H. B. 4060
(By Delegates Staton, Trump, Underwood,
Amores, Buchanan, Hunt and Rowe)
[Introduced January 22, 1998; referred to the Committee
on the Judiciary.]
A BILL to repeal articles one and two, chapter fifty-eight
of the
code of West Virginia, one thousand nine hundred thirty-one,
as amended; to repeal sections eight, nine, ten, eleven,
twelve, thirteen, fifteen, sixteen, seventeen, eighteen,
nineteen, twenty, twenty-one, twenty-two, twenty-three,
twenty-four, twenty-five, twenty-six, twenty-seven, twenty- eight, twenty-nine and thirty-one, article five, of said
chapter; to amend and reenact section twenty-seven, article
seven, chapter twenty-one-a of the code
; to amend and reenact
section four, article five, chapter twenty-nine-a of said
code; and to amend and reenact sections one, two, three, four,
five, six, seven, fourteen and thirty, article five, chapter
fifty-eight of said code, all relating generally to appellate
procedure; repealing provisions of law relating to appellate
relief in the supreme court of appeals which are outdated,
archaic, or not in conformity with rules of appellate procedure promulgated by the supreme court of appeals;
providing for appeal from circuit court in an unemployment
compensation case to be made in accordance with the provisions
of the state administrative procedures act; eliminating the
option of a petitioner seeking review of a contested case
under the administrative procedures act to file the petition
in the circuit court of Kanawha County; prescribing when an
appeal will lie to the supreme court of appeals; providing for
the certification of questions of law to the supreme court of
appeals; providing for a petition for appeal to be filed in
accordance with rules of appellate procedure promulgated by
the Supreme Court of Appeals; prescribing the time for filing
a petition for appeal to the Supreme Court of Appeals;
providing for the suspension of the execution of a judgment at
the instance of a person desiring to present a petion for
appeal; providing that a petition for appeal shall be filed
and processed filed in accordance with rules of appellate
procedure promulgated by the Supreme Court of Appeals;
providing that the contents of the transcript of record shall
be governed by rules of appellate procedure promulgated by the
Supreme Court of Appeals; providing for an appeal to be given
before an appeal takes effect; and providing for an appeal by
the state of a judgment quashing an indictment.
Be it enacted by the Legislature of West Virginia:
That articles one and two, chapter fifty-eight
of the code of
West Virginia, one thousand nine hundred thirty-one, as amended, be
repealed; that sections eight, nine, ten, eleven, twelve, thirteen,
fifteen, sixteen, seventeen, eighteen, nineteen, twenty, twenty- one, twenty-two, twenty-three, twenty-four, twenty-five, twenty- six, twenty-seven, twenty-eight, twenty-nine, and thirty-one,
article five of said chapter be repealed; that section twenty- seven, article seven, chapter twenty-one-a of said code be amended
and reenacted
; that section four, article five, chapter twenty-
nine-a of said code be amended and reenacted; and that sections
one, two, three, four, five, six, seven, fourteen, and thirty,
article five, chapter fifty-eight of said code be amended and
reenacted, all to read as follows:
CHAPTER 21A. UNEMPLOYMENT COMPENSATION.
ARTICLE 7. CLAIM PROCEDURE.
§21A-7-27. Appeal to supreme court of appeals.
The judgment of the circuit court shall be final unless
reversed, vacated or modified on appeal to the supreme court of
appeals in accordance with the provisions of section one, article
six, chapter twenty-nine-a of this code.
The appeal from the decision of the circuit court of Kanawha
county may be taken to the supreme court of appeals if a proper
petition for certiorari is filed within sixty days of the date of
the final decision of the circuit court of Kanawha county. The cases shall go from the circuit court of Kanawha county only on
writ of certiorari and need be heard only at the session of the
supreme court.
CHAPTER 29A. STATE ADMINISTRATIVE PROCEDURES ACT.
ARTICLE 5. CONTESTED CASES.
§29A-5-4. Judicial review of contested cases.
(a) Any party adversely affected by a final order or
decision in a contested case is entitled to judicial review
thereof under this chapter, but nothing in this chapter shall be
deemed to prevent other means of review, redress or relief
provided by law.
(b) Proceedings for review shall be instituted by filing a
petition
, at the election of the petitioner, in either the
circuit court of Kanawha county, West Virginia, or with the judge
thereof in vacation, or in the circuit court of the county in
which the petitioner or any one of the petitioners resides or
does business, or with the judge thereof in vacation, within
thirty days after the date upon which such party received notice
of the final order or decision of the agency. A copy of the
petition shall be served upon the agency and all other parties of
record by registered or certified mail. The petition shall state
whether the appeal is taken on questions of law or questions of
fact, or both. No appeal bond shall be required to effect any
such appeal.
(c) The filing of the petition shall not stay enforcement of
the agency order or decision or act as a supersedeas thereto, but
the agency may stay such enforcement, and the appellant, at any
time after the filing of his petition, may apply to such circuit
court for a stay of or supersedeas to such final order or
decision. Pending the appeal, the court may grant a stay or
supersedeas upon such terms as it deems proper.
(d) Within fifteen days after receipt of a copy of the
petition by the agency, or within such further time as the court
may allow, the agency shall transmit to such circuit court the
original or a certified copy of the entire record of the
proceeding under review, including a transcript of all testimony
and all papers, motions, documents, evidence and records as were
before the agency, all agency staff memoranda submitted in
connection with the case, and a statement of matters officially
noted; but, by stipulation of all parties to the review
proceeding, the record may be shortened. The expense of
preparing such record shall be taxed as a part of the costs of
the appeal. The appellant shall provide security for costs
satisfactory to the court. Any party unreasonably refusing to
stipulate to limit the record may be taxed by the court for the
additional costs involved. Upon demand by any party to the
appeal, the agency shall furnish, at the cost of the party
requesting same, a copy of such record. In the event the complete record is not filed with the court within the time
provided for in this section, the appellant may apply to the
court to have the case docketed, and the court shall order such
record filed.
(e) Appeals taken on questions of law, fact or both, shall
be heard upon assignments of error filed in the cause or set out
in the briefs of the appellant. Errors not argued by brief may
be disregarded, but the court may consider and decide errors
which are not assigned or argued. The court or judge shall fix a
date and time for the hearing on the petition, but such hearing,
unless by agreement of the parties, shall not be held sooner than
ten days after the filing of the petition, and notice of such
date and time shall be forthwith given to the agency.
(f) The review shall be conducted by the court without a
jury and shall be upon the record made before the agency, except
that in cases of alleged irregularities in procedure before the
agency, not shown in the record, testimony thereon may be taken
before the court. The court may hear oral arguments and require
written briefs.
(g) The court may affirm the order or decision of the agency
or remand the case for further proceedings. It shall reverse,
vacate or modify the order or decision of the agency if the
substantial rights of the petitioner or petitioners have been
prejudiced because of the administrative findings, inferences, conclusions, decision or order are:
(1) In violation of constitutional or statutory provisions;
or
(2) In excess of the statutory authority or jurisdiction of
the agency; or
(3) Made upon unlawful procedures; or
(4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative and
substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.
(h) The judgment of the circuit court shall be final unless
reversed, vacated or modified on appeal to the supreme court of
appeals of this state in accordance with the provisions of
section one, article six of this chapter.
CHAPTER 58. APPEAL AND ERROR.
ARTICLE 5. APPELLATE RELIEF IN SUPREME COURT OF APPEALS.
§58-5-1. When appeal lies.
A party to a civil action may appeal to the supreme court of
appeals from a final judgment of any circuit court or from an
order of any circuit court constituting a final judgment as to
one or more but fewer than all claims or parties upon an express
determination by the circuit court that there is no just reason
for delay and upon an express direction for the entry of judgment as to such claims or parties. The defendant in a criminal action
may appeal to the supreme court of appeals from a final judgment
of any circuit court in which there has been a conviction or
which affirms a conviction obtained in an inferior court.
A party to a controversy in any circuit court may obtain
from the supreme court of appeals, or a judge thereof in
vacation, an appeal from, or a writ of error or supersedeas to, a
judgment, decree or order of such circuit court in the following
cases: (a) In civil cases where the matter in controversy,
exclusive of costs, is of greater value or amount than one
hundred dollars, wherein there is a final judgment, decree or
order;
(b) In controversies concerning the title or boundaries of
land, the probate of a will, or the appointment of a personal
representative, guardian, committee or curator;
(c) Concerning a mill, road, way, ferry or landing;
(d) Concerning the right of a corporation, county or
district to levy tolls or taxes;
(e) In any case of quo warranto, habeas corpus, mandamus or
prohibition;
(f) In any case involving freedom or the constitutionality
of a law;
(g) In any case in chancery wherein there is a decree or
order dissolving or refusing to dissolve an injunction, or requiring money to be paid, or real estate to be sold, or the
possession or title of property to be changed, or adjudicating
the principles of the cause;
(h) In any case where there is a judgment or order quashing
or abating, or refusing to quash or abate, an attachment;
(i) In any civil case where there is an order granting a new
trial or rehearing, and in such cases an appeal may be taken from
the order without waiting for the new trial or rehearing to be
had;
(j) In any criminal case where there has been a conviction
in a circuit court or a conviction in an inferior court which has
been affirmed in a circuit court.
Appeals shall not lie under subdivisions (g), (h), and (i)
where pecuniary interests only are involved, unless the amount in
controversy, exclusive of costs, exceeds one hundred dollars.
§58-5-2. Certification to supreme court of appeals.
Any question
of law arising
in a civil action, including,
but not limited to, questions arising upon the sufficiency of a
summons or return of service, upon a challenge of the sufficiency
of a pleading or the venue of the circuit court, upon the
sufficiency of a motion for summary judgment where such motion is
denied, or a motion for judgment on the pleadings, upon the
jurisdiction of the circuit court of a person or subject matter,
or upon failure to join an indispensable party,
in any case within the appellate jurisdiction of the supreme court of
appeals, may, in the discretion of the circuit court in which it
arises,
and shall, on the joint application of the parties to the
suit, in beneficial interest, be certified by it to the supreme
court of appeals for its decision, and further proceedings in the
case stayed until such question shall have been decided and the
decision thereof certified back.
The forms of the certificates
of such questions, as well as the time and manner of the hearing
and notice thereof and the portion of the record to be sent up,
shall be as prescribed by the supreme court of appeals. Entry of
such certificate or the fact that it has been made, upon the
record of the case in the trial court, shall be sufficient notice
to the parties that the questions involved are on application for
hearing and determination by the appellate court. Attested
copies of the portions of the record of the case or cause
necessary to a determination of the questions so certified shall
forthwith be presented to the supreme court of appeals together
with the question certified, and if the court be of the opinion
that the rulings of the lower court ought to be reviewed, the
case or cause shall be docketed for hearing without further
notice to the parties; but if the court be of the opinion that
there has been no error in the rulings, it shall refuse to docket
the case or cause, and the action of the court in refusing to
docket same shall then be certified forthwith to the lower court. The procedure for processing questions certified pursuant to this
section shall be governed by rules of appellate procedure
promulgated by the supreme court of appeals.
§58-5-3. Presentation of petition assigning errors.
Any person who is a party to such controversy, wishing to
obtain a writ of error, appeal or supersedeas in the cases named
in the first section of this article, may present a petition
therefor to the supreme court of appeals, or to a judge thereof
in vacation, which petition shall assign errors.
A party who wishes to appeal may file a petition in
accordance with rules of appellate procedure promulgated by the
supreme court of appeals.
§58-5-4. Time for appeal.
No petition shall be presented for an appeal from
, or writ
of error or supersedeas to, any judgment,
decree or order,
whether the state be a party thereto or not, which shall have
been rendered or made more than four months before such petition
is filed with the clerk of the court where the judgment
, decree
or order being appealed was entered:
Provided, That the judge of
the circuit court
or the supreme court of appeals may, prior to
the expiration of such period of four months, by order entered of
record extend and reextend such period for such additional period
or periods, not to exceed a total extension of two months, for
good cause shown
,. if the request for preparation of the transcript was made by the party seeking such appellate review
within thirty days of the entry of such judgment, decree or
order.
In criminal cases no petition for appeal or writ of error
shall be presented unless a notice of intent to file such
petition shall have been filed with the clerk of the court in
which the judgment or order was entered within thirty days after
such judgment or order was entered. The notice shall fairly
state the grounds for the petition without restricting the right
to assign additional grounds in the petition.
§58-5-5. Stay of proceedings; supersedeas bond.
At the instance of any person who desires to present such
petition, the court, in which the judgment,
decree or order is,
may,
during the term at which it is rendered or made, or the
judge of such court may, within twenty days after such term is
ended, upon notice in writing to the opposite party
(in either
case the court or the judge exercising a discretion), make an
order suspending the execution of such judgment
, decree or order,
for a reasonable time to be specified in such order, when such
person shall give bond before the clerk of such court, in such
penalty as the court or judge may require, with a condition
reciting such judgment,
decree or order, and the intention of
such person to present such petition, and providing for the
payment of all such damages as any person may sustain by reason of such suspension in case supersedeas to such judgment
, decree
or order should not be allowed and be effectual within the time
so specified.
§58-5-6. Filing of petition.
Petitions for appeal shall be filed and processed in
accordance with rules of appellate procedure promulgated by the
supreme court of appeals.
Such petition, together with a copy thereof, shall be first
filed in the office of the clerk of the circuit court wherein the
judgment, decree or order complained of was entered, and such
clerk, retaining in his office the copy of such petition, shall,
as soon as may be, transmit to the clerk of the supreme court of
appeals, or such judge of said court as the petitioner shall
designate, if said court be not in session, by United States
registered mail or valued express, the original, together with
the record of so much of the case wherein the judgment, decree or
order is, as will enable the court or judge to whom the petition
is to be presented properly to decide on such petition, and
enable the court, if the petition be granted, properly to decide
the questions that may arise before it. The clerk of the circuit
court, before transmitting the record as aforesaid, shall arrange
the papers, as nearly as may be, in the order of the filing and
entry thereof, numbering the pages, make and certify copies of
all orders entered in the case, copies of which are not in the files, and prepare and annex to the record a table of contents or
index. Before such petition and record are transmitted as
aforesaid, the petitioner shall deposit with the clerk of the
circuit court a sufficient sum of money to defray the expenses of
the preparation and indexing of the record, fees for filing the
petition and making and certifying necessary copies of orders,
costs of transmission and return of the record, and the making of
a transcript of the record, or file with the clerk a bond
conditioned to pay the same, in a penalty and with sureties to be
fixed and approved by such clerk, who shall indorse on the
petition that such deposit has been made or such bond filed. If
the appeal or writ of error prayed for be granted, the clerk of
the supreme court of appeals shall return the record to the clerk
of the circuit court, by mail or express, as aforesaid; and such
circuit court clerk shall forthwith make a transcript of so much
of the record as is required for the purposes of the appeal or
writ of error and transmit the same to the clerk of the supreme
court of appeals. Insofar as provision therefor is not made by
existing law, the compensation of the clerk of the circuit court
for services rendered hereunder shall be fixed by the judge of
such court. If the prayer of the petition be not granted, the
petition and record shall be returned as aforesaid, and the clerk
of the circuit court shall repay to the petitioner, or his
attorney, the money deposited with him, if any, less his fees and expenses.
§58-5-7. Contents of transcript of record.
The contents of the transcript of record shall be governed
in accordance with rules of appellate procedure promulgated by
the supreme court of appeals.
Unless the person who has obtained the appeal or writ of
error direct otherwise, there shall not be copied in the
transcript any of the process, returns or evidence of service;
nor the commissions, if any, and notices to take depositions, the
captions to such depositions, or certificates of their having
been sworn to, except so far as may be necessary to the decision
of exceptions taken to the reading of the depositions, but the
name of each witness and the day of taking his deposition shall
be stated at the head thereof; nor shall there be copied an
account reported by a commissioner, to which there is no
exception; nor any printed document of which either party will
furnish to the clerk a copy, but such duplicate shall be attached
to what is copied. If either of the parties to the suit or
action shall furnish to the clerk an original carbon copy of any
pleading, order, decree, deposition, bill of exception, or
certificate of evidence, he shall, instead of copying the paper a
copy of which is so furnished, include such copy in the
transcript, without charge therefor, except a comparing fee of
ten cents per one thousand words. When a case has been before the supreme court of appeals, there shall be certified only the
proceedings subsequent to the former appeal, writ of error or
supersedeas. Unless otherwise ordered as herein provided by the
court or judge allowing the appeal, writ of error or supersedeas,
the clerk shall make out the whole record in the manner herein
provided, or any additional part thereof, if either party to the
appeal or writ of error shall so direct. But such court or judge
may, on the allowance of the appeal or writ of error, direct the
omission from the transcript of such parts of the record as are
deemed immaterial, by an indorsement thereon, and such part
shall, in such case, be omitted. The bond filed shall be
inserted in the record.
§58-5-14. Appeal bond generally.
When required by the court, an appeal
, writ of error or writ
of supersedeas shall not take effect until bond is given by the
appellants or petitioners, or one of them, or some other person,
in a penalty to be fixed by the court or judge by or in which the
appeal
, writ of error or supersedeas is allowed or entered with
condition: If a supersedeas be awarded, to abide by and perform
the judgment
, decree or order of affirmance, and to pay to the
opposite party, and to any person injured all such costs and
damages as they, or either of them, may incur or sustain by
reason of said appeal, in case such judgment,
decree or order, or
such part, be affirmed, or the appeal
, writ of error or supersedeas be dismissed, and also, to pay all damages, costs and
fees, which may be awarded against or incurred by the appellant
or petitioners; and if it
be is an appeal from
an order or decree
a judgment dissolving an injunction, or dismissing a bill of
injunction, with a further condition, to indemnify and save
harmless the surety in the injunction bond against loss or damage
in consequence of his suretyship; and with condition when no
supersedeas is awarded to pay such specific damages, and such
costs and fees as may be awarded or incurred:
Provided, That
whenever
a writ of error, an appeal
or supersedeas shall be is
awarded in any action or suit wherein a judgment
or decree for
the payment of money has been entered against an insured in an
action which is defended by an insurance corporation, or other
insurer, on behalf of the insured under a policy of insurance,
the limit of liability of which is less than the amount of said
judgment, execution on the judgment to the extent of the policy
coverage shall be stayed until final determination of such
appeal,
writ of error or supersedeas, and no execution shall be
issued, or action brought, maintained or continued against such
insured, insurance corporation, or other insurer, for the amount
of such judgment
or decree so stayed, by either the injured
party, the insured, or the legal representative, heir or assigns
of any of them, during the pendency of such proceeding, provided
such insurance corporation, or other insurer, shall:
(1) File with the clerk of the court in which the judgment
was entered, a sworn statement of one of its officers, describing
the nature of the policy and the amount of coverage thereof;
(2) Give or cause to be given by the judgment debtor or some
other person for him a bond in a penalty to be fixed by the court
or judge by or in which the appeal
, writ of error or supersedeas
is allowed or entered, not to exceed the amount of such insurance
coverage set out in the sworn statement above required, with
condition to pay the amount of such coverage upon said judgment
if the judgment
or decree or such part
be is affirmed or the
appeal
, writ of error or supersedeas be is dismissed, plus
interest on said sum and cost;
(3) Serve a copy of such sworn statement and bond upon the
judgment creditor or his attorney;
(4) Deliver or mail to the insured at the latest address of
the insured appealing upon the records of such insurance
corporation, or other insurer, written notice that execution on
such judgment to the extent that it is not covered by such
insurance is not stayed in respect to the insured:
Provided,
That the filing of a bond by the insured or someone for him,
conditioned upon the payment of the balance of the judgment
or
decree and interest not stayed by the insured as aforesaid if the
judgment
or decree be is affirmed or the appeal
, writ of error or
supersedeas be is dismissed, shall stay execution on the balance of said judgment not covered by such insurance:
Provided,
however, That the filing of such statement and bond hereunder by
an insurance corporation or other insurer shall not thereby make
such insurance corporation or other insurer a party to such
action, either in the trial court or in the appellate court.
§58-5-30. Appeal by state of judgment quashing indictment.
Notwithstanding anything hereinbefore contained in this
article, whenever Whenever in any criminal case an indictment is
held bad or insufficient by the judgment
or order of a circuit
court, the state, on the application of the attorney general or
the prosecuting attorney, may
obtain a writ of error to secure a
review of appeal such judgment
or order by to the supreme court
of appeals. No such
writ of error appeal shall be allowed unless
the state presents its petition therefor to the supreme court of
appeals
, or one of the judges thereof, within thirty days after
the entry of such judgment
or order. No such judgment
or order
shall finally discharge, or have the effect of finally
discharging, the accused from further proceedings on the
indictment unless the state fails, within such period of thirty
days, to
apply for such writ of error, file a petition for appeal
with the clerk of the court in which judgment was entered; or
fails to obtain such writ of error upon an application made
within such period; but after the entry of such judgment or order
the accused shall not be kept in custody or required to give bail pending the hearing and determination of the case by the supreme
court of appeals.
If, upon the allowance of any such writ of
error, process from the supreme court of appeals cannot for any
reason be served personally upon the accused, service may be made
by filing a copy thereof in the clerk's office of the court which
entered such judgment or order. Every such writ of error shall be
heard and determined as speedily as possible. If said court
reverses the lower court, and holds the indictment good and
sufficient for a trial of the accused thereon, the case shall be
remanded to the court in which the indictment was found, in order
that such trial may be had.
Except as herein otherwise provided, all the provisions of
the other sections of this article shall, so far as appropriate,
be applicable to a petition for
a writ of error an appeal under
this section, and to all subsequent proceedings thereon in the
supreme court of appeals in case such
writ of error is allowed or
appeal is granted.
NOTE: The purpose of this bill is to modernize statutory
language relating to appellate procedure. Archaic and outdated
language is repealed or modernized, and statutes are rewritten to
conform with the rules of appellate procedure promulgated by the
Supreme Court of Appeals.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.