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COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 565
(By Senator Kessler)
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[Originating in the Committee on the Judiciary;
reported February 26, 2003.]
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A BILL to repeal sections thirteen and thirteen-a, article
twenty-one, chapter twenty-nine of the code of West Virginia,
one thousand nine hundred thirty-one, as amended; and to amend
and reenact sections three, five, six, nine, ten, eleven and
twelve of said article, all relating to public defender
services; creating the indigent defense commission; specifying
members and their terms; increasing salary of executive
director; authorizing the executive director to reduce or
reject vouchers; permitting the employment of both full-time
and part-time attorneys; changing the manner of appointment of
panel attorneys; requiring corporations to submit budget;
amending funding contracts; payment of fees to panel
attorneys; requiring services provided to public defender
corporations; authorizing imposition of administrative service
fee on vouchers by agency; and creating a special revenue
account for the fees.
Be it enacted by the Legislature of West Virginia:
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That sections thirteen and thirteen-a, article twenty-one,
chapter twenty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be repealed; and that sections
three, five, six, nine, ten, eleven and twelve of said article be
amended and reenacted, all to read as follows:
ARTICLE 21. PUBLIC DEFENDER SERVICES.
§29-21-3. Establishment of public defender services.
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(a) 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 capitol.
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(b)(1) There is hereby established the indigent defense
commission to advise the executive director with regard to the
general policies and procedures of the agency, including, but not
limited to, the opening of public defender offices throughout the
state and the establishment of performance measures for qualitative
review of indigent defense.
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(2) The commission shall be composed of eight members who
shall be chosen with regard for their expertise in managing
law-related organizations or their expertise in fiscal and
personnel management. Members shall demonstrate a commitment to
the delivery of legal services to the indigent and shall be chosen
from as broad a geographic area as possible. In order to demonstrate a collaborative approach to solving criminal justice
problems, the commission shall be constituted as follows:
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(A) Two former or retired circuit judges to be appointed by
the president of the West Virginia judicial association, one of
whom previously presided in a circuit without an active public
defender corporation;
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(B) One lawyer experienced in providing legal services to the
poor, to be appointed by the president of the West Virginia state
bar;
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(C) One current chief public defender, to be appointed by the
executive director of public defender services;
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(D) The director of the prosecuting attorneys institute, ex
officio;
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(E) The administrative director to the supreme court of
appeals, ex officio; and
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(F) Two nonlawyers with a demonstrated commitment to providing
legal services to the indigent, one to be appointed by the
president of the Senate and one to be appointed by the speaker of
the House of Delegates.
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(3) Commission members shall serve for a term of four years to
coincide with the term of the governor. Upon first meeting after
the beginning of a new gubernatorial term, the members shall select
one of their number to serve as chair for the duration of the
governor's term. Members may be reappointed for an unlimited
number of terms.
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(4) The commission shall meet upon the call of either the chair or the executive director, but shall meet no less than twice
a year. Members shall serve without compensation but may receive
reimbursement of reasonable and necessary expenses.
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(5) Whenever the indigent defense commission casts a vote and
the vote is a tie, the executive director may cast the deciding
vote.
ARTICLE 21. PUBLIC DEFENDER SERVICES.
§29-21-5. Executive director.
(a) The governor shall appoint, by and with the advice and
consent of the Senate, the executive director of public defender
services, who shall serve at the will and pleasure of the governor.
The executive director shall be a qualified administrator as
determined by the governor, and shall be a member of the bar of the
supreme court of appeals. In addition to the executive director
there shall be such other employees as the executive director
determines to be necessary. The executive director shall have the
authority to promulgate rules, and shall have such other authority
and perform such duties as may be required or necessary to
effectuate this article. The executive director shall provide
supervision and direction to the other agency employees in the
performance of their duties.
(b) The executive director's annual salary shall be as
determined by the Legislature. Notwithstanding any provisoin of
this code to the contrary, effective the first day of July, two
thousand three, the salary of the executive director shall be
sixty-five thousand dollars per year.
§29-21-6. Powers, duties and limitations.
(a) Consistent with the provisions of this article, the agency
is authorized to executive director may 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 any other grants and contracts as that are
necessary to carry out the purposes and provisions of this article.
(b) The agency is authorized to executive director may 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 executive director 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 related 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)(1) The agency shall establish and the executive director
or his or her designate 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 may reduce or reject vouchers or requests for
payment submitted by panel attorneys appointed pursuant to section
nine of this article where a voucher or request is in violation of
the provisions of this article. This division The accounting and
auditing 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 accounting and auditing
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.
(2) The accounting and auditing division shall require each
public defender corporation to periodically submit financial
statements monthly and to report monthly on the billable and
nonbillable time of its professional employees, including time
utilized used in administration of the respective offices, so as in
order to compare such the time to similar time expended in
nonpublic law offices for like similar activities.
(3) 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)(1) The agency shall establish and the executive director
or a person designated by the executive director 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 the
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 use the resources of the appellate division, the executive
director may restrict the provision of appellate representation to
certain types of cases.
(2) The executive director is empowered to may 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.
§29-21-9. 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 are 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 may
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 an 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
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(3) If there is no local panel permanent part-time attorney
available, 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 the 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; or
(6) If a panel attorney from an adjoining circuit is
unavailable, the judge may appoint a panel attorney from any
circuit.
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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. Upon
consultation with each corporation board, the executive director
shall execute a funding contract for the fiscal year and shall
commit funds 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 may not be
obligated to reimburse the recipient for costs incurred in excess
of that amount unless and until a program modification has been
approved in accordance with the provisions of this article. At the
discretion of the executive director, when case loads rise or
unusual expenses occur, funding contracts may be amended during a
fiscal year when an amended contract is necessary to provide
cost-effective representation.
(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 periodic
allotments that the executive director considers appropriate.
(d) All recipients of funding under this article shall
maintain the records required by the executive director.
§29-21-11. Compensation and expenses for panel attorneys.
(a)(1) 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 after the first day of January, two thousand
three. Absent just cause, the executive director shall reject
claims for attorney services by public defender services received
more than one hundred eighty calendar days after the last date of
service.
(2) 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.
(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 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 attorney's work performed out of court, compensation
is at the rate of forty-five dollars per hour. For paralegal's
work performed out of court for the attorney, compensation is 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, 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 is at
the rate of sixty-five dollars per hour. Compensation for paralegal's work performed in court is not 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 approved by the court; for
all other eligible proceedings, three thousand dollars unless the
court, for good cause shown, approves payment of a larger sum.
(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 approved by the court. 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, may 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 one dollar per page.
(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 made to the supreme court of appeals, is
considered a separate case. An appeal 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 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
indicate that fact and sufficiently identify the several charges
in order to enable the court to avoid a duplication of compensation
for services rendered. The executive director shall 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 shall return the voucher to the court or to the service provider for further review
or correction. The voucher instructions control all matters not
specifically covered in this article.
§29-21-12. 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 create an indigent
defense commission to advise the executive director on policies and
procedures of public defender services. The bill gives the
executive director the authority to reduce or reject vouchers and,
upon a majority vote of the indigent defense commission, the
authority to remove certain board members of corporations for gross
negligence or gross malfeasance. The bill also provides
alternative means of activating public defender corporations. The
bill authorizes the employment of permanent part-time attorneys in
addition to full-time attorneys and it makes other procedural and
technical changes to the budgeting processes of public defender
corporations' and the public defender services voucher claim
system. This bill also changes the manner of appointment of panel
attorneys and it authorizes the imposition of an administrative
service fee of five dollars on submitted vouchers.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§§29-21-10, 11 and 12 have been completely rewritten,
therefore, strike-throughs and underscoring have been omitted.
§§29-21-13 and 13a are repealed.)
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