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; 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; creating 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; funding of public defender corporations, annual budgets and recordkeeping; and renumbering subsections.

(a)

(b)(1) 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.
(2) 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:
(A) 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;
(B) One lawyer experienced in providing legal services to the poor, to be appointed by the president of the West Virginia state bar;
(C) One current chief public defender, to be appointed by the executive director of public defender services;
(D) One lawyer currently engaged in state court appointed criminal defense representation, to be appointed by the governor;
(E) The director of the prosecutor's institute, ex officio;
(F) The administrative director to the supreme court of appeals, ex officio;
(G) The superintendent of the division of public safety, ex officio;
(H) One lawyer or non-lawyer experienced in providing legal education and training, to be appointed by the governor;
(I) 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.
(3) 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.
(4) 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.
(c)

§29-21-6. Powers, duties and limitations.

(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) Any public defender corporation applying to public defender services for financial assistance to establish a program to provide legal representation or proposing a major substantive modification to an existing program shall notify the executive director and the circuit judges in the area in which the program will deliver legal representation of the intent to apply for such assistance or modification. Such notice shall be given at least thirty days prior to the filing of an application or a proposal for modification.

(b) Notifications shall include a summary description of the proposed program. The summary description shall contain the following information:

(1) The identity of the applicant;

(2) The geographical area to be served by the proposed program;

(3) A brief description of the proposed program, general size or scale, estimated cost, or other characteristics which will enable the circuit court to determine how the system for representation of indigents within the circuit may be affected by the proposed program; and

(4) The estimated date the public defender corporation expects to formally file an application or modification proposal.

(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, the executive director shall execute a funding contract for the fiscal year and shall commit funds 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) Any public defender corporation or any other entity wishing to secure state financial assistance through the agency shall submit a funding application to the executive director.

(b) The funding application, which is to be submitted in a form prescribed by the executive director, shall contain a general description of the plans and policies the applicant intends to utilize in providing legal representation, and such other information prescribed by the executive director.

(c) All applications for financial assistance from public defender services under the provisions of this article must be submitted to the circuit judges of the circuit for review prior to their submission to public defender services.

Reviews shall be completed by circuit judges within fifteen days after receipt. If the public defender corporation or other applicant has not received a response within the fifteen-day period, the public defender corporation may consider the judge to have waived his or her opportunity to review and comment on the proposed program or program modification and may submit the application to public defender services.

(d) Completed applications shall include:

(1) All comments and recommendations made by the circuit judges, along with a statement that such comments have been considered prior to submission of the application; or

(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 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:

, That no voucher submitted for payment prior to the first day of July, two thousand one, 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, 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 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) 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:

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. (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 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) For purposes of compensation under this section, an appeal from a final order of the circuit court, or a writ seeking an extraordinary remedy made to the supreme court of appeals, 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.