Senate Bill No. 152
(By Senators Tomblin, Mr. President, and Caruth,
By Request of the Executive)
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[Introduced January 19, 2007; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to repeal §29-21-10, §29-21-11 and §29-21-12 of the Code of
West Virginia, 1931, as amended; to amend and reenact
§29-21-2, §29-21-6, §29-21-8, §29-21-9, §29-21-13 and
§29-21-13a of said code; and to amend said code by adding
thereto a new section, designated §29-21-3b, all relating to
Public Defender Services generally; defining certain terms;
creating the Indigent Defense Commission; specifying members
and their terms; specifying certain powers and duties of the
Indigent Defense Commission; authorizing public defender
corporations to contract with private attorneys; permitting
the employment of full-time and part-time attorneys; requiring
public defender corporations to submit monthly financial
statements and reports; providing requirements for the
creation, activation and merger of public defender
corporations; providing for the order of appointment of panel
attorneys; removing certain sections relating to the funding
of public defender corporations; establishing requirements for funding applications; requiring corporations to submit
proposed budgets; authorizing amended funding contracts;
providing for payment of fees to panel attorneys; and
authorizing executive director to establish guidelines for
submission of claims and vouchers.
Be it enacted by the Legislature of West Virginia:
That §29-21-10, §29-21-11 and §29-21-12 of the Code of West
Virginia, 1931, as amended, be repealed; that §29-21-2, §29-21-6,
§29-21-8, §29-21-9, §29-21-13 and §29-21-13a of said code be
amended and reenacted; and that said code be amended by adding
thereto a new section, designated §29-21-3b, all to read as
follows:
ARTICLE 21. PUBLIC DEFENDER SERVICES.
§29-21-2. Definitions.
As used in this article, the following words and phrases are
hereby defined:
(1) "Eligible client": Any person who meets the requirements
established by this article to receive publicly funded legal
representation in an eligible proceeding as defined herein;
(2) "Eligible proceeding": Criminal charges which may result
in incarceration; juvenile proceedings; proceedings to revoke
parole or probation if the revocation may result in incarceration;
contempt of court; child abuse and neglect proceedings which may
result in a termination of parental rights; mental hygiene
commitment proceedings; extradition proceedings; proceedings which
are ancillary to an eligible proceeding, including, but not limited to, proceedings to enhance sentences brought pursuant to sections
eighteen and nineteen, article eleven, chapter sixty-one of this
code, forfeiture proceedings brought pursuant to article seven,
chapter sixty-a of this code, and proceedings brought to obtain
extraordinary remedies; and appeals from or post-conviction
challenges to the final judgment in an eligible proceeding. Legal
representation provided pursuant to the provisions of this article
is limited to the court system of the State of West Virginia, but
does not include representation in municipal courts unless the
accused is at risk of incarceration;
(3) "Legal representation": The provision of any legal
services or legal assistance as counsel or guardian ad litem
consistent with the purposes and provisions of this article;
(4) "Private practice of law": The provision of legal
representation by a public defender or assistant public defender to
a client who is not entitled to receive legal representation under
the provisions of this article, but does not include, among other
activities, teaching;
(5) "Public defender": The staff attorney employed on a
full-time basis by a public defender corporation who, in addition
to providing direct representation to eligible clients, has
administrative responsibility for the operation of the public
defender corporation. The public defender may be a part-time
employee if the board of directors of the public defender
corporation finds efficient operation of the corporation does not
require a full-time attorney and the executive director approves such part-time employment;
(6) "Assistant public defender": A staff attorney providing
direct representation to eligible clients whose salary and status
as a full-time or part-time employee are fixed by the board of
directors of the public defender corporation;
(7) "Contract public defender": A private attorney-at-law who
has contracted with the board of directors of the public defender
corporation to provide part-time direct representation to eligible
clients in the event that the public defender corporation is not
available for appointment pursuant to subsection (b), section nine
of this article. The fees paid to a contract public defender shall
be fixed by the board of directors in a contract executed by the
board and the contract public defender and approved by the
executive director: Provided, That no contract public defender may
submit claims for fees and expense reimbursements pursuant to
section thirteen-a of this article for legal representation
provided as a contract public defender: Provided, however, That
any contract with a contract public defender shall accord with the
Rules of Professional Conduct as promulgated by the Supreme Court
of Appeals;
(7) (8) "Public defender corporation": A corporation created
under section eight of this article for the sole purpose of
providing legal representation to eligible clients; and
(8) (9) "Public defender office": An office operated by a
public defender corporation to provide legal representation under
the provisions of this article.
§29-21-3b. Indigent Defense Commission.
(a) There is hereby established the Indigent Defense
Commission to provide assistance to Public Defender Services 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 the qualitative review of indigent defense.
(b) In order to demonstrate a collaborative approach to
solving criminal justice problems, the commission shall consist of
the executive director of Public Defender Services, who shall serve
as chair, the Director of the Prosecuting Attorneys Institute, and
the following members appointed by the Governor:
(1) One former or retired circuit judge;
(2) Two lawyers experienced in providing legal services to the
indigent;
(3) One current chief public defender; and
(4) One nonlawyer with a demonstrated commitment to providing
legal services to the indigent.
(c) The commission shall meet at the times and places
specified by the call of the chair:
Provided, That the commission
shall meet no less than four times each year. Members shall serve
without compensation but may receive reimbursement of actual and
necessary expenses for each day or portion thereof engaged in this
discharge of official duties in a manner consistent with the
guidelines of the travel management office of the Department of
Administration.
(d) The appointed members of the commission shall serve
four-year terms that shall coincide with the term of the Governor.
(e) The commission shall have the following powers and duties:
(1) To develop standards regarding the qualifications and
training for public defenders, assistant public defenders, and
staff;
(2) To explore opportunities related to the training of
appointed panel attorneys;
(3) To evaluate, on an annual basis, the case loads of public
defenders and appointed panel attorneys;
(4) To develop standards for providing and compensating expert
witnesses, investigators, and other persons who provide services
related to legal representation under this article;
(5) To study, monitor, and evaluate existing standards for
determining eligibility for legal representation under section
sixteen of this article;
(6) To approve the creation of additional public defender
corporations, the activation of public defender corporations, and
the formation of multicircuit or regional public defender
corporations in accordance with the provisions of section eight of
this article; and
(7) To monitor and make recommendations regarding the
following activities of the board of directors of each public
defender corporation receiving funding pursuant to this article:
(A) The appointment of the public defender and any assistant
public defenders pursuant to subdivision (1), subsection (c), section fifteen of this article;
(B) The fixing of professional and clerical salaries pursuant
to subdivision (2), subsection (c), section fifteen of this
article; and
(C) The removal of any public defender, assistant public
defender or other employee for misfeasance, malfeasance or
nonfeasance pursuant to subdivision (3), subsection (c), section
fifteen of this article.
§29-21-6. Powers, duties and limitations.
(a) Consistent with the provisions of this article, the agency
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 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 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
relating 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 designate 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.
This
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 his or her designee
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 his or her designee 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
appellate division shall maintain
vouchers and records
for of
representation of eligible clients for record purposes only.
§29-21-8. Public defender corporations; establishment thereof.
(a)
(1) In each judicial circuit of the state, there is hereby
created a "public defender corporation" of the circuit:
Provided,
That the executive director, with the approval of the Indigent Defense Commission, may authorize the creation of an additional
public defender corporation in a judicial circuit where the
creation of such additional public defender corporation would
improve the quality of legal representation, assure the prudent and
resourceful expenditure of state funds, and further the purposes of
this article: Provided, however, That prior to the creation of
additional public defender corporations in accordance with this
subsection, the executive director shall provide a report to the
Secretary of the Department of Administration regarding the case
load and annual budget of the existing corporation and all payments
made to panel attorneys appointed in the circuit.
(2) The purpose of these public defender corporations is to
provide legal representation in the respective circuits in
accordance with the provisions of this article.
A public defender
corporation may employ full-time attorneys and employ or contract
with part-time attorneys in whatever combination that the public
defender corporation deems most cost effective.
(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 there is a need to activate the
corporation, they shall certify that fact in writing to the
executive director If the executive director, with the approval of
the Indigent Defense Commission, determines there is a need to
activate a corporation in a judicial circuit of the state, he or
she shall certify that fact in writing to the Secretary of the
Department of Administration. The executive director shall allocate funds to those
corporations so certifying certified
corporations in the order in which he or she deems most efficient
and cost effective.
(c)
The executive director, with the approval of the Indigent
Defense Commission, 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 legal representation, assure
the prudent and resourceful expenditure of state funds, and further
the purposes of this article. Applications for mergers shall be
subject to the review procedures set forth in section eleven of
this article.
§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:
Provided,
That a contract public defender, as defined in section two of this
article, shall be ineligible to be enrolled on such regional or
local panels during the term of his or her contract with a public
defender corporation. An agreement to accept cases generally or
certain types of cases particularly
shall may 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
in the following order of preference:
(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
panel attorneys
from the local panel contract public defenders with whom the
public defender corporation in that circuit has contracted to
provide direct representation to eligible clients independent of
any relationship with the circuit's public defender office;
(3) If there is no
local panel contract public defender
attorney available, the judge shall appoint one or more panel
attorneys from the
regional panel local circuit;
(4) If there is no
regional local circuit panel attorney
available, the judge may appoint a public defender office from an
adjoining circuit if such 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.
(c) 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:
Provided, That any time a court, in appointing
counsel pursuant to the provisions of this section, alters the
order of appointment as set forth herein, the order of appointment
shall contain the court's reasons for doing so.
§29-21-13. Approval of public defender corporation funding
applications; funding; record keeping by public
defender corporations.
(a)
On or before the first day of May of each year, each
active public defender corporation shall submit to the executive
director a funding application and a proposed budget for the ensuing fiscal year. The accounting and auditing division shall
review all funding applications and prepare recommendations for an
operating plan and
annual budget
for each public defender
corporation. The executive director shall review the funding
applications and the accounting and auditing recommendations and
shall, in consultation with
the applicants the board of directors
of each public defender corporation, prepare a plan for providing
legal services,
execute a funding contract for the fiscal year, and
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 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 increase or
unusual expenses occur, funding contracts may be amended during a
fiscal year if 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 the executive director shall deem appropriate.
(d) All recipients of funding under this article shall
maintain such records as required by the executive director.
§29-21-13a. Compensation and expenses for panel attorneys.
(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.
The executive director shall establish
guidelines for the submission of vouchers and claims for fees and
expense reimbursements under this section. Claims submitted more
than
four years ninety calendar days after the last date of service
shall be rejected.
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,
shall 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 at the rate of forty-five dollars per hour. For
paralegal's work performed out of court for the attorney,
compensation shall be 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 shall the compensation exceed twenty dollars per
hour. Out-of-court work includes, but is not limited to, travel,
interviews of clients or witnesses, preparation of pleadings and
prehearing or pretrial research.
(2) For attorney's work performed in court, compensation shall
be at the rate of sixty-five dollars per hour. No compensation for paralegal's work performed in court shall be allowed. In-court
work includes, but is not limited to, all time spent awaiting
hearing or trial
if the presence of the attorney is required 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 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 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 one thousand five 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 page as set forth in
section four, article seven, chapter fifty-one of this code.
Reimbursement of the cost of copies of such transcripts is limited
to the cost per copy page as provided for under said section. It
is the duty of the executive director of public defender services
to maintain computer records of all transcripts, including
originals and copies, for which payment has been made.
(B)(i) There shall 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
jury
trial,
which has been reported by a court reporter at the request
of the attorney, where
the preliminary such 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 the expense of an appearance fee for a
court reporter who reports a proceeding other than one described in
subparagraph (i) of this paragraph
or who reports a proceeding
which is not reported by an official court reporter acting in his
or her official capacity for the court, is limited to twenty-five
dollars. Where a transcript of a proceeding is produced, there
shall be no reimbursement for the expense of any appearance fee.
Where a transcript is requested by the attorney after an appearance fee has been paid, reimbursement of the expense incurred to obtain
the transcript is limited to the cost of producing the transcript,
within the prescribed limitations of paragraph (a) of this
subdivision, less the amount of the paid appearance fee.
(iii)
Reimbursement of travel expenses incurred for travel by
a court reporter is subject to the limitations provided by
subdivision (2) of this subsection.
(iv) Except for the appearance fees provided in this
paragraph, there shall 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
magistrate court to circuit court, an appeal from a final
order of the circuit court, or a proceeding seeking an
extraordinary remedy made to the Supreme Court of Appeals, shall be
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 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 shall
indicate the 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 shall refuse to
requisition payment for any voucher which is not in conformity with
the record keeping, compensation or other provisions of this
article
or the voucher guidelines established issued pursuant to
subsection (a) of this section and in such circumstance shall
return the voucher to the court or to the service provider for
further review or correction.
NOTE: The purpose of the bill is to create the Indigent
Defense Commission to assist Public Defender Services with regard to the general policies and procedures of the agency, and to
provide additional oversight of the costs and administration of the
public defender corporations; to permit public defender
corporations to contract with private attorneys to provide direct
representation to eligible clients in the event that the
corporation cannot provide said representation; to require
corporations to submit monthly reports on billable and nonbillable
time to the agency; to authorize the agency to create additional
corporations in a judicial circuit with an active corporation,
activate corporations, and require the merger of existing
corporations; to establish an order of preference for the
appointment of panel attorneys; to modify requirements for funding
applications; to modify compensable expenses; and to authorize the
executive director to establish guidelines for submission of
vouchers and claims.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§29-21-3b is new; therefore, underscoring and strike-throughs
have been omitted.