ARTICLE 2A. COMPENSATION AWARDS TO VICTIMS OF CRIMES
§14-2A-1. Short title
The act heretofore created by this article and known and cited as the "West Virginia
Crime Reparation Act of 1981" shall henceforth be known and cited as the "West
Virginia Crime Victims Compensation Act." Any and all funds existing under the West
Virginia crime reparation act of 1981 shall continue for the purposes set forth in this
article, notwithstanding the amendments to the name of the act or a redesignation of
the special revenue fund in the state treasury as herein provided.
§14-2A-2. Legislative findings; purpose and intent
The Legislature finds and declares that a primary purpose of government is to
provide for the safety of citizens and the inviolability of their property. To the extent
that innocent citizens are victims of crime, particularly violent crime, and are without
adequate redress for injury to their person or property, this primary purpose of
government is defeated. The people of West Virginia are demonstrably peaceful, and,
in comparison to the citizens of other states, suffer a lower crime rate. In establishing
the West Virginia crime reparation act of 1981, the Legislature stated its findings that
the provision of governmental services to prevent crime is not wholly effective and
expressed its intent to establish a system of compensation for the victims of crime
which would provide a partial remedy for the failure of the state to fully achieve this
primary purpose of government.
The Legislature now finds that the system of compensation established by the act
as an experimental effort by the Legislature of this state on behalf of its people, after
having been reviewed and perfected in its initial stages, should be continued and
retained in the legislative branch of government as an expression of a moral obligation
of the state to provide partial compensation to the innocent victims of crime for injury
suffered to their person or property.
§14-2A-3. Definitions
As used in this article, the term:
(a) "Claimant" means any of the following persons, whether residents or
nonresidents of this state, who claim an award of compensation under this article:
(1) A victim: Provided, That the term victim does not include a nonresident of this state where the criminally injurious act did not occur in this state;
(2) A dependent, spouse or minor child of a deceased victim; or in the event that
the deceased victim is a minor, the parents, legal guardians and siblings of the victim;
(3) A third person other than a collateral source who legally assumes or voluntarily pays the obligations of a victim, or of a dependent of a victim, which obligations are incurred as a result of the criminally injurious conduct that is the subject of the claim; and
(4) A person who is authorized to act on behalf of a victim, dependent or a third
person who is not a collateral source; and, in the event that the victim, dependent or
third person who is not a collateral source is a minor or other legally incompetent
person, the duly qualified fiduciary of the minor.
(b) "Collateral source" means a source of benefits or advantages for economic loss otherwise compensable that the victim or claimant has received, or that is readily available to him, from any of the following sources:
(1) The offender, including any restitution received from the offender pursuant to an order by a court of law sentencing the offender or placing him on probation following a conviction in a criminal case arising from the criminally injurious act for which a claim for compensation is made;
(2) The government of the United States or any of its agencies, a state or any of its political subdivisions, or an instrumentality of two or more states;
(3) Social security, medicare and medicaid;
(4) State-required, temporary, nonoccupational disability insurance; other disability
insurance;
(5) Workers' compensation;
(6) Wage continuation programs of any employer;
(7) Proceeds of a contract of insurance payable to the victim or claimant for lossthat was sustained because of the criminally injurious conduct;
(8) A contract providing prepaid hospital and other health care services or benefits for disability; and
(9) That portion of the proceeds of all contracts of insurance payable to the claimant on account of the death of the victim which exceeds twenty-five thousand dollars.
(c) "Criminally injurious conduct" means conduct that occurs or is attempted in this state or in any state not having a victim compensation program which by its nature poses a substantial threat of personal injury or death, and is punishable by fine or engaging in the conduct lacked capacity to commit the crime under the laws of this state. Criminally injurious conduct also includes an act of terrorism, as defined in 18 U.S.C. ß2331, committed outside of the United States against a resident of this state. Criminally injurious conduct does not include conduct arising out of the ownership, maintenance or use of a motor vehicle, except when the person engaging in the conduct intended to cause personal injury or death, or except when the person engaging in the conduct committed negligent homicide, driving under the influence of alcohol, controlled substances or drugs, or reckless driving. (Emphasis supplied.)
(d) "Dependent" means an individual who received over half of his or her support from the victim. For the purpose of determining whether an individual received over half of his or her support from the victim, there shall be taken into account the amount of support received from the victim as compared to the entire amount of support which the individual received from all sources, including support which the individual himself or herself supplied. The term "support" includes, but is not limited to, food, shelter, clothing, medical and dental care and education. The term "dependent" includes a child of the victim born after his or her death.
(e) "Economic loss" means economic detriment consisting only of allowable expense, work loss and replacement services loss. If criminally injurious conduct causes death, economic loss includes a dependent's economic loss and a dependent's replacement services loss. Noneconomic detriment is not economic loss; however, economic loss may be caused by pain and suffering or physical impairment.
(f) "Allowable expense" means reasonable charges incurred or to be incurred for reasonably needed products, services and accommodations, including those for medical care, prosthetic devices, eye glasses, dentures, rehabilitation and other remedial treatment and care.
Allowable expense includes a total charge not in excess of four thousand dollars for expenses in any way related to funeral, cremation and burial. It does not include that portion of a charge for a room in a hospital, clinic, convalescent home, nursing home or any other institution engaged in providing nursing care and related services in excess of a reasonable and customary charge for semiprivate accommodations, unless accommodations other than semiprivate accommodations are medically required.
(g) "Work loss" means loss of income from work that the injured person would have performed if he or she had not been injured and expenses reasonably incurred or to be incurred by him or her to obtain services in lieu of those he or she would have performed for income, reduced by any income from substitute work actually performed or to be performed by him or her, or by income he or she would have earned in available appropriate substitute work that he or she was capable of performing but unreasonably failed to undertake.
(h) "Replacement services loss" means expenses reasonably incurred or to be incurred in obtaining ordinary and necessary services in lieu of those the injured person would have performed, not for income but for the benefit of himself or herself or his or her family, if he or she had not been injured.
(i) "Dependent's economic loss" means loss after a victim's death of contributions or things of economic value to his or her dependents, not including services they would have received from the victim if he or she had not suffered the fatal injury, less expenses of the dependents avoided by reason of the victim's death.
(j) "Dependent's replacement service loss" means loss reasonably incurred or to be incurred by dependents after a victim's death in obtaining ordinary and necessary services in lieu of those the victim would have performed for their benefit if he or she had not suffered the fatal injury, less expenses of the dependents avoided by reason of the victim's death and not subtracted in calculating dependent's economic loss.
(k) "Victim" means a person who suffers personal injury or death as a result of any one of the following: (1) Criminally injurious conduct; (2) the good faith effort of the person to prevent criminally injurious conduct; or (3) the good faith effort of the person to apprehend a person that the injured person has observed engaging in criminally injurious conduct, or who the injured person has reasonable cause to believe has engaged in criminally injurious conduct immediately prior to the attempted apprehension.
(l) "Contributory misconduct" means any conduct of the claimant, or of the victim through whom the claimant claims an award, that is unlawful or intentionally tortious and that, without regard to the conduct's proximity in time or space to the criminally injurious conduct has causal relationship to the criminally injurious conduct that is the basis of the claim and shall also include the voluntary intoxication of the claimant, either by the consumption of alcohol or the use of any controlled substance when the intoxication has a causal connection or relationship to the injury sustained. The voluntary intoxication of a victim is not a defense against the estate of a deceased victim.
§14-2A-4. Creation of crime victims compensation fund
(a) Every person within the state who is convicted of or pleads guilty to a
misdemeanor offense, other than a traffic offense that is not a moving violation, in any
magistrate court or circuit court, shall pay the sum of ten dollars as costs in the case, in
addition to any other court costs that the court is required by law to impose upon the
convicted person. Every person within the state who is convicted of or pleads guilty to
a misdemeanor offense, other than a traffic offense that is not a moving violation, in
any municipal court, shall pay the sum of eight dollars as costs in the case, in addition
to any other court costs that the court is required by law to impose upon the convicted
person. In addition to any other costs previously specified, every person within the
state who is convicted of or pleads guilty to a violation of section two, article five,
chapter seventeen-c of this code, shall pay a fee in the amount of twenty percent of any
fine imposed under said section. This shall be in addition to any other court costs
required by this section or which may be required by law.
(b) The clerk of the circuit court, magistrate court or municipal court wherein the
additional costs are imposed under the provisions of subsection (a) of this section
shall, on or before the last day of each month, transmit all costs received under this
article to the state treasurer for deposit in the state treasury to the credit of a special
revenue fund to be known as the "Crime Victims Compensation Fund", which is hereby
created. All moneys heretofore collected and received under the prior enactment or
reenactments of this article and deposited or to be deposited in the "Crime Victims
Reparation Fund" are hereby transferred to the crime victims compensation fund, and
the treasurer shall deposit the moneys in the state treasury. All moneys collected and
received under this article and paid into the state treasury and credited to the crime
victims compensation fund in the manner prescribed in section two, article two, chapter
twelve of this code, shall be kept and maintained for the specific purposes of this
article, and shall not be treated by the auditor and treasurer as part of the general
revenue of the state.
(c) Moneys in the crime victims compensation fund shall be available for the
payment of the costs of administration of this article in accordance with the budget of
the court approved therefor: Provided, That the services of the office of the attorney
general, as may be required or authorized by any of the provisions of this article, shall
be rendered without charge to the fund.
(d) Any moneys in the crime victims compensation fund may be deposited in the
West Virginia consolidated investment fund with the West Virginia state board of
investments as established in article one of chapter twelve of this code, with the
interest income a proper credit to the crimes victims compensation fund.
§14-2A-5. Jurisdiction
Any judge of the court of claims individually, or the court of claims en banc, or any
court of claims commissioner appointed pursuant to section six of this article, shall
have jurisdiction to approve awards of compensation arising from criminally injurious
conduct, in accordance with the provisions of this article, if satisfied by a
preponderance of the evidence that the requirements for an award of compensation
have been met.
ߧ14-2A-6. Appointment and compensation of commissioners and judges serving under this article
(a) The court of claims, with the approval of the president of the Senate and the
speaker of the House of Delegates, may appoint court of claims commissioners to hear
claims for awards of compensation and to approve awards of compensation pursuant to
the provisions of this article. Each commissioner shall serve at the pleasure of the court
of claims and under the supervision of the judges of the court of claims.
(b) The court of claims shall fix the compensation of the court of claims
commissioners in an amount not exceeding the compensation for judges of the court of
claims. Compensation of judges and commissioners for services performed under this
article, and actual expenses incurred in the performance of duties as judges and
commissioners under this article shall be paid out of the crime victims compensation
fund.
(c) The limitation period of one hundred days in section eight, article two of this
chapter pertaining to time served by the judges of the court of claims shall not apply to
the provisions of this article.
§14-2A-7. Qualifications of commissioners
Each commissioner appointed by the court of claims shall be an attorney-at-law,
licensed to practice in this state, and shall have been so licensed to practice law for a
period of not less than three years prior to his appointment as commissioner. A
commissioner shall not be an officer or an employee of any branch of state
government, except in his capacity as commissioner of the court. A commissioner shall
not hear or participate in the consideration of any claim in which he is interested
personally, either directly or indirectly. When practicable, the commissioners should be
selected from different congressional districts and be geographically located, with
reference to their counties of residence, to facilitate the appearance of claimants and
witnesses at hearings held pursuant to this article.
§14-2A-8. Commissioners' oath of office
Each commissioner shall, before entering upon the duties of his office, take and
subscribe to the oath prescribed by section five, article four of the constitution of the
state. The oath shall be filed with the clerk.
§14-2A-9. Claim investigators; compensation and expenses; paralegals and support staff
The court of claims is hereby authorized to hire not more than two claim investigators
to be employed within the office of the clerk of the court of claims, who shall carry out
the functions and duties set forth in section twelve of this article. Claim investigators
shall serve at the pleasure of the court of claims and under the administrative
supervision of the clerk of the court of claims. The compensation of claim investigators
shall be fixed by the court, and such compensation, together with travel, clerical and
other expenses of the clerk of the court of claims relating to a claim investigator
carrying out his duties under this article, including the cost of obtaining reports required
by the investigator in investigating a claim, shall be payable from the crime victims
compensation fund as appropriated for such purpose by the Legislature.
The court of claims is hereby authorized to hire as support staff such paralegal or
paralegals and secretary or secretaries to be employed within the office of the clerk of
the court of claims, necessary to carry out the functions and duties of this article. Such
support staff shall serve at the will and pleasure of the court of claims and under the
administrative supervision of the clerk of the court of claims.
§14-2A-10. Filing of application for compensation award; contents
(a) A claim for an award of compensation shall be commenced by filing an
application for an award of compensation with the clerk of the court of claims. The
application shall be in a form prescribed by the clerk of the court of claims and shall
contain the information specified in subdivisions (1) through (6) of this subsection and,
to the extent possible, the information in subdivisions (7) through (10) of this
subsection:
(1) The name and address of the victim of the criminally injurious conduct, the name and address of the claimant and the relationship of the claimant to the victim;
(2) The nature of the criminally injurious conduct that is the basis for the claim
and the date on which the conduct occurred;
(3) The law-enforcement agency or officer to whom the criminally injurious
conduct was reported and the date on which it was reported;
(4) Whether the claimant is the spouse, parent, child, brother or sister of the
offender, or is similarly related to an accomplice of the offender who committed the
criminally injurious conduct;
(5) A release authorizing the court of claims, the court of claims
commissioners and the claim investigator to obtain any report, document or information
that relates to the determination of the claim for an award of compensation;
(6) If the victim is deceased, the name and address of each dependent of the
victim and the extent to which each is dependent upon the victim for care and support;
(7) The nature and extent of the injuries that the victim sustained from the
criminally injurious conduct for which compensation is sought, the name and address of
any person who gave medical treatment to the victim for the injuries, the name and
address of any hospital or similar institution where the victim received medical
treatment for the injuries, and whether the victim died as a result of the injuries;
(8) The total amount of the economic loss that the victim, a dependent or the
claimant sustained or will sustain as a result of the criminally injurious conduct, without
regard to the financial limitation set forth in subsection (g), section fourteen of this
article;
(9) The amount of benefits or advantages that the victim, a dependent or
other claimant has received or is entitled to receive from any collateral source for
economic loss that resulted from the criminally injurious conduct, and the name of each
collateral source;
(10) Any additional relevant information that the court of claims may require.
The court of claims may require the claimant to submit, with the application, materials
to substantiate the facts that are stated in the application.
(b) All applications for an award of compensation shall be filed within two
years after the occurrence of the criminally injurious conduct that is the basis of the
application. Any application so filed which contains the information specified in
subdivisions (1) through (6), subsection (a) of this section may not be excluded from
consideration on the basis of incomplete information specified in subdivisions (7)
through (10) of said subsection if such information is completed after reasonable
assistance in the completion thereof is provided under procedures established by the
court of claims.
(c) A person who knowingly and willfully presents or attempts to present a
false or fraudulent application, or who knowingly and willfully participates, or assists in
the preparation or presentation of a false or fraudulent application, shall be guilty of a
misdemeanor. A person convicted, in a court of competent jurisdiction, of a violation of
this section shall be fined not more than one thousand dollars or imprisoned for not
more than one year, or both, in the discretion of such court. If the convicted person is a
state officer or employee, he shall, in addition, forfeit his office or position of
employment, as the case may be.
§14-2A-11. Procedure for filing of application
The clerk of the court of claims shall establish a procedure for the filing,
recording and processing of applications for an award of compensation.
§14-2A-12. Investigation and recommendations by claim investigator
(a) The clerk of the court of claims shall transmit a copy of the application to
the claim investigator within seven days after the filing of the application.
(b) The claim investigator, upon receipt of an application for an award of
compensation from the clerk of the court of claims, shall investigate the claim. After completing the investigation, the claim investigator shall makea written finding of fact and recommendation concerning an award of compensation. He shall file with the clerk the
finding of fact and recommendation and all information or documents that he used in
his investigation: Provided, That the claim investigator shall not file information or
documents which have been the subject of a protective order entered under the
provisions of subsection (c) of this section.
(c) The claim investigator, while investigating the claim, may require the
claimant to supplement the application for an award of compensation with any further
information or documentary materials, including any medical report readily available,
which may lead to any relevant facts aiding in the determination of whether, and the
extent to which, a claimant qualifies for an award of compensation.
The claim investigator, while investigating the claim, may also require
law-enforcement officers and prosecuting attorneys employed by the state or any
political subdivision thereof, to provide him with reports, information, witness
statements or other data gathered in the investigation of the criminally injurious conduct
that is the basis of any claim to enable him to determine whether, and the extent to
which, a claimant qualifies for an award of compensation. The prosecuting attorney and
any officer or employee of the prosecuting attorney or of the law-enforcement agency
shall be immune from any civil liability that might otherwise be incurred as the result of
providing such reports, information, witness statements or other data relating to the
criminally injurious conduct to the claim investigator.
Upon motion of any party, court or agency from whom such reports,
information, witness statements or other data is sought, and for good cause shown, the
court may make any order which justice requires to protect a witness or other person,
including, but not limited to, the following: (1) That the reports, information, witness
statements or other data not be made available; (2) that the reports, information,
witness statements or other data may be made available only on specified terms and
conditions, including a designation of time and place; (3) that the reports, information,
witness statements or other data be made available only by a different method than
that selected by the claim investigator; (4) that certain matters not be inquired into, or
that the scope of the claim investigator's request be limited to certain matters; (5) that
the reports, information, witness statements or other data be examined only by certain
persons designated by the court; (6) that the reports, information, witness statements or
other data, after being sealed, be opened only by order of the court; (7) that
confidential information or the identity of confidential witnesses or informers not be
disclosed, or disclosed only in a designated manner.
However, in any case wherein the claim investigator has reason to believe
that his investigation may interfere with or jeopardize the investigation of a crime by
law-enforcement officers, or the prosecution of a case by prosecuting attorneys, he
shall apply to the court of claims, or a judge thereof, for an order granting leave to
discontinue his investigation for a reasonable time in order to avoid such interference
or jeopardization. When it appears to the satisfaction of the court, or judge, upon
application by the claim investigator or in its own discretion, that the investigation of a
case by the claim investigator will interfere with or jeopardize the investigation or
prosecution of a crime, the court, or judge, shall issue an order granting the claim
investigator leave to discontinue his investigation for such time as the court, or judge,
deems reasonable to avoid such interference or jeopardization.
(d) The finding of fact that is issued by the claim investigator pursuant to
subsection (b) of this section shall contain the following:
(1) Whether the criminally injurious conduct that is the basis for the
application did occur, the date on which the conduct occurred and the exact nature of
the conduct;
(2) If the criminally injurious conduct was reported to a law-enforcement
officer or agency, the date on which the conduct was reported and the name of the
person who reported the conduct; or, the reasons why the conduct was not reported to
a law-enforcement officer or agency; or, the reasons why the conduct was not reported
to a law-enforcement officer or agency within seventy-two hours after the conduct
occurred;
(3) The exact nature of the injuries that the victim sustained as a result of the
criminally injurious conduct;
(4) If the claim investigator is recommending that an award be made, a
specific itemization of the economic loss that was sustained by the victim, the claimant
or a dependent as a result of the criminally injurious conduct;
(5) If the claim investigator is recommending that an award be made, a
specific itemization of any benefits or advantages that the victim, the claimant or a
dependent has received or is entitled to receive from any collateral source for
economic loss that resulted from the conduct;
(6) Whether the claimant is the spouse, parent, child, brother or sister of the
offender, or is similarly related to an accomplice of the offender who committed the
criminally injurious conduct;
(7) Any information which might be a basis for a reasonable reduction or
denial of a claim because of contributory misconduct of the claimant or of a victim
through whom he or she claims;
(8) Any additional information that the claim investigator deems to be relevant
to the evaluation of the claim.
(e) The recommendation that is issued by the claim investigator pursuant to
subsection (b) of this section shall contain the following:
(1) Whether an award of compensation should be made to the claimant and the amount of the award;
(2) If the claim investigator recommends that an award not be made to the
claimant, the reason for his decision.
(f) The claim investigator shall file his finding of fact and recommendation with
the clerk within six months after the filing of the application: Provided, That where
there is active criminal investigation or prosecution of the person or persons alleged to
have committed the criminally injurious conduct which is the basis for the claimant's
claim, the claim investigator shall file his finding of fact and recommendation within six
months after the first of any final convictions or other final determinations as to
innocence or guilt, or any other final disposition of criminal proceedings. In any case,
an additional time period may be provided by order of any
court of claims judge or commissioner upon good cause shown.
§14-2A-13. Notice to claimant of claim investigator's recommendation; evaluation of claim by judge or commissioner
(a) The clerk of the court of claims, upon receipt of the claim investigator's
finding of fact and recommendation, shall forward a copy of the finding of fact and
recommendation to the claimant with a notice informing the claimant that any response,
in the form of objections or comments directed to the finding of fact and
recommendation, must be filed with the clerk within thirty days of the date of the notice.
After the expiration of such thirty-day period, the clerk shall assign the claim to a judge
or commissioner of the court.
(b) The judge or commissioner to whom the claim is assigned shall review the
finding of fact and recommendation and any response submitted by the claimant and, if
deemed appropriate, may request the claim investigator to comment in writing on the
claimant's response. The judge or commissioner shall, within forty-five days after
assignment by the clerk, evaluate the claim without a hearing and either deny the claim
or approve an award of compensation to the claimant.
§14-2A-14. Grounds for denial of claim or reduction of awards; maximum awards
(a) Except as provided in subsection (b), section ten of this article, the judge or
commissioner may not approve an award of compensation to a claimant who did not file
his or her application for an award of compensation within two years after the date of
the occurrence of the criminally injurious conduct that caused the injury or death for
which he or she is seeking an award of compensation.
(b) The judge or commissioner may not approve an award of compensation if the
criminally injurious conduct upon which the claim is based was not reported to a
law-enforcement officer or agency within seventy-two hours after the occurrence of the
conduct, unless it is determined that good cause existed for the failure to report the
conduct within the seventy-two hour period.
(c) The judge or commissioner may not approve an award of compensation to a
claimant who is the offender or an accomplice of the offender who committed the
criminally injurious conduct, nor to any claimant if the award would unjustly benefit the
offender or his or her accomplice.
(d) A judge or commissioner, upon a finding that the claimant or victim has not fully
cooperated with appropriate law-enforcement agencies, or the claim investigator, may
deny a claim, reduce an award of compensation, or reconsider a claim already
approved.
(e) A judge or commissioner may not approve an award of compensation if the injury
occurred while the victim was confined in any state, county or regional jail, prison,
private prison or correctional facility.
(f) After reaching a decision to approve an award of compensation, but prior to
announcing the approval, the judge or commissioner shall require the claimant to
submit current information as to collateral sources on forms prescribed by the clerk of the court of claims. The judge or commissioner shall reduce an award of compensation or deny a claim for an award of compensation that is otherwise payable to a claimant to the extent that the economic loss upon which the claim is based is or will be recouped from other persons, including collateral sources, or if the reduction or denial is determined to be
reasonable because of the contributory misconduct of the claimant or of a victim
through whom he or she claims. If an award is reduced or a claim is denied because of
the expected recoupment of all or part of the economic loss of the claimant from a
collateral source, the amount of the award or the denial of the claim shall be
conditioned upon the claimant's economic loss being recouped by the collateral source:
Provided, That if it is thereafter determined that the claimant will not receive all or part
of the expected recoupment, the claim shall be reopened and an award shall be
approved in an amount equal to the amount of expected recoupment that it is
determined the claimant will not receive from the collateral source, subject to the
limitation set forth in subsection (g) of this section.
(g) Except in the case of death, compensation payable to a victim and to all other
claimants sustaining economic loss because of injury to that victim may not exceed
twenty-five thousand dollars in the aggregate. Compensation payable to all claimants
because of the death of the victim may not exceed thirty-five thousand dollars in the
aggregate.
(h) If an award of compensation of five thousand dollars or more is made to a minor,
a guardian shall be appointed pursuant to the provisions of article ten, chapter
forty-four of this code to manage the minor's estate.
§14-2A-15. Hearings
(a) If either the claim investigator or the claimant disagrees with the approval
of an award or the denial of a claim in the summary manner set forth in the preceding
sections of this article, the claim investigator or the claimant, or both, shall file with the
clerk a request for hearing. Such request shall be filed within twenty-one days after
notification by the judge or commissioner of his decision.
(b) Upon receipt of a request for hearing, the clerk shall place the claim upon
the regular docket of the court for hearing, shall advise the attorney general and the
claimant of the receipt of the request and docketing of the claim, and shall request the
attorney general to commence negotiations with the claimant.
(c) During the period of negotiations and pending hearing, the attorney
general, shall, if possible, reach an agreement with the claimant regarding the facts
upon which the claim is based so as to avoid the necessity for the introduction of
evidence at the hearing. If the parties are unable to agree upon the facts, an attempt
shall be made to stipulate the questions of fact in issue.
(d) The hearing held in accordance with this section shall be before a single
judge or commissioner to whom the claim has not been previously assigned. Hearings
before a judge or commissioner may, in the discretion of such hearing officer, be held
at such locations throughout the state as will facilitate the appearance of the claimant
and witnesses.
(e) The hearing shall be conducted so as to disclose all material facts and
issues. The judge or commissioner may examine or cross-examine witnesses. The
judge and commissioner may call witnesses or require evidence not produced by the
parties; may stipulate the questions to be argued by the parties; and may continue the
hearing until some subsequent time to permit a more complete presentation of the
claim.
(f) After the close of the hearing the judge or commissioner shall consider the
claim and shall conclude his determination, if possible, within thirty days.
(g) The court shall adopt and may from time to time amend rules of procedure
to govern proceedings before the court in accordance with the provisions of this article.
The rules shall be designed to assure a simple, expeditious and inexpensive
consideration of claims. The rules shall permit a claimant to appear in his own behalf
or be represented by counsel and provide for interests of the state to be represented by
the attorney general in any hearing under this section at no additional cost to the fund
or the state.
Under its rules, the court shall not be bound by the usual common law or
statutory rules of evidence. The court may accept and weigh, in accordance with its
evidential value, any information that will assist the court in determining the factual
basis of a claim.
§14-2A-16. Evidence
(a) There is no privilege, except the privilege arising from the attorney-client
relationship, as to communications or records that are relevant to the physical, mental
or emotional condition of the claimant or victim in a proceeding under this article in
which that condition is an element.
(b) If the mental, physical or emotional condition of a victim or claimant is
material to a claim for an award of compensation, the court, judge or commissioner may
order the victim or claimant to submit to a mental or physical examination by a
physician or psychologist, and may order an autopsy of a deceased victim. The order
may be made for good cause shown and upon notice to the person to be examined and
to the claimant and the claim investigator. The order shall specify the time, place,
manner, conditions and scope of the examination or autopsy and the person by whom it
is to be made, and shall require the person who performs the examination or autopsy to
file with the clerk of the court of claims a detailed written report of the examination or
autopsy. The report shall set out the findings, including the results of all tests made,
diagnosis, prognosis and other conclusions and reports of earlier examinations of the
same conditions. On request of the person examined, the clerk of the court of claims
shall furnish him a copy of the report. If the victim is deceased, the clerk of the court of
claims, on request, shall furnish the claimant a copy of the report.
(c) The court, or a judge or commissioner thereof, may order law-enforcement
officers employed by the state or any political subdivision thereof to provide it or the
claim investigator with copies of any information or data gathered in the investigation of
the criminally injurious conduct that is the basis of any claim to enable it to determine whether, and the extent to which, a claimant qualifies for an award of compensation.
(d) The court, or a judge or commissioner thereof, may require the claimant to
supplement the application for an award of compensation with any reasonably available
medical or psychological reports relating to the injury for which the award of
compensation is claimed.
(e) The court, a judge or commissioner thereof, or the claim investigator, in a
claim arising out of a violation of article eight-b, chapter sixty-one of this code, shall not
request the victim or the claimant to supply any evidence of specific instances of the
victim's activity, or reputation evidence of the victim's sexual activity, unless it involves
evidence of the victim's past sexual activity with the offender, and then only to the
extent that the court, the judge, the commissioner or the claim investigator finds that the
evidence is relevant to a fact at issue in the claim.
(f) Notwithstanding any provision of this code to the contrary relating to the
confidentiality of juvenile records, the court of claims, a judge or commissioner thereof,
or the claim investigator shall have access to the records of juvenile proceedings which
bear upon an application for compensation under this article. The court of claims, a
judge or commissioner thereof, and the claim investigator, shall, to the extent possible,
maintain the confidentiality of juvenile records.
§14-2A-17. Contempt sanction not available
If a person refuses to comply with an order under this article, or asserts a
privilege, except privileges arising from the attorney-client relationship, so as to
withhold or suppress evidence relevant to a claim for an award of compensation, the
court, judge or commissioner may make any just order, including denial of the claim,
but shall not find the person in contempt. If necessary to carry out any of his powers
and duties, the claim investigator may petition the court of claims for an appropriate
order, including an order authorizing the investigator to take the depositions of
witnesses by oral examination or written interrogatory, but the court of claims shall not
find a person in contempt for refusal to submit to a mental or physical examination.
§14-2A-18. Effect of prosecution or conviction of offender
The court, or a judge or commissioner thereof, may approve an award of
compensation whether or not any person is prosecuted or convicted for committing the
conduct that is the basis of the award. Proof of conviction of a person whose conduct
gave rise to a claim is conclusive evidence that the crime was committed, unless an
application for rehearing, an appeal of the conviction or certiorari is pending, or a
rehearing or new trial has been ordered.
The court, or a judge or commissioner thereof, shall suspend, upon a request
of the claim investigator, the proceedings in any claim for an award of compensation
pending disposition of a criminal prosecution that has been commenced or is imminent.
§14-2A-19. Attorney and witness fees
(a) By separate order, the court, or a judge or commissioner
thereof, shall determine and award reasonable attorney's fees, commensurate with
services rendered and reimbursement for reasonable and necessary expenses actually
incurred shall be paid from the crime victims compensation fund to the attorney
representing a claimant in a proceeding under this article at the same rates as set forth
in section thirteen-a, article twenty-one, chapter twenty-nine of this code. Attorney's
fees and reimbursement may be denied upon a finding that the claim or appeal is
frivolous. Awards of attorney's fees and reimbursement shall be in addition to awards
of compensation, and attorney's fees and reimbursement may be awarded whether or
not an award of compensation is approved. An attorney shall not contract for or
receive any larger sum than the amount allowed under this section. In no event may a
prosecuting attorney or assistant prosecuting attorney represent any victim seeking
compensation under this article.
(b) Each witness called by the court to appear in a hearing
on a claim for an award of compensation shall receive compensation and expenses in
an amount equal to that received by witnesses in civil cases as provided in section
sixteen, article one, chapter fifty-nine of this code to be paid from the crime victims
compensation fund.
§14-2A-19a. Physician, hospital and other health care expenses
As part of the order, the court, or a judge or commissioner
thereof, shall determine whether fees are due and owing for health care services
rendered by a physician, hospital or other health care provider stemming from an injury
received as defined under this article, and further, whether or not the physician,
hospital or other health care provider has been presented an assignment of benefits,
signed by the crime victim, authorizing direct payments of benefits to the health care
provider. If such fees are due and owing and the health care provider has presented a
valid assignment of benefits, the court, or a judge or commissioner thereof, shall
determine the amount or amounts and shall cause such reasonable fees to be paid out
of the amount awarded the crime victim under this article directly to the physician,
hospital or other health care provider. The requirements of this section shall be
applicable to, and any such unpaid fees shall be determined and payable from, the
awards made by the Legislature at regular session, one thousand nine hundred
eighty-seven, and subsequently: Provided, That when a claim is filed under this
section, the court shall determine the total damages due the crime victim, and where
the total damages exceed the maximum amount which may be awarded under this
article, the amount paid the health care provider shall be paid in the same proportion to
which the actual award bears to the total damages determined by the court. In any
case wherein an award is made which includes an amount for funeral, cremation or
burial expenses, or a combination thereof, the court shall provide for the payment
directly to the provider or providers of such services, in an amount deemed proper by
the court, where such expenses are unpaid at the time of the award.
§14-2A-20. Procedure for certification and payment of claims
(a) The clerk shall certify to the department of finance and
administration, on or before the twentieth day of November of each year, a list of all
claims pursuant to this article for which the court has made a final determination and
approved an award since the last such certificate.
(b) The governor shall include in his proposed budget bill
and revenue estimates:
(1) An estimate of the balance and receipts anticipated in
the crime victims compensation fund,
(2) An itemized report of the approved awards
recommended by the court to the Legislature,
(3) Such recommendations to the Legislature for
appropriations from the crime victims compensation fund as he may deem appropriate
for the payment of fees, costs and expenses incurred, due or payable at any time from
such fund, and
(4) Such recommendations to the Legislature for
appropriations for the payment of claims arising under this article, whether accrued and
determined by the court and included in the itemization of awards mentioned in this
section or arising during the ensuing fiscal year.
(c) The Legislature shall, by general law, provide for the
authorization to pay the itemized awards arising under this article or so much thereof as
may be deemed appropriate or for awards arising during the ensuing fiscal year and
provide by appropriation from the crime victims compensation fund for the payment of
such awards authorized and for the payment of fees, costs and expenses as from time
to time may be appropriate. The clerk shall certify each authorized award and the
amount thereof and make requisition upon the crime victims compensation fund relating
thereto to the auditor. The auditor shall issue his warrant to the treasurer without
further examination or review of the claim except for the question of a sufficient
unexpended balance in the appropriation: Provided, That the state treasurer shall
establish within his office a special economic loss claim payment fund, with funds which
are transferred from the crime victims compensation fund by an annual line item
appropriation from the Legislature.
In any case where the court has made a final award which
includes a sum for economic loss, the court shall as part of its award order that the
state auditor pay that portion of the award which is for economic loss forthwith from the
economic loss claim fund, notwithstanding the fact that the Legislature has not yet
considered or authorized said award. Said award and order may provide that payment
be made to a claimant or to a third party for economic losses of the claimant and said
award and order may provide for the payment for actual economic losses which are
prospective as well as those which have already been incurred.
The clerk of the court shall certify the economic loss award
and payment order to the auditor who shall proceed as set forth herein and issue his
warrant to the treasurer for payment of the economic loss award, subject to the
availability of funds in the economic loss claim payment fund.
§14-2A-21. Annual report of court of claims
The court of claims shall prepare and transmit annually to
the governor and the Legislature a report of the activities of the court of claims under
this article. The report shall include the number of claims filed, the number of awards
made and the amount of each award, and a statistical summary of claims and awards
made and denied; the balance in the crime victims compensation fund with a listing by
source and amount of the moneys that have been deposited in the fund; the amount
that has been withdrawn from the fund, including separate listings of the administrative
costs incurred by the court of claims, compensation of judges, commissioners and court
personnel, the amount awarded as attorneys' fees.
§14-2A-22. State's subrogation to claimant's rights
If an award of compensation is made under the provisions
of this article and is not reduced on account of the availability of payment by a
collateral source, the state, upon the payment of the award or a part of the award, shall
be subrogated to all of the claimant's rights to receive or recover benefits or
advantages for economic loss for which an award of compensation was made from
such source if it were a collateral source or would be a collateral source if it were
readily available to the victim or claimant. The claimant may sue the offender for any
damages or injuries caused by the offender's criminally injurious conduct and not
compensated for by an award of compensation. The claimant may join with the
attorney general as co-plaintiff in any action against the offender. All moneys that are
collected by the state pursuant to its rights of subrogation as provided in this section
shall be deposited in the crime victims compensation fund.
§14-2A-23. Subrogation rights of collateral source
Subrogation rights which a collateral source may have shall
not extend to a recovery from a claimant of all or any part of an award made under this
article. A collateral source may not apply, in the name of a claimant or otherwise, for
an award of compensation based upon injury to a claimant to whose rights the
collateral source may be subrogated.
§14-2A-24. Award not subject to execution or attachment; exceptions
An award is not subject to execution, attachment, garnishment or other
process, except that, upon receipt of an award by a claimant, the part of the award that
is for allowable expense is not exempt from such action by a creditor to the extent that
he provides products, services or accommodations the costs of which are included in
the award and the part of the award that is for work loss shall not be exempt from such
action to secure payment of alimony,
maintenance or child support.
§14-2A-25. Publicity
(a) The clerk of the court of claims shall prepare an information brochure for
the benefit of the general public, outlining the rights of claimants and procedures to be
followed under this article. Copies of such brochure shall be distributed to
law-enforcement agencies in the state, and be made available to other interested
persons.
(b) Any law-enforcement agency that investigates an offense committed in this
state involving personal injury shall make reasonable efforts to provide information to
the victim of the offense and his dependents concerning the availability of an award of
compensation and advise such persons that an application for an award of
compensation may be obtained from the clerk of the court of claims.
§14-2A-26. Rules and regulations
(a) The court of claims may promulgate rules and
regulations to implement the provisions of this article.
(b) The court of claims shall promulgate rules and
regulations to govern the award of compensation to the spouse of, person living in the
same household with, parent, child, brother or sister of the offender or his accomplice
in order to avoid an unjust benefit to or the unjust enrichment of the offender or his
accomplice.
§14-2A-27. Application of article
The provisions of this article shall not apply to any injury or death resulting
from criminally injurious conduct which occurred on or before the thirty-first day of
December, one thousand nine hundred eighty-one.
§14-2A-28. Retroactive effect of amendments
Amendments made to the provisions of this article during the regular session
of the Legislature in the year one thousand nine hundred eighty-four, shall be of
retroactive effect to the extent that such amended provisions shall apply to all cases
pending before the court of claims on the effective date of the act of the Legislature
which effects such amendment.
§14-2A-29. Retroactive effect of amendments
Amendments made to the provisions of this article during
the regular session of the Legislature in the year one thousand nine hundred ninety-two
are retroactive in effect
to the extent that the amended provisions apply to all cases wherein the criminally
injurious conduct occurred after the thirty-first day of December, one thousand nine
hundred ninety-one.