ADMINSTRATIVE RULES FOR MAGISTRATE COURTS
RULE 1. HOURS OF MAGISTRATE COURT
(a) Regular Office Hours. Every magistrate court shall be
open on each judicial day except Saturday. The hours of magistrate
court in each county shall be approved by the supervising circuit
judge and submitted, in written form, to the Administrative Office
of the Supreme Court of Appeals. These hours shall, as nearly as
possible, correspond to the hours of the county courthouse.
The supervising circuit judge may, or at the direction of the
Supreme Court of Appeals shall, also direct one magistrate, on a
rotating basis, to be at the magistrate court offices at other
designated evening, weekend and holiday hours, or at all times.
Such evening, weekend and holiday hours shall be subject to the
approval of the Supreme Court of Appeals through the Administrative
Office of the Supreme Court of Appeals.
(b) On Call. One magistrate in each county, on a rotating
basis, shall be on call at all times other than regular office
hours. On-call duties shall extend, in criminal cases, to initial
appearances; to taking bond for someone who is in jail; and to
receiving and acting upon emergency search warrants, domestic
violence matters, and juvenile abuse and neglect matters.
(1) Initial Appearances and Taking Bond in Criminal Cases.
Within the time periods provided for below, the on-call magistrate
shall contact the county or regional jail, whichever applies, and
the juvenile detention facility that serves the county, and shall
inquire whether any person has been arrested in the county since the close of regular business hours or since the last contact with
the jail, or whether anyone confined to the jail is able to post
bond. If an arrest has been made or if a prisoner is able to post
bond, the magistrate shall proceed immediately to the magistrate
court offices to conduct an initial appearance and to set bail for
such person, or to accept bond for someone already in jail.
It shall be sufficient to comply with this rule if the on-call
magistrate contacts the jail and juvenile detention facility:
(A) Between 10:00 p.m. and 11:00 p.m. Monday through Friday;
(B) Between 10:00 a.m. and 11:00 a.m. and between 10:00 p.m.
and 11:00 p.m. on Saturdays and holidays; and
(C) Between 12:00 p.m. and 1:00 p.m. and between 10:00 p.m.
and 11:00 p.m. on Sundays.
(2) Emergency Search Warrants, Domestic Violence Matters, and
Juvenile Abuse and Neglect Matters. The on-call magistrate shall
be available and responsible for receiving and acting upon
applications for emergency search warrants and petitions for
domestic violence protective orders. The on-call magistrate shall
also respond at any time for the purpose of holding a temporary
custody proceeding pursuant to W.Va. Code §49-6-3(c). When
contacted concerning any of these matters, the on-call magistrate
shall conduct such emergency action as may be necessary at the
magistrate court offices or at any other appropriate location
approved for such purpose by the supervising circuit judge.
[Effective July 1, 1988; amended effective January 1, 1990; January
1, 1991; September 1, 1993; July 1, 1994; June 22, 2000.]
RULE 1A. CONDUCT OF PROCEEDINGS; JUDICIAL DAY
(a) Except as provided in Rule 1, magistrates shall conduct
all judicial proceedings in the magistrate court offices in the
county.
(b) "Judicial day" for magistrate courts shall mean every day
except Sunday and any legal holiday listed in or declared pursuant
to W.Va. Code §2-2-1. A magistrate may not conduct any judicial
proceeding or issue any order on any nonjudicial day except for
proceedings expressly required by Rule 1(b).
[Adopted effective August 1, 1991; amended effective September 1,
1993.]
RULE 1B. DISQUALIFICATION
(a) Form of Motion. A party or attorney for a party to any
magistrate court proceeding except an initial appearance may file
a written motion for disqualification of a magistrate. The motion
shall be in the form of an affidavit, and shall state that it is
made in good faith and shall include specific facts and reasons
supporting disqualification.
(b) Time for Filing Motion. Unless good cause is shown, the
following time limits apply to motions to disqualify. A motion for disqualification shall be filed no later than 10 days before the
first scheduled trial date except for cases in which a final
hearing is to be held within 10 days of filing. In a case
involving such an expedited proceeding, a motion for
disqualification shall be filed before the hearing begins.
(c) Duties in Response to Disqualification Motion.
(1) All Proceedings. Upon the filing of a disqualification
motion, the magistrate shall immediately forward to the supervising
circuit judge a copy of the motion and any relevant evidence, along
with a written statement as to why the magistrate believes there is
or is not good cause for disqualification. The supervising circuit
judge, applying the pertinent provision(s) of the Code of Judicial
Conduct, shall grant or deny the disqualification motion. The
filing of a disqualification motion shall not be, in and of itself,
a ground for disqualification. Until the issue of disqualification
is decided, the magistrate shall proceed no further in the case and
as necessary shall, with notice to the parties, continue any
earlier-scheduled proceeding in the case.
(2) Time Limit for Ruling. When a motion to disqualify is
filed in a case involving non-expedited proceedings, the
supervising judge shall by order rule on the motion within 5 days
of receiving the materials from the magistrate. When a motion to
disqualify is filed in a case involving expedited proceedings, the
supervising circuit judge shall by order rule on the motion within
3 days of receiving the materials from the magistrate.
(3) The supervising judge may, by administrative order,
establish supplemental procedures consistent with this Rule for the
purpose of preventing the undue delay of expedited proceedings that
could otherwise result from disqualification or recusal requests.
(d) Voluntary Recusal. A magistrate wishing to recuse himself
or herself voluntarily from any case or proceeding other than an
initial appearance shall submit a written request to the
supervising circuit judge along with a statement of reasons why the
magistrate believes recusal is required. The supervising circuit
judge shall review and rule on any request by a magistrate for
voluntary recusal within the same time limits and in the same
manner as for a disqualification motion filed by a party. Neither
the magistrate seeking voluntary recusal nor the magistrate court
clerk shall take any action toward reassignment of a case until the
supervising circuit judge has, by order, ruled on the request.
(e) Case and Assignment.
(1) When a magistrate is disqualified or recused, the
magistrate shall immediately transfer all matters relating to the
case to the magistrate court clerk, who shall forthwith assign the
case to another magistrate within the county pursuant to Rule 2 of
these rules or, if no other magistrate is available, shall
forthwith notify the supervising circuit judge of the need for the
assignment of a magistrate from another county to hear the case.
(2) The magistrate to whom the case is reassigned shall,
within 5 days of receiving the case, set a new return date and notify all parties thereof.
(3) The magistrate court clerk shall assign to a recused
magistrate another case to replace the case transferred as the
result of a recusal.
(f) Challenge to Disqualification Rulings. All rulings
relating to disqualification or recusal of a magistrate shall be
interlocutory in nature and are not subject to direct or immediate
appeal. The sole remedy shall be appeal of the final magistrate
court judgment in the case.
[Adopted effective March 1, 1997.]
RULE 2. CASELOAD ASSIGNMENT AND DISTRIBUTION
(a) Caseload Assignment. Caseload assignment shall be
conducted in such manner that, to the greatest extent possible, a
plaintiff, petitioner, or complainant shall be unable to select a
magistrate. All cases shall be centrally assigned by the
magistrate clerk regardless of the magistrate before whom the civil
or criminal complaint is filed. No magistrate may conduct hearings
or enter orders in a case assigned to another magistrate, except
upon consent of the magistrate to whom such case is assigned or
upon order of the Circuit Court or the Supreme Court of Appeals;
Provided, however, that any magistrate shall entertain a motion for
a change of bail or bond and shall accept an appeal if the assigned
magistrate is off duty or otherwise unavailable to do so.
(b) Caseload Distribution. Caseload shall be distributed as
evenly and randomly as possible among magistrates in a county. The
magistrate court clerk shall identify substantial discrepancies in
work load and bring such discrepancies to the attention of the
supervising circuit judge. The supervising circuit judge, as
administrative head of the magistrate court, shall devise a case
rotation system for each county to alleviate such case-load
discrepancies.
[Effective July 1, 1988; amended effective August 1, 1991.]
RULE 3. BAILIFF
(a) At any time the magistrate requests a bailiff, the
magistrate court clerk shall notify the sheriff in writing, if
possible, not less than 5 days in advance of this need. When the
request is made less than 48 hours before the time for the
bailiff's service, the sheriff may deny such request if adequate
personnel are not available. Where circumstances arise that in the
judgment of the magistrate jeopardize the safety of the magistrate
court, the sheriff shall provide bailiff service forthwith.
(b) The supervising circuit judge may promulgate such further
guidelines as may be deemed necessary regarding the service of
sheriffs and their deputies as bailiffs in magistrate court.
[Effective July 1, 1988.]
RULE 4. JURIES
(a) When a case will be tried before a jury, the magistrate
clerk shall forthwith, but no later than five days before the
scheduled trial date, inform the circuit clerk of the need for 14
qualified jurors for magistrate court or more than 14 if the
magistrate, with the concurrence of the supervising circuit judge,
deems such additional jurors necessary to assure that a panel of 10
jurors will be available following examination and dismissal of
jurors for cause.
(b) If, before the trial date, it becomes known that the jury
panel will not be needed, the magistrate clerk shall forthwith so
inform the circuit clerk.
(c) Each time a jury panel is called, more than one jury trial
should be scheduled, if possible, in order to minimize costs.
(d) Upon completion of service by a jury in magistrate court,
the magistrate clerk shall forthwith certify to the circuit clerk
the number of days on which each juror appeared as required.
[Effective July 1, 1988; amended effective January 1, 1990; August
1, 1991; July 1, 1994.]