Senate Bill 594 History
Senate Bill No. 594
(By Senator Kessler (Mr. President))
[Introduced March 21, 2013; referred to the Committee on the
A BILL to amend and reenact §14-2-13a and §14-2-16 of the Code of
West Virginia, 1931, as amended, all relating to claims
against the state; claims for unjust arrest and imprisonment
or conviction and imprisonment; legislative intent; notice of
claim by a claimant; burden of proof; amount of relief granted
to be determined by the court; burden of proving damages;
providing a savings provision; and relating to the calling of
Be it enacted by the Legislature of West Virginia:
That §14-2-13a and §14-2-16 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 2. CLAIMS AGAINST THE STATE.
§14-2-13a. Claims for unjust arrest and imprisonment or
conviction and imprisonment.
(a) Legislative Intent. --
The Legislature finds and declares
that innocent persons who have been wrongly convicted of crimes and
subsequently imprisoned and innocent persons who have been wrongly
arrested, charged with a crime or imprisoned due to a wrongful
arrest or improperly charged with a crime have been frustrated in
seeking legal redress due to a variety of substantive and technical
obstacles in the law and that such 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 shall be able to recover 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
(1) The claimant has been convicted of one or more felonies or
misdemeanors against the state and subsequently sentenced to a term
of imprisonment, and has served all or any part of the sentence;
(2) The claimant has been arrested and imprisoned, or both
arrested and imprisoned, and charged by warrant, information,
indictment, 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
(3) 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
(4) 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
(5) 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
If the court finds that the claimant is entitled to a
judgment, the court shall award damages in such 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.
(e) Savings Provision. --
In the event that any of the
provisions of this section are declared invalid, unenforceable or
unconstitutional by any court of competent jurisdiction, the
remaining provisions that are not affected thereby shall remain in
full force and effect.
§14-2-16. Regular procedure.
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 said expert(s) for such services in a
reasonable amount as determined by the court; the court
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.
(5) After the close of the hearing the court shall consider the claim and shall conclude its determination, if possible, within
NOTE: The purpose of this bill is to establish the procedure
for claims for unjust arrest and imprisonment or conviction and
imprisonment before the Court of Claims. The bill further provides
that the Court of Claims may call an expert witness and compensate
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
§14-2-13a has been completely rewritten, therefore, strike-
throughs and underscoring have been omitted.