The Legal Brief

By: Thomas J. Hurney Jr.

On May 6, 2020, The Supreme Court of Appeals of West Virginia took the first step towards moving past the Covid-19 crisis by issuing an administrative order entitled “Resumption of Operations” stating that “certain court business may resume upon expiration of the judicial emergency” in accordance with Covid-19 Resumption of Operations Protocols issued the same day. The Court’s most recent orders – April 22 and April 24 – remain in effect until May 15, 2020. Then, the judicial emergency expires, and the Resumption of Operations Protocols go into effect.

The order specifies that “in-person hearings or proceedings” may commence on or after May 18, 2020; grand jury proceedings on or after June 15, 2020; and jury trials on or after June 29, 2020.

All proceedings and deadlines stayed due to the COVID-19 crisis, except for “emergency proceedings” authorized in the April 22 order, remain stayed until May 15. The stays are lifted in stages:

For all authorized proceedings, courts should “utilize available technology to limit person-to-person contact whenever possible, unless otherwise directed.” 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 “designed to mitigate the risks associated with the relaxation of the stay-at-home order and ensure a gradual return to normal court functionality,” and provide a “uniform, statewide response to the ongoing COVID-19 pandemic” that incorporates flexibility for “diverse geographic regions of the state” which may be impacted differently. Consistent with the West Virginia Department of Health and Human Resources (“DHHR”) county classification system, the protocols recognize “Hot Spot” counties to be treated differently; all other counties are “Green Counties.” The Court will issue a weekly map showing these designations.  The map attached to the protocols shows Harrison, Marion, Monongalia, Berkeley and Jefferson as “Hot Spot” counties. Trials, proceedings and grand jury proceedings will start in Green Counties as specified in the order.  Once a Hot Spot County reaches Green status, it can start proceedings seven days later.

The protocols are meant to establish minimum standards, but counties are empowered to take additional steps if recommended by local health authorities. The protocols encourage close collaboration among local officials and offer the Court’s Administrative Office for assistance.

The Human Resource section of the protocols provides extensive details for workplace function and precautions – sanitation and hand washing, social distancing and use of video technology, appropriate use of masks and gloves, remote work – and flexibility in using remote work and dealing with employees affected by community efforts to stop Covid-19, such as child care issues due to school closings. Employees with illness or symptoms cannot return to work until they have quarantined for fourteen days and had a negative test.

The Court Operations protocols directs that all judicial offices and court spaces be “thoroughly disinfected” and provide for ongoing cleaning.

“Jury trials and grand jury proceedings must continue to be postponed in Hot Spot Counties. If a jury is empaneled from multiple counties, each county from which the jury is constituted must be a Green County before the jury may be empaneled.” Criminal hearings for incarcerated individuals are to continue using remote technology. While not required, the Court encourages “the use of remote technology to conduct hearings and proceedings.” In Green Counties, judges are permitted to use remote technology; in Hot Spot counties, they are required.

“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. Courtrooms are to be marked with safe distances. The protocols suggest as possible solutions having counsel wait in cars for a call from the judicial assistant that they are “next up”, having judges alternate hearing days or designate waiting areas with safe social distancing. 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 and movement is to be limited to assure social distancing. All may be required to use hand sanitizer upon entry and must wear masks, although the judicial officer can direct removal while addressing the court or testifying. “The purpose of the mask or face-covering requirement is to reduce the risk of a person spreading the disease to protect Court and county employees, attorneys, parties, jurors, witnesses, and the public.”  Appropriate masks “consistent with recommendations from the CDC and from 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.” Instructions on these requirements must be contained in all notices and summonses. Counsel are directed to inform clients and witnesses.  

As to trials and grand jury proceedings, 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 but are not to be confined to jury boxes or required to sit within six feet of any other person. Judges should give special consideration to a juror seeking relief from jury duty if the juror establishes that they are a “vulnerable individual.” 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.

The protocols provide flexibility to family court judges to use courtrooms within their circuit even if in another county or other facilities.

The protocols contain detailed direction for limiting access, providing for social distancing and cleaning and disinfecting courthouses.

“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.” Individuals are to contact the court or clerk for guidance.  Judges are to be flexible and the Court supports County Commissions’ efforts to scan temperatures (with no contact thermometers) before entry.

Judges are urged 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.

“Even when the period of judicial emergency is over, judges should continue to be flexible and proactive in managing their dockets.”