On Call Magistrate In West Virginia Rule 1(B)
Rule 1(b) of the Administrative Rules for the Magistrate Courts of West Virginia was promulgated by this Court in substantially its present form in December 1989, and establishes minimum standards regarding when magistrates must be available outside of normal office hours to hear certain matters requiring expedited proceedings.
Rule 1(b) requires that one magistrate in each county, on a rotating basis, be on call at all times during nighttime and weekend hours.
Subparagraph (1) of this rule, the provision at issue in this case, further directs that the on-call magistrate must contact the jail and juvenile detention facilities serving the county at regular intervals to ascertain whether anyone has been recently arrested, or whether someone already confined to jail has become able to post bond.
The rule states in mandatory language that "if an arrest has been made or if a prisoner is able to post bond, the magistrate shall proceed immediately to the magistrate court offices to conduct an initial appearance and to set bail for such person, or to accept bond for someone already in jail.
" Rule 1(b)(1) (emphasis added). As we recently admonished, "magistrates must follow the 'on call' schedule in Rule 1 scrupulously." In re McCormick, 206 W. Va. 69, 78, 521 S.E.2d 792, 801 (1999).
Rule 1(b) provides:
(b) on Call. One magistrate in each county, on a rotating basis, shall be on call at all times other than regular office hours. On-call duties shall extend, in criminal cases, to initial appearances; to taking bond for someone who is in jail; and to receiving and acting upon emergency search warrants, domestic violence matters, and juvenile abuse and neglect matters.
(1) Initial Appearances and Taking Bond in Criminal Cases. Within the time periods provided for below, the on-call magistrate shall contact the county or regional jail, whichever applies, and the juvenile detention facility that serves the county, and shall inquire whether any person has been arrested in the county since the close of regular business hours or since the last contact with the jail, or whether anyone confined to the jail is able to post bond. If an arrest has been made or if a prisoner is able to post bond, the magistrate shall proceed immediately to the magistrate court offices to conduct an initial appearance and to set bail for such person, or to accept bond for someone already in jail.
It shall be sufficient to comply with this rule if the on-call magistrate contacts the jail and juvenile detention facility:
(A) Between 10:00 p.m. and 11:00 p.m. Monday through Friday;
(B) Between 10:00 a.m. and 11:00 a.m. and between 10:00 p.m. and 11:00 p.m. on Saturdays and holidays; and
(C) Between 12:00 p.m. and 1:00 p.m. and between 10:00 p.m. and 11:00 p.m. on Sundays.
(2) Emergency Search Warrants, Domestic Violence Matters, and Juvenile Abuse and Neglect Matters. the on-call magistrate shall be available and responsible for receiving and acting upon applications for emergency search warrants and petitions for domestic violence protective orders. the on-call magistrate shall also respond at any time for the purpose of holding a temporary custody proceeding pursuant to W.Va. Code 49-6-3(c). When contacted concerning any of these matters, the on-call magistrate shall conduct such emergency action as may be necessary at the magistrate court offices or at any other appropriate location approved for such purpose by the supervising circuit judge.