EX PARTE

[Latin, On one side only.] Done by, for, or on the application of one party alone.

An ex parte judicial proceeding is conducted for the benefit of only one party. Ex parte may also describe contact with a person represented by an attorney, outside the presence of the attorney. The term ex parte is used in a case name to signify that the suit was brought by the person whose name follows the term.

Under the fifth amendment to the U.S. Constitution, "No person shall … be deprived of life, liberty, or property, without due process of law." A bedrock feature of due process is fair notice to parties who may be affected by legal proceedings. An ex parte judicial proceeding, conducted without notice to, and outside the presence of, affected parties, would appear to violate the Constitution. However, adequate notice of judicial proceedings to concerned parties may at times work irreparable harm to one or more of those parties. In such a case, the threatened party or parties may receive an ex parte court hearing to request temporary judicial relief without notice to, and outside the presence of, other persons affected by the hearing.

Ex parte judicial proceedings are usually reserved for urgent matters where requiring notice would subject one party to irreparable harm. For example, a person suffering abuse at the hands of a spouse or significant other may seek ex parte a temporary restraining order from a court, directing the alleged abuser to stay away from him or her. Ex parte judicial proceedings are also used to stop irreparable injury to property. For example, if two neighbors, Reggie and Veronica, disagree over whose property a tree stands on, and Reggie wants to cut down the tree whereas Veronica wants to save it, Veronica can seek an ex parte hearing before a judge. At the hearing, she will ask the judge for a temporary restraining order preventing Reggie from felling the tree. She will have to show the judge that she had no reasonable opportunity to provide Reggie with formal notice of the hearing, and that she might win the case. The court will then balance the potential hardships to Reggie and Veronica, in considering whether to grant Veronica's request.

A court order from an ex parte hearing is swiftly followed by a full hearing between the interested parties to the dispute. State and federal legislatures maintain laws allowing ex parte proceedings because such hearings balance the right to notice against the right to use the legal system to avert imminent and irreparable harm. Far from violating the Constitution, the ex parte proceeding is a lasting illustration of the elasticity of due process.

Ex parte contact occurs when an attorney communicates with another party outside the presence of that party's attorney. Ex parte contact also describes a judge who communicates with one party to a lawsuit to the exclusion of the other party or parties, or a judge who initiates discussions about a case with disinterested third parties. Canon 3(A)(4) of the american bar association (ABA) Model code of judicial conduct discourages judges from such ex parte communications. Under rule 4.2 of the ABA Model Rules of professional responsibility, a lawyer should refrain from contacting a party who the lawyer knows is represented by another attorney, unless the lawyer has the consent of the other attorney or is authorized by law to do so.

In a case name, ex parte signifies that the suit was initiated by the person whose name follows the term. For example, Ex parte Williams means that the case was brought on Williams's request alone. Many jurisdictions have abandoned ex parte in case names, preferring English over Latin terms (e.g., Application of Williams or Petition of Williams). In some jurisdictions, ex parte has been replaced by in re, which means "in the matter of" (e.g., In re Williams). However, most jurisdictions reserve the term in re for proceedings concerning property.

further readings

Campagna, Larry A. 2002. "The Prohibition of Ex Parte Communications by Appeals Officers." The Practical Tax Lawyer 16 (winter).

Flowers, Roberta K. 2000. "An Unholy Alliance: The Ex Parte Relationship Between the Judge and the Prosecutor." Nebraska Law Review 79 (spring).

Gottlieb, Henry. 1995. "ABA Limits Ex-Parte Contacts; N.J. Lawyer Dissents." New Jersey Law Journal (September 4).

Harhut, C.T. 1995. "Ex Parte Communication Initiated by a Presiding Judge." Temple Law Review 68.

Ex Parte (Lat., “on behalf of”), phrase that generally refers to action taken without notice to the adverse party or participation by that party in the hearing. When the phrase is used in the title of a case (e .g., Ex parte Young, 1908) it indicates that the action was taken on behalf of the person named in the case's caption.

William M. Wiecek

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