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The Legal Brief

Supreme Court of Appeals of West Virginia Extends Judicial Emergency to May 15, 2020

April 24, 2020

By: Thomas J. Hurney Jr.

On April 21, 2020, the Supreme Court of Appeals of West Virginia entered an amended order which extends the declaration of judicial emergency to May 15, 2020.  Like the prior two orders, the order stays all in court proceedings and extends all deadlines:

[A]ll in-person proceedings and court deadlines, except the emergency proceedings described and other proceedings authorized herein, 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 and grand jury proceedings are stayed during this period of judicial emergency. Deadlines set forth in court rules, statutes, ordinances, administrative rules, scheduling orders, or otherwise that are set to expire between March 23, 2020, and May 15, 2020, are hereby extended to May 18, 2020. Statutes of limitations and statutes of repose that would otherwise expire during the period between March 23, 2020, and May 15, 2020, are hereby extended to May 18, 2020.

The order adds a new paragraph, providing for some activity in civil cases: 

It is furthered ORDERED that circuit court judges, family court judges, and magistrates may conduct hearings, proceedings, or bench trials via telephone or video conference in nonemergency matters. A hearing, proceeding, or bench trial may only occur with the mutual consent of the parties, which shall not be unreasonably withheld. A judicial officer may set deadlines related to these hearings, proceedings, or bench trials. 

This provides some flexibility allow Circuit Courts to consider and decide motions and hold remote hearings and bench trials even in non-emergency matters.  The order requires cooperation and agreement of counsel to proceed and provides some relief by allowing remote hearings to resolve disputes. 

Status of Judicial Emergency in West Virginia Federal Courts 

The US District Court for the Southern District of West Virginia entered General Order #5 directing “that all civil and criminal petit jury selections and trials” and “all other in-person civil and criminal proceedings in the U.S. District Court for the Southern District of West Virginia, including court appearances, trials, hearings, settlement conferences, admission ceremonies, and grand jury meetings” that are “scheduled to commence now through May 31, 2020 before any district or magistrate judge in the Southern District of West Virginia are CONTINUED until further order of the Court.”  The Court excludes the time from the Speedy Trial Act deadlines for criminal and grand jury proceedings.  Otherwise, “the Court “will remain open for emergency criminal, civil, and bankruptcy matters related to public safety, public health and welfare, and individual liberty” but “the U.S. Courthouses in the Southern District of West Virginia continue to be closed to the general public. Only litigants with scheduled in-person proceedings, parties who must appear in the courthouse as a direct consequence of a court ruling, counsel of record, investigators or employees of counsel, credentialed press, and authorized persons who display government or other identifying credentials to Court Security Officers may be present in the courthouses.”  Importantly, “this Order does not toll any applicable statute of limitations,” nor does it extend any deadlines.

The Northern District continues to take a more hands-off approach to civil cases.  An order dated March 30, 2020, dealt with criminal matters. Otherwise, the order of March 20, which addresses courthouse access and states “[a]ll 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 remains but submission of paper copies, etc., is suspended.


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