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.