COMMITTEE SUBSTITUTE
FOR
H. B. 4060
(By Delegates Staton, Trump, Underwood,
Amores, Buchanan, Hunt and Rowe)
(Originating in the Committee
on the Judiciary)
[January 22, 1998]
A BILL 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relief in the supreme court of appeals which are outdated,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 petiton 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.
The appeal from the decision of the circuit court of Kanawha
county may be taken to the supreme court of appeals if a proper
petition for certiorari is filed within sixty days of the date of
the final decision of the circuit court of Kanawha county. The
cases shall go from the circuit court of Kanawha county only on
writ of certiorari and need be heard only at the session of the
supreme court.
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 with the judge thereof
in vacation, 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 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 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.
A party to a controversy in any circuit court may obtain from
the supreme court of appeals, or a judge thereof in vacation, an
appeal from, or a writ of error or supersedeas to, a judgment,
decree or order of such circuit court in the following cases: (a)
In civil cases where the matter in controversy, exclusive of costs,
is of greater value or amount than one hundred dollars, wherein
there is a final judgment, decree or order;
(b) In controversies concerning the title or boundaries of
land, the probate of a will, or the appointment of a personal
representative, guardian, committee or curator;
(c) Concerning a mill, road, way, ferry or landing;
(d) Concerning the right of a corporation, county or district
to levy tolls or taxes;
(e) In any case of quo warranto, habeas corpus, mandamus or
prohibition;
(f) In any case involving freedom or the constitutionality of
a law;
(g) In any case in chancery wherein there is a decree or order
dissolving or refusing to dissolve an injunction, or requiring
money to be paid, or real estate to be sold, or the possession or
title of property to be changed, or adjudicating the principles of
the cause;
(h) In any case where there is a judgment or order quashing or
abating, or refusing to quash or abate, an attachment;
(i) In any civil case where there is an order granting a new
trial or rehearing, and in such cases an appeal may be taken from
the order without waiting for the new trial or rehearing to be had;
(j) In any criminal case where there has been a conviction in
a circuit court or a conviction in an inferior court which has been
affirmed in a circuit court.
Appeals shall not lie under subdivisions (g), (h), and (i)
where pecuniary interests only are involved, unless the amount in
controversy, exclusive of costs, exceeds one hundred dollars.
§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, in any case within the appellate jurisdiction of the supreme
court of appeals, may, in the discretion of the circuit court in
which it arises, and shall, on the joint application of the parties
to the suit, in beneficial interest, 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 forms of the certificates
of such questions, as well as the time and manner of the hearing
and notice thereof and the portion of the record to be sent up,
shall be as prescribed by the supreme court of appeals. Entry of
such certificate or the fact that it has been made, upon the record
of the case in the trial court, shall be sufficient notice to the
parties that the questions involved are on application for hearing
and determination by the appellate court. Attested copies of the
portions of the record of the case or cause necessary to a
determination of the questions so certified shall forthwith be
presented to the supreme court of appeals together with the
question certified, and if the court be of the opinion that the
rulings of the lower court ought to be reviewed, the case or cause
shall be docketed for hearing without further notice to the parties; but if the court be of the opinion that there has been no
error in the rulings, it shall refuse to docket the case or cause,
and the action of the court in refusing to docket same shall then
be certified forthwith to the lower court. 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.
Any person who is a party to such controversy, wishing to
obtain a writ of error, appeal or supersedeas in the cases named in
the first section of this article, may present a petition therefor
to the supreme court of appeals, or to a judge thereof in vacation,
which petition shall assign errors.
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, or writ of
error or supersedeas to, any judgment, decree or order, whether the
state be a party thereto or not, which shall have been rendered or
made more than four months before such petition is filed with the
clerk of the court where the judgment, decree or order 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.
In criminal cases no petition for appeal or writ of error
shall be presented unless a notice of intent to file such petition
shall have been filed with the clerk of the court in which the
judgment or order was entered within thirty days after such
judgment or order was entered. The notice shall fairly state the
grounds for the petition without restricting the right to assign
additional grounds in the petition.
§58-5-5. Stay of proceedings pending appeal; supersedeas bond;
post-conviction bail.
At the instance of any person who desires to present such
petition, the court, in which the judgment, decree or order is,
may, during the term at which it is rendered or made, or the judge
of such court may, within twenty days after such term is ended,
upon notice in writing to the opposite party (in either case the
court or the judge exercising a discretion), make an order
suspending the execution of such judgment, decree or order, for a
reasonable time to be specified in such order, when such person
shall give bond before the clerk of such court, in such penalty as
the court or judge may require, with a condition reciting such
judgment, decree or order, 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, decree or order should not be
allowed and be effectual within the time so specified.
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.
Such petition, together with a copy thereof, shall be first
filed in the office of the clerk of the circuit court wherein the
judgment, decree or order complained of was entered, and such
clerk, retaining in his office the copy of such petition, shall, as
soon as may be, transmit to the clerk of the supreme court of
appeals, or such judge of said court as the petitioner shall
designate, if said court be not in session, by United States
registered mail or valued express, the original, together with the
record of so much of the case wherein the judgment, decree or order
is, as will enable the court or judge to whom the petition is to be
presented properly to decide on such petition, and enable the
court, if the petition be granted, properly to decide the questions
that may arise before it. The clerk of the circuit court, before transmitting the record as aforesaid, shall arrange the papers, as
nearly as may be, in the order of the filing and entry thereof,
numbering the pages, make and certify copies of all orders entered
in the case, copies of which are not in the files, and prepare and
annex to the record a table of contents or index. Before such
petition and record are transmitted as aforesaid, the petitioner
shall deposit with the clerk of the circuit court a sufficient sum
of money to defray the expenses of the preparation and indexing of
the record, fees for filing the petition and making and certifying
necessary copies of orders, costs of transmission and return of the
record, and the making of a transcript of the record, or file with
the clerk a bond conditioned to pay the same, in a penalty and with
sureties to be fixed and approved by such clerk, who shall indorse
on the petition that such deposit has been made or such bond filed.
If the appeal or writ of error prayed for be granted, the clerk of
the supreme court of appeals shall return the record to the clerk
of the circuit court, by mail or express, as aforesaid; and such
circuit court clerk shall forthwith make a transcript of so much of
the record as is required for the purposes of the appeal or writ of
error and transmit the same to the clerk of the supreme court of
appeals. Insofar as provision therefor is not made by existing
law, the compensation of the clerk of the circuit court for
services rendered hereunder shall be fixed by the judge of such
court. If the prayer of the petition be not granted, the petition
and record shall be returned as aforesaid, and the clerk of the circuit court shall repay to the petitioner, or his attorney, the
money deposited with him, if any, less his fees and expenses.
§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.
Unless the person who has obtained the appeal or writ of error
direct otherwise, there shall not be copied in the transcript any
of the process, returns or evidence of service; nor the
commissions, if any, and notices to take depositions, the captions
to such depositions, or certificates of their having been sworn to,
except so far as may be necessary to the decision of exceptions
taken to the reading of the depositions, but the name of each
witness and the day of taking his deposition shall be stated at the
head thereof; nor shall there be copied an account reported by a
commissioner, to which there is no exception; nor any printed
document of which either party will furnish to the clerk a copy,
but such duplicate shall be attached to what is copied. If either
of the parties to the suit or action shall furnish to the clerk an
original carbon copy of any pleading, order, decree, deposition,
bill of exception, or certificate of evidence, he shall, instead of
copying the paper a copy of which is so furnished, include such
copy in the transcript, without charge therefor, except a comparing
fee of ten cents per one thousand words. When a case has been
before the supreme court of appeals, there shall be certified only the proceedings subsequent to the former appeal, writ of error or
supersedeas. Unless otherwise ordered as herein provided by the
court or judge allowing the appeal, writ of error or supersedeas,
the clerk shall make out the whole record in the manner herein
provided, or any additional part thereof, if either party to the
appeal or writ of error shall so direct. But such court or judge
may, on the allowance of the appeal or writ of error, direct the
omission from the transcript of such parts of the record as are
deemed immaterial, by an indorsement thereon, and such part shall,
in such case, be omitted. The bond filed shall be inserted in the
record.
§58-5-14. Appeal bond generally.
When required by the court, an appeal, writ of error or writ
of supersedeas 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, writ of error or supersedeas is allowed or entered with
condition: If a supersedeas be awarded, to abide by and perform
the judgment, decree or order of affirmance, 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, decree or order, or such
part, be affirmed, or the appeal, writ of error or supersedeas 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 is an appeal from an order or decree 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 a writ of error, an
appeal or supersedeas shall be is awarded in any action or suit
wherein a judgment or decree 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, writ of error or supersedeas, 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 or decree 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, writ of error or supersedeas 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 decree or such part be is affirmed or the appeal,
writ of error or supersedeas be 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 or decree and
interest not stayed by the insured as aforesaid if the judgment or
decree be is affirmed or the appeal, writ of error or supersedeas
be 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.
Notwithstanding anything hereinbefore contained in this
article, whenever Whenever in any criminal case an indictment is
held bad or insufficient by the judgment or order of a circuit
court, the state, on the application of the attorney general or the
prosecuting attorney, may obtain a writ of error to secure a review
of appeal such judgment or order by to the supreme court of
appeals. No such writ of error appeal shall be allowed unless the
state presents its petition therefor to the supreme court of
appeals, or one of the judges thereof, within thirty days after the
entry of such judgment or order. No such judgment or order 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 apply for such writ of
error, file a petition for appeal with the clerk of the court in
which judgment was entered; or fails to obtain such writ of error
upon an application made within such period; 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. If, upon the allowance of any
such writ of error, process from the supreme court of appeals
cannot for any reason be served personally upon the accused,
service may be made by filing a copy thereof in the clerk's office
of the court which entered such judgment or order. Every such writ of error shall be heard and determined as speedily as possible. If
said court reverses the lower court, and holds the indictment good
and sufficient for a trial of the accused thereon, the case shall
be remanded to the court in which the indictment was found, in
order that such trial may be had.
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 a writ of error an appeal under this
section, and to all subsequent proceedings thereon in the supreme
court of appeals in case such writ of error is allowed or appeal is
granted.
NOTE: The purpose of this bill is to modernize statutory
language relating to appellate procedure. Archaic and outdated
language is repealed or modernized, and statutes are rewritten to
conform with the rules of appellate procedure promulgated by the
Supreme Court of Appeals.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.