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Introduced Version House Bill 2577 History

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hb2577 intr
H. B. 2577


(By Delegates Williams and Amores)

[Introduced February 21, 2005; referred to the

Committee on the Judiciary.]





A BILL to amend and reenact §52-1-1, §52-1-7, §52-1-8, §52-1-11, §52-1-23 and §52-1-24 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto two new sections, designated §52-1-10a and §52-1-23a; to amend and reenact §52-3-1 of said code; and to amend said code by adding thereto a new article, designated §52-4-1, all relating to petit jury service.

Be it enacted by the Legislature of West Virginia:

That §52-1-1, §52-1-7, §52-1-8, §52-1-11, §52-1-23 and §52-1-24 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto two new sections, designated §52-1-10a and §52-1-23a; that §52-3-1 of said code be amended and reenacted; and that said code be amended by adding thereto a new article, designated §52-4-1, all to read as follows:

ARTICLE 1. PETIT JURIES.

§52-1-1. Declaration of policy.

It is the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court, and that all citizens have the opportunity in accordance with this article to be considered for jury service and an obligation to serve as jurors when summoned for that purpose, unless excused.

§52-1-7. Drawings from the jury wheel or jury box; notice of jury duty; penalties.

(a) The chief judge of the circuit, or the judge in a single judge circuit, shall provide by order rules relating to the random drawing by the clerk of panels from the jury wheel or jury box for juries in the circuit and magistrate courts. The rules may allow for the drawing of panels at any time. Upon receipt of the direction and in the manner prescribed by the court, the clerk shall publicly draw at random from the jury wheel or jury box the number of jurors specified.
(b) If a jury is ordered to be drawn, the clerk thereafter shall cause each person drawn for jury service to be notified not less than twenty days before the date for which the persons are to report for jury duty with a summons and juror qualification form, if such form has not already been completed, by personal service or first class mail addressed to the person at his or her usual residence, business or post-office address, requiring him or her to report for jury service at a specified time and place.
(c) A prospective juror who fails to appear as directed by the summons issued pursuant to subsection (b) of this section shall be ordered by the court to appear and show cause for failure to appear as directed. If the prospective juror fails to appear pursuant to the court?s order or fails to show good cause for failure to appear as directed by the summons, he or she is guilty of civil contempt and shall be fined not more than one thousand dollars. The prospective juror may be excused from paying sanctions for good cause shown or in the interests of justice. In addition to or in lieu of the fine, the court may order that the prospective juror complete a period of community service for a period no less than if the prospective juror would have completed jury service, and provide proof of completion of this community service to the court.
§52-1-8. Disqualification from jury service.
(a) The court, upon request of a prospective juror or on its own initiative, shall determine on the basis of information provided on the juror qualification form or interview with the prospective juror or other competent evidence whether the prospective juror is disqualified for jury service pursuant to subsection (b) of this section. The clerk shall enter this determination in the space provided on the juror qualification form and on the alphabetical lists of names drawn from the jury wheel or jury box.
(b) A prospective juror is disqualified to serve on a jury if the prospective juror:
(1) Is not a citizen of the United States, at least eighteen years old and a resident of the county;
(2) Is unable to read, speak and understand the English language. For the purposes of this section, the requirement of speaking and understanding the English language is met by the ability to communicate in American sign language or signed English;
(3) Is incapable, by reason of substantial physical or mental disability, of rendering satisfactory jury service; but a person claiming this disqualification or the person?s personal representative may shall be required to submit a physicians certificate as to the disability and the certifying physician is subject to inquiry by the court at its discretion;
(4) Has, within the preceding two years, been summoned to serve as a petit juror, grand juror or magistrate court juror, and has actually attended sessions of the magistrate or circuit court and been reimbursed for his or her expenses as a juror pursuant to the provisions of section twenty-one of this article, section thirteen, article two of this chapter, or pursuant to an applicable rule or regulation of the Supreme Court of Appeals promulgated pursuant to the provisions of section eight, article five, chapter fifty of this code;
(5) Has lost the right to vote because of a criminal conviction; or
(6) Has been convicted of perjury, false swearing or other infamous offense.
(c) A prospective juror sixty-five years of age or older is not disqualified from serving, but shall be excused from service by the court upon the juror?s request.
(d) A prospective grand juror is disqualified to serve on a grand jury if the prospective grand juror is an officeholder under the laws of the United States or of this state except that the term "officeholder" does not include notaries public.
(e) A person who is physically disabled and can render competent service with reasonable accommodation shall not be ineligible to act as juror or be dismissed from a jury panel on the basis of disability alone: Provided, That the circuit judge shall, upon motion by either party or upon his or her own motion, disqualify a disabled juror if the circuit judge finds that the nature of potential evidence in the case including, but not limited to, the type or volume of exhibits or the disabled juror?s ability to evaluate a witness or witnesses, unduly inhibits the disabled juror?s ability to evaluate the potential evidence. For purposes of this section:
(1) Reasonable accommodation includes, but is not limited to, certified interpreters for the hearing impaired, spokespersons for the speech impaired and readers for the visually impaired.
(2) The court shall administer an oath or affirmation to any person present to facilitate communication for a disabled juror. The substance of such oath or affirmation shall be that any person present as an accommodation to a disabled juror will not deliberate on his or her own behalf, although present throughout the proceedings, but act only to accurately communicate for and to the disabled juror.
(f) Nothing in this article shall be construed so as to limit in any way a party?s right to peremptory strikes in civil or criminal actions.
§52-1-10a. Postponement of jury service.
(a) Notwithstanding any other provisions of this article, individuals scheduled to appear for jury service have the right to postpone the date of their initial appearance for jury service one time only. When requested, postponements shall be granted, provided that:
(1) The juror has not previously been granted a postponement;
(2) The prospective juror appears in person or contacts the clerk of the court by telephone, electronic mail, or in writing to request a postponement; and
(3) Prior to the grant of a postponement with the concurrence of the clerk of the court, the prospective juror fixes a date certain on which he or she will appear for jury service that is not more than six months after the date on which the prospective juror originally was called to serve and on which date the court will be in session.
(b) A subsequent request to postpone jury service may be approved by a judicial officer only in the event of an extreme emergency, such as a death in the family, sudden illness or a natural disaster or a national emergency in which the prospective juror is personally involved that could not have been anticipated at the time the initial postponement was granted. Prior to the grant of a second postponement, the prospective juror must fix a date certain on which the individual will appear for jury service within six months of the postponement on a date when the court will be in session.
(c) A court shall automatically postpone and reschedule the service of a summoned juror who is employed by an employer with five or fewer full-time employees, or their equivalent, if another employee of that employer has previously been summoned to appear during the same period. Such postponement will not constitute the excused individual?s right to one automatic postponement under subsection (a) of this section.
§52-1-11. Excuses from jury service.
(a) The court, upon request of a prospective juror or on its own initiative, shall determine on the basis of information provided on the juror qualification form or interview with the prospective juror or other competent evidence whether the prospective juror should be excused from jury service. The clerk shall enter this determination in the space provided on the juror qualification form.
(b) A person who is not disqualified for jury service under section eight of this article may be excused from jury service by the court upon a showing of undue or extreme physical or financial hardship, extreme inconvenience, or public necessity, for a period the court deems necessary up to twenty-four months, at the conclusion of which the person shall reappear for jury service in accordance with the court?s direction unless the person was excused from service permanently. A person is excused from jury service permanently only when the deciding judge determines that the underlying grounds for being excused are of a permanent nature.
(1) A judge of the court for which the individual was called to jury service shall determine whether the individual is to be exempt from jury service. The authority to make these determinations is delegable only to court officials or personnel who are authorized by the laws of this state to function as members of the judiciary.
(2) A person asking to be excused from jury service under this section must take all actions necessary to have obtained a ruling on that request by no later than the date on which the individual is scheduled to appear for jury duty.
(3) For purposes of this section, "undue or extreme physical or financial hardship" is limited to circumstances in which an individual would:
(A) Be required to abandon a person under his or her personal care or supervision due to the impossibility of obtaining an appropriate substitute caregiver during the period of participation in the jury pool or on the jury; or
(B) Incur costs that would have a substantial adverse impact on the payment of the individual?s necessary daily living expenses or on those for whom he or she provides the principle means of support; or
(C) Suffer physical hardship that would result in illness or disease.
(4) "Undue or extreme physical or financial hardship" does not exist solely based on the fact that a prospective juror will be required to be absent from his or her place of employment.
(5) A person asking a judge to grant an excuse based on "undue or extreme physical or financial hardship" shall be required to provide the judge with documentation, such as, but not limited to, federal and state income tax returns, medical statements from licensed physicians proof of dependency or guardianship, and similar documents, which the judge finds to clearly support the request to be excused. Failure to provide satisfactory documentation shall result in a denial of the request to be excused.
§52-1-23. Length of service by jurors.
In any two-year period a person may not be required:
(1) To serve or attend court for prospective service as a juror more than thirty thirty-one court days, except if necessary to complete service in a particular ease unless the prospective juror is under consideration to serve on a trial and such consideration covers a period of two or more days or the juror is serving in connection with an unfinished case in which event the juror shall serve on the jury for the duration of the trial unless excused by the presiding judge;
(2) To serve on more than one grand jury; or
(3) To serve as both a grand and petit juror. or
(4) To serve as a petit juror at more than one term of court

§52-1-23a. Hardship consideration for counties.
(a) The Supreme Court of West Virginia may grant an exemption from the requirements of section 52-1-23(1) to implement a one day, one trial system to trial courts in counties with populations of less than 10,000 if the trial court system demonstrates good cause by establishing that:
(1) The cost of implementing a one day, one trial system is so high that the trial court system would be unable to provide essential services to the public if required to implement such a system; or
(2) The requirements of this rule cannot be met because of the size of the population in the county compared to the number of jury trials.
(b) Any application for exemption from the requirements of a one day, one trial system shall demonstrate good cause for the exemption sought and shall include either:
(1) A plan to fully implement a one day, one trial system by a specified date; or
(2) An alternative plan that would advance the purposes of this section to the extent possible, given the conditions of the county.
(c) If the Supreme Court of West Virginia finds good cause, it may grant an exemption for a limited period of time and on such conditions as it deems appropriate to further the purposes of this section, but in no case shall service of prospective jurors be more than one week in actual attendance, unless a prospective juror is selected to serve in a trial or is under consideration to serve in a trial.
§52-1-24. Penalties for failure to perform jury service.
A person summoned for jury service who fails to appear or to complete jury service as directed without having obtained a postponement or exemption pursuant to this chapter shall be ordered by the court to appear forthwith and show cause for failure to comply with the summons. If the person fails to show good cause for noncompliance with the summons, the person is guilty of civil contempt and, shall be fined not more than one thousand dollars. The prospective juror may be excused from paying sanctions for good cause shown or in the interests of justice. In addition to, or in lieu of, the fine, the court may order that the prospective juror complete a period of community service for a period no less than if the prospective juror would have completed jury service, and provide proof of completion of this community service to the court.
ARTICLE 3. DISCRIMINATION FOR JURY SERVICE.
§52-3-1. Rights of employees summoned for jury duty; right of action for discrimination against employees summoned for jury duty; penalties.

(a) Any person who is summoned to serve as a juror and who notifies his or her employer of such summons within a reasonable period of time after receipt of a summons and prior to his or her appearance for jury duty may not be terminated, removed or otherwise subject to any adverse employment action as a result of such service.
(b) An employee may not be required or requested to use annual, vacation or sick leave for time spent responding to a summons for jury duty, time spent participating in the jury selection process, or time spent actually serving on a jury. Nothing in this provision shall be construed to require an employer to provide annual, vacation or sick leave to employees under the provisions of this statute who otherwise are not entitled to such benefits under company policies.
(a) (c) Any person who, as an employee, is discriminated against by his employer because such employee received, or was served with a summons for jury duty, or was absent from work to respond to a summons for jury duty or to serve on any jury in any court of this state, the United States or any state of the United States, may have an action against his or her employer in the circuit court of the county where the jury summons originated or where the discrimination occurred. If the circuit court finds that an employer terminated or threatened to terminate from employment, or decreased the regular compensation of employment of an employee for time the employee was not actually away from his or her employment because the employee served as a juror, the court may shall order the employer to cease and desist from this unlawful practice and order such affirmative relief, including, but not limited to, reinstatement of the employee with or without back pay as will effectuate the purposes of this section.
(b) (d) Nothing in this section shall be construed to require an employer to pay an employee any wages or other compensation for the time the employee is actually away from employment for jury services or to respond to a jury summons.
(c)(e) If the employee prevails in an action under subsection (a) (c) of this section, the employee shall be allowed reasonable attorney?s fees as fixed by the court.
(d) (f) Any employer who discriminates against an employee because the employee received or was served with a summons for jury duty, or was absent from work to respond to a summons for jury duty or to serve on any jury in any court of this state, the United States or any state of the United States, is guilty of civil contempt and shall be fined not less than one hundred dollars nor more than five hundred dollars.
ARTICLE 4. LENGTHY TRIAL FUND.
§52-4-1. Lengthy Trial Fund.

The Supreme Court of West Virginia shall promulgate rules to establish a Lengthy Trial Fund that shall be used to provide full or partial wage replacement or wage supplementation to jurors who serve as petit jurors for more than ten days.
(a) The court rules shall provide for the following:
(1) The selection and appointment of an administrator for the Fund;
(2) Procedures for the administration of the Fund, including payments of salaries of the administrator and other necessary personnel;
(3) Procedures for the accounting, auditing and investment of money in the Lengthy Trial Fund; and
(4) A report by the Supreme Court of West Virginia on the administration of the Lengthy Trial Fund in its annual report on the judicial branch, setting forth the money collected for and disbursed from the Fund.
(b) Notwithstanding any other fees payable under the laws of this state, each trial court in the state shall collect from each attorney who files a civil case, unless otherwise exempted under the provisions of this section, a fee of ten dollars per case to be paid into the Lengthy Trial Fund. A lawyer will be deemed to have "filed a case" at the time the first pleading or other filing on which an individual lawyer?s name appears is submitted to the court for filing and opens a new case. All such fees shall be forwarded to the administrator of the Lengthy Trial Fund for deposit.
(c) The administrator shall use the fees deposited in the Lengthy Trial Fund to pay full or partial wage replacement or wage supplementation to jurors whose employers pay less than full regular wages when the period of jury service lasts more than ten days.
(d) The court may pay replacement or supplemental wages of up to three hundred dollars per day per juror beginning on the eleventh day of jury service. In addition, for any jurors who qualify for payment by virtue of having served on a jury for more than ten days, the court may, upon finding that such service posed a significant financial hardship to a juror, even in light of payments made with respect to jury service after the tenth day, award replacement or supplemental wages of up to one hundred dollars per day from the fourth to the tenth day of jury service.
(e) Any juror who is serving or has served on a jury that qualifies for payment from the Lengthy Trial Fund, provided the service commenced on or after the effective date of this article, may submit a request for payment from the Lengthy Trial Fund on a form that the administrator provides. Payment shall be limited to the difference between the state paid jury fee and the actual amount of wages a juror earns, up to maximum level payable, minus any amount the juror actually receives from the employer during the same time period.
(1) The form shall disclose the juror?s regular wages, the amount the employer will pay during the term of jury service starting on the eleventh day and thereafter, the amount of replacement or supplemental wages requested, and any other information the administrator deems necessary for proper payment.
(2) The juror also shall be required to submit verification from the employer as to the wage information provided to the administrator, for example, the employee?s most recent earnings statement or similar document, prior to initiation of payment from the Fund.
(3) If an individual is self-employed or receives compensation other than wages, the individual may provide a sworn affidavit attesting to his or her approximate gross weekly income, together with such other information as the administrator may require, in order to verify weekly income.
(f) The following attorneys and causes of action are exempt from payment of the Lengthy Trial Fund fee:
(1) Government attorneys entering appearances in the course of their official duties;
(2) Pro se litigants;
(3) Cases in small claims court or the state equivalent thereof; or
(4) Claims seeking social security disability determinations; individual veterans' compensation or disability determinations; recoupment actions for government backed educational loans or mortgages; child custody and support cases; actions brought in forma pauperis; and any other filings designated by rule that involve minimal use of court resources and that customarily are not afforded the opportunity for a trial by jury.
(g) The provisions of this article are severable. If any portion of this article is declared unconstitutional or the application of any part of this article to any person or circumstance is held invalid, the remaining portions of the article and their applicability to any person or circumstance shall remain valid and enforceable.
(h) This article shall take effect and be in force from and after the first day of July, two thousand five.


NOTE: The purpose of this bill is to set forth certain standards for petit juror service.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§
§ §52-1-10a, 52-1-23a and 52-4-1 are new; therefore, strike-throughs and underscoring have been omitted.
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