Court asked to rule on ex parte issues in Clark County civil cases

A unique Clark County court rule that allows attorneys in civil cases to secretly submit court papers to the judge without serving a copy to the opposing side -- and deny copies to the media and public -- came under scrutiny Tuesday.

The Nevada Supreme Court held a public hearing on the issue, which appears to have perturbed at least two of the seven justices.

Justices James Hardesty and Kris Pickering asked attorneys who support the rule questions about issues of disclosure and fundamental fairness.

"Not all in the legal community believe the rule is successful," said Hardesty, who with Chief Justice Michael Douglas and Pickering requested the hearing. "Abuses have been suggested" that might have led to improper ex parte communications.

Hardesty also said judges would have no idea whether the information they are given is accurate because there is no one to challenge its accuracy.

But proponents said that the briefs made available to opposing counsel and the public only after the trial is finished are designed to educate judges about issues that might arise at trial and that sharing them with the other side would betray their strategy.

Hardesty said the 6th and 7th U.S. Circuit Courts of Appeal have ruled that similar procedures are improper and have instructed federal judges in those jurisdictions to end the practice. Nevada is in the 9th Circuit.

Hardesty said the rule, which is unique in Nevada to Clark County courts, "is completely inconsistent with a high court commission that recently rewrote rules governing the sealing and redaction of records.

"This rule should be examined, and we should consider repealing it," Hardesty said.

But civil attorney Paul Hejmanowski said ex parte rules do not have the "stigma" in other countries that they have in the United States.

Ex parte communications are not permitted in criminal proceedings under any circumstances and are generally used in emergency situations such as requests for temporary protective orders or guardianship cases.

Hejmanowski said the temporary ex parte communications help expedite often lengthy trials. He also said the rule applies to both sides, so it favors neither plaintiffs nor respondents.

"These are a considerable benefit to the bench," he said. "Judges avoid being ambushed."

When Hardesty asked Hejmanowski why attorneys couldn't educate judges with a non-ex parte briefing on issues that might crop up, the attorney said, "It puts ideas in the opponent's head. I'm using my client's time and money to educate the other side."

"If the goal is to conserve judicial resources, why educate the judge on issues that might never be heard?" Pickering asked. "The other side has a right (to be served copies of filings)."

Hejmanowski and two other attorneys who spoke in favor of keeping the rule conceded the briefs could be made public earlier than at the conclusion of trial, perhaps even before the close of evidence.

"We're telling the judge why we're going to win," attorney Christopher Rose said.

"So you and the judge will know how to defeat the other side," Hardesty retorted.

Rose agreed public access is important but said that access would not be denied, only delayed.

"Delayed access until after the trial, when it's no longer newsworthy, is no access at all," Pickering said.

The Supreme Court will deliberate the issue and deliver an opinion in the coming weeks.

Contact reporter Doug McMurdo at dmcmurdo@
reviewjournal.com or 702-224-5512.