
ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 667
(Senators Tomblin, Mr. President, Wooton,
Craigo, Jackson, Bowman, Plymale, Unger, Edgell,
Minard, Prezioso, Fanning, Helmick, Sharpe,
Anderson, Ross, Mitchell, Rowe, Redd and Minear, original sponsors)
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[Passed March 9, 2002; to take effect July 1, 2002.]
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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
.
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 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
is considered to be provided on the date of mailing of
the notice by certified mail, return receipt requested
.
If the
written notice is provided to the chief officer of the government agency as required by subdivision (1) of this subsection, any
applicable statute of limitations is tolled for thirty days from
the date the notice is provided and, if received by the government
agency
as evidenced by the return receipt of the certified mail,
for thirty days from the date of the returned receipt.
(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.