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.