AN ACT 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, relating to civil actions filed against state agencies; setting forth legislative findings and purpose; defining terms; establishing preliminary procedures prior to institution of an action; requiring service on the attorney general; providing notice of claim and relief requested to agency and attorney general and exceptions; tolling of statute of limitations; providing notice to the Legislature; providing for acts of misfeasance; extending time period to answer complaints; limiting available relief; and providing for liberal construction of provisions .

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, to read as follows:

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 may 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. Government agencies and their officials require more notice of these actions and time to respond to them and the Legislature requires more timely information regarding these actions, all in order to protect the public interest. The Legislature further finds that protection of the public interest is best served by clarifying that no government agency may be subject to awards of punitive damages in any judicial proceeding.
(b) It is the purpose of this article to establish procedures to be followed in certain civil actions filed against state government agencies and their officials.
§55-17-2. Definitions.
For the purposes of this section:
(1) "Action" means a proceeding instituted against a governmental agency in a circuit court or in the supreme court of appeals, except actions instituted pursuant to statutory provisions that authorize a specific procedure for appeal or similar method of obtaining relief from the ruling of an administrative agency and actions instituted to appeal or otherwise seek relief from a criminal conviction, including, but not limited to, actions to obtain habeas corpus relief.
(2) "Government agency" means a constitutional officer or other public official named as a defendant or respondent in his or her official capacity, or a 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; notice to the Legislature.

(a)(1) Notwithstanding any provision of law to the contrary, at least thirty days prior to the institution 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 written notice, by certified mail, return receipt requested, of the alleged claim and the relief desired. Upon receipt, the chief officer of the government agency shall forthwith forward a copy of the notice to the president of the Senate and the speaker of the House of Delegates. The provisions of this subdivision do not apply in actions seeking injunctive relief where the court finds that irreparable harm would have occurred if the institution of the action was delayed by the provisions of this subsection.
(2) The written notice to the chief officer of the government agency and the attorney general required by subdivision (1) of this subsection

(b) A copy of any complaint filed in an action as defined in section two of this article shall be served on the attorney general. Notwithstanding any procedural rule or any provision of this code to the contrary, in an action instituted against a government agency that seeks a judgment, as defined in section two of this article, the chief officer of the government agency which is named a party to the action shall, upon receipt of service, 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 pleadings filed and discovery produced in the proceeding.
(d) The chief officer of a government agency who fails without good cause 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. Procedures pending action.
Notwithstanding any other provisions of law to the contrary:
(1) A government agency shall be allowed sixty days to serve an answer to a complaint or petition for which a summons has been issued and served upon a government agency;
(2) Judgment by default may not be entered against a government agency in an action as defined in section two of this article unless the court, after a hearing on a motion for default judgment, finds that the government agency clearly intends to fail to appear, plead or otherwise defend in the action; and
(3) No government agency may be ordered to pay punitive damages in any action.

§55-17-5. Construction of article.

(a) It is 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.