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
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
(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
(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
(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
§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,
(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
(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
§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
(b) A person who is not disqualified for jury service under
section eight of this article may be excused from jury service
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
(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
(iii) Suffer physical hardship that would result in illness or
(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
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
(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
(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
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
(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
(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
(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
(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
(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
§52-1-10a and Article 4 are new; therefore, strike-throughs
and underscoring have been omitted.