On the nature of orders to show cause

It is my experience that both the pro se litigants not trained in law, and seasoned attorneys - and even judges - often have an interesting misconception about the nature of what is called "an order to show cause".

The usual "order to show cause" is - as it says - an order of the court, with a peculiar language that is the source of confusion.

The "order to show cause" usually demands that the litigant or his/her attorney "show cause" to the court as to why something should NOT be done.

This negation, once again, is the source of confusion, leading the party or attorney against whom the order to show cause has been filed (and often, the court) to believe that the burden of proof is somehow on the party or attorney who the order to show cause demands to show why things should NOT be done to them or against them.

Yet, as a matter of law, an order to show cause is nothing other than a motion - only a motion made upon an order of the court.

An order to show cause may be made upon application of a party or a party's attorney if the party is represented, or upon the court's own application (called sua sponte).

The reason to apply for an order to show cause for a party or attorney is usually to obtain some ruling from the court BEFORE the motion that is made by order to show cause is reviewed and decided, such as - some immediate relief (injunction in a divorce action against looting of marital assets by one of the divorcing parties, or prohibition to one of the parents from taking a child out of the state while the motion for temporary custody is pending).

Orders to show cause can provide for a variety of immediate reliefs, most commonly they change the statutory deadlines for service of process.

As another illustration, usually a motion on notice may be made by personal delivery of the properly made notice of motion (CPLR 2214(a)) and supporting affidavits or by delivery by mail if the party to be served already appeared in litigation, pro se or by an attorney (pro se parties may not serve their own motions, they should ask somebody else to do that and provide an affidavit of service so that the pro se party is able to file the affidavit of serve to the court before the returnable date).

In New York, a motion on notice should be personally delivered at least 8 days before the "returnable date" of the motion, the date when the court is to hear the motion. 

If service is by regular mail, then 5 days must be added to the 8 day minimum. 

By overnight mail - 1 day should be added. 

If the moving party wants to be able to have time to react to the opposition to the motion, it is prudent to serve the motion 21 days or more in advance of the returnable date (to pick the returnable date, if that is possible, 21 days in advance of service of motion) and demand from the opponent, under CPLR 2214(b), to serve responding papers within 7 days of the returnable date.

If a motion on notice is made before a judge who has regular motion terms in a particular court, it is easy to verify when the next motion term of that particular judge is going to be and, if it will be far enough in time to allow for the statutory period to serve the notice of motion, the party may pick that date without the court's permission, put it into the notice of motion and serve the opposing party with a "notice of motion" and supporting papers (affidavits, exhibits).

If the presiding judge does not have a regular motion term in that particular court, the party or attorney intending to make a motion may inquire with the court clerk to set that date, and then make the notice of motion.

With motions made on "orders to show cause", shortened service may be ordered by the court.  The court may order service by mail within less than the statutory minimum of 13 days, or may order service by alternative means, such as fax or e-mail, which would not be an appropriate way to serve a motion on notice, the statute does not allow such means of service for motions made on notice.

One needs to realize that if one is asking for permission of the court to sign an order to show cause, one can get three answers -

• "yes", the court will sign the order to show cause as it is drafted and suggested by the party and grants all the preliminary relief requested before the motion is heard and decided,
• "no", the court refuses outright to sign the order to show cause and, if there is no anti-filing injunction upon the party, the party may then proceed to make the motion on notice (while most likely losing a filing fee of $45.00 already paid for the order to show cause), and
• "yes, but" - when the court allows the motion on an order to show cause to proceed by signing the order to show cause, but in a modified format, crossing out some relief requested, and modifying the drafted order to show cause as to other relief requested.

Yet, with that said, that is the end of what distinguishes a motion made on an order to show cause from an order made on a notice of motion.

What unites both motions made on notice of motion and motions made on orders to show cause is:

1) both are still motions, to be heard and decided by the courts, with all applicable laws as to how a motion is properly made (in New York - a motion is made when it is served, and served properly, so a defect of service in making a motion may defeat a motion in its entirety, be it a motion made on notice or on an order to show cause);
2) the burden of proof is still on the moving party - the party who either made a motion by serving a "notice of motion", or the party who applied to the court to first sign the "order to show cause" and made a motion by serving the "order to show cause" and papers upon which it was granted, and served it in the way that the order to show cause required.

The language demanding from the opposing party to "show cause" why things should NOT be done to the party is, once again, confusing, and may suggest that the burden of proof in motions made on orders to show cause somehow shifted to the opposing party.

As a matter of law in New York, that is not so.

The moving party still bears the burden of proof - in other words, the party who applied for the order to show cause must still FIRST prove to the court that it is entitled to relief, and only then the court can grant the motion if there is no opposition. 

I am not suggesting that if the party obviously did not make its burden of proof, one should not oppose an order to show cause, it is a dangerous strategy, because in our day and time, with overworked, or biased, or inexperienced, or lazy judges (motion is TL;DR - "too long, did not read"), lack of opposition is sometimes a sign that a motion should be granted no matter whether there is an entitlement to relief in law or not.

What I am saying is that the opposing pro se party should closely analyze whether the party who applied for the order to show cause "met the burden of proof" and is entitled to relief as a matter of law when opposing the motion, because often pro se litigants are shell-shocked by the words "why XYZ should NOT be done" to them - indicating to them that XYZ is somehow inevitable.

Orders to show cause can also be made on the court's own motion (sua sponte).  I always believed that such orders are inappropriate because they put the court in a position of an advocate, witness and adjudicator/judge in the same case.  Yet, such orders do happen, and they should be opposed in the same way.

If the court undertakes to make a motion, it must abide by rules applicable to motion practice: the motion must be properly served, and the court must meet the burden of proof before granting - to itself, obviously - relief it is seeking.

And sua sponte motions should be opposed the same way as motions by parties are opposed.

This blog has been posted as a response to several conversations I had with my readers, pro se parties in litigation, who felt confused and intimidated when facing orders to show cause.