Long v. Olen
229 Ariz. 458
| Ariz. Ct. App. | 2012Background
- Appellants challenging denial of a motion for new trial in a long guardianship/trust accounting dispute involving Marie Long.
- Ex parte communications between probate Commissioner Ellis and counsel were discovered; emails were exchanged about draft rulings and scheduling.
- Superior court acknowledged the communications created the appearance of bias but held they did not affect the ruling or justify a new trial.
- Court applied McElhanon standard, finding no evidence of actual prejudice and that appearance of impropriety was insufficient for reversal.
- Appellants contend the court should have reversed under McElhanon for any appearance of impropriety; court rejected this, affirming denial of the new trial.
- The dissipation of Long’s estate and ongoing litigation are mentioned, but court declines to vacate the ruling or grant a new trial based on appearance alone.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McElhanon was correctly applied to require reversal. | Long argues appearance of impropriety mandates reversal. | State argues appearance alone is insufficient; no actual prejudice shown. | No reversal; correct standard applied; no actual prejudice shown. |
| Whether ex parte emails violated rules and created bias enough to require a new trial. | Long asserts ex parte communications breached ethical rules and undermined fairness. | Appellees contend emails were immaterial to the substantive ruling. | Appearance of impropriety did not affect the ruling; no new trial required. |
Key Cases Cited
- McElhanon v. Hing, 151 Ariz. 403 (Arizona 1986) (ex parte contact improper but not automatically reversible if no actual prejudice)
- State v. Neil, 102 Ariz. 110 (Arizona 1967) (right to a fair trial includes impartial presiding judge)
- In re Conduct of Burrows, 291 Or. 135, 629 P.2d 820 (Oregon 1981) (ex parte communications generally disfavored; can affect appearance of propriety)
- Grant v. Arizona Public Service, 133 Ariz. 434, 652 P.2d 507 (Arizona 1982) (improper conduct may affect perceived fairness)
- Brown v. State, 124 Ariz. 97, 602 P.2d 478 (Arizona 1979) (appearance of impropriety considerations in bias analysis)
- Ice v. Commonwealth, 667 S.W.2d 671 (Kentucky 1984) (illustrative ex parte conduct cited in evaluating fairness)