H. B. 2405
(By Mr. Speaker, (Mr. Thompson) and Delegate Armstead)
[By Request of the Executive]
[Introduced February 16, 2009; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §29-21-3b, §29-21-8 and §29-21-13a of
the Code of West Virginia, 1931, as amended, all relating
generally to Public Defender Services; requiring the Indigent
Defense Commission to submit a report to the Legislature;
authorizing the creation of public defender corporations in
the fourth, sixteenth, seventeenth and twenty-sixth judicial
circuits; and raising the hourly rate of compensation for
panel attorneys.
Be it enacted by the Legislature of West Virginia:
That §29-21-3b, §29-21-8 and §29-21-13a of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 21. PUBLIC DEFENDER SERVICES.
§29-21-3b. Indigent Defense Commission.
(a) There is hereby established the Indigent Defense Commission to provide assistance to Public Defender Services with
regard to the general policies and procedures of the agency,
including, but not limited to, the opening, closing or merging of
public defender offices throughout the state and the establishment
of performance measures for the qualitative review of indigent
defense.
(b) In order to demonstrate a collaborative approach to
solving criminal justice problems, the commission shall consist of
the Executive Director of Public Defender Services, who shall serve
as chair, and the following members appointed by the Governor:
(1) One former or retired circuit judge;
(2) Three lawyers, one from each congressional district, who
have significant experience in the defense of criminal cases or
have demonstrated a strong commitment to quality representation of
indigent defendants;
(3) One current chief public defender;
and
(4) One nonlawyer with a demonstrated commitment to providing
legal services to the indigent;
(5) One person who is a member of an organization that
advocates on behalf of people with mental illness and developmental
disabilities; and
(6) One attorney with significant experience in the defense of
juvenile delinquency and abuse and neglect cases.
(c) The commission shall meet at the times and places specified by the call of the chair:
Provided, That the commission
shall meet no less than four times each year. Members shall serve
without compensation but may receive reimbursement of actual and
necessary expenses for each day or portion thereof engaged in this
discharge of official duties in a manner consistent with the
guidelines of the Travel Management Office of the Department of
Administration.
(d) Of the initial appointments made to the commission, two
shall be for a term ending one year after the effective date of
this section, two for a term ending two years after the effective
date of this section, two for a term ending three years after the
effective date of this section. Thereafter, terms of office shall
be for four years, each term ending on the same day of the same
month of the year as did the term which it succeeds. Each member
shall hold office from the date of his or her appointment until the
end of the term for which he or she was appointed or until his or
her successor qualifies for office. When a vacancy occurs as a
result of death, resignation or removal in the membership of this
commission, it shall be filled by appointment within thirty days of
the vacancy for the unexpired portion of the term in the same
manner as original appointments. No member shall serve more than
two consecutive full or partial terms and no person may be
reappointed to the commission until at least two years have elapsed
after the completion of a second successive term.
(e) The appointed members of the commission serve four-year
terms that shall coincide with the term of the Governor.
(f) The commission has the following powers and duties:
(1) To develop standards regarding the qualifications and
training for public defenders, assistant public defenders and
staff;
(2) To explore opportunities related to the training of
appointed panel attorneys;
(3) To evaluate, on an annual basis, the compensation and
caseloads of public defenders and appointed panel attorneys;
(4) To develop standards for providing and compensating expert
witnesses, investigators and other persons who provide services
related to legal representation under this article;
(5) To study, monitor and evaluate existing standards for
determining eligibility for legal representation under section
sixteen of this article;
(6) To study the feasibility and need of creating additional
public defender corporations, the activation of public defender
corporations and the formation of multicircuit or regional public
defender corporations in accordance with the provisions of section
eight of this article;
(7) To study the potential for the dissolution of public
defender corporations;
(8) To study, monitor, evaluate and make recommendations regarding the training, experience and background necessary for a
public defender or panel attorney to competently represent indigent
defendants in capital cases; and
(9) To monitor and make recommendations regarding the
following activities of the board of directors of each public
defender corporation receiving funding pursuant to this article:
(A) The appointment of the public defender and any assistant
public defenders pursuant to subdivision (1), subsection (c),
section fifteen of this article;
(B) The fixing of professional and clerical salaries pursuant
to subdivision (2), subsection (c), section fifteen of this
article; and
(C) The removal of any public defender, assistant public
defender or other employee for misfeasance, malfeasance or
nonfeasance pursuant to subdivision (3), subsection (c), section
fifteen of this article.
(g) On or before
the fifteenth day of January, two thousand
nine December 15, 2009, the commission shall report to the
Legislature its findings and recommendations on the feasibility and
need for the creation of additional public defender corporations;
the activation of public defender corporations; the formation of
multicircuit or regional public defender corporations; or the
dissolution of public defender corporations in accordance with the
provisions of section eight of this article.
§29-21-8. Public defender corporations; establishment thereof.
(a) (1) In each judicial circuit of the state, there is hereby
created a public defender corporation of the circuit:
Provided,
That the executive director, with the approval of the Indigent
Defense Commission, may authorize the creation, merger or
dissolution of a public defender corporation in a judicial circuit
where the creation, merger or dissolution of such a public defender
corporation would improve the quality of legal representation,
assure the prudent and resourceful expenditure of state funds and
further the purposes of this article:
Provided, however, That
prior to the creation, merger or dissolution of a public defender
corporation in accordance with this subsection, the commission
shall provide a report to the Legislature pursuant to subsection
(g), section three-b of this article for approval of the creation,
merger, or dissolution of any public defender corporation.
(2) The purpose of these public defender corporations is to
provide legal representation in the respective circuits in
accordance with the provisions of this article. A public defender
corporation may employ full-time attorneys and employ part-time
attorneys in whatever combination that the public defender
corporation deems most cost effective.
(b) If the executive director, with the approval of the
Indigent Defense Commission, determines there is a need to
activate, merge or dissolve a corporation in a judicial circuit of the state, pursuant to subsection (a) of this section, the Indigent
Defense Commission shall first consult with and give substantial
consideration to the recommendation of the judge of a single-judge
circuit or the chief judge of a multi-judge circuit.
(c) The Legislature hereby acknowledges receipt of the January
2009 report of the Indigent Defense Commission as previously
required by subsection (g), section three-b of this article and
concurs with the recommendations therein relating to the creation
of public defender corporations in certain judicial circuits. In
accordance with said recommendations, the Legislature hereby
authorizes the executive director to create a public defender
corporation in each of the fourth, sixteenth, seventeenth and
twenty-sixth judicial circuits. Within thirty days of the
effective date of the amendments to this section during the 2009
regular session of the Legislature, a board of directors shall be
appointed, in the manner set forth in section fifteen of this
article, for each public defender corporation created in accordance
with this subsection. Said public defender corporations shall
begin offering services within one hundred fifty days of the
effective date of the amendments to this section or as soon as
reasonably practicable.
§29-21-13a. Compensation and expenses for panel attorneys.
(a) 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. The executive director shall establish
guidelines for the submission of vouchers and claims for fees and
expense reimbursements under this section. Claims submitted more
than ninety calendar days after the last date of service shall be
rejected, unless for good cause, the appointing court authorizes in
writing an extension:
Provided, That claims where the last date of
service occurred prior to July 1, 2008, shall be rejected unless
submitted prior to January 1, 2009.
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,
shall 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
shall be at the rate of
forty-five dollars $65 per hour. For
paralegal's work performed out of court for the attorney,
compensation shall be 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 shall the compensation exceed $20 per hour. Out-of-court work includes, but is not limited to, travel,
interviews of clients or witnesses, preparation of pleadings and
prehearing or pretrial research.
(2) For attorney's work performed in court, compensation shall
be at the rate of
sixty-five dollars $95 per hour. No compensation
for paralegal's work performed in court shall be allowed. In-court
work includes, but is not limited to, all time spent awaiting
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 as the court may approve;
for all other eligible proceedings, $3,000 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 as the court may approve. 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, shall be reimbursed to
a maximum of $1,500 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 page as set forth in
section four, article seven, chapter fifty-one of this code.
(B) (I) There shall 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 trial,
where such hearing or 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 the expense 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 $25. Where a
transcript of a proceeding is produced, there shall be no
reimbursement for the expense of any appearance fee.
(iii) Except for the appearance fees provided in this
paragraph, there shall 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 trials is limited to $1 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,
three, 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 $30 per hour for work performed by an investigator.
(f) For purposes of compensation under this section, an appeal
from magistrate court to circuit court, an appeal from a final
order of the circuit court or a proceeding seeking an extraordinary
remedy made to the Supreme Court of Appeals shall be 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 the fact and sufficiently identify the several charges so
as 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 recordkeeping, compensation or other provisions of this article
or the voucher guidelines established issued pursuant to subsection
(a) of this section and in such circumstance shall return the
voucher to the court or to the service provider for further review
or correction.
(h) Vouchers submitted under this section after July 1, 2008,
shall be reimbursed within ninety days of receipt. Reimbursements
after ninety days shall bear interest from the ninety-first day at
the legal rate in effect for the calendar year in which payment is
due.
(i) Vouchers submitted for fees and expenses involving child
abuse and neglect cases shall be processed for payment before
processing vouchers submitted for all other cases.
NOTE: The purpose of this bill is to authorize the creation of
public defender corporations in the fourth, sixteenth, seventeenth and twenty-sixth judicial circuits and to raise the hourly rate of
compensation for panel attorneys.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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