NOTE: The Administrative Rules for the Magistrate Courts of West Virginia became effective on July 1, 1988
Table of Contents
- Rule 1. Hours of magistrate court.
- Rule 1A. Conduct of proceedings; judicial day.
- Rule 1B. Disqualification.
- Rule 1C. Magistrate Assistant's hours and additional duties.
- Rule 2. Caseload assignment and distribution.
- Rule 3. Baliff.
- Rule 4. Juries
- Rule 5. Witness fees.
- Rule 6. Magistrate court account.
- Rule 7. Manner of payment.
- Rule 7A. Credit cards and debit cards.
- Rule 8. Expenditures from magistrate court fund.
- Rule 9. Cameras in courtrooms.
- Rule 10. Appearances on behalf of corporations.
- Rule 11. Copies.
- Rule 12. Retention of records.
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.
(As amended by order entered December 18, 1989, effective January 1, 1990; by order entered November 29, 1990, effective January 1, 1991; by order entered July 21, 1993, effective September 1, 1993; by order entered June 30, 1994, effective July 1, 1994; and by order June 22, 2000, effective July 1, 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 by order entered July 1, 1991, effective August 1, 1991; and amended by order entered July 21, 1993, 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 circuit 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 circuit 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 request.
(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 by order entered January 30, 1997, effective March 1, 1997.)
Rule 1C. Magistrate Assistant's Hours and Additional Duties.
All magistrate assistants must work a 40 hour work week. When a magistrate is scheduled to be “on-call,” the magistrate’s assistant is still required to work during regularly scheduled business hours. However, if the assistant is required by a magistrate to accompany the magistrate to the court after regularly scheduled business hours, the assistant shall be given credit for the time actually spent performing duties in assistance to the “on-call” magistrate. That credit shall be applied toward the assistant’s next required 40 hour work week. If a magistrate assistant has completed the assistant’s duties on a specified day, it shall be the assistant’s responsibility to assist in the magistrate court clerk’s office, during regular business hours, performing the legal and administrative tasks set out in the relevant statutes and court rules. Work done by a magistrate assistant in the magistrate court clerk’s office shall be performed at the direction of the magistrate court clerk or their designee. (Adopted by order entered November 17, 2010, effective January 1, 2011.)
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. (As amended by order entered July 1, 1991, 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.
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. (As amended by order entered November 29, 1989, effective January 1, 1990; by order entered July 1, 1991, effective August 1, 1991; and by order entered June 30, 1994, effective July 1, 1994.)
Rule 5. Witness fees.
(a) The magistrate assistant shall certify to the magistrate court clerk the number of days on which each witness who is to be paid by the State has appeared and the number of miles traveled. The magistrate court clerk shall prepare and distribute to each such witness a certificate showing the number of days the individual served as a witness, the amount received per day, the total number of miles traveled by the witness, and the total amount due. The witness, upon presentation of the certificate to the sheriff, shall receive the amount due.
(b) No person who is employed as a law enforcement officer or other state, county or municipal employee shall be paid a fee for appearing as a witness in any magistrate court in his or her official capacity.
(c) The sheriff shall be reimbursed by the State for these expenses upon submission to the Supreme Court Administrative Office of the original witness certificates, endorsed by the witnesses and attested by the sheriff. (As amended by order entered July 1, 1991, effective August 1, 1991.)
Rule 6. Magistrate court account.
(a) A magistrate court account shall be maintained by the magistrate court clerk. All collections by the magistrate court shall be deposited daily into this account.
(b) The magistrate court clerk shall establish the magistrate court account as an interest-bearing checking account, unless written exemption is made by the Administrative Director. The interest, reduced by the amount of any service charges incurred as a result of establishing and maintaining the interest-bearing account, shall be remitted monthly to the state treasurer by the magistrate court clerk. Only the magistrate court clerk, the supervising circuit judge, and such court employees designated by order of the supervising circuit judge shall have withdrawal signature authority for the magistrate court account. The account shall be entitled "Magistrate Court of _____ County, WV, _____, Magistrate Court Clerk."
(c) One hour before the end of each shift, the magistrate assistant shall close out the daily activity report and prepare the corresponding deposit. Such deposit shall be made the same day in the bank account that the magistrate court clerk has designated for such use.
(d) The magistrate assistant shall promptly forward a copy of the daily activity report, along with a copy of the deposit slip, a copy of each receipt issued when a collection was made, and all related legal documents that were prepared by the magistrate at the time a collection was made to the magistrate court clerk. This information shall be delivered to the magistrate court clerk's office by the magistrate, the magistrate assistant, or by certified mail.
(e) Any funds accepted by the magistrate court for payment of judgment and costs to the prevailing party in a civil suit shall be deposited into the magistrate judicial account. The magistrate clerk shall promptly issue a check for such amount to the prevailing party, unless such payment has been made to the court by personal check, in which case the clerk shall not issue a check to the prevailing party for 2 weeks from deposit or until such personal check has been otherwise cleared. (As amended by order entered July 21, 1993, effective September 1, 1993.)
Rule 7. Manner of payment.
(a) Fees, costs, bonds, fines or other sums charged or assessed in magistrate court in civil
or criminal matters may be paid to the court by means of
(1) United States currency;
(2) Personal check, upon presentment of proper identification such as driver's license, payable to the magistrate court of the particular county, except in such instances where the drawer of the check has a known history of writing checks unsupported by sufficient funds or for the posting of bond, if, in the discretion of the magistrate such personal check does not constitute sufficient security for the purposes of the bond; in the event, however, that a personal check is accepted for the posting of a bond, such amount, once deposited, shall not be refunded until the magistrate clerk verifies that the amount deposited has been cleared;
(3) Cashier's check, certified check, money order, or traveler's check; or
(4) Credit or debit cards in accordance with the terms and conditions established by the Administrative Director. Any associated fees charged for use of the credit or debit card by a banking institution shall be paid by the Administrative Office.
(b) Except as authorized by W. Va. Code § 50-3-2a, payment of fines and costs shall be made in full. Partial payments of fines and costs, made pursuant to W. Va. Code § 50-3-2a, shall be credited to amounts due in the following order:
Magistrate Court Fund
Regional Jail Fund
Worthless Check Fund
Per Diem Regional Jail Fee
Community Corrections Fund
Regional Jail Operational Fund
Law Enforcement Training Fund
Crime Victims Compensation Fund
Court Security Fund
Courthouse Improvement Fund
Litter Control Fund
Sheriff arrest fee
Worthless Check Payee
Teen Court Fund
Other costs, if any
(As amended by order entered July 1, 1991, effective August 1, 1991; by order entered July 10, 1996, effective September 1, 1996; and by order entered May 21, 2003, effective August 1, 2003; and by order entered and effective May 22, 2007.)
Rule 7A. Credit cards and debit cards.
(a) The honoring of a credit or debit card pursuant to Rule 7(a)(4) constitutes payment of the amount owing to the Magistrate Court as of the date the credit or debit card transaction results in a corresponding deposit to the account designated by the Administrative Director.
(b) If any credit or debit card is not paid following due presentment or is charged back to the Magistrate Court for any reason, any record of payment made by the Magistrate Court honoring the credit or debit card shall be void. Any receipt issued in acknowledgment of payment shall also be void. The obligation of the cardholder shall continue as an outstanding obligation as if no payment had been attempted or made. The Magistrate Court may collect a service charge equal to any fee assessed to the Magistrate Court by the credit card company or bank as a result of insufficient funds and/or charge back from the person who owes the fine, fee and/or costs.
(c) The Magistrate Court may refuse acceptance of credit or debit cards of an individual if:
(1) the individual has previously tendered to the court a credit or debit card or credit or
debit card information which did not ultimately result in payment by the credit or debit card
(2) the bank or credit card issuer does not authorize payment;
(3) the validity of the credit or debit card is not verifiable;
(4) the identity of the individual credit or debit card holder does not appear to be the same person identified on the credit or debit card; or
(5) the Magistrate, Magistrate Assistant, Clerk or Deputy Clerk find that other good cause exists for such refusal.
(d) A credit or debit card may not be used to post or secure bond.
(As amended by order entered and effective May 22, 2007.)
Rule 8. Expenditures from magistrate court fund.
A county may appropriate and spend from the magistrate court fund such sums as may be available for providing the following services:
(a) Bailiff for magistrate court. - The county may charge the fund $35.00 per day for each day a bailiff is needed in magistrate court, and the sheriff may charge the fund $.15 per mile for transporting prisoners from magistrate court to the county or regional jail. Sums for bailiff services and mileage may properly be charged only after a voucher for the same has been submitted to, and approved by, the chief judge or his designee.
(b) Magistrate court office rental. - (1) Privately owned facilities. - The county may charge the fund the actual rental expenses incurred in obtaining office space for the magistrates and their support staff.
(2) County owned facilities.-(A) Rate.-The county may charge the fund an annual rate of $6.00 per square foot, payable in monthly installments, which will include the cost of utilities and the monthly base telephone rate.
(B) Improvements to heating and air-conditioning. - If the magistrate court system is housed in county-owned buildings and the heating and air-conditioning systems in the space allocated to the magistrate court system are not adequate, the supervising circuit judge may direct the county commission to improve or replace the systems, and may charge the costs, on a pro rata basis, to the fund.
(c) Utilities and telephone service in magistrate offices. - (1) General. - The county may charge the fund the actual cost for providing utilities and telephone service for the magistrate court system.
(2) Long-distance and paging expense. - All long-distance calls made on behalf of the magistrate court system may be charged to the fund and are not included in the $6.00 per square foot rental cost. The cost of paging system for magistrates is considered an extension of the long-distance telephone service, and the cost of the system may be charged to the fund.
(d) Telephone service in magistrates' homes.-The base monthly telephone bill for telephones in the homes of magistrates is a reimbursable expense to the magistrate, paid by the county and chargeable to the magistrate court fund. The base monthly rate shall include only the cost to lease a basic service telephone on a single private line.
Reimbursement may be made for the base monthly charge only, and magistrates may not be reimbursed for long-distance charges, extension telephones, or other ancillary services. Magistrates may be reimbursed only upon completion of a "Certification of Entitlement" stating the telephone number of such personal telephone and affirming that it is a listed number available to the general public. Such "Certification of Entitlement" shall be filed with the Administrative Director of the Supreme Court of Appeals, who shall provide the certification with the signed approval of the Administrative Director to the county commission of each magistrate's county.
(e) Janitorial services. - The cost of providing janitorial services and cleaning supplies in either a county-owned or leased building may be charged to the fund.
(f) Parking. - If parking for the magistrate court staff and the public is otherwise unavailable, then the cost of providing adequate parking spaces for the public and the staff of the magistrate court may be charged to the fund.
(g) Exceptions. - Whenever unique circumstances justify exceptions to any provision of this rule, such exceptions may be made in writing by the Administrative Director to any county commission. (As amended by order entered December 15, 1988, effective January 1, 1989; by order entered July 1, 1991, effective August 1, 1991; and by order entered December 19, 1991, effective January 1, 1992.)
Rule 9. Cameras in courtrooms.
Upon request and with the concurrence of the supervising circuit judge, the magistrate may permit the quiet and unobtrusive use of a camera in the courtroom in accordance with the Rules Governing Camera Coverage of Courtroom Proceedings. As amended by order entered July 1, 1991, effective August 1, 1991.)
Rule 10. Appearance on behalf of corporations.
A corporation may appear by any attorney licensed to practice in this State, and may also appear by any officer or employee of the corporation. If a non-attorney is employed solely for the purpose of representing such corporation in legal matters, such person must be a full-time employee of the corporation.
Rule 11. Copies.
(a) Photocopies. - The clerk shall provide photocopies of magistrate court records to any person requesting such copies. With the exception of copies for parties authorized to receive the services of the court without cost, the clerk shall charge $.25 per page for each copy. Any request for photocopies that is unreasonably burdensome in terms of quantity, time, or manner of photocopying may be denied or delayed.
On or before the tenth day of the month following the month of their collection, the clerk shall forward to the Administrative Office, by check payable to the State of West Virginia, all fees collected for photocopies.
(b) Facsimile transmissions. - The clerk may send or receive facsimile transmissions involving court-related business. With the exception of transmissions for parties authorized to receive the services of the court without cost, the clerk shall charge $2.00 per page transmitted at the request of any person other than a judicial officer or employee.
On or before the tenth day of the month following the month of their collection, the clerk shall forward to the Administrative Office, by check payable to the State of West Virginia, 75 percent of all fees collected for facsimile transmissions to the sheriff for deposit in the magistrate court fund. (As amended by order entered July 10, 1996, effective September 1, 1996.)
Rule 12. Retention of records.
All records of magistrate courts shall be retained by the clerk for a period not to exceed 10 years pursuant to the following schedule:
(a) Traffic and natural resources citations. - (Except DUI and driving while revoked for DUI).
(1) Dismissed. - Destroy all records one year after dismissal and completion of the audit report pursuant to W. Va. Code § 50-3-8.
(2) Failure to appear, no warrant issued. - After one year from the issuance of citation, transfer to inactive status; after 5 five years from issuance of citation, destroy all records.
(3) Failure to appear, warrant issued but unexecuted. - Treat as all other misdemeanors, below.
(4) Fine assessed but unpaid. - After one year from assessment of fine transfer to inactive status; after five years from last collection effort, destroy all records.
(5) Fine paid. - Retain all records for one year after payment and completion of
(b) DUI and driving while revoked for DUI. - Retain all records for 10 years.
(c) All other misdemeanors.- Retain for 10 years.
(1) Dismissed. - Retain all records for 10 years from dismissal, then destroy all records including case history sheet.
(2) Warrant issued but unexecuted. - After one year from issuance of warrant, transfer case to inactive status; after 10 years from issuance of warrant, destroy all records including case history sheet.
(3) Fine assessed but unpaid. - After one year from last collection effort, transfer case to inactive status; after 10 years from last collection effort, destroy all records including case history sheet.
(4) Fine paid and sentence served. - After 10 years, destroy all records including case history sheet.
(5) Appeal. - Forward all records to circuit clerk.
(d) Felonies.- (1) Preliminary hearing, probable cause found. Forward all records to
(2) Preliminary hearing, no probable cause found. - After one year, destroy all records.
(3) Complaint dismissed prior to preliminary hearing. - After one year, destroy all records.
(4) Preliminary hearing waived. - Forward all records to circuit clerk.
(5) Felony dismissed in exchange for plea to misdemeanor. - Follow retention schedule for misdemeanor, above.
(e) Civil. (1) Judgment dismissing complaint. - After one year, destroy all records.
(2) Judgment awarding relief. - After 10 years from last activity, destroy all records including case history sheet.
(3) Judgment appealed. - Forward all records to circuit clerk.
(f) Fiscal. - One year after receipt of the audit report and resolution of audit exceptions, destroy all records.
(g) Administrative. - One year after receipt of the audit report and resolution of audit exceptions, destroy all records including case indices and registers.
(h) Miscellaneous records. - Ten years after the receipt of any other record and the resolution of any matter raised therein, destroy all records including case history sheets, case indices, and registers.
(i) Records relating to unresolved audit exceptions. All records relating to unresolved audit exceptions shall be retained until either one year after the resolution of such exceptions or in accordance with the above schedules, whichever date is later.
(As amended by order entered and effective May 22, 2007.)