What is Ex Parte?
Latin: On behalf of one party or outside the awareness of a party.
Ex Parte meaning on behalf of one party or outside the awareness of a party is a condition where action is taken without an opportunity for one or more litigants to be noticed or heard. In most situations, proper notice, and an opportunity to be heard, is the absolute minimum standard of procedural fairness. In fact, failure to provide notice is generally seen as a jurisdictional error that invalidates any action taken without notice.
It occurs impermissibly when one party seeks to influence the judge outside of the awareness or presence of the other party. You should never ever contact the judge directly or without noticing the other side.
It occurs permissibly when certain urgencies or exigencies urge immediate action even though proper notice cannot be made, and one side may appear without proper notice* or not at all. What makes it permissible is when the parties do not object and consequently waive the notice requirement or where the action is temporary and a proper contested hearing on the issue is provided where the issue may be contested with adequate notice and resolved on a permanent basis following a fundamentally fair confrontational hearing.
It is not improper for there to be ex parte hearings, so long as you either waive your right to notice or the Court holds a proper contested hearing generally in 14 days or less. It is generally accepted that where an ex parte proceeding is contested, the outcome of the ex parte hearing must be temporary and last no more than 14 days; and that the burden is on the court to arrange for a proper hearing or allow its orders to expire at the 14-day mark.
A Grand Jury is generally an ex parte proceeding where the accused is neither provided notice nor an opportunity to be heard.** However, the purpose of the Grand Jury is to serve as a check on the prosecutor who generally cannot proceed with felony charges against someone without the Grand Jury’s approval in the form of an indictment. The indictment serves only to grant the prosecutor authority to bring someone to trial on felony charges. The indictment, served on the accused, serves as notice of the specific charges against them.
* Notice and proper notice are two different things. One may be given notice that an ex parte hearing will occur in an hour, several hours, or a day; and have an opportunity to appear in the hearing. But this is only notice, not proper notice. Proper notice requires that the party be provided sufficient written explanation of what they will face in the hearing and sufficient time, generally no less than 10-days so that they can prepare to be fully heard.
** There are situations where defendants may appear, but this isn’t the norm.
