Ex parte

Ex parte /ˌɛks ˈpɑːrtiː/ is a Latin legal term meaning "from (by or for) [the/a] party". An ex parte decision is one decided by a judge without requiring all of the parties to the controversy to be present. In Australian, Canadian, U.K., South African, Indian and U.S. legal doctrines, ex parte means a legal proceeding brought by one person in the absence of and without representation or notification of other parties. It is also used more loosely to refer to improper unilateral contacts with a court, arbitrator or represented party without notice to the other party or counsel for that party.

United States

In the United States, the availability of ex parte orders or decrees from both federal and state courts is sharply limited by the Fifth and Fourteenth Amendments, which provide that a person shall not be deprived of any interest in liberty or property without due process of law. In practice this has been interpreted to require adequate notice of the request for judicial relief and an opportunity to be heard concerning the merits of such relief. A court order issued on the basis of an ex parte proceeding, therefore, will necessarily be temporary and interim in nature, and the person(s) affected by the order must be given an opportunity to contest the appropriateness of the order before it can be made permanent.

There are exceptions to this. The secret Foreign Intelligence Surveillance Court, which grants the NSA permission to perform certain types of electronic surveillance, operates on a permanent ex parte basis.[1] Parties other than the government are not normally permitted to argue in front of the court, though it is possible for the recipients of court orders to challenge them in other ways.[2] This is as directed by statute.[3] Most US states also allow for initial hearings regarding civil protection orders to be done ex parte, however a second hearing is usually set a short time later to allow the alleged abuser to answer for the allegations.[4]

The phrase has also traditionally been used in the captions of petitions for the writ of habeas corpus, which were (and in some jurisdictions, still are) styled as "Ex parte Doe", where Doe was the name of the petitioner who was alleged to be wrongfully held. As the Supreme Court's description of nineteenth century practice in Ex parte Milligan shows, however, such proceedings were not ex parte in any significant sense. The prisoner's ex parte application sought only an order requiring the person holding the prisoner to appear before the court to justify the prisoner's detention; no order requiring the freeing of a prisoner could be given until after the jailer was given the opportunity to contest the prisoner's claims at a hearing on the merits.

California state trial courts

In the State of California, ex parte proceedings are available if notice is given before 10 a.m. the previous court day, or even shorter upon showing of emergency need.[5] As most California courts hold law and motion hearings in the early morning, this notice is typically confirmed by facsimile although oral notice may be effective. Some courts have procedures to allow opponents to appear telephonically, while other courts do not allow any oral argument and only consider written papers.[6] A party who files an ex parte application must file a declaration showing compliance with these requirements, and no relief may be granted absent such declaration.[7] In addition to the notice requirements, an ex parte application must contain an affirmative actual showing in a declaration based on personal knowledge of "irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte".[8]

See also

References

  1. ↑ Secret-court judges upset at portrayal of ‘collaboration’ with government, Washington Post, 30 June 2013. Retrieved 30 June 2013.
  2. ↑ Response of the Honorable Reggie B. Walton of the Foreign Intelligence Surveillance Court to Senator Patrick Leahy, July 29 2013. http://www.leahy.senate.gov/download/honorable-patrick-j-leahy
  3. ↑ See for example 50 U.S.C. 1805
  4. ↑ http://www.ohiolegalservices.org/public/legal_problem/domestic-violence/domestic-violence/civil-protection-order-remedies-and-procedures/qandact_view
  5. ↑ See California Rule of Court 3.1200, et seq
  6. ↑ See California Rule of Court 3.1213, Rule 3.1203. Time of notice to other parties.
  7. ↑ Cal. Rules of Court, Rule 3.1204
  8. ↑ Cal. Rules of Court, Rule 3.1202

External links

This article is issued from Wikipedia - version of the Friday, March 04, 2016. The text is available under the Creative Commons Attribution/Share Alike but additional terms may apply for the media files.