United States District Court, D. Arizona
DOMINIC W. LANZA, UNITED SLATES DISTRICT JUDGE
22, 2019, shortly after a status conference was held, pro se
Petitioner Michael Farr telephoned the chambers of the
undersigned judge to inquire as to whether trial briefs,
evidence, or other documentation for the above-captioned case
should be emailed to the Court or filed on the docket.
Petitioner was told that an order would issue explaining the
that day, at 1:41 p.m., the chambers of the undersigned judge
received an ex parte email from Petitioner, addressed to the
undersigned judge, (1) sharing Google Docs hyperlinks for his
“working exhibit list” and “working exhibit
folder, ” (2) asking the Court to pay particular
attention to specific exhibits, (3) attaching a
“warning letter” sent to Respondent Bonnie
Jeanene Kendrick via her counsel, (4) noting a plan to file
trial briefs regarding why he “believe[s] it to be
important to call [Z.K.] (age 17) as a witness and [K.F.]
(age 9) as a potential rebuttal witness, ” and (5)
stating that if he is not permitted to subpoena witnesses in
the United States to testify telephonically, “it will
be very difficult” for him “to expose all the
false statements” Respondent has made, as Petitioner
asserts that he does not “have the funds to hire an
attorney let alone hire a court reporter for the deposition
of all these witnesses.” (Email, Exhibit A.)
parte communication between a party and the Court is
forbidden, except in a few limited circumstances. Rule 2.9 of
the Model Code of Judicial Conduct provides that “[a]
judge shall not initiate, permit, or consider ex parte
communications” unless one of three exceptions apply.
Model Code of Judicial Conduct R. 2.9(A). Two of those
exceptions don't apply in this case-when the parties have
consented to ex parte judicial conferences to facilitate
settlement, id. R. 2.9(A)(4), and when a law
expressly authorizes ex parte communication, id. R.
2.9(A)(5). The third exception is as follows:
When circumstances require it, ex parte communication for
scheduling, administrative, or emergency purposes, which does
not address substantive matters, is permitted, provided the
judge reasonably believes that no party will gain a
procedural, substantive, or tactical advantage as a result of
the ex parte communication and the judge makes provision
promptly to notify all other parties of the substance of the
ex parte communication, and gives the parties an opportunity
Id. R 2.9(A)(1).
ex parte telephone call, for example, falls into this
exception. Petitioner asked two administrative questions, no
part of the call addressed substantive matters, and the
questions were not answered during the call, so there was no
possibility that Petitioner could have gained a procedural,
substantive, or tactical advantage from the ex parte
telephone call. Moreover, because Petitioner was told
nothing, there was no need to notify Respondent that the call
had been placed.
email, on the other hand, does not fall into this exception.
The content of the email was largely substantive, and parts
attempted to further Petitioner's case on the merits
and/or push for certain desired relief (e.g.,
permission to call the child witnesses, permission to
subpoena witnesses in the United States to testify
telephonically). Ex parte communication such as this-in any
form, including email, telephone, in person, or other in any
other mode-is impermissible. Id. R. 2.9(A).
Rule provides guidance on how the Court must proceed:
“If a judge inadvertently receives an unauthorized ex
parte communication bearing upon the substance of a matter,
the judge shall make provision promptly to notify the parties
of the substance of the communication and provide the parties
with an opportunity to respond.” Id. R.
2.9(B). See also Palmer v. City & County of
Denver, 2019 WL 458910, *3 (D. Colo. 2019)
(“[P]laintiff sent a series of ex parte
communications to the email account of the magistrate
judge's chambers. The magistrate judge ordered these
improperly submitted documents to be placed on the public
docket.”); Peterson v. New Castle Corp., 2011
WL 5117884, *3 3 (D. Nev. 2011) (“Plaintiff's
counsel submitted a brief to chambers email without any
certificate of service on Defendants, and without entering it
into the docket. This brief is not only ‘blind,'
meaning no response is permitted, it is ex parte,
meaning it is a communication to the Court without knowledge
of the adversary. The Court did not mean to invite ex
parte briefs. The Court will enter the brief into the
docket sua sponte for the record.”).
body of the email is attached to this Order as Exhibit A.
This notifies Respondent of the substance of the
communication. The hyperlinks have been redacted because
they appear to invite the viewer to review a body of
Petitioner's work product, and at any rate, the Court did
not click on them, so the content of whatever exists at the
destination of those links was not a part of the
inadvertently received, unauthorized ex parte communication.
has the opportunity to respond to the content of the email
(see Exhibit A), if desired, by filing a response not to
exceed two pages by May 29, 2019.
IT IS ORDERED that neither party may
communicate with the Court ex parte, except, if necessary, to
inquire about purely procedural, administrative, or emergency
IS FURTHER ORDERED that Respondent may respond to
the content of Petitioner's email (see Exhibit A), if
desired, by filing a response not to exceed two pages by May