West Virginia is one of three states that does not afford litigants an automatic right to file an appeal. Rather, under Rule 3 of the West Virginia Rules of Appellate Procedure, the losing party must first petition the Supreme Court for permission to appeal. A full appeal only follows if the court permits it.

The United States Supreme Court has held that defendants’ federal due process rights are violated by certain punitive damage awards. Can a state procedural rule preclude review for such federal due process violations? In 2003, the United States Supreme Court denied certiorari in Mountain Enterprises, Inc. v. Fitch et al., No. 03-1223 (U.S. Sup. Ct.), a challenge to the West Virginia Supreme Court’s refusal to hear an appeal from a punitive damage award. This may not be the final word. We previously blogged here about the West Virginia Supreme Court’s refusal to hear the appeal from a $270 million punitive damage award entered against NiSource. As reported in the PR Newswire, NiSource has now indicated it plans to file a petition for writ of certiorari raising again the issue that the refusal to be permitted to appeal from a punitive damage award is itself a violation of due process. NiSource could rely on Honda Motor Company v. Oberg, in which the Supreme Court held that Oregon’s denial of review of the size of punitive damages awards violates the Due Process Clause.