COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 59

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

Edgell, Unger, Dittmar, Bailey and Deem)

____________

[Originating in the Committee on the Judiciary;
reported February 2, 2000.]

____________

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; and to amend and reenact sections three, six, eight, nine, ten, eleven, twelve and thirteen of said article, all relating to the public defender services; extending termination date to two thousand two; vesting the executive director 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; removing the sections relating to public defender corporations' funding; creation of indigent defense commission; 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 executive director; and funding of public defender corporations, annual budgets and recordkeeping.

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twenty-one, chapter twenty- nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; and that sections three, six, eight, nine, ten, eleven, twelve and thirteen of said article be amended and reenacted, all to read as follows: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.

§29-21-3. Establishment of public defender services, termination date.

There is hereby created an executive agency known as public defender services. The agency shall administer, coordinate and evaluate programs by which the state provides legal representation to indigent persons, monitor the progress of various delivery systems, and recommend improvements. The agency shall maintain its office at the state capital.
There is hereby established the indigent defense commission to advise the executive director with regard to the general policies and procedures of the agency, including, but not limited to, the opening of public defender offices throughout the state and the establishment of performance measures for qualitative review of indigent defense.
The commission shall be composed of eleven members, who shall be chosen with regard for their expertise in managing law- related organizations or their expertise in fiscal and personnel management. Members shall demonstrate a commitment to the delivery of legal services to the indigent and shall be chosen from as broad a geographic area as possible. In order to demonstrate a collaborative approach to solving criminal justice problems, the commission shall be constituted as follows:
(1) Two former or retired circuit judges, one to be appointed by the chief justice of the supreme court of appeals and one to be appointed by the president of the West Virginia judicial association;
(2) One lawyer experienced in providing legal services to the poor, to be appointed by the president of the West Virginia state bar;
(3) One current chief public defender, to be appointed by the executive director of public defender services;
(4) One lawyer currently engaged in state court appointed criminal defense representation, to be appointed by the governor;
(5) The director of the prosecutor's institute, ex officio;
(6) The administrative director to the supreme court of appeals, ex officio;
(7) The superintendent of the division of public safety, ex officio;
(8) One lawyer or non-lawyer experienced in providing legal education and training, to be appointed by the governor;
(9) Two non-lawyers with a demonstrated commitment to providing legal services to the indigent, one to appointed by the president of the Senate, one to be appointed by the speaker of the House of Delegates.
Commission members shall serve for a term of four years, to coincide with the term of the governor. Upon first meeting after the beginning of a new gubernatorial term, the members shall select one of their number to serve as chair for the duration of the governor's term. Members may be reappointed for an unlimited number of terms.
The commission shall meet upon the call of either the chair or the executive director, but shall meet no less than twice a year. Members shall serve without compensation but may receive reimbursement of reasonable and necessary expenses.
Pursuant to the provisions of article ten, chapter four of this code, public defender services shall continue to exist until the first day of July, one thousand nine hundred ninety-nine two thousand two.
§29-21-6. Powers, duties and limitations.
(a) Consistent with the provisions of this article, the agency executive director 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 executive director 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 executive director shall establish and the executive director or his or her designate 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 designate 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 has the authority to reduce or reject vouchers or requests for payment submitted by panel attorneys appointed pursuant to section nine of this article. This division The accounting and auditing 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 accounting and auditing division shall require each public defender corporation to periodically 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 accounting and auditing division shall provide to the executive director assistance in the fiscal administration of all of the agency's divisions. Such This assistance shall include, but not be limited to, budget preparation and statistical analysis.
(e) The agency shall establish and the executive director or a person designated by the executive director 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 vouchers and records for of representation of eligible clients for record purposes only.
(f) Notwithstanding any provision of this code to the contrary, the executive director is hereby vested with the authority after consultation with the indigent defense commission to remove any board member of any corporation, the existence of which is authorized by the provisions of section eight of this article upon a determination by the executive director that gross negligence or malfeasance has occurred.
§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 executive director determines there is a need to activate the any corporation, they shall certify that fact in writing to the executive director he shall notify the chief judge of the circuit and the president of each county bar association, if any. Following notification, the executive director shall allocate funds to those corporations so certifying 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, in consultation with the indigent defense commission, 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. No corporation may be activated at the instance of the executive director if the judge of a single judge circuit, the judges of a multi-judge circuit and a majority of the active members of the bar residing or practicing on a regular basis in the circuit object in writing submitted to the executive director to the activation of the corporation: Provided, That no county which was placed in a different judicial circuit as a result of the judicial realignment effective the first day of January, two thousand one may be required to activate a public defender corporation if the judges of that county or a majority of the active members of the active bar residing or practicing on a regular basis in the county object in writing submitted to the ex director to the activation of the corporation in that county.
(c) The executive director may require public defender corporations may apply in writing to the executive director for permission to merge to form multicircuit or regional public defender corporations where to do so would improve the quality of services and efficient use of resources. Applications for mergers shall be subject to the review procedures set forth in section eleven of this article 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. panel attorneys from the local panel.
(3) If there is no local panel permanent part-time attorney available, the judge shall appoint one or more panel attorneys from the regional panel circuit.
(4) If there is no regional 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.
In circuits where no public defender office is in operation, the judge shall first refer to the local panel and then to the regional panel in making appointments, and if an appointment cannot be made from the panel attorneys, the judge may appoint the public defender office of an adjoining circuit if the office agrees to the appointment. In any circuit, when there is no public defender, or assistant public defender, local panel attorney or regional panel attorney available, the judge may appoint one or more qualified private attorneys to provide representation, and such private attorney or attorneys shall be treated as panel attorneys for that specific case. In any given case, the appointing judge may alter the order in which attorneys are appointed if the case requires particular knowledge or experience on the part of the attorney to be appointed.
§29-21-10. Public defender corporation funding; annual budgets; funding; recordkeeping 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. The executive director shall review the funding applications and the accounting and auditing recommendations and shall, in Upon consultation with the applicants, prepare a plan for providing legal services each corporation board a funding contract shall be executed for the fiscal year and funds committed for that purpose.
(b) Upon final approval of a funding application by the executive director, the approved budget shall be set forth in an approval notice. The total cost to the agency shall not exceed the amount set forth in the approval notice and the agency shall not be obligated to reimburse the recipient for costs incurred in excess of the amount unless and until a program modification has been approved in accordance with the provisions of this article.
At the discretion of the executive director, when case loads rise or unusual expenses occur, funding contracts may be amended during a fiscal year when an amended contract is necessary to provide cost effective representation.
(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 submitted to the circuit court for approval more than four years one hundred eighty calendar days after the last date of service shall be rejected. Claims for attorney services received by public defender services more than one hundred eighty calendar days 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 two years 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 six months 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, shall 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 attorney's work performed out of court, compensation shall be at the rate of forty-five dollars per hour. For 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 shall may the compensation exceed twenty dollars per hour. Out-of-court work includes, but is not limited to, travel, interviews of clients or witnesses, preparation of pleadings, and 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 shall may be allowed. In-court work includes but is not limited to, all only time spent awaiting in hearing or trial before a judge, magistrate, special master or other judicial officer. if the presence of the attorney is required.
(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) An individual panel attorney is limited to a maximum of one thousand billable hours per year. 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. Public defender services shall notify all circuit judges upon the accumulation of the maximum time and request that no additional appointments be made: Provided, That a panel attorney for purposes of continuity of representation, may incur more than one thousand billable hours if he or she reaches said number of hours during the pendency of a case or cases.
(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. Reimbursement of the cost of copies of such transcripts is limited to the cost per copy page as provided for under said section. It is the duty of the executive director of public defender services to maintain computer records of all transcripts, including originals and copies, for which payment has been made.
(B) (i) There shall 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, which has been reported by a court reporter at the request of the attorney, 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 the expense of an appearance fee for a court reporter who reports a proceeding other than one described in subparagraph (i) of this paragraph, or who reports a proceeding which is not reported by an official court reporter acting in his or her official capacity for the court, is limited to twenty-five dollars. Where a transcript of a proceeding is produced, there shall may be no reimbursement for the expense of any appearance fee. Where a transcript is requested by the attorney after an appearance fee has been paid, reimbursement of the expense incurred to obtain the transcript is limited to the cost of producing the transcript, within the prescribed limitations of paragraph (A) of this subdivision, less the amount of the paid appearance fee.
(iii) Reimbursement of travel expenses incurred for travel by a court reporter is subject to the limitations provided by subdivision (2) of this subsection.
(iv) Except for the appearance fees provided in this paragraph,
(iii) There shall 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 one dollar per page.
(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)(g) For purposes of compensation under this section, an appeal from a final order of the circuit court, or proceeding a writ seeking an extraordinary remedy made to the supreme court of appeals, shall be is considered a separate case. Appeals from magistrate court to circuit court is considered a separate case.
(g)(h) 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 shall 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 shall 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 shall must refuse to requisition payment for any voucher which is not in conformity with the recordkeeping, compensation or other provisions of this article, or of the voucher instructions issued pursuant to section six of this article, and in such that circumstance shall 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 including, but not limited to, copying and providing certified copies 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 modify the public defender services. It extends the termination date to 2004. It vests the executive director with authority now conferred upon the public defender services agency and permits the employment of both full-time and part-time attorneys. It changes the manner of appointment of panel attorneys and removes sections relating to public defender corporations funding. It requires services provided by official court reporters, circuit clerks and magistrate clerks to be free of charge to public defender corporations. It authorizes imposition of administrative service fee on vouchers by the executive director. And, it deals with funding of defender corporations, annual budgets and recordkeeping.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

Section 10 is taken from the existing section 13. Section 11 is taken from the existing section 13a. Sections 12 and 13 have been completely rewritten. Section 13a is repealed, but actually rewritten as section 11.