Ken Garten: 'Ex parte' orders cover many areas
“Ex parte” is a term in the law that is often misused and misunderstood.
Its basic meaning is broad and non-specific, and refers to any action taken on behalf of one party before the other party has the opportunity to respond.
Examples of ex parte actions that may be taken by a court include temporary restraining orders, emergency injunctions against a party before they even have their right to respond; orders of protection, where there is a credible allegation of abuse against a present or former spouse, paramour, or co-parent; and prejudgment orders for repossession of secured property to enforce a security interest of a lender on an expedited basis.
There is, of course, a fundamental issue with ex parte relief in any form, however, in that a party’s rights can be and will be adversely affected, before they even have the right to present their side of the case in court.
In a nation where our Constitution guarantees us the right to be free of deprivation of life, liberty and property without due process of law, ex parte relief, while perhaps justifiable in some settings, flies in the face of due process, where action is taken before the affected party has their day in court. And so courts are required and should issue such relief against a party ex parte with great caution, and with safeguards in place that give the party affected a quick hearing to respond and remedies if the power of ex parte action against them is abused.
And so ex parte relief is usually restricted to very specific situations based on due process considerations, with numerous safeguards, since an ex parte order is by definition against a party before they even have a right to respond to the claim giving rise to the order.
For instance, a temporary restraining order, an immediate injunction, can only be issued upon a strong showing of irreparable harm, if the order is not granted, and an expedited hearing is granted to the adversely affected party to review the court’s action. The court also has the power to require a party seeking a temporary restraining order to post a monetary bond with the court as a condition of the order, so as to provide compensation to the other side if the order ends up being improvidently issued against them.
Perhaps the most common and well known setting in which ex parte relief is granted is in the area of an order of protection from domestic violence. Those can be granted by a court ex parte where the applicant shows by affidavit that there is an immediate and present danger of domestic violence if an immediate order of protection is not granted ex parte.
In fact, it is common that these orders of protection are referred to by lay persons as “ex partes,” even though that is really a misnomer. Yes, orders of protection can be issued ex parte, so long as a hearing is held within 15 days, but orders of protection need not be ex parte. Sometimes they are issued only after a hearing in which the party against whom the order is sought has a chance to appear and defend. That is not ex parte, but still an order of protection, but after hearing. Still, such orders are commonly referred to as “ex partes”.
Regardless of the nature of the proceeding and the relief sought, ex parte relief has significant Constitutional underpinnings that should always require careful consideration, safeguards in the form of an expedited opportunity to respond, and the recognition that due process considerations must be scrupulously considered.
Ken Garten is a Blue Springs attorney. Email him at email@example.com.