Judicial Notice As A "Pretext For Dispensing With A Trial”

In a civil rights suit bya public interest group seeking to enjoin enforcement of the defendant city's ordinance banning door-to-door canvassing as a violation of First Amendment free speech rights, the Sixth Circuit declines to take judicial notice under FRE 201 that the "curfew simply reflects both the 'harsh realities' of modern existence and how different America is today compared to 1943," when canvassing door-to-door was a common practice, in Ohio Citizen Action v. City of Englewood, F.3d (6th Cir. Feb. 2, 2012) (Nos. 10–3265, 10–3293)

Under FRE 201, judicial notice serves as an alternative to formal proof. Through its operation, a court can relieve a party of its burden to offer formal proof of the noticed adjudicative fact during trial. As the noticed fact should be one that is not subject to reasonable dispute, it would not be a productive use of time to prove it. Recently the Sixth Circuit considered a request that it take judicial notice of a fact that apparently was not disputed by the parties. The circuit declined to do so, citing the danger that granting notice under the circumstances of this case, risked substituting judicial notice as a reason to preclude fact finding at trial.

In the case, a public interest group, Ohio Citizen Action of Englewood, sought to enjoin enforcement of the Englewood's town ordinance, claiming that enforcement would violate its member's First Amendment rights. The ordinance banned all door-to-door canvassing in the community between 6 P.M. and 9 A.M. At trial, the district judge remained unpersuaded by the city's claim that the measure was narrowly tailored to serve the alleged policy goal of public safety.

In defending on he basis of the exercise of its police powers, the town's "main argument is that the 6. P.M. curfew on soliciting is a key component of its overall strategy to reduce crime." The circuit noted from the record, however, that it "contain[ed] no evidence of the correlation between the number of calls to law enforcement regarding solicitors and law enforcement's ability to reduce crime." Indeed, the alleged drop in crime that occurred concurrent with the imposition of the curfew ordinance could very well "reflect the effectiveness of [other] proactive policing [measures], it is not evidence of the curfew's contribution to the City's crime-fighting strategy."

It is not clear from the case report the extent to which the plaintiff disputed the defendant's policy justifications. The circuit did note a lack of support for the town's "evidence . . . that its successful approach to fighting crime will be 'in jeopardy' if the 6 P.M. curfew is struck down." The circuit explained why "[w]e cannot agree."

For example, the circuit noted the defendant town's request for appellate judicial notice, which apparently had not been made at the trial court hearing:

Englewood argues that the 6 P.M. curfew simply reflects both the “harsh realities” of modern existence and how different America is today compared to 1943, when the Supreme Court observed that “[f]or centuries it has been a common practice in this and other countries for persons not specifically invited to go from home to home and knock on doors or ring doorbells to communicate ideas to the occupants or to invite them to political, religious, or other kinds of public meetings.” Englewood notes that the population of the United States has more than doubled since these words were written, and that crime rates have risen at an even greater pace. The period since 1943 has also seen the advent of computers, satellite television, cell phones, and other technologies that have revolutionized human interactions; indeed, Englewood points out, [plaintiff] OCA itself uses the internet and email to communicate with its members. In requesting that we uphold the 6 P.M. curfew, the City asks us to take judicial notice of “the fearful times we live in ..., the unprecedented and difficult economic times facing the geographic region where Englewood is located,” and of the fact that “door-to-door communications are no longer a centerpiece of communications in this country.” To hold otherwise, Englewood argues, is “to ignore the safety of Englewood residents.”

Ohio Citizen Action, __ F.3d at __. (citations omitted>

The circuit explained why judicial notice was unwarranted in this case:

[W]e may certainly take judicial notice that like many metropolitan areas in the United States, Dayton and its surroundings face difficult, if not severe, economic times. However, only facts that are “not subject to reasonable dispute” may be judicially noticed. Fed.R.Evid. 201(b). Thus, we cannot simply take judicial notice of the transformation of American society since 1943 to conclude, as the City urges, that the safety of Englewood's residents depends upon prohibiting door-to-door canvassing after 6 P.M. To do so would “turn [judicial notice] into a pretext for dispensing with a trial.

Ohio Citizen Action, __ F.3d at __. citing Ohio Bell Tel. Co. v. Pub. Util. Comm'n of Ohio, 301 U.S. 292, 301 (1937) (“Courts take judicial notice of matters of common knowledge. They take judicial notice that there has been a depression, and that a decline of market values is one of its concomitants.”) (citations omitted); Garner v. Louisiana, 368 U.S. 157, 173 (1961) (quoting Ohio Bell Tel. Co. v. Public Utilities Comm'n., 301 US 292, 302 (1937)).

It is not clear from the circuit's treatment of the request for judicial notice whether it was opposed by the plaintiff. What the case does show is that the circuit acknowledged that it could judicially notice social and market conditions. However, the court did not include in that judicially noticing a party's argument. The assertion about broad social changes in America since the 1940s seemed to be one of those propositions that, if judicially noticed, would “turn [judicial notice] into a pretext for dispensing with a trial.”

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