H. B. 2895
(By Delegates Trump, Miller, Kelley,
Staton, Hines and Faircloth)
[Introduced February 24, 1999; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections five and six, article two-a,
chapter thirty-one-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to further
amend said article by adding thereto two new sections,
designated sections five-a and five-b, all relating to the
Maxwell Governmental Access To Financial Records Act;
allowing service of a subpoena for disclosure of financial
records to a state entity by mail; requiring a person
challenging disclosure of his or her financial records to a
state entity to serve a notice of hearing on the motion to
quash the subpoena upon the financial institution and state
entity issuing the subpoena; providing that the article does
not enlarge standing to contest subpoena; providing that
issuance of subpoena does not authorize appointment of
counsel; removing certain requirements with regard to
subpoenas issued by a grand jury; and purposes for which financial records obtained by a subpoena issued by a grand
jury may be used.
Be it enacted by the Legislature of West Virginia:
That sections five and six, article two-a, chapter
thirty-one-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted; and
that said article be further amended by adding thereto two new
sections, designated sections five-a and five-b, all to read as
follows:
ARTICLE 2A. MAXWELL GOVERNMENTAL ACCESS TO FINANCIAL RECORDS
ACT.
§31A-2A-5. Subpoena and notice requirements.
(a) A financial institution may disclose or produce
financial records to a state entity in compliance with a subpoena
served upon it if the subpoena contains a certification that:
(1) A copy of the subpoena has been served on or mailed, by first
class United States mail to the last known address of the
customer whose records are sought by the state entity seeking
disclosure or production of the records at least ten days prior
to the date on which disclosure or production is sought:
Provided, That if litigation in which the customer is a party has
been commenced, service is complete by mailing the subpoena to
the customer's counsel or to the address the customer provides to
the court; or (2) that service on the customer has been waived for good cause by the circuit court of Kanawha County or other
circuit court of competent jurisdiction.
(b) Any person whose financial records are to be disclosed
pursuant to a subpoena served under the provisions of subdivision
(1), subsection (a) of this section may challenge the subpoena by
filing a motion to quash and by setting a hearing to be held in
a court of competent jurisdiction at any time at least two days
prior to the date of disclosure of the records. After the filing
and service of the motion and notice of hearing upon the
financial institution and the state entity requesting the
issuance of the subpoena, the production of financial records
shall be is stayed, without liability to the financial
institution, until the court holds a hearing on the motion and an
order is entered sustaining, modifying or quashing the subpoena.
The failure to both file a motion and to set a hearing on the
motion prior to the date of disclosure or production constitutes
a waiver of any right to oppose the disclosure or production.
§31A-2A-5a. Standing to contest subpoena not enlarge.
This article does not enable any person, other than the
customer, to contest compliance with a subpoena beyond that
standing or ability which existed prior to the enactment of this
article.
§31A-2A-5b. No right of appointed counsel.
This article does not permit or authorize the appointment of counsel for any person for whose records a subpoena has been
issued.
§31A-2A-6. Subpoena issued by grand jury.
(a) In addition to the requirements of section five of this
article, financial records obtained pursuant to a subpoena issued
under the authority of a grand jury:
(1) Shall be returned and actually presented to the grand
jury;
(2) Shall be used only: (A) For the purpose of considering
whether to issue an indictment or presentment by that grand jury;
(B) for the purpose of prosecuting a crime for which that
indictment or presentment is issued; or (C) for any other purpose
authorized by the West Virginia rules of criminal procedure; and
(3) Shall be destroyed or returned to the financial
institution if not used for one of the purposes specified in
subdivision (2) of this subsection.
The provisions of section five of this article do not apply
to any subpoena issued by the grand jury or by a prosecuting
attorney in aid of the grand jury or the prosecuting attorney.
(b) Financial records obtained pursuant to a subpoena issued
under the authority of a grand jury and any descriptions of the
contents of such financial records must be maintained in sealed
records of the grand jury unless such financial records or
descriptions thereof have been used in the prosecution of a crime for which the grand jury issued an indictment or presentment or
may be used for any other purpose authorized by the West Virginia
rules of criminal procedure.
Note: The purpose of this bill is to make several
procedural changes regarding subpoenas issued by a state entity
to obtain financial records from a financial institution. It
allows subpoenas to be served by mail; requires that a hearing
must be set and a notice of hearing be served upon a motion to
quash a subpoena; provides that the article does not enlarge
standing to contest a subpoena; provides that the article is not
to be construed to authorize appointment of counsel for a person
whose records are being subpoenaed; removes restrictions upon
subpoenas issued by a grand jury; and allows use of information
so obtained to be used for any purpose allowed by the W.V. Rules
of Criminal Procedure.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§§31A-2A-5a and 31A-2A-5b are new; therefore , strike- throughs and underscoring are omitted.