The purpose of this article is to provide a simple and impartial method for the consideration of claims against the state that because of the provisions of section thirty-five, article VI of the Constitution of the State, and of statutory restrictions, inhibitions or limitations, cannot be determined in the regular courts of the state; and to provide for proceedings in which the state has a special interest.
(1) Any suit in which the governor, any other state officer, or a state agency is made a party defendant, except as garnishee or suggestee.
(2) Any suit attempting to enjoin or otherwise suspend or affect a judgment or decree on behalf of the state obtained in any circuit court.
(b) Any proceeding for injunctive or mandamus relief involving the taking, title, or collection for or prevention of damage to real property may be brought and presented in the circuit court of the county in which the real property affected is situate.
This section shall apply only to such proceedings as are not prohibited by the constitutional immunity of the state from suit under section thirty-five, article six of the constitution of the state.
(b) Notwithstanding the provisions of section two of this article, any civil action in which Marshall University board of governors, Marshall University, the Marshall University School of Medicine or any department or office of any of those entities, or any officer, employee, agent, intern or resident of any of those entities, acting within the scope of his or her employment, is made a party defendant, shall be brought in the circuit court of any county wherein the cause of action arose, unless otherwise agreed by the parties.
(c) The exclusive venue provisions of this section are not applicable to:
(1) An action involving an entity or person named in subsections (a) or (b) of this section as garnishee or suggestee;
(2) A proceeding for injunctive or mandamus relief involving the taking, title, or collection for or prevention of damage to real property, and where general laws or court rules provide that proper venue is in the county in which the real property affected is situate.
(d) This section shall apply only to such proceedings as are not prohibited by the constitutional immunity of the state from suit under section thirty-five, article VI of the Constitution of the state.
"Court" means the state court of claims established by section four of this article.
"Claim" means a claim authorized to be heard by the court in accordance with this article.
"Approved claim" means a claim found by the court to be one that should be paid under the provisions of this article.
"Award" means the amount recommended by the court to be paid in satisfaction of an approved claim.
"Clerk" means the clerk of the court of claims.
"State agency" means a state department, board, commission, institution, or other administrative agency of state government: Provided, That a "state agency" shall not be considered to include county courts, county boards of education, municipalities, or any other political or local subdivision of the state regardless of any state aid that might be provided.
The terms of the judges of this court shall be six years, except that the first members of the court shall be appointed as follows: One judge for two years, one judge for four years and one judge for six years. As these appointments expire, all appointments shall be for six year terms. Not more than two of the judges shall be of the same political party. An appointment to fill a vacancy shall be for the unexpired term.
(b) Appointments made under this section are temporary. An interim judge serves under this section until the judge for whom the interim judge is temporarily replacing can resume his or her duties. In no event may the interim judge serve for more than three months unless reappointed.
(c) Appointments made under this section shall be made from a list furnished to the president of the Senate and the speaker of the House of Delegates by the board of governors of the West Virginia state bar. The board of governors of the West Virginia state bar shall annually, on or before the fifteenth day of January, submit a list of twenty qualified nominees. In two thousand four, the list shall be submitted before the first day of April.
(d) An interim judge:
(1) Is entitled to the same compensation and expense reimbursement a judge is entitled to under the provisions of section eight of this article;
(2) Shall take the oath of office as required in section nine of this article;
(3) Has all the authority given to a judge under this article; and
(4) Is required to possess the qualifications required of a judge in section ten of this article.
(e) The president of the Senate and the speaker of the House of Delegates may jointly terminate the appointment of any interim judge appointed under this section at any time.
The joint committee on government and finance may employ other persons whose services are necessary to the orderly transaction of the business of the court and fix their compensation.
Special terms or meetings may be called by the clerk at the request of the court whenever the number of claims awaiting consideration, or any other pressing matter of official business, make such a term advisable.
Each judge of the court shall receive $210 for each day actually served and expenses incurred in the performance of his or her duties paid at the same per diem rate as members of the Legislature: Provided, That the chief judge shall receive an additional $50 for each day actually served. In addition to the expense per diem, each judge may, when using his or her own vehicle, be reimbursed for mileage at the mileage rate equal to the amount paid by the travel management office of the Department of Administration. The number of days served by each judge shall not exceed one hundred twenty in any fiscal year, except by authority of the Joint Committee on Government and Finance: Provided, That in computing the number of days served, days utilized solely for the exercise of duties assigned to judges and commissioners by the provisions of article two-a of this chapter shall be disregarded. For the purpose of this section, time served shall include time spent in the hearing of claims, in the consideration of the record, in the preparation of opinions and in necessary travel.
Except as is otherwise provided in this article, a claim shall be instituted by the filing of notice with the clerk. In accordance with rules promulgated by the court, each claim shall be considered by the court as a whole, or by a judge sitting individually, and if, after consideration, the court finds that a claim is just and proper, it shall so determine and shall file with the clerk a brief statement of its reasons. A claim so filed shall be an approved claim. The court shall also determine the amount that should be paid to the claimant, and shall itemize this amount as an award, with the reasons therefor, in its statement filed with the clerk. In determining the amount of a claim, interest shall not be allowed unless the claim is based upon a contract which specifically provides for the payment of interest.
The jurisdiction of the court, except for the claims excluded by section fourteen, shall extend to the following matters:
(1) Claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state or any of its agencies, which the state as a sovereign commonwealth should in equity and good conscience discharge and pay; and
(a) Legislative intent -- The Legislature finds and declares that innocent persons who have been wrongly convicted of crimes and subsequently imprisoned and innocent persons wrongly arrested, charged with a crime or imprisoned, who have subsequently been released when another person was arrested, prosecuted and convicted of the same criminal offense have been frustrated in seeking legal redress due to a variety of substantive and technical obstacles in the law and that affected persons should have an available avenue of redress over and above the existing tort remedies. Therefore, the Legislature intends by enactment of the provisions of this section that those innocent persons who can demonstrate that they were wrongly arrested and imprisoned or unjustly convicted and imprisoned are able to seek damages against the state for loss of liberty.
(b) Notice of Claim -- The claimant's notice of claim shall state facts in sufficient detail to permit the court to find that a claimant is likely to succeed at a trial on the merits. If the court finds in its discretion after reviewing a claim that the claimant has failed to allege sufficient facts upon which relief can be granted, the court may dismiss the claim, either on its own motion or by a motion of the state.
(c) Burden of Proof -- A claimant shall demonstrate by clear and convincing evidence that they were unjustly arrested and imprisoned or unjustly convicted and imprisoned, and the court shall, in the interest of justice, give due consideration to difficulties of proof caused by the passage of time, the death or unavailability of witnesses, the destruction of evidence or other factors not caused by such persons or those acting on their behalf. Specifically, the following shall be proven by clear and convincing evidence:
(1) (A) The claimant has been convicted of one or more felonies or misdemeanors against the state and subsequently sentenced to a term of confinement, and has served all or any part of the sentence; or
(B) The claimant has been arrested and confined, and charged by warrant, information, or any other accusatory instrument for one or more felonies or misdemeanors, and that the charges were dismissed against the claimant; when another person was subsequently charged, arrested, and convicted of the same felony or felonies, or misdemeanors, or;
(2) (A) Another person was subsequently charged, arrested and convicted of the same felony or felonies or misdemeanors;
(B) The claimant has been pardoned upon the ground of innocence of the crime or crimes for which the claimant was sentenced and which are the grounds for the complaint; or
(C) The claimant's judgment of conviction was reversed or vacated, and the accusatory instrument dismissed or, if a new trial was ordered, either the claimant was found not guilty at the new trial or the claimant was not retried and the accusatory instrument dismissed; and
(3) The claimant did not by his or her own conduct cause or bring about his or her conviction.
(d) Type of Relief Granted and the Claimant's Burden to Prove Damages -- If the court finds that the claimant is entitled to a judgment, the court shall award damages in a sum of money as the court determines will fairly and reasonably compensate the claimant based upon the sufficiency of the claimant's proof at trial. Whether the damages fairly and reasonably compensate the claimant will depend upon the unique facts and circumstances of each claim. The claimant shall bear the ultimate burden of proving all damages associated with the claimant's claim.
1. For loss, damage, or destruction of property or for injury or death incurred by a member of the militia or national guard when in the service of the state.
2. For a disability or death benefit under chapter twenty- three of this code.
3. For unemployment compensation under chapter twenty-one-a of this code.
4. For relief or public assistance under chapter nine of this code.
5. With respect to which a proceeding may be maintained against the state, by or on behalf of the claimant in the courts of the state.
The court shall adopt and may from time to time amend rules of procedure, in accordance with the provisions of this article, governing proceedings before the court. Rules shall be designed to assure a simple, expeditious and inexpensive consideration of claims. Rules shall permit a claimant to appear in his own behalf or be represented by counsel.
Discovery may be used in a case pending before the court in the same manner that discovery is conducted pursuant to the rules of civil procedure for trial courts of record, rules 26 through 36. The court may compel discovery and impose sanctions for a failure to make discovery, in the same manner as a court is authorized to do under the provisions of rule 37 of the rules of civil procedure for trial courts of record: Provided, That the court of claims shall not find a person in contempt for failure to comply with an order compelling discovery.
The court, upon its own motion or upon motion of a party, may strike a pleading, motion or other paper which: (1) Is not well-grounded in fact; (2) is not warranted by existing law, or is not based on a good faith argument for the extension, modification, or reversal of existing law; or (3) is interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in costs. An order striking a pleading, motion, or paper may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.
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.
The regular procedure for the consideration of claims shall be substantially as follows:
(1) The claimant shall give notice to the clerk that he or she desires to maintain a claim. Notice shall be in writing and shall be in sufficient detail to identify the claimant, the circumstances giving rise to the claim, and the state agency concerned, if any. The claimant shall not otherwise be held to any formal requirement of notice.
(2) The clerk shall transmit a copy of the notice to the state agency concerned. The state agency may deny the claim, or may request a postponement of proceedings to permit negotiations with the claimant. If the court finds that a claim is prima facie within its jurisdiction, it shall order the claim to be placed upon its regular docket for hearing.
(3) During the period of negotiations and pending hearing, the state agency, represented by 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.
(4) The court shall so conduct the hearing as to disclose all material facts and issues of liability and may examine or cross-examine witnesses. The court may call witnesses or require evidence not produced by the parties; the court may call expert witnesses and compensate those experts for their services in an amount not to exceed $3,500 per expert; the court may stipulate the questions to be argued by the parties; and the court may continue the hearing until some subsequent time to permit a more complete presentation of the claim.
1. The claim does not arise under an appropriation for the current fiscal year.
2. The state agency concerned concurs in the claim.
3. The amount claimed does not exceed one thousand dollars.
4. The claim has been approved by the attorney general as one that, in view of the purposes of this article, should be paid.
The state agency concerned shall prepare the record of the claim consisting of all papers, stipulations and evidential documents required by the rules of the court and file the same with the clerk. The court shall consider the claim informally upon the record submitted. If the court determines that the claim should be entered as an approved claim and an award made, it shall so order and shall file its statement with the clerk. If the court finds that the record is inadequate, or that the claim should not be paid, it shall reject the claim. The rejection of a claim under this section shall not bar its resubmission under the regular procedure.
1. There shall be filed with the clerk the record of the claim, including a full statement of the facts, the contentions of the claimant and such other materials as the rules of the court may require. The record shall submit specific questions for the court's consideration.
2. The clerk shall examine the record submitted. If he or she finds that it is adequate under the rules, he or she shall give a copy of all materials submitted to the Joint Committee on Government and Finance. If the Joint Committee on Government and Finance shall so direct, the clerk shall place the claim on a special docket. If the clerk finds the record inadequate, he or she shall refer it back to the officer submitting it with the request that the necessary additions or changes be made.
3. When a claim is reached on the special docket, the court shall prepare a brief opinion for the information and guidance of the officer. The claim shall be considered informally and without hearing. A claimant shall not be entitled to appear in connection with the consideration of the claim.
4. The opinion shall be filed with the clerk. A copy shall be transmitted to the officer who referred the claim.
An advisory determination shall not bar the subsequent consideration of the same claim if properly submitted by, or on behalf of, the claimant. Such subsequent consideration, if undertaken, shall be de novo.
1. A claimant whose claim has been rejected by the state agency concerned or by the State Auditor.
2. The head of the state agency concerned in order to obtain a determination of the matters in issue.
3. The State Auditor in order to obtain a full hearing and consideration of the merits.
When such submittal is made, the clerk shall give a copy of the submittal to the Joint Committee on Government and Finance. If the Joint Committee on Government and Finance shall so direct, the clerk shall place such claim on its docket. Upon its placement on the docket, the regular procedure, so far as applicable, shall govern the consideration of the claim by the court. If the court finds that the claimant should be paid, it shall certify the approved claim and award to the head of the appropriate state agency, the State Auditor and to the Governor. The governor may thereupon instruct the Auditor to issue his or her warrant in payment of the award and to charge the amount thereof to the proper appropriation. The Auditor shall forthwith notify the state agency that the claim has been paid. Such an expenditure shall not be subject to further review by the Auditor upon any matter determined and certified by the court.
The claim shall be considered and determined by the regular or shortened procedure, as the case may be, and the amount of the award shall be fixed by the court. The clerk shall certify each approved claim and award, and requisition relating thereto, to the Auditor. The Auditor thereupon shall issue his or her warrant to the Treasurer in favor of the claimant. The Auditor shall issue his or her warrant without further examination or review of the claim except for the question of a sufficient unexpended balance in the appropriation.
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 awards recommended by the court to the Legislature for appropriation. The clerk may certify supplementary lists to the governor to include subsequent awards made by the court. The governor shall include all awards so certified in his proposed budget bill transmitted to the Legislature. Any other provision of this article or of law to the contrary notwithstanding, the clerk shall not certify any award which has been previously certified.
The record of each claim considered by the court, including all documents, papers, briefs, transcripts of testimony and other materials, shall be preserved by the clerk for a period of ten years from the date of entry of the court's last order and shall be made available to the Legislature or any committee thereof for the reexamination of the claim. When any such documents, papers, briefs, transcripts and other materials have been so preserved by the clerk for such ten year period, the same shall be transferred to the state records administrator for preservation or disposition in accordance with the provisions of article eight, chapter five of this code without cost, either to the court or the Legislature.
The clerk shall be the official reporter of the court. He or she shall collect and edit the approved claims, awards and statements, shall prepare them for submission to the Legislature in the form of an annual report and shall prepare them for publication.
Claims and awards shall be separately classified as follows:
(1) Approved claims and awards not satisfied but referred to the Legislature for final consideration and appropriation.
(2) Approved claims and awards satisfied by payments out of regular appropriations.
(3) Approved claims and awards satisfied by payment out of a special appropriation made by the Legislature to pay claims arising during the fiscal year.
(4) Claims rejected by the court with the reasons therefor.
The court may include any other information or recommendations pertaining to the performance of its duties.
The court shall transmit its annual report to the presiding officer of each house of the Legislature, and a copy shall be made available to any member of the Legislature upon request therefor. The reports of the court shall be published biennially by the clerk as a public document. The biennial report shall be filed with the clerk of each house of the Legislature, the Governor and the Attorney General.
(a) It is the policy of the Legislature to make no appropriation to pay any claims against the state, cognizable by the court, unless the claim has first been passed upon by the court.
(b) Because a decision of the court is a recommendation to the Legislature based upon a finding of moral obligation, and the enactment process of passage of legislation authorizing payments of claims recommended by the court is at legislative discretion, no right of appeal exists to findings and award recommendations of the court of claims and they are not subject to judicial review.