H. B. 2758


(By Delegates Louisos and Webb)
[Introduced March 26, 1997; referred to the
Committee on the Judiciary.]




A BILL to amend and reenact section two, article four, chapter twenty-nine-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to further amend said article by adding thereto two new sections, designated sections three and four, all relating to rules; declaratory judgment on validity of rule; attorney fees; creating a cause of action for persons damaged as a result of a rule declared invalid; burden of proof; creating a cause of action for persons who have been damaged as a result of the intentional or grossly negligent application of a rule or application of a rule that didn't exist.

Be it enacted by the Legislature of West Virginia:
That section two, article four, chapter twenty-nine-a, of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that said article be further amended by adding thereto two new sections, designated sections three and four, all to read as follows:
ARTICLE 4. DECLARATORY RULINGS AND DECLARATORY JUDGMENTS.
§29A-4-2. Declaratory judgment on validity of rule.
(a) Any person, except the agency promulgating the rule, may have the validity of any rule determined by instituting an action for a declaratory judgment in the circuit court of Kanawha County, West Virginia, when it appears that the rule, or its threatened application, interferes with or impairs or threatens to interfere with or impair, the legal rights or privileges of the plaintiff or plaintiffs. The agency shall be made a party to the proceeding. The declaratory judgment may be rendered whether or not the plaintiff or plaintiffs has or have first requested the agency to pass upon the validity of the rule in question.
(b) The court shall declare the rule invalid if it finds that the rule violates constitutional provisions or exceeds the statutory authority or jurisdiction of the agency or was adopted without compliance with statutory rule-making procedures or is arbitrary or capricious, or that, in the case of a an emergency rule adopted pursuant to section five fifteen, article three of this chapter, action under said section five fifteen was not justified.
(c) When the invalidity of a rule has been so declared, the agency shall, within thirty days after such declaratory judgment has been entered, acquiesce therein and modify or rescind such the invalidated rule in accord with the requirement of such the declaratory judgment unless the agency promptly, and in any event within such a thirty-day period, notifies the plaintiff or plaintiffs of its intention to apply for an appeal to the supreme court of appeals from such the declaratory judgment pursuant to section one, article six of this chapter. In the event such the agency shall thereafter make timely application for such an appeal, the acquiescence of the agency in the invalidity of such rule shall not be required until thirty days after timely applications for such the appeal have been refused or within thirty days after the appeal has been dismissed or otherwise disposed of in the supreme court of appeals by an affirmance of the judgment invalidating said rule.
(d) Any person who brings a declaratory judgment action under the provisions of this section and succeeds in having the rule declared invalid, shall be reimbursed by the agency for his or her reasonable attorney fees and costs expended in the prosecution of the declaratory judgment.
§ 29A-4-3. Civil action by person damaged by rule which has been declared invalid; burden of proof.
(a) A person who alleges that he or she has suffered monetary damages as a result of a rule that has been declared invalid under the provisions of section two of this article, may bring a civil action in a court of competent jurisdiction for damages against the agency or agencies that adopted the rule, within one hundred eighty days after the rule has been declared invalid. Any agency or agencies against whom a monetary judgment is awarded under this section shall be jointly and severally liable for such damages assessed against the agency or agencies regardless of the percentage of fault.
(b) A person alleging the he or she has been damaged as a result of a rule which has been declared invalid, must show by a preponderance of the evidence that the rule declared invalid served no legitimate purpose and was unnecessary and that the damages were a proximate cause of the application of the invalid rule.
§29A-4-4. Civil action by person against agency that intentionally or in a grossly negligent manner applied a rule or applied a rule that did not exist.
A person who alleges that he or she has suffered monetary damages as a result of an agency that intentionally or in a grossly negligent manner applies a rule or applies a rule that did not exist may bring a civil action in a court of competent jurisdiction for damages within one hundred eighty days of the last date damages were incurred as a result of such conduct. Any agency or agencies against whom a monetary judgment is awarded under this section shall be jointly and severally liable for the damages assessed against the agency or agencies regardless of the percentage of fault.

NOTE: This bill provides for attorney fees and court costs for persons who successfully challenge and have a rule invalidated under this article. The bill further creates a civil cause of action against the agency that adopted the rule which was later declared invalid or against an agency that intentionally or in a grossly negligent manner applied a rule or applied a rule that did not exist.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§§29A-4-3 and 4 are new; therefore, strike-throughs and underscoring have been omitted.