Ex parte communications

Several recent judicial ethics advisory opinions illustrate the breadth of the prohibition on ex parte communications and the narrowness of its exceptions, highlighting the importance of transparency in the justice system.

For example, in Nebraska Advisory Opinion 2019-1, the Nebraska committee advised that a judge may not communicate ex parte with a county attorney to get information to use in setting an appearance bond for the defendants arrested without a warrant when the courts are closed on weekends and holidays.  The committee noted that a judge’s ex parte review of an affidavit for a warrantless arrest “is not problematic” because it is expressly authorized by state law.

However, the committee stated, the interaction described by the inquiring judge went beyond reviewing an affidavit.

The communication is between the judge and a prosecuting attorney, outside the presence of the arrestee or his counsel, so it is clearly an “ex parte communication.”  The issues being discussed are the persons who have been arrested over the weekend.  Presumably, a criminal complaint will soon be filed regarding these persons.  Therefore, the discussions would clearly be “concerning a pending or impending matter” and . . . such communication would only be allowed pursuant to one of the enumerated exceptions to the prohibition on ex parte communications.

The committee concluded that none of the exceptions applied.  First, it stated, the communication was not for “scheduling” or “administrative” purposes.  Second, the committee acknowledged that the communication could be considered for “emergency” purposes “given the time constraints on reviewing probable cause affidavits and setting bond,” but stated that exception only allows emergency ex parte communications that do not address “substantive matters.”  The committee concluded that a discussion about an arrestee’s criminal history and other matters relevant to the amount of the appearance bond is clearly “substantive” and, therefore, prohibited even under in circumstances.

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In Washington Advisory Opinion 2018-4, the Washington committee stated that court staff may not interview a defendant ex parte to collect information as part of a pre-trial dynamic risk assessment for a judge to use in setting pretrial conditions of release.

The opinion explained that defendants are interviewed prior to their first appearance about employment status, residential stability, any history of drug abuse, or any recent use of illegal drugs that may have caused family, social, or work issues.  After the interview, a staff person reviews the defendant’s criminal history, data on pending charges, and record of appearing on any previous charges and then, based on the interview and that information, uses a “statistically based risk assessment tool to categorize the defendant’s likelihood of reappearing and complying with pretrial release conditions.”  The staff person assigns a category of low, medium, or high risk, and that result is presented on the record at the defendant’s first appearance.

The inquiring judge asked whether the interview part of the risk assessment process, which takes place off the record, without counsel and without any signed waiver of counsel, can be conducted by court staff who are under the judge’s direction and control without violating the prohibition on ex parte communications.

The opinion noted that the code of judicial conduct “prohibits judicial officers from investigating facts in a pending matter” and that prohibition extends to court staff who are under a judge’s direction and control.  The committee emphasized that “current law and court rules do not expressly authorize judges or court staff to conduct off-the-record interviews of unrepresented defendants with pending matters to gather information for use in a pre-trial risk assessment” and concluded that “neither a judge nor court staff under the judge’s direction and control may conduct off-the-record pre-trial risk assessment interviews.”

Although acknowledging “the value of the information that can be gained through a dynamic pre-trial risk assessment,” the committee explained that achieving that “laudable” goal “must not come at the cost of the underpinnings of a fair and impartial justice system. . . .  [U]ntil and unless there is an amendment to the or court rules, the pre-trial risk assessment conducted by court employees described in the question posed is prohibited.”

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In California Judges Association Advisory Opinion 77 (2019), the advisory committee discussed ex parte communications between judges and professionals or volunteers who do not represent either party in a pending case but do provide the court “with important information about pending litigation,” usually in written reports.  As examples, the committee noted CASA volunteers or staff, probation officers, probate investigators, social workers, and investigators with the district attorney’s office appointed by the judge to search for a child who has been abducted by a parent in a custody case.

The committee stated that sometimes people in these positions may want to talk with the judge about issues that were not covered in a written report, believing that “the law permits verbal exchanges with the judge.”  As an example, the committee noted that a publication of the child abduction division of the Los Angeles District Attorney’s Office suggested that investigators contact judges to clarify a court order, to request an additional order based on the investigation, for example, if the child is out-of-state or out-of-country, and to inform the judge about “a serious fact relevant to the enforcement of the court’s order.”

The judicial ethics committee warned against such discussions, stating that, except in specified circumstances, those communications would be improper ex parte communications even if the investigator “has a special need to talk with the court.”  The proper method of communication, the committee stated, was a written report that must be shared with all of the parties in the case.

Addressing specific situations, the committee advised:

  • A judge should not receive an oral up-date from a district attorney investigator in a child abduction cases but may receive a written up-date.
  • A judge should not permit a deputy probation officer to explain portions of a report in chambers and should ask that any explanations take place with all the parties or their attorneys present or in a supplemental written report.
  • When police officers come to a judge’s house with an affidavit in support of a search warrant, the judge should read the affidavit alone so that the officers cannot add to the facts or explain them and should decline the officers’ offer of additional information.
  • A judge may listen when a family court mediator, pursuant to a statute, tells the judge that a restraining order is necessary to address an imminent risk to the safety of a child involved in a custody dispute.
  • A judge may discuss with the director of the CASA program administrative issues such as the quality of reports and the role of the advocates in court if the judge is careful not to discuss individual cases.

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