U.S.

Department of Justice

Civil Rights Division

Coordination and Review Section

P.O. BOX 66118

Washington, D.C. 20035-6118

XX DEC 19 1994
XX

RE: Complaint Number XX (Circuit Court of Berkeley

County)
Complaint Number XX (Supreme Court of Appeals of
West Virginia)

Dear Ms. XX :

This letter constitutes our Letter of Findings with respect

to the complaint you filed on behalf of your husband with the
Department of Justice, Civil Rights Division, coordination and
Review section, alleging violations of Title II of the Americans
with Disabilities Act of 1990 (ADA) by the Circuit Court of
Berkeley County, West Virginia, and the Supreme Court of Appeals
of West Virginia. Title II prohibits discrimination against
qualified individuals with disabilities on the basis of
disability by State and local governments.

Specifically, you stated that the Circuit Court violated

Title II when it granted the bondsman's request to be released of
responsibility for your husband's bail and, later, when it
refused to reinstate the bail. You further stated that the West
Virginia Supreme Court of Appeals violated Title II when it
denied your husband's appeal to have his bail reinstated. You
allege that these actions were taken on the basis of your
husband's mental disability, (post-traumatic stress syndrome).

The Coordination and Review Section has completed its

investigation of your complaint. We do not find any reason to
believe that the Circuit Court or the Supreme Court of Appeals
has violated Title II for the reasons explained below.
01-00237

-2-

Facts

Your husband was arrested for assault and robbery on

XX . Your husband has been diagnosed as having
post-traumatic stress syndrome. On May 1, 1988, you paid a
bondsman a $5,000 fee for posting a $50,000 bail. Your husband
never went to trial because he was declared incompetent to stand
trial at numerous status hearings. After each status hearing, he
was committed to Weston State Hospital or the Veterans'
Administration Hospital in Martinsburg for treatment and
evaluation. At a status hearing an March 14, 1990, the bondsman
requested to be relieved of responsibility for your husband's
bail because of the length of the case. The judge granted the
bondsman's request. The bondsman retained the fee. The amount
of bail remained the same and the court stated that bail could be
posted through another bondsman, which would require another
$5,000 fee. On September 1, 1992, the judge refused to reinstate
the original bail. On October 16, 1992, the West Virginia
Supreme Court denied your husbands appeal to have his original
bail reinstated. Your husband continued to go back and forth
between jail and the hospital for treatment.

West Virginia law allows for the granting of bail to a

person arrested for an offense not punishable by life
imprisonment. (WV St 62-1C-1) The continuance of the bail is
directed by the court that initiated the bail. The denial of
bail may be reviewed by the lower appellate court and, if
necessary, by the West Virginia Supreme Court of Appeals.

Legal Requirements

Under Title II, "no qualified individual with a disability

shall, on the basis of disability, be excluded from participation
in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination
by any public entity." (28 C.F.R. 35.130(a)) Title II further
requires that a public entity not deny a qualified individual
with a disability the opportunity to participate in or benefit
from one of its programs or afford a qualified individual with a
disability an opportunity to participate in and benefit from its
programs that is not equal to that afforded others. (28 C.F.R.
35.130 (b)(1)(i) and (ii))

Analysis

The Circuit Court relieved the bondsman of the responsi-

bility for your husband's bail after two years because of the
length of time that the charges had been pending. Because this
happened on March 14, 1990, prior to January 26, 1992, the
effective date of Title II, this action is not covered by Title
II of the ADA.
01-00238
-3-

The defendant has a right to petition for reinstatement of

bail and to appeal a denial of the petition to the West Virginia
Supreme Court of Appeals. Your husband petitioned the Circuit
Court of Berkeley to have his original bail reinstated and the
petition was denied on September 1, 1992. He filed an appeal
with the West Virginia Supreme Court of Appeals, and the appeal
was denied on September 29, 1992.

We have determined that the Circuit Court and the Supreme

Court of Appeals adhered to the prescribed procedures concerning
bail. The reason the Circuit Court relieved the bondsman of his
responsibility for your husband's bail was the length of time
that charges had been pending against your husband. We find that
this reason is both legitimate and nondiscriminatory. The
Circuit Court reaffirmed its decision when it refused to
reinstate the original bail. The Supreme Court of Appeals also
concurred with the action of the Circuit Court when it denied
your husband's appeal to have his original bail reinstated.

Based upon the facts and legal requirements discussed above,

we have determined that the Circuit Court and the Supreme Court
of Appeals are not in violation of Title II with respect to the
decisions they made not to reinstate your husband's original
bail. If you are dissatisfied with our determination concerning
these entities, you may file a private complaint in the
appropriate United States District Court under Title II of the
ADA.

You and your husband should be aware that no one may

intimidate, threaten, coerce, or engage in other discriminatory
conduct against anyone because he or she has either taken action
or participated in an action to secure rights protected by the
ADA. Any individual alleging such harassment or intimidation may
file a complaint with the Department of Justice. We would
investigate such a complaint if the situation warrants.

Under the Freedom of Information Act, 5 U.S.C. 552, it may

be necessary to release this document and related correspondence
and records upon request. However, if such a request is made, we
will seek to protect, to the extent provided by law, personal
information which, if released, could constitute an unwarranted
invasion of privacy.

01-00239
​ -4-

If you have any questions concerning this letter, please

feel free to call Linda King at (202) 307-2231.

Sincerely,

Merrily A. Friedlander
Acting Chief
Coordination and Review Section
Civil Rights Division

cc: Circuit Court of Berkeley County

Supreme Court of Appeals of West Virginia
01-00240