number of copies required by Rule 38 within fourteen days of the filing of the petition with the Clerk. Upon receipt of the response, the Court may grant the petition or deny the petition.  If granted, the Court may direct the circuit court to set bail.