H. B. 2059
(By Delegates Douglas, Beane and Trump)
[Originating in the House Committee on the Judiciary]
[January 17, 1995]
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:
§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.