Senate Bill No. 361
(By Senator Unger, Craigo, Anderson, Bowman, Redd and Boley)
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[Introduced February 1, 2000; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section eleven, article eleven,
chapter five of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to removing the
requirement that a party aggrieved by a final order of the
human rights commission must file an application for review
with the supreme court of appeals in favor of a right to
appeal to the appropriate circuit court.
Be it enacted by the Legislature of West Virginia:
That section eleven, article eleven, chapter five of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 11. HUMAN RIGHTS COMMISSION.
§5-11-11. Appeal and enforcement of commission orders.
(a) From any final order of the commission, an application
for review may be prosecuted by either a party shall have the
right, to the supreme court of appeals within thirty days from
the receipt thereof, to appeal to the circuit court of Kanawha
County or the circuit court of the county wherein the appealing
party resides or does business by the filing of a petition
therefor to such the court against the commission and the adverse
party as respondents, and the clerk of such the
court shall
notify each of the respondents and the commission of the filing
of such the petition. The commission shall, within ten days
after receipt of such the
notice, file with the clerk of the
court the record of the proceedings had before it, including all
the evidence. The court or any judge thereof in vacation may
thereupon determine whether or not a review the petition shall be
granted. And if granted to a nonresident of this state, he or
she shall be required to execute and file with the clerk before
such the
order or review shall become effective, a bond, with
security to be approved by the clerk, conditioned to perform any
judgment which may be awarded against him or her thereon. The
commission may certify to the court and request its decision of any question of law arising upon the record, and withhold its
further proceeding in the case, pending the decision of court on
the certified question, or until notice that the court has
declined to docket the same. If a review be granted or the
certified question be docketed for hearing, the clerk shall
notify the board and the parties litigant or their attorneys and
the commission of the fact by mail. If a review be granted or
the certified question docketed, The case shall be heard by the
court in the manner provided for other cases. Provided, That in
the following cases the appellant may prosecute the appeal in the
circuit court of Kanawha County pursuant to section four, article
five, chapter twenty-nine-a of this code: (1) Cases in which the
commission awards damages other than back pay exceeding five
thousand dollars; (2) cases in which the commission awards back
pay exceeding thirty thousand dollars; and (3) cases in which the
parties agree that the appeal should be prosecuted in circuit
court. In such cases the appellee shall respond within thirty
days of filing and the court shall make a determination within
the following thirty days: Provided, however, That appeals
filed erroneously in the circuit court after the first day of
April, one thousand nine hundred eighty-seven, and prior to the first day of July, one thousand nine hundred eighty-nine, may be
prosecuted in the supreme court of appeals without regard to the
time limits specified herein: Provided further, That any party
adversely affected by the final judgment of the circuit court of
Kanawha County may seek review thereof by appeal to the supreme
court of appeals pursuant to section one, article six, chapter
twenty-nine-a of this code filed within thirty days of entry of
the final order of the circuit court.
The appeal procedure contained in this subsection shall be
the exclusive means of review, notwithstanding the provisions of
chapter twenty-nine-a of this code: Provided, That such
exclusive means of review shall not apply to any case wherein an
appeal or a petition for enforcement of a cease and desist order
has been filed with a circuit court of this state prior to the
first day of April, one thousand nine hundred eighty-seven.
(b) In the event that any person shall fail to obey a final
order of the commission within thirty days after receipt of the
same, or, if applicable, within thirty days after a final order
of the circuit court, or the supreme court of appeals a party or
the commission may seek an order from the circuit court for its
enforcement. Such The
proceedings shall be initiated by filing of a petition in said court, and served upon the respondent in
the manner provided by law for the service of summons in civil
actions; a hearing shall be held on such the
petition within
sixty days of the date of service. The court may grant
appropriate temporary relief, and shall make and enter upon the
pleadings, testimony and proceedings such order as is necessary
to enforce the order of the commission or supreme court of
appeals a court.
NOTE: The purpose of this bill is to reduce the complexity
and expense of testing a Human Rights Commission final order by
providing a right to appeal to the circuit court of the county of
the appealing party's residence instead of requiring a petition
for review to be filed with the supreme court of appeals.
Strike-throughs indicate language which would be stricken
from the present law, and underscoring indicates new language
which would be added.