The ACLU’S Ex Parte Voicemail To Seek An Ex Parte Injunction
So much happened on Good Friday with A.A.R.P. v. Trump that one item has slipped through the cracks. The ACLU made a request for an injunction after hours on the voicemail of Judge Hendrix’s chambers. At the time, I found that request problematic, but had bigger fish to fry. Judge Hendrix has now issued an order addressing that voicemail.
First, it is prohibited to engage in ex parte communications with judges.
The Code of Conduct for United States Judges explains that judges should not permit or consider ex parte communications “or consider other communications concerning a pending or impending matter that are made outside the presence of the parties or their lawyers.” Code of Conduct for United States Judges, Canon 3(A)(4). Even when circumstances may require such communications, the Canon limits such communications to situations where “the ex parte communication does not address substantive matters and the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication.” Code of Conduct for United States Judges, Canon 3(A)(4)(b).
This rule is well known to anyone who has spent time in a district court. When I was clerking, lawyer would routinely call to ask about cases. As a clerk, the most I could discuss were procedural matters, like scheduling hearings or deadline extensions. If there was any sort of substantive question, my response was “put it in a motion.” That way, all of the parties could see the request, have a chance to respond, and there would be a public record. Nine times out of ten, they never filed a motion, because they didn’t want to actually make the request public. In rare cases, there was some urgent matter that needed the judge’s attention. At that time, the courtroom deputy would try to get at least one lawyer from each part on the phone. When all of the lawyers were present, then and only then would the
Article from Reason.com
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