WEST virginia legislature

2019 regular session

Committee Substitute

for

Senate Bill 103

Senator Trump, original sponsor

[Originating in the Committee on the Judiciary; Reported on January 23, 2019]

A BILL to amend and reenact §29-21-6 and §29-21-13a of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §29-21-9a, all relating generally to Public Defender Services; transferring initial authority to review, approve, modify, or refuse panel attorney vouchers from circuit courts to Public Defender Services; providing for resubmission or reconsideration of vouchers previously modified or refused; establishing procedures for handling of modified or refused vouchers; maintaining final authority over payment of vouchers with circuit courts; authorizing the Executive Director of Public Defender Services, with approval of the Indigent Defense Commission, to contract for noncriminal legal services; providing for payment of contracts; authorizing agency to reduce or reject vouchers or requests for payment; requiring panel attorneys to maintain time-keeping records to enable the attorney to determine time expended on a daily basis; authorizing Governor by executive order to borrow funds from the Revenue Shortfall Reserve Fund to pay appointed counsel; establishing repayment requirements; requiring Secretary of Administration’s clarification that borrowing is necessary; expiring authorization to borrow on January 1, 2021; setting record-keeping standards; requiring prompt processing and payment of vouchers; increasing the rates of compensation for panel attorneys; authorizing payment for in-court paralegal services with prior approval of the circuit court and subject to agency rule regarding maximum reimbursement; authorizing the executive director to promulgate emergency rules; and setting an effective date.

Be it enacted by the Legislature of West Virginia:

ARTICLE 21. PUBLIC DEFENDER SERVICES.

§29-21-6. Powers, duties, and limitations.

(a) Consistent with the provisions of this article, the agency is authorized to make grants to and contracts with public defender corporations and with individuals, partnerships, firms, corporations, and nonprofit organizations for the purpose of providing legal representation under this article and may make any other grants and contracts that are necessary to carry out the purposes and provisions of this article.

(b) The agency is authorized to accept and employ or dispose of in furtherance of the purposes of this article any money or property, real, personal, or mixed, tangible or intangible, received by gift, devise, bequest, or otherwise.

(c) The agency shall establish and the executive director or his or her designee shall operate a criminal law research center as provided in §29-21-7 of this code. This center shall undertake directly, or by grant or contract, to serve as a clearinghouse for information; to provide training and technical assistance related to the delivery of legal representation; and to engage in research, except that broad general, legal, or policy research unrelated to direct representation of eligible clients may not be undertaken.

(d) The agency shall establish and the executive director or his or her designee shall operate an accounting and auditing division to require and monitor the compliance with this article by public defender corporations and other persons or entities receiving funding or compensation from the agency. The accounting and auditing division shall review all plans and proposals for grants and contracts and shall make a recommendation of approval or disapproval to the executive director. The accounting and auditing division shall prepare, or cause to be prepared, reports concerning the evaluation, inspection, or monitoring of public defender corporations and other grantees, contractors, persons, or entities receiving financial assistance under this article and shall further carry out the agency's responsibilities for records and reports as set forth in §29-21-18 of this code. The accounting and auditing division shall require each public defender corporation to submit financial statements monthly and to report monthly on the billable and nonbillable time of its professional employees, including time used in administration of the respective offices, so as to compare the time to similar time expended in nonpublic law offices for similar activities. The accounting and auditing division shall provide to the executive director assistance in the fiscal administration of all of the agency's divisions. This assistance shall include, but not be limited to, budget preparation and statistical analysis.

(e) The agency shall establish and the executive director or his or her designee shall operate an appellate advocacy division for the purpose of prosecuting litigation on behalf of eligible clients in the Supreme Court of Appeals. The executive director or his or her designee shall be the director of the appellate advocacy division. The appellate advocacy division shall represent eligible clients upon appointment by the circuit courts or by the Supreme Court of Appeals. The division may, however, refuse the appointments due to a conflict of interest or if the executive director has determined the existing caseload cannot be increased without jeopardizing the appellate division's ability to provide effective representation. In order to effectively and efficiently use the resources of the appellate division, the executive director may restrict the provision of appellate representation to certain types of cases. The executive director may select and employ staff attorneys to perform the duties prescribed by this subsection. The appellate division shall maintain records of representation of eligible clients for record purposes only.

(f)  If the executive director, with the approval of the Indigent Defense Commission and the Secretary of Administration, determines that the purposes of this article can be furthered and costs reduced by the execution of a contract with a provider of legal services in specialized areas of the law, other than criminal defense or the representation of respondent parents in abuse and neglect proceedings, to provide legal representation to eligible clients, the execution of the contract is authorized and is exempt from the provisions of, and procedures adopted pursuant to, §5A-3-1 et seq. of this code. The payment of the contract amount is authorized from the funds appropriated for the payment of appointed counsel fees.

(g) The agency may reduce or reject vouchers or requests for payment submitted pursuant to §29-21-13a of this code found not to be in compliance with the provisions of this article, subject to the limitations set forth herein.

(h)  The executive director may promulgate emergency rules pursuant to §29A-3-15 of this code to effectuate the provisions of this article as amended during the 2019 regular session of the Legislature.

§29-21-9a. Borrowing authority from Revenue Shortfall Reserve Fund to pay appointed counsel fees; repayment requirements.

(a) Notwithstanding any provision of this code to the contrary, and subject to the provisions of this section, the Governor may, by executive order, after first notifying the presiding officers of both houses of the Legislature in writing, borrow funds from the Revenue Shortfall Reserve Fund created in §11B-2-20 of this code for deposit into the appropriate special revenue account established for the payment of appointed counsel fees. The amount of funds borrowed and outstanding under this section may not exceed $20 million at any one time, or the amount the Governor determines is necessary to adequately fund payment of appointed counsel fees.

(b) Notwithstanding the provisions of subsection (a) of this section, the Governor may not borrow funds from the Revenue Shortfall Reserve Fund pursuant to this section unless the Secretary of Administration first certifies that borrowing is necessary to pay for appointed counsel fees and the Governor certifies that a supplemental budget appropriation sufficient to repay the funds borrowed will be submitted to the Legislature.

(c) Any funds borrowed pursuant to this section shall be used to pay for appointed counsel fees only.

(d) Any funds borrowed pursuant to this subsection shall be repaid during the fiscal year in which the funds are borrowed from a supplemental budget appropriation to Public Defender Services, without interest, and redeposited to the credit of the Revenue Shortfall Reserve Fund within 180 days of their withdrawal.

(e) No amounts may be borrowed pursuant to the provisions of this section after January 1, 2021.

§29-21-13a. Compensation and expenses for panel attorneys.

(a) All panel attorneys shall maintain detailed and accurate records of the time expended and expenses incurred on behalf of eligible clients, and which records are to be maintained in a form that will enable the attorney to determine for any day the periods of time expended in tenths of an hour on behalf of any eligible client and the total time expended in tenths of an hour on that day on behalf of all eligible clients:  Provided, That in no event may panel attorneys be required to maintain or submit the actual start and finish times of work performed.

(b) Upon completion of each case, exclusive of appeal, panel attorneys shall submit to the appointing court Public Defender Services a voucher for services. Public Defender Services shall electronically acknowledge the submission of a voucher. Claims for fees and expense reimbursements shall be submitted to the appointing court Public Defender Services on forms approved by the executive director. The executive director shall establish guidelines for the submission of vouchers and claims for fees and expense reimbursements under this section. Claims submitted more than 90 calendar business days after the last date of service shall be rejected unless, for good cause, the appointing court authorizes in writing an extension. Provided, That claims where the last date of service occurred prior to July 1, 2008, shall be rejected unless submitted prior to January 1, 2009.

(c) The appointing court Public Defender Services shall review the voucher to determine if the time and expense claims are reasonable, necessary, and valid. and shall forward the voucher to the agency with an order approving payment of the claimed amount or of a lesser sum the court considers appropriate.  A voucher found to be correct shall be processed and payment promptly directed within 45 business days of submission of the voucher.

(d)(1) If Public Defender Services rejects a voucher, the attorney submitting the voucher shall be notified electronically of the rejection and provided detailed reasons for the rejection within 30 business days of submission of the voucher. The attorney may resubmit the voucher accompanied by copies of his or her records supporting the voucher and certification from the appointing court that the services or expenses were performed or incurred, and were reasonable and necessary, within 15 business days of receipt of notification. The executive director shall make a final agency decision regarding the rejection of the voucher within 15 business days of receipt of the submitted records and certification.  Under no circumstances may the executive director have the authority or require any panel attorney to submit privileged client information;     (2) If the final agency decision is to reject the voucher, Public Defender Services shall request review of the final agency decision by motion to the appointing court filed within 15 business days of notice of the final agency decision. After a hearing providing the attorney and Public Defender Services an opportunity to be heard, the appointing court shall have final authority to resolve the issue of payment and to order all remedies available under the West Virginia Rules of Civil Procedure.

(e) If Public Defender Services reduces the amount of compensation claimed or reimbursement requested, the attorney submitting the voucher shall be notified electronically of the reduction and detailed reasons for the reduction within 30 business days of the submission of the voucher. The attorney may:

(1) Agree with the reduction and certify his or her agreement electronically to Public Defender Services which shall then proceed to process payment; or

(2) Disagree with the reduction and request payment of the reduced amount while preserving the ability to contest the reduction;

(3) An attorney proceeding pursuant to this subsection shall inform Public Defender Services of his or her decision by electronic means within 15 business days of receipt of the notice of reduction. If there is no communication from the attorney within 15 business days of receipt of the notice of reduction, then the reduction is deemed to be accepted by the attorney;

(4) The attorney may submit records and certification from the appointing court that the services or expenses reflected in the amount reduced were performed or incurred and were reasonable and necessary. The executive director shall then make a final agency decision regarding the reduction within 15 business days of receipt of the submitted records and certification.  Under no circumstances may the executive director have the authority to require any panel attorney to submit privileged client information;

(5) If the attorney disagrees with the final agency decision, and the attorney and the executive director cannot reach an agreement regarding the reduction within 15 business days of the receipt of the notice of the final agency decision, Public Defender Services shall request review of the final agency decision by motion to the appointing court filed within 15 business days of notice of the final agency decision. After a hearing providing the attorney and Public Defender Services an opportunity to be heard, the appointing court shall have final authority to resolve the issue of payment, and to order all remedies available under the West Virginia Rules of Civil Procedure;

(6) If there is no communication from Public Defender Services within 30 business days of the submission of the voucher, the voucher is deemed to have been approved for payment without reduction.

(f) Notwithstanding any provisions of this code to the contrary, the executive director may employ in-house counsel to represent Public Defender Services in hearings held pursuant to this article.

(g) Except for the emergency rule-making provision set forth in §29-21-6(h) of this code, the provisions of the amendments to this article enacted during the 2019 regular session of the Legislature shall be effective July 1, 2019.

(b) (h) Notwithstanding any other provision of this section to the contrary, Public Defender Services may pay by direct bill, prior to the completion of the case, litigation expenses incurred by attorneys appointed under this article.

(c) (i) Notwithstanding any other provision of this section to the contrary, a panel attorney may be compensated for services rendered and reimbursed for expenses incurred prior to the completion of the case where: (1) More than six months have expired since the commencement of the panel attorney’s representation in the case; and (2) no prior payment of attorney fees has been made to the panel attorney by Public Defender Services during the case. The executive director, in his or her discretion, may authorize periodic payments where ongoing representation extends beyond six months in duration. The amounts of any fees or expenses paid to the panel attorney on an interim basis, when combined with any amounts paid to the panel attorney at the conclusion of the case, shall not exceed the limitations on fees and expenses imposed by this section.

(d) (j) In each case in which a panel attorney provides legal representation under this article, and in each appeal after conviction in circuit court, the panel attorney shall be compensated at the following rates for actual and necessary time expended for services performed and expenses incurred subsequent to the effective date of this article:

(1) For attorney’s work performed out of court, compensation shall be at the rate of $45 $60 per hour. and For paralegal’s work performed out of court for the attorney, compensation shall be at the rate of the paralegal’s regular compensation on an hourly basis or, if salaried, at the hourly rate of compensation which would produce the paralegal’s current salary, but in no event shall the compensation exceed $20 per hour. Out-of-court work includes, but is not limited to, travel, interviews of clients or witnesses, preparation of pleadings and prehearing or pretrial research

Out-of-court work includes, but is not limited to, travel, interviews of clients or witnesses, preparation of pleadings, and prehearing or pretrial research;

 (2) For attorney’s work performed in court, compensation shall be at the rate of $65 $80 per hour. No compensation for paralegal’s work performed in court shall be allowed. In-court work includes, but is not limited to, all time spent awaiting hearing or trial before a judge, magistrate, special master or other judicial officer

In-court work includes, but is not limited to, all time spent awaiting hearing or trial before a judge, magistrate, special master, or other judicial officer;

(3) Compensation for legal services performed for a panel attorney by a paralegal out-of-court is to be calculated using a rate of $20 per hour and no such compensation is to be paid for in-court services performed for a panel attorney by a paralegal absent prior approval of the circuit court before whom the panel attorney is appearing and subject to maximum reimbursement amounts set by agency rule;

(3) (4) The maximum amount of compensation for out-of-court and in-court work under this subsection is as follows: For proceedings of any kind involving felonies for which a penalty of life imprisonment may be imposed, the amount as the court may approve; for all other eligible proceedings, $3,000 unless the court, for good cause shown, approves payment of a larger sum.

(e) (k) Actual and necessary expenses incurred in providing legal representation for proceedings of any kind involving felonies for which a penalty of life imprisonment may be imposed, including, but not limited to, expenses for travel, transcripts, salaried or contracted investigative services, and expert witnesses, shall be reimbursed in an amount as the court may approve. For all other eligible proceedings, actual and necessary expenses incurred in providing legal representation, including, but not limited to, expenses for travel, transcripts, salaried or contracted investigative services and expert witnesses, shall be reimbursed to a maximum of $1,500 unless the court, for good cause shown, approves reimbursement of a larger sum.

(l) Expense vouchers shall specifically set forth the nature, amount, and purpose of expenses incurred and shall provide receipts, invoices, or other documentation required by the executive director and the State Auditor as follows:

(1)(A) Reimbursement of expenses for production of transcripts of proceedings reported by a court reporter is limited to the cost per original page and per copy page as set forth in §51-7-4 of this code;

(2) (B)(i)There shall may be no reimbursement of expenses for or production of a transcript of a preliminary hearing before a magistrate or juvenile referee, or of a magistrate court trial, where such the hearing or trial has also been recorded electronically in accordance with the provisions of §50-5-8 of this code or court rule;

(3) (ii) Reimbursement of the expense of an appearance fee for a court reporter who reports a proceeding other than one described in subparagraph (i) of this paragraph subdivision (2) of this subsection is limited to $25. Where a transcript of a proceeding is produced, there shall may be no reimbursement for the expense of any appearance fee.

(4) (iii) Except for the appearance fees provided in this paragraph subsection, there shall may be no reimbursement for hourly court reporters’ fees or fees for other time expended by the court reporter, either at the proceeding or traveling to or from the proceeding;

(5) (C) Reimbursement of the cost of transcription of tapes electronically recorded during preliminary hearings or magistrate court trials is limited to $1 per page;

(6) (2) Reimbursement for any travel expense incurred in an eligible proceeding is limited to the rates for the reimbursement of travel expenses established by rules promulgated by the Governor pursuant to the provisions of §12-8-11 of this code and administered by the Secretary of the Department of Administration pursuant to the provisions of §5A-3-48 of this code.

(7) (3) Reimbursement for investigative services is limited to a rate of $30 per hour for work performed by an investigator.

(f) (m) For purposes of compensation under this section, an appeal from magistrate court to circuit court, an appeal from a final order of the circuit court, or a proceeding seeking an extraordinary remedy made to the Supreme Court of Appeals shall be considered a separate case.

(g) (n) Vouchers submitted under this section shall specifically set forth the nature of the service rendered, the stage of proceeding or type of hearing involved, the date and place the service was rendered, and the amount of time expended in each instance. All time claimed on the vouchers shall be itemized to the nearest tenth of an hour. If the charge against the eligible client for which services were rendered is one of several charges involving multiple warrants or indictments, the voucher shall indicate the fact and sufficiently identify the several charges so as to enable the court Public Defender Services to avoid a duplication of compensation for services rendered. The executive director shall refuse to requisition payment for any voucher which is not in conformity with the recordkeeping, compensation, or other provisions of this article or the voucher guidelines established issued pursuant to §29-21-13a(a) of this code this article and in such circumstance shall return the voucher to the court or to the service provider for further review or correction.

(h) (o) Vouchers submitted under this section after July 1, 2008 shall be reimbursed within 90 days of receipt. Reimbursements after 90 days shall bear interest from the 91st day at the legal rate in effect for the calendar year in which payment is due.

(i) (p) Vouchers submitted for fees and expenses involving child abuse and neglect cases shall be processed for payment before processing vouchers submitted for all other cases.