ENROLLED

Senate Bill No. 588

(By Senators Wooton, Anderson, Bowman, Buckalew, Deem, Dittmar, Grubb, Oliverio, Ross, Schoonover, Wagner, White, Wiedebusch and Yoder)

____________

[Passed March 15, 1996; in effect from passage.]

_____________



AN ACT to repeal articles one and two, chapter fifty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section twenty-seven, article seven, chapter twenty-one-a of said code; to amend and reenact section four, article five, chapter twenty-nine-a of said code; to amend and reenact section seventeen, article one, chapter fifty-one of said code; and to amend and reenact sections one, two, three, four, five, six, seven, eight, nine and twenty-two, article five, chapter fifty-eight of said code, all relating generally to procedural and administrative matters affecting the exercise of judicial authority; eliminating statutory provisions which have been superseded by court rules; eliminating a forum for review of contested administrative cases; revising the duties of the director of the administrative office of the supreme court of appeals; and reorganizing statutory provisions to conform to changes effected by the legislation.

Be it enacted by the Legislature of West Virginia:
That articles one and two, chapter fifty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that section twenty-seven, article seven, chapter twenty- one-a of said code be amended and reenacted; that section four, article five, chapter twenty-nine-a of said code be amended and reenacted; that section seventeen, article one, chapter fifty-one of said code be amended and reenacted; and that sections one, two, three, four, five, six, seven, eight, nine and twenty-two, article five, chapter fifty-eight of said code be amended and reenacted, all to read as follows:
CHAPTER 21A. UNEMPLOYMENT COMPENSATION.

ARTICLE 7. CLAIM PROCEDURE.

§21A-7-27. Appeal to supreme court of appeals.

The judgment of the circuit court shall be final unless reversed, vacated or modified on appeal to the supreme court of appeals in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code.
CHAPTER 29A. STATE ADMINISTRATIVE PROCEDURES ACT.

ARTICLE 5. CONTESTED CASES.

§29A-5-4. Judicial review of contested cases.

(a) Any party adversely affected by a final order or decision in a contested case is entitled to judicial review thereof under this chapter, but nothing in this chapter shall be deemed to prevent other means of review, redress or relief provided by law.
(b) Proceedings for review shall be instituted by filing a petition in the circuit court of the county in which the petitioner or any one of the petitioners resides or does business within thirty days after the date upon which such party received notice of the final order or decision of the agency. A copy of the petition shall be served upon the agency and all other parties of record by registered or certified mail. The petition shall state whether the appeal is taken on questions of law or questions of fact, or both. No appeal bond shall be required to effect any such appeal.
(c) The filing of the petition shall not stay enforcement of the agency order or decision or act as a supersedeas thereto, but the agency may stay such enforcement, and the appellant, at any time after the filing of his petition, may apply to such circuit court for a stay of or supersedeas to such final order or decision. Pending the appeal, the court may grant a stay or supersedeas upon such terms as it deems proper.
(d) Within fifteen days after receipt of a copy of the petition by the agency, or within such further time as the court may allow, the agency shall transmit to such circuit court the original or a certified copy of the entire record of the proceeding under review, including a transcript of all testimony and all papers, motions, documents, evidence and records as were before the agency, all agency staff memoranda submitted in connection with the case, and a statement of matters officially noted; but, by stipulation of all parties to the review proceeding, the record may be shortened. The expense of preparing such record shall be taxed as a part of the costs of the appeal. The appellant shall provide security for costs satisfactory to the court. Any party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs involved. Upon demand by any party to the appeal, the agency shall furnish, at the cost of the party requesting same, a copy of such record. In the event the complete record is not filed with the court within the time provided for in this section, the appellant may apply to the court to have the case docketed, and the court shall order such record filed.
(e) Appeals taken on questions of law, fact or both, shall be heard upon assignments of error filed in the cause or set out in the briefs of the appellant. Errors not argued by brief may be disregarded, but the court may consider and decide errors which are not assigned or argued. The court or judge shall fix a date and time for the hearing on the petition, but such hearing, unless by agreement of the parties, shall not be held sooner than ten days after the filing of the petition, and notice of such date and time shall be forthwith given to the agency.
(f) The review shall be conducted by the court without a jury and shall be upon the record made before the agency, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony thereon may be taken before the court. The court may hear oral arguments and require written briefs.
(g) The court may affirm the order or decision of the agency or remand the case for further proceedings. It shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because of the administrative findings, inferences, conclusions, decision or order are:
(1) In violation of constitutional or statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of the agency; or
(3) Made upon unlawful procedures; or
(4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
(h) The judgment of the circuit court shall be final unless reversed, vacated or modified on appeal to the supreme court of appeals of this state in accordance with the provisions of section one, article six of this chapter.
CHAPTER 51. COURTS AND THEIR OFFICERS.

ARTICLE 1. SUPREME COURT OF APPEALS.

§51-1-17. Administrative office of supreme court of appeals -- Duties of director.

The director shall, when authorized by the supreme court of appeals, be the administrative officer of said court and shall have charge, under the supervision and direction of the supreme court of appeals, of:
(a) All administrative matters relating to the offices of the clerks of the circuit and intermediary courts and of the offices of justice of the peace, and all other clerical and administrative personnel of said courts; but nothing contained in this act shall be construed as affecting the authority of the courts to appoint their administrative or clerical personnel;
(b) Examining the state of the dockets of the various courts and securing information as to their needs for assistance, if any, and the preparation of statistical data and reports of the business transacted by the courts;
(c) The preparation of a proper budget to secure the appropriation of moneys for the maintenance, support and operation of the courts;
(d) The purchase, exchange, transfer and distribution of equipment and supplies, as may be needful or desirable;
(e) Such other matters as may be assigned to him by the supreme court of appeals. The clerks of the circuit courts, intermediate courts and courts of the justices of the peace shall comply with any and all requests made by the director or his assistants for information and statistical data bearing on the state of the dockets of such courts, or such other information as may reflect the business transacted by them;
(f) Annual report of activities and estimates of expenditures. -- The director, when required to do so by the supreme court of appeals, shall submit annually to the court a report of the activities of the administrative office and of the state of business of the courts, together with the statistical data compiled by him, with his recommendations.
CHAPTER 58. APPEAL AND ERROR.

ARTICLE 5. APPELLATE RELIEF IN SUPREME COURT OF APPEALS.

§58-5-1. When appeal lies.

A party to a civil action may appeal to the supreme court of appeals from a final judgment of any circuit court or from an order of any circuit court constituting a final judgment as to one or more but fewer than all claims or parties upon an express determination by the circuit court that there is no just reason for delay and upon an express direction for the entry of judgment as to such claims or parties. The defendant in a criminal action may appeal to the supreme court of appeals from a final judgment of any circuit court in which there has been a conviction or which affirms a conviction obtained in an inferior court.
§58-5-2. Certification to supreme court of appeals.

Any question of law arising upon the sufficiency of a summons or return of service, upon a challenge of the sufficiency of a pleading or the venue of the circuit court, upon the sufficiency of a motion for summary judgment where such motion is denied, or a motion for judgment on the pleadings, upon the jurisdiction of the circuit court of a person or subject matter, or upon failure to join an indispensable party, may, in the discretion of the circuit court in which it arises, be certified by it to the supreme court of appeals for its decision, and further proceedings in the case stayed until such question shall have been decided and the decision thereof certified back.
The procedure for processing questions certified pursuant to this section shall be governed by rules of appellate procedure promulgated by the supreme court of appeals.
§58-5-3. Presentation of petition.

A party desiring to appeal may file a petition in accordance with the provisions of rules of appellate procedure promulgated by the supreme court of appeals.
§58-5-4. Time for appeal.

No petition shall be presented for an appeal from any judgment rendered or made more than four months before such petition is filed with the clerk of the court where the judgment being appealed was entered: Provided, That the judge of the circuit court or the supreme court of appeals may, prior to the expiration of such period of four months, by order entered of record extend and reextend such period for such additional period or periods, not to exceed a total extension of two months, for good cause shown.
§58-5-5. Stay of proceedings; supersedeas bond.

At the instance of any person who desires to present such petition, the court in which the judgment was entered may, upon notice in writing to the opposite party , make an order suspending the execution of such judgment for a reasonable time to be specified in such order, when such person gives bond before the clerk of such court, in such penalty as the court or judge may require, with a condition reciting such judgment and the intention of such person to present such petition, and providing for the payment of all such damages as any person may sustain by reason of such suspension in case supersedeas to such judgment should not be allowed, and that the bond will be effective during the time so specified.
§58-5-6. Filing of petition.

Petitions for appeal shall be filed and processed in accordance with the provisions of rules of appellate procedure promulgated by the supreme court of appeals.
§58-5-7. Contents of transcript of record.

The contents of the transcript of record shall be governed in accordance with the provisions of rules of appellate procedure promulgated by the supreme court of appeals.
§58-5-8. Appeal bond generally.

When required by the court, an appeal shall not take effect until bond is given by the appellants or petitioners, or one of them, or some other person, in a penalty to be fixed by the court or judge by or in which the appeal is allowed or entered with condition: If a supersedeas be awarded, to abide by and perform the judgment, and to pay to the opposite party, and to any person injured all such costs and damages as they, or either of them, may incur or sustain by reason of said appeal, in case such judgment, or such part, be affirmed, or the appeal be dismissed, and also, to pay all damages, costs and fees, which may be awarded against or incurred by the appellant or petitioners; and if it be an appeal from a judgment dissolving an injunction, or dismissing a bill of injunction, with a further condition, to indemnify and save harmless the surety in the injunction bond against loss or damage in consequence of his suretyship; and with condition when no supersedeas is awarded to pay such specific damages, and such costs and fees as may be awarded or incurred: Provided, That whenever an appeal be awarded in any action or suit wherein a judgment for the payment of money has been entered against an insured in an action which is defended by an insurance corporation, or other insurer, on behalf of the insured under a policy of insurance, the limit of liability of which is less than the amount of said judgment, execution on the judgment to the extent of the policy coverage shall be stayed until final determination of such appeal, and no execution shall be issued, or action brought, maintained or continued against such insured, insurance corporation, or other insurer, for the amount of such judgment so stayed, by either the injured party, the insured, or the legal representative, heir or assigns of any of them, during the pendency of such proceeding, provided such insurance corporation, or other insurer, shall:
(1) File with the clerk of the court in which the judgment was entered, a sworn statement of one of its officers, describing the nature of the policy and the amount of coverage thereof;
(2) Give or cause to be given by the judgment debtor or some other person for him a bond in a penalty to be fixed by the court or judge by or in which the appeal is allowed or entered, not to exceed the amount of such insurance coverage set out in the sworn statement above required, with condition to pay the amount of such coverage upon said judgment if the judgment or such part be affirmed or the appeal be dismissed, plus interest on said sum and cost;
(3) Serve a copy of such sworn statement and bond upon the judgment creditor or his attorney;
(4) Deliver or mail to the insured at the latest address of the insured appealing upon the records of such insurance corporation, or other insurer, written notice that execution on such judgment to the extent that it is not covered by such insurance is not stayed in respect to the insured: Provided, That the filing of a bond by the insured or someone for him, conditioned upon the payment of the balance of the judgment and interest not stayed by the insured as aforesaid if the judgment be affirmed or the appeal be dismissed, shall stay execution on the balance of said judgment not covered by such insurance: Provided, however, That the filing of such statement and bond hereunder by an insurance corporation or other insurer shall not thereby make such insurance corporation or other insurer a party to such action, either in the trial court or in the appellate court.
§58-5-9. Appeal by state of judgment quashing indictment.

Whenever in any criminal case an indictment is held bad or insufficient by the judgment of a circuit court, the state, on the application of the attorney general or the prosecuting attorney, may appeal such judgment to the supreme court of appeals. No such appeal is allowed unless the state presents its petition therefor to the supreme court of appeals within thirty days after the entry of such judgment. No such judgment finally discharges, or has the effect of finally discharging, the accused from further proceedings on the indictment unless the state fails, within such period of thirty days, to file a petition for appeal with the clerk of the court in which the judgment is entered, but after the entry of such judgment or order, the accused may not be kept in custody or required to give bail pending the hearing and determination of the case by the supreme court of appeals.
Except as herein otherwise provided, all the provisions of the other sections of this article shall, so far as appropriate, be applicable to a petition for an appeal under this section, and to all subsequent proceedings thereon in the supreme court of appeals in case such appeal is granted.
§58-5-22. Recusal and disqualification of justices.

(a) The Legislature's purpose in enacting the provisions of this section is to provide, consistent with an understanding and respect for the separation of powers doctrine and the provisions of article VIII of the Constitution of West Virginia, a procedure for seeking disqualification of justices of the supreme court of appeals in the rare instances, consistent with the code of judicial conduct, where a person's right to an impartial tribunal might be jeopardized or appear to be jeopardized by a justice's involvement in a particular appellate matter.
(b) Whenever any attorney on behalf of a client or a litigant acting on his or her own behalf with a matter pending before the supreme court of appeals has reasonable cause to believe that a justice of the supreme court of appeals:
(1) Has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Has served as a lawyer in the matter in controversy, or a lawyer with whom the justice previously practiced law served during such association as a lawyer concerning the matter, or the justice has been a material witness concerning it;
(3) Knows that he or she, individually or as fiduciary, or the justice's spouse, parent or child wherever residing, or any other member of the justice's family residing in the justice's household, has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than deminimis interest that could be substantially affected by the proceeding;
(4) Has been made aware of facts or circumstances involving the case which are not public record or contained within the pleadings;
(5) Has publicly expressed his or her personal opinion regarding a matter or matters peculiar to the matter in which disqualification is sought or that the justice; or
(6) The justice's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director or trustee, of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the justice to have a more than deminimis interest that could be substantially affected by the proceeding; or
(iv) Is to the justice's knowledge likely to be a material witness in the proceeding.
The attorney or the person acting on his or her own behalf may file, under seal, with the justice whose disqualification is sought and the clerk of the supreme court of appeals, a written motion, along with any supporting documentation, seeking the justice's disqualification and setting forth the grounds for disqualification.
(c) When a motion to disqualify a justice is filed and the justice whose disqualification is sought deems the motion to disqualify to be without merit the matter shall be referred to the other justices for a decision on the motion. A retired justice or present or retired circuit judge may be named where necessary to reach a majority decision on a motion to disqualify.