The Legal Brief

Supreme Court of Appeals of West Virginia Extends Judicial Emergency Order to May 1, 2020

April 4, 2020

On April 3, 2020, the Supreme Court of Appeals of West Virginia entered an amended order which extends the declaration of judicial emergency to May 1, 2020.  

This amended order makes it clear that there are to be no hearings or “in person contact” in the court system in civil cases. It provides protection to litigants by automatically canceling all hearings and deadlines that fall between March 23, 2020, and May 1, 2020, including the expiration of statutes of limitation. The order makes exceptions for emergency proceedings in juvenile, abuse and neglect, mental hygiene, child custody and criminal matters.    

While the order does not expressly address depositions and other discovery in civil cases, the “all in-person proceedings language” and the extension of all deadlines strongly suggests that depositions are also subject to the order. Because deadlines are only extended to May 4, things due in the interim become due then, so while the order provides some relief in the emergency period, it does not completely absolve parties of obligations to comply with deadlines.  Particularly during this time, the courts will expect counsel to work cooperatively to protect the health and safety of litigants (and lawyers and court officials). 

Like the prior order entered March 22, this order provides:

• All in-person proceedings and court deadlines, except for specified emergency proceedings “directed to take place or any act required to be done on any day falling within this period of judicial emergency, are stayed.”
• All jury trials are stayed.
• All deadlines set to expire between March 23, 2020, and May 1, 2020, are extended to May 4, 2020.
• All “proceedings previously scheduled between March 23, 2020, and May 1, 2020, are continued until a later date determined by the presiding judicial officer.”
• Statutes of limitations and statutes of repose that would otherwise expire during the period between March 23, 2020, and May 1, 2020, are extended to May 4, 2020.
• But “[d]eadlines, statutes of limitations, and statutes of repose that are not set to expire between March 23, 2020, and May 1, 2020, are not extended or tolled by this Order.”
• The order does not apply to emergency proceedings “required to protect the immediate health or safety of a party or the community” such as domestic violence, child abuse and neglect, infant guardianship, juvenile detention or placement in state custody, criminal initial appearances, bond hearings, search warrants, and criminal preliminary hearings, mental hygiene; and “matters initiated by public health or governmental officials to enforce orders related to the COVID-19 crisis.”  
• To the extent they do not impermissibly infringe upon a party or litigant’s constitutional rights, “all state or local rules that limit or preclude a judicial officer or court clerk's ability to utilize remote, telephonic or video technology to limit in-person contact, are suspended.”
• Circuit court and family court judges may conduct time-sensitive hearings via telephone or video conference in non-emergency matters “if the judicial officer determines action is required to avoid serious harm that would likely result if the matter was not resolved during this period of judicial emergency. A hearing may only occur with the mutual consent of the parties, which shall not be unreasonably withheld.”
• Each Chief Circuit Family Court Judge is required to notify all employees of all offices of the content of the Order and ensure that it is carried out “to the greatest extent possible to reduce the number of employees in a courthouse at any given time.” Judges must develop a plan and submit to the Supreme Court.

We’ll continue to monitor orders entered in state and federal courts. It is likely we’ll see similar extensions in the federal courts and depending on conditions, further extensions in state courts as the judicial system copes with the COVID-19 crisis.