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Introduced Version House Bill 2407 History

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H. B. 2407


(By Mr. Speaker, Mr. Kiss, By Request)
[Introduced February 21, 2001; referred to the
Committee on Government Organization then Finance.]




A BILL to amend chapter fifty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article four, relating to fees, allowances and costs; and providing for awards of attorney fees and certain expenses against the state in civil actions brought by the state and in proceedings for judicial review of administrative orders.

Be it enacted by the Legislature of West Virginia:
That chapter fifty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article four, to read as follows:
ARTICLE 4. ATTORNEY FEES AND EXPENSES AWARDED AGAINST THE STATE.

§59-4-1. Definitions.

As used in this article, unless the context clearly requires otherwise:
(a) "Fees and other expenses" include reasonable attorney fees, reasonable expenses for investigation, case development and expert witnesses, and court costs, but do not include any portion of an attorney's fees or salary which is paid by any public funds of an agency or instrumentality of a local, state or federal government for the attorney's services in a case.
(b) "State" includes the state of West Virginia, each agency, board, commission, department or division thereof, and each official thereof while acting in his or her official capacity.
§59-4-2. Award of attorney fees.

(a) Unless otherwise provided by law, the court having jurisdiction over a civil action brought by the state or an action for review of an administrative proceeding shall award fees and other expenses to the prevailing party unless the prevailing party is the state: Provided, That the court is not required to make an award pursuant to this section if it finds one of the following:
(1) The position of the state was substantially justified; or
(2) Special circumstances exist which would make an award unjust.
(b) Not later than thirty days after a final judgment or dismissal order is entered in the action, a party seeking an award of attorney fees and other expenses pursuant to this section shall submit to the court a verified petition which sets forth evidence of eligibility for an award and which specifies the amount sought. If the amount sought includes attorney fees or fees for investigation, case development or expert witnesses, the petition shall include an itemized statement of fees indicating the actual time expended in the prosecution of the case and the rates at which fees and expenses have been computed.
(c) When awarding fees and other expenses to the prevailing party pursuant to this section in an action for judicial review of an administrative proceeding, the court shall include in the award the fees and other expenses for services performed during the administrative proceeding, unless the court finds one of the following:
(1) During the proceeding, the position of the administrative agency was substantially justified; or
(2) Special circumstances exist which would make an award unjust.
(d) Fees and other expenses awarded pursuant to this section may be ordered in addition to any damages awarded in a judgment.
(e) The provisions of this section apply only to legal and administrative proceedings initiated after the effective date of this section.

NOTE: The purpose of this bill is to permit courts to award attorney fees and expenses to successful private parties in civil actions brought against the state and in judicial proceedings to review state administrative actions. In the latter case, attorney fees could be awarded for services performed in administrative proceedings. The court could refuse to award attorney fees and expenses if the state's position was substantially justified, or if special circumstances exist which would make such an award unjust. The bill's provisions would apply only to civil actions and administrative proceedings initiated after the effective date of the new article created by the bill.

This article is new; therefore, strike-throughs and underscoring have been omitted.
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