Chapter 1: Rules 9-19
9. CUSTODY AND DISPOSITION OF EXHIBITS
9.01 Generally
After being marked for identification, exhibits of a documentary nature admitted in evidence or made a part of the record in any case pending or tried in court shall be placed in the custody of the clerk unless otherwise ordered. The court may order that exhibits, models, and materials admitted in evidence that cannot be stored conveniently in the clerk's facilities be retained in the custody of the attorney or party producing them at trial unless otherwise ordered, and the attorney or party shall execute a receipt therefor. All exhibits admitted in evidence in a criminal case that are in the nature of controlled substances, legal or counterfeit money, firearms, dangerous devices, or contraband of any kind shall be retained by the clerk pending disposition of the case and any appeal, and until the court authorizes destruction or other disposal of such exhibits.
A party or attorney who has custody of an exhibit shall keep it available for the use of the court or any appellate court, and shall grant the reasonable request of any party to examine or reproduce the exhibit for use in the proceeding.
Upon application and proper notice, the court may order that documentary exhibits retained by the clerk be returned to the party to whom they belong, provided that copies are filed in place of the originals.
After final judgment and after the time for motion for new trial and appeal has passed, or upon the filing of a stipulation waiving and abandoning the right to appeal and to move for a new trial, the clerk is authorized, without further order, to return all exhibits in civil cases to the appropriate parties or their counsel.
10. FILING AND REMOVAL OF PAPERS; LIMITATION OF ACCESS TO COURT FILES
10.01 Filing of Papers
Except as otherwise permitted or required by these rules or other rules of court, the original of all papers that must be filed with the court shall be filed at the clerk's office, on paper measuring eight and one-half (8 1/2) inches in width and eleven (11) inches in length, clearly printed or typed and reproduced by any duplicating or copying process which produces a clear black image on white paper. If more than one page in length, the papers must be bound on the top left corner and not bound at the top. The clerk shall bind the same in the folder or jacket at the left side and not at the top.
10.02 Removal of Papers and Files from Custody of Clerk
(a) Removal of Papers. No papers shall be removed from any file, except by order of court. Papers on file in the office of the clerk shall be produced pursuant to subpoena from a court of competent jurisdiction directing their production.
(b) Removal of Files. No files may be removed from the office of the clerk, except upon order of the court. The clerk may, however, permit temporary removal of a court file by authorized court personnel, provided that the clerk maintain a record of the individual removing the file, noting, at minimum, the date and time of its removal and return.
10.03 Limitation of Access to Court Files
(a) Nature of Order. Upon motion by either party named in any civil action, the court may limit access to court files. The order of limitation shall specify the nature of the limitation, the duration of the limitation, and the reason for the limitation. Upon motion filed with the complaint, accompanied by a supporting affidavit, limitation of access may be granted ex parte.
(b) Review of Order. An order limiting access may be reviewed by the court at any time on its own motion or upon the motion of any person.
10.04 Access to Court Files and Other Court Records under the Freedom of Information Act
(a) All persons are, unless otherwise expressly provided by law or excepted by Rule 10.03, entitled to full and complete information regarding the operation and affairs of the judicial system. Any elected or appointed official or other court employee charged with administering the judicial system shall promptly respond to any request filed pursuant to the West Virginia Freedom of Information Act.
(b) Writings and documents relating to the conduct of the public's business, and which are prepared, owned or retained by a court, circuit clerk, or other court employee, are to be considered “public records.” Requests for such writings must be directed to, and responded to by, the particular court, circuit clerk, or other court employee who retains custody of the particular public records sought.
Writings relating to the conduct of the public's business, but which are prepared, owned and retained by individuals other than court officers or employees, such as private or independent contractors, are not considered “public records.”
(c) The custodian of any court file or other public record shall furnish copies of the requested information or, in the alternative, furnish proper and reasonable opportunities for the inspection and examination of the court file or public record in his or her office during usual business hours. Reasonable facilities for taking memoranda or abstracts from the court file or other public record shall be provided. If the court file or public record requested exists in magnetic, electronic or computer form, when requested, the custodian of the records shall make copies available in the format in which it is stored on magnetic or electronic media.
(d) Costs. The court, circuit clerk, or other court employee may charge a fee reasonably calculated to cover the actual cost of reproducing or otherwise making available the public records.
11. CAPTION AND FORMAT OF ORDERS
11.01 Captions
Every order shall carry captions setting forth: (1) the name of the court; (2) the number of the case; (3) on the line below the case-number line, the name of the assigned judge; (4) the style of the case; and (5) a heading that generally and concisely describes the nature or purpose of the court's action.
11.02 Format
Every order shall designate the date of the proceeding and shall be double spaced. In addition, every order shall set out clearly and distinctly, in its last substantive paragraph, any and all directives to the clerk; and the clerk shall make a notation in the margin as to when those directives have been completed.
12. FILING AND SERVICE BY FACSIMILE TRANSMISSION
12.01 Applicability
All courts within the state shall maintain a facsimile machine within the office of the clerk, shall accept the filing of pleadings and other documents, and may send documents by facsimile transmission to the extent expressly provided for in these rules and not in conflict with statutes or other court rules.
12.02 Definitions
(a) Courts. The term "courts" is defined as the supreme court of appeals, circuit courts, and magistrate courts.
b) Facsimile Transmission. The term "facsimile transmission" is defined as the transmission of a document by a system that encodes the document into electronic signals, transmits these electronic signals over a telephone line, and reconstructs the signals to print a duplicate of the original document at the receiving end.
(c) Facsimile Transaction. The term "facsimile transaction" is defined as the facsimile transmission of a document to or from a court.
(d) Service by Facsimile Transmission. The term "service by facsimile transmission" is defined as transmission of a motion, notice, or other document to an attorney, attorney-in-fact, or a party under these rules.
(e) Facsimile Machine. The term "facsimile machine" is defined as a machine that can send and receive on plain paper a facsimile transmission using the international standard for scanning, coding, and transmitting established for Group 3 machines by the Consultative Committee of International Telegraphy and Telephone of the International Telecommunications Union (CCITT), in regular resolution.
(f) Fax. The term "fax" is defined as a facsimile transmission as defined in TCR 12.02(b).
12.03 General Provisions
(a) Availability of Facsimile Services. Each circuit clerk shall have a facsimile machine available for court-related business during regular business hours and such additional hours as may be established by the chief judge. Each magistrate clerk shall have a facsimile machine available for court-related business twenty-four (24) hours per day, seven (7) days per week.
(b) Form and Format. All documents conveyed via facsimile transmission must conform in form and format to existing standards established by applicable statutes or rules of court. They should be received on, or the receiver shall make any necessary photocopies on, eight and one-half (8 1/2) by eleven (11) inch, twenty (20)-pound alkaline plain paper of archival quality, and satisfy all other requirements of these rules.
(c) Page Limitation. No facsimile transmission over twenty (20) pages in length (including the cover sheet) shall be accepted unless prior consent is given by the court or by the clerk of the court.
(d) Oversized Documents. Facsimile transmission of, or involving, any original document larger than eight and one-half (8 1/2) by eleven (11) inch is prohibited unless prior consent is given by the court or by the clerk of the court.
(e) Facsimile Cover Sheet. The sender must provide his or her or the entity's name, address, telephone number, facsimile number, the document(s) being transmitted by caption and matter, and the number of pages (including the cover sheet), and must provide clear and concise instructions as needed concerning processing.
(f) Signatures.
(1) Presumption of Authenticity. Any signature appearing on a facsimile copy of a court pleading or other document shall be presumed to be authentic.
(2) Inspection of Originally Signed Document or Certified Copy. Upon demand by the receiver, the sender of a fax shall make available to the receiver for inspection the original physically signed document or, if the court is the sender, a certified copy of the original physically signed document.
(g) Verification of Receipt. Court personnel shall verify, either orally or in writing, the receipt of documents filed by facsimile transmission upon proper inquiry by the sender.
(h) Filing Effective upon Receipt of Transmission. A facsimile copy of a pleading or other document shall be deemed filed when it is received in its entirety on a clerk's facsimile machine without regard to the hours of operation of the clerk's office. Upon receiving a faxed filing, the clerk of the court shall note on the facsimile copy the filing date, in the same manner as with pleadings or other documents filed by mail or in person.
(i) Payment of Fees.
(1) Any required filing or other fee shall be paid by mail or in person following a facsimile filing as follows: the required fee, accompanied by a copy of the facsimile filing cover sheet, shall be deposited with the court not later than seven (7) calendar days after the filing by fax.(2) The clerk of the court may decline to process the pleading or other document until receipt of any required filing fee, and the court shall withhold the entry of judgment pending receipt of fees.
(3) If any required fee is not received by the court within seven (7) calendar days after the filing by fax, the filing shall be voidable and no further notice need be given any party.
(j) Filing of Original. The filing of the original shall not be required, unless otherwise ordered by the court or directed by the clerk of the court.
(k) Retention of Original. If filing of the original is not required, the sender must retain the original physically signed document in his or her possession or control.
(l) Photocopying Charges. The sender shall be responsible for any photocopying charges associated with the processing of any document filed by facsimile transmission.
(m) Transmission Error. If there is an error in any facsimile transmission, the clerk shall not accept or note the document as filed until a corrected, acceptable document is received.
(n) Notice of Transmission Error; Risk of Use of Facsimile Transmission. If the receiver discovers or suspects a transmission error, the receiver shall notify the sender as soon as possible. The sender bears any risk of using facsimile transmission to convey any document to a court. The potential receiver bears any risk of receiving any document by facsimile transmission from a court.
(o) Nunc Pro Tunc Filing. If the attempted facsimile transmission is not accepted as filed with the court because of a transmission error or other deficiency, the sending party may move acceptance nunc pro tunc by filing a written motion with the court. The motion shall be accompanied by the activity report or other documentation in order to verify the attempted transmission. The court, in the interest of justice, and upon the submission of appropriate documentation, may entertain the motion and hold a hearing in its discretion.
(p) Facsimile Receipt and Transmission; Fees. The clerk may send or receive facsimile transmissions involving court-related business. With the exception of transmissions by or 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.
12.04 Filing and Service of Documents in Civil Actions by Facsimile Transmission
(a) Method of Filing. Except for mental hygiene applications or where otherwise prohibited by law or court rule, a party may file any document in a civil action, other than a complaint or petition, by facsimile transmission to any clerk's office having a facsimile machine. The clerk shall accept the document as filed if the filing and the document comply with these and other applicable rules and statutes.
(b) Service. Service of any document in a civil action, other than original process, may be made by facsimile transmission subject to the provisions of these rules, other applicable rules and statutes, and W.Va. R.Civ.P. 5 or Rule 8 of the Rules of Civil Procedure for Magistrate Courts.
(c) When Service Complete. Service by fax is complete upon receipt of the entire document by the receiver's facsimile machine.
(d) Proof of Service. Where service is made by facsimile transmission, proof of service shall be made by affidavit of the person making service or by certificate of an attorney. Attached to such affidavit or certificate shall be a copy of the sender's facsimile machine transmission record.
12.05 Facsimile Transmission of Domestic Violence Petitions and Protective Orders
(a) Petitions.
(1) Verified petitions for protective orders may be filed by fax. If transmission is made to the magistrate court after regular business hours, the on-call magistrate shall be notified before the transmission occurs.
(2) In addition to the information required by TCR 12.03(e), the fax cover sheet accompanying a domestic violence petition for a protective order shall include the telephone number where the petitioner may be reached.
(3) Any action taken by the judge or magistrate on a faxed petition shall be communicated as soon as feasible to the petitioner by return fax or other method.
(b) Protective Orders.
(1) Temporary Orders. A temporary protective order may issue based solely on the representations contained in a verified petition properly filed by fax.
(2) Distribution to Law-Enforcement Agencies. Any temporary or final protective order issued pursuant to the provisions of W.Va. Code §§ 48-2A-1 et seq. may be faxed to appropriate law-enforcement agencies to satisfy the statutory requirements for transmission of such documents by the court. The petition upon which a temporary order is issued shall be faxed to law-enforcement agencies with the temporary protective order
(3) Service of Process. Any temporary or final protective order faxed to law-enforcement agencies shall be valid for their use in making personal service on the respondent named in the order.
12.06 Facsimile Transactions in Criminal Matters
(a) Method of Filing. Except for complaints and search warrant applications, any document in a criminal action may be filed by facsimile transmission to any clerk's office having a facsimile machine. The court shall accept the document as filed if the filing and the document comply with these and other applicable rules and statutes.
(b) Service. Service of any document in a criminal action may be made by facsimile transmission subject to the provisions of these rules, other applicable rules and statutes, and W.Va. R.Crim.P. 49 for circuit courts or Rule 13 of the Rules of Criminal Procedure for Magistrate Courts.
(c) When Service Complete. Service by fax is complete upon receipt of the entire document by the receiver's facsimile machine.
(d) Release from Custody. If bail fixed by a court is posted after a defendant is placed in the custody of a jail or correctional facility, the court may effectuate the release of the defendant by facsimile transmissions in the following manner.
(1) Both the criminal bail order admitting the defendant to bail and the release order are faxed to the jail or correctional facility by the court.
(2) The jailer or correctional officer at the facility shall provide the defendant with the faxed bail order; the jailer or correctional officer shall then forthwith transmit a return of the completed release order by return fax to the issuing court.
(3) The issuing court confirms receipt of the completed release order from the jailer or correctional officer at the facility. The jailer or correctional officer at the facility shall not release the defendant until receipt of such confirmation.
(e) Commitment to Custody. The committing judge or magistrate may by fax authorize and notify the jail or correctional facility of a criminal defendant's commitment to that jail or correctional facility in the following manner.
(1) The court faxes the commitment order to the jail or correctional facility.
(2) The jailer or correctional officer transmits forthwith by return fax verification of receipt of the order.
(3) Once the defendant is in the custody of the jail or correctional facility, the jailer or correctional officer shall forthwith by fax return the completed commitment order to the committing court.
(4) If the commitment is made by a court not having venue of the offense, the terms and conditions of bail and the commitment order shall be transmitted as expeditiously as feasible, by fax if possible, to the magistrate court or circuit court wherein the preliminary hearing or trial is to be held.
13. COURT LIBRARY
13.01 Generally
Library materials will not circulate, except for brief periods necessary to allow photocopying at another courthouse location. Access will be open only during regular business hours. After-hours access may be on the basis of a key checkout, as established by the supervising circuit judge, with a prohibition on key duplication and/or distribution as to non-court persons.
14. VIDEOCONFERENCING
Rule 14.01. General Provisions
(a) Proceedings conducted by videoconferencing shall be conducted in the same manner as if the parties had appeared in person, and the presiding judicial officer may exercise all powers consistent with the proceeding.
(b) Any document filed in a proceeding conducted by videoconferencing may be transmitted by electronic facsimile; signatures on a document transmitted by electronic facsimile shall have the same force and effect as original signatures.
(c) The presiding judicial officer shall begin all proceedings conducted by videoconferencing by stating on the record identities of all counsel, parties, witnesses, and members of the media present in the courtroom and at the remote site.
(d) Any system used for conducting proceedings by videoconferencing shall:
(1) Enable the persons communicating to be able to simultaneously see and speak to one another;
(2) Provide a live signal transmission that is secure from unauthorized acquisition; and
(3) Comply with any other standards established by the Supreme Court of Appeals.
Rule 14.02. Civil Proceedings in Circuit Courts
The court may utilize videoconferencing to conduct any evidentiary or non- evidentiary hearing, and may permit any witnesses to testify or be deposed by videoconferencing.
Rule 14.03. Criminal Proceedings in Circuit Courts
(a)Pretrial Proceedings< - The court may utilize videoconferencing to take a plea of not guilty at arraignment, to consider pretrial motions, to conduct pretrial status conferences, to permit a witness to testify at a pretrial hearing, to take and preserve the testimony of a prospective witness for use at trial, and to conduct any non-evidentiary hearing.
(b)Testimony of Child Witnesses - The court may use videoconferencing to obtain the testimony of a child witness in accordance with West Virginia Code § 62-6B-1 to -4.Rule 14.04. Proceedings in Magistrate Court
(a)Non-evidentiary Hearings - In civil and criminal cases, the court may conduct any non-evidentiary hearing by videoconferencing.
(b)Domestic Violence Proceedings - In proceedings pursuant to Article 27 of Chapter 48 of the Code, the court may utilize videoconferencing to take testimony in ex parte proceedings relating to petitions for temporary orders.
(c)Criminal Proceedings - The court may utilize videoconferencing to take a plea of not guilty, and to conduct pretrial status conferences.
Rule 14.05. Mental Hygiene Proceedings
The presiding officer may utilize videoconferencing to conduct any evidentiary or non-evidentiary hearing, and may permit any witness to testify or be deposed in this manner.
15. ELECTRONIC FILING AND SERVICE
(Note: By Order entered October 9, 2008, TCR was approved, effective immediately.)
Rule 15.01. Application.
Trial Court Rule 15 governs electronic filing and service of documents and maintenance of case-related information in the circuit courts of West Virginia in certain Mass Litigation referred to the Mass Litigation Panel (“Panel”) under Trial Court Rule 26, and as further provided by Trial Court Rule 15.02(c). This rule does not preclude future application of electronic filing and service in other types of actions.
Rule 15.02. General Provisions.
(a) The electronic filing and service of documents and the electronic receipt of associated case information in the circuit courts of West Virginia may be referred to as e-filing and service.
(b) E-filing and service shall not be used to initiate a civil action or to serve a new party with an amended complaint or a third-party complaint.
(c) If the Panel determines it is appropriate for Mass Litigation or proceedings therein to be subject to e-filing and service, the Panel Chair shall enter an order designating such Mass Litigation or proceedings therein for e-filing and service.
(d) Where requirements of the Rules of Civil Procedure are satisfied by e-filing and service procedures, Trial Court Rule 15 shall specifically so state. All filings, whether electronic or paper, shall otherwise comply with the Rules of Civil Procedure and the Trial Court Rules.
(e) The process for e-filing and service shall utilize an e-filing and service provider designated by the Supreme Court of Appeals.
Rule 15.03. Authorization and Signature.
(a) Each e-filed document shall be deemed to have been signed by the attorney, or by the party not represented by an attorney who authorized the filing, and shall bear a facsimile or typographical signature of such person, e.g. "/s/ Adam Attorney." Each document e-filed by or on behalf of a party shall also include the address and telephone number of the attorney or unrepresented party filing such document. Attorneys shall also include their West Virginia State Bar Identification Number or a notation that the attorney has been admitted pro hac vice.
(b) No lawyer shall authorize anyone to e-file or serve on that lawyer's behalf, other than an employee of his or her law firm or a service provider retained to assist in e-filing and service. No person shall utilize, or allow another person to utilize, the password of another in connection with e-filing or service.
(c) The e-filing of a document by a lawyer, or by another under the authorization of a lawyer, shall constitute a signature of that lawyer under Rule 11(a) of the Rules of Civil Procedure.
Rule 15.04. Filing and Service.
(a) Except where otherwise provided, every e-filed document shall be e-served. Unless otherwise ordered, the e-service of a document, in accordance with these rules, shall be considered service under Rule 5 of the Rules of Civil Procedure. Electronic service shall be treated the same as service by mail for purposes of Rule 6(e) of the Rules of Civil Procedure.
(b) Parties who are granted a waiver under Trial Court Rule 15.06 shall be served in accordance with Rule 5 of the Rules of Civil Procedure, or by utilizing the U.S. Mail feature of the e-filing and service system.
(c) The Presiding Judge may direct the parties to provide a courtesy copy of filings to the Presiding Judge in accordance with Trial Court Rule 6.03, either by U.S. Mail or by utilizing the Courtesy Copy via U.S. Mail feature of the e-filing and service system.
(d) For documents that have been e-filed, the electronic version of the document constitutes the official court record, and e-filed documents have the same force and effect as documents filed by traditional means. Documents filed and served in accordance with these rules are deemed to be in compliance with Trial Court Rule 10.01.
Rule 15.05. Orders and Civil Docket.
(a) Orders issued by the Presiding Judge shall bear a typographic signature and an official e-filing court stamp, and shall be e-filed and served. The date of the official e-filing court stamp shall constitute the date of entry of the order.
(b) Parties who are granted a waiver under Trial Court Rule 15.06 shall be served in accordance with Rule 5 of the Rules of Civil Procedure, or by utilizing the U.S. Mail feature of the e-filing and service system.
(c) E-filed orders maintained as part of the online register of actions shall satisfy the requirements of Rule 77(d) of the Rules of Civil Procedure.
(d) An electronic register of actions, with associated documents and filing receipts, shall be maintained as part of the e-filing and service system and shall constitute the civil docket and satisfy the requirements of Rule 79 of the Rules of Civil Procedure.
Rule 15.06. Waiver of E-filing and Service Requirements.
All parties who are unable to utilize e-filing and service may file a written motion with the Presiding Judge seeking a waiver of e-filing and service requirements, which motion may be granted for good cause shown. All parties who have obtained such waiver shall file documents in accordance with Trial Court Rule 10.01, and serve documents in accordance with Rule 5 of the Rules of Civil Procedure. Such documents shall be uploaded and made available within the e-filing and service system by the circuit clerk in the circuit where the Mass Litigation subject to e-filing is pending.
Rule 15.07. Public Access.
The circuit clerk in the circuit where the Mass Litigation subject to e-filing is pending shall make a Public Access Computer Terminal available to the general public to allow access to the Court’s electronic docket, pleadings and other documents that are not sealed or otherwise confidential. Copies made from the Court’s electronic records shall be printed by the Clerk’s Office, and standard copying fees shall be charged.
Rule 15.08. Case Management Order.
Additional procedures specific to Mass Litigation or proceedings therein subject to e-filing and service may, in the discretion of the Presiding Judge, be set forth in a case management order.
15.09. Registration and Fees.
The e-filing and service system requires parties to be registered participants to file and serve, receive service, access the register of actions, and use the system. Each participant shall register with the e-filing and service provider, provide the information necessary to load a case and its parties into the e-filing and service system and pay the fees billed by the e-filing and service provider at rates approved by the Supreme Court of Appeals.
15.10. Form of documents electronically filed.
(a) Each e-filed document shall be submitted in a file format that is acceptable to the e-filing and service provider. To the extent practicable, each e-filed document shall be formatted in accordance with Trial Court Rule 6.01 governing formatting of paper documents. A document may exceed page limitation rules to a maximum of two additional pages when the additional pages are attributed to the electronic conversion or filing process. The e-filing and service system shall automatically convert all document formats accepted by the e-filing and service provider to a PDF format.
(b) All e-filed documents relating to a single pleading or document submitted in the same electronic transaction shall be "electronically stapled" using the "main" and "supporting" functionality of the e-filing and service system so multiple related documents, such as a motion and proposed order, are linked logically together and identified as a single transaction.
(c) All e-filed documents or pleadings directly relating to a previously e-filed document, or pleading shall be linked to the previously e-filed document or pleading, using the "linked document feature" in the e-filing and service system.
(d) Proposed orders filed for the consideration of the Presiding Judge shall be filed in a Rich Text Format document or “.rtf.”
(e) A document that is required to be executed by the parties or counsel, verified, acknowledged or made under oath shall be e-filed only as a scanned image. Any such document that is to be attached to an e-filed document shall be scanned and e-filed and served along with the underlying document.
15.11. Time of electronic filing and service.
(a) A document shall be considered filed with the Clerk once electronic transmission is successfully completed, as recorded in the e-filing and service system.
(b) An e-filed document is deemed served for purposes of Rule 5 of the Rules of Civil Procedure only upon selection of participants to be served and completed submission of the electronic filing. If an individual or entity required to receive service is a participant in the e-filing and service system, then the person e-filing a document shall provide e-service. The associated filing receipt shall list the participants selected and give proof of date, time and method of service. If a party is unable to receive service of an e-filed document electronically, the document shall be served in accordance with Rule 5 of the Rules of Civil Procedure, or by utilizing the U.S. Mail feature of the e-filing and service system, and a copy of the certificate of service evidencing non-electronic service shall be filed in the e-filing and service system.
(c) It is the responsibility of the participant to check his or her online inbox to view e-filed and served documents. Courtesy e-mail notification of a filing shall not constitute service.
15.12. Filing of sealed documents.
A motion to seal documents shall be e-filed and served. However, any documents that are the subject of a motion to seal shall be filed with the court enclosed in sealed envelopes to be opened as directed by the court pursuant to Rule 26(c)(8) of the Rules of Civil Procedure, and a copy of the documents that are the subject of the motion to seal shall be provided to the Presiding Judge for review.
15.13. System or participant errors.
If a document cannot be e-filed with the circuit clerk or e-served due to: (a) an error in transmission of the document to the e-filing and service provider that was unknown to the sending participant; or (b) a failure to process the e-filing when received by the e-filing and service provider; or (c) rejection by the Clerk; or (d) other technical problems experienced by the filer; the Court may, upon satisfactory proof, enter an order permitting the document to be filed or served nunc pro tunc to the date it was first attempted to be e-filed and served.
15.14. Obligation of participants to maintain proper delivery information.
E-filing and service system participants shall notify the e-filing and service provider within 10 days of any change in firm name, delivery address, fax number or e-mail address. Participants who have set an e-mail notification preference are solely responsible for providing an accurate, up-to-date e-mail address and for ensuring that the e-mail account is properly configured to receive e-mail notifications for the e-filing and service system.
16. TIME STANDARDS
16.01 Purpose.
Article III, Section 17 of the West Virginia Constitution provides, "justice shall be administered without sale, denial or delay." Article III, Section 13 of the West Virginia Constitution provides, "Trials of crimes ... shall be ... without unreasonable delay." Article VIII, Section 8 of the West Virginia Constitution further provides, "Under its inherent rule-making power, which is hereby declared, the Supreme Court of Appeals shall, from time to time, prescribe, adopt, promulgate and amend rules prescribing . . . standards of conduct and performance for justices, judges, and magistrates, along with sanctions and penalties for any violation therof [.]"Rule 1 of the Rules of Civil Procedure provides that they "shall be construed to secure the just, speedy, and inexpensive determination of every action." Rule 2 of the Rules of Criminal Procedure provides that they "shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay." Canon 3B(8) of the Code of Judicial Conduct provides, "A judge shall dispose of all judicial matters promptly, efficiently, and fairly." Finally, Section 2.50 of the American Bar Association Standards Relating to Court Delay Reduction provides, "the court, not the lawyers or litigants, should control the pace of litigation." Pursuant to these principles, the Supreme Court of Appeals has determined that the expeditious processing and timely disposition of cases by circuit courts are essential to the proper administration of justice. Accordingly, it directs circuit courts and their officers to comply with these rules, which provide time standards for the processing of all cases except for those governed by statute or in which the circuit court finds, on the record, that extraordinary circumstances exist for exemption from these standards.
16.02 Implementation
(a) Criminal. The percentage of criminal cases that must be at or under the applicable time standards as provided in these rules is eighty (80) percent.
(b) Civil. The percentage of civil cases that must be at or under the applicable time standards as provided in these rules is seventy-five (75) percent.
(c) Reporting. The Administrative Director of Courts shall issue, on a semi-annual basis, a report indicating the degree of compliance with these rules by the circuit courts. For those circuit courts not in compliance, the chief judge shall file with the Administrative Director of Courts within sixty (60) days of receipt of the report by the Administrative Director a report indicating the reasons for such noncompliance. Following receipt of the report, the Administrative Director shall take such remedial measures, with the approval of the Chief Justice of the Supreme Court of Appeals, including the recall of senior status judges, the reassignment of judges from other circuit courts, or the implementation of case management procedures, as are necessary to bring the circuit court into compliance with these rules.
16.03 Definitions
(a) Purpose. The definitions set forth in this rule are for the purpose of measuring compliance with the time standards set forth in these rules.
(b) Filing. "Filing" is defined as the date of formal registration of a case and assignment of a case number by the clerk of court.
(c) Submission. "Submission" is defined as the later of the date of argument or the filing of the final reply brief, unless otherwise ordered by the court.
(d) Ruling. "Ruling" is defined as the date of the oral or written pronouncement of a decision by the court.
(e) Final Judgment. "Final judgment" is defined as the date of the entry by the circuit clerk of a final order, decree or other document that terminates or otherwise disposes of the case.
(f) Other Civil Cases. "Other civil cases" shall mean civil cases which do not involve a money judgment, generally require only one hearing and are generally commenced by the filing of a petition.
16.04 Time Standards for Criminal Cases
(a) Applicability. These rules are not intended to supersede any constitutional or statutory speedy trial provisions.
(b) Pretrial Motions. An order shall be entered which sets forth a ruling on pretrial motions which require a hearing or ruling within two months of submission or on the date of the trial, whichever is earlier.
(c) Felony Prosecutions. A sentencing order shall be entered in felony prosecutions within eight (8) months of the date of the indictment or information.
(d) Misdemeanor Prosecutions. A sentencing order shall be entered in misdemeanor prosecutions within eight (8) months from the date of indictment or information, the date of arrest, or the date of service of summons.
(e) Post-trial Motions. An order shall be entered on post-trial motions within one month of submission.
16.05 Time Standards for Civil Cases
(Note: By Order entered October 9, 2008, TCR 16.05(a) was amended, effective immediately.)
(a) Applicability. This rule governs general civil cases and does not apply to domestic relations, juvenile delinquency, abuse and neglect, mental hygiene, guardianship or conservatorship, cases referred to the Mass Llitigation panel pursuant to Rule 26, extraordinary writs, appeal, declaratory judgment, and equity proceedings.
(b) Pretrial Motions. An order shall be entered which sets forth a ruling on pretrial motions which require a hearing or ruling within two months of submission or on the date of trial, whichever is earlier.
(c) General Civil Cases. Final judgment shall be entered in general civil cases within eighteen (18) months of the filing of the complaint.
(d) Other Civil Cases. Final judgment shall be entered in other civil cases within six (6) months of the filing of the case.
(e) Post-trial Motions. An order shall be entered on post-trial motions within two months of submission.
(f) Civil Case Management. In order to conform with the time standards relating to civil cases, circuit courts shall comply with the provisions of W.Va. R.Civ.P. 16(b), and may, in their discretion, dismiss cases for lack of service as provided in W.Va. R.Civ.P. 4(k) and for inactivity as provided in W.Va. R.Civ.P. 41(b).
16.06 Domestic Relations Proceedings
(a) Applicability. The time standards set forth in this rule are not intended to supersede, but to supplement, statutory provisions applicable to domestic relations proceedings.
(b) Pretrial Motions. An order shall be entered on pretrial motions which require a hearing or ruling within one month of submission.
(c) Divorce, Annulment, and Separate Maintenance Proceedings. A final decree shall be entered in divorce, annulment, and separate maintenance proceedings within six (6) months of the filing of the complaint.
(d) Miscellaneous Domestic Relations Proceedings. A final decree shall be entered in miscellaneous domestic relations proceedings, including adoptions, paternity, and URESA actions, within nine (9) months of the filing of the petition.
(e) Post-hearing Motions. An order shall be entered on post-hearing motions within one month of submission.
16.07 Juvenile Delinquency Proceedings
(a) Applicability. The time standards set forth in this rule are not intended to supersede, but to supplement, statutory provisions applicable to juvenile delinquency proceedings.
(b) Pre-adjudicatory Motions. An order shall be entered on pre-adjudicatory motions within one week of hearing on the motion.
(c) Preliminary Hearing. Unless the child is in detention or the hearing is continued for good cause to a date certain, the preliminary hearing shall be held within two (2) weeks of the filing of the petition.
(d) Arraignment. If an arraignment is held, it shall be conducted within two (2) weeks of the preliminary hearing.
(e) Adjudicatory Hearing. Unless an improvement period is granted or the hearing is continued for good cause to a date certain, the adjudicatory hearing shall be conducted within two (2) months of the preliminary hearing if a jury trial is demanded or within one month if a jury trial is waived. If an improvement period is granted, but revoked prior to its expiration, the adjudicatory hearing shall be conducted within one month of revocation.
(f) Disposition. The dispositional order shall be entered within two (2) months of the adjudicatory hearing. If a child is in detention, the dispositional hearing shall be conducted within one month from the date the child is placed in detention.
(g) Placement. If a child is in detention, an appropriate placement order shall be entered within two (2) weeks of the dispositional hearing.
(h) Modification. An order shall be entered on a motion to modify within one month of the filing of the motion.
(i) Reporting Standard. The reporting standard from the filing of the petition to disposition in delinquency cases shall be eight (8) months. The reporting standard from the filing of the petition to disposition in status offender cases shall be six (6) months.
16.08 Abuse and Neglect Proceedings
(a) Applicable Standards. The specific time standards applicable to abuse and neglect proceedings are those contained in W.Va. Code §§ 49-6-1 et seq. and in the Rules of Procedure for Child Abuse and Neglect Proceedings.
(b) Reporting Standard. The reporting standard from the filing of the petition to the entry of an order of disposition, pursuant to W.Va. Code § 49-6-5(a), shall be twelve (12) months.
16.09 Mental Hygiene Proceedings
(a) Applicability. The time standards set forth in this rule are not intended to supersede, but to supplement, statutory provisions applicable to mental hygiene proceedings.
(b) Findings and Recommendations. Findings of fact and a recommended order shall be entered within two (2) weeks from the filing of an application for final commitment.
(c) Final Order. The final order shall be entered within one week of the recommended order.
(d) Reporting Standard. The reporting standard from the filing of the petition to disposition shall be three (3) months.
16.10 Guardianship and Conservatorship Proceedings
(a) Applicability. The time standards set forth in this rule are not intended to supersede, but to supplement, statutory provisions applicable to guardianship and conservatorship proceedings.
(b) Findings and Recommendations. Findings of fact and recommendations by a mental hygiene commissioner shall be submitted to the assigned circuit judge within seven (7) days of the hearing on any petition filed pursuant to W.Va. Code §§ 44A-2-1 et seq.
(c) Findings, Conclusions, and Final Order. The assigned circuit judge shall issue findings of fact, conclusions of law, and a final order pursuant to W.Va. Code § 44A-2-13, within seven (7) days of receiving the submission by the mental hygiene commissioner or, if the judge conducts a hearing, within seven (7) days of the hearing.
(d) Post-appointment Hearings and Rulings. Hearings on post-appointment petitions or motions shall be held within sixty (60) days of the filing of such petitions or motions. Findings of fact and recommendations by a mental hygiene commissioner shall be submitted to the assigned circuit judge within seven (7) days of the hearing. The assigned circuit judge shall issue findings of fact, conclusions of law, and the order ruling on the petition or motion within seven (7) days of receiving the submission of the mental hygiene commissioner or, if the judge conducts a hearing, within seven (7) days of the hearing.
(e) Reporting Standard. The reporting standard from the filing of a petition pursuant to W.Va. Code §§ 44A-2-1 et seq. to the disposition pursuant to W.Va. Code § 44A-2-13 shall be three (3) months.
16.11 Petitions and Appeals
(a) Petitions for Modification of Magistrate Sentence. An order shall be entered on a motion to modify a magistrate sentence pursuant to W.Va. Code §§ 62-11A-1, 62-11B-1 et seq., or 62-12-4, within two (2) months of the filing of the motion.
(b) Magistrate Court Appeals. A final judgment in civil cases or a sentencing order in criminal cases shall be entered within six (6) months of receipt of the magistrate court file by the clerk of the circuit court, except that, pursuant to W.Va. Code §§ 50-5-12(c)(6) and 50-5-13(c)(6), a final judgment in cases tried before a jury shall be entered within ninety (90) days after the appeal is regularly placed on the docket of the circuit court.
(c) Administrative Appeals. Unless otherwise provided by statute, a final judgment in an appeal from an administrative agency shall be entered within six (6) months of the filing of the appeal.
16.12 Extraordinary, Declaratory Judgment, and Equitable Proceedings
A final judgment or decree shall be entered in extraordinary, declaratory judgment, and equitable proceedings within one month of submission.
16.13 Duties of Court Officers
(a) Circuit Clerks. Every circuit clerk shall keep such records and make monthly reports on the status of cases in their respective courts as required by the Administrative Director of the Supreme Court of Appeals. Every circuit clerk shall also periodically inform the circuit court on the status of cases which may be dismissed pursuant to W.Va. R.Civ.P. 4(k) and 41(b).
(b) Judicial Officers. It shall be the duty of circuit judges and family law masters to effectuate expeditious movement and timely disposition of all cases assigned to them. It shall further be the duty of such judicial officers to control their dockets and to control continuances by means of strict application of the Rules of Civil Procedure, Rules of Criminal Procedure, and statutory time frame provisions governing continuances.
17. DISQUALIFICATION AND TEMPORARY ASSIGNMENT OF JUDGES
17.01. Motions for Disqualification.
Upon a proper disqualification motion, as set forth in this rule, a judge shall be disqualified from a proceeding only where the judge's impartiality might reasonably be questioned in accordance with the principles established in Canon 3(E)(1) of the Code of Judicial Conduct.
(a) In any proceeding, any party may file a written motion for disqualification of a judge within thirty (30) days after discovering the ground for disqualification. The motion shall be addressed to the judge whose disqualification is sought and be filed with the circuit clerk at least seven (7) days in advance of any date set for a non-trial proceeding in the case or at least twenty-one (21) days in advance of any trial date set in the case and shall:
(1) State the facts and reasons for disqualification, including the specific provision of Canon 3(E)(1) of the Code of Judicial Conduct asserted to be applicable;
(2) Be accompanied by a verified certificate of counsel of record or unrepresented party that they have read the motion; that after reasonable inquiry, to the best of their knowledge, information, and belief, it is well grounded in fact and is warranted by either existing law or a good faith argument for the extension, modification, or reversal of existing law; that there is evidence sufficient to support disqualification; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and
(3) Be submitted by copy directly to the judge, and served upon counsel of record or unrepresented party.
(b) Upon the judge's receipt of a copy of such motion, regardless of whether the judge finds good cause and agrees to the disqualification motion or not, the judge shall:
(1) proceed no further in the matter;
(2) transmit forthwith to the Chief Justice a copy of the motion and certificate, together with a letter stating the judge's response to the motion and the reasons therefor, including such matters and considerations as the judge may deem relevant; and
(3) make a copy of the letter part of the record and file same in the office of the circuit clerk with copies to counsel of record and any unrepresented party.
(c) Upon receipt of a disqualification or recusal motion pursuant to subdivision (b) of this rule, the Chief Justice shall enter an order within fourteen (14) days providing for the judge to either remain on the case or be removed, in which case the Chief Justice shall appoint another judge to hear the matter.
(d) If the information is insufficient to permit the Chief Justice to make a ruling, the Chief Justice may direct that the judge conduct a hearing on matters relating to the disqualification motion and then proceed pursuant to this rule.
(e) In the event a disqualification motion is filed with the circuit clerk and written notice thereof is submitted to the judge less than seven (7) days in advance of the date set for a non-trial proceeding, or less than twenty-one (21) days in advance of the date set by order for trial, the judge may either grant or deny the disqualification motion as follows:
(1) If the judge grants the motion for disqualification, the judge shall proceed no further in the matter and shall forthwith transmit the motion and reason for the ruling to the Chief Justice in accordance with subdivision (b)(2) of this rule, and the Chief Justice shall consider the matter in accordance with this rule.
(2) If the judge denies the motion for disqualification the judge shall allow
the moving party to make a record on the disqualification issue and:
(a)in a non-trial proceeding when the date set by order for trial is
not within 21 days of the filing of the motion for
disqualification, the judge may conduct the non-trial
proceeding, and shall transmit the disqualification motion, the
record, and reason for the ruling on the disqualification issue
to the Chief Justice in accordance with subdivision (b)(2) of
this rule and the Chief Justice shall consider the matter in
accordance with this rule; or
(b) if a trial date is set by order within 21 days of the filing of the disqualification motion, the judge is not required to transmit the motion or record on the disqualification issue to the Chief Justice, but the issue may be addressed on appeal.
17.02. Voluntary Recusal by a Judge.
In the absence of a disqualification motion having been filed, except as provided by Rule 17.03 below, a judge seeking voluntary recusal shall so inform the parties and shall proceed pursuant to the applicable provisions of TCR 17.01(b), provided, that in lieu of a motion and certificate, the judge shall transmit to the Chief Justice a letter stating the reasons why the judge is requesting recusal, with reference to the relevant section(s) of the Code of Judicial Conduct and the Chief Justice shall rule pursuant to TCR 17.01(c) or TCR 17.01(d).
17.03. Applicability.
The preceding provisions of this rule do not apply to the assignment or reassignment of cases within a multi-judge circuit previous to the filing of a motion for disqualification.
17.04. Time.
Computation of any time period prescribed or allowed by this rule shall be governed by W.Va. R.Civ.P. 6.
17.05. Challenge to Disqualification Rulings.
All rulings and orders relating to the recusal or disqualification of a judge shall be considered interlocutory in nature and not subject to direct or immediate appeal. This rule shall not, however, prohibit any party from seeking or using redress available by writ of prohibition or any other appropriate extraordinary writ.
17.06. Unavailability under W.Va. Code § 51-2-1(a).
(a) The unavailability of the sitting judge in a single-judge circuit shall be a ground for invoking the concurrent jurisdiction of the Kanawha County Circuit Court only upon notification to and verification through the Supreme Court Administrative Office and affirmative referral by the Chief Justice.
(b) Upon verification of the unavailability of the sitting judge in a single-judge circuit, the Chief Justice shall forthwith, by order:
(1) Refer the requesting party and the needed proceeding to the Kanawha County Circuit Court; or
(2) Refer the requesting party and the needed proceeding to the different judge already assigned, if any, to the single-judge circuit involved; or
(3) Assign a different judge to the single-judge circuit involved to conduct the needed proceeding; or
(4) Direct that the requesting party await the return of the sitting judge in the single-judge circuit involved.
(c) The judges of the Kanawha County Circuit Court are prohibited from entertaining or acting on any matters pursuant to W. Va. Code § 51-2-1(a) without verification of referral by the Chief Justice.
(d) No motion for the disqualification of the sitting judge in a single-judge circuit shall be referred to the Kanawha County Circuit Court.
(e) Cases in which matters are referred to the Kanawha County Circuit Court pursuant to TCR 17.06(b)(1) remain cases of the original county of venue within the single-judge circuit involved, and the original county of venue is the proper initial forum for any subsequent proceedings in such cases.
(f) The clerk of the Kanawha County Circuit Court shall forthwith transmit to the circuit clerk of the original county of venue a certified or attested copy of every document filed or entered in matters referred to the Kanawha County Circuit Court pursuant to TCR 17.06(b)(1).
17.07. Sanctions.
If a motion is signed in violation of TCR 17.01, the Chief Justice or the judge whose disqualification was sought, upon motion or sua sponte, may refer the matter to the appropriate disciplinary authority or may impose upon the person who signed it, an unrepresented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the motion, including reasonable attorney fees.