Senate Bill No. 444
(By Senators Kessler (Acting President), Plymale, Klempa and Beach)
[Originating in the Committee on Judiciary;
reported February, 2011.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §62-10A-1, §62-10A-2, §62-10A-3, §62-10A-4, §62-10A-5, §62-10A-6, §62-10A-7, §62-10A-8, §62-10A-9, §62-10A-10, §62-10A-11, §62-10A-12, §62-10A-13, §62-10A-14, §62-10A-15, §62-10A-16, §62-10A-17, §62-10A-18, §62-10A-19, §62-10A-20, §62-10A-21, §62-10A-22, §62-10A-23, §62-10A-24, §62-10A-25, §62-10A-26, §62-10A-27 and §62-10A-28, all relating to the protection of nonfamily or nonhousehold members; setting forth the purpose of the article; defining terms; establishing jurisdiction of magistrate and circuit courts; establishing venue for actions; establishing procedures for filing petitions, hearings, entry of orders and contents of orders; declaring orders effective statewide; establishing means of service of process; making proceedings confidential; making rules of evidence applicable to proceedings; establishing time periods for orders; prohibiting mutual orders; establishing procedures for appeals and pursuing of records; requiring orders be filed in domestic violence database; limiting use of information obtained during proceedings; allowing for civil contempt for violations of orders; creating offenses for violations of protection orders; directing Supreme Court of Appeals to create forms; granting immunity to persons seeking orders; orders in good faith; and establishing penalties.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §62-10A-1, §62-10A-2, §62-10A-3, §62-10A-4, §62-10A-5, §62-10A-6, §62-10A-7, §62-10A-8, §62-10A-9, §62-10A-10, §62-10A-11, §62-10A-12, §62-10A-13, §62-10A-14, §62-10A-15, §62-10A-16, §62-10A-17, §62-10A-18, §62-10A-19, §62-10A-20, §62-10A-21, §62-10A-22, §62-10A-23, §62-10A-24, §62-10A-25, §62-10A-26, §62-10A-27 and §62-10-28, all to read as follows:
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 10A. PERSONAL SAFETY PROTECTION ORDERS.
The Legislature finds that:
(1) It is the intent of the Legislature that the protection order created by this chapter be a remedy for people who do not qualify for a domestic violence order of protection.
(2) The Legislature of this state hereby finds that the issuance and enforcement of protection orders to persons against whom crimes of violence have been committed or threatened by nonfamily or nonhousehold members are necessary in the State of West Virginia because such protection orders can promote safety, reduce violence and prevent serious harm and death.
(a) "Crime of violence against the person" means offenses set forth in articles two, eight-b or eight-d of chapter sixty-one of this code.
(b) "Emergency hearing" under this article means the hearing before a magistrate upon the filing of a petition for a personal safety civil protection order. An emergency hearing may be held ex parte.
(c) "Final hearing" under this article means the hearing before a circuit court judge following the entry of a personal safety civil protection order by a magistrate as a result of the emergency hearing.
(d) "Incapacitated adult" means any person who by reason of physical, mental or other infirmity is unable to physically carry on the daily activities of life necessary to sustaining life and reasonable health.
(e) "Law-enforcement agency" means any duly authorized state, county or municipal organization employing one or more persons whose responsibility is the enforcement of laws of the state or any county or municipality thereof: Provided, That the Hatfield-McCoy Regional Recreation Authority, the Public Service Commission or any state institution of higher education is not a law-enforcement agency.
(f) “Law enforcement officer" means any duly authorized member of a law-enforcement agency who is authorized to maintain public peace and order, prevent and detect crime, make arrests and enforce the laws of the state or any county or municipality thereof, other than parking ordinances.
(g) "Personal safety protection order" under this article is an emergency civil protection order entered by a magistrate as a result of the emergency hearing or personal safety civil protection order entered by a circuit court upon final hearing that affords protection to persons who do not meet the definition of family or household member under section two hundred four, article twenty-seven, chapter forty-eight of this code.
§62-10A-3. Jurisdiction and venue.
(a) Magistrate courts and circuit courts have jurisdiction over actions conducted pursuant to this article.
(b) The petition may be filed in the county in which any crime of violence against the person occurred, in the county in which the respondent is living or in the county in which the petitioner is living, either temporarily or permanently.
§62-10A-4. Commencement of proceeding.
(a) An action under this article is commenced by the filing of a verified petition in the magistrate court.
(b) No person shall be refused the right to file a petition under the provisions of this article. No person shall be denied relief under the provisions of this article if she or he presents facts sufficient under the provisions of this article for the relief sought.
(c) It shall not be a consideration in the proceedings that:
(1) The respondent was voluntarily intoxicated;
(2) The petitioner acted in self-defense or defense of another; or
(3) The petitioner did not act in self-defense or defense of another.
(d) A petitioner is eligible for an order of protection whether or not:
(1) The petitioner reports the abuse to law enforcement;
(2) Charges are filed; or
(3) The petitioner participates in a criminal prosecution.
(e) Nothing in this section prevents lawful assembly and petition for the lawful redress of grievances, including, but not limited to:
(1) Any labor or employment relations issue;
(2) Demonstration at the seat of federal, state, county or municipal government; and
(3) Activities protected by the West Virginia Constitution or the United States Constitution or any statute of this state or the United States.
(f) Withdrawal or dismissal of a petition for a personal safety protection order prior to adjudication operates as a dismissal without prejudice. No action for a personal safety protection order may be dismissed because the respondent is being prosecuted for a crime against the petitioner. For any action commenced under this article, dismissal of a case or a finding of not guilty, does not require dismissal of the action for a civil protection order.
§62-10A-5. Persons who may file petition; persons accompanying petitioner.
(a) A petition for a personal safety protection order may be filed by:
(1) A person seeking relief under this article for herself or himself;
(2) A parent or guardian on behalf of a minor child or an incapacitated adult; or
(3) A person who reported or was a witness to the crime of violence against the person and who, as a result, has been abused, threatened, harassed or who has been the subject of other actions intended to intimidate the person.
(b) No person accompanying a person who is seeking to file a petition under the provisions of this article is precluded from being present if his or her presence is desired by the person seeking a petition unless the person's behavior is disruptive to the proceeding.
§62-10A-6. Charging of fees prohibited.
Regardless of whether a personal safety protection order is issued, no filing fees, court costs, bond or other costs for services shall be assessed to the petitioner in an action commenced pursuant, provided by or associated with any proceedings under this article.
§62-10A-7. Statewide applicability.
Any personal safety protection order issued pursuant to this article is effective throughout the state in every county. Any other comparable protection order issued by any other state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or a territory or insular possession subject to the jurisdiction of the United States or an Indian tribe or band that has jurisdiction to issue protection orders shall be accorded full faith and credit.
§62-10A-8. Service of process.
(a) A personal safety protection order may be served on the respondent by means of a Class I legal advertisement published notice, with the publication area being the county in which the respondent resides, published in accordance with the provisions of section two, article three, chapter fifty-nine of this code if:
(1) The petitioner files proof with the court showing that two attempts at personal service pursuant to Rule 4 of the West Virginia Rules of Civil Procedure has been unsuccessful or evidence is adduced at the hearing for the personal safety protection order that the respondent has left the State of West Virginia; and
(2) A copy of the order is mailed by certified or registered mail to the respondent at the respondent's last known residence and returned undelivered.
(b) Any personal safety protection order issued by the court of this state which is served in compliance with the provisions of Rule 4(f) of the West Virginia Rules of Civil Procedure served outside the boundaries of this state shall carry the same force and effect as if it had been personally served within this state's boundaries.
§62-10A-9. Confidentiality; identifying information; proceedings closed to public.
(a) Proceedings pursuant to this article are not open to the public and documents filed and other court records shall be confidential absent on order of the circuit court.
(b) If a party alleges in an affidavit or a pleading under oath that the safety of a party or child would be jeopardized by disclosure of identifying information, the identifying information must be sealed by the clerk and not disclosed to the other party or to the public unless the court orders the disclosure to be made after a hearing in which the court takes into consideration the safety of the party or child and determines that the disclosure is in the interest of justice.
(c) All orders are public records.
§62-10A-10. Evidence presented in hearing.
(a) The rules of evidence are applicable to proceedings under this article including the provisions of Rule 404A(a)(2) and (3).
(b) Copies of medical reports or records may be admitted into evidence to the same extent as though the original thereof. The custodian of such records shall not be required to be present to authenticate such records for any proceeding held pursuant to this subsection.
§62-10A-11. Personal safety protection orders; hearings; persons present.
(a) Upon the filing of a verified petition under this article, the magistrate court may enter an emergency personal safety protection order as it may deem necessary to protect the petitioner and, upon good cause shown, may do so ex parte without the necessity of bond being given by the petitioner. Clear and convincing evidence of immediate and present danger of bodily injury to the petitioner constitutes good cause for the issuance of an emergency personal safety protection order pursuant to this section. If the respondent is not present at the proceeding, the petitioner or the petitioner's legal representative shall certify to the court, in writing, the efforts which have been made to give notice to the respondent or just cause why notice should not be required.
(b) Following the proceeding, the magistrate court shall order a copy of the petition to be served immediately upon the respondent, together with a copy of any emergency personal safety protection order entered pursuant to the proceedings, a notice of the final hearing before the circuit court and a statement of the right of the respondent to appear and participate in the final hearing, as provided in subsection (d) of this section. Copies of any order entered under the provisions of this section, a notice of the final hearing before the circuit court and a statement of the right of the petitioner to appear and participate in the final hearing, as provided in subsection (d) of this section, shall also be delivered to the petitioner. Copies of any order entered shall also be delivered to any law-enforcement agency having jurisdiction to enforce the order, including, but not limited to, municipal police, the county sheriff's office and local office of the State Police, within twenty-four hours of the entry of the order. An emergency personal safety protection order is effective until modified by order of the circuit court upon hearing as provided in subsection (d) of this section.
(c) Subsequent to the entry of the emergency personal safety protection order, service on the respondent and the delivery to the petitioner and law-enforcement officers, the court file shall be transferred to the office of the clerk of the circuit court for use by the circuit court.
(d) The circuit court shall schedule a final hearing on each petition in which an emergency personal safety protection order has been entered by a magistrate. The hearing shall be scheduled not later than thirty days following the entry of the order by the magistrate. The notice of the final hearing shall be served on the respondent and delivered to the petitioner, as provided in subsection (b) of this section and must set forth the hearing date, time and place and include a statement of the right of the parties to appear and participate in the final hearing. The notice must also provide that the petitioner's failure to appear may result in a dismissal of the petition and that the respondent's failure to appear may result in the entry of a final personal safety protection order against him or her for a period of eighteen months. The notice must also include the name, mailing address, physical location and telephone number of the circuit court having jurisdiction over the proceedings. To facilitate the preparation of the notice of final hearing required by the provisions of this subsection, the circuit court must provide the magistrate court with a day and time in which final hearings or status conferences may be scheduled before the circuit court within the time required by law.
(e) Upon final hearing, the petitioner must prove, by a preponderance of the evidence, the allegation of a crime of violence against the person or the making of credible threats to do so and that such conduct is likely to reoccur or that respondent persists in contacting or attempting to contact petitioner or that he or she reported or witnessed a crime of violence against the person the making of credible threats against another to do so and has, as a result, been abused, threatened, harassed or has been the subject of other actions to attempt to intimidate him or her, or such petition shall be dismissed by the circuit court. If the respondent has not been served with notice of the emergency personal safety protection order, the hearing may be continued to permit service to be effected. The failure to obtain service upon the respondent does not constitute a basis for dismissal of the petition.
(f) No person requested by a party to be present during a hearing held under the provisions of this article shall be precluded from being present unless such person is to be a witness in the proceeding and a motion for sequestration has been made and such motion has been granted.
(g) Upon hearing, the circuit court may dismiss the petition or enter a personal safety protection order for a period of eighteen months. The hearing may be continued on motion of the respondent in the discretion of the court. Otherwise, the hearing may be continued by the court no more than seven days. If a hearing is continued, the circuit court may modify the emergency personal safety protection order as it deems necessary.
§62-10A-12. Issuance of personal safety protection order; modification of final order.
(a) Upon final hearing, the court shall enter a personal safety protection order if it finds, after hearing the evidence, that the petitioner has proven the allegations in the petition. If the respondent is present at the hearing and elects not to contest the allegations or does not contest the relief sought, the petitioner is not required to produce evidence and prove the allegations and the court may directly address the issues of the relief requested.
(b) The court may modify the terms of a personal safety protection order at any time upon subsequent motion filed by any party.
§62-10A-13. Mandatory provisions in personal safety protection orders.
A personal safety protection order shall order the respondent to refrain from any direct or indirect contact with the petitioner or engaging in other conduct that would place the petitioner in reasonable fear of bodily injury.
§62-10A-14. Permissive provisions in personal safety protection order.
The terms of a personal safety protection order may:
(1) Order the respondent to refrain from contacting attempting to contact, the petitioner by any means including through third parties regardless of whether those third parties know of the order.
(2) Order the respondent to refrain from entering or remaining present in the immediate environs of the petitioner’s residence, school, place of employment or other specified places at times when the petitioner is present.
(3) The court, in its discretion, may prohibit a respondent from possessing a firearm as defined in section seven, article seven, chapter sixty-one of this code if:
(A) A weapon was used or threatened to be used in the commission of the offense predicating the petitioning for the personal safety protection order; or
(B) The respondent has violated any prior order entered under this article.
(4) Order other relief deemed necessary and appropriate by the court.
§62-10A-15. Provisions in personal safety protection order for person witnessing a crime of violence against the person.
When the person to be protected is a person who reported or was a witness to the crime of violence against the person, the terms of the order may direct:
(1) The respondent to refrain from abusing, contacting, telephoning, communicating, harassing, verbally abusing or otherwise intimidating the person to be protected;
(2) The respondent to refrain from entering the school, business or place of employment of the person to be protected for the purpose of violating the personal safety protection order; and
(3) The respondent to refrain from entering or being present in the immediate environs of the residence of the petitioner.
§62-10A-16. Time period a protective order is in effect; extension of order; notice of order or extension.
(a) A personal safety protection order, entered by the circuit court pursuant to this article, is effective for eighteen months. Upon receipt of a written request for renewal from the petitioner prior to the expiration of the original order, the circuit court shall extend its order for another six months.
(b) The court may extend a protective order entered pursuant to subsection (a) of this section for whatever period the court considers necessary to protect the physical safety of the petitioner or those persons for whom a petition may be filed as provided in section five of this article, if the court finds by a preponderance of evidence, after a hearing of which respondent has been given notice, that:
(1) A material violation of the existing protective order has occurred; or
(2) The totality of the circumstances presented to the court require the extension to protect the physical safety of the petitioner or those persons for whom a petition may be filed in section five of this article.
(c) To be effective, a written request for extension must be submitted to the court prior to the expiration of the original order period. A notice of the extension shall be sent by the clerk of the court to the respondent by first-class mail, addressed to the last known address of the respondent as indicated by the court file. The extension of time is effective upon mailing of the notice.
(d) Certified copies of any order entered or extension notice made under the provisions of this section shall be served upon the respondent by first class mail, addressed to the last known address of the respondent as indicated by the court file, and delivered to the petitioner and any law-enforcement agency having jurisdiction to enforce the order, including the city police, the county sheriff's office or local office of the West Virginia State Police, within twenty-four hours of the entry of the order.
(e) The circuit court may modify the terms of personal safety protection order upon motion of either party.
(f) The clerk of the circuit court shall cause a copy of any personal safety protection order entered by the circuit court pursuant to the provisions of this article to be forwarded to the magistrate or magistrate court clerk and the magistrate or magistrate court clerk shall forward a copy of the protective order to the appropriate state agencies for registration.
§62-10A-17. Mutual personal safety protection orders prohibited.
Mutual personal safety protection orders are prohibited unless both parties have filed a petition under this article and have proven the allegations contained therein by a preponderance of the evidence. This does not prevent other persons, including the respondent, from filing a separate petition. The court may consolidate two or more petitions if he or she determines that consolidation will further the interest of justice and judicial economy. The court shall enter a separate order for each petition filed.
(a) A petitioner who has been denied an emergency personal safety protection order, may file a petition for appeal of the denial, within five days of the denial, to the circuit court.
(b)Appeals from adverse decisions of the circuit court must be filed within ten days of the entry of the final order.
(c) The standard of review of the action below by the circuit court is de novo.
§62-10A-19. Purging of protection order files.
Six months after the expiration of a final personal safety protection order, the circuit court may, upon motion, order that personal safety protection order and all references to the order be purged from the files maintained by any law-enforcement agency and may further order that the file maintained by the court be sealed and not opened except upon order of the court when such is in the interest of justice.
§62-10A-20. Filing of orders with law-enforcement agency.
(a) Upon entry of any order pursuant to this article and granting relief provided for by this article, a copy of the order shall, no later than the close of the next business day, be transmitted by the court or the clerk of the court to a local office of the municipal police, the county sheriff, the West Virginia State Police and any other appropriate law-enforcement agency where it shall be placed in a confidential file with access provided only to law-enforcement, the petitioner and the respondent named on the order.
(b) Orders shall be promptly served upon the respondent. Failure to serve a personal safety protection order on the respondent does not stay the effect of a valid order if the respondent has actual notice of the existence and contents of the order.
§62-10A-21. Service of pleadings and orders by law-enforcement officers.
Notwithstanding any other provision of this code to the contrary, all law-enforcement officers are hereby authorized to serve all pleadings and orders filed or entered pursuant to this article on Sundays and legal holidays. No law-enforcement officer may refuse to serve any pleadings or orders entered pursuant to this article.
§62-10A-22. Registry of protection orders.
(a) A court which enters a personal safety protection order pursuant to this article shall immediately register such order in the domestic violence database established pursuant to the provisions of section twenty-one, article one, chapter fifty-one of this code. A protected individual who obtains a protection order from a jurisdiction outside of this state pursuant to its law, or his or her representative as provided in section five, article twenty-eight of this chapter, may register that order with the West Virginia Supreme Court of Appeals for entry in the domestic violence database established pursuant to the provisions of section twenty-one, article one, chapter fifty-one of this code.
(b) Failure to register an order as provided in this section does not affect its enforceability in any county or jurisdiction.
§62-10A-23. Limitation on use of information.
Nothing in this article authorizes the inclusion of information contained in a report of an incident of abuse in any local, state, interstate, national or international systems of criminal identification pursuant to section twenty-four, article two, chapter fifteen of this code. Nothing in this section prohibits the West Virginia State Police from processing information through its criminal identification bureau with respect to any actual charge or conviction of a crime.
§62-10A-24. Civil contempt; violation of personal safety protection orders; order to show cause.
(a) Any party to a personal safety protection order or a legal guardian or guardian ad litem may file a petition for civil contempt alleging a violation of an order issued pursuant to the provisions of this article. The petition shall be filed in the magistrate court, if a magistrate court entered an order, or in the circuit court, if a circuit court entered the order, in the county in which the violation occurred or the county in which the order was issued.
(b) When a petition for an order to show cause is filed, a hearing on the petition shall be held within ten days from the filing of the petition. Any order to show cause which is issued shall be served upon the alleged violator.
(c) Upon a finding of contempt, the court may order the violator to comply with specific provisions of the personal safety protection order and post a bond as surety for faithful compliance with such order. The bond may not be a personal recognizance bond, shall be in an amount that does not exceed the ability of the violator to post and may not be waived by a fee waiver pursuant to section one, article two, chapter fifty-nine of this code.
§62-10A-25. Offenses for violation of personal safety protection order, repeat offenses, penalties.
(a) A respondent who knowingly and willfully violates the terms of: (1) An emergency or final personal safety protection order issued under the provisions of this article granting relief pursuant to the provisions of this article; or (2) a condition of bail, probation or parole which has the express intent or effect of protecting the personal safety of a particular person or persons is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for a period of not less than one day nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than $250 nor more than $2000.
(b) A respondent who is convicted of a third or subsequent offense under subsection (a) of this section is guilty of a felony and, upon conviction thereof, shall, in the discretion of the court, be confined in a correctional facility not less than one nor more than five years, or be confined in jail not exceeding twelve months and fined not exceeding $500.
§62-10A-26. Arrest for violations of personal safety protection orders.
When a civil law-enforcement officer observes any respondent abuse the petitioner or the respondent's physical presence at any location in knowing and willful violation of the terms of an emergency or final personal safety civil protection order issued under the provisions of this article, he or she shall immediately arrest the respondent if:
(1) The law-enforcement officer has observed credible corroborative evidence that the offense has occurred; and
(2) The law-enforcement officer has received, from the victim or a witness, a verbal or written allegation of the facts constituting a violation of section nine hundred three of this article; or
(3) The law-enforcement officer has observed credible evidence that the accused committed the offense.
§62-10A-27. Forms to be provided.
The West Virginia Supreme Court of Appeals shall prescribe forms which are necessary and convenient for proceedings pursuant to this article and the court shall distribute such forms to the clerk of the circuit court, the secretary-clerk of the circuit court and the clerk of the magistrate court of each county within the state.
§62-10A-28. Immunity from liability for filing a report or complaint or participating in a judicial proceeding concerning alleged harassment or stalking; rebuttable presumption of good faith.
A person who seeks relief pursuant to the article who is acting in good faith is immune from criminal and civil liability for those actions.
(NOTE: Strike throughs indicate language that would be stricken from the present law and underscoring indicates new language that would be added.)