COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 505
(By Senators Anderson, Love, Helmick, Minear, McKenzie, Ross,
Prezioso, Edgell, Schoonover, Fanning, Boley, Sprouse, Unger,
Dittmar, Snyder, Minard, Bailey, Ball, Bowman and Deem)
____________
[Originating in the Committee on Finance;
reported March 5, 1999.]
____________
A BILL to repeal section thirteen-a, article twenty-one, chapter
twenty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact sections
three, six, eight, nine, ten, eleven, twelve and thirteen of
said article; and to further amend said article by adding
thereto a new section, designated section three-a, all
relating to public defender services; extending termination
date to two thousand four; vesting the executive director and
board with authority now conferred upon the public defender
services agency and permitting the employment of both full-time and part-time attorneys; changing the manner of
appointment of panel attorneys; limiting panel attorneys to
five hundred hours per year unless he or she obtains an order
from the circuit court; creating the public defender advisory
board; authority to remove employees and board members for
misfeasance or malfeasance; removing the sections relating to
public defender corporations funding; requiring services
provided by circuit clerks and magistrate clerks to be free of
charge to public defender corporations; authorizing imposition
of administrative service fee on vouchers by agency; and
funding of defender corporations, annual budgets and
recordkeeping.
Be it enacted by the Legislature of West Virginia:
That section thirteen-a, article twenty-one, chapter twenty- nine of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be repealed; that sections three, six,
eight, nine, ten, eleven, twelve and thirteen of said article be
amended and reenacted; and that said article be further amended by
adding thereto a new section, designated section three-a, all to
read as follows:
ARTICLE 21. PUBLIC DEFENDER SERVICES.
§29-21-3. Establishment of public defender services, termination
date.
There is hereby created an executive agency known as public
defender services. The agency shall administer, coordinate and
evaluate programs by which the state provides legal representation
to indigent persons, monitor the progress of various delivery
systems and recommend improvements. The agency shall maintain its
office at the state capital.
Pursuant to the provisions of article ten, chapter four of
this code, public defender services shall continue to exist until
the first day of July, two thousand four.
§29-21-3a. Public defender advisory board; duties; composition;
qualifications.
(a) There is hereby established an advisory board known as the
"public defender services advisory board". The purpose of this
Board is to review and comment on operating policies and procedures
and advise the executive director with respect thereto. In
furtherance of its duties the board may inspect any and all
records, reports and other materials written or maintained by
public defender services or public defender corporations insofar as
maintenance of client confidentiality may allow.
(b) The board shall be composed of three members appointed by
the governor. One of the members shall be chosen from a list of
three persons nominated by the president of the Senate. One of the
members shall be chosen from a list of three persons nominated by
the speaker of the House of Delegates. No more than two members
may be of the same political party. These members shall serve at
the will and pleasure of the governor and shall serve without
compensation except for reimbursement of reasonable and necessary
expenses. They shall continue to serve until their successors are
appointed.
(c) Notwithstanding any provision of this code to the
contrary, the board is hereby vested with the authority to remove
any employee of public defender services or of any corporation or
board member thereof, the existence of which is authorized by the
provisions of section eight of this article upon a determination by
a majority of the board that misfeasance or malfeasance has
occurred.
§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
such other grants and contracts as 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 for in section seven of this article. This center shall
undertake directly, or by grant or contract, to serve as a
clearinghouse for information; to provide training and technical
assistance relating 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 executive
director shall have the authority to reduce or reject vouchers or requests for payment submitted by panel attorneys appointed
pursuant to section nine of this article when such vouchers or
requests for payment reflect that the provisions of this article or
the rules promulgated thereunder have not been complied with. The
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 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
section eighteen of this article.
The 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 utilized in administration of the respective
offices, so as to compare such time to similar time expended in
nonpublic law offices for like activities.
The 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
a person designated by the executive director 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 such 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 utilize the resources of the
appellate division the executive director may restrict the
provision of appellate representation to certain types of cases.
The executive director is empowered to select and employ staff
attorneys to perform the duties prescribed by this subsection. The
division shall maintain records of representation of eligible
clients for record purposes only.
§29-21-8. Public defender corporations.
(a) In each judicial circuit of the state, there is hereby created a "public defender corporation" of the circuit. The
purpose of these public defender corporations is to provide legal
representation in the respective circuits in accordance with the
provisions of this article.
(b) If the judge of a single-judge circuit, the chief judge of
a multi-judge circuit or a majority of the active members of the
bar in the circuit determine there is a need to activate any
corporation, they shall certify that fact in writing to the
executive director. The executive director may allocate funds to
those corporations in the order in which he or she deems most
efficient and cost effective.
A public defender corporation may be activated solely at the
instance of the executive director with the agreement of the public
defender advisory board upon a finding supported by objective
evidence that effective representation of eligible indigent
defendants can be accomplished more effectively and economically by
the implementation of a public defender corporation.
(c) The executive director may merge, with the agreement of
the public defender advisory board, public defender corporations to
form multicircuit or regional public defender corporations where to
do so would improve the quality of services and efficient use of
resources. Public defender corporations may employ both full-time and part-time attorneys in whatever combination may be most cost
effective.
§29-21-9. Panel attorneys.
(a) In each circuit of the state, the circuit court shall
establish and maintain regional and local panels of private
attorneys-at-law who shall be available to serve as counsel for
eligible clients.
An attorney-at-law may become a panel attorney and be enrolled
on the regional or local panel, or both, to serve as counsel for
eligible clients, by informing the court. An agreement to accept
cases generally or certain types of cases particularly shall not
prevent a panel attorney from declining an appointment in a
specific case.
(b) In all cases where an attorney-at-law is required to be
appointed for an eligible client, the appointment shall be made by
the circuit judge as follows:
(1) In circuits where a public defender office is in
operation, the judge shall appoint the public defender office
unless such appointment is not appropriate due to a conflict of
interest or unless the public defender corporation board of
directors or the public defender, with the approval of the board,
has notified the court that the existing caseload cannot be increased without jeopardizing the ability of defenders to provide
effective representation.
(2) If the public defender office is not available for
appointment, the court shall appoint one or more permanent part- time attorneys employed by the public defender corporation in that
circuit.
(3) If there is no permanent part-time attorney available or
such an attorney is available but a conflict of interest exists,
the judge shall appoint one or more panel attorneys from the
circuit.
(4) If there is no local panel attorney available, the judge
may appoint a public defender office from an adjoining circuit if
such public defender office agrees to the appointment.
(5) If the adjoining public defender office does not accept
the appointment the judge may appoint a panel attorney from an
adjoining circuit.
(6) If a panel attorney from an adjoining circuit is
unavailable, the judge may appoint a panel attorney from any
circuit.
§29-21-10. Public defender corporation funding; annual budgets;
funding; record keeping by public defender corporations.
(a) On or before the first day of May of each year, every public defender corporation shall submit to the executive director
a proposed budget for the next ensuing fiscal year. The accounting
and auditing division shall review all funding applications and the
executive director shall prepare recommendations for an operating
plan and annual budget for each public defender corporation. Upon
consultation with each corporation board a funding contract shall
be executed for the fiscal year and funds committed for that
purpose.
(b) Funding contracts may be amended during a fiscal year
when an amended contract is necessary to provide cost effective
representation based upon unanticipated increase in case load or
unexpected expenses are incurred.
(c) Funding of public defender corporations or other programs
or entities providing legal representation under the provisions of
this article shall be by annual grants disbursed in such periodic
allotments as the executive director shall deem appropriate.
(d) All recipients of funding under this article shall
maintain such records as required by the executive director.
§29-21-11. 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 upon completion of each case, exclusive of appeal, shall submit to the appointing court a voucher for
services. Claims for fees and expense reimbursements shall be
submitted to the appointing court on forms approved by the
executive director. Claims for attorney services received by
public defender services more than six months after the last date
of service shall be rejected: Provided, That no voucher submitted
for payment prior to the first day of July, one thousand nine
hundred ninety-nine reflecting a date of service of four years or
less prior to submission shall be rejected solely due to having
been submitted more than six months after the last date of service.
The appointing court 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.
(b) 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. If properly authenticated
such billings shall not be subject to the time limitation set forth
in subsection (a) of this section.
(c) 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 ninety days 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,
may not exceed the limitations on fees and expenses imposed by this
section.
(d) 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 an attorney's work performed out of court,
compensation shall be at the rate of forty-five dollars per hour.
For a 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 may the compensation exceed twenty dollars per
hour. Out-of-court work includes, but is not limited to,
interviews of clients or witnesses, preparation of pleadings, and
prehearing or pretrial research and all time spent waiting for
hearings before judges, magistrates, special masters or other
judicial officers. Time spent in travel may not be billed. Only
travel expenses authorized by rules promulgated pursuant to section
eleven, article eight, chapter twelve of this code may be allowed.
(2) For attorney's work performed in court, compensation shall
be at the rate of sixty-five dollars per hour. No compensation for
paralegal's work performed in court may be allowed. In-court work
includes only time spent in hearing or trial before a judge,
magistrate, special master or other judicial officer.
(3) 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, three thousand dollars unless
the court, for good cause shown, approves payment of a larger sum.
(4) Except when actually in trial no panel attorney shall be
paid for more than ten hours per day for his or her court-appointed
services. No panel attorney shall be paid for more than five
hundred hours of court-appointed work in a calendar year unless he
or she maintains an office containing findings reflecting that
there is a need for the panel attorney to exceed the limit in order
that eligible indigent clients service representation.
(e) 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 fifteen hundred dollars unless the court, for good
cause shown, approves reimbursement of a larger sum.
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.
(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 as set forth in section four,
article seven, chapter fifty-one of this code.
(B)(i) There 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 bench or
jury trial, where the preliminary hearing or jury trial has also
been recorded electronically in accordance with the provisions of
section eight, article five, chapter fifty of this code or court
rule.
(ii) Reimbursement of an appearance fee for a court reporter
who reports a proceeding other than one described in subparagraph
(i) of this paragraph, is limited to twenty-five dollars. Where a
transcript of a proceeding is produced, there may be no
reimbursement for the expense of any appearance fee.
(iii) There 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.
(C) Reimbursement of the cost of transcription of tapes electronically recorded during preliminary hearings or magistrate
court jury trials is limited to the rates established by the
supreme court of appeals for the reimbursement of transcriptions of
electronically recorded hearings and trial.
(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 section eleven, article eight,
chapter twelve of this code and administered by the secretary of
the department of administration pursuant to the provisions of
section forty-eight, article three, chapter five-a of this code.
(3) Reimbursement for investigative services is limited to a
rate of thirty dollars per hour for work performed by an
investigator.
(f) For purposes of compensation under this section, an appeal
from a final order of the circuit court, or a writ seeking an
extraordinary remedy is considered a separate case. Appeals from
magistrate court to circuit court is considered a separate case.
(g) 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 must 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 must
indicate the fact and sufficiently identify the several charges so
as to enable the court to avoid a duplication of compensation for
services rendered. The executive director must refuse to
requisition payment for any voucher which is not in conformity with
the record keeping, compensation or other provisions of this
article, or of the voucher instructions issued pursuant to section
six of this article, and in that circumstance must return the
voucher to the court or to the service provider for further review
or correction. The voucher instructions control for all matters
not specifically covered in this article.
§29-21-12.Circuit clerks, magistrate clerks and law
enforcement; duty to provide service.
Notwithstanding any other provision of this code to the
contrary, all services provided by circuit clerks and magistrate
clerks must be rendered to public defender corporations free of
charge. All services of law-enforcement personnel including
services of subpoenas and production of investigative reports, test
results or other documents shall be provided free of charge.
§29-21-13
. Administrative service fee; special revenue account.
The executive director may impose an administrative service
fee of five dollars for each voucher submitted. The fee may be
collected by discounting the payment due to the service provider.
The fee shall be deposited into a special revenue account to be
known as the "Public Services Administrative Fee Account" and shall
accrue solely to the benefit of public defender services.