COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 54
(By Senators Anderson, Deem and Edgell)
____________
[Originating in the Committee on Finance;
reported March 20, 2001.]
____________
A BILL to repeal sections thirteen and thirteen-a, article twenty-
one, chapter twenty-nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to amend and
reenact sections three, six, eight, nine, ten, eleven and
twelve of said article, all relating to the public defender
services; continuing the public defender services; creating
the indigent defense commission; specifying members and their
terms; transferring powers and duties of agency to the
executive director; authorizing the executive director to
reduce or reject vouchers; removal of public defender
corporation board members; activation of corporations; permitting the employment of both full-time and part-time
attorneys; changing the manner of appointment of panel
attorneys; removing the sections relating to public defender
corporations' funding; requiring corporations to submit
budget; amending funding contracts; payment of fees to panel
attorneys; requiring services provided to public defender
corporations; authorizing imposition of administrative service
fee on vouchers by executive director; and creating a special
revenue account for the fees.
Be it enacted by the Legislature of West Virginia:
That sections thirteen and thirteen-a, article twenty-one,
chapter twenty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be repealed; and that sections
three, six, eight, nine, ten, eleven and twelve of said article be
amended and reenacted, all to read as follows:
ARTICLE 21. PUBLIC DEFENDER SERVICES.
§29-21-3. Continuation of public defender services; establishment
of indigent defense commission; termination date.
(a) There is hereby
created continued an executive agency
known as public defender services. The agency shall administer,
coordinate and evaluate programs by which the state provides legal
representation to indigent persons, monitor the progress of various delivery systems and recommend improvements. The agency shall
maintain its office at the state capital.
(b)(1) There is hereby established the indigent defense
commission to advise the executive director with regard to the
general policies and procedures of the agency, including, but not
limited to, the opening of public defender offices throughout the
state and the establishment of performance measures for qualitative
review of indigent defense.
(2) The commission shall be composed of eight members who
shall be chosen with regard for their expertise in managing
law-related organizations or their expertise in fiscal and
personnel management. Members shall demonstrate a commitment to
the delivery of legal services to the indigent and shall be chosen
from as broad a geographic area as possible. In order to
demonstrate a collaborative approach to solving criminal justice
problems, the commission shall be constituted as follows:
(A) Two former or retired circuit judges to be appointed by
the president of the West Virginia judicial association, one of
whom previously presided in a circuit without an active public
defender corporation;
(B) One lawyer experienced in providing legal services to the
poor, to be appointed by the president of the West Virginia state bar;
(C) One current chief public defender, to be appointed by the
executive director of public defender services;
(D) The director of the prosecuting attorneys institute, ex
officio;
(E) The administrative director to the supreme court of
appeals, ex officio; and
(F) Two nonlawyers with a demonstrated commitment to providing
legal services to the indigent, one to be appointed by the
president of the Senate and one to be appointed by the speaker of
the House of Delegates.
(3) Commission members shall serve for a term of four years,
to coincide with the term of the governor. Upon first meeting
after the beginning of a new gubernatorial term, the members shall
select one of their number to serve as chair for the duration of
the governor's term. Members may be reappointed for an unlimited
number of terms.
(4) The commission shall meet upon the call of either the
chair or the executive director, but shall meet no less than twice
a year. Members shall serve without compensation but may receive
reimbursement of reasonable and necessary expenses.
(5) Whenever the indigent defense commission casts a vote and the vote is a tie, the executive director is authorized to cast the
deciding vote.
(c) Pursuant to the provisions of article ten, chapter four of
this code, public defender services shall continue to exist until
the first day of July, two thousand two, unless sooner terminated,
continued or reestablished by act of the Legislature.
§29-21-6. Powers, duties and limitations.
(a) Consistent with the provisions of this article, the
agency
executive director is authorized to make grants to and contracts
with public defender corporations and with individuals,
partnerships, firms, corporations and nonprofit organizations, for
the purpose of providing legal representation under this article,
and may make
such any other grants and contracts
as that are
necessary to carry out the purposes and provisions of this article.
(b) The
agency executive director is authorized to accept, and
employ or dispose of in furtherance of the purposes of this
article, any money or property, real, personal or mixed, tangible
or intangible, received by gift, devise, bequest or otherwise.
(c) The
agency executive director shall establish and the
executive director or his
or her designee shall operate a criminal
law research center as provided for in section seven of this
article. This center shall undertake directly, or by grant or contract, to serve as a clearinghouse for information; to provide
training and technical assistance related to the delivery of legal
representation; and to engage in research, except that broad
general legal or policy research unrelated to direct representation
of eligible clients may not be undertaken.
(d) The agency shall establish and the executive director or
his
or her designee shall operate an accounting and auditing
division to require and monitor the compliance with this article by
public defender corporations and other persons or entities
receiving funding or compensation from the agency.
The executive
director may reduce or reject vouchers or requests for payment
submitted by panel attorneys appointed pursuant to section nine of
this article. This division The accounting and auditing division
shall review all plans and proposals for grants and contracts and
shall make a recommendation of approval or disapproval to the
executive director. The
accounting and auditing division shall
prepare, or cause to be prepared, reports concerning the
evaluation, inspection or monitoring of public defender
corporations and other grantees, contractors, persons or entities
receiving financial assistance under this article and shall further
carry out the agency's responsibilities for records and reports as
set forth in section eighteen of this article.
The accounting and auditing division shall require each public
defender corporation to
periodically submit
financial statements
monthly and to report
monthly on the billable and nonbillable time
of its professional employees, including time
utilized used in
administration of the respective offices, so as to compare
such the
time to similar time expended in nonpublic law offices for
like
similar activities.
The accounting and auditing division shall provide to the
executive director assistance in the fiscal administration of all
of the agency's divisions.
Such This assistance shall include, but
not be limited to, budget preparation and statistical analysis.
(e) The agency shall establish and the executive director or
a person designated by the executive director shall operate an
appellate advocacy division for the purpose of prosecuting
litigation on behalf of eligible clients in the supreme court of
appeals. The executive director or a person designated by the
executive director shall be the director of the appellate advocacy
division. The appellate advocacy division shall represent eligible
clients upon appointment by the circuit courts or by the supreme
court of appeals. The division may, however, refuse
such the
appointments due to a conflict of interest or if the executive
director has determined the existing caseload cannot be increased without jeopardizing the appellate division's ability to provide
effective representation. In order to effectively and efficiently
utilize use the resources of the appellate division, the executive
director may restrict the provision of appellate representation to
certain types of cases.
The executive director
is empowered to may select and employ
staff attorneys to perform the duties prescribed by this
subsection. The division shall maintain
vouchers and records
for
of representation of eligible clients for record purposes only.
(f) Notwithstanding any other provision of this code to the
contrary, the executive director may, after consultation with the
indigent defense commission, remove any board member of any
corporation, the existence of which is authorized by the provisions
of section eight of this article, upon a determination by the
executive director that this member has committed gross negligence
or gross malfeasance.
§29-21-8. Public defender corporations; establishment thereof.
(a) In each judicial circuit of the state there is hereby
created a "public defender corporation" of the circuit. The
purpose of these public defender corporations is to provide legal
representation in the respective circuits in accordance with the
provisions of this article.
(b) If the
judge of a single-judge circuit, the chief judge of
a multi-judge circuit or a majority of the active members of the
bar in the circuit determine executive director determines there is
a need to activate
the any corporation,
they shall certify that
fact in writing to the executive director the executive director
shall notify the chief judge of the circuit and the president of
each county bar association, if any. Following notification, the
executive director shall allocate funds to those corporations
so
certifying in the order in which he or she
deems considers most
efficient and cost effective.
A public defender corporation may be activated solely by the
indigent defense commission upon a finding supported by objective
evidence that effective representation of eligible indigent
defendants can be accomplished more effectively and economically by
the implementation of a public defender corporation.
(c)
The executive director may require public defender
corporations
may apply in writing to the executive director for
permission to merge to form multicircuit or regional public
defender corporations
where a merger would improve the quality of
services and efficient use of resources. Applications for mergers
shall be subject to the review procedures set forth in section
eleven of this article Public defender corporations may employ both full-time and part-time attorneys in whatever combination may
be most cost effective. Public defender corporations may, when
cost effective, establish an office to accept appointments which
the primary office may not accept due to a conflict of interest.
§29-21-9. Panel attorneys.
(a) In each circuit of the state, the circuit court shall
establish and maintain regional and local panels of private
attorneys-at-law who
shall be are available to serve as counsel for
eligible clients.
An attorney-at-law may become a panel attorney and be enrolled
on the regional or local panel, or both, to serve as counsel for
eligible clients by informing the court. An agreement to accept
cases generally or certain types of cases particularly shall not
prevent a panel attorney from declining an appointment in a
specific case.
(b) In all cases where an attorney-at-law is required to be
appointed for an eligible client, the appointment shall be made by
the circuit judge
as follows:
(1) In circuits where a public defender office is in
operation, the judge shall appoint the public defender office
unless
such an appointment is not appropriate due to a conflict of
interest or unless the public defender corporation board of directors or the public defender, with the approval of the board,
has notified the court that the existing caseload cannot be
increased without jeopardizing the ability of defenders to provide
effective representation
.;
(2) If the public defender office is not available for
appointment, the court shall appoint one or more
permanent part-
time attorneys employed by the public defender corporation in that
circuit. panel attorneys from the local panel;
(3) If there is no
local panel permanent part-time attorney
available, the judge shall appoint one or more panel attorneys from
the
regional panel. circuit;
(4) If there is no
regional local panel attorney available,
the judge may appoint a public defender office from an adjoining
circuit if
such the public defender office agrees to the
appointment;
(5) If the adjoining public defender office does not accept
the appointment, the judge may appoint a panel attorney from an
adjoining circuit; or
(6) If a panel attorney from an adjoining circuit is
unavailable, the judge may appoint a panel attorney from any
circuit.
In circuits where no public defender office is in operation, the judge shall first refer to the local panel and then to the
regional panel in making appointments, and if an appointment cannot
be made from the panel attorneys, the judge may appoint the public
defender office of an adjoining circuit if the office agrees to the
appointment. In any circuit, when there is no public defender, or
assistant public defender, local panel attorney or regional panel
attorney available, the judge may appoint one or more qualified
private attorneys to provide representation, and such private
attorney or attorneys shall be treated as panel attorneys for that
specific case. In any given case, the appointing judge may alter
the order in which attorneys are appointed if the case requires
particular knowledge or experience on the part of the attorney to
be appointed.
§29-21-10. Public defender corporation funding; annual budgets;
funding; recordkeeping by public defender corporations.
(a) Any public defender corporation applying to public
defender services for financial assistance to establish a program
to provide legal representation or proposing a major substantive
modification to an existing program shall notify the executive
director and the circuit judges in the area in which the program
will deliver legal representation of the intent to apply for such
assistance or modification. Such notice shall be given at least thirty days prior to the filing of an application or a proposal for
modification.
(b) Notifications shall include a summary description of the
proposed program. The summary description shall contain the
following information:
(1) The identity of the applicant;
(2) The geographical area to be served by the proposed
program;
(3) A brief description of the proposed program, general size
or scale, estimated cost, or other characteristics which will
enable the circuit court to determine how the system for
representation of indigents within the circuit may be affected by
the proposed program; and
(4) The estimated date the public defender corporation expects
to formally file an application or modification proposal.
(a) On or before the first day of May of each year, every
public defender corporation shall submit to the executive director
a proposed budget for the next ensuing fiscal year. The accounting
and auditing division shall review all funding applications and the
executive director shall prepare recommendations for an operating
plan and annual budget for each public defender corporation. Upon
consultation with each corporation board, the executive director shall execute a funding contract for the fiscal year and shall
commit funds for that purpose.
(b) Upon final approval of a funding application by the
executive director, the approved budget shall be set forth in an
approval notice. The total cost to the agency shall not exceed the
amount set forth in the approval notice and the agency shall not be
obligated to reimburse the recipient for costs incurred in excess
of
the that amount unless and until a program modification has been
approved in accordance with the provisions of this article.
At the
discretion of the executive director, when case loads rise or
unusual expenses occur, funding contracts may be amended during a
fiscal year when an amended contract is necessary to provide cost-
effective representation.
(c) Funding of public defender corporations or other programs
or entities providing legal representation under the provisions of
this article shall be by annual grants disbursed in
such periodic
allotments
as that the executive director
shall deem considers
appropriate.
(d) All recipients of funding under this article shall
maintain
such the records
as required by the executive director.
§29-21-11. Compensation and expenses for panel attorneys.
(a) Any public defender corporation or any other entity wishing to secure state financial assistance through the agency
shall submit a funding application to the executive director.
(b) The funding application, which is to be submitted in a
form prescribed by the executive director, shall contain a general
description of the plans and policies the applicant intends to
utilize in providing legal representation, and such other
information prescribed by the executive director.
(c) All applications for financial assistance from public
defender services under the provisions of this article must be
submitted to the circuit judges of the circuit for review prior to
their submission to public defender services.
Reviews shall be completed by circuit judges within fifteen
days after receipt. If the public defender corporation or other
applicant has not received a response within the fifteen-day
period, the public defender corporation may consider the judge to
have waived his or her opportunity to review and comment on the
proposed program or program modification and may submit the
application to public defender services.
(d) Completed applications shall include:
(1) All comments and recommendations made by the circuit
judges, along with a statement that such comments have been
considered prior to submission of the application; or
(2) If no comments have been received from circuit judges, a
statement that the procedures outlined in this section have been
followed and that no comments or recommendations have been
received.
(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
after the first day of January, two thousand
two. Absent just cause, the executive director shall reject claims
for attorney services by public defender services received more
than one hundred eighty calendar days after the last date of
service.
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,
may 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 is at the rate of forty-five dollars per hour. For
paralegal's work performed out of court for the attorney,
compensation
shall be is 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 may the compensation exceed twenty dollars per
hour. Out-of-court work includes, but is not limited to,
interviews of clients or witnesses, preparation of pleadings,
prehearing or pretrial research
and all time spent waiting for
hearings before judges, magistrates, special masters or other
judicial officers. Time spent in travel may not be billed. Only
travel expenses authorized by rules promulgated pursuant to section
eleven, article eight, chapter twelve of this code may be allowed.
(2) For attorney's work performed in court, compensation shall
be is at the rate of sixty-five dollars per hour. No compensation
for paralegal's work performed in court may be allowed. In-court
work includes
only time spent in 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 approved by the court
may approve; for all other eligible proceedings, three thousand
dollars 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 approved by 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 fifteen hundred dollars 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 as set forth in section
four, article seven, chapter fifty-one of this code.
(B) (i) There may 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
bench or
jury trial, where the preliminary hearing or jury 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 an appearance fee for a court reporter
who reports a proceeding other than one described in subparagraph
(i) of this paragraph, is limited to twenty-five dollars. Where a
transcript of a proceeding is produced, there may be no
reimbursement for the expense of any appearance fee.
(iii) There may 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 jury trials is limited to
the rates established by the supreme court of appeals for the reimbursement of transcriptions of
electronically recorded hearings and trial one dollar 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,
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 thirty dollars per hour for work performed by an
investigator.
(f) For purposes of compensation under this section, an appeal
from a final order of the circuit court, or a writ seeking an
extraordinary remedy made to the supreme court of appeals, is
considered a separate case.
An appeal from magistrate court to
circuit court is 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
must 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
must shall indicate
the that 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
must
shall refuse to requisition payment for any voucher which is not in
conformity with the recordkeeping, compensation or other provisions
of this article,
or of the voucher instructions issued pursuant to
section six of this article, and in that circumstance
must shall
return the voucher to the court or to the service provider for
further review or correction.
The voucher instructions control for
all matters not specifically covered in this article.
§29-21-12.
Administrative service fee; special revenue account.
The
executive director may impose an administrative service
fee of five dollars for each voucher submitted. The fee may be
collected by discounting the payment due to the service provider.
The fee shall be deposited into a special revenue account to be
known as the "Public Services Administrative Fee Account" and shall
accrue solely to the benefit of public defender services.
Email
Webmaster | © 2024 West Virginia Legislature **
