H. B. 2758
(By Delegates Louisos and Webb)
[Introduced March 26, 1997; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section two, article four, chapter
twenty-nine-a of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; to further amend said
article by adding thereto two new sections, designated
sections three and four, all relating to rules; declaratory
judgment on validity of rule; attorney fees; creating a
cause of action for persons damaged as a result of a rule
declared invalid; burden of proof; creating a cause of
action for persons who have been damaged as a result of the
intentional or grossly negligent application of a rule or
application of a rule that didn't exist.
Be it enacted by the Legislature of West Virginia:
That section two, article four, chapter twenty-nine-a, 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 two new sections, designated
sections three and four, all to read as follows:
ARTICLE 4. DECLARATORY RULINGS AND DECLARATORY JUDGMENTS.
§29A-4-2. Declaratory judgment on validity of rule.
(a) Any person, except the agency promulgating the rule, may
have the validity of any rule determined by instituting an action
for a declaratory judgment in the circuit court of Kanawha
County, West Virginia, when it appears that the rule, or its
threatened application, interferes with or impairs or threatens
to interfere with or impair, the legal rights or privileges of
the plaintiff or plaintiffs. The agency shall be made a party to
the proceeding. The declaratory judgment may be rendered whether
or not the plaintiff or plaintiffs has or have first requested
the agency to pass upon the validity of the rule in question.
(b) The court shall declare the rule invalid if it finds
that the rule violates constitutional provisions or exceeds the
statutory authority or jurisdiction of the agency or was adopted
without compliance with statutory rule-making procedures or is
arbitrary or capricious, or that, in the case of a an emergency
rule adopted pursuant to section five fifteen, article three of
this chapter, action under said section five fifteen was not
justified.
(c) When the invalidity of a rule has been so declared, the
agency shall, within thirty days after such declaratory judgment
has been entered, acquiesce therein and modify or rescind such
the invalidated rule in accord with the requirement of such the
declaratory judgment unless the agency promptly, and in any event
within such a thirty-day period, notifies the plaintiff or
plaintiffs of its intention to apply for an appeal to the supreme
court of appeals from such the declaratory judgment pursuant to
section one, article six of this chapter. In the event such the
agency shall thereafter make timely application for such an
appeal, the acquiescence of the agency in the invalidity of such
rule shall not be required until thirty days after timely
applications for such the appeal have been refused or within
thirty days after the appeal has been dismissed or otherwise
disposed of in the supreme court of appeals by an affirmance of
the judgment invalidating said rule.
(d) Any person who brings a declaratory judgment action
under the provisions of this section and succeeds in having the
rule declared invalid, shall be reimbursed by the agency for his
or her reasonable attorney fees and costs expended in the
prosecution of the declaratory judgment.
§ 29A-4-3. Civil action by person damaged by rule which has been
declared invalid; burden of proof.
(a) A person who alleges that he or she has suffered
monetary damages as a result of a rule that has been declared
invalid under the provisions of section two of this article, may
bring a civil action in a court of competent jurisdiction for
damages against the agency or agencies that adopted the rule,
within one hundred eighty days after the rule has been declared
invalid. Any agency or agencies against whom a monetary judgment
is awarded under this section shall be jointly and severally
liable for such damages assessed against the agency or agencies
regardless of the percentage of fault.
(b) A person alleging the he or she has been damaged as a
result of a rule which has been declared invalid, must show by a
preponderance of the evidence that the rule declared invalid
served no legitimate purpose and was unnecessary and that the
damages were a proximate cause of the application of the invalid
rule.
§29A-4-4. Civil action by person against agency that
intentionally or in a grossly negligent manner
applied a rule or applied a rule that did not
exist.
A person who alleges that he or she has suffered monetary
damages as a result of an agency that intentionally or in a
grossly negligent manner applies a rule or applies a rule that did not exist may bring a civil action in a court of competent
jurisdiction for damages within one hundred eighty days of the
last date damages were incurred as a result of such conduct. Any
agency or agencies against whom a monetary judgment is awarded
under this section shall be jointly and severally liable for the
damages assessed against the agency or agencies regardless of the
percentage of fault.
NOTE: This bill provides for attorney fees and court costs
for persons who successfully challenge and have a rule
invalidated under this article. The bill further creates a civil
cause of action against the agency that adopted the rule which
was later declared invalid or against an agency that
intentionally or in a grossly negligent manner applied a rule or
applied a rule that did not exist.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§§29A-4-3 and 4 are new; therefore, strike-throughs and
underscoring have been omitted.