Senate Bill No. 59

(By Senators Anderson, Minear, Ball, Boley, Minard,

Helmick, Edgell, Unger, Dittmar, Bailey and Deem)

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[Introduced January 13, 2000; referred to the Committee on the Judiciary; and then to the Committee on Finance.]
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A BILL to repeal section thirteen-a, article twenty-one, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to further amend said article by adding thereto a new section, designated section three-a; and to amend and reenact sections six, eight, nine, ten, eleven, twelve and thirteen of said article, all relating to public defender services; vesting the executive director and board with authority now conferred upon the public defender services agency and permitting the employment of both full-time and part-time attorneys; changing the manner of appointment of panel attorneys; limiting panel attorneys to five hundred hours per year unless he or she obtains an order from the circuit court; creating the public defender advisory board; authority to remove employees and board members for misfeasance or malfeasance; removing the sections relating to public defender corporations funding; requiring services provided by circuit clerks and magistrate clerks to be free of charge to public defender corporations; authorizing imposition of administrative service fee on vouchers by agency; and funding of defender corporations, annual budgets and record keeping.

Be it enacted by the Legislature of West Virginia:
That section thirteen-a, article twenty-one, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that said article be further amended by adding thereto a new section, designated section three-a; and that sections six, eight, nine, ten, eleven, twelve and thirteen of said article be amended and reenacted, all to read as follows:
ARTICLE 21. PUBLIC DEFENDER SERVICES.

§29-21-3a. Public defender advisory board; duties; composition; qualifications.

(a) There is hereby established an advisory board known as the "public defender services advisory board." The purpose of this board is to review and comment on operating policies and procedures and advise the executive director with respect thereto. In furtherance of its duties the board may inspect any and all records, reports and other materials written or maintained by public defender services or public defender corporations insofar as maintenance of client confidentiality may allow.
(b) The board shall be composed of three members appointed by the governor. One of the members shall be chosen from a list of three persons nominated by the president of the Senate. One of the members shall be chosen from a list of three persons nominated by the speaker of the House of Delegates. No more than two members may be of the same political party. These members shall serve at the will and pleasure of the governor and shall serve without compensation except for reimbursement of reasonable and necessary expenses. They shall continue to serve until their successors are appointed.
(c) Notwithstanding any provision of this code to the contrary, the board is hereby vested with the authority to remove any employee of public defender services or of any corporation or board member thereof, the existence of which is authorized by the provisions of section eight of this article upon a determination by a majority of the board that misfeasance or malfeasance has occurred.
§29-21-6. Powers, duties and limitations.
(a) Consistent with the provisions of this article, the agency is authorized to make grants to and contracts with public defender corporations and with individuals, partnerships, firms, corporations and nonprofit organizations, for the purpose of providing legal representation under this article, and may make such other grants and contracts as are necessary to carry out the purposes and provisions of this article.
(b) The agency is authorized to accept, and employ or dispose of in furtherance of the purposes of this article, any money or property, real, personal or mixed, tangible or intangible, received by gift, devise, bequest or otherwise.
(c) The agency shall establish and the executive director or his or her designee shall operate a criminal law research center as provided for in section seven of this article. This center shall undertake directly, or by grant or contract, to serve as a clearinghouse for information; to provide training and technical assistance relating to the delivery of legal representation; and to engage in research, except that broad general legal or policy research unrelated to direct representation of eligible clients may not be undertaken.
(d) The agency shall establish and the executive director or his or her designee shall operate an accounting and auditing division to require and monitor the compliance with this article by public defender corporations and other persons or entities receiving funding or compensation from the agency. The executive director shall have the authority to reduce or reject vouchers or requests for payment submitted by panel attorneys appointed pursuant to section nine of this article when such vouchers or requests for payment reflect that the provisions of this article or the rules promulgated thereunder have not been complied with. The division shall review all plans and proposals for grants and contracts, and shall make a recommendation of approval or disapproval to the executive director. The division shall prepare, or cause to be prepared, reports concerning the evaluation, inspection or monitoring of public defender corporations and other grantees, contractors, persons or entities receiving financial assistance under this article, and shall further carry out the agency's responsibilities for records and reports as set forth in section eighteen of this article.
The division shall require each public defender corporation to submit financial statements monthly and to report monthly on the billable and nonbillable time of its professional employees, including time utilized in administration of the respective offices, so as to compare such time to similar time expended in nonpublic law offices for like activities.
The division shall provide to the executive director assistance in the fiscal administration of all of the agency's divisions. This assistance shall include, but not be limited to, budget preparation and statistical analysis.
(e) The agency shall establish and the executive director or his or her designee shall operate an appellate advocacy division for the purpose of prosecuting litigation on behalf of eligible clients in the supreme court of appeals. The executive director or a person designated by the executive director shall be the director of the appellate advocacy division. The appellate advocacy division shall represent eligible clients upon appointment by the circuit courts, or by the supreme court of appeals. The division may, however, refuse such appointments due to a conflict of interest or if the executive director has determined the existing caseload cannot be increased without jeopardizing the appellate division's ability to provide effective representation. In order to effectively and efficiently utilize the resources of the appellate division the executive director may restrict the provision of appellate representation to certain types of cases.
The executive director is empowered to select and employ staff attorneys to perform the duties prescribed by this subsection. The division shall maintain records of representation of eligible clients for record purposes only.
§29-21-8. Public defender corporations.
(a) In each judicial circuit of the state, there is hereby created a "public defender corporation" of the circuit. The purpose of these public defender corporations is to provide legal representation in the respective circuits in accordance with the provisions of this article.
(b) If the judge of a single-judge circuit, the chief judge of a multi-judge circuit or a majority of the active members of the bar in the circuit determine there is a need to activate any corporation, they shall certify that fact in writing to the executive director. The executive director may allocate funds to those corporations in the order in which he or she deems most efficient and cost effective.
A public defender corporation may be activated solely at the instance of the executive director with the agreement of the public defender advisory board upon a finding supported by objective evidence that effective representation of eligible indigent defendants can be accomplished more effectively and economically by the implementation of a public defender corporation.
(c) The executive director may merge, with the agreement of the public defender advisory board, public defender corporations to form multicircuit or regional public defender corporations where to do so would improve the quality of services and efficient use of resources. Public defender corporations may employ both full-time and part-time attorneys in whatever combination may be most cost effective.
§29-21-9. Panel attorneys.
(a) In each circuit of the state, the circuit court shall establish and maintain regional and local panels of private attorneys-at-law who shall be available to serve as counsel for eligible clients.
An attorney-at-law may become a panel attorney and be enrolled on the regional or local panel, or both, to serve as counsel for eligible clients, by informing the court. An agreement to accept cases generally or certain types of cases particularly shall not prevent a panel attorney from declining an appointment in a specific case.
(b) In all cases where an attorney-at-law is required to be appointed for an eligible client, the appointment shall be made by the circuit judge as follows:
(1) In circuits where a public defender office is in operation, the judge shall appoint the public defender office unless such appointment is not appropriate due to a conflict of interest or unless the public defender corporation board of directors or the public defender, with the approval of the board, has notified the court that the existing caseload cannot be increased without jeopardizing the ability of defenders to provide effective representation.
(2) If the public defender office is not available for appointment, the court shall appoint one or more permanent part-time attorneys employed by the public defender corporation in that circuit.
(3) If there is no permanent part-time attorney available or such an attorney is available but a conflict of interest exists, the judge shall appoint one or more panel attorneys from the circuit.
(4) If there is no local panel attorney available, the judge may appoint a public defender office from an adjoining circuit if such public defender office agrees to the appointment.
(5) If the adjoining public defender office does not accept the appointment the judge may appoint a panel attorney from an adjoining circuit.
(6) If a panel attorney from an adjoining circuit is unavailable, the judge may appoint a panel attorney from any circuit.
§29-21-10. Public defender corporation funding; annual budgets; funding; record keeping by public defender corporations.

(a) On or before the first day of May of each year, every public defender corporation shall submit to the executive director a proposed budget for the next ensuing fiscal year. The accounting and auditing division shall review all funding applications and the executive director shall prepare recommendations for an operating plan and annual budget for each public defender corporation. Upon consultation with each corporation board a funding contract shall be executed for the fiscal year and funds committed for that purpose.
(b) Funding contracts may be amended during a fiscal year when an amended contract is necessary to provide cost effective representation based upon unanticipated increase in case load or unexpected expenses are incurred.
(c) Funding of public defender corporations or other programs or entities providing legal representation under the provisions of this article shall be by annual grants disbursed in such periodic allotments as the executive director shall deem appropriate.
(d) All recipients of funding under this article shall maintain such records as required by the executive director.
§29-21-11. Compensation and expenses for panel attorneys.
(a) All panel attorneys shall maintain detailed and accurate records of the time expended and expenses incurred on behalf of eligible clients, and upon completion of each case, exclusive of appeal, shall submit to the appointing court a voucher for services. Claims for fees and expense reimbursements shall be submitted to the appointing court on forms approved by the executive director. Claims for attorney services received by public defender services more than six months after the last date of service shall be rejected: Provided, That no voucher submitted for payment prior to the first day of July, two thousand reflecting a date of service of four years or less prior to submission shall be rejected solely due to having been submitted more than six months after the last date of service.
The appointing court shall review the voucher to determine if the time and expense claims are reasonable, necessary and valid, and shall forward the voucher to the agency with an order approving payment of the claimed amount or of a lesser sum the court considers appropriate.
(b) Notwithstanding any other provision of this section to the contrary, public defender services may pay by direct bill, prior to the completion of the case, litigation expenses incurred by attorneys appointed under this article. If properly authenticated such billings shall not be subject to the time limitation set forth in subsection (a) of this section.
(c) Notwithstanding any other provision of this section to the contrary, a panel attorney may be compensated for services rendered and reimbursed for expenses incurred prior to the completion of the case where: (1) More than ninety days have expired since the commencement of the panel attorney's representation in the case; and (2) no prior payment of attorney fees has been made to the panel attorney by public defender services during the case. The executive director, in his or her discretion, may authorize periodic payments where ongoing representation extends beyond six months in duration. The amounts of any fees or expenses paid to the panel attorney on an interim basis, when combined with any amounts paid to the panel attorney at the conclusion of the case, may not exceed the limitations on fees and expenses imposed by this section.
(d) In each case in which a panel attorney provides legal representation under this article, and in each appeal after conviction in circuit court, the panel attorney shall be compensated at the following rates for actual and necessary time expended for services performed and expenses incurred subsequent to the effective date of this article:
(1) For an attorney's work performed out of court, compensation shall be at the rate of forty-five dollars per hour. For a paralegal's work performed out of court for the attorney, compensation shall be at the rate of the paralegal's regular compensation on an hourly basis or, if salaried, at the hourly rate of compensation which would produce the paralegal's current salary, but in no event may the compensation exceed twenty dollars per hour. Out-of-court work includes, but is not limited to, interviews of clients or witnesses, preparation of pleadings, prehearing or pretrial research and all time spent waiting for hearings before judges, magistrates, special masters or other judicial officers. Time spent in travel may not be billed. Only travel expenses authorized by rules promulgated pursuant to section eleven, article eight, chapter twelve of this code may be allowed.
(2) For attorney's work performed in court, compensation shall be at the rate of sixty-five dollars per hour. No compensation for paralegal's work performed in court may be allowed. In-court work includes only time spent in hearing or trial before a judge, magistrate, special master or other judicial officer.
(3) The maximum amount of compensation for out-of-court and in-court work under this subsection is as follows: For proceedings of any kind involving felonies for which a penalty of life imprisonment may be imposed, the amount as the court may approve; for all other eligible proceedings, three thousand dollars unless the court, for good cause shown, approves payment of a larger sum.
(4) Except when actually in trial no panel attorney shall be paid for more than ten hours per day for his or her court-appointed services. No panel attorney shall be paid for more than five hundred hours of court-appointed work in a calendar year unless he or she maintains an office containing findings reflecting that there is a need for the panel attorney to exceed the limit in order that eligible indigent clients service representation.
(e) Actual and necessary expenses incurred in providing legal representation for proceedings of any kind involving felonies for which a penalty of life imprisonment may be imposed, including, but not limited to, expenses for travel, transcripts, salaried or contracted investigative services and expert witnesses, shall be reimbursed in an amount as the court may approve. For all other eligible proceedings, actual and necessary expenses incurred in providing legal representation, including, but not limited to, expenses for travel, transcripts, salaried or contracted investigative services and expert witnesses, shall be reimbursed to a maximum of fifteen hundred dollars unless the court, for good cause shown, approves reimbursement of a larger sum.
Expense vouchers shall specifically set forth the nature, amount and purpose of expenses incurred and shall provide receipts, invoices or other documentation required by the executive director and the state auditor.
(1)(A) Reimbursement of expenses for production of transcripts of proceedings reported by a court reporter is limited to the cost per original page and per copy as set forth in section four, article seven, chapter fifty-one of this code.
(B)(i) There may be no reimbursement of expenses for or production of a transcript of a preliminary hearing before a magistrate or juvenile referee, or of a magistrate court bench or jury trial, where the preliminary hearing or jury trial has also been recorded electronically in accordance with the provisions of section eight, article five, chapter fifty of this code or court rule.
(ii) Reimbursement of an appearance fee for a court reporter who reports a proceeding other than one described in subparagraph (i) of this paragraph, is limited to twenty-five dollars. Where a transcript of a proceeding is produced, there may be no reimbursement for the expense of any appearance fee.
(iii) There may be no reimbursement for hourly court reporters' fees or fees for other time expended by the court reporter, either at the proceeding or traveling to or from the proceeding.
(C) Reimbursement of the cost of transcription of tapes electronically recorded during preliminary hearings or magistrate court jury trials is limited to the rates established by the supreme court of appeals for the reimbursement of transcriptions of electronically recorded hearings and trial.
(2) Reimbursement for any travel expense incurred in an eligible proceeding is limited to the rates for the reimbursement of travel expenses established by rules promulgated by the governor pursuant to the provisions of section eleven, article eight, chapter twelve of this code and administered by the secretary of the department of administration pursuant to the provisions of section forty-eight, article three, chapter five-a of this code.
(3) Reimbursement for investigative services is limited to a rate of thirty dollars per hour for work performed by an investigator.
(f) For purposes of compensation under this section, an appeal from a final order of the circuit court, or a writ seeking an extraordinary remedy is considered a separate case. Appeals from magistrate court to circuit court is considered a separate case.
(g) Vouchers submitted under this section shall specifically set forth the nature of the service rendered, the stage of proceeding or type of hearing involved, the date and place the service was rendered and the amount of time expended in each instance. All time claimed on the vouchers must be itemized to the nearest tenth of an hour. If the charge against the eligible client for which services were rendered is one of several charges involving multiple warrants or indictments, the voucher must indicate the fact and sufficiently identify the several charges so as to enable the court to avoid a duplication of compensation for services rendered. The executive director must refuse to requisition payment for any voucher which is not in conformity with the record keeping, compensation or other provisions of this article, or of the voucher instructions issued pursuant to section six of this article, and in that circumstance must return the voucher to the court or to the service provider for further review or correction. The voucher instructions control for all matters not specifically covered in this article.
§29-21-12. Circuit clerks, magistrate clerks and law enforcement; duty to provide service.

Notwithstanding any other provision of this code to the contrary, all services provided by circuit clerks and magistrate clerks must be rendered to public defender corporations free of charge. All services of law-enforcement personnel including services of subpoenas and production of investigative reports, test results or other documents shall be provided free of charge.
§29-21-13. Administrative service fee; special revenue account.
The executive director may impose an administrative service fee of five dollars for each voucher submitted. The fee may be collected by discounting the payment due to the service provider. The fee shall be deposited into a special revenue account to be known as the "Public Services Administrative Fee Account" and shall accrue solely to the benefit of public defender services.



NOTE: The purpose of this bill is to revamp the state's public defender system.

§29-21-3a is new; and §§29-21-6, 8, 9, 10, 11, 12 and 13 have been completely rewritten; therefore, strike-throughs and underscoring have been omitted.