COMMITTEE SUBSTITUTE
FOR
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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[Originating in the Committee on the Judiciary;
reported February 27, 2002.]
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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 seventeen; and to
amend and reenact section thirty-one, article six, chapter
fifty-six of said code, all relating to actions filed against
the state; setting forth legislative findings and purpose;
defining terms; establishing preliminary procedures prior to
institution of an action; requiring service on the attorney
general; extending time period to answer complaints; providing
notice to the Legislature; limiting types of actions and
available relief; authorizing award of court costs and
attorney's fees to state agency in certain instances; providing for the construction of this article; prohibiting an
award of prejudgment interest against the state; and reducing
the amount of post-judgment interest on any judgment against
the state.
Be 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; and to amend
and reenact section thirty-one, article six, chapter fifty-six of
said code, all to read as follows:
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.
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 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,
section one, article V of the constitution of West Virginia; speech
or debate clause, section seventeen, article VI of the constitution
of West Virginia; the political question doctrine; and the doctrine
of sovereign immunity, section thirty-five, article VI of the
constitution of West Virginia.
(b) It is the purpose of this article to establish the
procedures to be followed in all civil actions filed against state
government agencies and officials, other than an action filed in
the court of claims, on appeal from an order of an administrative
agency, subject to insurance coverage offered by the state board of
risk and insurance management or which seeks extraordinary relief.
§55-17-2. Definitions.
For the purposes of this section:
(1) "Action" means a proceeding filed against a governmental
agency in a circuit court or in the supreme court of appeals, other
than an action filed pursuant to the provisions of chapter fourteen
of this code or article twelve, chapter twenty-nine of this code,
a petition for review filed pursuant to the provisions of section
four, article five, chapter twenty-nine-a of this code, an appeal
filed pursuant to the provisions of article six of said chapter or
an action for extraordinary relief filed pursuant to the provisions
of chapter fifty-three of this code;
(2) "Government agency" means a constitutional officer or other public official, 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;
extended time period to answer complaints; notice to the
Legislature.
(a) Notwithstanding any provision of law to the contrary, at least thirty days prior to the filing 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
with written notice, by certified mail, return receipt requested,
of the alleged claim and the relief desired. Any applicable
statute of limitations shall be tolled during the thirty-day period
and for thirty days from the date of the returned receipt of the
certified mail.
(b) A copy of any complaint filed against a government agency
shall be served on the attorney general. Notwithstanding any
procedural rule or any provision of this code, when an action is
filed against a government agency and the relief demanded would
result in a judgment, as defined in section two of this article,
the government agency shall be allowed sixty days to file an answer
or responsive pleading. Upon receipt of service of the action, the
chief officer of the government agency which is named a party to
the action shall 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 all pleadings filed and discovery produced in the proceeding.
(d) Any chief officer of a government agency who fails 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. Limiting types of actions and available relief against
government agencies; court costs and attorney's fees.
(a) In any action subject to the provisions of this article no
government agency may be: (1) Named as a defendant in any class
action; (2) ordered to pay punitive damages; or (3) subject to an
order of default judgment.
(b) Any plaintiff who files an action against a government
agency may be liable for court costs and reasonable attorney's fees
if the government agency substantially prevails and the action or
the plaintiff's conduct during the litigation of the action was
frivolous, unreasonable, without foundation or in bad faith.
§55-17-5. Construction of article.
(a) It 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.
(c) The provisions of this article apply only to actions as
defined in section two of this article.
CHAPTER 56. PLEADING AND PRACTICE.
ARTICLE 6. TRIAL.
§56-6-31. Interest on judgment or decree.
(a) Except where it is otherwise provided by law, every
judgment or decree for the payment of money entered by any court of
this state shall bear interest from the date thereof, whether it be
so stated in the judgment or decree or not: Provided, That if the
judgment or decree, or any part thereof, is for special damages, as
defined below, or for liquidated damages, the amount of such
special or liquidated damages shall bear interest from the date the
right to bring the same shall have accrued, as determined by the
court. Special damages includes lost wages and income, medical
expenses, damages to tangible personal property, and similar out-
of-pocket expenditures, as determined by the court. The Except as
otherwise provided in subsection (b) of this section, the rate of interest shall be ten dollars upon one hundred dollars per annum,
and proportionately for a greater or lesser sum, or for a longer or
shorter time, notwithstanding any other provisions of law.
(b) Notwithstanding any other provision of law, no prejudgment
interest may be awarded in any action filed against any department,
division, bureau, board, commission or agency of the state of West
Virginia or against any public officer or official of the state
sued in their official capacity, and the rate of interest on any
judgment or decree entered in any such action shall be five dollars
upon one hundred dollars per annum, and proportionately for a
greater or lesser sum, or for a longer or shorter time. The
provisions of this subsection apply to causes of action filed on or
after the first day of July, two thousand two.
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(NOTE: The purpose of this bill is to establish procedures to
be followed in certain civil actions filed against state officials
or agencies.
§55-17-1 et seq. is new; therefore strike-throughs and
underlining have been omitted.
)