H. B. 3030

(By Delegates Williams and Kominar)
[Introduced February 14, 2003; referred to the
Committee on the Judiciary.]

A BILL to amend and reenact sections one, seven, eight, eleven, twenty-three and twenty-four, article one, chapter fifty-two of the code of West Virginia, one thousand thirty-one, as amended; to further amend said article by adding thereto a new section, designated section ten-a; to amend and reenact section one, article three of said chapter; and to further amend said chapter by adding thereto a new article, designated article four, all relating to petit juries; restating the declaration of policy and obligation of citizens to serve on juries, unless excused; changing civil contempt to misdemeanor penalties for failure to appear for jury duty; basis for disqualification from jury duty; establishing a procedure for postponement of jury duty; specific excuses from jury service, including undue or extreme physical or financial hardship; changing the length of service by jurors in a two-year period; providing misdemeanor penalty instead of civil contempt for failure to perform jury service; providing rights of employees summoned for jury duty; requiring the supreme court of appeals to establish a "lengthy trial fund" to be used for full wage replacement for jurors after the tenth day of a trial; and otherwise reducing the burdens of jury service and increasing participation in the jury system.

Be it enacted by the Legislature of West Virginia:
That sections one, seven, eight, eleven, twenty-three, and twenty-four, article one, chapter fifty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that said article be further amended by adding thereto a new section, designated section ten-a; that section one, article three, chapter fifty-two of said code be amended and reenacted; and that said chapter be further amended by adding thereto a new article, designated article four, all to read as follows:
ARTICLE 1. PETIT JURIES.
§52-1-1. Declaration of policy.
It is the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court, and that all citizens have the opportunity in accordance with this article to be considered for jury service and an obligation to serve as jurors when summoned for that purpose.
It is the further policy of this state that all qualified citizens have an obligation to serve on petit juries when summoned by the courts of this state, unless excused. 

§52-1-7. Drawings from the jury wheel or jury box; notice of jury duty; penalties.

(a) The chief judge of the circuit, or the judge in a single judge circuit, shall provide by order rules relating to the random drawing by the clerk of panels from the jury wheel or jury box for juries in the circuit and magistrate courts. The rules may allow for the drawing of panels at any time. Upon receipt of the direction and in the manner prescribed by the court, the clerk shall publicly draw at random from the jury wheel or jury box the number of jurors specified.
(b) If a jury is ordered to be drawn, the clerk thereafter shall cause each person drawn for jury service to be notified not less than twenty days before the date for which the persons are to report for jury duty with a summons and juror qualification form, if such form has not already been completed, by personal service or first class mail addressed to the person at his or her usual residence, business or post-office address, requiring him or her to report for jury service at a specified time and place.
(c) A prospective juror who fails to appear as directed by the summons issued pursuant to subsection (b) of this section shall be ordered by the court to appear and show cause for failure to appear as directed. If the prospective juror fails to appear pursuant to the court's order or fails to show good cause for failure to appear as directed by the summons, he or she is guilty of civil contempt and shall be fined not more than one thousand dollars.
(c) An individual who fails to appear in person on the date scheduled for jury service and who has failed to obtain a postponement in compliance with the provisions of section ten-a of this article, or who fails to appear on the date set pursuant to subsection (b) of this section, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than five hundred dollars or imprisoned in the county or regional jail not more than thirty days, or both fined and imprisoned.
§52-1-8. Disqualification from jury service.
(a) The court, upon request of a prospective juror or on its own initiative, shall determine on the basis of information provided on the juror qualification form or interview with the prospective juror or other competent evidence whether the prospective juror is disqualified for jury service pursuant to the provisions of subsection (b) of this section. The clerk shall enter this determination in the space provided on the juror qualification form and on the alphabetical lists of names drawn from the jury wheel or jury box.
(b) A prospective juror is disqualified to serve on a jury if the prospective juror:
(1) Is not a citizen of the United States, at least eighteen years old and a resident of the county;
(2) Is unable to read, speak and understand the English language. For the purposes of this section, the requirement of speaking and understanding the English language is met by the ability to communicate in American sign language or signed English;
(3) Is incapable, by reason of substantial physical or mental disability, of rendering satisfactory jury service; but a person claiming this disqualification may be required to submit a physician's certificate as to the disability and the certifying physician is subject to inquiry by the court at its discretion;
(4) (3) Has, within the preceding two years, been summoned to serve as a petit juror, grand juror or magistrate court juror, and has actually attended sessions of the magistrate or circuit court and been reimbursed for his or her expenses as a juror pursuant to the provisions of section twenty-one of this article, section thirteen, article two of this chapter, or pursuant to an applicable rule or regulation of the supreme court of appeals promulgated pursuant to the provisions of section eight, article five, chapter fifty of this code;
(5) (4) Has lost the right to vote because of a criminal conviction; or
(6) (5) Has been convicted of perjury, false swearing or other infamous offense.
(c) A prospective juror sixty-five years of age or older is not disqualified from serving, but shall be excused from service by the court upon the juror's request.
(d) A prospective grand juror is disqualified to serve on a grand jury if the prospective grand juror is an officeholder under the laws of the United States or of this state except that the term "officeholder" does not include notaries public.
(e) A person who is physically disabled and can render competent service with reasonable accommodation shall not be ineligible to act as juror or be dismissed from a jury panel on the basis of disability alone: Provided, That the circuit judge shall, upon motion by either party or upon his or her own motion, disqualify a disabled juror if the circuit judge finds that the nature of potential evidence in the case including, but not limited to, the type or volume of exhibits or the disabled juror's ability to evaluate a witness or witnesses, unduly inhibits the disabled juror's ability to evaluate the potential evidence. For purposes of this section:
(1) Reasonable accommodation includes, but is not limited to, certified interpreters for the hearing impaired, spokespersons for the speech impaired and readers for the visually impaired.
(2) The court shall administer an oath or affirmation to any person present to facilitate communication for a disabled juror. The substance of such oath or affirmation shall be that any person present as an accommodation to a disabled juror will not deliberate on his or her own behalf, although present throughout the proceedings, but act only to accurately communicate for and to the disabled juror.
(f) Nothing in this article shall may be construed so as to limit in any way a party's right to peremptory strikes in civil or criminal actions.
§52-1-10a. Postponement of jury service.
(a) Notwithstanding any other provisions of this article, individuals scheduled to appear for jury service have the right to postpone the date of their initial appearance for jury service one time only. When requested, postponements shall be granted, provided that:
(1) The juror has not previously been granted a postponement;
(2) The prospective juror appears in person or contacts the clerk of the court by telephone, electronic mail or in writing to request a postponement; and
(3) Prior to the grant of a postponement with the concurrence of the clerk of the court, the prospective juror fixes a date certain on which he or she will appear for jury service that is not more than six months after the date on which the prospective juror originally was called to serve and on which date the court will be in session.
(b) A subsequent request to postpone jury service may be approved by a judicial officer only in the event of an extreme emergency, such as a death in the family, sudden illness, a natural disaster or a national emergency in which the prospective juror is personally involved, that could not have been anticipated at the time the initial postponement was granted. Prior to the grant of a second postponement, the prospective juror must fix a date certain on which the individual will appear for jury service within six months of the postponement on a date when the court will be in session.
§52-1-11. Excuses from jury service.
(a) The court, upon request of a prospective juror or on its own initiative, shall determine on the basis of information provided on the juror qualification form or interview with the prospective juror or other competent evidence whether the prospective juror should be excused from jury service. The clerk shall enter this determination in the space provided on the juror qualification form.
(b) A person who is not disqualified for jury service under section eight of this article may be excused from jury service by the court upon a showing of undue hardship, extreme inconvenience, or public necessity, for a period the court deems necessary, at the conclusion of which the person shall reappear for jury service in accordance with the court's direction. when either:
(1) The prospective juror has a mental or physical condition that causes him or her to be incapable of performing jury service. The juror, or the juror's personal representative, must provide the court with documentation from a physician licensed to practice medicine verifying that a mental or physical condition renders the person unfit for jury service for a period of not less than the twenty-four month period for which the excuse is sought.
(2) Jury service would otherwise cause undue or extreme physical or financial hardship to the prospective juror or a person under his or her care or supervision.
(A) A judge of the court for which the individual was called to jury service shall determine whether the individual is to be exempt from jury service. The authority to make these determinations is delegable only to court officials or personnel who are authorized by the laws of this state to function as members of the judiciary.
(B) A person asking to be excused from jury service under this section must take all actions necessary to have obtained a ruling on that request by no later than the date on which the individual is scheduled to appear for jury duty.
(C) For purposes of this section, undue or extreme physical or financial hardship is limited to circumstances in which an individual would:
(i) Be required to abandon a person under his or her personal care or supervision due to the impossibility of obtaining an appropriate substitute caregiver during the period of participation in the jury pool or on the jury;
(ii) Incur costs that would have a substantial adverse impact on the payment of the individual's necessary daily living expenses or on those for whom he or she provides the principle means of support; or
(iii) Suffer physical hardship that would result in illness or disease.
(D) Undue or extreme physical or financial hardship does not exist solely based on the fact that a prospective juror will be required to be absent from his or her place of employment.
(E) A person asking a judge to grant an excuse based on undue or extreme physical or financial hardship must provide the judge with documentation, such as, but not limited to, federal and state income tax returns, medical statements from licensed physicians, proof of dependency or guardianship, and similar documents, which the judge requires to clearly support the request to be excused. Failure to provide satisfactory documentation shall result in a denial of the request to be excused.
(F) After twenty-four months, a person excused from jury service shall become eligible once again for qualification as a juror unless the person was excused from service permanently. A person is excused from jury service permanently only when the deciding judge determines that the underlying grounds for being excused are of a permanent nature.
§52-1-23. Length of service by jurors.
In any two-year period a person may not be required:
(1) To serve or attend court for prospective service as a juror more than thirty one court days day, except if necessary to complete service in a particular case;
(2) To serve on more than one grand jury;
(3) To serve as both a grand and petit juror; or
(4) To serve as a petit juror at more than one term of court.
§52-1-24. Penalties for failure to perform jury service.
A person summoned for jury service who fails to appear or to complete jury service as directed without having obtained a postponement or exemption pursuant to this article shall be ordered by the court to appear forthwith and show cause for failure to comply with the summons. If the person fails to show good cause for noncompliance with the summons, the person is guilty of civil contempt and, shall be fined not more than one thousand dollars is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than five hundred dollars or imprisoned in the county or regional jail not more than thirty days, or both fined and imprisoned.
ARTICLE 3. DISCRIMINATION FOR JURY SERVICE.

§52-3-1. Rights of employees summoned for jury duty; right of action for discrimination against employees summoned for jury duty; penalties.

(a) Any person who is summoned to serve as a juror and who notifies his or her employer of such summons within a reasonable period of time after receipt of a summons and prior to his or her appearance for jury duty may not be terminated, removed or otherwise subject to any adverse employment action as a result of such service.
(b) An employee may not be required or requested to use annual, vacation or sick leave for time spent responding to a summons for jury duty, time spent participating in the jury selection process or for time spent actually serving on a jury. Nothing in this provision may be construed to require an employer to provide annual, vacation or sick leave to employees under the provisions of this statute who otherwise are not entitled to such benefits under company policies.
(c) An employer, other than an employer as defined in section (g) below, shall continue to pay an employee called to serve on jury duty at the same rate paid when the employee is regularly working for the employer for the first ten regularly scheduled working days that the employee serves on jury duty. An employer may deduct the daily fee a court actually pays as compensation to an employee serving as a juror or prospective juror from the employee's daily regular pay, but may not make any deduction for court paid jury service fees that are in excess of the employee's regular wage.
(a) (d) Any person who, as an employee, is discriminated against by his or her employer because such employee received, or was served with a summons for jury duty, or was absent from work to respond to a summons for jury duty or to serve on any jury in any court of this state, the United States or any state of the United States, may have an action against his or her employer in the circuit court of the county where the jury summons originated or where the discrimination occurred. If the circuit court finds that an employer terminated or threatened to terminate from employment, or decreased the regular compensation of employment of an employee for time the employee was not actually away from his or her employment because the employee served as a juror, the court may shall order the employer to cease and desist from this unlawful practice and order that affirmative relief, including, but not limited to, reinstatement of the employee with or without back pay as will effectuate the purposes of this section to the same employment that the employee held when summoned for jury service.
(b) Nothing in this section shall be construed to require an employer to pay an employee any wages or other compensation for the time the employee is actually away from employment for jury services or to respond to a jury summons.
(c) (e) If the employee prevails in an action under subsection (a) (d) of this section, the employee shall be allowed reasonable attorney's fees as fixed by the court.
(d) (f) Any employer who discriminates against an employee because the employee received or was served with a summons for jury duty, or was absent from work to respond to a summons for jury duty or to serve on any jury in any court of this state, the United States or any state of the United States, is guilty of civil contempt and shall be fined not less than one hundred dollars nor more than five hundred dollars.
(g) An employer with five or fewer full-time employees, or their equivalent, is exempt from the obligation to pay employee wages to employees serving on jury duty set forth in subsection (c) of this section. Notwithstanding this, those employers are encouraged voluntarily to comply with the requirements of subsection (c) of this section. A court shall automatically postpone and reschedule the service of a summoned juror of an employer with five of fewer full-time employees, or their equivalent, if another employee of that employer is summoned to appear during the same period. The postponement does not constitute the excused individual's right to one automatic postponement under the provisions of section ten-a, article one of this chapter.
ARTICLE 4. LENGTHY TRIAL FUND.
§52-4-1. Lengthy trial fund.
(a) The supreme court of appeals shall promulgate rules to establish a lengthy trial fund that shall be used to provide full wage replacement or wage supplementation to jurors who serve on petit juries in civil litigation for which a jury trial has been requested after the tenth day of jury service.
(1) The court rules shall provide for the following:
(A) The selection and appointment of an administrator for the fund;
(B) Procedures for its administration that provide that moneys in the fund shall be used to make wage replacement or wage supplementation as provided in this section to jurors participating on juries in trials where jury service extends eleven days or longer and to recover all the costs of administering the fund, including payments of salaries of the administrator and other necessary personnel;
(C) The accounting, auditing and investment of money in the lengthy trial fund in accordance with state law pertaining to similar funds; and
(D) The inclusion of a report by the supreme court of appeals on the administration of the lengthy trial fund in its annual report on the judicial branch, setting forth the money collected for and disbursed from the fund.
(b) Notwithstanding any other fees payable under the laws of this state, each trial court in the state shall collect from each attorney who files a civil case, unless otherwise exempted under the provisions of this section, a fee of twenty dollars per case to be paid into the lengthy trial fund. A lawyer will be considered to have filed a case at the time the first pleading or other filing on which an individual lawyer's name appears is submitted to the court for filing and opens a new case. All fees shall be forwarded to the administrator of the lengthy trial fund for deposit.
(c) The administrator shall use the fees deposited in the lengthy trial fund to pay supplemental or full wage replacement to jurors whose employers' pay less than full regular wages when the period of jury service reaches the eleventh day and thereafter.
(d) The court may pay replacement or supplemental wages of up to five hundred dollars per day per juror. This wage replacement or supplementation shall be granted in addition to any reimbursements for expenses or other payments a juror may receive in accordance with state law.
(e) Any juror who is serving or has served on a jury that qualifies for payment from the lengthy trial fund, provided the service commenced on or after the effective date of this article, may submit a request for payment from the lengthy trial fund on a form that the administrator provides. Payment shall be limited to the actual amount of wages a juror earns, up to five hundred dollars per day, minus any amount the juror actually receives from the employer during the same time period.
(1) The form shall disclose the juror's regular wages, the amount the employer will pay during the term of jury service starting on the tenth day and thereafter, the amount of replacement or supplemental wages requested, and any other information the administrator determines necessary for proper payment.
(2) The juror also shall be required to submit verification from the employer as to the wage information provided to the administrator, for example, the employee's most recent earnings statement or similar document, prior to initiation of payment from the fund.
(3) If an individual is self-employed or receives compensation other than wages, the individual may provide a sworn affidavit attesting to his or her approximate gross weekly income, together with any other information the administrator may require, in order to verify weekly income.
(f) The following attorneys and causes of action are exempt from payment of the lengthy trial fund fee:
(1) Government attorneys entering appearances in the course of their official duties;
(2) Pro se litigants;
(3) Cases in small claims court or the state equivalent thereof; or
(4) Claims seeking social security disability determinations; individual veterans' compensation or disability determinations; recoupment actions for government backed educational loans or mortgages; child custody and support cases; actions brought in forma pauperis; and any other filings designated by rule that involve minimal use of court resources and that customarily are not afforded the opportunity for a trial by jury.


NOTE: The purpose of this bill is to reduce the burdens of jury service and increase participation in the jury system. It restates the declaration of policy and obligation of citizens to serve on juries, unless excused. It changes civil contempt to misdemeanor penalties for failure to appear for jury duty. It amends the basis for disqualification from jury duty and establishes a procedure for postponement of jury duty, while defining specific excuses from jury service, which include undue or extreme physical or financial hardship. The bill changes the length of service by jurors over a two-year period and provides a misdemeanor penalty instead of civil contempt for failure to perform jury service. It further provides rights of employees summoned for jury duty, relating to receipt of salary, vacation time and other rights. Finally, the bill requires the supreme court of appeals to establish a "lengthy trial fund" to be used for full wage replacement for jurors after the tenth day of a trial.

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

§52-1-10a and Article 4 are new; therefore, strike-throughs and underscoring have been omitted.