H. B. 2077
(By Mr. Speaker, Mr. Kiss, and Delegates Facemyer,
Stalnaker, L. White and Pettit)
[Introduced January 13, 1999; referred to the
Committee on the Judiciary.]
A BILL to amend chapter fifty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article four, relating to
fees, allowances and costs; and providing for awards of
attorney fees and certain expenses against the state in
civil actions brought by the state and in proceedings for
judicial review of administrative orders.
Be it enacted by the Legislature of West Virginia:
That chapter fifty-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 four, to read as
follows:
ARTICLE 4. ATTORNEY FEES AND EXPENSES AWARDED AGAINST THE STATE.
§59-4-1. Definitions.
As used in this article, unless the context clearly requires
otherwise:
(a) "Fees and other expenses" include reasonable attorney
fees, reasonable expenses for investigation, case development and
expert witnesses, and court costs, but do not include any portion
of an attorney's fees or salary which is paid by any public funds
of an agency or instrumentality of a local, state or federal
government for the attorney's services in a case.
(b) "State" includes the state of West Virginia, each
agency, board, commission, department or division thereof, and
each official thereof while acting in his or her official
capacity.
§59-4-2. Award of attorney fees.
(a) Unless otherwise provided by law, the court having
jurisdiction over a civil action brought by the state or an
action for review of an administrative proceeding shall award
fees and other expenses to the prevailing party unless the
prevailing party is the state: Provided, That the court is not
required to make an award pursuant to this section if it finds
one of the following:
(1) The position of the state was substantially justified;
or
(2) Special circumstances exist which would make an award
unjust.
(b) Not later than thirty days after a final judgment or
dismissal order is entered in the action, a party seeking an
award of attorney fees and other expenses pursuant to this
section shall submit to the court a verified petition which sets
forth evidence of eligibility for an award and which specifies
the amount sought. If the amount sought includes attorney fees
or fees for investigation, case development or expert witnesses,
the petition shall include an itemized statement of fees
indicating the actual time expended in the prosecution of the
case and the rates at which fees and expenses have been computed.
(c) When awarding fees and other expenses to the prevailing
party pursuant to this section in an action for judicial review
of an administrative proceeding, the court shall include in the
award the fees and other expenses for services performed during
the administrative proceeding, unless the court finds one of the
following:
(1) During the proceeding, the position of the
administrative agency was substantially justified; or
(2) Special circumstances exist which would make an award
unjust.
(d) Fees and other expenses awarded pursuant to this section
may be ordered in addition to any damages awarded in a judgment.
(e) The provisions of this section apply only to legal and
administrative proceedings initiated after the effective date of
this section.
NOTE: The purpose of this bill is to permit courts to award
attorney fees and expenses to successful private parties in civil
actions brought against the state and in judicial proceedings to
review state administrative actions. In the latter case,
attorney fees could be awarded for services performed in
administrative proceedings. The court could refuse to award
attorney fees and expenses if the state's position was
substantially justified, or if special circumstances exist which
would make such an award unjust. The bill's provisions would
apply only to civil actions and administrative proceedings
initiated after the effective date of the new article created by
the bill.
This article is new; therefore, strike-throughs and
underscoring have been omitted.