Senate Bill No. 350

(By Senators Deem and Anderson)

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[Introduced January 24, 2002; referred to the Committee

on the Judiciary; and then to the Committee on Finance.]

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A BILL to repeal sections thirteen and 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 and twelve of said article, all relating to public defender services; continuing public defender services; creating the indigent defense commission; specifying members and their terms; transferring powers and duties of agency to the executive director; authorizing the executive director to reduce or reject vouchers; removal of public defender corporation board members; activation of corporations; 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; requiring corporations to submit budget; amending funding contracts; payment of fees to panel attorneys; requiring services provided to public defender corporations; authorizing imposition of administrative service fee on vouchers by executive director; and creating a special revenue account for the fees.

Be it enacted by the Legislature of West Virginia:
That sections thirteen and 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twenty-one, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; and that sections three, six, eight, nine, ten, eleven and twelve of said article be amended and reenacted, all to read as follows:
ARTICLE 21. PUBLIC DEFENDER SERVICES.
§29-21-3. Continuation of public defender services; establishment of indigent defense commission; termination date.

(a) There is hereby created continued 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.
(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 eight 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 to be appointed by the president of the West Virginia judicial association, one of whom previously presided in a circuit without an active public defender corporation;
(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) The director of the prosecuting attorneys institute, ex officio;
(E) The administrative director to the supreme court of appeals, ex officio; and
(F) Two nonlawyers with a demonstrated commitment to providing legal services to the indigent, one to be appointed by the president of the Senate and 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.
(5) Whenever the indigent defense commission casts a vote and the vote is a tie, the executive director is authorized to cast the deciding vote.
(c) 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, two thousand two, unless sooner terminated, continued or reestablished by act of the Legislature.
§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 any other grants and contracts as that 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 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 related 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 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 may 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 accounting and auditing 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 submit financial statements monthly and to report monthly on the billable and nonbillable time of its professional employees, including time utilized used in administration of the respective offices, so as to compare such the time to similar time expended in nonpublic law offices for like similar 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 the 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 use 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 may 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 other provision of this code to the contrary, the executive director may, after consultation with the indigent defense commission, 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 this member has committed gross negligence or gross malfeasance.
§29-21-8. Public defender corporations; establishment thereof.
(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 the executive director 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 considers most efficient and cost effective.
A public defender corporation may be activated solely by 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.
(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 a merger 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. Public defender corporations may, when cost effective, establish an office to accept appointments which the primary office may not accept due to a conflict of interest.
§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 are 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 may 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 an 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 the 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; or
(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; 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, 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 may not be obligated to reimburse the recipient for costs incurred in excess of that 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 periodic allotments that the executive director considers appropriate.
(d) All recipients of funding under this article shall maintain the records 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 after the first day of January, two thousand two. Absent just cause, the executive director shall reject claims for attorney services by public defender services received more than one hundred eighty calendar days 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.
(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 is at the rate of forty-five dollars per hour. For paralegal's work performed out of court for the attorney, compensation is 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 approved by the court; for all other eligible proceedings, three thousand dollars unless the court, for good cause shown, approves payment of a larger sum.
(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 approved by the court. 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. An appeal 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 shall 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 indicate that 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 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 shall return the voucher to the court or to the service provider for further review or correction. The voucher instructions control all matters not specifically covered in this article.
§29-21-12. 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 create an indigent defense commission to advise the executive director on policies and procedures of public defender services. The bill gives the executive director the authority to reduce or reject vouchers and
after consultation with the indigent defense commission may remove certain board members of corporations for gross negligence or gross malfeasance. The bill also allows the indigent defense commission to activate a public defender corporation if the activation may be accomplished effectively and economically. The bill authorizes the employment of permanent part-time attorneys in addition to full-time attorneys and it makes other procedural and technical changes to the budgeting processes of public defender corporations' and the public defender services voucher claim system. The bill also changes the manner of appointment of panel attorneys and it authorizes the imposition of administrative service fee five dollars on submitted vouchers.

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

§§29-21-10, 11 and 12 have been completely rewritten, therefore underscoring and strike-throughs are omitted from those sections.

§§29-21-13 and 13a are repealed.