H. B. 2577
(By Delegates Williams and Amores)
[Introduced February 21, 2005; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §52-1-1, §52-1-7, §52-1-8, §52-1-11,
§52-1-23 and §52-1-24 of the Code of West Virginia, 1931, as
amended; to amend said code by adding thereto two new
sections, designated §52-1-10a and §52-1-23a; to amend and
reenact §52-3-1 of said code; and to amend said code by adding
thereto a new article, designated §52-4-1, all relating to
petit jury service.
Be it enacted by the Legislature of West Virginia:
That §52-1-1, §52-1-7, §52-1-8, §52-1-11, §52-1-23 and
§52-1-24 of the Code of West Virginia, 1931, as amended, be amended
and reenacted; that said code be amended by adding thereto two new
sections, designated §52-1-10a and §52-1-23a; that §52-3-1 of said
code be amended and reenacted; and that said code be amended by
adding thereto a new article, designated §52-4-1, all to read as
follows:
ARTICLE 1. PETIT JURIES.
§52-1-1. Declaration of policy.
It is the policy of this state that all persons selected for
jury service be selected at random from a fair cross section of the
population of the area served by the court, and that all citizens
have the opportunity in accordance with this article to be
considered for jury service and an obligation to serve as jurors
when summoned for that purpose, unless excused.
§52-1-7. Drawings from the jury wheel or jury box; notice of jury
duty; penalties.
(a) The chief judge of the circuit, or the judge in a single
judge circuit, shall provide by order rules relating to the random
drawing by the clerk of panels from the jury wheel or jury box for
juries in the circuit and magistrate courts. The rules may allow
for the drawing of panels at any time. Upon receipt of the
direction and in the manner prescribed by the court, the clerk
shall publicly draw at random from the jury wheel or jury box the
number of jurors specified.
(b) If a jury is ordered to be drawn, the clerk thereafter
shall cause each person drawn for jury service to be notified not
less than twenty days before the date for which the persons are to
report for jury duty with a summons and juror qualification form,
if such form has not already been completed, by personal service or
first class mail addressed to the person at his or her usual residence, business or post-office address, requiring him or her to
report for jury service at a specified time and place.
(c) A prospective juror who fails to appear as directed by the
summons issued pursuant to subsection (b) of this section shall be
ordered by the court to appear and show cause for failure to appear
as directed. If the prospective juror fails to appear pursuant to
the court?s order or fails to show good cause for failure to appear
as directed by the summons, he or she is guilty of civil contempt
and shall be fined not more than one thousand dollars.
The
prospective juror may be excused from paying sanctions for good
cause shown or in the interests of justice. In addition to or in
lieu of the fine, the court may order that the prospective juror
complete a period of community service for a period no less than if
the prospective juror would have completed jury service, and
provide proof of completion of this community service to the court.
§52-1-8. Disqualification from jury service.
(a) The court, upon request of a prospective juror or on its
own initiative, shall determine on the basis of information
provided on the juror qualification form or interview with the
prospective juror or other competent evidence whether the
prospective juror is disqualified for jury service
pursuant to
subsection (b) of this section. The clerk shall enter this
determination in the space provided on the juror qualification form
and on the alphabetical lists of names drawn from the jury wheel or jury box.
(b) A prospective juror is disqualified to serve on a jury if
the prospective juror:
(1) Is not a citizen of the United States, at least eighteen
years old and a resident of the county;
(2) Is unable to read, speak and understand the English
language. For the purposes of this section, the requirement of
speaking and understanding the English language is met by the
ability to communicate in American sign language or signed English;
(3) Is incapable, by reason of substantial physical or mental
disability, of rendering satisfactory jury service; but a person
claiming this disqualification
or the person?s personal
representative may shall be required to submit a physicians
certificate as to the disability and the certifying physician is
subject to inquiry by the court at its discretion;
(4) Has, within the preceding two years, been summoned to
serve as a petit juror, grand juror or magistrate court juror, and
has actually attended sessions of the magistrate or circuit court
and been reimbursed for his or her expenses as a juror pursuant to
the provisions of section twenty-one of this article, section
thirteen, article two of this chapter, or pursuant to an applicable
rule or regulation of the Supreme Court of Appeals promulgated
pursuant to the provisions of section eight, article five, chapter
fifty of this code;
(5) Has lost the right to vote because of a criminal
conviction; or
(6) Has been convicted of perjury, false swearing or other
infamous offense.
(c) A prospective juror sixty-five years of age or older is
not disqualified from serving, but shall be excused from service by
the court upon the juror?s request.
(d) A prospective grand juror is disqualified to serve on a
grand jury if the prospective grand juror is an officeholder under
the laws of the United States or of this state except that the term
"officeholder" does not include notaries public.
(e) A person who is physically disabled and can render
competent service with reasonable accommodation shall not be
ineligible to act as juror or be dismissed from a jury panel on the
basis of disability alone:
Provided, That the circuit judge shall,
upon motion by either party or upon his or her own motion,
disqualify a disabled juror if the circuit judge finds that the
nature of potential evidence in the case including, but not limited
to, the type or volume of exhibits or the disabled juror?s ability
to evaluate a witness or witnesses, unduly inhibits the disabled
juror?s ability to evaluate the potential evidence. For purposes
of this section:
(1) Reasonable accommodation includes, but is not limited to,
certified interpreters for the hearing impaired, spokespersons for the speech impaired and readers for the visually impaired.
(2) The court shall administer an oath or affirmation to any
person present to facilitate communication for a disabled juror.
The substance of such oath or affirmation shall be that any person
present as an accommodation to a disabled juror will not deliberate
on his or her own behalf, although present throughout the
proceedings, but act only to accurately communicate for and to the
disabled juror.
(f) Nothing in this article shall be construed so as to limit
in any way a party?s right to peremptory strikes in civil or
criminal actions.
§52-1-10a. Postponement of jury service.
(a) Notwithstanding any other provisions of this article,
individuals scheduled to appear for jury service have the right to
postpone the date of their initial appearance for jury service one
time only. When requested, postponements shall be granted,
provided that:
(1) The juror has not previously been granted a postponement;
(2) The prospective juror appears in person or contacts the
clerk of the court by telephone, electronic mail, or in writing to
request a postponement; and
(3) Prior to the grant of a postponement with the concurrence
of the clerk of the court, the prospective juror fixes a date
certain on which he or she will appear for jury service that is not more than six months after the date on which the prospective juror
originally was called to serve and on which date the court will be
in session.
(b) A subsequent request to postpone jury service may be
approved by a judicial officer only in the event of an extreme
emergency, such as a death in the family, sudden illness or a
natural disaster or a national emergency in which the prospective
juror is personally involved that could not have been anticipated
at the time the initial postponement was granted. Prior to the
grant of a second postponement, the prospective juror must fix a
date certain on which the individual will appear for jury service
within six months of the postponement on a date when the court will
be in session.
(c) A court shall automatically postpone and reschedule the
service of a summoned juror who is employed by an employer with
five or fewer full-time employees, or their equivalent, if another
employee of that employer has previously been summoned to appear
during the same period. Such postponement will not constitute the
excused individual?s right to one automatic postponement under
subsection (a) of this section.
§52-1-11. Excuses from jury service.
(a) The court, upon request of a prospective juror or on its
own initiative, shall determine on the basis of information
provided on the juror qualification form or interview with the prospective juror or other competent evidence whether the
prospective juror should be excused from jury service. The clerk
shall enter this determination in the space provided on the juror
qualification form.
(b) A person who is not disqualified for jury service under
section eight of this article may be excused from jury service by
the court upon a showing of undue
or extreme physical or financial
hardship,
extreme inconvenience, or public necessity, for a period
the court deems necessary
up to twenty-four months, at the
conclusion of which the person shall reappear for jury service in
accordance with the court?s direction
unless the person was excused
from service permanently. A person is excused from jury service
permanently only when the deciding judge determines that the
underlying grounds for being excused are of a permanent nature.
(1) A judge of the court for which the individual was called
to jury service shall determine whether the individual is to be
exempt from jury service. The authority to make these
determinations is delegable only to court officials or personnel
who are authorized by the laws of this state to function as members
of the judiciary.
(2) A person asking to be excused from jury service under this
section must take all actions necessary to have obtained a ruling
on that request by no later than the date on which the individual
is scheduled to appear for jury duty.
(3) For purposes of this section, "undue or extreme physical
or financial hardship" is limited to circumstances in which an
individual would:
(A) Be required to abandon a person under his or her personal
care or supervision due to the impossibility of obtaining an
appropriate substitute caregiver during the period of participation
in the jury pool or on the jury; or
(B) Incur costs that would have a substantial adverse impact
on the payment of the individual?s necessary daily living expenses
or on those for whom he or she provides the principle means of
support; or
(C) Suffer physical hardship that would result in illness or
disease.
(4) "Undue or extreme physical or financial hardship" does not
exist solely based on the fact that a prospective juror will be
required to be absent from his or her place of employment.
(5) A person asking a judge to grant an excuse based on "undue
or extreme physical or financial hardship" shall be required to
provide the judge with documentation, such as, but not limited to,
federal and state income tax returns, medical statements from
licensed physicians proof of dependency or guardianship, and
similar documents, which the judge finds to clearly support the
request to be excused. Failure to provide satisfactory
documentation shall result in a denial of the request to be excused.
§52-1-23. Length of service by jurors.
In any two-year period a person may not be required:
(1) To serve or attend court
for prospective service as a
juror more than
thirty thirty-one court days,
except if necessary
to complete service in a particular ease unless the prospective
juror is under consideration to serve on a trial and such
consideration covers a period of two or more days or the juror is
serving in connection with an unfinished case in which event the
juror shall serve on the jury for the duration of the trial unless
excused by the presiding judge;
(2) To serve on more than one grand jury;
or
(3) To serve as both a grand and petit juror.
or
(4) To serve as a petit juror at more than one term of court
§52-1-23a. Hardship consideration for counties.
(a) The Supreme Court of West Virginia may grant an exemption
from the requirements of section 52-1-23(1) to implement a one
day, one trial system to trial courts in counties with populations
of less than 10,000 if the trial court system demonstrates good
cause by establishing that:
(1) The cost of implementing a one day, one trial system is so
high that the trial court system would be unable to provide
essential services to the public if required to implement such a
system; or
(2) The requirements of this rule cannot be met because of the
size of the population in the county compared to the number of jury
trials.
(b) Any application for exemption from the requirements of a
one day, one trial system shall demonstrate good cause for the
exemption sought and shall include either:
(1) A plan to fully implement a one day, one trial system by
a specified date; or
(2) An alternative plan that would advance the purposes of
this section to the extent possible, given the conditions of the
county.
(c) If the Supreme Court of West Virginia finds good cause, it
may grant an exemption for a limited period of time and on such
conditions as it deems appropriate to further the purposes of this
section, but in no case shall service of prospective jurors be more
than one week in actual attendance, unless a prospective juror is
selected to serve in a trial or is under consideration to serve in
a trial.
§52-1-24. Penalties for failure to perform jury service.
A person summoned for jury service who fails to appear or to
complete jury service as directed
without having obtained a
postponement or exemption pursuant to this chapter shall be ordered
by the court to appear forthwith and show cause for failure to
comply with the summons. If the person fails to show good cause for noncompliance with the summons, the person is guilty of civil
contempt and, shall be fined not more than one thousand dollars.
The prospective juror may be excused from paying sanctions for good
cause shown or in the interests of justice. In addition to, or in
lieu of, the fine, the court may order that the prospective juror
complete a period of community service for a period no less than if
the prospective juror would have completed jury service, and
provide proof of completion of this community service to the court.
ARTICLE 3. DISCRIMINATION FOR JURY SERVICE.
§52-3-1. Rights of employees summoned for jury duty; right of
action for discrimination against employees summoned
for jury duty; penalties.
(a) Any person who is summoned to serve as a juror and who
notifies his or her employer of such summons within a reasonable
period of time after receipt of a summons and prior to his or her
appearance for jury duty may not be terminated, removed or
otherwise subject to any adverse employment action as a result of
such service.
(b) An employee may not be required or requested to use
annual, vacation or sick leave for time spent responding to a
summons for jury duty, time spent participating in the jury
selection process, or time spent actually serving on a jury.
Nothing in this provision shall be construed to require an employer
to provide annual, vacation or sick leave to employees under the provisions of this statute who otherwise are not entitled to such
benefits under company policies.
(a) (c) Any person who, as an employee, is discriminated
against by his employer because such employee received, or was
served with a summons for jury duty, or was absent from work to
respond to a summons for jury duty or to serve on any jury in any
court of this state, the United States or any state of the United
States, may have an action against his
or her employer in the
circuit court of the county where the jury summons originated or
where the discrimination occurred. If the circuit court finds that
an employer terminated or threatened to terminate from employment,
or decreased the regular compensation of employment of an employee
for time the employee was not actually away from his
or her
employment because the employee served as a juror, the court
may
shall order the employer to cease and desist from this unlawful
practice and order
such affirmative relief, including, but not
limited to, reinstatement of the employee with or without back pay
as will effectuate the purposes of this section.
(b) (d) Nothing in this section shall be construed to require
an employer to pay an employee any wages or other compensation for
the time the employee is actually away from employment for jury
services or to respond to a jury summons.
(c)(e) If the employee prevails in an action under
subsection
(a) (c) of this section, the employee shall be allowed reasonable attorney?s fees as fixed by the court.
(d) (f) Any employer who discriminates against an employee
because the employee received or was served with a summons for jury
duty, or was absent from work to respond to a summons for jury duty
or to serve on any jury in any court of this state, the United
States or any state of the United States, is guilty of civil
contempt and shall be fined not less than one hundred dollars nor
more than five hundred dollars.
ARTICLE 4. LENGTHY TRIAL FUND.
§52-4-1. Lengthy Trial Fund.
The Supreme Court of West Virginia shall promulgate rules to
establish a Lengthy Trial Fund that shall be used to provide full
or partial wage replacement or wage supplementation to jurors who
serve as petit jurors for more than ten days.
(a) The court rules shall provide for the following:
(1) The selection and appointment of an administrator for the
Fund;
(2) Procedures for the administration of the Fund, including
payments of salaries of the administrator and other necessary
personnel;
(3) Procedures for the accounting, auditing and investment of
money in the Lengthy Trial Fund; and
(4) A report by the Supreme Court of West Virginia on the
administration of the Lengthy Trial Fund in its annual report on the judicial branch, setting forth the money collected for and
disbursed from the Fund.
(b) Notwithstanding any other fees payable under the laws of
this state, each trial court in the state shall collect from each
attorney who files a civil case, unless otherwise exempted under
the provisions of this section, a fee of ten dollars per case to be
paid into the Lengthy Trial Fund. A lawyer will be deemed to have
"filed a case" at the time the first pleading or other filing on
which an individual lawyer?s name appears is submitted to the court
for filing and opens a new case. All such fees shall be forwarded
to the administrator of the Lengthy Trial Fund for deposit.
(c) The administrator shall use the fees deposited in the
Lengthy Trial Fund to pay full or partial wage replacement or wage
supplementation to jurors whose employers pay less than full
regular wages when the period of jury service lasts more than ten
days.
(d) The court may pay replacement or supplemental wages of up
to three hundred dollars per day per juror beginning on the
eleventh day of jury service. In addition, for any jurors who
qualify for payment by virtue of having served on a jury for more
than ten days, the court may, upon finding that such service posed
a significant financial hardship to a juror, even in light of
payments made with respect to jury service after the tenth day,
award replacement or supplemental wages of up to one hundred dollars per day from the fourth to the tenth day of jury service.
(e) Any juror who is serving or has served on a jury that
qualifies for payment from the Lengthy Trial Fund, provided the
service commenced on or after the effective date of this article,
may submit a request for payment from the Lengthy Trial Fund on a
form that the administrator provides. Payment shall be limited to
the difference between the state paid jury fee and the actual
amount of wages a juror earns, up to maximum level payable, minus
any amount the juror actually receives from the employer during the
same time period.
(1) The form shall disclose the juror?s regular wages, the
amount the employer will pay during the term of jury service
starting on the eleventh day and thereafter, the amount of
replacement or supplemental wages requested, and any other
information the administrator deems necessary for proper payment.
(2) The juror also shall be required to submit verification
from the employer as to the wage information provided to the
administrator, for example, the employee?s most recent earnings
statement or similar document, prior to initiation of payment from
the Fund.
(3) If an individual is self-employed or receives compensation
other than wages, the individual may provide a sworn affidavit
attesting to his or her approximate gross weekly income, together
with such other information as the administrator may require, in order to verify weekly income.
(f) The following attorneys and causes of action are exempt
from payment of the Lengthy Trial Fund fee:
(1) Government attorneys entering appearances in the course of
their official duties;
(2)
Pro se litigants;
(3) Cases in small claims court or the state equivalent
thereof; or
(4) Claims seeking social security disability determinations;
individual veterans' compensation or disability determinations;
recoupment actions for government backed educational loans or
mortgages; child custody and support cases; actions brought
in
forma pauperis; and any other filings designated by rule that
involve minimal use of court resources and that customarily are not
afforded the opportunity for a trial by jury.
(g) The provisions of this article are severable. If any
portion of this article is declared unconstitutional or the
application of any part of this article to any person or
circumstance is held invalid, the remaining portions of the article
and their applicability to any person or circumstance shall remain
valid and enforceable.
(h) This article shall take effect and be in force from and
after the first day of July, two thousand five.
NOTE: The purpose of this bill is to set forth certain
standards for petit juror service.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§
§
§52-1-10a, 52-1-23a and 52-4-1 are new; therefore,
strike-throughs and underscoring have been omitted.
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