ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 4060
(By Delegates Staton, Trump, Underwood,
Amores, Buchanan, Hunt and Rowe)
[Passed March 14, 1998; in effect ninety days 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 repeal sections eight, nine, ten, eleven,
twelve, thirteen, fifteen, sixteen, seventeen, eighteen,
nineteen, twenty, twenty-one, twenty-two, twenty-three,
twenty-four, twenty-five, twenty-six, twenty-seven, twenty- eight, twenty-nine and thirty-one, article five of said
chapter; 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; and to amend and reenact sections one, two, three, four,
five, six, seven, fourteen and thirty, article five, chapter
fifty-eight of said code, all relating generally to appellate
procedure; repealing provisions of law relating to appellate
relief in the supreme court of appeals which are outdated,
archaic, or not in conformity with rules of appellate
procedure promulgated by the supreme court of appeals; providing for appeal from circuit court in an unemployment
compensation case to be made in accordance with the provisions
of the state administrative procedures act; prescribing when
an appeal will lie to the supreme court of appeals; providing
for the certification of questions of law to the supreme court
of appeals; providing for a petition for appeal to be filed in
accordance with rules of appellate procedure promulgated by
the supreme court of appeals; prescribing the time for filing
a petition for appeal to the supreme court of appeals;
providing for the suspension of the execution of a judgment at
the instance of a person desiring to present a petition for
appeal; providing that a petition for appeal shall be filed
and processed filed in accordance with rules of appellate
procedure promulgated by the supreme court of appeals;
providing that the contents of the transcript of record shall
be governed by rules of appellate procedure promulgated by the
supreme court of appeals; providing for an appeal to be given
before an appeal takes effect; and providing for an appeal by
the state of a judgment quashing an indictment.
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 sections eight, nine, ten, eleven, twelve, thirteen,
fifteen, sixteen, seventeen, eighteen, nineteen, twenty, twenty- one, twenty-two, twenty-three, twenty-four, twenty-five, twenty- six, twenty-seven, twenty-eight, twenty-nine and thirty-one, article five of said chapter 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; and that sections
one, two, three, four, five, six, seven, fourteen and thirty,
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, at the election of the petitioner, in either the circuit
court of Kanawha County, West Virginia or in the circuit court of
the county in which the petitioner or any one of the petitioners resides or does business, or with the judge thereof in vacation,
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 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 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, including, but not limited to, questions
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, seeking the original jurisdiction
of the supreme court of appeals, or seeking an opinion of the court on certified questions may file a petition in accordance with 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 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 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, if the request for preparation of the
transcript was made by the party seeking such appellate review
within thirty days of the entry of such judgment, decree or order.
§58-5-5. Stay of proceedings pending appeal; supersedeas bond;
post-conviction bail.
A petition for stay of proceedings pending appeal, supersedeas
bond or post-conviction bail relief shall be filed and processed in
accordance with rules of appellate procedure promulgated by the
supreme court of appeals.
§58-5-6. Filing of petition.
Petitions for appeal shall be filed and processed in
accordance with 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 rules of appellate procedure promulgated by the
supreme court of appeals.
§58-5-14. 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 is 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 is 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 is
affirmed or the appeal is 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 is affirmed or
the appeal is 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.
§58-5-30. 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 shall be 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 shall finally
discharge, or have 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 judgment was entered; but
after the entry of such judgment or order the accused shall 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.