Opinion Analysis

State of West Virginia v. McKinley

Case Opinion Date Opinion Author Decision Vote
09/29/2014 Chief Justice Davis Affirmed Unanimous


In this case, the defendant was convicted of first degree murder without a recommendation of mercy.  The defendant raised a multitude of evidentiary errors including, among other things, the admission of evidence of prior “bad acts” under Rule 404(b) of the Rules of Evidence.

The Supreme Court affirmed the defendant’s conviction citing syllabus law from prior cases.  Ordinarily, the Court would have issued a per curiam opinion.  In this case, however, the Court addressed the practice of issuing per curiam opinions and formally abolished it.


The Supreme Court raised this issue sua sponte:  Would the Court continue its practice of issuing per curiam opinions?


Under Article VIII, Section 4 of the West Virginia Constitution, the Supreme Court is required to “prepare a syllabus of the points adjudicated in each case in which an opinion is written.”  The Court draws these syllabus points from two sources.  First, the court may repeat and apply the syllabus from a previously decided case.  Second, the court may write an original syllabus deciding a new and previously unaddressed point of law.

Beginning in the 1970’s, the Supreme Court began the practice of issuing signed opinions only in cases with original syllabus points.  In other words, when the court decided a new point of law the opinion would bear the name of the justice who authored it.  Otherwise, the opinion was issued per curiam–a Latin expression meaning “by the court.”  Per curiam opinions listed all of the old syllabus points that were being applied, but did not identify any particular justice as the author of the opinion.

In 2010, the Court substantially rewrote its Rules of Appellate Procedure.  In prior years, the Court had exercised discretionary review in appellate cases–i.e., the Court chose which cases it would hear and decide.  Under the new rules, the Court would hear and decide all cases.  To accommodate the increased volume of cases, the Court established a new method for disposing of cases known as “memorandum decisions.”  Through memorandum decisions, the Court would decide the merits of a case, but the Court’s written decision would not contain any syllabus points and would not be published.  Memorandum decisions are currently used by the Court in cases where no substantial legal question is presented or where, upon review, the Court finds no prejudicial error.

Because of this new procedure, the Court concluded the practice of issuing per curiam opinions was simply unnecessary:  “[P]er curiam opinions are a relatively recent phenomenon whose existence has been rendered unnecessary by the substantial expansion of merits decisions under the new appellate process.”  Accordingly, the Court abolished per curiam opinions and announced that in the future all published opinions would bear the name of the authoring justice.

The Court then addressed the weight to be given to each of these opinions, adopting what it described as a “three tier system of precedent.”  Signed opinions with original syllabus points “have the highest precedential value.”  Signed opinions without original syllabus points “also carry significant, instructive, precedential weight.”  The Court noted that signed opinions are “the primary sources relied upon in the development of the common law.”  Memorandum decisions may be cited, but “their value as precedent is necessarily more limited.”  Thus, whenever there is a conflict between a signed, published opinion and a memorandum decision, “the published opinion controls.”


This case brings needed clarity for lawyers and judges alike.  The exact role of per curiam opinions was uncertain for many years.  Were they citable?  If so, for what purposes?  The amendments to the Rules of Appellate Procedure only added to the confusion.  Hopefully, the Court’s explanation of its “three tiered system of precedent” will assist lawyers in their efforts to be as effective as possible in their written and oral advocacy.

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