H. B. 2941


(By Delegate Johnson (By Request))
[Introduced February 26, 1999; referred to the
Committee on the Judiciary.]




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 two-b, relating to the "Stranded Rights Act"; setting forth purposes and intent; providing it is prohibited to undermine or nullify statutory commands or purposes; providing a legal presumption that all statutes are constitutional; foreclosing the assertion of equitable defenses in claims for clear and mandatory statutory remedies or entitlements; providing that statutory remedies or entitlements are nonwaivable and that no special form of demand may be required to assert same; and, requiring the publication of findings of fact and conclusions of law in all legal proceedings involving persons asserting claims for statutory remedies or entitlements.

Be it 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 two-b, to read as follows:
ARTICLE 2B. STRANDED RIGHTS ACT OF 1999.

§55-2B-1. Purposes and intent.

The purpose of this article is to insure that rights granted by statute are not undermined or nullified by administrative or court procedures and to provide parity between opposing litigants in any administrative or court proceeding
. This article is also intended to mandate the neutrality of all administrative, magistrate, circuit and supreme court judges in this state and to require that legal determinations are properly and adequately explained to the parties while insuring that proper relief is granted to a prevailing party. In furtherance of these goals, this act shall, henceforth, be known and referred to as the "Stranded Rights Act of 1999."
§55-2B-2. Prohibition of nullification of statutory commands; presumption that all statutes are constitutional.
(a) No administrative, magistrate, circuit or supreme court judge or justice sitting in this state may nullify a statutory command or purpose that is plainly stated and upon whose interpretation men and women of average intelligence and qualities of reason cannot disagree.

(b) All statutory provisions under the laws of this state are presumed constitutional. No agency or other entity of government may avoid compliance with any statute on any basis, including the belief that such statute is unconstitutional, unless such unconstitutionality is so determined by a court of record and of competent jurisdiction existing under the laws of this state.
§55-2B-3. Hearing and grievance evaluators required to be neutral.
Every hearing or grievance evaluator exercising the authority to act as an arbiter, hearing examiner, administrative law judge or mediator as the result of being vested with authority under any provision of law in this state is required to disclose to the parties any matter which may be perceived by a person of average intelligence and qualities of reason as presenting a conflict of interest or a potential conflict of interest, even if in the mind of the evaluator no such conflict exists: Provided, That the disclosure shall be made prior to the inception of any formal hearing unless the conflict or potential conflict is discovered after the inception of formal proceedings. If a conflict or potential conflict is not discovered until after the inception of the proceeding, then the disclosure shall be made immediately upon discovering the existence of same.
§55-2B-4. Equitable defenses foreclosed in matters involving claims based on clear and mandatory statutory right; absolute entitlement to statutory remedies; no special form of demand may be required to assert a statutory remedy or entitlement.
No equitable or other defense founded in English or other common law may be successfully asserted in any proceeding in which a person claims a clear, unambiguous and mandatory statutory entitlement of which men and women of average intelligence and
qualities of reason cannot but agree exists under the laws of this state.
In the event any statute under the laws of this state provide a clear and mandatory remedy or entitlement, no defense may be asserted against such remedy or entitlement in any action or administrative or judicial proceeding unless such defense is provided for under the statute providing for the remedy or entitlement. Any such remedy or entitlement is nonwaivable and no special form of demand may be required to assert its satisfaction.
§55-2B-5. Findings of fact and conclusions of law required.
In all administrative and judicial proceedings it shall be required that findings of fact and conclusions of law are made and the failure to state a legal opinion or order containing a legal opinion, including findings and conclusions, precludes a final judgment from being entered against a party unless the aggrieved party fails to make a written objection with the judge, examiner, arbiter, mediator or other person rendering the opinion within ten days from the initial publication of the opinion or order.




NOTE: The purpose of this bill is to require that statutory remedies and entitlements are not undermined by administrative, magistrate court, circuit court, supreme court or other judges.

This article is new; therefore, strike-throughs and underscoring have been omitted.