Introduced Version
Senate Bill 107 History
| Email
Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 107
(By Senators Laird and Miller)
____________
[Introduced February 13, 2013; referred to the Committee on
Government Organization; and then to the Committee on the
Judiciary.]
____________
A BILL to amend and reenact §29A-5-1 of the Code of West Virginia,
1931, as amended, relating to providing that hearing examiners
conducting state agency administrative hearings be selected
from a panel of five hearing examiners by a process in which
the state agency first strikes two hearing examiners and the
respondent subsequently strikes two hearing examiners.
Be it enacted by the Legislature of West Virginia:
That §29A-5-1 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5. CONTESTED CASES.
§29A-5-1. Notice required; hearing; subpoenas; witness fees, etc.;
depositions; records.
(a) In any contested case all parties shall be afforded an
opportunity for hearing after at least ten days' written notice.
The notice shall contain the date, time and place of the hearing
and a short and plain statement of the matters asserted. If the
agency is unable to state the matters in detail at the time the
notice is served, the initial notice may be limited to a statement
of the issues involved. Thereafter, upon application a more
definite and detailed statement shall be furnished. An opportunity
shall be afforded all parties to present evidence and argument with
respect to the matters and issues involved. The required notice
must be given as specified in section two, article seven of this
chapter. All of the testimony and evidence at any such hearing
shall be reported by stenographic notes and characters or by
mechanical means. All rulings on the admissibility of testimony
and evidence shall also be reported. The agency shall prepare an
official record, which shall include reported testimony and
exhibits in each contested case, and all agency staff memoranda and
data used in consideration of the case, but it shall not be is not
necessary to transcribe the reported testimony unless required for
purposes of rehearing or judicial review. Informal disposition may
also be made of any contested case by stipulation, agreed
settlement, consent order or default. Each agency shall adopt
appropriate rules of procedure for hearing in contested cases.
(b) For the purpose of conducting a hearing in any contested
case, any agency which now has or may be hereafter expressly granted
by statute the power to issue subpoenas or subpoenas duces tecum or
any member of the body which comprises such the agency may exercise
such that power in the name of the agency. Any such agency or any
member of the body which comprises any such agency may exercise such
that power in the name of the agency for any party upon request.
Under no circumstances shall does this chapter be construed as
granting grant the power to issue subpoenas or subpoenas duces
tecum to any agency or to any member of the body of any agency which
does not now by statute expressly have such power. When such that
power exists, the provisions of this section shall apply. Every
such subpoena and subpoena duces tecum shall be served at least five
days before the return date thereof, either by personal service made
by any person over eighteen years of age or by registered or
certified mail, but a return acknowledgment signed by the person to
whom the subpoena or subpoena duces tecum is directed shall be is
required to prove service by registered or certified mail. All
subpoenas and subpoenas duces tecum shall be issued in the name of
the agency, as aforesaid, but any party requesting their issuance
must see that they are properly served. Service of subpoenas and
subpoenas duces tecum issued at the instance of the agency shall be
is the responsibility of the agency. Any person who serves any such subpoena or subpoena duces tecum shall be is entitled to the same
fee as sheriffs who serve witness subpoenas for the circuit courts
of this state; and fees for the attendance and travel of witnesses
shall be the same as for witnesses before the circuit courts of this
state. All such fees shall be paid by the agency if the subpoena or
subpoena duces tecum were issued, without the request of an
interested party, at the instance of the agency. All such fees
related to any subpoena or subpoena duces tecum issued at the
instance of an interested party shall be paid by the party who asks
that such subpoena or subpoena duces tecum be issued. All requests
by interested parties for subpoenas and subpoenas duces tecum shall
be in writing and shall contain a statement acknowledging that the
requesting party agrees to pay such the fees. Any such agency may
compel the attendance of witnesses and the production of books,
records or papers in response to such subpoenas and subpoenas duces
tecum. Upon motion made promptly and in any event before the time
specified in a subpoena duces tecum for compliance therewith, the
circuit court of the county in which the hearing is to be held, or
the circuit court in which the subpoena duces tecum was served, or
the judge of either such court in vacation, may grant any relief
with respect to such subpoena duces tecum which either such court,
under the West Virginia Rules of Civil Procedure for Trial Courts
of Record, could grant, and for any of the same reasons, with respect to a subpoena duces tecum issued from either such court.
In case of disobedience or neglect of any subpoena or subpoena duces
tecum served on any person, or the refusal of any witness to testify
to any matter regarding which he or she may be lawfully
interrogated, the circuit court of the county in which the hearing
is being held, or the judge thereof in vacation, upon application
by such the agency or any member of the body which comprises such
the agency, shall compel obedience by attachment proceedings for
contempt as in the case of disobedience of the requirements of a
subpoena or subpoena duces tecum issued from such the circuit court
or a refusal to testify therein. Witnesses at such these hearings
shall testify under oath or affirmation.
(c) Evidentiary depositions may be taken and read as in civil
actions in the circuit courts of this state.
(d) All hearings shall be conducted in an impartial manner.
The agency, any member of the body which comprises the agency, or
any hearing examiner or other person permitted by statute to hold
any such hearing for such that agency, and duly authorized by such
the agency so to do, shall have the power to may: (1) Administer
oaths and affirmations; (2) rule upon offers of proof and receive
relevant evidence;(3)regulate the course of the hearing;(4) hold
conferences for the settlement or simplification of the issues by
consent of the parties; (5) dispose of procedural requests or similar matters; and (6) take any other action authorized by a rule
adopted by the agency in accordance with the provisions of article
three of this chapter. Notwithstanding any provision in this code
to the contrary, in any such hearing to be conducted by a hearing
examiner, the hearing examiner shall be selected from a panel of
five hearing examiners by a process in which the agency first
strikes two hearing examiners from the panel and the respondent
subsequently strikes two hearing examiners from the panel.
(e) Except where otherwise provided by statute, the hearing in
any contested case shall be held in the county selected by the
agency.
(f) Notwithstanding the provisions of subparagraph (a) of this
section, upon request to the agency from any party to the hearing,
all reported testimony and evidence at such the hearing shall be
transcribed, and a copy thereof furnished to such the party at his
or her expense. The agency shall have the responsibility for
making arrangements for the transcription of the reported testimony
and evidence, and such the transcription shall be accomplished with
all dispatch.
NOTE: The purpose of this bill is to provide that hearing
examiners conducting state agency administrative hearings be
selected from a panel of five hearing examiners by a process in
which the state agency first strikes two hearing examiners and the
respondent subsequently strikes two hearing examiners.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.