Monday, May 17, 2010

Judges and The Code of Judicial Conduct - Ex Parte Communications

By John DiMotto
If there is one thing lawyers (and this includes judges) love to do, it is to talk. It does not matter what the subject, legal or nonlegal, we love to talk. We are never at a loss for an opinion. However, when it comes to specific cases, while lawyers are free to discuss their cases with anyone, at any time, the same does not hold true for judges. In Wisconsin, under Supreme Court Rule (SCR) 60.04(1)(g), judges may not initiate, permit, engage in or consider ex parte communications concerning a pending or impending action or proceeding except in some very limited circumstances. Herein lies the problem for a judge when he/she has a high profile case which has garnered the attention of the media and the public. Anything the judge has to say must be said in open court, on the record with all parties and lawyers present. Once the case is no longer before the court on the record in the courtroom, the judge is prohibited from commenting on it or answering any questions about it.
The prohibition on a judge talking about cases pending before him/her is not well understood by the media or the public. When a judge is asked questions about a decision he/she made, the judge must decline to answer. This is often interpreted by the public as arrogance on the part of the judge or is viewed as a tacit admission by the judge that he/she committed error or has something to hide. In high profile cases, the judge may be roundly criticized and attacked, yet the judge must silently "take it." The judge may not defend himself/herself without violating the Code of Judicial Conduct provision against ex parte communications.
An example of this dilemma can be found in a criminal case. A judge may have a parent who has neglected or abused one of his/her children before the court for sentencing. If the judge places the defendant on probation and this fact is reported by the media, the report usually does not give the judges rationale, rather just "vivid" details of the offense and the "light" sentence. If there is a public outcry against the sentence, the judge cannot publicly defend himself/herself. The judge cannot give a further explanation. The judge can release the transcript, but that usually is unacceptable to the media and the public. They want more but the judge cannot give them more.
There are some who say that this prohibition actually fosters lack of confidence in the judicial office as a public trust. That is, if a judge will not answer questions about a decision he/she made when asked by the media or the public, he/she is violating the public trust. However, just the opposite is true. A judge makes decisions based on the facts and the law. A judge explains decisions on the record where the lawyers can respond. The rationale is in the record. A judge must do his/her talking in the courtroom setting. The courtroom is the public forum for a judge. All judges realize that in this day and age where the media has limited time and is looking for catchy "sound bites;" where people want information immediately without having to wait or wade through a transcript, the above procedure is not embraced by the public. However, the integrity of the judicial process demands that judges not engage in ex parte communications.


  1. At the trial court level, especially in non-jury settings such as probate, when the judge refuses to state his legal reasoning for a decision, it leads to greater mistrust rather than less. People read appellate cases for the understanding of legal issues. Sometimes the decision is correct; sometimes not. But in either case, when no basis for a decision is given, one wonders about bias. Judges are human and make mistakes. But unless one can follow a legal argument, one cannot accept the decision.

  2. It is incumbent upon a judge to set forth the reasons and legal basis for his or her decision. This is done by setting forth the judges findings of fact and conclusion of law that flows from those findings of fact which ultimately lead to the decision reached.

  3. During a civil procedure, under 813 if both parties move for dismissal of their 813.125 for a stipulation agreement and their agreement is silent on any remedy if either party violated the contract. Can the court reopen the dismissed cases or does the court lose competence to hear the two cases. Secondly, does the court have the to interject himself into the meeting of the minds of the two parties when neither part asked for such a remedy. Lastly, if one or both parties continued to violate 813.125 by your blog what we are reading is that the only way that the court could have subject and personal jurisdiction is by filing a new petition under 813.125 on new allegations and the dismissed petitions are forever terminated and the court would not have any jurisdiction on the dismissed cases. This question is for research and school and is in regards to something we seen in a court proceeding as a bystander

    1. Your hypothetical has many parts and lacking specifics so it is difficult to answer. However, here are some thoughts: Usually a dismissal based on a stipulation is subject to a motion to reopen if either party brings such a motion based on what the party believes is a violation of the terms of the dismissal. The court would then hear the motion and decide. Competence to act is ordinarily not impeded by a stipulation. If the alleged violation of the stipulation would consititute new grounds for a new petition a party could potentially file a new petition.