“Ex Parte” Contact with the Judge is Not Allowed

What is an “ex parte communication”?

“Ex parte” is a Latin phrase meaning “on one side only; by or for one party.” An ex parte communication occurs when a party to a case, or someone involved with a party, talks or writes to or otherwise communicates directly with the judge about the issues in the case without the other parties’ knowledge. Under the Judicial Code of Conduct, judges may not permit or consider “ex parte communications” in deciding a case unless expressly allowed by law. This ban helps judges decide cases fairly since their decisions are based only on the evidence and arguments presented to the court and the applicable law. It also preserves public trust in the legal and court system.

What is a “party”?

“Party” refers to any person or organization who sues or is sued. In a civil case, the party who initiates the lawsuit is called the plaintiff (or, sometimes, the petitioner or complainant). In a criminal case, it is the State of Hawai`i – generally represented in court by either a county deputy prosecutor or a state deputy attorney general – that initiates the lawsuit. The party against whom the lawsuit is brought is called the defendant (or, sometimes, the respondent).

Why are judges not allowed to consider ex parte communications?

Would you like it if the judge spoke to the other parties about your case without your knowledge? Probably not! The rule banning ex parte communications ensures that the court process is fair and that all parties have the same information as the judge who will be deciding the case. When all parties have the same information, a party who disagrees with the information can contest it in court.

What if I want to tell the judge something about my case?

If you want to tell the judge about your case or ask the judge to take a certain action in your case, you should file a written motion with the clerk of the court in which your case was filed explaining what relief you are seeking and why you are entitled to that relief. (“Relief” means what you are asking the court to do.)

If you file a written motion, you must send a copy of your motion to every other party to your case (or the party’s attorney) before you send it to the court. (This is called “service.”) Make sure you attach the appropriate documentation showing that a copy of the motion was served on all the other parties and explaining how (e.g., by personal delivery, or mail, postage prepaid) and when service was made. Usually, the judge will schedule a hearing on your motion. During the hearing, you will have the opportunity to explain your position to the judge in court. Judges must make their decisions based only on the relevant facts or issues of the case and the applicable laws. Therefore, please be sure that the facts or issues that you plan to tell the judge about are relevant to your case. This helps ensure that your case will proceed more quickly.

I sent a copy of my motion, letter, or document to the other parties. Now what happens?

You must file your motion, letter or document with the court. Remember to attach the document as proof that a copy of the motion, letter or document was given to the other parties. This document also must be filed with the court. The clerk of the court will indicate on your motion, letter, or document, the time and date it was received and file it with the other case records. After your motion, letter, or document has been filed, the judge will consider it as well as any responses from the other parties and other information provided to the judge during a court hearing before making a decision.

What happens if I send a letter or other document directly to the judge without providing a copy of it to the other parties to my case?

If you send a letter or other document directly to the judge without providing a copy of it to every other party on your case (or the party’s attorney, if the party has an attorney), the judge or court staff will be required to notify all parties (or their attorneys) about your communication so the other parties can respond to it. This is called “disclosure” and helps to ensure that your case is handled fairly. You may also cause your case to be delayed or even dismissed. Also, the court may “strike” (delete or ignore) any evidence affected by your ex parte communication.

Can I ask the judge to keep information I share in a letter or document confidential?

No. Sometimes people will send a letter or document to the judge and ask the judge not to tell the other party. Although you may have information that you want the judge to know about and keep in confidence, the judge is still required to disclose any ex parte communications to all parties.

Can I ever communicate directly with the court?

Yes. Certain ex parte communications to a judge or court personnel are allowed by law. For example, if you are contesting a citation (commonly called a “ticket”) for a traffic infraction, the law allows you to submit a written explanation directly to the court. The instructions on how to do so are on the ticket, and a pre-addressed envelope to mail your written statement is provided with the ticket. Also, judges may hear ex parte emergency requests for a temporary restraining order when the other parties cannot be told in time. In certain situations, judges may also consider confidential letters from a settlement conference ex parte. Finally, communications regarding case scheduling or status are allowed.

Is there anything I can do if I disagree with the judge’s decision in my case?

If you believe the judge made the wrong decision in your case, you may have the right to file an “appeal,” asking an “appellate court” to review the decision the judge made in your case. The process for filing an appeal is explained in the Hawai`i Rules of Appellate Procedure. There is no right of appeal in small claims cases.

Disclaimer

This guide is intended to provide you with information about a legal problem. It is not legal advice. If you have questions about this information or your rights under the law, you should seek the advice and counsel of an attorney licensed in the State of Hawai`i.