HB4629 S JUD AM #1 3-6
Graham 4841
The Committee on the Judiciary moved to amend the bill by striking out everything after the enacting clause and inserting in lieu thereof the following:
ARTICLE 17. PROCEDURES FOR CERTAIN ACTIONS AGAINST THE STATE.
§55-17-3. Preliminary procedures; service on Attorney General; notice to the Legislature.
(a)(1)
Notwithstanding any provision of law to the contrary, at least 30 days prior to
the institution of an action against a government governmental agency,
the complaining party or parties must shall provide the chief
officer of the government governmental agency and the Attorney
General written notice, by certified mail, return receipt requested, of the
alleged claim and the relief desired. Upon receipt, the chief officer of the government
governmental agency shall forthwith immediately forward a
copy of the notice to the President of the Senate and the Speaker of the House
of Delegates. The provisions of this subdivision do not apply in actions
seeking injunctive relief where the court finds that irreparable harm would
have occurred if the institution of the action was delayed by the provisions of
this subsection.
(2) The
written notice to the chief officer of the government governmental
agency and the Attorney General required by subdivision (1) of this subsection
is considered to be provided on the date of mailing of the notice by certified
mail, return receipt requested. If the written notice is provided to the chief
officer of the government governmental agency as required by
subdivision (1) of this subsection, any applicable statute of limitations is tolled
for 30 days from the date the notice is provided and, if received by the government
governmental agency as evidenced by the return receipt of the certified
mail, for 30 days from the date of the returned receipt.
(3) A copy
of any complaint filed in an action as defined in §55-17-2 of this code section
two of this article shall be served on the Attorney General.
(b) (1)
Notwithstanding any procedural rule or any provision of this code to the
contrary in an action instituted against a government governmental
agency that seeks a judgment, as defined in section two of this article §55-17-2
of this code, the chief officer of the government governmental
agency which is named a party to the action shall, upon receipt of service, forthwith
immediately give written notice thereof, together with a copy of the
complaint filed, to the President of the Senate and the Speaker of the House of
Delegates.
(2) Upon
request, the chief officer of the government governmental agency
shall furnish the President of the Senate and Speaker of the House with
copies of pleadings filed and discovery produced in the proceeding and other
documents, information, and periodic reports relating to the proceeding as may
be requested.
(3) The
chief officer of a government governmental agency who fails
without good cause to comply with the provisions of this subsection is guilty
of misfeasance. This subsection does not require a notice or report to the
President of the Senate and the Speaker of the House that no
action has been instituted or is pending against a governmental agency during a
specified period.
(c) The requirements for notice and delivery of pleadings and other documents to the President of the Senate or Speaker of the House of Delegates pursuant to the provisions of this section do not constitute a waiver of any constitutional immunity or protection that proscribes or limits actions, suits, or proceedings against the Legislature or the State of West Virginia.
(d) The exercise of authority granted by the provisions of this section does not subject the Legislature or any member of the Legislature to any terms of a judgment.
(e) If 90 days elapse after service of notice required by subsection (a) of this section has been effected and action has not been instituted, then the notice shall be considered to have expired, and before an action may be instituted, the complaining party or parties must provide new notice as required by subsection (a) of this section which shall be accompanied by a second or subsequent notice fee to the attorney general and by a second or subsequent notice fee to the chief officer of the governmental agency: Provided, That no further tolling of any applicable statute of limitations shall occur during any second or subsequent notice.
§55-17-3a. Legislature and its presiding officers never to be named as parties to a civil action in court.
(a) Article V of the Constitution of West Virginia provides that the legislative, executive, and judicial departments of the government of West Virginia shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others.
(b) It is an unconstitutional violation of the separation of powers mandated by Article V of the Constitution of West Virginia for:
(1) Any court of this state to issue a writ of mandamus, a writ of prohibition, or an injunction against the Legislature; or
(2) Any person to name the Legislature or the presiding officers thereof, in any action challenging the constitutionality of a statute.
(c) Pursuant to the separation of powers required by Article V of the West Virginia Constitution, if any suit is filed seeking relief under subdivision (1), subsection (a) of this section, or if any suit is filed naming the legislature, or the presiding officers thereof, in violation of the provisions of subdivision (2), subsection (a) of this section, the court must, upon motion, summarily dismiss the action, or dismiss the parties improperly joined.
(c) This section shall be applied retrospectively and retroactively to all actions pending at the time of the enactment of this section.
Adopted
Rejected