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 the Judiciary;
reported March 2, 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; creating the public defender
advisory board; authority to remove employees and board members for gross 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thirty-one, as amended, be repealed; that sections three, six,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, one thousand nine hundred ninety-nine 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, one
appointed by the governor, one by the president of the Senate and
one 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 appointing official and shall
serve without compensation except for reimbursement of reasonable
and necessary expenses. They shall continue to serve until their
successors are appointed and confirmed.
(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 gross 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 designate 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 designate 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. This 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 accounting and auditing division shall require each public
defender corporation to periodically 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 accounting and auditing division shall provide to the
executive director assistance in the fiscal administration of all
of the agency's divisions. Such This assistance shall include, but
not be limited to, budget preparation and statistical analysis.
(e) The agency shall establish and the executive director or
a person designated by the executive director 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 vouchers and records for 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 the any
corporation, they shall certify that fact in writing to the
executive director. The executive director shall may allocate
funds to those corporations so certifying 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. No
corporation may be activated at the instance of the executive
director if the judge of a single judge circuit, the judges of a
multi-judge circuit and a majority of the active members of the bar
in the circuit object in writing submitted to the executive
director to the activation of the corporation.
(c) The executive director may merge with the agreement of the
public defender advisory board, public defender corporations may
apply in writing to the executive director for permission to merge
to form multicircuit or regional public defender corporations where to do so would improve the quality of services and efficient use of
resources. Applications for mergers shall be subject to the review
procedures set forth in section eleven of this article 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. panel attorneys from the local panel.
(3) If there is no local panel 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 regional panel circuit.
(4) If there is no regional 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.
In circuits where no public defender office is in operation,
the judge shall first refer to the local panel and then to the
regional panel in making appointments, and if an appointment cannot
be made from the panel attorneys, the judge may appoint the public
defender office of an adjoining circuit if the office agrees to the
appointment. In any circuit, when there is no public defender, or
assistant public defender, local panel attorney or regional panel
attorney available, the judge may appoint one or more qualified
private attorneys to provide representation, and such private
attorney or attorneys shall be treated as panel attorneys for that
specific case. In any given case, the appointing judge may alter
the order in which attorneys are appointed if the case requires
particular knowledge or experience on the part of the attorney to
be appointed.
§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. The executive director shall review the funding applications and the
accounting and auditing recommendations and shall, in Upon
consultation with the applicants, prepare a plan for providing
legal services each corporation board a funding contract shall be
executed for the fiscal year and funds committed for that purpose.
(b) Upon final approval of a funding application by the
executive director, the approved budget shall be set forth in an
approval notice. The total cost to the agency shall not exceed the
amount set forth in the approval notice and the agency shall not be
obligated to reimburse the recipient for costs incurred in excess
of the amount unless and until a program modification has been
approved in accordance with the provisions of this article.
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 submitted for attorney services
received by public defender services more than four two years
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 two years 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 six months 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,
shall 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 attorney's work performed out of court, compensation
shall be at the rate of forty-five dollars per hour. 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 may the compensation exceed twenty dollars
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 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 shall may be allowed. In-court
work includes but is not limited to, all only time spent awaiting
in hearing or trial before a judge, magistrate, special master or other judicial officer. if the presence of the attorney is
required.
(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.
(5) No panel attorney shall be paid for more than seven
hundred fifty hours of court-appointed work in a calendar year
unless he or she obtains an order from the circuit court of the
circuit in which 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 client receive
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. Reimbursement of
the cost of copies of such transcripts is limited to the cost per
copy page as provided for under said section. It is the duty of
the executive director of public defender services to maintain
computer records of all transcripts, including originals and
copies, for which payment has been made.
(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 bench or
jury trial, which has been reported by a court reporter at the
request of the attorney, 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 the expense of an appearance fee for a
court reporter who reports a proceeding other than one described in
subparagraph (i) of this paragraph, or who reports a proceeding
which is not reported by an official court reporter acting in his
or her official capacity for the court, is limited to twenty-five
dollars. Where a transcript of a proceeding is produced, there
shall may be no reimbursement for the expense of any appearance
fee. Where a transcript is requested by the attorney after an
appearance fee has been paid, reimbursement of the expense incurred
to obtain the transcript is limited to the cost of producing the
transcript, within the prescribed limitations of paragraph (A) of
this subdivision, less the amount of the paid appearance fee.
(iii) Reimbursement of travel expenses incurred for travel by
a court reporter is subject to the limitations provided by
subdivision (2) of this subsection.
(iv) Except for the appearance fees provided in this
paragraph,
(iii) 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.
(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 proceeding a writ
seeking an extraordinary remedy made to the supreme court of
appeals, shall be 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 shall 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
shall 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 shall
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 such that
circumstance shall 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. Official court reporters; 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 official court reporters,
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.
NOTE: The purpose of this bill is to modify the public
defender services. It extends the termination date to 2004. It
vests the executive director with authority now conferred upon the
public defender services agency and permits the employment of both
full-time and part-time attorneys. It creates the public defender
services advisory board and sets forth the authority of the board.
It changes the manner of appointment of panel attorneys and
removes sections relating to public defender corporations funding.
It creates the public defender services advisory board and sets
forth the authority of the board. It requires services provided by
circuit clerks and magistrate clerks to be free of charge to public
defender corporations. It authorizes imposition of an
administrative service fee of $52.00 on vouchers submitted to the
agency. And, it deals with funding of defender corporations,
annual budgets and record keeping.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Section 10 is taken from the existing section 13. Section 11
is taken from the existing section 13a. Section 13a is repealed,
but actually rewritten as section 11.
Section 3a is new and sections 12 and 13 have been completely
rewritten; therefore strike-throughs and underscoring have been
omitted.