Also known as: ex parte communications · ex-parte communication · ex parte contact
Written by attorneys — see sources below.
A communication made to a judge outside the presence of all parties or their lawyers concerning a pending or impending matter.
Edith Eberhardt's lawyer called the judge to discuss the strength of evidence in her pending contract dispute. The judge listened and responded without notifying opposing counsel. The communication violated the prohibition because it addressed substantive issues outside the presence of all parties.
Esme Ellington's attorney telephoned the judge to reschedule a hearing due to a family emergency. The judge agreed to the new date but failed to notify the other side promptly or allow a response. The exception for administrative matters did not apply because the required notice and opportunity to respond were omitted.
Esther Eisenberg met privately with the judge to request an extension that would give her additional time to prepare expert reports. The judge granted the request without confirming that no tactical advantage would result for any party. The communication fell outside the permitted exception because the judge could not reasonably believe the contact was neutral.
Elijah Edwards's counsel spoke with the judge about an emergency continuance for a trial. The judge later notified the other parties of the conversation but waited several days and did not give them a chance to object before ruling. The exception failed because prompt notice and an opportunity to respond were not provided.
Evergreen Bank submitted comments in an informal rulemaking proceeding. Agency staff later received additional materials from industry representatives that were not placed on the public docket. The court examined whether those contacts undermined the fairness of the final rule under administrative procedure standards.
In June 1979 EPA promulgated revised new source performance standards governing emissions of sulfur dioxide and particulate matter from new coal-fired steam electric generating units capable of firing more than 250 million British thermal units per hour. The standards limited sulfur dioxide emissions to a maximum of 1.2 pounds per million British thermal units with a variable percentage reduction requirement ranging from 70 to 90 percent depending on the sulfur content of the coal burned. They also limited particulate matter emissions to 0.03 pounds per million British thermal units. The rulemaking arose from the Clean Air Act Amendments of 1977 which required the Administrator to revise the standards of performance for electric power plants within one year after enactment. Prior to the amendments the original 1971 standards had permitted compliance by burning low-sulfur coal without additional controls. In 1976 the Sierra Club and Navajo Tribe chapters petitioned the Agency to require a 90 percent reduction in sulfur dioxide emissions. This prompted an investigation that was accelerated by the statutory deadline and a district court stipulation requiring proposal in September 1978 and final promulgation within six months thereafter. During the rulemaking the Agency conducted extensive regulatory analyses in three phases. It employed econometric computer models to forecast national regional and plant-level impacts of alternative standards under assumptions of wet and dry scrubbing technologies. The Agency proposed a uniform 85 percent reduction standard in September 1978 held public hearings in December 1978 and received comments through January 1979. After the comment period closed the Agency performed additional modeling incorporating dry scrubbing and evaluated late-submitted data on coal reserves and washing. The final standards were published in June 1979 following consideration of comments from environmental groups electric utilities coal producers and other interested parties. Several parties including the Sierra Club the Electric Utilities the Environmental Defense Fund and the California Air Resources Board petitioned for reconsideration. The Agency denied those petitions in February 1980. Petitions for review were then filed in the United States Court of Appeals for the District of Columbia Circuit and consolidated for decision. The parties challenging the standards included environmental organizations seeking stricter controls and utilities seeking more flexible requirements. The Agency defended the balance struck among environmental economic and energy considerations.
View caseA judge may engage in ex parte communications for scheduling, administrative, or emergency purposes that do not address substantive matters. The judge must reasonably believe no party gains an advantage and must promptly notify all other parties of the substance while giving them an opportunity to respond.
Supporting sources
The judge must promptly notify the parties of the substance of the communication and provide them an opportunity to respond.
Supporting sources
The prohibition applies to communications concerning a pending or impending matter.
Supporting sources
A judge may initiate, permit, or consider any ex parte communication when expressly authorized by law to do so, including in therapeutic or problem-solving courts.
Supporting sources
…the future, and spur the provision of information which the agency needs. The possibility of course exists that in permitting ex parte communications with rulemakers we create the danger of "one administrative record for the public and this court and another for the Commission." Under the Clean Air Act procedures, however, "[t]he…