Judicial Notice on Appeal

December 8, 2003 Published Work
The National Law Journal
The use of judicial notice spans a wide spectrum of cases, from the most historically significant-such as Chief Justice Earl Warren's reliance in Brown v. Board of Ed., 347 U.S. 483, 494 n.11 [1954], on scholarly publications documenting the effect of segregated schools on minority children-to the most mundane, such as the 2d U.S. Circuit Court of Appeals' judicial notice of the "traditional features of a snowman." Eden Toys Inc. v. Marshall Field & Co., 675 F.2d 498, 500 n.1 [2d Cir. 1982]. There are, however, some guidelines governing judicial notice, which can be of use to practitioners.

Courts free to take notice of legislative facts

Legislative v. Adjudicative Facts. Courts distinguish between judicial notice of "adjudicative facts" and "legislative facts." Rule 201 of the Federal Rules of Evidence sets forth the basic standards for judicial notice of "adjudicative facts," which are facts relevant to the adjudication of the particular controversy and specific parties before the court. Rule 201[b] allows judicial notice of adjudicative facts that are "not subject to reasonable dispute" because they are "generally known" or are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Whether requesting or opposing judicial notice, litigants have a right to be heard on the issue under Rule 201[e].

Rule 201, however, does not govern judicial notice of "legislative facts," which are facts of general "relevance to legal reasoning and the lawmaking process" [Fed. R. Evid. 201[a] Advisory Committee's note] or are "established truths, facts or pronouncements that do not change from case to case" and "do not relate specifically to the...litigants." [United States v. Gould, 536 F.2d 216, 220 [8th Cir. 1976]]. In general, courts are free to take notice of legislative facts, including research data and writings like those cited in the famous "Brandeis briefs." Appellate courts are understandably more willing to take judicial notice of such legislative facts, because they help them develop reasonable rules of law that will apply in future cases, and more reluctant to take judicial notice of quasi-evidentiary facts, which the trial court usually should have the opportunity to consider in the first instance.

Legislative facts, while general in nature, often play a pivotal role in resolving the specific dispute before the court. In Roe v. Wade, 410 U.S. 113, 149 n.44, 163 [1973], for example, the "medical fact" that, during the first trimester, mortality from live birth is as great or greater than mortality from abortion, was critical in determining the constitutionality of abortion restrictions in that case. In obscenity cases, judicially noticed "contemporary community standards"-often based on the judge's personal experience in the community-are frequently dispositive. See, e.g., United States v. Various Articles of Obscene Merchandise, 709 F.2d 132, 137 [2d Cir. 1983].

Appellate Review of Judicial Notice Decisions. In reviewing trial court decisions taking or refusing to take judicial notice, appellate courts have used an "abuse of discretion" standard [see, e.g., In re NAHC Inc. Securities Litigation, 306 F.3d 1314, 1323 [3d Cir. 2002]], rather than the more deferential "clearly erroneous" standard used to review findings of fact based on admissible evidence. An appellate court is free itself to take judicial notice of facts the trial court refused to notice or to take judicial notice of contrary facts [see, e.g., Denius v. Dunlap, 330 F.3d 919, 926 [7th Cir. 2003]], though in certain circumstances it may choose to remand-where, for example, there are inferences to be drawn by the jury from those facts.

Judicial Notice for the First Time on Appeal. Under Fed. R. Evid. 201[f], judicial notice of adjudicative facts may be taken at any stage of the proceedings, including on appeal. In practice, appellate courts frequently take judicial notice of both adjudicative and legislative facts presented for the first time on appeal, whether requested by a party or on their own initiative. See, e.g., Hotel Employees & Rest. Employees Union, Local 100 of New York, N.Y. & Vicinity, AFL-CIO v. City of New York Dep't of Parks & Recreation, 311 F.3d 534, 540 n.1 [2d Cir. 2002]; In re Indian Palms Assoc. Ltd ., 61 F.3d 197, 205 [3d Cir. 1995].

There are, however, some limiting principles. Appellate courts are generally reluctant to take judicial notice of facts raised for the first time on appeal where they conclude it would be procedurally unfair to do so. See In re Indian Palms Assoc., 61 F.3d at 205; Colonial Leasing Co. of New England v. Logistics Control Group Int'l, 762 F.2d 454, 461 [5th Cir. 1985]. They are particularly hesitant where the facts were available to the moving party and could have been introduced below. Judge Richard A. Posner criticized this practice as "sandbagging" in refusing to take judicial notice of an exhibit on appeal that "was available to [appellants] at the time of trial." Tamari v. Bache & Co., 838 F.2d 904, 907 [7th Cir. 1988]. See also Zell v. Jacoby-Bender Inc., 542 F.2d 34, 38 [7th Cir. 1976]. It is therefore generally safer for litigants to request judicial notice of facts, particularly adjudicative facts, in the trial court whenever possible. By introducing judicially noticed facts at the trial level, counsel can also reduce the risk of the appellate court looking outside the record for facts that might support a different outcome.

Consistent with this principle of fairness, appellate courts are far more likely to take judicial notice of facts that were not available to litigants at trial and events that occurred after judgment was entered. For example, courts have taken judicial notice of guilty pleas entered in a related criminal case after judgment in the civil case was entered. See, e.g., Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 [4th Cir. 1989]. Similarly, appellate courts have taken judicial notice of post-judgment changes in the conditions in a foreign country relevant to an immigration appeal, Ivezaj v. INS , 84 F.3d 215, 218-19 [6th Cir. 1996], as well as post-trial changes in the racial composition of a state's judiciary in a discrimination suit. Southern Christian Leadership Conference of Alabama v. Sessions, 56 F.3d 1281, 1288 n.13 [11th Cir. 1995]. Appellate courts are also likely to take judicial notice of facts that affect the court's jurisdiction, indicating, for example, that the appeal may have become moot. ITT Rayonier Inc. v. U.S., 651 F.2d 343, 345 n.2 [5th Cir. 1981].

Certain categories of facts have long been the subject of judicial notice on appeal. Courts routinely take judicial notice of pleadings, records and judgments in other court cases [see, e.g., Green v. Warden, U.S. Penitentiary, 699 F.2d 364, 369 [7th Cir. 1983]; E.I. du Pont de Nemours & Co. Inc. v. Cullen, 791 F.2d 5, 7 [1st Cir. 1986]] and in administrative agency proceedings [see, e.g., Opeka v. INS, 194 F.3d 392, 394-95 [7th Cir. 1996]], but have declined to take judicial notice of other courts' factual findings, as these do not meet the criteria of Rule 201. See, e.g., Taylor v. Charter Medical Corp., 162 F.3d 827, 829 [5th Cir. 1998]. Courts are generally willing to take judicial notice of data, pronouncements and publications issued by the government, such as Environmental Protection Agency research [Nebraska v. EPA, 331 F.3d 995, 998 n.3 [D.C. Cir. 2003]]; State Department travel warnings [Parsons v. United Tech. Corp ., 700 A.2d 655, 665 n.18 [Conn. 1997]]; and a federal fisheries management plan approved by formal rule [City of Charleston v. A Fisherman's Best Inc., 310 F.3d 155, 172 [4th Cir. 2002], cert. denied, 123 S.Ct. 2573 [2003]]. Appellate courts are also likely to take judicial notice of relevant newspaper articles [see, e.g., The Washington Post v. Robinson, 935 F.2d 282, 291-92 [D.C. Cir. 1991]] and historical information contained in authoritative publications, such as a text on the history of Lincoln Center [see, e.g., Hotel Employees, 311 F.3d at 540 n.1.].

Courts will take judicial notice of online information

Judicial Notice of Facts on the Internet. Appellate courts have increasingly cited information found on the Internet, often with less care than they should. As with hard-copy publications, courts are most willing to take judicial notice of information found on government Web sites, such as the time of sunrise found on the Web site of the U.S. Naval Observatory [U.S. v. Bervaldi, 226 F.3d 1256, 1266 n.9 [11th Cir. 2000]]; the prime interest rate on the Federal Reserve Board Web site [Levan v. Capital Cities/ABC Inc., 190 F.3d 1230, 1235 n.12 [11th Cir. 1999]]; and records of retired military personnel on a federal Web site [Denius, 330 F.3d at 926].

Courts have, however, also been willing to take judicial notice of information on arguably less reliable commercial Internet sites, including mileage information on Mapquest [In re Extradition of Gonzalez, 52 F. Supp. 2d 725, 731 n.12 [W.D. La. 1999]]; historical information on Liberia on the "Geocities" Web site [Bridgeway Corp. v. Citibank, 45 F. Supp. 2d 276, 278 n.2 [S.D.N.Y. 1999]]; and information regarding a bank's ownership from the bank's Web site [see Laborers' Pension Fund v. Blackmore Sewer Constr. Inc., 298 F.3d 600, 607 [7th Cir. 2002]].

Commentators have criticized this practice, questioning the accuracy and reliability of Internet information, as well as the impermanence of the Web addresses themselves and the content of those sites, which change continuously. See Barger, On the Internet, Nobody Knows You're A Judge: Appellate Courts' Use of Internet Materials, 4 J. Appellate Prac. & Process 417 [2002]; Smith, Can Courts Take Judicial Notice of Internet Content? 668 PLI/PAT 467 [2001].

Practitioners should be aware of these problems, recognizing that the Internet page they cite in their briefs may have changed even by the time the judges turn to that site to review it. They should also be prepared to challenge an opponent's references to adjudicative facts from the Internet that may not meet the requirements of accuracy and reliability in Rule 201.

By Aaron S. Bayer; Aaron S. Bayer is the chairman of the Appellate Practice Group at Wiggin & Dana, based in New Haven, Conn. He can be reached at mailto:[email protected].