HB5257 S GOV AM #1 3-1

Fletcher 7835

The Committee on Government Organization moved to amend the bill by striking out everything after the enacting clause and inserting in lieu thereof the following:

CHAPTER 50. MAGISTRATE COURTS.

ARTICLE 1. COURTS AND OFFICERS.

§50-1-8. Magistrate court clerks; salaries; duties; duties of circuit clerk.

(a) In each county having three or more magistrates, the judge of the circuit court or the chief judge of the circuit court, if there is more than one judge of the circuit court, shall appoint a magistrate court clerk. In all other counties the judge may appoint a magistrate court clerk or may, by rule, require the duties of the magistrate court clerk to be performed by the clerk of the circuit court, in which event the circuit court clerk is entitled to additional compensation in the amount of $2,500 per year. The magistrate court clerk serves at the will and pleasure of the circuit judge.

(b) Magistrate court clerks shall be paid at least twice per month by the state. The annual salary of all magistrate court clerks is $52,296. Beginning July 1, 2023, the annual salary of a magistrate court clerk shall be $54,596 shall be determined by a pay scale established by the Administrative Director of the Supreme Court. Magistrate court clerks may receive any general salary increase granted to state employees, whose salaries are not set by statute, expressed as a percentage increase or an across-the-board increase, implemented after July 1, 2023.

(c) In addition to other duties that may be imposed by the provisions of this chapter or by the rules of the Supreme Court of Appeals or the judge of the circuit court or the chief judge of the circuit court if there is more than one judge of the circuit court, it is the duty of the magistrate court clerk to establish and maintain appropriate dockets and records in a centralized system for the magistrate court, to assist in the preparation of the reports required of the court and to carry out on behalf of the magistrates or chief magistrate if a chief magistrate is appointed, the administrative duties of the court.

(d) The magistrate court clerk, or if there is no magistrate court clerk in the county, the clerk of the circuit court, may issue all manner of civil process and require the enforcement of subpoenas and subpoenas duces tecum in magistrate court.

§50-1-9. Magistrate assistants; salary; duties.

(a) In each county there shall be at least one magistrate assistant for each magistrate; however, the Supreme Court of Appeals may authorize additional magistrate assistants if the workload of a county's magistrate court requires extra staff support. Each magistrate assistant shall be appointed by the magistrate under whose authority and supervision and at whose will and pleasure he or she shall serve. If more than one magistrate assistant per magistrate is approved by the Supreme Court of Appeals, then the chief magistrate, or chief circuit judge if no chief magistrate is designated, shall appoint, supervise, and assign job duties for any additional magistrate assistant as needed for that county. The assistant shall not be a member of the immediate family of any magistrate and shall not have been convicted of a felony or any misdemeanor involving moral turpitude and shall reside in the State of West Virginia. For the purpose of this section, "immediate family" means the relationships of mother, father, sister, brother, child, or spouse.

(b) A magistrate assistant shall have the duties, clerical or otherwise, assigned by the magistrate and prescribed by the rules of the Supreme Court of Appeals or the judge of the circuit court, or the chief judge of the circuit court if there is more than one judge of the circuit court. In addition to these duties, magistrate assistants shall perform and are accountable to the magistrate court clerks with respect to the following duties:

(1) The preparation of summons in civil actions;

(2) The assignment of civil actions to the various magistrates;

(3) The collection of all costs, fees, fines, forfeitures, and penalties which are payable to the court;

(4) The submission of moneys, along with an accounting of the moneys, to appropriate authorities as provided by law;

(5) The daily disposition of closed files which are to be located in the magistrate clerk's office;

(6) All duties related to the gathering of information and documents necessary for the preparation of administrative reports and documents required by the rules of the Supreme Court of Appeals, the judge of the circuit court or the chief judge of the circuit court if there is more than one judge of the circuit court;

(7) All duties relating to the notification, certification, and payment of jurors serving pursuant to the terms of this chapter; and

(8) All other duties or responsibilities whereby the magistrate assistant is accountable to the magistrate court clerk as determined by the magistrate.

(c) Magistrate assistants shall be paid at least twice per month by the state. The annual salary of all magistrate assistants is $46,932. Beginning July 1, 2023, the annual salary of a magistrate assistant shall be $49,232 shall be determined by a pay scale established by the Administrative Director of the Supreme Court. Magistrate assistants may receive any general salary increase granted to state employees, whose salaries are not set by statute, expressed as a percentage increase or an across-the-board increase enacted after July 1, 2023.

§50-1-9a. Magistrate court deputy clerks; duties; salary.

(a) Whenever required by workload and upon the recommendation of the judge of the circuit court, or the chief judge of the circuit court if there is more than one judge of the circuit court, the Supreme Court of Appeals may provide by rule for the appointment of magistrate court deputy clerks. The magistrate court deputy clerks shall be appointed by the judge of the circuit court, or the chief judge of the circuit court if there is more than one judge of the circuit court, to serve at his or her will and pleasure under the immediate supervision of the magistrate court clerk.

(b) Magistrate court deputy clerks shall have the duties, clerical or otherwise, as may be assigned by the magistrate court clerk and as may be prescribed by the rules of the Supreme Court of Appeals, the judge of the circuit court, or the chief judge of the circuit court, if there is more than one judge of the circuit court. Magistrate court deputy clerks may also exercise the power and perform the duties of the magistrate court clerk as may be delegated or assigned by the magistrate court clerk.

(c) A magistrate court deputy clerk may not be an immediate family member of any magistrate, magistrate court clerk, magistrate assistant, or judge of the circuit court within the same county; may not have been convicted of a felony or any misdemeanor involving moral turpitude; and must reside in this state. For purposes of this subsection, "immediate family member" means a mother, father, sister, brother, child, or spouse.

(d) Magistrate court deputy clerks shall be paid at least twice per month by the state. The annual salary of all magistrate court deputy clerks is $46,932. Beginning July 1, 2023, the annual salary of a magistrate court deputy clerk shall be $49,232 shall be determined by a pay scale established by the Administrative Director of the Supreme Court. Magistrate court deputy clerks may receive any general salary increase granted to state employees whose salaries are not set by statute, expressed as a percentage increase or an across-the-board increase implemented after July 1, 2023.

CHAPTER 51. COURTS AND THEIR OFFICERS.

ARTICLE 2A. FAMILY COURTS.

§51-2A-6. Compensation and expenses of family court judges and their staffs.

(a) A family court judge is entitled to receive as compensation for his or her services an annual salary of $62,500: Provided, That beginning July 1, 2005, a family court judge is entitled to receive as compensation for his or her services an annual salary of $82,500: Provided, however, That beginning July 1, 2011, the annual salary of a family court judge shall be $94,500: Provided further, That beginning July 1, 2020, the annual salary of a family court judge shall be $103,950.

(b) The secretary-clerk of the family court judge is appointed by the family court judge and serves at his or her will and pleasure. The secretary-clerk of the family court shall be paid at least twice per month by the state. The annual salary of all secretary-clerks of the family court is $42,576. Beginning July 1, 2023, the annual salary of a family court secretary-clerk shall be $44,876 shall be determined by a pay scale established by the Administrative Director of the Supreme Court. Family court secretary-clerks may receive any general salary increase granted to state employees, whose salaries are not set by statute, expressed as a percentage increase or an across-the-board increase enacted after July 1, 2023.

(c) The family court judge may employ not more than one family case coordinator who serves at his or her will and pleasure: Provided, That the Supreme Court of Appeals may authorize additional family case coordinators if the workload of a circuit’s family court requires extra staff support. The annual salary of the family case coordinator of the family court judge shall be established by the Administrative Director of the Supreme Court of Appeals but may not exceed $54,576. Beginning July 1, 2023, the annual salary of a family court case coordinator shall not exceed $56,876 shall be determined by a pay scale established by the Administrative Director of the Supreme Court. Family court case coordinators may receive any general salary increase granted to state employees, whose salaries are not set by statute, expressed as a percentage increase or an across-the-board increase enacted after July 1, 2023. If more than one family case coordinator is approved by the Supreme Court of Appeals, then the chief family court judge of that circuit shall appoint, supervise, and assign job duties for any additional family case coordinator as needed for that circuit.

(d) The sheriff or his or her designated deputy shall serve as a bailiff for a family court judge. The sheriff of each county shall serve or designate persons to serve so as to assure that a bailiff is available when a family court judge determines the same is necessary for the orderly and efficient conduct of the business of the family court.

(e) Disbursement of salaries for family court judges and members of their staffs are made by or pursuant to the order of the Director of the Administrative Office of the Supreme Court of Appeals.

(f) Family court judges and members of their staffs staff are allowed their actual and necessary expenses incurred in the performance of their duties. The expenses and compensation will be determined and paid by the Director of the Administrative Office of the Supreme Court of Appeals under such guidelines as he or she may prescribe, as approved by the Supreme Court of Appeals.

(g) The Supreme Court of Appeals is authorized to create additional classifications of support staff that it deems necessary to adequately and efficiently staff the family courts of this state, including, but not limited to, receptionists, assistant case coordinators, and assistant secretary-clerks. The Supreme Court of Appeals may determine the authority to hire and terminate, supervise, and assign job duties for these positions pursuant to its own employment rules, policies, and procedures. The annual salary of additional support staff authorized by this section shall not exceed the regular annual salary of a secretary-clerk and shall be paid by the state on the same basis established for secretary-clerks as provided in this section.

CHAPTER 62. CRIMINAL PROCEDURE.

ARTICLE 1C. BAIL.

§62-1C-1a. Pretrial release; types of release; conditions for release; considerations as to conditions of release.

(a) Subject to the provisions of §62-1C-1 of this code when a person defendant charged with a violation or violations of the criminal laws of this state first appears before a judicial officer:

(1) Except for good cause shown, a judicial officer shall release a person defendant charged with a misdemeanor an offense on his or her own recognizance at the initial appearance unless that person he or she is charged with:

(A) A misdemeanor offense of actual violence or threat of violence against a person;

(B) A misdemeanor offense where the victim was a minor, as defined in §61-8C-1 of this code;

(D) A misdemeanor offense violation of the Uniform Controlled Substances Act involving a Schedule I or II narcotic drug or methamphetamine as set forth in chapter 60A of this code;

(E) A misdemeanor offenses of sexual abuse;

(F) A serious misdemeanor traffic offense set forth in §17C-5-1 or §17C-5-2 of this code; or

(G) A misdemeanor offense involving auto tampering; petit larceny; or possession, transfer, or receiving of stolen property when the alleged value on of the property involved exceeds $250.

(2) For the misdemeanor offenses specified listed in this subsection, and all other offenses which that carry a possible penalty of incarceration, the arrested person is entitled to a defendant shall be admitted to bail subject to the least restrictive condition or combination of conditions that the judicial officer determines reasonably necessary to assure that person will appear as required, and which that will not jeopardize the safety of the arrested person defendant, victims, witnesses, or other persons in the community or the safety and maintenance of evidence: Provided, That a magistrate may not release a defendant charged with a felony offense on his or her own recognizance at an initial appearance. Further conditions may include that the person charged defendant shall:

(A) Not violate any criminal law of this state, another state, or the United States;

(B) Remain in the custody of a person designated by the judicial officer who agrees to assume supervision and to report any violation of a release condition to the court, if the designated person is reasonably able to assure the judicial officer that the person defendant will appear as required and will not pose a danger to himself or herself or to the safety of any other person or the community;

(D) Participate in an electronic monitoring program if one is available where the person is charged or will reside;

(E) Maintain employment, or, if unemployed, actively seek employment;

(F) Avoid all contact with an alleged victim of the alleged offense and with potential witnesses and other persons as directed by the court;

(G) Refrain from the use or excessive use of alcohol, or any use of a narcotic drug or other controlled substance, as defined in §60A-1-1 et seq. of this code without a prescription from a licensed medical practitioner; or

(H) Execute an agreement to forfeit, upon failing to appear as required, property of a sufficient unencumbered value, including money, as is reasonably necessary to assure the appearance of the person as required. The person charged shall provide the court with proof of ownership, the value of the property, and information regarding existing encumbrances of the property as, in the discretion of the judicial officer, is reasonable and necessary collateral to ensure the subsequent appearance of the person as required;

(I) Post a cash bond, or execute a bail bond with solvent sureties who will execute an agreement to forfeit an amount reasonably necessary to assure appearance of the person as required. If other than an approved surety, the surety shall provide the court with information regarding the value of its assets and liabilities and the nature and extent of encumbrances against the surety’s property. The surety shall have a net worth of sufficiently unencumbered value to pay the amount of the bail bond; or

(J)(H) Satisfy any other condition that is reasonably necessary to assure the appearance of the person defendant as required and to assure the safety of the arrested person defendant, victims, witnesses, other persons in the community, or the safety and maintenance of evidence.

(3) Proper The considerations in determining whether to release the arrested person defendant on an unsecured bond his or her own recognizance, fixing a reasonable amount of bail, or imposing other reasonable conditions of release are shall be:

(A) The ability of the arrested person defendant to give bail;

(B) The nature, number, and gravity of the offenses;

(D) Whether the alleged acts were violent in nature;

(E) The arrested person’s defendant’s prior record of criminal convictions and delinquency adjudications, if any;

(F) The character, health, residence, and reputation of the arrested person defendant;

(G) The character and strength of the evidence which has been presented to the judicial officer;

(H) Whether the arrested person defendant is currently on probation, extended supervision, or parole;

(I) Whether the arrested person defendant is already on bail or subject to other release conditions in other pending cases;

(J) Whether the arrested person defendant has been bound over for trial after a preliminary examination;

(K) Whether the arrested person defendant has in the past forfeited bail or violated a condition of release or was ever a fugitive from justice; and

(L) The policy against unnecessary incarceration of arrested persons defendants pending trial set forth in this section.

(b) In all misdemeanors, cash bail may not exceed three times the maximum fine provided for the offense. If the person is charged with more than one misdemeanor, cash bail may not exceed three times the highest combined total maximum fine of the charged offenses for the offenses.

(c) Notwithstanding any provisions of this article to the contrary, whenever a defendant person not subject to the provisions of §62-1C-1 of this code not released on his or her own recognizance pursuant to subsection (a) of this section remains incarcerated after his or her initial appearance, relating to a misdemeanor, due to the inability to meet the requirements of a secured bond,a magistrate or judge shall hold a hearing within five days of setting the initial bail to determine if there is a condition or combination of conditions which can meet the considerations set forth in §62-1C-1a(a)(2) of this code.

(d) A judicial officer may upon notice and hearing modify the conditions of release at any time by imposing additional or different conditions.

(e) A prosecuting attorney and defense counsel, unless expressly waived by the defendant, shall appear at all hearings in which bail or bond conditions condition is or are at issue other than the proceeding at which the conditions of release are initially set.

(f) No A judicial officer may not recommend the services of a surety who is his or her relative as that term is defined in §6B-1-3 of this code.

§62-1C-2. Bail defined; form selection of form by defendant; receipts; right of judicial officer to impose conditions on release.

(a) Bail is the pretrial release of a defendant from custody upon terms and conditions specified by order of an appropriate judicial officer. Bail shall be set at a monetary amount determined by a judicial officer to provide adequate security for the appearance of a defendant to answer to a specific criminal charge before any court or magistrate at a specific time or at any time to which the case may be continued.

(b) It may take any Except as provided in §62-1C-2(e), a defendant is entitled to and may select one of the following forms for making bail:

(a) The (1) By the deposit by the defendant or by some other person for him or her of cash, in a manner consistent with rules promulgated by the Supreme Court of Appeals;

(2) By executing an agreement to forfeit, upon failing to appear as required, real or personal property of a sufficient unencumbered value, including money, as is reasonably necessary to assure the appearance of the person as required which shall be known as a recognizance. The defendant or person or persons owning the property shall provide the court with proof of ownership, the value of the property, and information regarding existing encumbrances of the property as, in the discretion of the judicial officer, is reasonable and necessary collateral to ensure the subsequent appearance of the defendant as ordered; or

(3) By use of a bail bondsman, as defined in §51-10A-1 of this code, who shall post a cash bond or execute a bail bond with a solvent surety or sureties who will execute an agreement to forfeit an amount reasonably necessary to assure appearance of the defendant as required. If other than an approved surety is used, the surety shall provide the judicial officer with information regarding the value of its assets and liabilities and the nature and extent of encumbrances against the surety’s property. The surety shall have a net worth of sufficiently unencumbered value to pay the amount of the bail bond.

(b) The written undertaking by one or more persons to forfeit a sum of money equal to the amount of the bail if the defendant is in default for appearance, which shall be known as a recognizance;

(c) All bail shall be received by the clerk of the court, or by the magistrate and, except in case of recognizance, receipts shall be given therefor by him to the surety.

(d) Nothing in this article shall be construed as limiting a circuit court at any stage of a proceeding from imposing any condition or combination of conditions that he or she determines are reasonably necessary to assure that the defendant will appear as required, and that will not jeopardize the safety of the defendant, victims, witnesses, or other persons in the community or the safety and maintenance of evidence pursuant to the provisions of §62-1C-1a of this code, including, but not limited to, release of a defendant on his or her own recognizance.

(e) A judicial officer, in his or her discretion, may set a cash only bail, in a manner consistent with rules promulgated by the Supreme Court of Appeals for the following offenses:

(1) Violations of the Uniform Controlled Substances Act for manufacturing, delivering, or possessing with the intent to deliver a Schedule I or II substance as set forth in chapter 60A of this code;

(2) All offenses included in §61-2-1 et seq. of this code;

(3) All offenses included in §61-8B-1 et seq. of this code;

(4) All offenses included in §61-8C-1 et seq. of this code; or

(5) All offenses included in §61-8D-1 et seq. of this code.

Adopted

Rejected