ENROLLED
H. B. 2610
(By Delegates Vest, L. White and Beane)
[Passed April 10, 1993; in effect ninety days from passage]
AN ACT 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
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;
exempting certain state agencies; defining terms; providing
exceptions to the awarding of fees and other expenses; and
defining persons eligible for the awards.
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 portionof 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:
Provided,
,That for the purposes of this article, the
state does not include the division of highways or the bureau of
employment programs.
§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 may award fees
and other expenses to the prevailing party unless the prevailing
party is the state:
Provided,
That the court may not 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 such an
award unjust.
(b) A party seeking an award of attorney fees and other
expenses pursuant to this section shall, not later than thirty
days after a final judgment or dismissal order is entered in the
action, submit to the court a verified petition which sets forth
evidence of eligibility for an award pursuant to this section 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 itemizedstatement of such 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, if the court finds that the
position or claim of the state was substantially without merit.
(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 article.
(f) The provisions of this article apply only to parties to
legal and administrative proceedings who are individuals in their
capacities as doing business as a sole proprietorship and who
have obtained a business franchise license to do business in the
state and to firms, partnerships or corporations.