MISSISSIPPI LEGISLATURE
2004 Regular Session
To: Judiciary B; Appropriations
By: Representative Peranich
AN ACT TO AMEND SECTIONS 99-41-3, 99-41-5, 99-41-7, 99-41-9, 99-41-11, 99-41-13, 99-41-17, 99-41-27, 99-41-29 AND 99-41-31, MISSISSIPPI CODE OF 1972, TO TRANSFER THE ADMINISTRATION OF THE MISSISSIPPI CRIME VICTIMS' COMPENSATION ACT FROM THE DEPARTMENT OF FINANCE AND ADMINISTRATION TO THE ATTORNEY GENERAL'S OFFICE; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 99-41-3, Mississippi Code of 1972, is amended as follows:
99-41-3. It is the intent of the Legislature to provide a method of compensating and assisting those persons who are innocent victims of criminal acts within the state and who suffer bodily injury or death. To this end, it is the Legislature's intention to provide compensation for injuries suffered as a direct result of the criminal acts of other persons. It is the further intent of the Legislature that all agencies, departments, boards and commissions of the state and political subdivisions of the state shall cooperate with the Attorney General's Office in carrying out the provisions of this chapter.
SECTION 2. Section 99-41-5, Mississippi Code of 1972, is amended as follows:
99-41-5. As used in this chapter, unless the context otherwise requires, the term:
(a) "Allowable expense" means reasonable charges incurred for reasonably needed:
(i) Products, services and accommodations, including, but not limited to, medical care, rehabilitation, rehabilitative occupational training and other remedial treatment and care, but not to exceed Ten Thousand Dollars ($10,000.00);
(ii) Mental health counseling and care not to exceed Three Thousand Five Hundred Dollars ($3,500.00) for the victim and victim's family member; provided, however, if there is more than one (1) family member, the amount of compensation awarded shall be prorated and not to exceed Three Thousand Five Hundred Dollars ($3,500.00); and
(iii) Expenses related to funeral, cremation or burial, but not to exceed a total charge of Four Thousand Five Hundred Dollars ($4,500.00) and transportation costs to arrange or attend services, but not to exceed Five Hundred Dollars ($500.00);
(b) "Claimant" means any of the following persons applying for compensation under this chapter:
(i) A victim;
(ii) A dependent of a victim who has died because of criminally injurious conduct; or
(iii) A person authorized to act on behalf of any of the persons enumerated in subparagraphs (i) and (ii) of this paragraph; however, "claimant" shall not include any of the following: provider or creditor of victim; assignee of provider or creditor, including a collection agency; or another person or entity other than those enumerated in this paragraph;
(c) "Collateral source" means a source of benefits or advantages for economic loss for which the claimant would otherwise be eligible to receive compensation under this chapter which the claimant has received, or which is readily available to the claimant, from any one or more of the following:
(i) The offender;
(ii) The government of the United States or any agency thereof, a state or any of its political subdivisions or an instrumentality of two (2) or more states;
(iii) Social Security, Medicare and Medicaid;
(iv) Workers' compensation;
(v) Wage continuation programs of any employer;
(vi) Proceeds of a contract of insurance payable to the claimant for loss which the victim sustained because of the criminally injurious conduct;
(vii) A contract providing prepaid hospital and other health care services or benefits for disability; or
(viii) Any temporary nonoccupational disability insurance;
(d) "Criminally injurious conduct" means an act occurring or attempted within the geographical boundaries of this state, or to a resident of Mississippi while that resident is within any other state of the United States or any foreign country, which state or foreign country does not provide compensation for those injuries caused by an act for which compensation would be available had the act occurred in Mississippi, and which act results in personal injury or death to a victim for which punishment by fine, imprisonment or death may be imposed. The term shall also apply to federal offenses committed within the state and delinquent acts as defined in Section 43-21-105 which meet this definition;
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(e) "Dependent" means a natural person wholly or partially dependent upon the victim for care or support, and includes a child of the victim born after the death of the victim where the death occurred as a result of criminally injurious conduct;
(f) "Economic loss of a dependent" means loss, after death of the victim, of contributions or things of economic value to the dependent, not including services which would have been received from the victim if he or she had not suffered the fatal injury, less expenses of the dependent avoided by reason of death of the victim;
(g) "Economic loss" means monetary detriment consisting only of allowable expense, work loss and, if injury causes death, economic loss of a dependent, but shall not include noneconomic loss or noneconomic detriment;
(h) "Family member" means the victim's spouse, parent, grandparent, stepparent, child, stepchild, grandchild, brother, sister, half brother, half sister or spouse's parent;
(i) "Noneconomic loss or detriment" means pain, suffering, inconvenience, physical impairment and nonpecuniary damage;
(j) "Work loss" means loss of income from work the victim or claimant would have performed if the victim had not been injured, but reduced by any income from substitute work actually performed by the victim or claimant or by income the victim or claimant would have earned in available appropriate substitute work that he or she was capable of performing, but unreasonably failed to undertake; and
(k) "Victim" means a person who suffers personal injury or death as a result of criminally injurious conduct.
SECTION 3. Section 99-41-7, Mississippi Code of 1972, is amended as follows:
99-41-7. There is hereby created in the Attorney General's Office the Division of Victim Compensation * * *, hereafter referred to as "division." In the Division of Victim Compensation there is hereby created the position of Director of Victim Compensation, hereafter referred to as "director." The duties of the director shall include receipt, investigation, verification and adjudication of a claim for compensation under the provisions of this chapter. The director shall be appointed by the Attorney General.
SECTION 4. Section 99-41-9, Mississippi Code of 1972, is amended as follows:
99-41-9. In addition to any other powers and duties specified elsewhere in this chapter, the division is hereby authorized to:
(a) Except as otherwise provided by this chapter, regulate the procedures for the director to expedite his functions and adopt rules and regulations for the position of director;
(b) Define any term not defined in this chapter in a manner not inconsistent with this chapter;
(c) Prescribe forms necessary to carry out the purposes of this chapter and make such forms available for use in making applications for compensation;
(d) Authorize the director to take judicial notice of general, technical and scientific facts within the director's specialized knowledge;
(e) Publicize the availability of compensation and information regarding the filing of claims and ask that public officials and law enforcement agencies take reasonable care that victims be informed about the availability of compensation and the procedure for applying for compensation;
(f) Apply for funds from and to submit all necessary forms to any federal agency participating in a cooperative program to compensate victims of crimes, and to apply for and accept any gifts, bequests, grants, donations or funds from other sources, public or private, for carrying out the provisions of this chapter; and
(g) Adopt such rules and regulations as shall be necessary for carrying out the provisions of this chapter.
SECTION 5. Section 99-41-11, Mississippi Code of 1972, is amended as follows:
99-41-11. (1) The director shall award compensation for economic loss arising from criminally injurious conduct if satisfied by a preponderance of the evidence that the requirements for compensation have been met.
(2) The director shall make such investigations, administer such oaths or affirmations and receive such evidence as he deems relevant and necessary to make a determination on any application received. The director shall have the power to subpoena witnesses, compel their attendance and require the production of records and other evidence. Application to a court for aid in enforcing a subpoena may be made in the name of the director. To the extent that funds are appropriated or otherwise available, the division may employ such personnel, including expert witnesses, as may be required in connection with particular applications before the director, and the director may take judicial notice of general, technical and scientific facts within his specialized knowledge.
(3) The director may settle a claim by stipulation, agreed settlement, consent order or default.
(4) The director may request access to and obtain from prosecuting attorneys or law enforcement officers, as well as state and local agencies, any reports of investigations or other data necessary to assist the director in making a determination of eligibility for compensation under the provisions of this chapter.
(5) Notwithstanding any other provision of law, every law enforcement agency and prosecuting attorney in the state shall provide to the director, upon request, a complete copy of the report regarding the incident and any supplemental reports involving the crime or incident giving rise to a claim filed pursuant to this chapter within thirty (30) days of such request.
(6) Any statute providing for the confidentiality of a claimant or victim's court record shall not be applicable under this chapter, notwithstanding the provisions of any other law to the contrary; provided, however, any such record or report which is otherwise protected from public disclosure by the provisions of any other law shall otherwise remain subject to the provisions of such law.
(7) The director may require that the claimant submit with the application material substantiating the facts stated in the application.
(8) After processing an application for compensation filed under rules and regulations promulgated by the division, the director shall enter an order stating:
(a) Findings of fact;
(b) The decision as to whether or not compensation shall be awarded;
(c) The amount of compensation, if any, due under this chapter;
(d) The person or persons to whom any compensation should be paid;
(e) The percentage share of the total of any compensation award and the dollar amount each person shall receive; and
(f) Whether disbursement of any compensation awarded shall be made in a lump sum or in periodic payments.
(9) The director on his own motion or on request of the claimant may reconsider a decision granting or denying an award or determining its amount. An order on reconsideration of an award shall not require a refund of amounts previously paid unless the award was obtained by fraud.
(10) If a claimant disagrees with the decision of the director, he may contest such decision to the deputy director of the division within fifteen (15) days after notification of issuance of the decision. There shall be no appeal of a decision of the director except as set forth in this subsection.
(11) In a contested case, all parties shall be afforded an opportunity for a hearing after reasonable notice pursuant to regulations promulgated pursuant to this chapter and may offer evidence and argument on any issue relevant to the claim and may examine witnesses and offer evidence in reply to any matter of an evidentiary nature relevant to the claim. The deputy director shall have the power to subpoena witnesses, compel their attendance and require the production of records and other evidence. The decision of the deputy director becomes the final decision of the division. A record of the hearing in a contested case shall be made and shall be transcribed upon request of any party who shall pay transcription costs unless otherwise ordered by the deputy director.
SECTION 6. Section 99-41-13, Mississippi Code of 1972, is amended as follows:
99-41-13. Any claimant aggrieved by a final decision of the deputy director of the division shall be entitled to judicial review thereof in the manner provided in this section.
(a) An appeal may be taken by such claimant to the circuit court of the claimant's residence or the Circuit Court of the First Judicial District of Hinds County by filing a petition with the clerk of the court and executing and filing bond payable to the State of Mississippi with sufficient sureties to be approved by the clerk of the court, conditioned upon the payment of all costs of appeal, including the cost of preparing the transcript of the hearing before the division. The petition and bond shall be filed within thirty (30) days of the receipt of the final decision of the deputy director of the division. Upon approval of the bond, the clerk of the court shall notify the department, which shall prepare its record in the matter and transmit it to the circuit court.
(b) The scope of review of the circuit court in such cases shall be limited to a review of the record made before the division to determine if the action of the division is unlawful for the reason that it was:
(i) Not supported by a preponderance of the evidence;
(ii) Arbitrary and capricious; or
(iii) In violation of a statutory right of claimant.
(c) No relief shall be granted based upon the court's finding of harmless error.
(d) Any party aggrieved by action of the circuit court may appeal to the Supreme Court in the manner provided by law.
SECTION 7. Section 99-41-17, Mississippi Code of 1972, is amended as follows:
99-41-17. (1) Compensation shall not be awarded under this chapter:
(a) Unless the criminally injurious conduct occurred after July 1, 1991;
(b) Unless the claim has been filed with the director within twenty-four (24) months after the crime occurred, or in cases of child sexual abuse, within twenty-four (24) months after the crime was reported to law enforcement or the Department of Human Services, but in no event later than the child's
twenty-first birthday;
(c) To a claimant or victim who was the offender or an accomplice to the offender, or, except in cases of children under the age of consent as specified in Section 97-3-65, 97-3-97 or 97-5-23, Mississippi Code of 1972, who encouraged or in any way knowingly participated in criminally injurious conduct;
(d) To another person, if the award would unjustly benefit the offender or accomplice;
(e) Unless the criminally injurious conduct resulting in injury or death was reported to a law enforcement officer within seventy-two (72) hours after its occurrence or unless it is found that there was good cause for the failure to report within such time;
(f) To any claimant or victim when the injury or death occurred while the victim was confined in any federal, state, county or city jail or correctional facility;
(g) If the victim was injured as a result of the operation of a motor vehicle, boat or airplane, unless the vehicle was used by the offender (i) while under the influence of alcohol or drugs, or (ii) as a weapon in the deliberate attempt to injure or cause the death of the victim;
(h) If, following the filing of an application, the claimant failed to take further steps as required by the division to support the application, within forty-five (45) days of such request made by the director, or failed to otherwise cooperate with requests of the director to determine eligibility unless failure to provide information was beyond the control of the claimant;
(i) To a claimant or victim who, subsequent to the injury for which application is made, is convicted of any felony which is a violation of the Controlled Substances Act, or in which a weapon was used or possessed or in which any personal injury was committed or attempted, and the conviction becomes known to the director.
(2) Compensation otherwise payable to a claimant shall be diminished to the extent:
(a) That the economic loss is recouped from other sources, including collateral sources; and
(b) Of the degree of responsibility for the cause of injury or death attributable to the victim or claimant.
(3) Upon a finding that the claimant or victim has not fully cooperated with appropriate law enforcement agencies and prosecuting attorneys, an award of compensation may be denied, withdrawn or reduced.
SECTION 8. Section 99-41-27, Mississippi Code of 1972, is amended as follows:
99-41-27. (1) Claims shall be made under oath. The filing of a false claim for compensation pursuant to this chapter shall constitute a misdemeanor and shall be punishable by a fine of not to exceed One Thousand Dollars ($1,000.00), or by imprisonment in the county jail for a term not to exceed one (1) year, or by both such fine and imprisonment, and the person convicted shall, as part of the sentence in either case, be required to repay to the Crime Victims' Compensation Fund the amount received pursuant to the false claim.
(2) Any person who shall knowingly furnish any false information or knowingly fails or omits to disclose a material fact or circumstance with the intent to defraud the division for compensation pursuant to this chapter shall be guilty of a misdemeanor and shall be punished by a fine not to exceed One Thousand Dollars ($1,000.00), or by imprisonment in the county jail for a term not to exceed one (1) year, or both, and the person convicted shall, as part of the sentence in either case, be required to repay to the Crime Victims' Compensation Fund the total amount received pursuant to the false claim.
(3) If a payment or overpayment of compensation is made because of clerical error, mistaken identity, innocent misrepresentation by or on behalf of the recipient of the compensation award or other circumstances of a similar nature not induced by fraud by or on behalf of the recipient, the recipient is liable for repayment of the compensation. The division may waive, decrease or adjust the amount of the repayment of the compensation.
SECTION 9. Section 99-41-29, Mississippi Code of 1972, is amended as follows:
99-41-29. (1) From and after July 1, 1990, there is hereby created in the State Treasury a special interest-bearing fund to be known as the Crime Victims' Compensation Fund. The purpose of the fund shall be to provide for the payment of awards of compensation pursuant to this chapter and the payment of all necessary and proper expenses incurred by the division in the administration of this chapter. Expenditures from the fund shall be paid by the State Treasurer upon warrants issued by the Department of Finance and Administration, and upon requisitions signed by the Attorney General or his duly designated representative in the manner provided by law. The fund shall be a continuing fund, not subject to fiscal-year limitations, and shall consist of: (a) monies appropriated by the Legislature for the purposes of compensating the victims of crime and other claimants under this chapter; (b) the interest accruing to the fund; (c) monies recovered by the director under the provisions of Section 99-41-21; (d) monies received from the federal government; and (e) monies received from such other sources as may be provided by law.
(2) No compensation payments shall be made which exceed the amount of money in the fund. The state shall not be liable for a written order to pay compensation, except to the extent that monies are available in the fund on the date the award is ordered. The division shall establish such rules and regulations as shall be necessary to adjust awards and payments so that the total amount awarded does not exceed the amount of money on deposit in the fund. Such rules and regulations may include, but shall not be limited to, the authority to provide for suspension of payments and proportioned reduction of benefits to all claimants; provided, however, no such reductions as provided for shall entitle claimants to future retroactive reimbursements in future years.
SECTION 10. Section 99-41-31, Mississippi Code of 1972, is amended as follows:
99-41-31. It is unlawful, except for purposes directly connected with the administration of the division, for any person to solicit, disclose, receive or make use of or authorize, knowingly permit, participate in or acquiesce in the use of any list, or names of, or information concerning persons applying for or receiving awards under this chapter without the written consent of the claimant or recipient. The records, papers, files and communications of the division, director, staff and agents must be regarded as confidential information and privileged and not subject to disclosure under any condition including the Mississippi Public Records Act of 1983.
SECTION 11. This act shall take effect and be in force from and after July 1, 2004.