On Being a Neutral

Ex Parte Contacts a No-No Even if Done to Keep the Peace

noreply@blogger.com (Pilar Vaile, Esq.) — Tue, 23 Apr 2013 18:30:00 +0000

Recently, the New Mexico Supreme Court disciplined a Municipal Court Judge for ex parte contacts held in relation to a criminal property damage claim in a small New Mexico community. See In re Micheal G. Rael, Sr., Inquiry No. 2011-040. In a case that is illustrative of "the ethical dilemmas judges in small communities face,"

the Judge knew both parties involved in the vehicular vandalism dispute, and had ex parte communications with each party before issuing a petition for temporary restraining order (TRO) between them.

At the time, the judge knew he lacked jurisdiction to enter the TRO and that it improper under judicial ethics because based on his "personal knowledge of the situation and the parties," but he did so as an effort to "keep the peace" between two families in a small community. He explained to the Supreme Court that, "in engaging in ex parte communications, he was trying to protect both parties and believed that neither side would gain any procedural or tactical advantage as a result of the meeting."

The Court obviously appreciated the Judge's dilemma, but noted that "in engaging ex parte communications, Respondent violated each party's right to be heard. A judge in a small community must be especially mindful of protecting this right ... Each party has the right to tell his or her side of the story. It is equally important that each party has the right to question the story told by his or her adversary. In doing so, the adversary can ensure that the story be told in compliance with the constitution and other legal requirements such as the rules of evidence ... In additional, when ex parte communications occur, it is difficult, if not impossible, to defend against an accusation that the judge has decided the outcome of a case out of fear or favor rather than on the merits ... The fact that a judge located in a small community likely knows many of the people in that community is all the more reason for the judge to avoid ex parte communications. Word travels fast in small communities. Word that a judge is wiling to meet in private with one party at a time will only invite members off the community who find themselves embroiled in litigation to approach the judge for an ex parte communication. In addition, community members may also learn from community gossip about the ex parte communications and arrive at the conclusion that the judge decided the merits of the case out of fear or favor, and not on the merits." Id, paras. 11-14.

As to the issuance of the TRO, the judge explained he felt he had to "bend the law to keep peace with [the] families [because] [t]his is a very small town and sometimes I must go out of the box to keep peace." The Court acknowledged that "a judge retains considerable discretion in fashioning equitable remedies," but noted the judge must still remain impartial in fact and in appearance. It added, "[t]his obligation is especially true in small communities where a judge will be called upon to settle sensitive disputes between parties the judge knows quite well."

If you are interested in arbitration, mediation, conflict coaching, or other neutral services, please contact Pilar Vaile, P.C. at (505) 247-0802 or info@pilarvailepc.com.

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