Senate Bill No. 562
(By Senators Wooton, Ball, Dittmar, Hunter, Ross, White and
Buckalew)
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[Originating in the Committee on the Judiciary;
reported April 2, 1997.]
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A BILL to amend article twenty-one, chapter twenty-nine of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto three new sections, designated
sections twenty-two, twenty-three and twenty-four; to amend
and reenact sections eleven, thirteen and twenty-eight-a,
article one, chapter fifty-nine of said code; and to amend and
reenact sections thirty-nine-g and thirty-nine-h, article
three, chapter sixty-one of said code, all relating to
providing funding for civil legal services for poor persons in
the state; creating a special revenue account; providing for
the disbursement and distribution of moneys from such account;
creating the West Virginia legal services council; authorizing
council to make certain determinations regarding distribution
of funds; increasing civil filing fees in magistrate court;
increasing certain civil filing fees in circuit court;
providing for the disposition of increased filing fees; establishing filing fees for appeals filed with the supreme
court of appeals; increasing court costs for the issuance of
notice of complaint for worthless check warrants; and
providing for the payment of fees into the civil legal
services fund.
Be it enacted by the Legislature of West Virginia:
That article twenty-one, chapter twenty-nine of the code of
West Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto four new sections, designated sections
twenty-two, twenty-three and twenty-four; that sections eleven,
thirteen and twenty-eight-a, article one, chapter fifty-nine of
said code be amended and reenacted; and that sections thirty-nine-g
and thirty-nine-h be amended and reenacted, all to read as follows:
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 21. PUBLIC DEFENDER SERVICES.
§29-21-22. Civil legal services fund established; disbursements.
There is hereby created in the state treasury, a special
revenue fund which shall be known as the "Civil Legal Services
Fund". Monthly deposits shall be made to the fund in accordance
with the provisions of section one, article three, chapter fifty,
sections thirteen and twenty-eight-a, article one, chapter fifty- nine and section thirty-nine-h, article three, chapter sixty-one of
this code. The fund shall be used to support programs that provide
civil legal services for the poor in this state. The fund shall at all times be accounted for separately and distinctly from any other
funds received by the public defender services. The executive
director shall make quarterly disbursements from the fund in
accordance with the provisions of section twenty-four of this
article.
§29-21-23. Disbursement of moneys deposited in the civil legal
services fund.
(a) Subject to the limitations set forth in subsection (c) of
this section, the executive director shall distribute moneys
deposited in the civil legal services fund on a quarterly basis as
directed by the legal services council. The moneys shall be
distributed to legal services organizations in this state that (1)
provide civil legal services to the poor in this state and (2) are
eligible to receive federal funds for the purpose of providing
civil legal services to the poor.
(b) Legal services organizations that meet the requirements
set forth in subsection (a) of this section shall receive a
percentage of the moneys deposited in the civil legal services
fund. The percentage amount shall be the percentage of poor
population served by the organization using the most recent federal
bureau of census statistics.
(c) Funds distributed to legal services organizations may not
be used by the organization to support any lobbying activities.
Funds distributed to legal services organizations may not be used to bring a suit against the state when any part of the remedy being
sought has the effect of requiring any increase in public funding
for any program supported by state revenues or to bring class
action suits. No organization may be in receipt of funds from the
civil legal services fund if that organization is affiliated with,
associated with, or has common members or directors with any
organization engaged in the activities which prohibit the receipt
of funds under this subsection.
(d) If for any reason it is determined that funds distributed
to legal services organization may not be restricted in accordance
with subsection (c) of this section, then the imposition of all
fees and costs authorized pursuant to section one, article three,
chapter fifty, sections eleven and thirteen, article one, chapter
fifty-nine and section thirty-nine-g, article three, chapter sixty- one of this code which are being distributed to legal services
organizations shall be void and it shall be unlawful to collect any
fee for disbursement to the civil legal services fund.
§29-21-24. Legal services council; appointment, qualifications and
terms of members; compensation; powers and duties generally;
meetings and notices.
(a) There shall be a legal services council, known as the
"West Virginia Legal Services Council", which shall consist of five
practicing attorneys and two members of the general public, who
shall be appointed by the governor, by and with the advice and consent of the Senate. Any vacancy which occurs in the membership
of the council for any reason, including expiration of term,
removal, resignation, death, disability or disqualification shall
be immediately filled by the governor as provided by this section.
Nothing in this section shall require the governor to change the
composition of the council prior to the usual expiration of any
member's term.
(b) Each attorney member of the council, at the time of his or
her appointment, shall be a resident of this state, licensed and in
good standing to engage in the practice of law in this state for a
period of at least five years prior to his or her appointment.
Each public member of the council shall be a resident of this state
who has attained the age of eighteen years and who is not an
attorney, the spouse of an attorney, a person who has ever had any
material financial interest in providing legal services or who has
engaged in any activity directly related to the practice of law.
(c) Each member of the council shall receive two hundred
dollars for each day spent in attending to the duties of the
council or of its committees, and shall be reimbursed for all
actual and necessary expenses incurred in carrying out his or her
duties.
(d) Council members shall serve for a term of five years
except that the initial appointment of members shall be for terms
to assure that at least one attorney member's term expires each year. The governor may, with the advice and consent of the Senate,
reappoint any member for additional consecutive terms.
(e) The council shall have the power and authority to:
(1) Distribute funds deposited in the civil legal services
fund created pursuant to section twenty-two of this article;
(2) Determine the types of cases in which indigent persons
will be entitled to representation paid with funds from the civil
legal services fund consistent with section twenty-four of this
article; and
(3) Utilize the staff of the West Virginia public defender
corporation in carrying out its duties and responsibilities as set
forth in this article.
(f) A majority of the membership of the council constitutes a
quorum for the transaction of business, and any motion may be
approved by a majority vote of a quorum. All council members shall
be given advance notice of each council meeting.
(g) Meetings of the council shall be held in public session,
except that the council may hold closed sessions for discussions of
the council concerning personnel matters.
CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 3. COSTS, FINES AND RECORDS.
§50-3-1. Costs in civil actions.
The following costs shall be charged in magistrate courts in
civil actions and shall be collected in advance:
(a) For filing and trying any civil action and for all
services connected therewith, but excluding services regarding
enforcement of judgment, the following amounts dependent upon the
amount of damages sought in the complaint:
Where the action is for five hundred dollars or
less$25.00 $30.00
Where the action is for more than five hundred
dollars but not more than one thousand dollars$30.00 $35.00
Where the action is for more than one thousand
dollars but not more than two thousand dollars$35.00 $40.00
Where the action is for more than two thousand
dollars$45.00 $50.00
Where the action seeks relief other than money
damages$25.00 $30.00
On and after the first day of July, one thousand nine hundred
ninety-six, five dollars from each of the filing fees listed above
will be deposited in the court security fund created by the
provisions of section fourteen, article three, chapter fifty-one of
this code. On and after the first day of July, one thousand nine
hundred ninety-seven, five dollars from each of the filing fees
listed above will be deposited in the civil legal services fund
created by the provisions of section twenty-two, article twenty- one, chapter twenty-nine of this code.
(b) For each service regarding enforcement of a
judgment including execution, suggestion, garnishment
and suggestee execution$ 5.00
(c) For each bond filed in a case$ 1.00
(d) For taking deposition of witness for each hour
or portion thereof$ 1.00
(e) For taking and certifying acknowledgment of a
deed or other writing or taking oath upon an affidavit$ .50
(f) For mailing any matter required or provided by
law to be mailed by certified or registered mail with
return receipt$ 1.00
Costs incurred in a civil action shall be reflected in any
judgment rendered thereon. The provisions of section one, article
two, chapter fifty-nine of this code, relating to the payment of
costs by poor persons, shall be applicable to all costs in civil
actions.
CHAPTER 59. FEES, ALLOWANCES AND COSTS;
NEWSPAPERS; LEGAL ADVERTISEMENTS.
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-11. Fees to be charged by clerk of circuit court.
(a) The clerk of a circuit court shall charge and collect for
services rendered as such clerk the following fees, and such fees
shall be paid in advance by the parties for whom such services are
to be rendered:
For instituting any civil action under the rules of civil procedure, any statutory summary proceeding, any extraordinary
remedy, the docketing of civil appeals, or any other action, cause,
suit or proceeding, seventy-five one hundred dollars: Provided,
That the fee for instituting an action for divorce shall be one
hundred five dollars.
(b) In addition to the foregoing fees, the following fees
shall likewise be charged and collected:
(1) For preparing an abstract of judgment, five dollars;
(2) For any transcript, copy or paper made by the clerk for
use in any other court or otherwise to go out of the office, for
each page, fifty cents;
(3) For action on suggestion, ten dollars;
(4) For issuing an execution, ten dollars;
(5) For issuing or renewing a suggested execution, including
copies, postage, registered or certified mail fees and the fee
provided by section four, article five-a, chapter thirty-eight of
this code, three dollars;
(6) For vacation or modification of a suggested execution, one
dollar;
(7) For docketing and issuing an execution on a transcript of
judgment from magistrate's court, three dollars;
(8) For arranging the papers in a certified question, writ of
error, appeal or removal to any other court, five dollars;
(9) For postage and express and for sending or receiving decrees, orders or records, by mail or express, three times the
amount of the postage or express charges;
(10) For each subpoena, on the part of either plaintiff or
defendant, to be paid by the party requesting the same, fifty
cents; and
(11) For additional service (plaintiff or appellant) where any
case remains on the docket longer than three years, for each
additional year or part year, twenty dollars.
(c) The clerk shall tax the following fees for services in any
criminal case against any defendant convicted in such court:
(1) In the case of any misdemeanor, fifty-five dollars;
(2) In the case of any felony, sixty-five dollars.
(d) No such clerk shall be required to handle or accept for
disbursement any fees, cost or amounts, of any other officer or
party not payable into the county treasury, except it be on order
of the court or in compliance with the provisions of law governing
such fees, costs or accounts.
§59-1-13. Fees to be charged by clerk of supreme court of appeals.
(a) The clerk of the supreme court of appeals shall charge the
following fees to be paid by the parties for whom the services are
rendered:
For filing any petition for appeal of a civil action, other
than appeal from a final decision of the worker's compensation
appeal board . . . . . . . . . . . . . . . . . . . . . . . $100.00
For filing an appeal from a final decision of the workers'
compensation appeal board ...........................$50.00
For all copies of petitions, records, orders, opinions or
other papers, per page
$.25
For each certificate under seal of the court$5.00
For license to practice law, suitable for framing $25.00
(b) For any other work or services not herein enumerated, the
clerk shall charge the fees prescribed for similar services by
clerks of circuit courts.
(c) The clerk of the supreme court of appeals shall, at the
end of each month, pay into the civil legal services fund
established pursuant to section twenty-two, article twenty-one,
chapter twenty-nine of this code, the amount received as filing
fees for appeals.
§59-1-28a. Disposition of filing fees in divorce and other civil
actions and fees for services in criminal cases.
(a) Except for those payments to be made from amounts equaling
filing fees received for the institution of divorce actions as
prescribed in subsection (b) of this section, for each civil action
instituted under the rules of civil procedure, any statutory
summary proceeding, any extraordinary remedy, the docketing of
civil appeals, or any other action, cause, suit or proceeding in
the circuit court, the clerk of the court shall, at the end of each
month, pay into the funds or accounts described in this subsection an amount equal to the amount set forth in this subsection of every
filing fee received for instituting such action as follows:
(1) Into the regional jail and correctional facility
development fund in the state treasury established pursuant to the
provisions of section ten, article twenty, chapter thirty-one of
this code, the amount of sixty dollars;
(2) Into the court security fund in the state treasury
established pursuant to the provisions of section fourteen, article
three, chapter fifty-one of this code, the amount of five dollars.
(3) Into the civil legal services fund established pursuant to
section twenty-two, article twenty-one, chapter twenty-nine of this
code, the amount of twenty dollars.
(b) For each divorce action instituted in the circuit court,
the clerk of the court shall, at the end of each month, pay into
the funds or accounts in this subsection an amount equal to the
amount set forth in this subsection of every filing fee received
for instituting such divorce action as follows:
(1) Into the regional jail and correctional facility
development fund in the state treasury established pursuant to the
provisions of section ten, article twenty, chapter thirty-one of
this code, the amount of ten dollars;
(2) Into the special revenue account of the state treasury,
established pursuant to section twenty-four, article one, chapter
forty-eight of this code, an amount of thirty dollars;
(3) Into the family law masters fund in the state treasury,
established pursuant to section twenty-three, article four, chapter
forty-eight-a of this code, an amount of fifty dollars; and
(4) Into the court security fund in the state treasury,
established pursuant to the provisions of section fourteen, article
three, chapter fifty-one of this code, the amount of five dollars.
(c) The clerk of each circuit court shall, at the end of each
month, pay into the regional jail and prison development fund in
the state treasury an amount equal to forty dollars of every fee
for service received in any criminal case against any defendant
convicted in such court and shall pay an amount equal to five
dollars of every such fee into the court security fund in the state
treasury established pursuant to the provisions of section
fourteen, article three, chapter fifty-one of this code.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-39g. Complaint; notice of complaint; issuance of warrant;
payment procedures; costs.
After receipt of a complaint for warrant for a violation of
section thirty-nine or thirty-nine-a of this article the magistrate
court shall proceed with the issuance of the warrant as is provided
by law: Provided, That no warrant shall issue for an offense under
section thirty-nine or thirty-nine-a of this article which, upon
conviction, would be punishable as a misdemeanor, unless and until the payee or holder of the check, draft or order which has been
dishonored has sent notice thereof to the drawer of the check,
draft or order in accordance with the provisions of section thirty- nine-e of this article, or unless and until notice has been sent by
the magistrate as hereinafter provided. Proof that such notice was
sent by the payee or holder shall be evidenced by presentation of
a return receipt indicating that the notice was mailed to the
drawer by certified mail, or, in event the mailed notice was not
received or was refused by the drawer, by presentation of the
mailed notice itself. The magistrate court shall receive and hold
the check, draft or order.
Upon receipt of a complaint for a misdemeanor warrant
unaccompanied by proof that notice was sent by the payee or holder,
the magistrate court shall immediately prepare and mail to the
drawer of such check, draft or order a notice in form substantially
as follows and shall impose additional court costs in the amount of
ten fifteen dollars. Such notice shall be mailed to the drawer by
United States mail, first class and postpaid, at the address
provided at the time of presenting such check, draft or order.
Service of such notice shall be complete upon mailing. Such notice
shall be in form substantially as follows:
"You are hereby notified that a complaint for a warrant for
your arrest has been filed with this office to the following effect
and purpose by .............. who upon oath complains that on the ....... day of ..............., 19...., you did unlawfully issue
and deliver unto him a certain check in the amount of
......................... drawn on ..............................
...................... (name of bank) ................. where you
did not have funds on deposit in or credit with said bank with
which to pay same upon presentation and pray that a warrant issue
and that you be apprehended wherever you may be found by an officer
authorized to make such an arrest and dealt with in accordance with
the laws of the state of West Virginia.
A warrant for arrest will be issued on or after the .........
day of ......................., 19......
You can nullify the effect of said complaint and avoid arrest
by paying to the magistrate court clerk at ......................
the amount due on said check and the costs of this proceeding in
the amount of ............... on or before said .......... day of
...................., 19......, at which time you will be given a
receipt with which you can obtain said check from the magistrate
named below. The complainant is forbidden by law to accept
payment.
Magistrate Court of .................. County
.............................................
Date: .............................."
Such notice shall give the drawer of any such check, draft or
order ten days within which to make payment to magistrate court. In the event such drawer pays the amount of the check plus court
costs to the magistrate court within the ten day period no warrant
shall issue. The payment may be made to the magistrate court in
person or by mail by cash, certified check, bank draft or money
order and, in the event such payment is made by mail, the
magistrate court clerk shall forthwith mail to the maker of such
check the receipt hereinbelow required. In the event such total
amount is not so paid the court shall proceed with the issuance of
the warrant as is provided by law.
Upon receipt of payment of such total amount the magistrate
court clerk shall issue to the drawer a receipt sufficiently
describing such check with which receipt the drawer shall be
entitled to receive the dishonored check, draft or order from the
magistrate holding the check, draft or order. No service charge
shall be charged or collected by the holder or payee of a
dishonored check, draft or order after filing a complaint for
warrant. The magistrate court clerk shall forward the amount of
the check to the payee or holder thereof, along with a description
of the check, draft or order sufficient to enable the person filing
the complaint to identify such check, draft or order and the
transaction involved. Costs collected shall be dealt with as is
provided by law for other criminal proceedings.
The drawer of a check, draft or order against whom a warrant
has been issued may at any time prior to trial pay to the court the amount of the check plus such court costs as would be assessed if
such person were found guilty of the offense charged. Such costs
shall be imposed in accordance with the provisions of section two,
article three, chapter fifty of this code.
§61-3-39h. Payment of costs in worthless check cases; disposition
of certain costs.
In any prosecution under sections thirty-nine or thirty-nine-a
of this article such costs as may otherwise be imposed against the
drawer of any such check, draft or order shall be imposed on the
person initiating the prosecution if payment of the check, draft or
order is accepted by the payee or holder thereof after the filing
of a complaint for warrant; if the payee or holder had reason to
believe that the check, draft or order would be dishonored or if
the same was postdated; or if the matter is dismissed for failure
to prosecute.
Costs Ten dollars of the costs collected by magistrate court
for issuance of notice as authorized by section thirty-nine-g of
this article shall not be paid into the special county fund created
by the provisions of section four, article three, chapter fifty of
this code, but shall be accounted for separately and retained by
the county in a fund designated the "worthless check fund," until
the sheriff shall issue warrants in furtherance of the allowable
expenses specifically provided for by this section. Five dollars
of the costs so collected shall be deposited in the civil legal services fund created by the provisions of section twenty-two,
article twenty-one, chapter twenty-nine of this code. Such costs
shall not be included in any calculation of the amount of funds to
be retained by the county under the provisions of section four,
article three, chapter fifty of this code.
A county may, after agreement with the court administrator's
office of the supreme court of appeals, appropriate and spend from
the worthless check fund herein established such sums as shall be
necessary to pay or defray the expenses of providing a deputy
sheriff to serve warrants for worthless check offenses and to pay
or defray the expenses of providing additional deputy clerks in the
office of the magistrate court clerk to process cases involving
worthless checks: Provided, That sums agreed to be appropriated
for such deputy sheriffs or deputy clerks shall be proportionate to
the time such employees devote to worthless check cases. After
payment of such expenses, or after a determination that such
services are not necessary, a county may appropriate and spend from
such fund such sums as shall be necessary to defray the expenses of
providing bailiff and service of process services by the sheriff,
to defray the cost of acquiring or renting magistrate court offices
and providing utilities and telephones therefor to defray the cost
of complying with section thirty-nine-i herein and to defray the
expenses of such other services which are to be provided to
magistrate courts by the county.
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(NOTE: The purpose of this bill is to create a special
revenue account known as the "Civil Legal Services Fund" to provide
funding for civil legal services for the poor. The filing fees for
civil actions in magistrate court would be increased by $5.00 and
the filing fees for civil actions other than divorce would be
increased from $75.00 to $100.00. A filing fee of $100.00 would be
established for civil appeals to the Supreme Court, except for
workers' compensation appeals, which would be $50.00. There would
also be a $5.00 increase in the costs for notices of worthless
check warrants. The increased and new fees and costs would be paid
into the new fund and disbursements would be based upon
recommendations of the Legal Services Council, also created by this
bill.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§29-21-22, 23 and 24 are new; therefore, strike-throughs and
underscoring have been omitted.)