COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 404
(By Senators Walker, Jackson, Redd, Wooton, McCabe, Unger,
Hunter, Mitchell, Fanning, Snyder, Ross, Prezioso, Edgell,
Kessler, Sharpe, Schoonover, Love, Ball, McKenzie, Minear,
Anderson, Bailey and Bowman)
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[Originating in the Committee on the Judiciary;
reported February 12, 1999.]
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A BILL to amend chapter twenty-nine of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article twenty-one-a,
relating to establishing a civil legal services fund for
certain victims of domestic violence; setting forth
legislative findings; creating the West Virginia legal
services council; specifying duties of the council;
establishing the civil legal services fund; and providing
for the disbursement and use of such fund.
Be it enacted by the Legislature of West Virginia:
That chapter twenty-nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article twenty-one-a, to read as follows:
ARTICLE 21A. CIVIL LEGAL SERVICES FOR DOMESTIC VIOLENCE VICTIMS.
29-21A-1. Legislative findings.
The Legislature hereby finds and declares:
(1) Domestic violence programs throughout the state offer
valuable assistance to victims of domestic violence. Some of the
funding for domestic violence programs is provided by the state
of West Virginia.
(2) To the extent that volunteers and funding are available,
domestic violence programs send volunteer advocates with domestic
violence victims to magistrate court. Domestic violence
advocates provide support and advice, but domestic violence
programs do not and cannot provide legal representation for
victims of domestic violence.
(3) Legal advice or representation, or both, can be critical
to domestic violence victims, not only in some final protective
order hearings before magistrates, but also when it becomes
necessary to go to circuit court to obtain divorces, permanent
protection, settlement of child custody and visitation disputes,
and the division of marital assets.
(4) Traditionally, legal representation for low income
victims of domestic violence in circuit court has been provided
by civil legal services programs funded by the federal government
and some private grant money.
(5) While the poverty population has increased twenty-six
percent since one thousand nine hundred eighty, the number of
lawyers representing low income citizens has decreased in our
state from sixty-five to just twenty-five. Federal funding for
civil legal services has decreased in our state by fifty percent
from six million seven hundred thousand dollars to three million
three hundred thousand in 1997-dollars. The number of poverty
offices in West Virginia has decreased from twenty-four to
thirteen.
(6) Currently in West Virginia there is one private lawyer
for every four hundred sixty-seven persons above the poverty
level. In contrast, there is only one low income civil legal
services lawyer for every fifteen thousand six hundred persons
below the federal poverty level.
(7) The need for funding for additional lawyers to represent
low income victims of domestic violence in civil legal matters in
circuit courts has become extraordinary. The number of petitions
filed in West Virginia magistrate courts has increased from five thousand two hundred, in one thousand nine hundred ninety, to
fifteen thousand five hundred, in one thousand nine hundred
ninety-seven, an increase of around two hundred percent. For the
past five years, one third of West Virginia's homicide victims
have been victims of domestic violence.
(8) Most victims of domestic violence seek protection before
magistrates and judges without the benefit of legal counsel due
in part to the cutbacks in federal funding.
(9) At the same time, additional cuts in federal funding for
poverty lawyers may occur as a result of a United States Supreme
Court decision affecting a grant program run by West Virginia and
other state bar association grant programs.
(10) A mechanism is needed for distributing funds that may
be appropriated by the Legislature or otherwise become available
to legal services organizations that provide legal services to
victims of domestic violence.
§29-21A-2. Legal services council; appointment, qualifications
and terms of members; compensation; powers and duties
generally; meetings and notices.
(a) There is hereby established within the department of
administration the "West Virginia legal services council," which
consists of five practicing attorneys and two members of the
general public appointed by the governor. Any vacancy that occurs in the membership of the council for any reason, including
expiration of term, removal, resignation, death, disability or
disqualification, shall be filled by the governor as provided by
this section.
(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) Members of the council shall, to the extent that funds
are available pursuant to section three of this article, be
reimbursed for their reasonable and necessary travel and other
expenses actually incurred in connection with the performance of
their duties as members of the council including, but not limited
to, attendance at meetings of the council. Members of the
council may receive no other compensation for their services as
a member of the council other than the reimbursement of expenses as provided in this section.
(d) Council members 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 reappoint any member for additional
terms.
(e) The council has the power and authority to:
(1) Within the criteria set forth in section four of this
article, determine the eligibility of programs established within
this state to provide civil legal services to victims of domestic
violence who are unable to afford legal services;
(2) Distribute the moneys deposited in the civil legal
services fund to provide financial assistance to eligible
programs;
(3) In addition to the restrictions imposed by section four
of this article, impose additional restrictions on the use of
funds distributed to programs as it determines is appropriate and
in accordance with the provisions of this article, including, but
not limited to, restricting the types of cases in which the
programs may provide legal services; and
(4) Use the staff of the finance division of the department
of administration in carrying out its duties and responsibilities set forth in this article.
(f) A majority of the membership of the council constitutes
a quorum for the transaction of business, and any action 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 are subject to the provisions of
article nine-a, chapter six of this code.
§29-21A-3. Civil legal services fund established.
There is hereby established in the state treasury a special
account designated and known as the "civil legal services fund"
into which shall be deposited:
(1) Any amounts appropriated by the Legislature for
expenditure from the fund; and
(2) Any gift or grant from any person, firm, corporation,
trust or foundation, or from this state or any other state or any
political subdivision or municipality thereof, or from the United
States, of any funds or property or any interest therein for the
uses and purposes of the fund.
§29-21A-4. Disbursement of moneys deposited in the civil legal
services fund; eligibility for financial assistance;
prohibited use of funds.
(a) The civil legal services fund shall be disbursed for the
following purposes:
(1) By the director of the finance division of the
department of administration to reimburse the expenses of the
members of the West Virginia legal services council; and
(2) By the director of the finance division of the
department of administration, in quarterly disbursements in
amounts directed by the council, to programs determined to be
eligible by the council for financial assistance pursuant to the
provisions of this article to provide civil legal services to
individuals seeking those services as victims of "domestic
violence" as defined in section two, article two-a, chapter
forty-eight of this code.
(b) A program eligible for financial assistance from the
civil legal services fund shall receive a percentage of the
moneys available for disbursement from the civil legal services
fund equal to the percentage of the population of this state
served by the program that is determined by the council to be at
or below the poverty level using the most recent federal bureau
of census statistics.
(c) Programs eligible for financial assistance pursuant to
the provisions of this article are 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 under the provisions
of the federal Legal Services Corporation Act of 1974, as
amended, 42 U.S.C. §§2996-2996l, and any related federal
regulation or other provision of federal law.
(d) No funds disbursed by the council may be used:
(1) For any activity for which the use of federal funds
available under the federal Legal Services Corporation Act of
1974, as amended, 42 U.S.C. §§2996-2996l, or any related federal
regulation or other provision of federal law is prohibited;
(2) To support any lobbying activities;
(3) To institute or participate in any class action;
(4) To institute or participate in any action against this
state or any agency, board, commission, political subdivision or
any governmental unit of this state where any part of the remedy
being sought may result in requiring or increasing public funding
through state or local revenues;
(5) To institute or participate in any type of action for
which the use of the moneys in the fund have been prohibited by
the council pursuant to subdivision (3), subsection (e), section
two of this article; or
(6) To pay any compensation or expenses incurred in an
"eligible proceeding", as defined in section two, article twenty- one of this chapter.
(e) No program may receive or use funds from the civil legal
services fund unless it has objective integrity and independence
from individuals and entities that routinely provide free legal
services to persons in this state on account of their inability
to afford legal services but which are ineligible to receive
financial assistance under the provisions of this article. A
program will qualify to receive or use funds under this
subsection if it is a legally separate organization from the
ineligible individual or entity, has no common directors with
the other individual or entity, if it does not transfer
restricted funds to or subsidize the ineligible individual or
entity and if it otherwise has "objective integrity and
independence" from the ineligible individual or entity, asthe terms
"objective
integrity and
independence" are
defined under the provisions of the federal Legal Services
Corporation Act of 1974, as amended, 42 U.S.C. §§ 2996 - 2996l,
and any related federal regulation or other provision of federal
law.
NOTE: The purpose of this bill is to assist victims of
domestic violence who are in need of lawyers and similar legal assistancelegal legal representtionrepresentation by
creating a mechanism for distributing such funds that may be
appropriated by the Legislature or otherwise become available to legal services organizations that provide civil legal services to
poor persons in this state.
This article is new; therefore, strike-throughs and
underscoring have been omitted.