H. B. 4578
(By Delegates Staggers, (By Request), Perry,
Moye, and M. Poling)
[Introduced
February 19, 2010
; referred to the
Committee on Government Organization then the Judiciary.]
A BILL to amend and reenact §29A-5-1 of the Code of West Virginia,
1931, as amended, relating to providing that hearing examiners
conducting state agency administrative hearings be selected
from a panel of five hearing examiners by a process in which
the state agency first strikes two hearing examiners and the
respondent subsequently strikes two hearing examiners.
Be it enacted by the Legislature of West Virginia:
That §29A-5-1 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5. CONTESTED CASES.
§29A-5-1. Notice required; hearing; subpoenas; witness fees, etc.;
depositions; records.
(a) In any contested case all parties shall be afforded an
opportunity for hearing after at least ten days' written notice.
The notice shall contain the date, time and place of the hearing and a short and plain statement of the matters asserted. If the
agency is unable to state the matters in detail at the time the
notice is served, the initial notice may be limited to a statement
of the issues involved. Thereafter, upon application a more
definite and detailed statement shall be furnished. An opportunity
shall be afforded all parties to present evidence and argument with
respect to the matters and issues involved. The required notice
must be given as specified in section two, article seven of this
chapter. All of the testimony and evidence at any such hearing
shall be reported by stenographic notes and characters or by
mechanical means. All rulings on the admissibility of testimony
and evidence shall also be reported. The agency shall prepare an
official record, which shall include reported testimony and
exhibits in each contested case, and all agency staff memoranda and
data used in consideration of the case, but it shall not be
necessary to transcribe the reported testimony unless required for
purposes of rehearing or judicial review. Informal disposition may
also be made of any contested case by stipulation, agreed
settlement, consent order or default. Each agency shall adopt
appropriate rules of procedure for hearing in contested cases.
(b) For the purpose of conducting a hearing in any contested
case, any agency which now has or may be hereafter expressly
granted by statute the power to issue subpoenas or subpoenas duces tecum or any member of the body which comprises such agency may
exercise such power in the name of the agency. Any such agency or
any member of the body which comprises any such agency may exercise
such power in the name of the agency for any party upon request.
Under no circumstances shall this chapter be construed as granting
the power to issue subpoenas or subpoenas duces tecum to any agency
or to any member of the body of any agency which does not now by
statute expressly have such power. When such power exists, the
provisions of this section shall apply. Every such subpoena and
subpoena duces tecum shall be served at least five days before the
return date thereof, either by personal service made by any person
over eighteen years of age or by registered or certified mail, but
a return acknowledgment signed by the person to whom the subpoena
or subpoena duces tecum is directed shall be required to prove
service by registered or certified mail. All subpoenas and
subpoenas duces tecum shall be issued in the name of the agency, as
aforesaid, but any party requesting their issuance must see that
they are properly served. Service of subpoenas and subpoenas duces
tecum issued at the instance of the agency shall be the
responsibility of the agency. Any person who serves any such
subpoena or subpoena duces tecum shall be entitled to the same fee
as sheriffs who serve witness subpoenas for the circuit courts of
this state; and fees for the attendance and travel of witnesses shall be the same as for witnesses before the circuit courts of
this state. All such fees shall be paid by the agency if the
subpoena or subpoena duces tecum were issued, without the request
of an interested party, at the instance of the agency. All such
fees related to any subpoena or subpoena duces tecum issued at the
instance of an interested party shall be paid by the party who asks
that such subpoena or subpoena duces tecum be issued. All requests
by interested parties for subpoenas and subpoenas duces tecum shall
be in writing and shall contain a statement acknowledging that the
requesting party agrees to pay such fees. Any such agency may
compel the attendance of witnesses and the production of books,
records or papers in response to such subpoenas and subpoenas duces
tecum. Upon motion made promptly and in any event before the time
specified in a subpoena duces tecum for compliance therewith, the
circuit court of the county in which the hearing is to be held, or
the circuit court in which the subpoena duces tecum was served, or
the judge of either such court in vacation, may grant any relief
with respect to such subpoena duces tecum which either such court,
under the West Virginia Rules of Civil Procedure for Trial Courts
of Record, could grant, and for any of the same reasons, with
respect to a subpoena duces tecum issued from either such court.
In case of disobedience or neglect of any subpoena or subpoena
duces tecum served on any person, or the refusal of any witness to testify to any matter regarding which he
or she may be lawfully
interrogated, the circuit court of the county in which the hearing
is being held, or the judge thereof in vacation, upon application
by such agency or any member of the body which comprises such
agency, shall compel obedience by attachment proceedings for
contempt as in the case of disobedience of the requirements of a
subpoena or subpoena duces tecum issued from such circuit court or
a refusal to testify therein. Witnesses at such hearings shall
testify under oath or affirmation.
(c) Evidentiary depositions may be taken and read as in civil
actions in the circuit courts of this state.
(d) All hearings shall be conducted in an impartial manner.
The agency, any member of the body which comprises the agency, or
any hearing examiner or other person permitted by statute to hold
any such hearing for such agency, and duly authorized by such
agency so to do, shall have the power to: (1) Administer oaths and
affirmations, (2) rule upon offers of proof and receive relevant
evidence, (3) regulate the course of the hearing, (4) hold
conferences for the settlement or simplification of the issues by
consent of the parties, (5) dispose of procedural requests or
similar matters, and (6) take any other action authorized by a rule
adopted by the agency in accordance with the provisions of article
three of this chapter.
Notwithstanding any provision in this code to the contrary, in any such hearing to be conducted by a hearing
examiner, the hearing examiner shall be selected from a panel of
five hearing examiners by a process in which the agency first
strikes two hearing examiners from the panel and the respondent
subsequently strikes two hearing examiners from the panel.
(e) Except where otherwise provided by statute, the hearing in
any contested case shall be held in the county selected by the
agency.
(f) Notwithstanding the provisions of subparagraph (a) of this
section, upon request to the agency from any party to the hearing
all reported testimony and evidence at such hearing shall be
transcribed, and a copy thereof furnished to such party at his
or
her expense. The agency shall have the responsibility for making
arrangements for the transcription of the reported testimony and
evidence, and such transcription shall be accomplished with all
dispatch.
NOTE: The purpose of this bill is to provide that hearing
examiners conducting state agency administrative hearings be
selected from a panel of five hearing examiners by a process in
which the state agency first strikes two hearing examiners and the
respondent subsequently strikes two hearing examiners.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.