FLOOR BOOK MEMORANDUM House Committee on the Judiciary

H.B. 2586

Prepared by: Devon Lopez

(2/16/2015) Phone: 304-340-3256

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SPONSORS: Delegates Shott, Lane, Miller, Frich, Rowan, Fleischauer, Sobonya, Border, Pasdon, Waxman and Summers

TITLE: Allowing for an alternative form of service of process in actions against nonresident persons by petitioners seeking domestic violence or personal safety relief

DATE INTRODUCED: February 13 2015; referred to the Committee on the Judiciary

CODE SECTIONS AFFECTED: W.Va. Code §48-27-311

IDENTICAL/SIMILAR BILLS: None

CHAIRMAN’S SUMMARY: W.Va. Code §48-27-311 states that a protective order may be served in a domestic violence action by means of a by a Class I legal advertisement if personal service is unavailable. This bill amends W.Va. Code §48-27-311 regarding service of process in domestic violence matters to add a subdivision to provide for service of process upon a non resident person in accordance with chapter 56 of the code.

This bill creates section §56-3-33a which outlines the means to service process upon a non resident who;

(1) Any act constituting domestic violence or abuse as defined in W.Va. Code §48-27-202;

(2) Any act constituting a basis for seeking personal safety relief as defined in W.Va. Code §53-8-4

(3) Any act or omission violating the provisions of a duly authorized protective or restraining order, whether issued by this state or another jurisdiction, for the protection of any person within this state.

§56-3-33a nearly mirrors the existing code provisions permitting service of process upon non residents in civil actions (W.Va. Code §56-3-33)

FULL ANALYSIS:

I. EXISTING LAW:

W.Va. Code §48-27-311 states that a protective order may be served in a domestic violence action by means of a by a Class I legal advertisement if personal service is unavailable.

II. THE COMMITTEE SUBSTITUTE:

The committee substitute of this bill amends W.Va. Code §48-27-311 to add an additional means of service of a protective order in a domestic violence action upon a nonresident through the West Virginia Secretary of State’s office in the same manner that nonresident defendants in a civil action are served pursuant to W.Va. Code §56-3-33.

Removes the word “circuit” on page 3, line 20.

Removes “and the fee required by section two, article one, chapter fifty-nine of this code” on line 4, page 4.

Removes the reference to service in a civil action on page 4, line 18-19.

The committee substitute also adds a new section, §56-3-33a, which outlines the process that a person may serve a domestic violence protective order upon a nonresident through the Secretary of State.

III. COMMITTEE AMENDMENTS TO THE COMM. SUB.:

Delegate McCuskey moves to amend the committee substitute of bill HB2586 on page 3, Section 33a, line 1, to read as follows:

§56-3-33a

(1) If such conduct was not committed in this state if but the conduct was purposely directed at a resident and has an effect within this state.

and on page 4, Section 33a, line 4 all to read as follows:

§56-3-33a

(4) Such nonresident: Provided, That notice of such service and a copy of the summons and complaint petition and order shall forthwith be sent by registered or certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, by the Secretary of State to the defendant at his or her nonresident address and the defendant's return receipt signed by himself or herself or his or her duly authorized agent or the registered or certified mail so sent by the Secretary of State which is refused by the addressee and which registered or certified mail is returned to the Secretary of State, or his or her office, showing thereon the stamp of the post-office department that delivery has been refused.

IV. SECTION DIRECTORY: §48-27-311 and §56-33-3a

V. FISCAL ANALYSIS: There is not a Fiscal Note because no fiscal impact has been identified.

VI. COMMENTS

A. CONSTITUTIONAL ISSUES: None identified

B. GOVERNMENT AGENCIES AFFECTED: No agencies affected.

C. RULE MAKING AUTHORITY: None.

D. COMMITTEE REFERENCE: No second reference.

E. TITLE ANALYSIS: This bill’s title appears to be within Constitutional parameters.

F. DRAFTING ISSUES OR OTHER COMMENTS: None.

G. EFFECTIVE DATE: 90 days from passage.