Byron started hearing ex parte

By Steve Korris | Jan 12, 2006

Circuit Judge Nicholas Byron

Gary Peel

Usually a judge needs two things before he can start a hearing – an attorney for one side and an attorney for the other.

A judge who hears one side engages in "ex parte" communication, which Black's Law Dictionary defines as "a generally prohibited communication between counsel and the court when opposing counsel is not present."

The canon of ethics for Illinois judges states that, "A judge shall not initiate, permit, or consider ex parte communications…"

The canon allows four exceptions. Madison County Circuit Judge Nicholas Byron has apparently made himself the fifth exception.

When Byron opened a Dec. 14 hearing in a class action suit, Gary Peel of the Lakin Law Firm represented thousands of plaintiffs and nobody represented the defendant.

Byron and Peel had begun discussing facts of the case when defense attorneys Bruce Allensworth and Kevin Babb entered the room.

Peel's lead plaintiffs, Paul and LaDonna Wratchford, claimed in 2002 that Accredited Home Lenders improperly charged a $20.90 courier fee on mortgage loans. Last year, Byron certified the suit as a class action.

After the Illinois Supreme Court threw out a Williamson County class action verdict in Avery vs. State Farm, Allensworth moved Byron to reconsider his certification of the Wratchford suit.

Byron set Allensworth's motion for a hearing Dec. 14, at 10:30 a.m. According to Allensworth, the hearing started earlier than scheduled.

The Record, after reviewing a transcript, reported last week that Allensworth and Babb arrived late. Allensworth asked the Record for a correction. He said he and Babb entered before the scheduled start of the hearing.

The transcript does not show when the hearing started. The time does not matter anyway, for Byron should not have started even if Allensworth had been tardy.

The exceptions to the prohibition against ex parte communication in the canon of ethics do not apply to what happened Dec 14.

The exceptions are:

  • One applies to scheduling, administration and emergencies, provided a judge promptly notifies other parties and gives them opportunity to respond.

  • Another exception allows a judge to consult with other judges and court personnel.

  • A judge is allowed, with consent of the parties, to confer separately with attorneys to mediate or settle a pending matter.

  • And, finally, ex parte communication is allowed when law expressly authorizes it.

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