Judicial Notice on Appeal: A History Lesson in Recent Trends
Judicial notice is defined in one dictionary as “the authority of a judge to accept as facts certain matters which are of common knowledge from sources that guarantee accuracy or are a matter of official record, without the need for evidence establishing the fact.”1 As appellate courts around the country are starting to amend their appellate rules to specifically address judicial notice, the issue of judicial notice on appeal remains important. This article builds on a 2006 article on judicial notice2 to look at the most current trends and suggests that our appellate rules should be amended to reduce confusion and to promote certainty over what can and should be the subject of a judicial notice request.
The Quandary: To “Notice” or Not to “Notice”
Judicial notice of a fact takes away the need for the parties to prove that fact in court. Appellate courts, however, are not fact-finding tribunals; they are reviewing bodies that evaluate and correct harmful errors made in lower courts, where the litigant’s counsel lodged a contemporaneous and specific objection and argument. For this reason, preservation of a “frozen appellate record” — the facts and issues that relate to a case that must be first presented to the judge or jury through briefing, testimony, or tangible evidence — is one of the most fundamental principles of appellate practice. Consistent with this requirement of preservation is the basic rule that evidence cannot be presented for the first time on appeal.
At the same time, if each fact in a case had to be proven through formal presentation, the simplest case would take weeks to complete. To reduce burdens on the judicial system, all legislatures nationwide have approved statutes and codes, and courts have approved court rules that allow a court — at all levels — to recognize facts that constitute common knowledge without requiring proof from the parties. Such rules can improve court efficiency at the trial level and, at the appellate level, improve efficiency and the likelihood of a decision on the merits.
Judicial notice allows appellate courts to resolve disputes without time-consuming remands due to procedural defects having no effect on the outcome. Those seeking to repair procedural defects or plug holes in deficient records can reasonably request that an appellate court take judicial notice. But it is a misuse of judicial notice to allow clever attempts to supplement the record with material evidence that plainly should have been first presented below. Whether judicial notice is viewed as a weapon or a means of correcting procedural defects, practitioners must be aware of the uses and limitations of that part of the record that is “unfrozen.”
Historical Patterns to Predict Future Trends
Our courts have historically considered the writings and studies of social science experts on legislative facts, with or without introduction into the record below, and with or without consideration by the trial court.3 Supreme Court justices have often used research from the social sciences and other nonlegal material to establish or criticize a rule of law.4 For an appellate advocate, it would be a strategic oversight to fail to consider presenting to an appellate court important information that could be the subject of judicial notice.
In his brief in support of a state law limiting work hours for women, Louis Brandeis demonstrated in Muller v. Oregon, 208 U.S. 412 (1908), the importance of using extra-legal sources, advancing medical and social science research that documented the debilitating effect of working long hours on women.5 He used that substantial body of research before the U.S. Supreme Court to defend Oregon’s limits on the number of hours women could work.6
Social and scientific studies have remained significant to decisions in major constitutional cases to avoid unjust results.7 The nation’s highest court has frequently employed judicial notice to ensure that its decisions were connected to the society in which we operate. In Lee v. Weisman, 505 U.S. 577, 593-94 (1992), in considering whether a prayer at graduation violated the First Amendment, the Supreme Court relied on psychological studies supporting the “common assumption that adolescents are often susceptible to pressure from their peers towards conformity and that influence is strongest in matters of social convention.” Writing for the majority, Justice Kennedy relied on three psychological studies for support.8
In United States v. Leon, 468 U.S. 897, 907-08, 912-14 & nn.6, 9 & 11 (1984), Justice White cited sociological field research to support a good faith exception to the Fourth Amendment exclusionary rule. In Mississippi University for Women v. Hogan, 458 U.S. 718, 738-39 (1982), Justice O’Connor cited sociological surveys to establish the unconstitutionality of a state statute that excluded males from enrolling in state-supported nursing school. In Ballew v. Georgia, 435 U.S. 223, 232-35 nn.10-14 (1978), Justice Blackmun cited psychological studies to establish the unconstitutionality of five-member juries in state criminal trials. In United States v. Martinez-Fuerte, 428 U.S. 543, 552-54 (1976), Justice Powell cited epidemiological and demographic research to support the constitutionality of fixed checkpoint stops of vehicles at borders. And in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 58-60 nn.8-9 (1973), Chief Justice Burger cited behavioral studies to support the constitutionality of a state obscenity statute.
Brown v. Board of Education, 347 U.S. 483, 493-94 (1954), is another illustration of the importance of judicial notice. In Brown, the Court relied on sociological research presented by then-appellate advocate and later-Supreme Court Justice Thurgood Marshall to conclude that public school racial segregation generated “a feeling of inferiority” that might affect the “hearts and minds” of African-American school children “in a way unlikely ever to be undone.”9
These cases confirm that throughout history, the higher courts have not confined themselves to the record of evidence presented to the trial court. The courts consider additional sources referred to in appellate briefs or conduct their own independent research to arrive at the best decisions on the merits.10
There is, however, a danger of judicial notice: If abused, it can promote bias, unscientific prejudice, and deprive the fact finder of the opportunity to decide for itself a contestable fact in a case. History teaches that judicial notice is not always properly advanced or used. For example, courts have taken judicial notice of materials that merely reinforced existing prejudices.11 In other cases, courts have relied on judicial notice to reject evidence and factual positions advanced by the parties.12
National Trends
Despite these dangers, some have argued that it is not helpful to appellate decisionmaking to limit facts available to judges for their deliberation,13 and have asserted that “[n]o judge can think about law, policy, or discretion without using extra-record facts.”14 Indeed, because appellate decisions often employ not just adherence to legal authority, but higher-level, policy-based reasoning, restricting review to merely the traditional legal authorities in cases and statutes can be insufficient or, worse, incomplete and in a vacuum.15
• Federal Rules — The federal decisions and Federal Rules of Evidence have embraced that reality. In 1975, the drafters of Federal Rule of Evidence 201 drew from Professor Kenneth Davis’ writings.16 Rule 201, which established the standards for judicial notice, incorporated the distinction between legislative facts — those that concerned questions of law and policy — and adjudicative facts — those facts of the particular case.17
The Advisory Committee Note to Rule 201 specifically acknowledges the rule’s intentional distinction between adjudicative facts — facts outside the record — and legislative facts, following Professor Davis.18 Under Rule 201, a “court may take judicial notice, whether requested or not,” and a court’s consideration of adjudicative facts outside of the record is subject to the restrictions that the rules for judicial notice impose.19
Rule 201(b) provides that “[a] judicially noticed fact must be one not subject to reasonable dispute, in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Under Rule 201, a court must take judicial notice “if requested by a party and provided with the necessary information.”20 Either party is “entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed.”21 Even though appellate courts are reluctant to infringe on the trial court’s fact-finding role, Federal Rule of Evidence 201(f) expressly sets forth that facts can be noticed at any stage of the proceeding, which has been held to include appeal.22
• Federal Trends — Judicial notice at the appellate level is most commonly used to correct procedural defects and clarify post-judgment developments, such as subsequently entered orders or amendments in the lower tribunal during the pendency of appeal.23 But judicial notice on appeal has also been substantive. In United States v. Pozsgai, 999 F.2d 719, 730-31 (3d Cir. 1993), for example, the Army Corps of Engineers’ jurisdiction turned on whether a swamp was adjacent to waters used historically in interstate commerce. To establish jurisdiction, the government persuaded the appellate court to take judicial notice of the adjacent “[c]anal’s historic significance as an interstate commerce route.”24
• State Trends — All states, including Florida, have statutes that are virtually identical to Fed. R. of Evid. 201. There is a strong policy that appellate courts not render decisions contrary to facts and law undisputed and incontrovertible. As a result, Florida appellate courts will judicially notice matters for the first time on appeal, often without even referencing the evidence code.25 T here is no question that post-evidence code, appellate courts recognize their power to judicially notice adjudicative facts on appeal, as well as the power to judicially notice law and judicial records.26
Other states’ legislatures also maintain statutes that give courts the power to recognize certain facts in specific situations. In Idaho, for example, any document affixed with the official seal of the state’s Public Utilities Commission must be judicially noticed by all courts.27 In Hawaii, when a commercial vehicle is cited for violating vehicle equipment regulations, a trial court must take judicial notice of the driver’s subordinate position if the driver works for a company that owns the vehicle.28
Like other courts, Florida’s Supreme Court and appellate courts have also refused to notice matters for the first time on appeal, precisely because they were not presented in the trial court.29 Judicial notice on appeal is subject to the reviewing court’s discretion. It is, therefore, clear that using judicial notice to introduce material evidence on appeal that was not submitted to the trial courts is risky, and practitioners proceed at their own peril. This point was highlighted in Brim v. State, 779 So. 2d 427, 430 (Fla. 2d DCA 2000), in which Judge Altenbernd expressed his concern that taking judicial notice of the scientific literature regarding DNA testing did not permit full Supreme Court review of a district court’s work and concluded that it was “inappropriate for the court to evaluate or determine the scientific acceptability of such principles and procedures by examining extra-record, nonlegal materials.”
Take also, for example, Brosterhous v. State Bar of California, 906 P.2d 1242 (1995), in which the State Bar of California asked the California Supreme Court to take judicial notice of eight cartons of materials comprising the record of an arbitration to bolster its res judicata argument, even though the state bar had failed to submit any of those materials to the trial or lower appellate courts. The California Supreme Court recognized its power to take judicial notice of matters outside the record, but it then refused to exercise that power.
Although some parties and judges may fear the misuse of nonlegal information introduced at the appellate level, there is no empirical evidence or logical reason to believe that judicial decisions are uniformly better when they ignore available, quality, authoritative information and fail to consider the real world implications of a legal rule.30 Extra-record studies educate the courts on the specific disputes in which the studies are introduced.31 When the issue presented to the higher court is not merely the rights of the parties in that specific case, but, as a practical matter, the rights of others who may be significantly affected by the decision that the court adopts, should courts really be limited to only that case-specific evidence that the parties have chosen to present below?32
An Appellate Rule Addressing Judicial Notice on Appeal
Applying the judicial notice provisions of Florida’s evidence code in the appellate forum is not always a simple matter. The cases suggest that one of the biggest limitations on judicial notice seems to be a concern rooted in procedure. F.S. §90.204(1) (2010) provides that before any court takes judicial notice of an adjudicative fact, it shall afford each party reasonable opportunity to present information relevant to the propriety of taking judicial notice and the nature of the matter noticed. Judicial notice of undisputed and incontrovertible facts in criminal or other types of appeal, for example, may raise a host of due process concerns that civil appeals may not present.
A recent decision out of the Eighth Circuit Court of Appeals illustrates this point. In American Prairie Const. Co. v. Hoich, 560 F.3d 780, 796-98 (8th Cir. 2009), the Eighth Circuit held that the trial court erred in taking judicial notice sua sponte that an accountant was an agent, which had allowed the accountant to bind the defendant to a $2.5 million settlement agreement:
After trial, the district court conducted independent [I]nternet research, located Hoich’s book, From the Ground Up, and referenced it for the first time in the district court’s opinion. The court took judicial notice of the book and described some of the contents. . . . The court used this information to support its finding that Jandrain was Hoich’s agent.33
In that case, the Eighth Circuit emphasized that because there was no document expressly stating that the accountant was an agent, the trial court’s post-trial judicial notice violated rules of evidence, including hearsay rules, and did not afford the parties an opportunity to respond.34
A recent case out of the Second Circuit Court of Appeals also underscores the due process concerns raised by judicial notice. In Singh v. Mukasey, 553 F.3d 207 (2d Cir. 2009), the Second Circuit noted that an immigration judge erred in taking judicial notice without providing an opportunity to rebut the officially noticed fact.35 The appellate court acknowledged that the Federal Rules of Evidence did not apply to immigration removal proceedings and to the immigration judge’s “administrative notice of the existence of adult strip clubs in Buffalo,” but concluded that the Fifth Amendment due process standard did apply and that it had been violated.36 Due process required an “opportunity to rebut such facts.”37
Both Singh and American Prairie Const. Co. highlight that a level of process is due on the issue of judicial notice. Rule 201(e) addresses this issue when the Federal Rules of Evidence apply: “A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.”
Brown v. Board of Education and other appellate decisions reflect that information judicially noticed has successfully changed the outcome. But it does not necessarily follow that indisputable facts and law should be noticed for the first time on appeal. Perhaps the solution is to codify an appellate rule clarifying judicial notice provisions in the appellate context.
Conclusion
The matters that can be noticed, as set forth in F.S. §§90.201 and 90.202, appropriately define the subjects proper for judicial notice at the trial level.38 It makes little sense to have §§90.201 and 90.202 only apply at the trial level, while the appellate courts fashion standards on a case-by-case basis, perpetuating uncertainty over what can be noticed. Sections 90.201 and 90.202 should also expressly apply at the appellate levels, and appellate litigants should be subject to their limits. Section 90.207 strongly suggests that judicial notice on appeal is proper and that the evidence code’s judicial notice provisions apply to appellate, and not just trial, courts: “[T]he failure or refusal of a court to take judicial notice of a matter does not preclude a court from taking judicial notice of the matter in subsequent proceedings.” This also makes sense because §§90.203 and 90.204, which set forth the procedures for a court to take judicial notice, do not limit themselves to trial courts. To that end, a recent amendment in California’s appellate rules would allow judicial notice and taking of evidence in the appellate courts, with much of the protection for both sides turning on notice and opportunity to be heard. Florida should consider a similar appellate rule as well.39
Because judicial notice on appeal is a vital adjudicative device for advancing appellate decisions on the merits, its application should be clarified in Florida in the same way that it has been under federal rules, and in the same way that other states, such as California, have moved to clarify their appellate rules. This goal is consistent with Florida appellate jurisprudence, because an appellate rule of judicial notice would assist the appellate courts in rendering decisions fully on the merits. Appellate rules on judicial notice balance these goals with the strong policies of appellate preservation and review.
1 Law.com Dictionary, http://dictionary.law.com/Default.aspx?selected=1065.
2 Dorothy F. Easley, Judicial Notice on Appeal: What’s All the Fuss?, 80 Fla. Bar J. 40 (May 2006).
3 See, e.g., Dunagin v. City of Oxford, Miss., 718 F.2d 738 (5th Cir. 1983).
4 Ellie Margolis, Beyond Brandeis: Exploring the Uses of Non-legal Materials in Appellate Briefs, 34 U.S.F. L. Rev. 197, 198 (2000).
5 Margolis, Beyond Brandeis, 34 U.S.F. L. Rev. at 203.
6 See Muller, 208 U.S. at 416.
7 See John Monahan & Laurens Walker, Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law, 134 U. Pa. L. Rev. 477 (1986).
8 Lee, 505 U.S. at 593-95.
9 Brown, 347 U.S. at 494-95 & n.11.
10 See Robert Keeton, Legislative Facts and Similar Things: Deciding Disputed Premise Facts, 73 Minn. L. Rev. 1, 31 (1988).
11 See, e.g., Wolfe v. Ga. Ry. & Elec. Co., 58 S.E. 899, 901 (1907) (judicially noticing “racial inferiority” as a matter of “common knowledge”).
12 Walker v. Halliburton Services, 654 So. 2d 365, 367-68 (La. App. 1995).
13 See Kenneth Culp Davis, Judicial Notice, 55 Colum. L. Rev. 945, 952 (1955) (providing a thorough analysis of the judicial notice issue).
14 Kenneth Culp Davis, Judicial, Legislative, and Administrative Lawmaking: A Proposed Research Service for the Supreme Court, 71 Minn. L. Rev. 1, 7 (1986).
15 See Zachary Mangello, Sociological Materials in Vermont Constitutional Interpretation, 32 Vt. L. Rev. 607, 609-11 (2008).
16 See Advisory Committee’s Note on Fed. R. Evid. 201(a).
17 Id. (recognizing Professor Davis’ distinction).
18 See Advisory Committee Note to Fed. R. Evid. 201(a); see also Margaret Z. Johns, Teaching Appellate Advocacy: Supplementing the Pro Se Record with a Brandeis Brief, Ass’n Am. L. Schools Conf. on Clinical Legal Educ. (May 21, 2002), available at http://www.aals.org/profdev/clinical2002/johns.html.
19 Fed. R. Evid. 201(a) and Advisory Committee Note.
20 Fed. R. Evid. 201(d).
21 Fed. R. Evid. 201(e).
22 See, e.g., In re Indian Palms Assocs.,61 F.3d 197, 205-206 (3d Cir. 1995).
23 See, e.g., Ieradi v. Mylan Labs., Inc., 230 F.3d 594, 597 (3d Cir. 2000) (taking judicial notice in securities fraud case that defendant had entered into $147 million settlement with FTC while the case was on appeal).
24 Pozsgai, 999 F.2d at 731-72 (citing “Robert McCullough & Walter Leuba, The Pennsylvania Main Line Canal (1960), and C.P. Yoder, Delaware Canal Journal (1972), two history books which discuss the [c]anal’s nearly 100-year history as a shipping route for coal and other commodities” to prove the adjacent Pennsylvania Canal leading to the Delaware River had been historically used in interstate commerce).
25 Reese v. Levin, 123 So. 809 (Fla. 1929) (taking notice of unstable or fluctuating real estate values at the time a particular contract was made); see also Peterson v. Paoli, 44 So. 2d 639 (Fla. 1950) (taking notice of “applicable and controlling statute of the State of New York, even though such statute was overlooked in the proceedings in the court below”).
26 See, e.g., England v. England, 520 So. 2d 699, 702 (Fla. 4th D.C.A. 1988) (“While there was no actuarial evidence presented below, we can take judicial notice of the fact that the value of $75 today is far less than what it was in 1967.”); but see Hill v. State, 471 So. 2d 567 (Fla. 1st D.C.A. 1985) (“Counsel for appellee should not have to be told that the appellate courts do not create records, nor do statements of counsel serve to create a record.”).
27 Idaho Code Ann. §61-209 (2009) (“All courts shall take judicial notice of said seal”).
28 Haw. Rev. Stat. §291-37.
29 See, e.g., In re Adoption of Freeman, 90 So. 2d 109 (Fla. 1956); Kostecos v. Johnson, 85 So. 2d 594 (Fla. 1956).
30 See Michael Saks, Judicial Attention to the Way the World Works, 75 Iowa L. Rev. 1011, 1015 (1990) (suggesting research used in formulating a rule of law has same kind of future-oriented analogizing of case precedent that we use in “IRAC” analysis).
31 Id.
32 Fed. Prac. & Proc. Evid. §5102 (citing Kenneth Karst, Legislative Facts in Constitutional Litigation, 1960 Sup. Ct. Rev. 75, 109).
33 American Prairie Const. Co., 560 F.3d at 796-97 (citations omitted).
34 Id. at 796-98.
35 Singh, 553 F.3d at 214, n.2.
36 Id.
37 Id. at 210-14, n.2.
38 See Fla. Stat. §90.201 (2010) (setting forth those matters which must be judicially noticed); §90.203 (providing for compulsory judicial notice upon request); §90.204 (providing for a determination of the propriety of judicial notice and nature of matter noticed).
39 See Cal. R. Ct. 8.252.
Dorothy F. Easley earned her J.D., with honors, in 1994 from the University of Miami School of Law and her M.S., with highest honors, in 1986 from SUNY/CESF. She is board certified in appellate practice, managing partner of Easley Appellate Practice, PLLC, specializing in the appellate substantive areas of business, family, health, intellectual property, and criminal law, and currently serves as Appellate Practice Section immediate past chair, 2010-11.
This column is submitted on behalf of the Appellate Practice Section, Raoul G. Cantero III, chair, Kristin A. Norse, editor, and Brandon Christian, assistant editor.
