Rules Of Practice And Procedure

RULES OF PRACTICE AND PROCEDURE OF THE LEGISLATIVE CLAIMS COMMISSION OF THE STATE OF WEST VIRGINIA

RULE 1. CLERK, CUSTODIAN OF PAPERS, ETC.

The Clerk shall be responsible for all papers and claims filed and will be required to file, in an index for that purpose, any paper, pleading, document, or other writing filed in connection with any claim. The Clerk shall endorse all such papers and claims, showing the title of the claim, the number of the same, and such other data as may be necessary to connect and identify the document, writing, or claim.

RULE 2. FILING PAPERS

            (a.) Communications addressed to the Legislative Claims Commission or Clerk and all notices, petitions, answers and other pleading, all reports, documents received or filed in the office kept by the Clerk of this Commission, shall be endorsed showing the date of the receipt or filing thereof.

            (b.) The Clerk, upon receipt of a notice of a claim, shall record the claim and the name of the claimant whose name shall be used as the title of the claim; and a case number shall be assigned accordingly.

            (c.) No paper, exclusive of exhibits, shall be filed in any action or proceeding or be accepted by the Clerk for filing nor any brief, deposition, pleading, order, decree, reporter’s transcript or other paper to be made a part of the record in any claim may be received except that the same be upon paper measuring 8 1/2 inches in width and 11 inches in length.

RULE 3. FORM OF CLAIMS

            Notice of writing of each claim, executed under the penalty of false swearing, must be filed with the Clerk of the Commission. The notice shall be in sufficient detail to identify the claimant, the circumstances giving rise to the claim, the substance of the claim, and the State agency concerned. The Commission reserves the right to require further information before hearing when, in its judgment, justice and equity may require. A suggested form of notice of claim may be obtained from the Clerk.

RULE 4. COPY OF NOTICE OF CLAIMS TO ATTORNEY GENERAL AND STATE AGENCY

            Upon receipt of a notice of claim to be considered by the Commission, the Clerk shall forthwith transmit a copy of the notice to the State agency concerned, if any, and a copy thereof to the Office of the Attorney General of the State, and the Clerk shall make a note of the date of such delivery.

RULE 5. PREPARATION OF HEARING DOCKET

            On and after the date of adoption of these rules by the Commission, the Clerk shall prepare a docket listing all claims that are ready for hearing by the Commission, and showing the respective dates, as fixed by the Commission, for the hearing thereof. The Commission reserves the right to add to, rearrange, or change said docket when it its judgment such addition, rearrangement, or change would expedite the work of the Commission. Each claimant or claimant’s counsel of record and the Attorney General shall be notified as to the date, time, and place of the hearing.

RULE 6. PROOF AND RULES GOVERNING PROCEDURE

            (a.) Claims asserted against the State, including all the allegations in a notice of claim, are treated as denied, and must be established by the claimant with satisfactory proof, or proper stipulation as hereinafter provided before an award can be made.

            (b.) The Commission shall not be bound by the usual common law or statutory rules of evidence. The Commission may accept and weigh, in accordance with its evidentiary value, any information that will assist the Commission in determining the factual basis of the claim.

            (c.) The Attorney General shall, within twenty days after a copy of the notice has been furnished his or her office, file with the Clerk a notice in writing, either denying the claim, requesting postponement of proceedings to permit negotiations with the claimant, or otherwise setting forth reasons for further investigation of the claim, and furnish the claimant or claimant’s   counsel of record a copy thereof. Otherwise, after said twenty-day period, the Commission may order the claim placed upon its regular docket for hearing.

            (d.) It shall be the duty of the claimant or claimant’s counsel in claims under the regular procedure to negotiate with the Office of the Attorney General so that the claimant and the State agency and the Attorney General may be ready at the beginning of the hearing of a claim to read, if reduced to writing, or to dictate orally, if not reduced to writing, into the record such   stipulations, if any, as to which the parties may have been able to agree.

            (e.) Where there is a controversy between a claimant and any State agency, the Commission may require each party to reduce the facts to writing and, if the parties are not in agreement as to the facts, the Commission may stipulate the questions of fact in issue and require written answers to the said stipulated questions.

            (f.) All claims shall be heard and considered by the Commission, sitting without a jury.

            (g.) Claims not exceeding the sum of $20,000.00 may be heard and considered by a sitting judge individually.

RULE 7. REPRESENTATION OF CLAIMANT; NON-RESIDENT ATTORNEYS

  1. (a.) An individual claimant may appear and prosecute his or her claim without counsel, if he or she is a resident of the State of West Virginia, until or unless the Commission, for good cause, shall otherwise direct.

            (b.) All other claimants shall be represented by counsel unless the requirement of counsel is waived by the Commission.

  1. Non-resident counsel appearing before the Commission shall conform to the requirements of Rule 8.0 of the West Virginia Rules for Admission to the Practice of Law.

RULE 8. BRIEFS

  1. (a.) Claimants or their counsel, and the Attorney General, may file with the Commission, for its consideration, a brief on any question involved in a claim, provided a copy of said brief is also presented to and furnished the opposing party or counsel. Reply briefs shall be filed within fifteen days.

            (b.) All briefs filed with the Court shall be in quadruplicate—original and three copies. As soon as any brief is received, the Clerk shall file the original in the Commission file and deliver a copy to each of the Commissioners of the Commission.

RULE 9. CONTINUANCES; DISMISSAL FOR FAILURE TO PROSECUTE

  1. (a.) After claims have been set for hearing, continuances are looked upon by the Commission with disfavor but may be allowed when good cause is shown.

            (b.) A party desiring a continuance shall file a motion showing good cause therefor at the earliest possible date.

            (c.) Whenever any claim has been docketed for hearing for three regular terms of the Commission at which the claim might have been prosecuted, and the State shall have been ready to proceed with the trial thereof, the Commission may, upon its own motion or that of the State, dismiss the claim unless good cause appear or be shown by the claimant why such claim has not been prosecuted.

            (d.) Whenever a claimant shall fail to appear and prosecute the claim on the day set for hearing and shall not have communicated with the Clerk prior thereto, advising of an inability to attend and the reason therefor, and, if it further appear that the claimant or claimant’s counsel had sufficient notice of the docketing of the claim for hearing, the Commission may, upon its own motion or that of the State, dismiss the claim.

            (e.) Within the discretion of the Commission, no order dismissing a claim under either or the two preceding sections of this rule shall be vacated nor such claim be reinstated except pursuant to a motion in writing filed no later than thirty (30) days from the date the notice of the dismissal shall have been sent to claimant or claimant’s counsel of record.

RULE 10. ORIGINAL PAPERS NOT TO BE WITHDRAWN; EXCEPTIONS

            No original paper filed in any claim shall be withdrawn from the Commission files except upon order of the Commission. When a representative of a State agency is testifying from an original record of such agency, a true copy of the original record of such agency may be filed in place and stead of the original.

RULE 11. WITHDRAWL OF CLAIM

  1. (a.) Any claimant may withdraw the claim. Should the claimant later refile the claim, the Commission shall consider its former status, such as previous continuances and any other matter affecting its standing, and may re-docket or refuse to re-docket the claim as, in its judgment, justice and equity may require under the circumstances.

            (b.) Any State agency, having filed a claim for the Commission’s consideration, under the advisory determination procedure or the shortened procedure, may withdraw the claim without prejudice to the right of the claimant involved to file the claim under the regular procedure. 

RULE 12. WITNESSES

  1. (a.) Claimants and State agencies desiring to have subpoenas for witnesses shall file with the Clerk a memorandum in writing giving the style and number of the claim and setting forth the names of such witnesses, and thereupon such subpoenas shall be issued and delivered to the person requesting the same.

            (b.) Request for subpoenas for witnesses shall be furnished the Clerk in advance of the hearing date so such subpoenas may be issued in ample time before the hearing.

            (c.) The payment of witness fees and mileage (where transportation is not furnished to any witness subpoenaed by or at the instance of either the claimant or the State agency) shall be the responsibility of the party by whom or at whose instance such witness is subpoenaed.

RULE 13. DISCOVERY; SANCTIONS

            All discovery shall be conducted in accordance with the provisions of W.Va. Code §14-2-15.

RULE 14. REHEARINGS

            A rehearing shall not be allowed except where good cause is shown. A motion for rehearing shall be considered ex parte, unless the Commission otherwise directs, upon motion and brief filed by the party seeking the rehearing. Such motion and brief shall be filed within thirty (30) days after notice of the Commission’s determination of the claim unless good cause be shown why the time should be extended.

RULE 15. ATTORNEY LEGISLATORS PRACTICE BEFORE THE COURT

            Henceforth from the date of the adoption of this Rule, attorneys who are also members of the West Virginia House of Delegates or of the West Virginia State Senate may not represent clients with claims against State agencies filed with the Legislative Claims Commission.  Consistent with Rule 1.10 of the Rules of Professional Conduct for attorneys, the proscription of this Rule applies to attorneys who practice in the same firm as the Attorney Legislator.

RULE 16. APPLICATION OF RULES OF CIVIL PROCEDURE

            The West Virginia Rules of Civil Procedure shall apply in the Legislative Claims Commission unless the Rules of Practice and Procedure of the Legislative Claims Commission are to the contrary.

Adopted by Order of the Court of Claims, September 11, 1967.

                                    Amended February 18, 1970.

                                    Amended February 23, 1972.

                                    Amended August 1, 1978.

                                    Amended May 3, 1982.

                                    Amended November 14, 1984.

                                    Amended October 2, 1992.

                                    Amended August 5, 1993.

                                    Amended June 22, 1994.

                                    Amended June 24, 1998.

                                    Amended July 26, 2000.

                                    Amended May 22, 2003.

                                    Amended December 3, 2004.

                                    Amended March 31, 2006.

 

Amended by Order of the West Virginia Legislative Claims Commission, February 22, 2018.