January 31, 2013 § 4 Comments
The COA’s decision in Riverview Development v. Golding Development, decided January 22, 2013, deals with an adverse possession controversy, but I want to focus on a minor aspect of the case that is widely misunderstood: Judicial notice.
Beginning at ¶12, Judge Fair’s opinion turns to an issue of judicial notice:
Remaining at issue is Riverview’s contention that the chancellor erred in finding that Golding held record title to the disputed property, because Golding’s deraignment of title was never entered into evidence during the trial. This record title formed the basis of the chancellor’s decision to quiet title in Golding. “It is an elementary proposition of law that in a cloud suit the complainant has the burden of proving his title and may not rely on the weakness of [his] adversary’s title.” Culbertson v. Dixie Oil Co., 467 So. 2d 952, 954-55 (Miss. 1985).
¶13. It is true that the supporting deeds were not entered into evidence during the trial, but they were submitted with Golding’s pleadings and are public records. Given that the deeds were duly recorded, we find no abuse of discretion in the trial court taking judicial notice of their existence under Rule 201(b) of the Mississippi Rules of Evidence. Under Rule 201, “[a] court may look to any source it deems helpful and appropriate, including official public documents, records and publications.” Enroth v. Mem’l Hosp. at Gulfport, 566 So. 2d 202, 205 (Miss. 1990).
In Enroth, the court stated:
The question then becomes, how the Court should go about the business of judicially noting these facts?
It is a cliche of judicial notice that a fact is not judicially noticeable by virtue of being known to the judge; conversely, the mere fact that the judge happens to be unacquainted with the fact of common knowledge should not bar him from taking judicial notice of it. This situation is likely to arise when a judge sits in another district and the fact to be noticed is a matter known only within the territorial jurisdiction of that court or where some local fact is to be noticed on appeal. But even where the judge thinks that he knows the fact to be a matter of common knowledge, it would be a salutary practice to check his understanding against other sources of information when this can be conveniently done…. 21 C. Wright & K. Graham, Federal Practice & Procedure: Evidence § 5108 at 513-14 (1977).
A court may look to any source it deems helpful and appropriate, including official public documents, records and publications. The Court is not limited by rules of evidence otherwise enforceable in judicial proceedings. Witherspoon v. State ex rel. West, 138 Miss. 310, 320, 103 So. 134, 136-37 (1925) said:
He may resort to … government publications, dictionaries, encyclopedias, geographies, or other books, periodicals and public addresses. ( citing, inter alia, Puckett v. State, 71 Miss. 192, 195, 14 So. 452, 453 (1893)). Nothing in Rule 201 casts doubt on Witherspoon.
In the case at bar, the Court recited and listed the sources it had considered and included among those (1) numerous newspaper articles discussing the nature, operation and funding of Memorial Hospital, (2) conversations with physicians, (3) conversations with the Chancery Judge’s own niece who was an employee at the hospital, (4) conversations with a lawyer not involved with this particular case but who was familiar with the matter, and (5) the fact that, before becoming Chancery Judge and in his prior capacity as a lawyer, he had been involved in a lawsuit regarding the hospital in which its legal status had been an issue. We hold these bases adequate that the Court may judicially know the factual components of the Hospital’s status.
The scope of the extra-judicial inquiry in the now nearly 23-year-old Enroth case seems somewhat breathtaking to these twenty-first-century eyes, but there it is, and I believe it is still good law in Mississippi.
Remember, of course, that the judge is required to allow any party to present evidence or otherwise answer the evidence created by judicial notice, but that is another issue.
In Riverside, the chancellor took notice of the contents of the court file and relied on exhibits to the pleadings because, apparently, the lawyers had overlooked getting those crucial documents into evidence. Clearly, the best practice is to do it yourself, but Riverside and Enroth point another way to a solution.