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Engrossed Version Senate Bill 667 History

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Key: Green = existing Code. Red = new code to be enacted


ENGROSSED

COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 667

(By Senators Tomblin, Mr. President, Wooton,

Craigo, Jackson, Bowman, Plymale, Unger, Edgell,

Minard, Prezioso, Fanning, Helmick, Sharpe,

Anderson, Ross, Mitchell, Rowe, Redd and Minear)

____________

[Originating in the Committee on the Judiciary;

reported February 27, 2002.]

____________


A BILL to amend chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article seventeen; and to amend and reenact section thirty-one, article six, chapter fifty-six of said code, all relating to actions filed against the state; setting forth legislative findings and purpose; defining terms; establishing preliminary procedures prior to institution of an action; requiring service on the attorney general; extending time period to answer complaints; providing notice to the Legislature; limiting types of actions and available relief; authorizing award of court costs and attorney's fees to state agency in certain instances; providing for the construction of this article; prohibiting an award of prejudgment interest against the state; and reducing the amount of post-judgment interest on any judgment against the state.

Be enacted by the Legislature of West Virginia:
That chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article seventeen; and to amend and reenact section thirty-one, article six, chapter fifty-six of said code, all to read as follows:
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.

ARTICLE 17. PROCEDURES FOR CERTAIN ACTIONS AGAINST THE STATE.
§55-17-1. Findings; purpose.

(a) The Legislature finds that there are numerous actions, suits and proceedings filed against state government agencies and officials that obviously have the potential to substantially affect the public interest. Depending upon the outcome, this type of litigation may have significant consequences that can only be addressed by subsequent legislative action. In these actions, the Legislature is not directly involved as a party. The Legislature is not a proper party to these actions because of an extensive structure of constitutional protections established to safeguard the prerogatives of the legislative branch under our governmental system of checks and balances. These constitutional safeguards include, but are not limited to, the separation of powers clause, section one, article V of the constitution of West Virginia; speech or debate clause, section seventeen, article VI of the constitution of West Virginia; the political question doctrine; and the doctrine of sovereign immunity, section thirty-five, article VI of the constitution of West Virginia.
(b) It is the purpose of this article to establish the procedures to be followed in all civil actions filed against state government agencies and officials, other than an action filed in the court of claims, on appeal from an order of an administrative agency, subject to insurance coverage offered by the state board of risk and insurance management or which seeks extraordinary relief.
§55-17-2. Definitions.
For the purposes of this section:
(1) "Action" means a proceeding filed against a governmental agency in a circuit court or in the supreme court of appeals, other than an action filed pursuant to the provisions of chapter fourteen of this code or article twelve, chapter twenty-nine of this code, a petition for review filed pursuant to the provisions of section four, article five, chapter twenty-nine-a of this code, an appeal filed pursuant to the provisions of article six of said chapter or an action for extraordinary relief filed pursuant to the provisions of chapter fifty-three of this code;
(2) "Government agency" means a constitutional officer or other public official, department, division, bureau, board, commission or other agency or instrumentality within the executive branch of state government that has the capacity to sue or be sued;
(3) "Judgment" means a judgment, order or decree of a court which would:
(A) Require or otherwise mandate an expansion of, increase in, or addition to the services, duties or responsibilities of a government agency;
(B) Require or otherwise mandate an increase in the expenditures of a government agency above the level of expenditures approved or authorized before the entry of the proposed judgment;
(C) Require or otherwise mandate the employment or other hiring of, or the contracting with, personnel or other entities by a government agency in addition to the personnel or other entities employed or otherwise hired by, or contracted with or by the government agency;
(D) Require or otherwise mandate payment of a claim based upon a breach of contract by a government agency; or
(E) Declare an act of the Legislature unconstitutional and, therefore, unenforceable.
§55-17-3. Preliminary procedures; service on attorney general; extended time period to answer complaints; notice to the Legislature.

(a) Notwithstanding any provision of law to the contrary, at least thirty days prior to the filing of an action against a government agency, the complaining party or parties must provide the chief officer of the government agency and the attorney general with written notice, by certified mail, return receipt requested, of the alleged claim and the relief desired. Any applicable statute of limitations shall be tolled during the thirty-day period and for thirty days from the date of the returned receipt of the certified mail.
(b) A copy of any complaint filed against a government agency shall be served on the attorney general. Notwithstanding any procedural rule or any provision of this code, when an action is filed against a government agency and the relief demanded would result in a judgment, as defined in section two of this article, the government agency shall be allowed sixty days to file an answer or responsive pleading. Upon receipt of service of the action, the chief officer of the government agency which is named a party to the action shall forthwith give written notice thereof, together with a copy of the complaint filed, to the president of the Senate and the speaker of the House of Delegates.
(c) At least every sixty days during the pendency of the proceeding, the chief officer of the government agency shall deliver a written status report on the action to the president and the speaker. Upon request, the chief officer of the government agency shall furnish the president and speaker with copies of all pleadings filed and discovery produced in the proceeding.
(d) Any chief officer of a government agency who fails to comply with the provisions of
subsection (b) or (c) of this section is guilty of misfeasance.
(e) The requirements for notice and delivery of pleadings and other documents to the president of the Senate or speaker of the House of Delegates pursuant to the provisions of this section do not constitute a waiver of any constitutional immunity or protection that proscribes or limits actions, suits or proceedings against the Legislature or the state of West Virginia.
(f) The exercise of authority granted by the provisions of this section may not be interpreted as subjecting the Legislature or any member thereof to any terms of a judgment
.
§55-17-4. Limiting types of actions and available relief against government agencies; court costs and attorney's fees.

(a) In any action subject to the provisions of this article no government agency may be: (1) Named as a defendant in any class action; (2) ordered to pay punitive damages; or (3) subject to an order of default judgment.
(b) Any plaintiff who files an action against a government agency may be liable for court costs and reasonable attorney's fees if the government agency substantially prevails and the action or the plaintiff's conduct during the litigation of the action was frivolous, unreasonable, without foundation or in bad faith.
§55-17-5. Construction of article.

(a) It the express intent of the Legislature that the provisions of this article be liberally construed to effectuate the public policy set forth in section one of this article.
(b) The provisions of this article may not be construed
to impose any liability upon a state agency from which the agency is otherwise immune.
(c) The provisions of this article apply only to actions as defined in section two of this article.
CHAPTER 56. PLEADING AND PRACTICE.

ARTICLE 6. TRIAL.

§56-6-31. Interest on judgment or decree.

(a) Except where it is otherwise provided by law, every judgment or decree for the payment of money entered by any court of this state shall bear interest from the date thereof, whether it be so stated in the judgment or decree or not: Provided, That if the judgment or decree, or any part thereof, is for special damages, as defined below, or for liquidated damages, the amount of such special or liquidated damages shall bear interest from the date the right to bring the same shall have accrued, as determined by the court. Special damages includes lost wages and income, medical expenses, damages to tangible personal property, and similar out- of-pocket expenditures, as determined by the court. The Except as otherwise provided in subsection (b) of this section, the rate of interest shall be ten dollars upon one hundred dollars per annum, and proportionately for a greater or lesser sum, or for a longer or shorter time, notwithstanding any other provisions of law.
(b) Notwithstanding any other provision of law, no prejudgment interest may be awarded in any action filed against any department, division, bureau, board, commission or agency of the state of West Virginia or against any public officer or official of the state sued in their official capacity, and the rate of interest on any judgment or decree entered in any such action shall be five dollars upon one hundred dollars per annum, and proportionately for a greater or lesser sum, or for a longer or shorter time. The provisions of this subsection apply to causes of action filed on or after the first day of July, two thousand two.
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