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 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; 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.
5. After the close of the hearing the court shall consider the claim and shall conclude its determination, if possible, within thirty days.
The shortened procedure authorized by this section shall apply only to a claim possessing all of the following characteristics:
1. The claim does not arise under an appropriation for the current fiscal year.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.
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 governor or the head of a state agency may refer to the court for an advisory determination the question of the legal or equitable status, or both, of a claim against the state or a state agency. This procedure shall apply only to such claims as are within the jurisdiction of the court. The procedure shall be substantially as follows:
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.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.
2. The clerk shall examine the record submitted and if he finds that it is adequate under the rules, he shall place the claim on a special docket. If he finds the record inadequate, he 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.
A claim arising under an appropriation made by the Legislature during the fiscal year to which the appropriation applies, and falling within the jurisdiction of the court, may be submitted by:
1. A claimant whose claim has been rejected by the state agency concerned or by the state auditor.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 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.
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.
Whenever the Legislature makes an appropriation for the payment of claims
against the
state, then accrued or arising during the ensuing fiscal year, the determination of
claims and
the payment thereof may be made in accordance with this section. However, this
section shall
apply only if the Legislature in making its appropriation specifically so provides.
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 warrant to the treasurer in favor of the claimant. The
auditor
shall issue his warrant without further examination or review of the claim except for the
question of a sufficient unexpended balance in the appropriation.
The court shall not take jurisdiction of any claim, whether accruing before or after the effective date of this article (July one, one thousand nine hundred sixty-seven), unless notice of such claim be filed with the clerk within such period of limitation as would be applicable under the pertinent provisions of the code of West Virginia, one thousand nine hundred thirty- one, as amended, if the claim were against a private person, firm or corporation and the constitutional immunity of the state from suit were not involved and such period of limitation may not be waived or extended. The foregoing provision shall not be held to limit or restrict the right of any person, firm or corporation who or which had a claim against the state or any state agency, pending before the attorney general on the effective date of this article (July one, one thousand nine hundred sixty-seven), from presenting such claim to the court of claims, nor shall it limit or restrict the right to file such a claim which was, on the effective date of this article (July one, one thousand nine hundred sixty-seven), pending in any court of record as a legal claim and which, after such date was or may be adjudicated in such court to be invalid as a claim against the state because of the constitutional immunity of the state from suit.
In all hearings and proceedings before the court, the evidence and testimony of witnesses and the production of documentary evidence may be required. Subpoenas may be issued by the court for appearance at any designated place of hearing. In case of disobedience to a subpoena or other process, the court may invoke the aid of any circuit court in requiring the evidence and testimony of witnesses, and the production of books, papers and documents. Upon proper showing, the circuit court shall issue an order requiring witnesses to appear before the court of claims; produce books, papers and other evidence; and give testimony touching the matter in question. A person failing to obey the order may be punished by the circuit court as for contempt.
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 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.The court may include any other information or recommendations pertaining to the performance of its duties.
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.
5. Advisory determinations made at the request of the governor or the head of a state agency.
A person who knowingly and wilfully presents or attempts to present a false or fraudulent claim, or a state officer or employee who knowingly and wilfully participates or assists in the preparation or presentation of a false or fraudulent claim, shall be guilty of a misdemeanor. A person convicted, in a court of competent jurisdiction, of 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.
Any final determination against the claimant on any claim presented as provided in this article shall forever bar any further claim in the court arising out of the rejected claim.
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.
If any provision of this article or the application thereof to any person or circumstance be held invalid, such invalidity shall not affect other provisions or applications of the article which can be given effect without the invalid provision or application, and to this end the provisions of this article are declared to be severable.
(a) Any properly registered and qualified vendor who supplies services or commodities to any state agency shall be entitled to prompt payment upon presentation to that agency of a legitimate uncontested invoice.
(b) (1) Except as provided in subdivision (2) of this subsection, for purchases of services or commodities made on or after the first day of July, one thousand nine hundred ninety-one, a state check shall be issued in payment thereof within sixty days after a legitimate uncontested invoice is received by the state agency receiving the services or commodities. Any state check issued after such sixty days shall include interest at the current rate, as determined by the state tax commissioner under the provisions of section seventeen-a, article ten, chapter eleven of this code, which interest shall be calculated from the sixty-first day after such invoice was received by the state agency until the date on which the state check is mailed to the vendor.
(2) For purchases of services or commodities made on or after the first day of July, one thousand nine hundred ninety-two, by the division of highways, the public employees insurance agency, and by the department of health and human resources, a state check shall be issued in payment thereof within sixty days after a legitimate uncontested invoice is received by any of such agencies receiving the services or commodities. Any state check issued after sixty days shall include interest at the current rate, determined in the manner provided in subdivision (1) of this subsection, which interest shall be calculated from the sixtieth day after such invoice was received by any of such agencies until the date on which the state check is mailed to the vendor.
(3) For purposes of this subsection, an invoice shall be deemed to be received by a state agency on the date on which the invoice is marked as received by the agency, or three days after the date of the postmark made by the United States postal service as evidenced on the envelope in which the invoice is mailed, whichever is earlier: Provided, That in the event an invoice is received by a state agency prior to the date on which the commodities or services covered by the invoice are delivered and accepted or fully performed and accepted, the invoice shall be deemed to be received on the date on which the commodities or services covered by the invoice were actually delivered and accepted or fully performed and accepted.
(c) The state auditor shall deduct the amount of any interest due for late payment of an invoice from any appropriate account of the state agency responsible for the late payment: Provided, That if two or more state agencies are responsible for the late payment, the state auditor shall deduct the amount of interest due on a pro rata basis.
(d) The state agency initially receiving a legitimate uncontested invoice shall process such invoice for payment within ten days from its receipt: Provided, That in the case of the department of health and human resources, the division of highways and the public employees insurance agency, such invoices shall be processed within fifteen days of their receipt. No state agency shall be liable for payment of interest owed by another state agency under this section.
(e) Any other state agency charged by law with processing a state agency's requisition for payment of a legitimate uncontested invoice shall either process the claim or reject it for good cause within ten days after such state agency receives it. Failure to comply with the requirements of this subsection shall render such state agency liable for payment of the interest mandated by this section when there is a failure to promptly pay a legitimate uncontested invoice: Provided, That no such state agency shall be liable for payment of interest owed by another state agency under this section.
(f) For purposes of this section, the phrase "state agency" means any agency, department, board, office, bureau, commission, authority or any other entity of state government.
(g) This section may be cited as the "Prompt Pay Act of 1990." RETURN to General Powers of the Court (§14-2-12)
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