This Is Your Random Law History Tip of the Day

Newsom v. Superior Court, No. C092070 (D3 Jan. 10, 2020)

Some yahoo members of the State Assembly want to enjoin an executive order from Governor Newsom regarding mail-in balloting for November’s election. They say it exceeds his authority. So they filed a (pro per*) complaint and gave some lawyers in the AG’s office email notice** a few minutes before 10am that they were going in ex parte in Sutter County Superior for a TRO the following day. 

The AGs, however, explained that they aren’t the proper service party for the Governor—that’s his legal affairs office—even when the AG ultimately winds up representing him. But the Assemblybros didn’t care—they give notice to the legal affairs office late in the afternoon and went in the next morning anyway. The Governor doesn’t show at the hearing—so it’s real ex parte, not just a California ex parte—and the trial court signs their proposed order.

Which earns them a peremptory writ from the Third District for abusing the ex parte rules. Even if their service and notice were proper under Rule of Court 3.1203—they weren’t—there was no basis at all for them to proceed ex parte. 

As the Court explains, ex partes are for emergencies, and the application needs to lay out what specific facts, on the declarant’s personal knowledge, constitute “irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte.” All the Assemblymen here said is, essentially, “we’ve heard some rumors from election officials that they are confused about the procedures that will apply to the election.” In June. When the election is in November. And there was already a bill pending in the Legislature that would (and eventually did) make most of the issues in the lawsuit moot. That doesn’t cut it.

Writ granted.

*They appear to be lawyers, or at least law school graduates. Given the performance here, they should probably leave the litigating to someone else.

**One of the weird things about California is how we use the term “ex parte” to mean something it doesn’t mean elsewhere. “Ex parte” traditionally means, “without notice to the other side.” But in California, it also means “outside of the normal schedule for hearing motions.”

The evolution is curious. For a long time, California courts used the term in its literal sense. It is used that way, for instance, in Ex parte The Queen of the Bay, 1 Cal. 157, 157 (1850), a very early habeas case about San Franciscan pirates kidnapping underage Polynesian girls from the Marquesas Islands. In habeas practice, the petitioner would file the petition and then, if it seemed to state a claim, the writ would issue to make the custodian come to answer by demurrer or return. The filing was ex parte because the court would issue the writ before hearing from the custodian. Early decisions also refer to ex parte applications in other contexts that are truly ex parte, such as no-notice TROs and certain filings in connection with defaults. See Oliphant v. Whitney, 34 Cal. 25, 26 (1867) (court clerk improperly entered default on ex parte application); Dupuy v. Shear, 29 Cal. 238, 241 (1865) (plaintiff filed ex parte application to have summons issue).

But at some point “one-sided” started to morph into “emergency,” which became “on a shortened schedule.” So what in other jurisdictions is more accurately called a “motion for expedited consideration,” see, e.g., Alaska R. Civ. P. 77(g); or for an order on “shortened time,” see, e.g., Rules of Practice for the Eighth Judicial District Court for the State of Nevada 2.26, is called an “ex parte application” in California 

The development of that appears to be somewhat of an accident. It’s a little hard to track it back without a trip to the law library, because Westlaw doesn’t give access to the text of repealed laws and rules, which is frustrating. And I haven’t been downtown for coming on five months. 

But anyway, it looks like what happened is that “ex parte” meant “ex parte” in California up through the 1970’s. Then, courts in both California and federally began to hold that the vast majority of procedures that permitted true ex parte relief ran afoul of constitutional guarantees of procedural due process. See, e.g., Fuentes v. Shevin, 407 U.S. 67 (1972); Blair v. Pitchess, 5 Cal. 3d 258 (1971). Exceptions were only available in “extraordinary circumstances.”

Presumably in response to this case law, in 1976, the Judicial Council adopted § 15 of the Standards of Judicial Administration. I can’t find the text that standard, but it appears to have been devoted to setting standards for when true, no-notice, ex parte relief was appropriate—a key aspect of which is to provide an explanation of either efforts made to give an opponent notice and opportunity to be heard and why that is infeasible under the circumstances. 

Section 15 was replaced by Rule of Court 379 in 1984. That rule, since re-codified in 2007 as Rules of Court 3.1200–3.1207, looks like the first appearance of the “ex parte, but with notice” concept—including the now-familiar requirement to give notice by 10 a.m. on the court day before the hearing unless you can show a compelling reason not to. Since then an ex parte application could be heard with notice, but the name still stuck even if no longer literally true.
 
At the same time, the Code of Civil Procedure did not contain any provision for hearing most motions on an expedited basis. In the mid-80s era of overcrowded dockets, this noticed ex parte procedure provided a convenient procedural avenue for that relief. So now, California lawyers, even in some federal courts, refer to a motion to be heard on shortened time as an “ex parte,” even though it’s nothing of the sort.