In counties where voting machines or electronic voting systems are used, the procedures of section eleven, article four, chapter three and section twelve, article four-a of said chapter three of this code shall apply respectively to the election of magistrates in the same manner as they apply to the election of members of the House of Delegates.
Notwithstanding the provisions of section seven, article five, chapter three of this code, for purposes of the primary election to be held in the year one thousand nine hundred seventy- six, the last day for filing certificates of candidacy for the office of magistrate shall be extended to the twenty-seventh day of February of that year.
(b) The number of magistrates serving in each county of the state shall comport with the numbers certified by the supreme court of appeals to the ballot commissioners of each county on or before the thirty-first day of January, two thousand, for purposes of the primary and general elections to be held in the year two thousand.
(c)(1) The Legislature finds that there exists among the various counties large and unwarranted disparities of caseload between the magistrate courts. The Legislature further finds that the disparity causes an inequity with regard to magistrate court resources and the ability of the courts to effectively meet the needs of the citizens of this state who need to avail themselves of this judicial resource. The Legislature further finds that the system currently in place for allocating magistrate court resources which has been in effect since the year one thousand nine hundred ninety-one produces certain anomalies which cause quadrennial reallocation of magistrate resources based upon said anomalies which in turn cause a waste of funds, inequitable workloads, unnecessary shifting of resources and confusion among the various counties.
(2) The office of legislative services is hereby directed to undertake a comprehensive study of the magistrate courts of the various counties to determine, among other things, the work performed by various personnel in the magistrate court system, how work time is spent by said employees and to report its findings no later than the tenth day of December, two thousand one, to the joint standing committee on the judiciary.
(3) The division of criminal justice and highway safety shall, in conjunction with the administrative office of the West Virginia supreme court of appeals, compile for consideration by the Legislature statistical information and documentation regarding caseloads, cases handled per year per magistrate, cases per county, cases per circuit and provide to the president of the Senate and the speaker of the House of Delegates no later than the first day of the regular session of the Legislature, two thousand two, their recommendations for improving the magistrate process, better utilization of court resources, including, but not limited to, categorizing the various types of cases heard in magistrate court and developing a new weighted formula to evaluate types of cases by the amount of time necessary to bring said cases to a resolution.
(d) Notwithstanding the other provisions of this section, the allowable number of magistrates serving the counties of Berkeley and Nicholas on the first day of March, two thousand one, shall be increased by one in each county, effective the first day of July, two thousand one. The initial appointment to the position shall be made in accordance with the provisions of section six of this article.
(1) The West Virginia Supreme Court of Appeals has held that a salary system for magistrates which is based upon the population that each magistrate serves does not violate the equal protection clause of the Constitution of the United States;
(2) The West Virginia Supreme Court of Appeals has held that a salary system for magistrates which is based upon the population that each magistrate serves does not violate section thirty-nine, article VI of the Constitution of West Virginia;
(3) The utilization of a two-tiered salary schedule for magistrates is an equitable and rational manner by which magistrates should be compensated for work performed;
(4) Organizing the two tiers of the salary schedule into one tier for magistrates serving less than eight thousand four hundred in population and the second tier for magistrates serving eight thousand four hundred or more in population is rational and equitable given current statistical information relating to population and caseload; and
(5) That all magistrates who fall under the same tier should be compensated equally.
(b) The salary of each magistrate shall be paid by the state. Magistrates who serve fewer than eight thousand four hundred in population shall be paid annual salaries of thirty thousand six hundred twenty-five dollars and magistrates who serve eight thousand four hundred or more in population shall be paid annual salaries of thirty-seven thousand dollars: Provided, That on and after the first day of July, two thousand three, magistrates who serve fewer than eight thousand four hundred in population shall be paid annual salaries of thirty-three thousand six hundred twenty- five dollars and magistrates who serve eight thousand four hundred or more in population shall be paid annual salaries of forty thousand dollars: Provided, however, That on and after the first day of July, two thousand five, magistrates who serve fewer than eight thousand four hundred in population shall be paid annual salaries of forty-three thousand six hundred twenty-five dollars and magistrates who serve eight thousand four hundred or more in population shall be paid annual salaries of fifty thousand dollars. Provided further, That on and after the first day of July, 2011, magistrates who serve fewer than eight thousand four hundred in population shall be paid annual salaries of $51,125 and magistrates who serve eight thousand four hundred or more in population shall be paid annual salaries of $57,500.
(c) For the purpose of determining the population served by
each magistrate, the number of magistrates authorized for each
county shall be divided into the population of each county. For the
purpose of this article, the population of each county is the
population as determined by the last preceding decennial census
taken under the authority of the United States government.
No person shall assume the duties of magistrate unless he shall have first attended and completed a course of instruction in rudimentary principles of law and procedure which shall be given in accordance with the supervisory rules of the supreme court of appeals.
All magistrates shall be required to attend such other courses of continuing educational instruction as may be required by supervisory rule of the supreme court of appeals. Failure to attend such courses of continuing educational instruction without good cause shall constitute neglect of duty. Such courses shall be provided at least once every other year. Persons attending such courses outside of the county of their residence shall be reimbursed by the state for expenses actually incurred in accordance with the supervisory rules of the supreme court of appeals.
Each magistrate shall, before assuming the duties of office, take an oath of office to be administered by the circuit judge of the county, or the chief judge thereof if there is more than one judge of the circuit court. Each magistrate shall maintain the qualifications for office at all times.
Each magistrate who serves five thousand or less in population shall devote such time to his public duties as shall be required by rule or regulation of the judge of the circuit court, or the chief judge thereof if there is more than one judge of the circuit court. Each magistrate who serves more than five thousand in population shall devote full time to his public duties. As nearly as practicable, the workload and the total number of hours required shall be divided evenly among the magistrates in a county by such judge.
A magistrate may be censured or temporarily suspended in accordance with the rules of the supreme court of appeals.
Subject to the provisions of section one, article ten, chapter three of this code, when a vacancy occurs in the office of magistrate, the judge of the circuit court, or the chief judge thereof if there is more than one judge of the circuit court, shall fill the same by appointment of a person of the same political party as the officeholder vacating the office.
At a general election in which a magistrate is elected for an
unexpired term, the circuit judge, or the chief judge thereof if
there is more than one judge of the circuit court, shall cause a
notice of such election to be published prior to such election as
a Class II-0 legal advertisement in compliance with the provisions
of article three, chapter fifty-nine of this code, and the
publication area for such publication shall be the county involved.
If the vacancy occurs before the primary election held to nominate
candidates to be voted for at the general election, at which any
such vacancy is to be filled, candidates to fill such vacancy shall
be nominated at such primary election in accordance with the time
requirements and the provisions and procedures prescribed in
article five, chapter three of this code. Otherwise, they shall be
nominated by the county executive committee in the manner provided
in section nineteen, article five, chapter three of this code, as
in the case of filling vacancies in nominations, and the names of
the persons so nominated and certified to the clerk of the circuit
court of such county shall be placed upon the ballot to be voted at
such next general election.
(b) Magistrate court clerks shall be paid a monthly salary by the state. Magistrate court clerks serving magistrates who serve less than eight thousand four hundred in population shall be paid up to twenty-six thousand four hundred thirty-six dollars per year and magistrate court clerks serving magistrates who serve eight thousand four hundred or more in population shall be paid up to thirty-one thousand three hundred forty-four dollars per year: Provided, That on and after the first day of July, two thousand six, magistrate court clerks serving magistrates who serve less than eight thousand four hundred in population shall be paid up to thirty-one thousand four hundred thirty-six dollars per year and magistrate court clerks serving magistrates who serve eight thousand four hundred or more in population shall be paid up to thirty-six thousand three hundred forty-four dollars per year: Provided, however, That on and after the first day of July, two thousand seven, magistrate court clerks serving magistrates who serve less than eight thousand four hundred in population shall be paid up to thirty-six thousand four hundred thirty-six dollars per year and magistrate court clerks serving magistrates who serve eight thousand four hundred or more in population shall be paid up to forty-one thousand three hundred forty-four dollars per year: Provided further, That after the effective date of this section, any general salary increase granted to all state employees, whose salaries are not set by statute, expressed as a percentage increase or an "across-the-board" increase, may also be granted to magistrate court clerks. For the purpose of determining the population served by each magistrate, the number of magistrates authorized for each county shall be divided into the population of each county. The salary of the magistrate court clerk shall be established by the judge of the circuit court, or the chief judge of the circuit court if there is more than one judge of the circuit court, within the limits set forth in this section.
(c) In addition to other duties that may be imposed by the provisions of this chapter or by the rules of the Supreme Court of Appeals or the judge of the circuit court or the chief judge of the circuit court if there is more than one judge of the circuit court, it is the duty of the magistrate court clerk to establish and maintain appropriate dockets and records in a centralized system for the magistrate court, to assist in the preparation of the reports required of the court and to carry out on behalf of the magistrates or chief magistrate if a chief magistrate is appointed, the administrative duties of the court.
(d) The magistrate court clerk, or if there is no magistrate court clerk in the county, the clerk of the circuit court, may issue all manner of civil process and require the enforcement of subpoenas and subpoenas duces tecum in magistrate court.
(b) A magistrate assistant shall have the duties, clerical or otherwise, assigned by the magistrate and prescribed by the rules of the Supreme Court of Appeals or the judge of the circuit court or the chief judge of the circuit court if there is more than one judge of the circuit court. In addition to these duties, magistrate assistants shall perform and are accountable to the magistrate court clerks with respect to the following duties:
(1) The preparation of summons in civil actions;
(2) The assignment of civil actions to the various magistrates;
(3) The collection of all costs, fees, fines, forfeitures and penalties which are payable to the court;
(4) The submission of moneys, along with an accounting of the moneys, to appropriate authorities as provided by law;
(5) The daily disposition of closed files which are to be located in the magistrate clerk's office;
(6) All duties related to the gathering of information and documents necessary for the preparation of administrative reports and documents required by the rules of the Supreme Court of Appeals or the judge of the circuit court or the chief judge of the circuit court if there is more than one judge of the circuit court;
(7) All duties relating to the notification, certification and payment of jurors serving pursuant to the terms of this chapter;
(8) All other duties or responsibilities whereby the magistrate assistant is accountable to the magistrate court clerk as determined by the magistrate.
(c) Magistrate assistants shall be paid a monthly salary by the state. Magistrate assistants serving magistrates who serve less than eight thousand four hundred in population shall be paid up to twenty-three thousand one hundred forty-eight dollars per year and magistrate assistants serving magistrates who serve eight thousand four hundred or more in population shall be paid up to twenty-six thousand two hundred forty-four dollars per year: Provided, That on and after the first day of July, two thousand six, magistrate assistants serving magistrates who serve less than eight thousand four hundred in population shall be paid up to twenty-eight thousand one hundred forty-eight dollars per year and magistrate assistants serving magistrates who serve eight thousand four hundred or more in population shall be paid up to thirty-one thousand two hundred forty-four dollars per year: Provided, however, That on and after the first day of July, two thousand seven, magistrate assistants serving magistrates who serve less than eight thousand four hundred in population shall be paid up to thirty-three thousand one hundred forty-eight dollars per year and magistrate assistants serving magistrates who serve eight thousand four hundred or more in population shall be paid up to thirty-six thousand two hundred forty-four dollars per year: Provided further, That after the effective date of this section, any general salary increase granted to all state employees, whose salaries are not set by statute, expressed as a percentage increase or an "across-the-board" increase, may also be granted to magistrate assistants. For the purpose of determining the population served by each magistrate, the number of magistrates authorized for each county shall be divided into the population of each county. The salary of the magistrate assistant shall be established by the magistrate within the limits set forth in this section.
(b) Magistrate court deputy clerks shall have the duties, clerical or otherwise, as may be assigned by the magistrate court clerk and as may be prescribed by the rules of the Supreme Court of Appeals or the judge of the circuit court or the chief judge if there is more than one judge of the circuit court. Magistrate court deputy clerks may also exercise the power and perform the duties of the magistrate court clerk as may be delegated or assigned by the magistrate court clerk.
(c) A magistrate court deputy clerk may not be an immediate family member of any magistrate, magistrate court clerk, magistrate assistant or judge of the circuit court within the same county, may not have been convicted of a felony or any misdemeanor involving moral turpitude and must reside in this state. For purposes of this subsection, "immediate family member" means a mother, father, sister, brother, child or spouse.
(d) Magistrate court deputy clerks shall be paid an annual salary by the state on the same basis and in the same amounts established for magistrate assistants in each county, as provided in section nine of this article.
Magistrates who serve at more than one location within the county, whether on a regular or temporary basis, shall be reimbursed travel expenses for travel between locations at a rate per mile equal to that allowed for reimbursement of travel expenses of officers in the judicial branch of state government.
(a) Acquire or hold any interest in any matter which is before the magistrate court;
(b) Purchase, either directly or indirectly, any property being sold upon execution issued by the magistrate court;
(c) Act as agent or attorney for any party in any proceeding in any magistrate court in the state; or
(d) Engage in, or assist in, any remunerative endeavor, except the duties of his office, while on the premises of the magistrate court office.
Any person who violates the provisions of this section shall be guilty of official misconduct and shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than five hundred dollars.
Nothing contained in this section shall preclude a magistrate, magistrate court clerk, magistrate court deputy clerk, or magistrate assistant from being a party to an action in the magistrate court: Provided, That any action in which the magistrate court clerk is a party shall not be assigned to the chief magistrate nor shall any action in which a magistrate court deputy clerk or magistrate assistant is a party be assigned or heard by the magistrate for whom such magistrate assistant is employed or to whose court such deputy clerk is assigned.
(b) The Chief Justice of the Supreme Court of Appeals or judge of the circuit court of the county in which a magistrate is elected, or the chief judge thereof if there is more than one judge of the circuit court, may by order direct a magistrate to serve temporarily in any other county within the judicial circuit for such purposes as the judge may direct. The magistrate's authority, to the extent ordered by the judge, shall be equal to the jurisdiction and authority of a magistrate elected in the county to which the magistrate is ordered to serve. The temporary assignment may not exceed sixty days in length in any given calendar year, except with the consent of the transferred magistrate.
(c) A magistrate who is temporarily assigned to a county with a higher salary schedule for magistrates than the salary schedule in the county from which the magistrate was elected, shall be reimbursed for the difference of the salary in the assigned county and the lower salary which the magistrate received in the county of election, prorated for the number of days of the temporary assignment. An assigned magistrate may not be reimbursed on a pro rata basis for less than the salary received in the county of that magistrate's election.
(d) A magistrate shall be reimbursed for reasonable expenses incurred in service outside of the county, as provided by rule of the Supreme Court of Appeals.
Subject to the supervision of the chief justice of the Supreme Court of Appeals or of the judge of the circuit court, or the chief judge thereof if there is more than one judge of the circuit court, it shall be the duty of the sheriff, or his or her designated deputy, to serve as bailiff of a magistrate court upon the request of the magistrate. Such service shall also be subject to such administrative rules as may be promulgated by the Supreme Court of Appeals. A writ of mandamus shall lie on behalf of a magistrate to enforce the provisions of this section.
(b) The sheriff of any county may employ, by and with the consent of the county commission, one or more persons whose sole duties shall be the service of civil process and the service of subpoenas and subpoenas duces tecum. Any such person shall not be considered a deputy or deputy sheriff within the meaning of subdivision (2), subsection (a), section two, article fourteen, chapter seven of this code, nor shall any such person be authorized to carry deadly weapons in the performance of his or her duties: Provided, That the sheriff may authorize an employee whose sole duties involve service of civil process to carry a firearm if the employee completes all training requirements otherwise applicable to deputy sheriffs for the use and handling of firearms: Provided, however, That the sheriff may authorize previously certified West Virginia law-enforcement officers to carry a deadly weapon in the performance of the duties of the officers under the provisions of this section: Provided further, That these officers and employees maintain yearly weapons qualifications and are bonded through the office of the sheriff.
Immediately after the expiration of his term of office and in no event later than thirty days thereafter each justice of the peace shall pay over to appropriate authorities or persons such moneys as may be held by him and submit such reports to such authorities or persons as are required by law.
Every justice of the peace, upon the expiration of his term of office, shall forthwith deliver his official docket, together with such dockets of his predecessors as he may have, to the magistrate court clerk or, if there is no magistrate court clerk, to the clerk of the circuit court, who shall maintain such dockets as directed by the supreme court of appeals or by the judge of the circuit court, or the chief judge thereof if there is more than one judge of the circuit court.
No act done by a justice of the peace prior to the first day of January, one thousand nine hundred seventy-seven, shall be affected by virtue of the abolition of the office of justice of the peace. Matters pending before a justice of the peace prior to such date or which might otherwise require further action by a justice of the peace shall be handled by the magistrate to whom such matter is assigned or in such other manner as may be ordered by the judge of the circuit court, or the chief judge thereof if there is more than one judge of the circuit court.
Magistrate courts shall not have jurisdiction of actions in equity, of matters in eminent domain, of matters in which the title to real estate is in issue, of proceedings seeking satisfaction of liens through the sale of real estate, of actions for false imprisonment, of actions for malicious prosecution or of actions for slander or libel or of any of the extraordinary remedies set forth in chapter fifty-three of this code.
Magistrates, magistrate court clerks, magistrate court deputy clerks, and magistrate assistants shall have the authority to administer any oath or affirmation, to take any affidavit or deposition, unless otherwise expressly provided by law, and to take, under such regulations as are prescribed by law, the acknowledgment of deeds and other writings.
(b) The circuit court may, on the petition of the accused and for good cause shown, order the venue of the trial of a criminal case in magistrate court to be removed to some other county. Upon the filing of the petition, the proceedings in magistrate court shall be stayed until disposition by the circuit court. When the venue is so changed, the court making the order shall determine the county to which the case is to be removed and order the defendant to appear on some certain day before the court to which the case is removed. Where the defendant is in custody, the court may, if appropriate, order the defendant confined in a jail convenient to the court to which the case is removed. Upon receipt of the order changing venue, the magistrate court shall certify copies of its file of the case to the court to which the case is removed, and such court shall proceed with the case as if the prosecution had been originally therein, and for that purpose the certified copies aforesaid shall be sufficient.
(b) Notwithstanding any other provision of law to the contrary, magistrate courts have the authority to impose periods of supervision or participation in a community corrections program created pursuant to article eleven-c, chapter sixty-two of this code. Periods of supervision or participation in community corrections programs imposed pursuant to this subsection are not to exceed two years.
(c) Release on probation is subject to the following conditions:
(1) That the probationer may not, during the term of his or her probation, violate any criminal law of this state, any other state of the United States or the United States;
(2) That he or she may not, during the term of his or her probation, leave the state without the consent of the court which placed him or her on probation;
(3) That he or she shall comply with the rules or terms prescribed by the court;
(4) That he or she shall make reasonable restitution if financially able to do so, in whole or in any part, immediately or within the period of probation: Provided, That the magistrate conducts a hearing prior to imposition of probation and makes a determination on the record that the offender is able to pay restitution without undue hardship; and
(5) That he or she shall pay any fine and the costs assessed as the court may direct: Provided, That the magistrate conducts a hearing prior to imposition of probation and makes a determination on the record that the offender is able to pay the costs without undue hardship.
(d) On motion by the prosecuting attorney, and upon a hearing and a finding that reasonable cause exists to believe that a violation of any condition of probation has occurred, the magistrate may revoke probation and order execution of the sentence originally imposed.
(a) For filing and trying any civil action and for all services connected therewith, but excluding services regarding enforcement of judgment, the following amounts dependent upon the amount of damages sought in the complaint:
Where the action is for five hundred dollars
or less$30.00
Where the action is for more than five hundred
dollars but not more than one thousand dollars $35.00
Where the action is for more than one thousand
dollars but not more than two thousand dollars$40.00
Where the action is for more than two thousand
dollars$50.00
Where the action seeks relief other than money
damage$30.00
Five dollars from each of the filing fees listed above shall be deposited in the Court Security Fund created by the provisions of section fourteen, article three, chapter fifty-one of this code.
Five dollars from each of the filing fees listed above shall be deposited in the Courthouse Facilities Improvement Fund created by section six, article twenty-six, chapter twenty-nine of this code.
(b) For each service regarding enforcement of
a judgment including execution, suggestion,
garnishment and suggestee execution$5.00
(c) For each bond filed in a case$1.00
(d) For taking deposition of witness
for each hour or portion thereof$1.00
(e) For taking and certifying acknowledgment
of a deed or other writing or taking oath
upon an affidavit$ .50
(f) For mailing any matter required or
provided by law to be mailed by certified or
registered mail with return receipt$1.00
(g) For filing and trying any civil action$20.00
Costs incurred in a civil action shall be reflected in any judgment rendered thereon. The provisions of section one, article two, chapter fifty-nine of this code, relating to the payment of costs by poor persons, shall be applicable to all costs in civil actions.
Except as otherwise provided by law, costs shall be assessed against the losing party or parties.
(b) A magistrate shall assess costs in the amount of two dollars and fifty cents for issuing a sheep warrant and the appointment and swearing appraisers and docketing the proceedings.
(c) In each criminal case which must be tried by the circuit court but in which a magistrate renders some service, costs in the amount of ten dollars shall be imposed by the magistrate court and is certified to the clerk of the circuit court in accordance with the provisions of section six, article five, chapter sixty-two of this code.
(a) A magistrate court may accept credit cards in payment of all costs, fines, fees, forfeitures, restitution or penalties in accordance with rules promulgated by the Supreme Court of Appeals. Any charges made by the credit company shall be paid by the person responsible for paying the cost, fine, forfeiture or penalty.
(b) Unless otherwise required by law, a magistrate court may collect a portion of any costs, fines, fees, forfeitures, restitution or penalties at the time the amount is imposed by the court so long as the court requires the balance to be paid in accordance with a payment plan which specifies: (1) The number of payments to be made; (2) the dates on which the payments are due; and (3) the amounts due for each payment. The written agreement represents the minimum payments and the last date those payments may be made. The obligor or the obligor's agent may accelerate the payment schedule at any time by paying any additional portion of any costs, fines, fees, forfeitures, restitution or penalties.
(c) (1) If any costs, fines, fees, forfeitures, restitution or penalties imposed by the magistrate court in a criminal case are not paid within one hundred eighty days from the date of judgment and the expiration of any stay of execution, the magistrate court clerk or, upon judgment rendered on appeal, the circuit clerk shall notify the Commissioner of the Division of Motor Vehicles of the failure to pay: Provided, That in a criminal case in which a nonresident of this state is convicted of a motor vehicle violation defined in section three-a, article three, chapter seventeen-b of this code, the appropriate clerk shall notify the Division of Motor Vehicles of the failure to pay within eighty days from the date of judgment and expiration of any stay of execution. Upon notice, the Division of Motor Vehicles shall suspend any privilege the person defaulting on payment may have to operate a motor vehicle in this state, including any driver's license issued to the person by the Division of Motor Vehicles, until all costs, fines, fees, forfeitures, restitution or penalties are paid in full. The suspension shall be imposed in accordance with the provisions of section six, article three, chapter seventeen-b of this code: Provided, That any person who has had his or her license to operate a motor vehicle in this state suspended pursuant to this subsection and his or her failure to pay is based upon inability to pay, may, if he or she is employed on a full- or part-time basis, petition to the circuit court for an order authorizing him or her to operate a motor vehicle solely for employment purposes. Upon a showing satisfactory to the court of inability to pay, employment and compliance with other applicable motor vehicle laws, the court shall issue an order granting relief.
(2) In addition to the provisions of subdivision (1) of this subsection, if any costs, fines, fees, forfeitures, restitution or penalties imposed or ordered by the magistrate court for a hunting violation described in chapter twenty of this code are not paid within one hundred eighty days from the date of judgment and the expiration of any stay of execution, the magistrate court clerk or, upon a judgment rendered on appeal, the circuit clerk shall notify the Director of the Division of Natural Resources of the failure to pay. Upon notice, the Director of the Division of Natural Resources shall suspend any privilege the person failing to appear or otherwise respond may have to hunt in this state, including any hunting license issued to the person by the Division of Natural Resources, until all the costs, fines, fees, forfeitures, restitution or penalties are paid in full.
(3) In addition to the provisions of subdivision (1) of this subsection, if any costs, fines, fees, forfeitures, restitution or penalties imposed or ordered by the magistrate court for a fishing violation described in chapter twenty of this code are not paid within one hundred eighty days from the date of judgment and the expiration of any stay of execution, the magistrate court clerk or, upon a judgment rendered on appeal, the circuit clerk shall notify the Director of the Division of Natural Resources of the failure to pay. Upon notice, the Director of the Division of Natural Resources shall suspend any privilege the person failing to appear or otherwise respond may have to fish in this state, including any fishing license issued to the person by the Division of Natural Resources, until all the costs, fines, fees, forfeitures, restitution or penalties are paid in full.
(d) (1) If a person charged with any criminal violation of this code fails to appear or otherwise respond in court, the magistrate court shall notify the Commissioner of the Division of Motor Vehicles thereof within ninety days of the scheduled date to appear unless the person sooner appears or otherwise responds in court to the satisfaction of the magistrate. Upon notice, the Division of Motor Vehicles shall suspend any privilege the person failing to appear or otherwise respond may have to operate a motor vehicle in this state, including any driver's license issued to the person by the Division of Motor Vehicles, until final judgment in the case and, if a judgment of guilty, until all costs, fines, fees, forfeitures, restitution or penalties imposed are paid in full. The suspension shall be imposed in accordance with the provisions of section six, article three, chapter seventeen-b of this code.
(2) In addition to the provisions of subdivision (1) of this subsection, if a person charged with any hunting violation described in chapter twenty of this code fails to appear or otherwise respond in court, the magistrate court shall notify the Director of the Division of Natural Resources of the failure thereof within fifteen days of the scheduled date to appear unless the person sooner appears or otherwise responds in court to the satisfaction of the magistrate. Upon notice, the Director of the Division of Natural Resources shall suspend any privilege the person failing to appear or otherwise respond may have to hunt in this state, including any hunting license issued to the person by the Division of Natural Resources, until final judgment in the case and, if a judgment of guilty, until all costs, fines, fees, forfeitures, restitution or penalties imposed are paid in full.
(3) In addition to the provisions of subdivision (1) of this subsection, if a person charged with any fishing violation described in chapter twenty of this code fails to appear or otherwise respond in court, the magistrate court shall notify the Director of the Division of Natural Resources of the failure thereof within fifteen days of the scheduled date to appear unless the person sooner appears or otherwise responds in court to the satisfaction of the magistrate. Upon notice, the Director of the Division of Natural Resources shall suspend any privilege the person failing to appear or otherwise respond may have to fish in this state, including any fishing license issued to the person by the Division of Natural Resources, until final judgment in the case and, if a judgment of guilty, until all costs, fines, fees, forfeitures, restitution or penalties imposed are paid in full.
(e) In every criminal case which involves a misdemeanor violation, a magistrate may order restitution where appropriate when rendering judgment.
(f) (1) If all costs, fines, fees, forfeitures, restitution or penalties imposed by a magistrate court and ordered to be paid are not paid within one hundred eighty days from the date of judgment and the expiration of any stay of execution, the clerk of the magistrate court shall notify the prosecuting attorney of the county of nonpayment and provide the prosecuting attorney with an abstract of judgment. The prosecuting attorney shall file the abstract of judgment in the office of the clerk of the county commission in the county where the defendant was convicted and in any county wherein the defendant resides or owns property. The clerks of the county commissions shall record and index the abstracts of judgment without charge or fee to the prosecuting attorney and when so recorded, the amount stated to be owing in the abstract shall constitute a lien against all property of the defendant.
(2) When all the costs, fines, fees, forfeitures, restitution or penalties described in subdivision (1) of this subsection for which an abstract of judgment has been recorded are paid in full, the clerk of the magistrate court shall notify the prosecuting attorney of the county of payment and provide the prosecuting attorney with a release of judgment, prepared in accordance with the provisions of section one, article twelve, chapter thirty-eight of this code, for filing and recordation pursuant to the provisions of this subdivision. Upon receipt from the clerk, the prosecuting attorney shall file the release of judgment in the office of the clerk of the county commission in each county where an abstract of the judgment was recorded. The clerks of the county commissions shall record and index the release of judgment without charge or fee to the prosecuting attorney.
(g) Notwithstanding any provision of this code to the contrary, except as authorized by this section, payments of all costs, fines, fees, forfeitures, restitution or penalties imposed by the magistrate court in civil or criminal matters shall be made in full. Partial payments of costs, fines, fees, forfeitures, restitution or penalties made pursuant to this section shall be credited to amounts due in the following order:
(1) Regional Jail Fund;
(2) Worthless Check Payee;
(3) Restitution;
(4) Magistrate Court Fund;
(5) Worthless Check Fund;
(6) Per Diem Regional Jail Fee;
(7) Community Corrections Fund;
(8) Regional Jail Operational Fund;
(9) Law Enforcement Training Fund;
(10) Crime Victims Compensation Fund;
(11) Court Security Fund;
(12) Courthouse Improvement Fund;
(13) Litter Control Fund;
(14) Sheriff arrest fee;
(15) Teen Court Fund;
(16) Other costs, if any;
(17) Fine.
(b)(1) The special county fund known as the magistrate court fund established in each county by chapter thirty-three, Acts of the Legislature, regular session, one thousand nine hundred seventy-six, as amended and reenacted in subsequent Acts of the Legislature, is hereby continued. The moneys credited to the fund may be used solely for the purposes provided in this section.
(2) The magistrate court clerk of each county shall pay the sum of ten dollars collected in magistrate court for each civil and criminal proceeding into the magistrate court fund during each fiscal year until there is paid a sum equal to fifteen thousand dollars multiplied by the number of magistrates authorized for the county.
(3) A county may, in accordance with the supervisory rules of the Supreme Court of Appeals, appropriate and spend from the fund such sums as are necessary to defray the expenses of providing services to magistrate courts.
(c)(1) There is hereby created in the State Treasury a special escrow account designated as the Magistrate Court Surplus Account. The moneys credited to the account may be used solely for the purposes provided in this subsection.
(2) Beginning on the first day of July, two thousand, all costs collected during a fiscal year in excess of the sum specified in subdivision (2), subsection (b) of this section shall be deposited in the Magistrate Court Surplus Account in the State Treasury.
(3) Beginning on the first day of September, two thousand one, and on the first day of September of each year thereafter, in accordance with the supervisory rules of the Supreme Court of Appeals, funds from the Magistrate Court Surplus Account deposited therein as excess costs collected in the prior fiscal year pursuant to the provisions of subdivision (2) of this subsection shall be disbursed as a supplement to any county magistrate court fund which generated less than fifteen thousand dollars per magistrate in the prior fiscal year in accordance with the provisions of this subsection.
(4) The amount disbursed to a county magistrate court fund from the Magistrate Court Surplus Account, when combined with the court costs generated by the magistrate court fund of the county in the prior fiscal year, may not exceed fifteen thousand dollars per magistrate.
(5) The disbursements described in subdivision (3) of this subsection shall be made as follows:
(A) There shall be distributed to each county magistrate court fund that generated less than nine thousand dollars in the prior fiscal year the sum of nine thousand dollars less the amount of court costs generated by the county magistrate court fund in the prior fiscal year. To the extent that the funds available for this disbursement are insufficient to fully fund this disbursement, the funds available shall be disbursed to these counties on a pro rata basis.
(B) Any funds that remain available for disbursement after disbursements made pursuant to paragraph (A) of this subdivision shall be disbursed in equal shares to each county magistrate court fund that generated less than fifteen thousand dollars per magistrate in the prior fiscal year. The shares to be disbursed to each county magistrate court fund are to be equal to the number of magistrates in the county. Any disbursement made under this paragraph shall be subject to the limitations specified in subdivision (4) of this subsection.
(6) Any funds that remain available in the Magistrate Court Surplus Account after the disbursements have been made pursuant to the provisions of paragraphs (A) and (B), subdivision (5) of this subsection shall be deposited by the State Treasurer into the General Revenue Fund of the state.
(b) The clerk of each magistrate court shall, at the end of each month, pay into the Regional Jail Operations Partial Reimbursement Fund established in section ten-a, article twenty, chapter thirty-one of this code the fees collected pursuant to subsection (g), section one and subdivision (3), subsection (a), section two of this article.
Acts, 2007 Reg. Sess., Ch. 40.
Records of the financial dealings of the magistrate court shall be kept as may be required by the rules of the State Auditor, who shall promulgate the rules only after consultation with the Supreme Court of Appeals.
The magistrate court shall prepare and submit the reports as may be required by the rules of the Supreme Court of Appeals or by the State Auditor.
(b) (1) Upon receipt of a written request, the magistrate court clerk shall perform a criminal history record search of criminal records in his or her possession. Each request shall be accompanied by a twenty-five dollar fee for each name that is to be the subject of the records search.
(2) The provisions of this subsection shall not apply to:
(A) Federal, state, county or municipal officials;
(B) Court-appointed attorneys;
(C) Prosecuting attorneys; and
(D) Persons utilizing court provided public access terminals.
(3) All moneys collected pursuant to this subsection shall be remitted to the general fund in the State Treasury on or before the tenth day of the following month.
(b) All money collected shall be deposited in accordance with rules promulgated by the supreme court of appeals.
Upon receipt of the matter by the magistrate court clerk, such clerk shall docket the same in a central docket, and shall sign the summons and forward it, together with any service of process fees, to the sheriff for service. Such clerk shall assign the action for trial in the manner as shall be prescribed by the judge of the circuit court, or the chief judge thereof if there is more than one judge of the circuit court, to promote and secure the convenient and expeditious transaction of the business of the court.
(b) An order of the supreme court of appeals authorizing a magistrate or magistrates to conduct pretrial proceedings by use of video imaging shall supercede the requirements set forth in subsection (a) of this section.
Service of process in civil actions shall be made in the same manner as is provided for service of process in trial courts of record.
If the magistrate court is notified by the defendant that he wishes to contest the matter a trial date shall be set in accordance with the supervisory rules of the supreme court of appeals.
If no appearance or other notification is made within twenty days after the service of the summons on the defendant, or within such other time as may be provided by law, judgment by default may be entered in accordance with the provisions of section ten of this article.
At any trial in any matter involving unlawful entry and detainer and in the trial of any case in any way involving the possession, use or control of rental property, it is permissible for a party to plead, prove and obtain judgment for all rent due and owing the party.
(1) The magistrate shall render judgment by default only upon affidavit or sworn testimony reflecting the nature of the claim, whether or not it is for a sum certain or for a sum which can by computation be made certain, the defendant's failure to appear or otherwise notify the court within the time limits prescribed by section five of this article that he wishes to contest the action and supporting the relief sought. In the event the plaintiff's claim is not for a sum certain or for a sum which can by computation be made certain, the court shall require such further proof by affidavit or sworn testimony as is necessary to determine the propriety of the relief sought.
(2)(A) No judgment by default shall be rendered against a person who is an infant, incompetent person or incarcerated convict unless such person is represented in the action by a guardian ad litem, guardian, committee, curator or other like fiduciary.
(B) No judgment by default may be rendered against a person in active military service of the United States who has not made an appearance unless the provisions of 50 App. U.S.C. §520 have been followed, including the appointment of an attorney upon motion of a plaintiff.
(b) Upon motion made by the defendant within twenty days after the date of such judgment, or, in the case of a person in the military service, within the time provided by 50 App. U.S.C. §520, the magistrate may, for good cause shown, set aside the judgment and set the matter for trial.
(c) If a defendant offers to confess judgment at any time, the magistrate shall take the same in writing and render judgment for the amount confessed plus costs. In the event the amount claimed by the plaintiff exceeds the amount confessed by the defendant the plaintiff may request that the matter be set for trial. If the plaintiff's recovery therein does not exceed the amount confessed, costs shall be assessed against the plaintiff.
A magistrate shall dismiss a claim without prejudice if the summons is defective or erroneous and cannot properly be amended.
A magistrate shall dismiss a claim without prejudice if the plaintiff requests such dismissal before trial.
The dismissal of a claim shall not affect the right of any party to proceed to trial upon a counterclaim.
Whenever an infant, incompetent person or incarcerated convict has a duly qualified representative, such as a guardian, curator, committee or other like fiduciary, such representative may sue or defend on behalf of the infant, incompetent person or convict. If a person under any disability does not have a duly qualified representative he may sue by his next friend. The magistrate shall appoint some suitable person who shall not be required to be an attorney-at-law as guardian ad litem for an infant, incompetent person or incarcerated convict not otherwise represented in an action.
(b) A defendant in any criminal trial for a misdemeanor offense triable before a magistrate has the right to demand that the matter be tried with a jury, and the defendant shall be advised of the right to trial by jury in writing. A demand by the defendant for a jury trial must be made in writing not later than twenty days after the defendant's initial appearance before the magistrate: Provided, That in the case of an indigent for whom counsel is to be appointed, the twenty-day period shall not commence to run until counsel is appointed. Failure to demand within such time constitutes a waiver of the right to trial by jury.
(c) If a jury trial is elected or demanded to determine the issues of fact, the election or demand may not be withdrawn over the objection of any party appearing at the trial, and the magistrate shall cause a jury to be selected, empaneled and sworn which will hear the parties and their evidence, receive the instructions of the court relative to the law involved, and, after deliberation, deliver a verdict: Provided, That in a criminal proceeding, any such verdict must be unanimous.
(d) A magistrate court jury shall consist of six persons, to be selected from a panel of ten persons. The selection and summoning of jurors shall be conducted in accordance with the provisions of article one, chapter fifty-two of this code and the supervisory rules of the supreme court of appeals. Jurors shall be paid by the state in accordance with such rules.
(e) For purposes of appeal, when a jury trial is had in magistrate court, the magistrate court shall be a court of limited record. Trials before a magistrate when a jury is empaneled shall be recorded electronically. A magnetic tape or other electronic recording medium on which a trial is recorded shall be indexed and securely preserved by the magistrate court clerk. When requested by either of the parties in a civil action, by the state or the defendant in a criminal proceeding, or by any interested person, the magistrate court clerk shall provide a duplicate copy of the tape or other electronic recording medium of each trial held. For evidentiary purposes, a duplicate of such electronic recording prepared by the magistrate court clerk shall be a "writing" or "recording" as those terms are defined in rule 1001 of the West Virginia rules of evidence, and unless the duplicate is shown not to reflect the contents accurately, it shall be treated as an original in the same manner that data stored in a computer or similar data is regarded as an "original" under such rule. Unless a party requesting the copy has been permitted to proceed in a civil action without prepayment in accordance with the provisions of section one, article two, chapter fifty-nine of this code, or in a criminal proceeding as an indigent, the party shall pay to the magistrate court an amount equal to the actual cost of the tape or other medium or the sum of five dollars, whichever is greater.
(f) If neither party to a civil action demands a jury trial, or if the defendant in a criminal proceeding waives the right to trial by jury, the matter shall be tried by the magistrate sitting without a jury. For purposes of appeal, when a nonjury trial is had in magistrate court, the magistrate court shall not be a court of limited record and the magistrate shall not electronically record the action or proceeding.
(g) The designation in this section of magistrate courts as "courts of limited record" shall not be construed to give standing or eligibility to magistrates to participate or be included in the retirement system for judges of courts of record established under the provisions of article nine, chapter fifty-one of this code.
(b)(1) Sentence shall be imposed in open court within sixty days from the date of the finding of guilt except where sentence is required to be imposed within a lesser period under the provisions of subdivision (2) of this subsection.
(2) Sentence shall be imposed in open court upon a defendant in custody on or before the date of the expiration of the time equivalent to the maximum sentence that may be imposed for the offense. In determining the date, the magistrate shall include in the computation any credit to which the defendant is entitled for the time of confinement spent by the defendant in jail awaiting trial and sentencing.
(a) Contemptuous or insolent behavior toward such magistrate while engaged in the trial of a case or in any other judicial proceeding;
(b) Any breach of the peace, willful disturbance, or indecent conduct in the presence of such magistrate while so engaged, or so near as to obstruct or interrupt the proceedings;
(c) Violence or threats of violence to such magistrate, or any officer, juror, witness, or party going to, attending, or returning from, any judicial proceeding before the court with respect to anything done or to be done in the course of such proceeding;
(d) Flagrant misbehavior of any officer of the county acting in his official capacity with respect to any action or judicial proceeding had or pending before the court, or any process, judgment, order or notice therein; or
(e) Willful resistance by an officer of the court, juror, witness, party or other person to any lawful process or order of the court.
A magistrate may, if necessary, issue a warrant of arrest for such person, who shall be given an opportunity to be heard. In the event such person is adjudged guilty of contempt, the person may be fined not more than fifty dollars for the first offense. For a second offense pertaining to the same matter the person may be fined not more than one hundred dollars. For the third or any subsequent offense pertaining to the same matter the person may be fined not more than one hundred dollars, or imprisoned in the county jail not more than ten days, or both fined and imprisoned.
An appeal to the circuit court of such conviction shall lie as in criminal cases.
(b) In the case of an appeal of a civil action tried before a jury, the hearing on the appeal before the circuit court shall be a hearing on the record. In the case of an appeal of a civil action tried before the magistrate without a jury, the hearing on the appeal before the circuit court shall be a trial de novo, triable to the court, without a jury.
(c) In the case of an appeal of a civil action tried before a jury, the following provisions shall apply:
(1) To prepare the record for appeal, the party seeking the appeal shall file with the circuit court a petition setting forth the grounds relied upon, and designating those portions of the testimony or other matters reflected in the recording, if any, which he or she will rely upon in prosecuting the appeal. The responding party or parties may designate additional portions of the recording. Unless otherwise ordered by the circuit court, the preparation of a transcript of the designated portions of the recording and the payment of the cost thereof shall be the responsibility of the party requesting the transcript: Provided, That a party may be permitted to proceed without prepayment in accordance with the provisions of section one, article two, chapter fifty-nine of this code. The circuit court may, by general order or by order entered in a specific case, dispense with preparation of a transcript and review the designated portions of the recording aurally.
(2) The designated portions of the recording or the transcript thereof, as the case may be, and the exhibits, together with all papers and requests filed in the proceeding, constitute the exclusive record for appeal and shall be made available to the parties.
(3) After the record for appeal is filed in the office of the circuit clerk, the court may, in its discretion, schedule the matter for oral argument or require the parties to submit written memoranda of law. The circuit court shall consider whether the judgment or order of the magistrate is:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in conformance with the law;
(B) Contrary to constitutional right, power, privilege or immunity;
(C) In excess of statutory jurisdiction, authority or limitations or short of statutory right;
(D) Without observance of procedure required by law;
(E) Unsupported by substantial evidence; or
(F) Unwarranted by the facts.
(4) The circuit court may take any of the following actions which may be necessary to dispose of the questions presented on appeal, with justice to the parties:
(A) Dismiss the appeal;
(B) Reverse, affirm, or modify the judgment or order being appealed;
(C) Remand the case for further proceedings, with instructions to the magistrate;
(D) Finally dispose of the action by entering judgment on appeal; or
(E) Retain the matter and retry the issues of fact, or some part or portions thereof, as may be required by the provisions of subdivision (5) of this subsection.
(5) If the circuit court finds that a record for appeal is deficient as to matters which might be affected by evidence not considered or inadequately developed, the court may proceed to take such evidence and make independent findings of fact to the extent that questions of fact and law may merge in determining whether the evidence was such, as a matter of law, as to require a particular finding. If the party appealing the judgment is also a party who elected to try the action before a jury in the magistrate court, and if the circuit court finds that the proceedings below were subject to error to the extent that the party was effectively denied a jury trial, the circuit court may, upon motion of the party, empanel a jury to re-examine the issues of fact, or some part or portions thereof.
(6) The review by the court and a decision on the appeal shall be completed within ninety days after the appeal is regularly placed upon the docket of the circuit court.
(d) In the case of an appeal of a civil action tried without a jury, the following provisions shall apply:
(1) The party seeking the appeal shall file with the circuit court a petition for appeal and trial de novo. The exhibits, together with all papers and requests filed in the proceeding, constitute the exclusive record for appeal and shall be made available to the parties.
(2) If, after the appeal is regularly placed upon the docket of the circuit court, neither party brings the matter on to hearing before the end of the second term thereafter at which it is called for trial, unless good cause for a continuance is shown, the appeal shall be considered as abandoned and shall be dismissed at the cost of the appellant unless sufficient cause is shown for a further continuance and the judgment of the magistrate court shall stand. No appeal which shall have been so dismissed by the circuit court shall be reinstated after the close of the next regular term after such dismissal.
(b) In the case of an appeal of a criminal proceeding tried before a jury, the hearing on the appeal before the circuit court shall be a hearing on the record. In the case of an appeal of a criminal proceeding tried before the magistrate without a jury, the hearing on the appeal before the circuit court shall be a trial de novo, triable to the court, without a jury.
(c) In the case of an appeal of a criminal proceeding tried before a jury, the following provisions shall apply:
(1) To prepare the record for appeal, the defendant shall file with the circuit court a petition setting forth the grounds relied upon, and designating those portions of the testimony or other matters reflected in the recording, if any, which he or she will rely upon in prosecuting the appeal. The prosecuting attorney may designate additional portions of the recording. Unless otherwise ordered by the circuit court, the preparation of a transcript of the portions of the recording designated by the defendant, and the payment of the cost thereof shall be the responsibility of the defendant: Provided, That such costs may be waived due to the defendant's indigency. The circuit court may, by general order or by order entered in a specific case, dispense with preparation of a transcript and review the designated portions of the recording aurally.
(2) The designated portions of the recording or the transcript thereof, as the case may be, and the exhibits, together with all papers and requests filed in the proceeding, constitute the exclusive record for appeal, and shall be made available to the defendant and the prosecuting attorney.
(3) After the record for appeal is filed in the office of the circuit clerk, the court may, in its discretion, schedule the matter for oral argument or require the parties to submit written memoranda of law. The circuit court shall consider whether the judgment or order of the magistrate is:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in conformance with the law;
(B) Contrary to constitutional right, power, privilege or immunity;
(C) In excess of statutory jurisdiction, authority or limitations or short of statutory right;
(D) Without observance of procedure required by law;
(E) Unsupported by substantial evidence; or
(F) Unwarranted by the facts.
(4) The circuit court may take any of the following actions which may be necessary to dispose of the questions presented on appeal, with justice to the defendant and the state:
(A) Dismiss the appeal;
(B) Reverse, affirm, or modify the judgment or order being appealed;
(C) Remand the case for further proceedings, with instructions to the magistrate;
(D) Finally dispose of the action by entering judgment on appeal; or
(E) Retain the matter and retry the issues of fact, or some part or portions thereof, as may be required by the provisions of subdivision (5) of this subsection.
(5) If the circuit court finds that a record for appeal is deficient as to matters which might be affected by evidence not considered or inadequately developed, the court may proceed to take such evidence and make independent findings of fact to the extent that questions of fact and law may merge in determining whether the evidence was such, as a matter of law, as to require a particular finding. If the party appealing the judgment is also a party who elected to try the action before a jury in the magistrate court, and if the circuit court finds that the proceedings below were subject to error to the extent that the party was effectively denied a jury trial, the circuit court may, upon motion of the party, empanel a jury to re-examine the issues of fact, or some part or portions thereof.
(6) The review by the court and a decision on the appeal shall be completed within ninety days after the appeal is regularly placed upon the docket of the circuit court.
(d) In the case of an appeal of a criminal proceeding tried without a jury, the party seeking the appeal shall file with the circuit court a petition for appeal and trial de novo. The exhibits, together with all papers and requests filed in the proceeding, constitute the exclusive record for appeal and shall be made available to the parties.
(e) Notwithstanding any other provision of this code to the contrary, there shall be no appeal from a plea of guilty where the defendant was represented by counsel at the time the plea was entered: Provided, That the defendant shall have an appeal from a plea of guilty where an extraordinary remedy would lie or where the magistrate court lacked jurisdiction.
(a) The provisions of articles three, four, five, five-a, five-b and six, chapter thirty-eight of this code, except as the same are in conflict with the provisions of this chapter or are clearly applicable only to courts of record, shall apply to the enforcement of judgments rendered in magistrate court and process therefor shall issue from magistrate court. Process issued in violation of such provisions shall be void. The form of such process shall be in accord with the rules of the supreme court of appeals. No such process shall issue until after twenty days after the judgment is rendered or, if a motion to set aside such judgment is then pending, until after twenty days after the determination of such motion.
(b) A magistrate court clerk, deputy clerk or magistrate assistant before whom a suggestion of salary and wages is instituted pursuant to the provisions of articles five-a and five-b, chapter thirty-eight of this code shall forward all post judgment process directly to the sheriff of any county in the same manner and with the same authority as has been given to circuit clerks, pursuant to section five, article three, chapter fifty-six.
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