Tuesday, January 4, 2011

Ex Parte Communication and pro se Litigants

I recently wrote about Pro se Litigant Child Custody Appeals in Indiana in which I cautioned readers as to the need for assistance in appeals and also at the trial court level. Additionally, I warned against being complacent in their cases after hiring an attorney.

Here it is my purpose to again caution readers about the dangers of proceeding without assistance or through complacency following the hiring of an attorney. When I say 'assistance' I am adamant that you do not interpret this to mean an attorney.

I bring to you a case from Clark Superior Court decided on appeal by the Indiana Court of Appeals in a published opinion issued 22 November 2010. This case revolved around a pre-trial conference between Magistrate William Dawkins, Andrew Steele, a Clark County Deputy prosecutor, and the attorney for Respondent. Petitioner, pro se, was barred from attending the pre-trial conference.

The Court of Appeals found "the trial court's legal conclusions erroneous and the ex parte proceedings extremely troubling." [emphasis added]

Black's Law Dictionary defines ex parte communications as “a generally prohibited communication between counsel and the court when opposing counsel is not present.” Black's Law Dictionary 597 (7th ed. 1999). As this definition suggests, ex parte communications most often become an issue if a judge communicates outside the courtroom without disclosing those communications to everyone involved. These communications are prohibited. See Ind. Judicial Conduct Canon 3(B)(8).

It has long been held that pro se litigants are an attorney in form and are held to the same standards as an attorney and retain the same rights. Thus, in a conference among the attorneys and judge a pro se litigant must be included.

The pre-hearing conference took place in the judge's chambers. The conference lasted for thirty-six minutes—just eleven minutes shorter than the hearing itself. Evidence was discussed and documents changed hands that were not formally made part of the record. The prosecutor admits that he was an adverse party to the Petitioner. Thus, for all intents and purposes these 36 minutes were the first part of the hearing, which took place without anyone representing Petitioner or Petitioner having an opportunity to be heard or object to the presentation of evidence.

The appeals court noted that "[i]t would be difficult to imagine a clearer example of prohibited ex parte communications[.]"

On appeal Attorney General Gregory Zoeller and Deputy Frances Barrow did not dispute the fact that the prosecutor was not representing Petitioner's interests in the proceeding but instead argued that the violation was harmless “because this appeal has cured any deficiencies that occurred in the trial court at the hearing.”

The appeals court found that notwithstanding this "astonishing argument" they agree with Petitioner that “[b]eing deprived of the procedural due process rights of a meaningful opportunity to be heard is the 'prejudice' that a party must show for purposes of the harmless error doctrine.”

The appeals court concluded with, "We hereby order that upon remand . . . that a judicial officer other than Magistrate Dawkins continue to handle the case."

In this case an alert and knowledgeable litigant appealed the court's ruling and got the case remanded and assigned to a new judge. However, most pro se litigants, without sufficient education and assistance, are not as deft to court procedures.

It is not unusual for attorneys to meet in chambers with the judge and negotiate agreements without the actual parties in attendance. Most people allow their attorney to do this without challenge. Yet, this is the source of many of the complaints that I receive; that cases are treated as a pre-packaged product with pre-determined results where attorneys do not invoke all possible arguments to ensure the best interest of the children.

The error here was that the pro se litigant was barred from participating. I have often been presented with cases where pro se litigants were deprived of due process. In one such child support case the obligor was jailed on contempt without being informed of his right to counsel and other due process rights. Interestingly, when I appeared with him a year later on another contempt citation he was informed of his procedural rights by the same judge.

He was assigned counsel, the hearing was rescheduled and, ultimately, he was not jailed this time. This is the power that having a recognized figure in court with you provides.

Attorneys are less likely to arrange deals to the detriment of your children and judges recoil from the predisposition to deny pro se litigants their substantive due process rights.

Whether you are a self-represented litigant or you have hired an attorney to represent you in a child custody proceeding it is important that you be allowed to and do present valid argument. To do any less is not to act in the best interest of your children. Initial custody determinations are difficult to overcome when seeking a modification. At either stage a meaningful hearing must be held.

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©2008, 2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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