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Civil Procedure--Motion for New Trial Based Upon Alleged Improper Ex Parte Communication by Judge

In re Estate of Long, 634 Ariz. Adv. Rep. 26 (App. Div. I, May 3, 2012) (J. Winthrop)

WHERE INAPPROPRIATE EX PARTE COMMUNICATION BY JUDGE TO OPPOSING PARTY HAD NO IMPACT ON OUTCOME OF CASE TRIAL JUDGE IS ADMONISHED BUT MOTION FOR NEW TRIAL IS DENIED

Plaintiffs sued the guardians of their protected relative for mismanagement of funds. During the probate proceedings the trial court drafted a minute entry rejecting plaintiffs' argument that the defendants had misspent funds pointing out that much of the funds were spent on attorneys' fees, the reasonableness of which were not in dispute, all caused by the litigious and acrimonious plaintiffs. The judge's clerk sent the draft minute entry to the defense attorneys only and later published the draft verbatim. Thereafter, having received some factual corrections from defense counsel the court filed an amended nunc pro tunc order with the corrections. The case was then reassigned to a different judge who found the ex parte communications to be a violation of rule 2.9 of the Code of Judicial Conduct creating "the perception of bias and prejudice" yet found this did not support the conclusion that plaintiffs were denied a fair trial. The Arizona Court of Appeal affirmed.

Arizona case law will impose a presumption of prejudice when a judge engages in ex parte communications, but only where the "trial judge loses control of a case and allows counsel to engage in conduct that precludes a fair trial." Here there was no evidence the probate court "lost control" of the case and there is no evidence the plaintiffs were denied a fair trial. While the ex parte communication here was clearly improper and gave an appearance of impropriety, the plaintiffs could point to no prejudice created by the communication nor to any harm created by the e-mail itself. As such, while trial judges are admonished not to engage in ex parte communications, there being no prejudice or evidence of an unfair trial, the motion for new trial was properly denied.

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