The issue here is whether improper ex parte communication requires a new trial.

It is equally tragic and routine that when an elderly member of a large family goes down for the count the vultures start circling and then start squabbling, usually along pre-existing family fault lines. After Mrs. Long had a stroke and was put in a nursing home her three sisters and her niece joined battle. The details of this guardianship saga (which lasted for years and, you guessed it, helped use up the assets of the estate) are almost completely irrelevant to the holding, so Division One describes them at length.

The commissioner in charge of the case held a hearing to review some contested fee requests. Before the ruling – which exonerated the niece and hit the sisters pretty hard – was issued her JA emailed it to lawyers on the niece’s side but not the sisters.’ One of the lawyers who got it recommended – and the court made – changes to correct a couple of factual mistakes. It later turned out that the commissioner’s office had been in email contact with one side several times, though these emails, according to the opinion, “concerned only non-substantive administrative procedure and scheduling issues.”

The sisters moved for new trial, alleging improper ex parte contact. A judge appointed to hear the matter denied it on most issues, ruling that while the emails created a perception of bias they concerned matters immaterial or merely administrative and did not influence the substance of the commissioner’s ruling.

The sisters appealed, arguing that appearance of bias or prejudice requires a new trial. But the Court of Appeals affirms, holding that the judge was within his discretion not to order one. Both parties cited McElhanon (1986) “as the seminal Arizona case regarding the effect of ex parte communications on the right to a fair trial.” Appearance requires reversal if the judge is so personally involved that there is seeming personal favoritism and it prejudiced the result. (We’ve paraphrased that a bit, see paragraph 28 for the quote, which comes from other cases; be warned, though, that it doesn’t make much more sense there than here.) The sisters apparently had a hard time explaining how the emails actually changed the commissioner’s ruling. And nothing in them discussed the substance of the case or suggested actual prejudice. So this opinion agrees that the appearance of impropriety did not rise to the level of requiring new trial.

The court agrees that the emails were wrong and chides the commissioner, her JA, and one of the lawyers. They are blameworthy (though we will assume that they only made mistakes) but that focus loses the forest for the trees. Anybody who thinks that what happened in this case is unique to it or to the commissioners’ courts should remove head from sand. To expect bureaucrats who have never represented anyone to act by the rules of professionals simply because many of them are nice boys and girls who hope to become professionals eventually is unrealistic. You can write as many quasi-professional rules for them as you please; bureaucrats act like bureaucrats. When court personnel don’t like your client (usually because of signals, conscious or otherwise, from their judge) then you can struggle the whole case to get things done that are usually easy and automatic. Yes, the judges/commissioners should police this but you know that many won’t bother and some won’t care. The current practice of encouraging communication with JAs, relying on elaborate rules about what they can and cannot say, is a product of a mindset that values the efficient administration of the courts more than their just administration.

While we’re in this odd, for us, mood of judge- and bureaucrat-bashing we’ll mention that this commissioner retired before her ruling and then issued it, months later, as a pro tem. We wonder if she got paid. We’re pro tems and we don’t. But since retired judges are masters of the art of double-dipping, benefitting from the eager cooperation of those who will retire themselves some day, the question does arise.

Those of you who’ve read this opinion will be waiting for us to mention the footnotes. Seventeen of them. Classic Division One footnotes – nothing that shouldn’t either be omitted or included in the main text.

(link to opinion)