H. B. 2356
(By Mr. Speaker, Mr. Kiss)
[Introduced January 16, 2003; referred to
the Committee on the Judiciary.]
A BILL to amend and reenact section three, article seventeen,
chapter fifty-five of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to reports and
notices to the Legislature regarding actions against
Be it enacted by the Legislature of West Virginia:
That section three, article seventeen, chapter fifty-five of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted, to read as follows:
§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.
(g) The notices and reports required in subsections (b) and
(c) are confidential, privileged and are exempt from the provisions of chapter twenty-nine-b of this code and from civil discovery.
NOTE: The purpose of this bill is make reports and notices to
the Legislature concerning lawsuits against government agencies
exempt from civil discovery and from the Freedom of Information
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would