Friday, January 17, 2014
CJEO Slams Rule Allowing Ex Parte Screenings of Family Law TROs
By a MetNews Staff Writer
A local rule that broadly allows judges to conduct ex parte screenings of requests for emergency orders in family law cases is invalid because it is inconsistent with statewide judicial ethics rules, the Supreme Court Committee on Judicial Ethics Opinions said yesterday.
The rule “is not authorized by the rules of court governing emergency family law orders and therefore violates the prohibition against considering ex parte communications in Canon 3B(7) of the Code of Judicial Ethics,” the CJEO said in a non-binding opinion.
The opinion is substantively unchanged from the draft opinion that was circulated for comment by the committee last April.
The committee explained that the rule—the county in which it applies was not named in order to protect the confidentiality of judges who may have applied it—permits a party seeking a non-domestic-violence emergency order to submit an application without notifying the other party or offering a showing of good cause for not giving notice.
If the judge finds that an emergency order is necessary, the court notifies the moving party, who then gives notice to the opposing party.
The initial screening, the committee said, is “clearly” an ex parte communication under the canon.
“It does not matter, for purposes of determining whether an ex parte communication has occurred, that the request is to be reviewed at this stage only to determine whether good cause exists to set an emergency hearing,” the committee explained. “What matters is that one party is communicating to the judge concerning a pending proceeding without notice to the other party. Such a communication is, by definition, an ex parte communication.”
The committee went on to say that while the judge does not initiate the ex parte communication—the moving party does that—the judge would be violating the canon by permitting and considering such a communication.
Nor does the situation fall within the “emergency” exception, or any of the other narrow exceptions, to the rule, the committee said.
“[A] judge is authorized by this rule to consider application papers that have not been served on the other side and necessarily contain ex parte communications when two requirements have been met: (1) a party requests that notice not be given, and (2) a declaration or other signed explanation is provided to support this request,” the committee explained. “In practical terms, determining which ex parte applications meet these two requirements is an administrative task that must precede judicial consideration of whether the application papers include facts showing good cause not to give notice. Once an ex parte application for an emergency order has been filed that asks for waiver of notice and provides a signed explanation of why notice should not be given, the application papers may be taken to the judge to determine the sufficiency of the explanation and whether notice may be waived.”
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