McElhanon v. Hing

In McElhanon v. Hing, 151 Ariz. 403, 728 P.2d 273 (1986), after advising the parties that it would do so, the trial court initiated ex parte communications with the plaintiff and his counsel during the course of a trial. 151 Ariz. at 408, 728 P.2d at 278. Defense counsel made no objection before the communication, and the ex parte conversation was transcribed by a court reporter. Id. After the conversation, the court met with counsel for all parties in chambers, and the court reporter read aloud the transcript of the communication. Id. at 408-09, 728 P.2d at 278-79. Our supreme court held that the ex parte conference was improper, reasoning that "no matter how pure the motive any ex parte contact may allow the judge to be improperly influenced or inaccurately informed." Id. at 409, 728 P.2d at 279 (citing In re Conduct of Burrows, 291 Ore. 135, 629 P.2d 820, 826 (Or. 1981)). The supreme court declined, however, to reverse. Id. at 409, 413, 728 P.2d at 279, 283. In holding that the improper ex parte communications did not require reversal, the court examined whether prejudice could be presumed, and/or whether there was an appearance of impropriety from which actual prejudice resulted. Id. at 410-13, 728 P.2d at 280-83. The court first noted that prejudice may be presumed "when a trial judge loses control of a case and allows counsel to engage in conduct that precludes a fair trial." Id. at 410, 728 P.2d at 280. Recognizing that all improprieties had occurred outside the jury's presence and "this was not a case where loss of control created a virtual mockery of the concept of a fair and impartial trial," the court concluded that the ex parte conference did not automatically invoke a rule of presumed prejudice. McElhanon, 151 Ariz. at 410-11, 728 P.2d at 280-81.