Health Law Monitor
Status of West Virginia State and Federal Courts
May 20, 2020
West Virginia State Courts
On March 22, the Supreme Court of Appeals declared a “judicial emergency” due to the Covid-19 public health crisis and suspended trials, in person hearings, and deadlines. Subsequent orders extended the emergency period to May 15. On May 6, 2020, the Court ended the emergency declaration by issuing a “Resumption of Operations” order and “Covid-19 Resumption of Operations Protocols.” Most importantly for litigants and counsel, the order provides for resumption in stages of all deadlines suspended during the period of emergency.
The May 6 order designated counties as “Green” or “Hot Spot” based on the West Virginia Department of Health and Human Resources ("DHHR'') County Classification System. “Green” counties were scheduled to resume proceedings as follows:
|Type of Proceeding||Resume Date|
|In-person hearings or proceedings||May 18, 2020|
|Grand Jury proceedings||June 15, 2020|
|Jury Trials||June 29, 2020|
Proceedings in “Hot Spot” counties remained suspended until seven days after a change in designation to “Green.” The May 6 order included Harrison, Marion, Monongalia, Berkeley, and Jefferson as “Hot Spot” Counties, but on May 18, the Court’s updated map showed all West Virginia counties as “Green.”
All statutes of limitations and repose stayed during the judicial emergency expired on May 18. Other deadlines are lifted in stages as follows:
|Limitation Period||Expiration Date||New Expiration Date|
|Statutes of Limitations and Statutes of Repose||Between March 23, 2020, and May 15, 2020||May 18, 2020|
|Deadlines set forth in court rules, statutes, ordinances, administrative, rules, scheduling orders, or otherwise.||Expired between March 23, 2020, and April 17, 2020||May 29, 2020|
|Deadlines set forth in court rules, statutes, ordinances, administrative, rules, scheduling orders, or otherwise.||Between April 18, 2020 and May 15, 2020||June 12, 2020|
|Deadlines created by, or in response to, the Court's April 24, 2020 order||N/A||Not affected|
|Non-emergency, in-person proceedings||Scheduled between March 23, 2020, and May 15, 2020||Rescheduled on or after May 18, 2020|
The May 6 order directs circuit courts to “utilize available technology to limit person-to-person contact whenever possible, unless otherwise directed” and to use “remote technology to conduct hearings and proceedings.” Any state or local rules that limit or preclude a judge or clerk’s ability to use remote technology are suspended (as long as the use does not infringe on the constitutional rights of a party or litigant).
The protocols are meant to establish minimum standards; counties are empowered to take additional steps if recommended by local health authorities and encouraged close collaboration among local officials. The protocols contain detailed information for employees of the court system.
The “Court Operations” section of the protocols contains detailed directions requiring all judicial offices and court spaces be “thoroughly disinfected” on an ongoing basis before and after proceedings.
“Call dockets” where multiple matters are set at one time are prohibited and judges are instructed to schedule their dockets to minimize waiting time and traffic in court areas. Public access is to be limited in the least restrictive means possible.
Where in court proceedings are held, parties and counsel are to be spread out with movement limited to assure social distancing. Courtrooms are to be marked with safe distances. Instructions on these requirements must be contained in all notices and summonses. Counsel are directed to inform clients and witnesses of the order’s requirements.
All participants may be required to use hand sanitizer upon entry. All must wear self-provided masks but the judicial officer can direct removal while addressing the court or testifying. Consistent with recommendations from the CDC and the Governor, “any type of face covering sufficient to catch droplets leaving the nose and mouth, including homemade fabric masks or bandanas, is appropriate. Medical masks or N95 masks are not required.”
For trials and grand jury proceedings, circuit courts are instructed to “take appropriate steps to protect the health of jurors and potential jurors.” Large scale jury orientations “should not occur” until further order of the Court. “Instead, jurors should be called to the courthouse in manageable numbers where adequate social distancing measures can continue.” Jurors are permitted to wear self-provided masks and should be arranged in the courtroom so they can hear and observe. They are not to be confined to jury boxes or required to sit within six feet of any other person. Jury trials may be moved to alternative space to provide for appropriate social distancing. Judges are to consult local health departments about availability and use of appropriate protective equipment. Judges should give special consideration to a juror seeking relief from jury duty if the juror establishes that they are a "vulnerable individual."
Parties, attorneys, witnesses, and jurors “should not come to court if they have a fever or other COVID-19 symptoms, or if they have been directly exposed to a suspected case of COVID-19.” All are to contact the court or clerk for guidance.
Judges are directed to be flexible with “parties, attorneys or witnesses “adversely impacted by continued community efforts to stop the disease, such as extended school closures” and make reasonable efforts to accommodate the individual and support public health efforts. And “[e]ven when the period of judicial emergency is over, judges should continue to be flexible and proactive in managing their dockets.”
West Virginia Federal Courts
West Virginia’s federal courts did not address the Covid crisis in the same manner as the Supreme Court of Appeals.
Starting on March 23, the United States District Court for the Southern District of West Virginia issued general orders which canceled jury trials, limited in person proceedings, and closed courthouses to the public through May 31. The court did not suspend any deadlines including statutes of limitation. According the court’s website, jury selection will resume on May 29, 2020, for “prospective jury service for the period beginning July 1, 2020, and ending September 30, 2020.”
The Northern District did not generally suspend hearings or trials. The court’s website states “[t]he Court remains open and is conducting necessary judicial business, is accepting filings and responding to inquiries. Only essential staff are in our courthouses during business hours with most staff teleworking.” The Chief Judge issued an initial order on March 10 limiting courthouse access. On March 20, the Chief Judge issued a Public Advisory which further limited courthouse access to the public and suspended the requirement of providing paper copies of electronically filed documents. The court otherwise directed:
All deadlines and scheduled hearings will remain in place unless the presiding judge in an individual case issues an order directing otherwise. Chambers will contact counsel to reschedule proceedings when appropriate. Statutes of limitation are not tolled. Electronic filing through CM/ECF will remain available, and self-represented litigants may deposit and date stamp papers for filing with the Court in the drop boxes at each point of holding Court between 8:00 a.m. and 5:00 p.m. Monday through Friday.
A March 30 order provided for the use of video technology to conduct proceedings in criminal cases, and Grand Jury proceedings were suspended by order dated April 20.
As the courts continued to “re-open,” parties should expect a continued use of video and telephone conferencing by judges for hearings and in person proceedings. While depositions can proceed, it is likely that video technology will be used, at least in the opening stages.