H. B. 2422


(By Delegate Louisos)
[Introduced January 20, 2003; referred to the
Committee on the Judiciary.]




A BILL to amend and reenact sections one, two, three and four, article five, chapter twenty-nine-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to contested cases under the administrative procedures act; and providing for jury trials in certain cases.

Be it enacted by the Legislature of West Virginia:
That sections one, two, three and four, article five, chapter twenty-nine-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 5. CONTESTED CASES.

§29A-5-1. Notice required; hearing; jury trial; subpoenas; witness fees, etc.; depositions; records.

(a) In any contested case all parties shall be afforded an opportunity for hearing after at least ten days' written notice. The notice shall contain the date, time and place of the hearing and a short and plain statement of the matters asserted. If the agency is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon application a more definite and detailed statement shall be furnished. An opportunity shall be afforded all parties to present evidence and argument with respect to the matters and issues involved. The required notice must be given as specified in section two, article seven of this chapter. All of the testimony and evidence at any such hearing shall be reported by stenographic notes and characters or by mechanical means. All rulings on the admissibility of testimony and evidence shall also be reported. The agency shall prepare an official record, which shall include reported testimony and exhibits in each contested case, and all agency staff memoranda and data used in consideration of the case, but it shall may not be necessary to transcribe the reported testimony unless required for purposes of rehearing or judicial review. Informal disposition may also be made of any contested case by stipulation, agreed settlement, consent order or default. Each agency shall adopt appropriate rules of procedure for hearing in contested cases.
(b) For the purpose of conducting a hearing in any contested case, any agency which now has or may be hereafter expressly granted by statute the power to issue subpoenas or subpoenas duces tecum or any member of the body which comprises such the agency may exercise such this power in the name of the agency. Any such agency or any member of the body which comprises any such agency may exercise such the power in the name of the agency for any party upon request. Under no circumstances shall may this chapter be construed as granting the power to issue subpoenas or subpoenas duces tecum to any agency or to any member of the body of any agency which does not now by statute expressly have such this power. When such this power exists, the provisions of this section shall apply. Every such subpoena and subpoena duces tecum shall be served at least five days before the return date thereof, either by personal service made by any person over eighteen years of age or by registered or certified mail, but a return acknowledgment signed by the person to whom the subpoena or subpoena duces tecum is directed shall be is required to prove service by registered or certified mail. All subpoenas and subpoenas duces tecum shall be issued in the name of the agency, as aforesaid, but any party requesting their issuance must see that they are properly served. Service of subpoenas and subpoenas duces tecum issued at the instance of the agency shall be is the responsibility of the agency. Any person who serves any such subpoena or subpoena duces tecum shall be is entitled to the same fee as sheriffs who serve witness subpoenas for the circuit courts of this state; and fees for the attendance and travel of witnesses shall be the same as for witnesses before the circuit courts of this state. All such fees shall be paid by the agency if the subpoena or subpoena duces tecum were issued, without the request of an interested party, at the instance of the agency. All such fees related to any subpoena or subpoena duces tecum issued at the instance of an interested party shall be paid by the party who asks that such the subpoena or subpoena duces tecum be issued. All requests by interested parties for subpoenas and subpoenas duces tecum shall be in writing and shall contain a statement acknowledging that the requesting party agrees to pay such the fees. Any such agency may compel the attendance of witnesses and the production of books, records or papers in response to such the subpoenas and subpoenas duces tecum. Upon motion made promptly and in any event before the time specified in a subpoena duces tecum for compliance therewith, the circuit court of the county in which the hearing is to be held, or the circuit court in which the subpoena duces tecum was served, or the judge of either such court in vacation, may grant any relief with respect to such the subpoena duces tecum which either such court, under the West Virginia Rules of Civil Procedure for Trial Courts of Record, could grant, and for any of the same reasons, with respect to a subpoena duces tecum issued from either such court. In case of disobedience or neglect of any subpoena or subpoena duces tecum served on any person, or the refusal of any witness to testify to any matter regarding which he or she may be lawfully interrogated, the circuit court of the county in which the hearing is being held, or the judge thereof in vacation, upon application by such the agency or any member of the body which comprises such the agency, shall compel obedience by attachment proceedings for contempt as in the case of disobedience of the requirements of a subpoena or subpoena duces tecum issued from such the circuit court or a refusal to testify therein. Witnesses at such the hearings shall testify under oath or affirmation.
(c) Evidentiary depositions may be taken and read as in civil actions in the circuit courts of this state.
(d) All hearings shall be conducted in an impartial manner. The agency, any member of the body which comprises the agency, or any hearing examiner or other person permitted by statute to hold any such hearing for such the agency, and duly authorized by such the agency so to do, shall have the power to: (1) Administer oaths and affirmations; (2) rule upon offers of proof and receive relevant evidence; (3) regulate the course of the hearing; (4) hold conferences for the settlement or simplification of the issues by consent of the parties; (5) dispose of procedural requests or similar matters; and (6) take any other action authorized by a rule adopted by the agency in accordance with the provisions of article three of this chapter.
(e) Except where otherwise provided by statute, the hearing in any contested case shall be held in the county selected by the agency.
(f) Notwithstanding the provisions of subsection (a) of this section, upon request to the agency from any party to the hearing all reported testimony and evidence at such the hearing shall be transcribed, and a copy thereof furnished to such the party at his or her expense. The agency shall have the responsibility for making may make arrangements for the transcription of the reported testimony and evidence, and such the transcription shall be accomplished with all dispatch.
(g) In any contested case in which an individual may lose a job, be suspended for more than ten days without pay, or be subjected to a fine or imposition of payment of costs and attorney fees, that individual is entitled to a hearing or trial before a jury of six persons who shall determine the truth of the facts. The jurors shall be chosen from the panel of available jurors in the circuit court in the county in which the hearing is to be conducted. They shall receive the same rate of pay for an administrative hearing or trial as they are paid for a trial in the circuit court. Jury costs are to be paid by the agency conducting the contested hearing.
§29A-5-2. Rules of evidence; taking notice of facts; correction of transcript.

(a) In contested cases, with or without a jury, irrelevant, immaterial or unduly repetitious evidence shall be excluded. The rules of evidence as applied in civil cases in the circuit courts of this state shall be followed. When necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible thereunder may be admitted, except where precluded by statute, if it is of a type commonly relied upon by reasonably prudent men and women in the conduct of their affairs. Agencies shall be are bound by the rules of privilege recognized by law. Objections to evidentiary offers shall be noted in the record. Any party to any such hearing may vouch the record as to any excluded testimony or other evidence.
(b) All evidence, including papers, records, agency staff memoranda and documents in the possession of the agency, of which it desires to avail itself, shall be offered and made a part of the record in the case, and no other factual information or evidence shall may be considered in the determination of the case. Documentary evidence may be received in the form of copies or excerpts or by incorporation by reference.
(c) Every party shall have the right of cross-examination of may cross-examine witnesses who testify, and shall have the right to may submit rebuttal evidence.
(d) Agencies may take notice of judicially cognizable facts. All parties shall be notified either before or during hearing, or by reference in preliminary reports or otherwise, of the material so noticed, and they shall be afforded an opportunity to contest the facts so noticed.
(e) Upon motion in writing served by any party as notice may be served pursuant to section two, article seven of this chapter and therein assigning error or omission in any part of any transcript of the proceedings had and testimony taken at any such hearing, the agency shall settle all differences arising as to whether such the transcript truly discloses what occurred at the hearing and shall direct that the transcript be corrected and revised in the respects designated by the agency, so as to make it conform to the whole truth.
§29A-5-3. Orders or decisions.

Every final order or decision rendered by any agency in a contested case shall be in writing or stated in the record and shall be accompanied by findings of fact and conclusions of law. Prior to the rendering of any final order or decision, any party may propose findings of fact and conclusions of law. If proposed, all other parties shall be given an opportunity to except to such the proposed findings and conclusions, and the final order or decision shall include a ruling on each proposed finding. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. A copy of the order or decision and accompanying findings and conclusions shall be served upon each party and his or her attorney of record, if any, in person or by registered or certified mail. If the issues in controversy have been decided by a jury trial, the agency shall prepare a jury verdict form to be completed by the jury and an order that reflects the verdict of the jury, copies of which shall be served upon each party and his or her attorney of record, if any, in person or by registered or certified mail.
§29A-5-4. Judicial review of contested cases.
(a) Any party adversely affected by a final order, or decision or jury verdict in a contested case, is entitled to judicial review thereof under this chapter, but nothing in this chapter shall be deemed determined to prevent other means of review, redress or relief provided by law.
(b) Proceedings for review shall be instituted by filing a petition, at the election of the petitioner, in either the circuit court of Kanawha County, West Virginia, or in the circuit court of the county in which the petitioner or any one of the petitioners resides or does business, or with the judge thereof in vacation, within thirty days after the date upon which such the party received notice of the final order or decision of the agency. A copy of the petition shall be served upon the agency and all other parties of record by registered or certified mail. The petition shall state whether the appeal is taken on questions of law or questions of fact, or both. No appeal bond shall may be required to effect any such appeal.
(c) The filing of the petition shall may not stay enforcement of the agency order or decision or act as a supercedes thereto, but the agency may stay such the enforcement, and the appellant, at any time after the filing of his or her petition, may apply to such the circuit court for a stay of or supercedes to such the final order or decision. Pending the appeal, the court may grant a stay or supercedes upon such the terms as it deems considers proper.
(d) Within fifteen days after receipt of a copy of the petition by the agency, or within such further time as the court may allow, the agency shall transmit to such the circuit court the original or a certified copy of the entire record of the proceeding under review, including a transcript of all testimony and all papers, motions, documents, evidence and records as were before the agency, all agency staff memoranda submitted in connection with the case, and a statement of matters officially noted; but, by stipulation of all parties to the review proceeding, the record may be shortened. The expense of preparing such the record shall be taxed as a part of the costs of the appeal. The appellant shall provide security for costs satisfactory to the court. Any party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs involved. Upon demand by any party to the appeal, the agency shall furnish, at the cost of the party requesting same, a copy of such the record. In the event If the complete record is not filed with the court within the time provided for in this section, the appellant may apply to the court to have the case docketed, and the court shall order such the record filed.
(e) Appeals taken on questions of law, fact or both, shall be heard upon assignments of error filed in the cause or set out in the briefs of the appellant. Errors not argued by brief may be disregarded, but the court may consider and decide errors which are not assigned or argued. The court or judge shall fix a date and time for the hearing on the petition, but such the hearing, unless by agreement of the parties, shall may not be held sooner than ten days after the filing of the petition, and notice of such the date and time shall be forthwith given to the agency.
(f) The review shall be conducted by the court without a jury and shall be upon the record made before the agency, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony thereon may be taken before the court. The court may hear oral arguments and require written briefs.
(g) The court may affirm the order or decision of the agency or the jury or remand the case for further proceedings. It shall reverse, vacate or modify the order or decision of the agency or jury if the substantial rights of the petitioner or petitioners have been prejudiced because of the administrative findings, inferences, conclusions, decision, or order or jury verdict are:
(1) In violation of constitutional or statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of the agency; or
(3) Made upon unlawful procedures; or
(4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
(h) The judgment of the circuit court shall be is final unless reversed, vacated or modified on appeal to the supreme court of appeals of this state in accordance with the provisions of section one, article six of this chapter.
(i) In all contested cases before a jury, if the individual prevails in a final order, whether before the agency, the circuit court or supreme court of appeals, that person shall be awarded all costs expended or incurred and reasonable attorney fees. The agency shall pay the costs, including the costs of the jury.



NOTE: The purpose of this bill is to provide for jury trials in certain administrative proceedings involving contested cases.

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