ENGROSSED
Senate Bill No. 546
(By Senators Wooton, Ball, Dittmar, Fanning, Hunter, Oliverio,
Ross, Schoonover, Snyder, White, Buckalew, Deem and Kimble)
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[Originating in the Committee on the Judiciary;
reported March 31, 1997.]
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A BILL to amend and reenact section twenty-seven, article seven,
chapter twenty-one-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to amend section
four, article five, chapter twenty-nine-a of said code; to
amend and reenact section seventeen, article one, chapter
fifty-one of said code; and to amend and reenact sections one,
two, three, four, five, six, seven, eight and ten, article
five, chapter fifty-eight of said code, all relating to
appellate procedures in unemployment compensation cases;
appeals in cases involving the administrative procedures act;
updating of antiquated language regarding appellate procedures
involving transcripts; making certain statutory provisions
regarding appeals consistent with rules of the supreme court;
the parties' right of interlocutory appeal in criminal
matters; elimination of time reporting requirement of circuit judges; certification of questions of law to the supreme
court; summary disposition and oral argument; and appeal
bonds.
Be it enacted by the Legislature of West Virginia:
That section twenty-seven, article seven, chapter twenty-one-a
of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted; that section four, article
five, chapter twenty-nine-a of said code be amended and reenacted;
that section seventeen, article one, chapter fifty-one of said code
be amended and reenacted; and that sections one, two, three, four,
five, six, seven, eight and ten, 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 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. 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.
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 the 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 51. COURTS AND THEIR OFFICERS.
ARTICLE 1. SUPREME COURT OF APPEALS.
§51-1-17. Administrative office of supreme court of appeals --
duties of director.
The director shall, when authorized by the supreme court of
appeals, be the administrative officer of said court and shall have
charge, under the supervision and direction of the supreme court of
appeals, of:
(a) All administrative matters relating to the offices of the
clerks of the circuit and intermediary courts and of the
offices of
justice of the peace magistrate courts, and all other clerical and
administrative personnel of said courts; but nothing contained in
this act shall be construed as affecting the authority of the
courts to appoint their administrative or clerical personnel;
(b) Examining the state of the dockets of the various courts and securing information as to their needs for assistance, if any,
and the preparation of statistical data and reports of the business
transacted by the courts
, including, as an integral part of the
compensation of justices and judges, the development of a system of
reporting by justices and judges as to the actual amount of time,
including travel time, spent by each justice or judge in the
conduct of his official duties in court;
(c) The preparation of a proper budget to secure the
appropriation of moneys for the maintenance, support and operation
of the courts;
(d) The purchase, exchange, transfer and distribution of
equipment and supplies, as may be needful or desirable;
(e) Such other matters as may be assigned to him by the
supreme court of appeals. The clerks of the circuit courts,
intermediate courts and
courts of the justices of the peace
magistrate courts shall comply with any and all requests made by
the director or his assistants for information and statistical data
bearing on the state of the dockets of such courts, or such other
information as may reflect the business transacted by them;
(f)
Annual report of activities and estimates of expenditures.
-- The director, when required to do so by the supreme court of
appeals, shall submit annually to the court a report of the
activities of the administrative office and of the state of
business of the courts, together with the statistical data compiled by him, with his recommendations;
and
(g) Serve as the chair of the court security board created
under the provisions of section fifteen, article three 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.
§58-5-2. Certification to supreme court of appeals.
(a) Any question
of law 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.
(b) Any question of law arising in a criminal action,
including, but not limited to, upon a motion to set aside or
dismiss any case, indictment, information, warrant or criminal
complaint or any count or portion thereof; upon a pretrial motion
to prevent the prosecution or defense from obtaining evidence, to
suppress or exclude evidence, to limit the use of evidence, or to
require the return of seized property; upon a motion for new trial,
to arrest judgment, to correct a sentence not permitted by law, or
raising any substantial question of law, may, in the discretion of
the circuit court in which it arises, be certified by it to the
supreme court of appeals for its decision, and further proceedings
in the case stayed until such question has been decided and the
decision thereof certified back.
(c) 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.
(c) 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.
A party desiring to appeal may file a petition in accordance
with the provisions of 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 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, was
entered 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 gives 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
that the board will be
effectual within
effective during the time so specified.
§58-5-6. Filing of petition.
Petitions for appeal shall be filed and processed in
accordance with the provisions of rules of appellate procedure
promulgated by the supreme court of appeals.
§
58-5-7. Contents of transcript of record.
The contents of the transcript of record shall be governed in
accordance with the provisions of rules of appellate procedure
promulgated by the supreme court of appeals.
§
58-5-8. Appeal bond generally.
When required by the court, an appeal 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 is allowed or entered with
condition: If a supersedeas be awarded, to abide by and perform the
judgment, 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,
or such part, be affirmed, or the appeal 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 an appeal
from 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 an
appeal be awarded in any action or suit wherein a judgment 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, 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 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 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 such part be
affirmed or the appeal be 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; and
(4) Deliver or mail to the insured at the latest address of
the insured appearing 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 and interest not
stayed by the insured as aforesaid if the judgment be affirmed or
the appeal be 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.
§58-5-10 Summary disposition and oral arguments.
If the supreme court of appeals grants the petition for
appeal, the court by rules of appellate procedure may provide by
summary procedure for the expedition of appeals, including
dispensing with oral argument and the reproduction of the record:
Provided, That oral argument shall be allowed in all cases unless
the court, after examination of the briefs and record, shall be of
the opinion that oral argument is not needed because: (1) The
appeal is frivolous; (2) the dispositive issue or set of issues has
been authoritatively decided; or (3) the facts and legal arguments
are adequately presented in the briefs and record and the
decisional process would not be aided by oral argument. If the
court decides that oral argument is not needed, the court shall by
rule provide the parties to the appeal the opportunity to file a
statement setting forth the reasons why, in the opinion of the
party, oral argument should be heard.
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