Notice and opportunity: draft orders

The Iowa Supreme Court recently issued a supervisory order stating that “no judge or magistrate shall communicate with an attorney about preparing a proposed order or decree without including all other attorneys or self-represented litigants in the case in the communication.”  The order noted that it “does not change permitted practices, but ensures that the rules and principles regarding ex parte communications are followed.”

The Court explained:

Ex parte judicial communications include a judge’s request to an attorney to prepare a proposed decree or ruling without including all opposing counsel or parties in the communication.  The practice of attorneys, as officers of the court, providing proposed findings of fact and conclusions of law can greatly assist judges in the preparation of orders, particularly in complex or technical cases.  Yet, knowledge of and notice to all parties or attorneys is the touchstone that permits that practice to occur. . . .   The overarching prohibition against ex parte communications must be carefully followed.

The Court emphasized that “just a single violation of this admonition by one judge in one case threatens not only the fair resolution of that case but the reputation of the bench, bar and entire system of justice.  All judges are obligated to conduct their work in a way that preserves this reputation.”

The order followed a report in the Des Moines Register that a now-retired judge had admitted that “a couple hundred” of his rulings were written by attorneys on the winning side without the knowledge of opposing counsel.  He made that admission during a deposition in one of the cases in which he had apparently followed that practice.

In the 1990 version of the American Bar Association’s Model Code of Judicial Conduct, a comment stated that “[a] judge may request a party to submit proposed findings of fact and conclusions of law, so long as the other parties are apprised of the request and are given an opportunity to respond to the proposed findings and conclusions.”  In the 2007 code revisions (which Iowa and many other states have adopted), the ABA deleted that comment because, according to the reporters’ notes, “the permissibility of the practice was so free from doubt as to render the Comment unnecessary.”  However, by deleting the comment, the revision omitted the conditions that validate the practice and need to be emphasized:  providing all parties with notice and an opportunity to respond.

The Indiana Judicial Qualifications Commission issued an advisory opinion after receiving a complaint about a judge who, in a contested support hearing, telephoned the attorney whose client had prevailed, outlined his decision, instructed him to prepare an order reflecting that decision, and then signed the order drafted by the attorney after making some minor changes.  Indiana Advisory Opinion 1-1998.   The attorney for the other party was unaware of the judge’s decision and his instruction to opposing counsel until after the order was signed.

The Commission explained that the judge’s conduct had given one party’s lawyer an advantage.

Even assuming the judge’s decision was firm, and the conversation involved only its announcement and instructions to prepare an order, the party whose lawyer was not asked to participate justifiably would question the fairness of the conduct and might question whether the conversation, from which his or her attorney was excluded, went beyond a simple announcement and might have involved further argument or comment on the merits.  Then, subsequent to the ex parte conversation, for a period of time, one party only was privy to the outcome.  The potential for abuse is great and, even where the informed party has no occasion or reason to exploit that information, the negative impact on the other party’s perception of the judge’s neutrality and impartiality is rightfully compromised.

The Commission concluded:

A judge must never announce his or her decisions to one party, to the exclusion of others, except in extraordinary circumstances.  A judge who is not inclined to ask for proposed orders from all parties prior to rendering the decision, and who, instead, prefers to instruct only the prevailing party to prepare a proposed order conforming with the judge’s decision, must give that instruction under circumstances in which both parties are made aware of the decision at the same time.

See also South Carolina Advisory Opinion 1-1994 (after a judge has ruled in open court and directed one attorney to prepare an order in accordance with instructions, a copy of the proposed order must be sent to opposing counsel at the same time and by the same means as to the judge, and the judge may not discuss the order with the drafting attorney ex parte except for minor, non-substantive corrections).

In Disciplinary Counsel v. Stuard, 901 N.E.2d 788 (Ohio 2009), the Ohio Supreme Court publicly reprimanded a judge for entering a sentencing order drafted by an assistant prosecutor following ex parte communications; the Court also publicly reprimanded the assistant prosecutor.

The judge had presided over a capital murder trial in which a jury found the defendant guilty of 2 counts of aggravated murder, among other crimes, and recommended a sentence of death.  Between the penalty-phase hearing and the sentencing hearing, the judge engaged in 4 ex parte communications with Kenneth Becker, one of the prosecutors.

In the first communication, the judge asked Becker to prepare an opinion sentencing the defendant to death and gave him 2 pages of notes on the aggravating and mitigating factors.  The second ex parte communication occurred the next day when the judge found on his desk a 17-page draft of a sentencing opinion.  In a third ex parte communication later that day, the judge asked Becker to make several corrections.  Becker made the corrections and also incorporated  editorial suggestions from another prosecutor in the case.  In the fourth communication, the judge received the corrected version of what became his opinion.

During the sentencing hearing, as the judge read his opinion from the bench, defense counsel, who did not have a copy of the sentencing order, noticed that one of the prosecutors seemed to be silently “reading along” with the judge, turning pages of a document in unison.  In a sidebar discussion, the judge acknowledged that he had given his notes to Becker and instructed him to draft the sentencing order.

On appeal, the Ohio Supreme Court held that the judge committed prejudicial error by delegating responsibility for the content and analysis of his sentencing opinion to prosecutor; the Court  vacated the death sentence, and remanded the case with instructions for the judge to personally review and evaluate the appropriateness of the death penalty.

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