Senate Bill No. 152
(By Senators Grubb and Yoder)
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[Introduced January 23, 1995; referred to the
Committee on the Judiciary.]
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A BILL to amend article three, chapter five of the code
of West Virginia, one thousand nine hundred thirty-
one, as amended, by adding thereto a new section,
designated section two-a, relating to consent
judgments in cases involving an agency of
government; stating the policy of the state as
regards consent to a proposed judgment; affording
an opportunity for persons to comment on proposed
consent judgments; defining the term "agency of
government"; service of copies of proposed judgment
orders on the Legislature; filing of notice for
publication in the state register; filing estimate of costs; receipt of comments by the attorney
general; action to be taken by the attorney general
upon receipt of comments; procedures to implement
policy; providing for exceptions to policy; and
requiring annual reports to the Legislature.
Be it enacted by the Legislature of West Virginia:
That article three, chapter five of the code of West
Virginia, one thousand nine hundred thirty-one, as
amended, be amended by adding thereto a new section,
designated section two-a, to read as follows:
ARTICLE 3. ATTORNEY GENERAL.
§5-3-2a. Consent judgments in actions against an agency
of government; notice of proposed consent
judgment.
(a) It is hereby established as the policy of this
State to consent to a proposed judgment in an action
against an agency of government or its officers or
employees only after or on condition that an opportunity
is afforded persons (natural or corporate) who are not
named as parties to the action to comment on the proposed
judgment prior to its entry by the court. For the
purposes of this section, an "agency of government" means (1) a department, division, bureau, board, commission or
other agency or instrumentality within the executive
branch of state government which may sue or be sued, or
(2) a political subdivision of this state or any board,
department, commission, district or special district,
council or other agency or instrumentality thereof whose
liability or potential liability arises from a claim
which is covered by property or liability insurance
provided by the state board of risk and insurance
management of West Virginia pursuant to the provisions of
article twelve, chapter twenty-nine of this code.
(b) To effectuate this policy, each proposed
judgment which is within the scope of paragraph (a) of
this section shall be lodged with the court as early as
feasible but at least sixty days before the judgment is
entered by the court, and true copies of the proposed
order shall be served upon the attorney general of the
state, the president of the West Virginia Senate and the
speaker of the West Virginia House of Delegates. When an
agency of government proposes to consent to a judgment,
it shall file with the secretary of state, for publication in the state register, a notice of the
proposed order and include therein a request for comment
on the proposed order. The notice shall fix a date, time
and place for the receipt of written statements and
documents bearing on the appropriateness, propriety or
adequacy of the proposed consent order. At the time of
filing the notice of its action, the agency of government
shall also file with the secretary of state a true copy
of the proposed order. If alternative draft proposals
are being considered, the full text of the additional
draft proposals shall also be filed with the secretary of
state. The agency of government proposing to consent to
the entry of judgment shall also file with the secretary
of state an estimate of the cost of implementing the
proposed judgment as the cost relates to this state and
to persons affected by the proposed judgment.
(c) Prior to entry of the judgment, or some earlier
specified date, the attorney general will receive and
consider and file with the court any written comments,
views or allegations relating to the proposed judgment.
(d) The attorney general shall reserve the right (1) to withdraw or withhold his or her consent to the
proposed judgment if the comments, views and allegations
received concerning the proposed judgment disclose facts
or considerations which indicate that the proposed
judgment is inappropriate, improper or inadequate or (2)
to support or oppose an attempt by any person to
intervene in the action. If action which could be taken
by the attorney general pursuant to the provisions of
this subsection may be materially adverse to the
interests of an agency of government or an officer or
employee thereof whom the attorney general has previously
represented in the same or a substantially related
matter, the attorney general shall not proceed to act
without the written consent of the agency of government
or the affected officer or employee. In the absence of
such consent, the attorney general shall provide for an
independent special assistant attorney general to be
retained to consider the comments, views and allegations
received concerning the proposed judgment, and to pursue
such action as may be deemed appropriate, in accordance
with the provisions of this subsection.
(e) The attorney general may establish procedures
for implementing the policy established by this section.
Where it is clear that the public interest in the policy
hereby established is not compromised, the attorney
general may permit an exception to this policy in a
specific case where extraordinary circumstances require
a period shorter than sixty days or a procedure other
than stated herein.
(f) Any agency of government which agrees to a
consent judgment after the thirtieth day of June, one
thousand nine hundred ninety-five shall thereafter file
an annual report, on or before the first day of November,
setting forth the status of the action, the fiscal impact
of the consent judgment upon the resources of the state,
and the manner in which any cost to the state is met or
will be met by appropriations authorized in the state
budget. Such report shall be filed with the president of
the West Virginia Senate and the speaker of the West
Virginia House of Delegates.
NOTE: The purpose of this bill is to establish a
procedure whereby an agency of government which proposes
to enter into a consent judgment must first provide
notice of the proposed order and afford persons an opportunity to comment. The procedure would require
publication in the State Register and review of comments
by the Attorney General.
This section is new; therefore, strike-throughs and
underscoring have been omitted.