H. B. 2259
(By Delegates Staton, Fleischauer, Amores and Faircloth)
[Introduced February 27, 1997; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section seven, article four, chapter
fifty of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to procedures to be
followed when disqualification of magistrate asserted.
Be it enacted by the Legislature of West Virginia:
That section seven, article four, chapter fifty of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted, to read as follows:
ARTICLE 4. PROCEDURE BEFORE TRIAL.
§50-4-7. Disqualification of magistrate.
Any party to a civil or criminal proceeding before a
magistrate in any county wherein there is more than one
magistrate may file an affidavit that the magistrate before whom
the matter is pending has a personal bias or prejudice either
against him or in favor of any opposite party or that such
magistrate has counseled with any opposite party with respect to
the merits of the proceeding. The affidavit shall state the
facts and reasons for belief in the truth thereof. Such affidavit must be filed within such time as may be provided by the supervisory rules of the supreme court of appeals. The
supreme court of appeals shall provide a form affidavit which
shall be made available to all parties and which shall comply
with the requirements of this section.
Upon the timely filing of such affidavit, the magistrate
shall transfer all matters relating to the case to the magistrate
court clerk, who shall thereupon assign and transfer the matter
to be heard by some other magistrate within the county upon a
basis to be established by the judge of the circuit court, or the
chief judge thereof if there is more than one judge of the
circuit court. Such transfer and assignment shall be permitted,
however, only if there is some other magistrate in the county
before whom the matter had not been previously pending. No party
shall be entitled to cause such a transfer more than once.
The magistrate to whom the matter is assigned shall set a
new return date not more than five days from his receipt of the
matter, shall notify all parties thereof, and shall proceed with
the matter as if it had been originally assigned to him A motion
for the disqualification of a magistrate in a magistrate court
proceeding shall be filed in accordance with the requirements of
the rules of the supreme court of appeals.
NOTE: The purpose of this bill is to clarify that an
assertion that a magistrate should be disqualified from presiding
over a magistrate proceeding must be pursued in a manner
consistent with the provisions of rules of the Ssupreme Ccourt of
Appeals.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
Email
Webmaster | © 2024 West Virginia Legislature **
