Senate Bill No. 164

(By Senators Dittmar, Ball, Fanning,

Oliverio, Schoonover, Buckalew and Kimble)

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[Introduced January 16, 1998;

referred to the Committee on the Judiciary.]

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A BILL to amend and reenact section two, article ten, chapter eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section one, article thirty-four of said chapter, all relating to municipal court procedures; requiring municipal court judges to complete mandatory training; providing that municipal courts follow the rules of criminal procedure for magistrate courts; providing for appeals from municipal court to circuit court; creating time frames, bonds and stays for such appeals; providing limited record of such court proceedings; providing for the preparation and designation of such records for appeal, electronic recordation of trials and preparation of transcripts of such proceedings; providing circuit court discretion to schedule oral argument, receive memoranda of law and take evidence; providing factors and standards for appeals of municipal court decisions; establishing time frames for circuit court review of such proceedings; providing actions which the circuit court may take to dispose of such appeals; and clarifying eligibility to the judicial retirement system.

Be it enacted by the Legislature of West Virginia:
That section two, article ten, chapter eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that section one, article thirty-four of said chapter be amended and reenacted, all to read as follows:
ARTICLE 10. POWERS AND DUTIES OF CERTAIN OFFICERS.

PART II. MUNICIPAL COURT.


§8-10-2. Municipal court for municipalities.

(a) Notwithstanding any charter provision to the contrary, any city may provide by charter provision and any municipality may provide by ordinance for the creation and maintenance of a police or municipal court, for the appointment or election of an officer to be known as police court judge or municipal court judge, and for his or her compensation, and authorize the exercise by such the court or judge of such the jurisdiction and the judicial powers, authority and duties set forth in section one of this article and similar or related judicial powers, authority and duties enumerated in any applicable charter provisions, as set forth in the charter or ordinance. Such court or judge shall in all events have the criminal jurisdiction of a justice of the peace or magistrate court, but such jurisdiction shall expire on the first day of January, one thousand nine hundred seventy-seven.
(b) Effective the first day of July, one thousand nine hundred ninety-eight, any person who assumes the duties of municipal court judge who has not been admitted to practice law in this state shall attend and complete the next available course of instruction in rudimentary principles of law and procedure. The course shall be conducted by the municipal league or a like association whose members include more than one half of the chartered cities and municipalities of this state. The instruction must be performed by or with the services of an attorney licensed to practice law in this state for at least three years. Any municipal court judge serving on the first day of July, one thousand nine hundred ninety- eight, shall complete such course within one year, unless he or she has been admitted to the practice of law in this state. Any municipal court judge may, thereafter, attend a course for the purpose of continuing education. The cost of any course referred to in this section shall be paid by the municipality which employs the municipal judge.
(c) Only a defendant who has been charged with an offense for which a period of confinement in jail may be imposed is entitled to a trial by jury. If a municipal court judge determines, upon demand of a defendant, to conduct a trial by jury in a criminal matter, it shall follow the procedures set forth in the rules of criminal procedure for magistrate courts promulgated by the supreme court of appeals, except that the jury in municipal court shall consist of twelve members.
(d) Effective the first day of July, one thousand nine hundred ninety-eight, a police court judge of any municipality shall thereafter be referred to as the municipal court judge.
ARTICLE 34. JUDICIAL REVIEW.
§8-34-1. General right of appeal; recordation of jury trial; preparation of record.

(a) Every person sentenced under this chapter by any mayor or police court judge, acting in a judicial capacity, or municipal court judge to imprisonment confinement or to the payment of a fine of ten dollars or more (and in no case shall a fine of less than ten dollars be given if the defendant, his agent or attorney object thereto) shall be allowed an appeal de novo to the circuit or other court of the county exercising jurisdiction over appeals in criminal cases from justices of the peace courts in the county, upon entering into an appeal bond with surety deemed sufficient in a penalty double the amount of fine and costs, with condition that the person appealing will perform and satisfy any judgment which may be rendered against him by the circuit or such other court on such appeal. Any such appeal must be perfected within ten days from and after the date upon which the sentence is imposed may appeal that sentence to the circuit court as provided in this section. When the municipality is located in more than one county, the appeal shall be taken to the circuit court or other court as aforesaid of the county in which the major portion of the territory of the municipality is located. If such appeal be taken, the appeal bond and other papers in the case shall be forthwith delivered by the mayor, recorder or police court judge or municipal court judge to the clerk of the court to which such appeal is taken, and such court shall proceed to try the case as upon indictment or presentment, and render such judgment, without remanding the case, as the law and the evidence may require. If the judgment be against the accused, it shall include the costs incurred in the proceedings before the mayor or police court judge or municipal court judge, as well as in the said court.
(b) For purposes of appeal, when a jury trial is had before a mayor or in municipal court, that court shall be a court of limited record. Trials before a mayor or municipal court when a jury is empaneled shall be recorded electronically. A magnetic tape or other electronic recording medium on which a trial is recorded shall be indexed and securely preserved by the court. When requested by the prosecutor or by the defendant, or by any interested person, that court shall provide a duplicate copy of the tape or other electronic recording medium of each trial held. For evidentiary purposes, a duplicate of such electronic recording prepared by the court shall be a "writing" or "recording" as those terms are defined in rule 1001 of the West Virginia rules of evidence, and unless the duplicate is shown not to reflect the contents accurately, it shall be treated as an original in the same manner that data stored in a computer or similar data is regarded as an "original" under such rule. Unless the requesting party is a defendant proceeding as an indigent, the party shall pay to the court an amount equal to the actual cost of the tape or other medium or the sum of five dollars, whichever is greater.
(c) If the defendant in such a proceeding waives the right to trial by jury or if no jury trial is required by law, the matter shall be tried by the mayor or municipal court judge sitting without a jury. For purposes of appeal, when a nonjury trial is had before a mayor or municipal court judge that court shall not be a court of limited record and the proceedings shall not be electronically recorded.
(d) Any person convicted of an offense by a mayor or municipal court judge may appeal such conviction to circuit court as a matter of right by requesting such appeal within twenty days after the sentencing for such conviction. The mayor or municipal court judge may require the posting of bond with good security conditioned upon the appearance of the defendant as required in circuit court, but such bond may not exceed the maximum amount of any fine which could be imposed for the offense. The bond may be upon the defendant's own recognizance. If no appeal is perfected within such twenty-day period, the circuit court may, not later than ninety days after the sentencing, grant an appeal upon a showing of good cause why such appeal was not filed within the twenty-day period. The filing or granting of an appeal shall automatically stay the sentence of the mayor or municipal court judge.
(e) In the case of an appeal of such a proceeding tried before a jury, the hearing on the appeal before the circuit court shall be a hearing on the record. In the case of an appeal of such a proceeding tried before the mayor or municipal court judge without a jury, the hearing on the appeal before the circuit court shall be a trial de novo, triable to the court, without a jury.
(f) In the case of an appeal of such a proceeding tried before a jury, the following provisions shall apply:
(1) To prepare the record for appeal, the defendant shall file with the circuit court a petition setting forth the grounds relied upon, and designating those portions of the testimony or other matters reflected in the recording, if any, which he or she will rely upon in prosecuting the appeal. The prosecutor may designate additional portions of the recording. Unless otherwise ordered by the circuit court, the preparation of a transcript of the portions of the recording designated by the defendant, and the payment of the cost thereof shall be the responsibility of the defendant: Provided, That such costs may be waived due to the defendant's indigence. The circuit court may, by general order or by order entered in a specific case, dispense with preparation of a transcript and review the designated portions of the recording orally.
(2) The designated portions of the recording or the transcript thereof, as the case may be, and the exhibits, together with all papers and requests filed in the proceeding, constitute the exclusive record for appeal, and shall be made available to the defendant and the prosecutor.
(3) After the record for appeal is filed in the office of the circuit clerk, the court may, in its discretion, schedule the matter for oral argument or require the parties to submit written memoranda of law. The circuit court shall consider whether the judgment or order of the mayor or municipal court judge is:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in conformance with the law;
(B) Contrary to constitutional right, power, privilege or immunity;
(C) In excess of statutory jurisdiction, authority or limitations or short of statutory right;
(D) Without observance of procedure required by law;
(E) Unsupported by the evidence; or
(F) Unwarranted by the facts.
(4) The circuit court may take any of the following actions which may be necessary to dispose of the questions presented on appeal, with justice to the defendant and the municipality:
(A) Dismiss the appeal;
(B) Reverse, affirm or modify the judgment or order being appealed;
(C) Remand the case for further proceedings, with instructions to the mayor or municipal court judge;
(D) Finally dispose of the action by entering judgment on appeal; or
(E) Retain the matter and retry the issues of fact, or some part or portions thereof, as may be required by the provisions of subdivision (5) of this subsection.
(5) If the circuit court finds that a record for appeal is deficient as to matters which might be affected by evidence not considered or inadequately developed, the court may proceed to take such evidence and make independent findings of fact to the extent that questions of fact and law may merge in determining whether the evidence was such, as a matter of law, as to require a particular finding. If the circuit court finds that the proceedings below were subject to error to the extent that the defendant was effectively denied a jury trial, the circuit court may, upon motion of the defendant, empanel a jury to reexamine the issues of fact, or some part or portions thereof.
(6) The review by the court and a decision on the appeal shall be completed within ninety days after the appeal is regularly placed upon the docket of the circuit court.
(g) In the case of an appeal of a municipal court proceeding tried without a jury, the defendant shall file with the circuit court a petition for appeal and trial de novo. The exhibits, together with all papers and requests filed in the proceeding, constitute the exclusive record for appeal and shall be made available to the parties.
(h) Notwithstanding any other provision of this code to the contrary, there shall be no appeal from a plea of guilty where the defendant was represented by counsel at the time the plea was entered: Provided, That the defendant shall have an appeal from a plea of guilty where an extraordinary remedy would lie or where the mayor or municipal court judge lacked jurisdiction.
(i) The designation in this section of a mayor, acting as municipal court judge, or of municipal courts as "courts of limited record" shall not be construed to give standing or eligibility to mayors or municipal court judges to participate or be included in the retirement system for judges of courts of record established under the provisions of article nine, chapter fifty-one of this code.
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(Note: The purpose of this bill is to require training and continuing education for municipal judges; to eliminate the reference to "police court" judges; to establish rules for municipal criminal jury trials; and to establish procedures for the appeal of both jury and nonjury criminal trials, similar to appeals from magistrate court.)