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)

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[Introduced February 19, 2002; referred to the Committee on

on the Judiciary.]

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A BILL to amend article three, chapter four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section four-a, relating to conferring upon the president of the Senate and the speaker of the House of Delegates an unconditional right to intervene in certain actions in which a governmental agency is a party defendant; purpose; findings; definitions; and scope of right to intervene in certain court actions.

Be enacted by the Legislature of West Virginia:
That article three, chapter four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section four-a, to read as follows:
ARTICLE 3. COMMITTEE ON GOVERNMENT AND FINANCE.
§4-3-4a. Purpose; findings; definitions; procedure for intervention by the Legislature; sovereign immunity

(a) It is the purpose of this section, under appropriate circumstances set forth in this section, to confer upon the president of the West Virginia Senate and the speaker of the West Virginia House of Delegates, in their official capacities, an unconditional right to intervene in an action in any court of this state in which a government agency is a party defendant.
(b) The Legislature finds that there are numerous actions, suits and proceedings filed against government agencies 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, West Virginia Constitution Article V, Section 1, speech or debate clause, West Virginia Constitution Article VI, Section 17, the political question doctrine, and the doctrine of sovereign immunity, West Virginia Constitution Article VI, Section 35. These protections and others usually are effective in shielding the Legislature from undue influence and interference. But these protections also have the effect of foreclosing direct legislative input into judicial proceedings that may ultimately impair or impede the legislative independence, discretion and judgment that is necessary to protect the interests of the public the Legislature has been elected to serve. In these instances, a court may make findings and conclusions, enter judgment against a government agency, and fashion remedies that the Legislature, as a non-party, has had no opportunity to contest. However, though the Legislature may not have been a party to the action, it falls to the Legislature, after the fact, to enact a means of compliance with the order of the court. As a result, the citizen and taxpayers of the state, an obviously large and undefined group with varied interests, are denied the opportunity to have their elected representatives be heard in the judicial forum. They simply bear the burden of being forced to comply with these decisions that have significant fiscal and legal importance.
(c)(1) For the purposes of this section, "government agency" means:
(A) A constitutional officer, 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; or
(B) A political subdivision of this state or any board, department, commission, district or special district, council or other agency or instrumentality thereof whose liability or potential liability arises from a claim that is covered by property or liability insurance provided by the state board of risk and insurance management of West Virginia pursuant to the provisions of article twelve, chapter twenty-nine of this code.
(2) For the purposes of this section, "action" means a proceeding filed against a governmental agency in a circuit court or the supreme court of appeals. An action does not include a proceeding in or before, or an appeal taken to, an administrative agency, board or commission.
(3) For the purposes of this section, "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 tort or contract by a government agency; or
(E) Declare an act of the Legislature unconstitutional and therefore unenforceable.
(d) When an action is filed against a government agency and the relief demanded, if granted, would result in a judgment, as defined in subdivision (3), subsection (c) of this section, the chief officer of the government agency which is a party in such action shall forthwith give written notice thereof to the president of the Senate and the speaker of the House of Delegates. Upon timely application, the president or speaker, or both, shall be permitted to intervene in the action, but neither the Senate nor the House of Delegates, nor either house of the Legislature, shall become parties to the action through the utilization of the procedure authorized by the provision of this section.
(e) The president and speaker, as intervenors pursuant to the provisions of this section may, without becoming parties, and maintaining all the rights and privileges attendant to the Legislature:
(1) File pleadings;
(2) Conduct discovery;
(3) Present evidence, if evidence is otherwise admissible in the case;
(4) Subpoena witnesses;
(5) Examine and cross-examine witnesses;
(6) File briefs and make argument on the issues in question which relate to a judgment as such is defined in subsection (c) of this section; and
(7) Exercise any other right of a party.
(f) The exercise of authority granted by the provisions of this section shall in no way be interpreted as subjecting the Legislature or any member thereof to any terms of a judgement.
(g) The intervention of the president or speaker pursuant to the provisions of this section shall not constitute a waiver of any constitutional immunity or protection that proscribes or limits actions, suits or proceedings against the Legislature.

NOTE: The purpose of this bill is to authorize legislative intervention in actions involving state agencies where there is a potential for a judgment directing expenditures of state moneys.

§4-3-4a is new; therefore strike-throughs and underlining have been omitted.