*1 from that violation. The showing latter V. CONCLUSION requires competent proof that the plaintiff go needWe no further. Insofar as mon- sustained a money loss of or property at- ey damages concerned, the Massachu- tributable manufacturer’s unlawful legislature setts has incorporated into the operation ownership of the competing Bill Rights Dealers’ a principle of “no dealership. That measure of harm is con- harm, no foul.” It thus became Santilli’s sistent with the purpose statute’s to shield burden to demonstrate actual harm flow- dealers from “overweening economic ing from GM’s ostensible violation of the power wielded manufacturers.” Tober statute. The court correctly district con- Motors, Foreign Olds., Inc., Inc. Reiter v. cluded Santilli failed carry this (1978). Mass. 381 N.E.2d burden. It follows inexorably, as night
Santilli’s against claims GM under sec- day, follows that GM was entitled to sum- 4(1) (counts tions 3 chapter 93B 2 mary judgment 1, 2, on counts and 4 of the 4) said, need detain us. As complaint. lower granted GM summary judg- Affirmed. counts, on ment these reasoning that when specific provision of chapter applies, 93B a plaintiff may not bring also claims under generic statute’s provisions based on
the same facts.
As claim, to the section 3 that reasoning
is flawless. The statute makes it transpar- ently clear that section 3 only actionable GETTY MARKETING, PETROLEUM insofar as there has been a violation INC., Getty Properties Corpo- some subsection of section 4. See Mass. ration, Plaintiffs, Appellees, 3(a) 93B, Gen. Laws ch. (prohibiting un- fair competition methods of defined I). section CAPITAL TERMINAL COMPANY and Dunellen, LLC, Defendants, claim, Unlike the section 3 the sec Appellants. 4(1) tion claim is not obviously vulnerable. Here, however, there is no need us No. 03-2324.
test the district court’s rationale. See United Appeals, States Court of Coalition, Houlton Citizens’ 175 F.3d at First Circuit. 184 (explaining that the court of appeals affirm order for summary judg Heard April ment “on any ground revealed the rec Dec. Decided ord”). if Even Santilli could state an un- displaced claim damages under section
4(1), any claim such subject, would be facts,
these injury requirement of
section 12A. Accordingly, it would be
doomed by the same lack of evidence of
violation-induced harm that condemned (the
count 1 4(3)(k)) claim under section
an early demise.
tions, and hence could not link the re- quired improvements to regulations. those We affirm.
I. Appellant Capital Terminal Company (Capital) (the owns the Wilkesbarre Pier Pier) in Providence, East Rhode Island. The Pier is used primarily for offloading petroleum mostly gasoline and home — heating oil—from barges and deep water vessels. Two pipelines begin on the Pier and extend approximately 2.5 miles to a pair of underground oil terminal facilities located East Capital Providence.1 owns Petros, Gerald with J. whom Charles J. one of the underground terminals; appel- Blackman, Hinckley, Allen & Snyder, Getty lee Properties Corporation (Getty LLP, Duffy and & Sweeney, Ltd were on Properties) owns the other and leases it to brief, appellants. Getty Petroleum Marketing, Inc. (Getty Ryan, James W. with whom Robert K. Marketing). Getty Properties álso owns a Taylor Partridge, Hahn, Snow & LLP usage interest in the Pier. brief, were on for appellees. An Operating Agreement executed 1975 governs parties’ the relationship
Before re- LIPEZ, LYNCH and Circuit garding costs associated with the Judges, Pier. In GORY, GARCÍA-GRE 1997, a dispute arose over the District nature Judge.* extent of repairs to the Pier. aAs result of PER CURIAM. this dispute, parties, including Getty Properties and Capital’s predecessor in in- This requires case us to determine terest, agreed to a First Amendment whether appellant Capital Terminal Com- the Operating Agreement.. That amend- pany was entitled to reach a jury on its provides ment Getty Properties is re- claim that certain improvements to a fire sponsible for “[t]he cost of compliance with suppression system by “reg- all City, State, or Federal ap- ulations” under the terms of its written plicable to operation pipelines.” agreement appellee Getty Properties The term “regulations” is not defined in Corporation. At the conclusion of appel- the Operating Agreement or the First case, lant’s the district court granted ap- Amendment to the Operating Agreement.2 pellee’s motion for judgment as a matter of because, view, the court’s appellant Before the closest source of pres- had failed to establish a basis for instruct- surized water to the Pier hydrant awas ing the jury on the content of such regula- located on neighboring property owned * Rico, Of the District of Puerto sitting by Hereinafter, desig- refer we Operating nation. Agreement and the First Amendment to the parties dispute Operating ownership Agreement pipe- collectively of these as "the However, lines. Agreement." issue of ownership of the pipelines before this appeal. court on (Uno- the letter stated provements, of California Company Oil the Union major expenditure amount is fire, “[t]his from cal). water In the event hardship, above represents [Capital], and spray used have been would hydrant extend ourselves.” we cannot pipelines. onto foam fire-retardant Depart- Water Providence the East Advisory Group, May On be- hydrant water shut off ment of both including representatives from that chemicals it was concerned cause well as Chief Marketing, as Getty contaminate might operations Unocal’s proposal. Bessette, Capital’s discussed Pier left This action supply. water state meeting from The minutes a fire suppress ability sufficient without *4 to the agreed key players of the “[a]ll used that parties The pipelines. the (summarized) ... sub- following proposal problem this to discuss began Pier the in listed proposal The by Capital.” mitted early as measures all four minutes included the letter, 8, 2000, May Capital’s in outlined De- Fire Providence East In the installing a of measure the additional plus lack the Capital about contacted partment a the Pier to head of from the pipeline the Pier. supply on water pressurized of a Pier. area of the separate manifold continuing until and in 1998 Beginning meetings a series attended Capital sent Chief Bessette May On the meetings) at (the Advisory Group Marketing, Getty Capital, to letter At Safety Office. Marine Guard’s Coast a result stating that “[a]s Getty Properties, Capital, representatives meetings, these meetings [Advisory Group] a number of Guard, Fire State Unocal, the the Coast fire adequate a lack of to regard ... in Office, East Providence and the Marshal’s Pier, the the Wilkesbarre protection how best discussed Department Fire acceptable improve- following are minimal services suppression fire adequate provide then The letter facility.” to that ments Getty Mar- representative Pier. A to the Advi- the improvements that the five listed the Adviso- several keting also attended its during agreed upon Group had sory dispute parties The meetings. Group ry Shortly thereaf- meeting. May Getty Mar- representative of the whether Getty Proper- that ter, demanded Capital Properties. Getty keting represented also the implementing cost of pay for the ties Bessette’s Chief listed improvements letter to 8, 2000, wrote a Capital May On improvements letter, that those contending Bessette, East of the Chief A. Gerald under by “regulations” required were setting out Department, Fire Providence par- between Agreement terms of Pier. It at the suppression for fire proposal ties. extension measures: specific four included Pier, to the main existing water of an II. Tote Trailer Foam of a mobile
purchase 2, 2000, Getty Properties August On use could Department Fire that declaratory sought Marketing Getty in- city, anywhere in a fire suppress they the district court from judgment box at signal alarm radio stallation a water line install obligated “not chemical Pier, portable of a purchase pier.” system for suppression or fire at the Pier. to be housed extinguisher fire a com- Capital filed September to- On estimated “[t]he The letter stated $800,000 to seeking pulsory counterclaim ... improvements four tal cost for the suppression fire of the costs cover $200,000.” appears It approximately install. already begun to that it had system im- these anticipated paying Capital district divided the trial into two that was before the court. The issue was one, phases. phase In the court Cap- tried not whether Getty Properties had failed to ital’s counterclaim a jury.3 before with comply regulation or rule of law. two, phase time, tried at a later Rather, the court the issue was whether the im- a bench Getty conducted trial to address provements listed Chief Bessette’s let- Properties’s Getty Marketing’s declar- ter were comply order to atory judgment action.4 “regulations” as that term was used in the Agreement, and therefore Getty whether
During trial, Capital introduced Properties was responsible paying into evidence the historical gov- documents cost of installing those improvements. erning Pier, interests in the including the Agreement between Capital and Getty In response motion, to this the court Properties obligating Getty Properties to pressed Capital “point [the court] pay compliance “[t]he cost of with all City, regulation which requires the installation State, or Federal applicable to suppression fire system you operation of the pipelines.” Capital seek compensation for.” directed *5 also report introduced a by written Orville the court to R.I. § Gen. 23-28.22-5,5 Laws Slye, a consultant hired Capital to as- which with exception here, not relevant sess the fire suppression needs on the construction, states: “The installation, use, Pier. report That had been presented to storage, and maintenance of facilities stor- Advisory the Group and had been used ing, using, and dispensing flammable and Capital developing in proposal its for fire liquids combustible within the scope of this suppression on the Capital Pier. also intro- chapter shall be in accordance with duced the minutes of Advisory the Group N.F.P.A. Standard 1987 edition.” Cap- meetings. ital asserted that the 1987 edition of the
At the close of Capital’s case, Getty National Fire Protection Association Stan- moved judgment for (NFPA aas matter of law 30), dard 30 a “Flammable and pursuant 50(a)(1). to Fed.R.Civ.P. Getty Combustible Liquids Code” developed by a argued that “[t]here has been absolutely nongovernmental entity, incorporated was no testimony here regarding any particu- into Rhode Island pursuant to R.I. regulation lar or any rule of law that Getty § Gen. 23-28.22-5, Laws and thus consti- Properties did comply not with.” This a “regulation” tuted for purposes the of statement somewhat misstates the issue Agreement.6 the 3. Phase Getty one also Marketing’s included to Rhode Island law as it existed at the time Capital claim that separate letter, is, breached a of provisions that that in effect in agreement' "Throughput Agreement”— —the by failing to repairs make certain to the Pier. That claim is not before appeal. us on § 6.R.I. Gen. Laws governs 23-28.22-1 applicability § of Gen. R.I. Laws 23-28.22-5. 4. Phase two also included other claims It provides provisions that Chapter of Getty Properties Getty Marketing that are ("Flammable 28.22 Liq- Combustible not relevant to the appeal. issues uids”) apply "shall existing not buildings, to structures, plants, equipment June repealed Rhode Island now used R.I. § Gen. liquids Laws flammable portions enforcing 23-28.22-5 and other unless the officer Chapter part 23 as of an shall determine that overhaul its fire conditions constitute safety laws. See 2004 a R.I. Pub. distinct Laws 225. § hazard.” R.I. Gen. Laws 23- However, properly 28.22-l(b). to address whether the The record indicates that improvements listed in Chief pipelines Bessette’s letter in qualify this case "existing 17, 2000, May "regulations,” structures, we refer buildings, plants, equipment.” recess, counsel the court asked After regu- where Capital court asked The was “able whether he Capital “I can Capital responded, lation was statute, ordi- identify specific to recess asked When suppose.” I copy, get nance, anything specifical- regulation, evidence, into introduced it was whether system that suppression fire ly covers the a matter of “It’s responded, Capital sim- talking Capital about[.]” we’ve been push court continued The your Honor.” 23-28.22-5; R.I. Laws ply offered Gen. Is- the Rhode me stating, “Show Capital, 2000 edi- that he had a counsel admitted say has you which Building land Code not 1987 edition. of NFPA 30 but tion law,” Capital responded, force stated: The court The building code.” have “I don’t I is This statute problem The have this. Stan- its belief court articulated It a document. reference to makes papers Capital’s part should be dard is, the text of the incorporated, the case. into the incorporated is not document for the citation. asked then this nothing There is before statute. 30 and “It is NFPA responded, it can make determi- jury from which Honor, Code, your Building Island Rhode Getty obligation had an nation that I bring you, it to it and and I will find provisions. comply with certain I find say I will or at least should promise, Slye, Capital’s ex- noted that The court you.” The court bring it to try it and what pert, stated was never of a regulation the violation stated 30; fact, that his own he stated NFPA claim [Capital’s] the “bedrock *6 30’s re- NFPA exceeded recommendations Capital’s that it was Getty” and against press to court The continued quirements. claim party pressing the as the “obligation Capital: support the facts that only to set forth anything in the record there Where is The the law.” but set forth claim to [the] this standard the reference to other than had not cited a Capital that court observed addresses the of standards or set that re- NFPA 30 provision of specific you All in issue this case.... precise suppres- of the fire quired the introduction the reference. have is the court a given alone equipment, let sion on ominously commented court then The copy of NFPA 30: absence 30’s of NFPA significance rested, have not you but directed [Y]ou it what “Nobody knows case: from the But regulation.... any specific me to importantly but point, this most says at of the you give copy to me a asking I’m says.” know it I do not what jury your you say supports regulation that con- court was that the responded Capital if it’s point. on this Because argument fact: law with issues fusing issues on this claim. you ... will lose not there fact, your Honor. question a It’s not as that. simple It’s as [Y]our of law.... question a This is jury] the stat- give [the wouldn’t unsuccessfully Honor had looked Noting that would, suspect, I Honor ute. Your recess took a short the court for NFPA your If is. the law charge as to what copy. a to obtain give Capital to time pier system was that, suppression However, "[g]iv- a fire court found the district therefore district hazard. The distinct generous the most ing letter] [Chief Bessette’s and com- "the flammable drawing determined all reasonable reading I can Island Terminal,” chapter of Rhode liquids bustible inferences in favor apply.” Laws does General lack of determined Bessette Chief Honor believes that NFPA that, 30 is now the tal’s case was taking “even all of the building code law of the account, State of Rhode [evidence introduced at into trial] Island, I would there is expect you charge absolutely not one shred of evi- in that. I if I dence the case linking believe that had tried the [recommen- dations of Chief offer either the General Bessette] Laws the 1987 edi- [NFPA evidence, in tion of NFPA objection 30] that an 30.” would have been and sustained. made It’s In its written order December matter of law. 2002, the court explained further its deci- sion, stating the “dispositive The court issue” by Capital’s was not convinced “whether there was evidence that argument, noting, “I’m not so sure.... items listed Chief I Bessette’s letter you’ve But think got your a hole in case.” in accordance with the standards set forth Capital continued: in NFPA 1987 edition.” The court point of the matter is that this is noted that “[t]he NFPA 1987 edition now a matter of law. We will submit manual was exhibit, never offered as an memorandum at the earliest possible not part evidence this time, and it quickly, you will be to show case.” It further stated only that “the what NFPA 30 is that it is the law and. testimony concerning was or what was not you and ask charge accord- required on the way Pier of fire ingly. protection equipment came from Orville The court Capital, “I reminded need Slye, Jr.” The court added that the recom- version,” asked, '87 “Who’s got it?” in Slye’s mendations report, by the re- Although counsel get offered to of port’s terms, own “minimal, exceeded non- the 1987 edition NFPA the court mandatory, protection fire recommended said it was “too late” and admonished that by NFPA 30.” The district court conclud- this your “[i]f is what client is hanging its ed that Slye does Report “[n]owhere on, hat this is something that should have indicate that the recommendations con- *7 provided been long Court a time tained therein in are accordance with the not ago, now.” NFPA Moreover, edition. the report does not state that The district recommended granted Getty court Proper- Pier improvements required by are stat- ties’s motion judgment for aas of matter ute, ordinance, regulation In whatsoev- reaching conclusion, law.7 its the court er.” probed the nature NFPA 30. The court
noted that NFPA standards were promul-
In the absence of
linking
evidence
the
gated by the National Fire Protection As-
improvements listed in Chief Bessette’s
sociation, which
private
is a
industry
letter to the requirements
of NFPA
board. From an evidentiary standpoint,
the court determined that no reasonable
the
believed
private
that because the
jury could find that
improvements
those
standard was not incorporated into the
required
were
by “regulations.” The court
statute,
text of the state
but rather was
stated that “[n]owhere in Chief Bessette’s
simply referenced, Capital
required
was
to
letter does he reference a Rhode Island
introduce NFPA
into
evidence.
'The
statute,
ordinance,
state
city
or other regu-
court believed that
problem
the
Capi-
lation requiring installation of the listed
jury
7.
The
Getty
trial continued on
jury
Market-
the
Getty
found in
favor
Market-
ing's
Capital
claim that
had
the
breached
ing
$100,000.
damages
and awarded
"Throughput
Agreement.” On December
Providence, the
City of East
thority of the
NFPA
the
items,
he mention
nor does
Marshal, and
Coast Guard.9
listed
the
the items
State Fire
that
or state
edition
standards.”
NFPA
in accordance with
that “the failure
court concluded
III.
items
link between
evidentiary
an
make
motion
grant
the
of a
review
“We
with a cor-
letter
in Chief Bessette’s
listed
matter of law de novo.”
judgment as a
for
plaintiffs
is fatal to
regulation
responding
Middleton,
McLcme,
&
Graf, Raulerson
claim.”8
(1st
26, 39
Rechberger, 280 F.3d
P.A. v.
argues that
Capital
appeal,
On
Cir.2002).
Getty Properties’s
ruling
In
that
the
have found
jury could
reasonable
50(a) motion,
court held
the district
Rule
in
listed
Chief Bessette’s
improvements
whether
that
the
could
decide
“regulations.”
required
were
letter
obligation
“Getty [Properties]
(1)
arguments are that
Capital’s primary
of NFPA
provisions”
with certain
comply
taken
court should have
being present
of NFPA 30
without a
of NFPA 30 because
contents
ed.
of Rhode Island law
part
30 is
NFPA
provides
language at issue
The contract
in
responsible
judge
thus
responsible
Getty Properties
requirements,
its
jury as to
structing the
City,
all
compliance with
cost of
“[t]he
(2)
indicated
at trial
the evidence
State,
regulations applicable
or Federal
let
in Chief Bessette’s
improvements
Although
pipelines.”
operation
au-
regulatory
were
ter
words,
or,
23, 2003,
regulation,
federal
other
proceeded to
the court
June
On
equip-
obligation to
such
it has no
install
At the
phase two of the trial.
conclusion
this,
failed.
two,
the Pier.
Getty Properties had
ment on
phase
it ruled that
obligated to
prove
was not
that it
failed
argues
was “ambushed”
Capital
that it
also
system on
Pier.
suppression
a fire
install
50(a) motion be-
by Getty Properties's Rule
grant
district
court's
contends that
in its
Getty Properties had admitted
cause
phase
motion
Getty Properties's Rule 50
improvements listed
pleadings that
ruling
with its
the trial is inconsistent
one of
“required.” In its
Chief
letter
Bessette’s
phase two of the
Getty Properties in
against
Getty Properties
Complaint,
Second Amended
inconsistency in
necessary
is no
trial. There
states:
ar-
rulings. The Rule 50 motion
two
these
only
Capital had not introduced
gued
Chief,
City of East
Through
its Fire
to demonstrate that
sufficient evidence
inad-
there is
has indicated that
Providence
letter
improvements listed in Chief Bessette’s
and has
protection on the Pier
equate fire
*8
ruling,
That
required by “regulations.”
were
requirements for
certain minimum
set forth
however,
court to
require the district
did not
Pier or else
necessary improvements
the
trial,
hold,
Getty
phase
that
in
two
will be closed.
the Pier
burden to demonstrate
Properties had met its
statement,
does
Capital
reads the
over
sup-
obligated
to install
fire
that it was not
in
improvements listed
that
not admit
phase two
system
Pier. In its
pression
on the
by "regu-
required
were
letter
Chief Bessette’s
decision,
ruling in
explained that its
the court
acknowledges
just
The statement
lations.”
(addressing Capital’s
phase one of tire trial
required the
that the Chief
fact
the obvious
counterclaim)
Getty's declar-
had not decided
Moreover, Capital did not
improvements.
judgment
on the merits:
atory
claim
dis-
argument before the
"ambush”
raise this
trial, well
phase two of the
until
trict court
judg-
seeking
declaratory
party
As the
Getty Properties’s
on
had ruled
ment,
after the court
obligation
Getty [Properties] had an
Therefore,
“am-
even if the
50 motion.
estab-
Rule
evidence that
with
to come forward
validity,
has been
any
it
instance,
argument had
lished,
bush”
that the installation
See,
Neph-
e.g.,
Smith &
Violette v.
Wilk-
forfeited.
equipment on the
suppression
the fire
Cir.1995).
(1st
Inc.,
state,
F.3d
Dyonics,
city,
ew
required by
Pier is
esbarre
“regulations”
“judicial
word
is not defined in
in
argument
notice”
his
before the
contract,
court,
unmistakably
it,
favor,
district
word
we will take
in
means
his
Getty
that
Properties
only responsible
in
request
understood his
those
terms.
the cost of improvements
state,
city,
or federal law.10
however,
disagree,
We
the court
was required
to take
quickly
We deal
Capital’s
sec
NFPA
Getty
30. After
moved for judg-
argument
independent
ond
of NFPA
ment as a
pursuant
matter of law
to Fed.
30, the evidence
permit
introduced
trial
50(a)(1),
R.Civ.P.
the court
Capital
asked
jury
ted a
improvements
to find the
for a
of NFPA
referenced
state,
required by city,
regula
or federal
§
Rhode Island General Laws
23-28.22-5.
tions,
Getty
and thus
was liable for the
The court indicated
had looked for a
cost of
improvements
to the Pier. That
copy and was unable to locate one. After
is simply
Capital’s
not so. Even
expert
recess,
a brief
Capital still
pro-
could not
effect,
testify
did not
to that
but rather
vide the court with copy; Capital
simply
said
plan
the NFPA
exceeded
recom
pointed to-the Rhode Island statute that
Indeed, Capital’s
mendations.
argu
main
referenced the
appeal, Capi-
standard. On
ment,
now,
then and
turns on the assertion
argument
tal’s
is that
the court was re-
that the Rhode Island statute which refer
quired
take
notice of NFPA
ences NFPA
requires
the improve
regardless.
ments made to the Pier and is
regula
Generally,
system,
the federal
which,
tion
Agreement,
under the
makes
Union,
“[t]he law of
state of the
Getty responsible.
depending
whether
upon
upon
statutes or
We now
argument.
turn to this
judicial opinions, is a matter of which the
Capital contends that
the court should
courts of the
States
United
are bound to
have
requirements
determined the
take
plea
notice
proof.”
without
Rhodé Island law pursuant to
responsi
its
Micou,
Lamar v.
218, 223,
114 U.S.
5 S.Ct.
bility to determine the law applicable to
(1885);
Gittens,
We do not know if the court ordinances and would have judicial mandatory safety codes, taken notice of NFPA and the if Capi- relevance tal those changes provided judicial district court notice re- with an quest made appropriately Capital certified this case. Recognizing version of it. But this Capital discussion chose is not do (and precedent, so I apparently did not nevertheless hope itself have the correct Standard). version of discussion will inform judicial Nor was notice of analysis NFPA 30 readily law comparable available. when judicial no- tice of law issues arise in future cases. Indeed the court informed it had tried to find the correct version and
had been unsuccessful. I. Even those courts which have more liberally construed the A. Judicial Generally Notice rules judicial notice as to local ordi nances do only codes To so when Capital’s assess contention that the to be noticed readily available district and there court was required to take are no issues about accuracy or notice of authentici NFPA I first distinguish two ty. See Melton v. City, concepts Oklahoma lumped together under the rubric (10th F.2d 724 n. 25 Cir.1989)(taking notice: fact judicial notice of matters they when notice of law. Judicial notice of not subject to reasonable dispute and the fact is an evidentiary shortcut. It permits accuracy cannot be questioned); Newcomb in a facts particular case to be established Brennan, (7th proof Cir. without by admissible evidence if 11. At least one member of majority concurring has opinion. analysis reservations about the set forth in the
322
they
subject
are “not
to reasonable dis-
Strong,
See John W.
McCormick on Evi
(1)
pute” by
being
virtue of
gener-
“either
(5th
1999) (“The
dence
335
ed.
heavy-
ally
jurisdic-
known within the territorial
footed
system
common law
proof by
of
(2)
of
capable
tion
the trial court or.
of witnesses and authenticated documents is
ready
accurate and
determination
re-
too slow
judge’s
and cumbrous for the
task
accuracy
sort to sources whose
cannot rea-
finding
is.”).
of
applicable
what the
law
sonably
questioned.”
be
Fed.R.Evid.
system,
the federal
any
“[t]he law of
state
201(b).12
example,
For
if it
necessary to
is
Union,
depending upon
whether
establish that an offense
place
took
within
judicial
upon
statutes or
opinions, is a mat
special
juris-
maritime and territorial
ter of which the courts of the United
States,
of
diction
the United
court may
States
judicial notice,
are bound to take
judicial
take
notice that
the site of the
plea
proof.”
Micou,
without
or
Lamar v.
was,
fact,
offense
federal property. See
218, 223,
857,
U.S.
5 S.Ct.
323 Dis- jury regarding of or instruct enough to notice easy is typology this Although appellant ordinance trict of Columbia margins, outline, at nuances arise “municipal ordi- because proven, had not notice judicial of parameters exact “[t]he judicially noticed may not be nances rarely are state laws of Broughton jurisdiction”); general of courts Nursing Marie re Madeline tested.” 260, Brewer, F.Supp. Cir.1982). 298 (6th v. 483, Homes, 446 F.2d 694 (S.D.Ala.1969) to take no- (refusing must instance, court while a federal For partial and granting tice of ordinances “with- of state statutes judicial notice take plaintiffs because judgment for defendants 223, Lamar, at 114 U.S. plea proof,” or out introduce into evi- plead to had failed not 857, traditionally were courts S.Ct. 5 of ordi- copies or certified dence official ordinances. of local to take notice nances); § 335 & on Evidence McCormick A brief his- eroding. tradition is Yet 10; n. at 320-21. ante princi- general to the exception this tory of clarify the of law will judicial notice of ple treatment of state This distinction case. in this presented issue was based on and local ordinances statutes much easier reality that it the historic of Law Rule of Proof The Common B. (and confident for a court to obtain be Local Ordinances of) a stat- version state it had the correct Roden v. a ordinance. See tradition, ute than local ordi- local By longstanding 721, Co., 408, 155 A. 723 Conn. 113 public “not a Conn. to be was considered nance (1931) (“The ... what means to ascertain regulation; statute, municipal but a mere city are effect ... be ordinances and, must make it to available time, amend- change without judi- particular fact of which any other like pleaded, ment, reasonably avail- certainly not v. taken.” Robinson will not be notice cial courts, they are 174, frequently Co., F. 176 able Tramway 164 City Denver ready unquestionable capable Cir.1908); (8th v. Transit Gardner demonstration.”).15 “[Wjhen (af- the source- (D.C.Cir.1945) 288, 290 F.2d 152 easily to was not accessible material to take trial court’s refusal firming law, superfluous Indeed, be then Lamar would state organization has one of law. notice provided law govern judicial where state proposed a new 203 Rule statutes, where state hardly and violate Erie neces- state would be notice heading provide. of Rule did not so saiy topic under if the fell Rice, Project: Evidence Paul R. 201. See believe that Consequently, I do not the Federal Rides Proposed Revisions taking judicial against no- Island rule Rhode Commentary, 171 Supporting Evidence ordinance, Town municipal see tice of 330, (1997). 405 F.R.D. 280, A.2d Coumoyer, 186 95 R.I. v. Lincoln 728, (1962), apply in federal would 730 only to cases illustrate cite state law I municipal ordi- this case involved even if logic be- practice and the in historic trends incorporated aof document nance instead purely proce- notice hind them. Judicial H. Contra into a state statute. reference governed law. federal dural and hence is Indus., 839 v. Heldor Wayne & Assocs. Palmer diversity jurisdic- sitting in "A federal court 770, (D.Kan.1993) (stating that F.Supp. 775 procedural law obliged apply federal tion is governed Kansas be judicial notice would Sys. law.” Alternative and state substantive City v. Inc., procedure); Monk judicial notice Synopsys, 374 Concepts, v. F.3d Inc. (N.D.Ala. Plumer, F.Supp. 539 Cir.2004); Birmingham, 87 (1st U.S. v. Hanna ordinance, 1949) city (1965); (taking judicial notice of L.Ed.2d 8 S.Ct. discussion, stat- on Alabama relying, without 304 U.S. Tompkins, Erie R.R. so), aff’d, Indeed, do (1938). directed state courts ute that if 82 L.Ed. S.Ct. Cir.1950). (5th subject to court were federal *12 judge, ordinances, as in the of ... city case derlying citation of local law to a federal law historically] peculiar [was treated as a court is whether the by document offered fact, species requiring of formal proof.” the proponent accurately states the law. § McCormick on Evidence 335 (emphasis If there is no doubt a document accu- added). Indeed, Professor McCormick ac- rately states the there is no reason to knowledged possibility that local ordi- judicial eschew notice of that law.17 might nances in some cases be “easily Principles C. Basic of Judicial Notice
accessible to the judge,”
anticipated
of Law
that “[t]o the extent that these items be-
readily
come
in compilations,
available
it
Professor
pragmatic
McCormick’s
analy-
expected
be
they
will become
sis sets forth the basis for applying the
subject
judicial
notice.”
Id. Failing judicial notice of law doctrine to other
that, however,
suggested
he
that “it would
beyond
contexts
local ordinances. Without
appear appropriate for judges
judi-
to take
(and
acknowledging it
perhaps without
cial
...
notice of
municipal
if
ordinances
it)
even thinking
judicial
about
courts take
copy
counsel furnish a certified
thereof.”
every
they
time
cite a statute
Id.16
judicial
decision. See 29 Am.Jur.2d
n
(“A
words,
Evidence
other
judicial
court takes
rationale for exclud-
ing local
notice of a litigation
ordinances from
prin-
the Lamar
document as a source
ciple (by which
of
it
federal
law when
courts
take
follows a decision
must
of [a]
judicial
statutes)
superior court,
notice of state
is
cites
derived
a court decision as
entirely
precedent,
from the practical
difficulty
upon
of ob-
relies
it
persuasive
taining authentic and
copies
authority.”).
accurate
a practical matter,
of
As
in
those
If
cases,
ordinances.
the proponent of an most
this law-gathering process
ordinance cures
difficulty by
provid-
smoothly
flows
invoking
without
the ma-
ing a certified copy
ordinance,
of the actual
chinery
judicial
notice because there is
should,
view,
the court
my
take
usually no doubt about what the law actu-
n
notice of it. The fundamental concern un-
ally says.18 Theoretically, however, ques-
Project’s
16. proposed
Evidence
legal
Rule
901-02.
If the
material submitted is in
goes
step
by
eliminating
require-
further
fact a
actually
ordinance as
issued
ment of a certified or official copy: "The
municipal authority,
authenticity is
court shall take
notice of ordinances
If, however,
probably
only
issue.
the doc-
... and similar
political
of law
sources
excerpted
ument submitted is
from a web
subdivisions of
States ’or
Territories of the
page,
legal
service,
research
or some other
requested
United
States if
party
source,
non-official
the question of authentici-
supplied
necessary
with the
material.” Pro-
ty'
the document submitted is what
—whether
posed
203(b)(3),
Fed.R.Evid.
in The Evidence
purports
eclipsed by
to be—is
the more
Project,
added).
(emphasis
F.R.D. at 406
important question of whether the document
Proposed
203(b)(3)
Rule
also allows the court
accurately
submitted
relates the law as set
ordinances,
to take
notice of such
forth
enacting
authority.
In other
counsel,
even without
submission
if the
words,
secondary
such
materials introduce a
"reasonably
materials are
available
hearsay problem;
page
evidence that a
court.” Id.
was,
fact,
included in a brief
printed from a
probably
certain web site is
carefully
I have
framed the issue helpful
determining
whether the
of law in
web
"accuracy”
terms
both
accurately
site
"authenticity”
stated
law.
authenticity
because
focus on
misleading.
alone could be
Authenticity sim-
ply
means,
means that
pro-
course,
the document what
its
the law
18.What
is often
ponent says it
generally
is. See
disputed.
Fed.R.Evid.
*13
and available while
readily ascertainable
accuracy
and
lurk be-
authenticity
tions
is often
the case with ordinances.”
such
a court refers to
whenever
surface
low the
not.
Amundson,
602,
391 N.W.2d
608
Keyes v.
law—even
to establish
a document
(ND.1986).19
Re-
is the Federal
that document
when
After
Code.
the United States
porter, or
ju-
pragmatic underpinnings
have
might
all,
or codifiers
publishers
provide
dicial notice of law doctrine
of the under-
version
an incorrect
released
analysis
of the dis-
appropriate guides
en-
Congressional
or
judicial decision
lying
30,
of NFPA
the fire
handling
trict court’s
however, authenticity
reality,
In
actment.
by Capital.
among
Chief
code relied
never doubted when
accuracy are
and
underpinnings are convenience and
those
well-respected ser-
widely-available,
these
A
cannot take notice of
practicality.
court
language
of Rule
cited.
are
vices
find,
if
it cannot
even that code
a code that
(which
reference
provides
useful
201
by reference into a state
incorporated
apply to
though it does not
point even
time,
At the same
rules of thumb
statute.
law),
accuracy of
judicial notice
a “mere mu-
distinguish,
example,
reasonably
ques-
be
sources “cannot
these
from a somehow more
nicipal regulation”
(cid:127) n
differ,
howev-
Robinson,
The situation
statute,
tioned.”
164 F. at
worthy state
presented
er,
the district court is
176,
when
munici-
fetishized if the
should
be
represent
purporting
a document
com-
materials are made available
pal
England
of a small New
an ordinance
services or
monly
legal
used
research
accuracy
Rather,
Authenticity
judicial
no-
party.
town.
the doctrine of
—which
or
with federal
applied
almost never at issue
focus on
are
tice of law must be
with.a
present real
at issue.
availability
sometimes
of the materials
state statutes —can
“[Sjtate
the rele-
with local ordinances.
documents-that establish
concerns
Where
readily
by ordinary
and dis-
available
compiled, published
vant law are
statutes are
provided
a citation
professional
legal
entities
research from
by recognized
tributed
docu-
copies of the relevant
integrity
party,
of their
or
must vouch for the
who
submitted,
accurate,
actually
the court
are
they
likely
are
ments
and thus
product
(1991) ("[Bjecause
368
establish
Authenticity
accuracy
some
N.W.2d
can also
particular
of a
ing the existence and contents
with state admin
present real concerns
times
given
regulation
rule
or
regulations.
Federal courts and
administrative
istrative
process,
difficult and uncertain
of such
time is often a
take
notice
most state courts
that,
See,
general
principle
as a
it is an established
regulations.
e.g.,
v. Bd.
Pub.
Roemer
rule,
Works,
this court will not take
96 S.Ct.
426 U.S.
742 n.
(internal quota
regulations.”)
(1976)
(taking judicial notice
such rules
same ease-of-access
as municipal
issues
or-
voluntary
These
standards do not irre-
they
dinances. But
a
also introduce a new futably establish the standard of care in a
safety
variable: whether the
code is sim- negligence
Rather,
case.
they constitute
ply
standard,
voluntary industry
or legal-
“one more piece of evidence upon which
ly binding state or local law.
could decide whether the defen-
dant
reasonably prudent
acted as a
person
Voluntary Industry
Standards
in the circumstances of th[e] case.” Bos-
Many
voluntary industry
R.R.,
cases involve
ton & Me.
Consequently,
safety codes with the force of law were
factual evidence
standards as
treated such
developed
industry
standards
originally
admit or exclude based
that the court
nongovernmental
by private
entities
See,
evidentiary principles.
ordinary
privately-
into law.
adopted
then
Such
Miller,
(voluntary
e.g.,
developed
adopted
codes can be
into law
admitted); Mat-
properly
standard
ways: directly
different
refer
two
theius,
(voluntary stan-
F.2d at 1310-11
adoption occurs-when a mod
ence. Direct
excluded); Boston &
properly
dards were
nongov
originally
el code is
drafted
R.R.,
(voluntary stan-
F.2d at 290
Me.
body,
incorporated
ernmental
but
then
Dickie,
admitted);
properly
dards were
*15
(i.e., reproduced) into state or
wholesale
33339623,
(admitting expert
at
2000
*3
WL
(in
text)
full
promulgated
local law and
its
standards).
testimony
voluntary
regarding
ordinary
or administrative
as an
statute
practice
I
that this
sound.
believe
regulation.
generally .Building
See
Offi
Tech., Inc.,
cials &
v. Code
Code Adm’rs
Binding Safety Codes
Legally
(1st Cir.1980)
730,
(explaining
F.2d
732
628
contrast,
Code,
safety codes are en
By
many
Building
pro
that Massachusetts
ad mulgated
regula
ordinances or state
administrative
municipal
acted as
state
tion,
consequently
explicitly
Building
based on the
regulations,
ministrative
was
(BOCA)
See,
Administrators
e.g.,
of law.
Burran v. Officials and Code
have the force
Cir.1970)
(10th
Code,
Dambold,
133, 135
only
changes).
minor
Building
with
422 F.2d
(New
gov
Adoption by reference occurs when
contractors’ license board
Mexico
entity
authority
with the
to enact
“statutorily empowered
adopt
ernment
safety
an administra
promulgates
of law and
code
building
having
code
the force
so”);
or ordinance that does
regulation
tive
has
Curtis v. District
Colum
done
(D.C.Cir.1966)
privately-
of the
bia,
973,
actually contain the text
974-76
363 F.2d
standard,
incorpo-
(District
developed
but rather
Building Code was
of Columbia
.
Laws
Commissioners);
byit
reference. See R.I. Gen.
rates
enacted
District’s
dealing
facilities
(requiring
23-28.22-5
Am.
Ins. Co. v. Hannan Constr.
States
liquids to
Co.,
flammable and combustible
F.Supp.
996
23 Ohio Misc.
283
(“fire
(N.D.Ohio 1966)
Standard
“in accordance with
protection provi be
N.F.P.A.
edition”);
Donovan v. Daniel
1987
Building
[were]
Code
sions of the Ohio
(1st
Co.,
n. 2
692 F.2d
820
Building
Board of
Constr.
promulgated by the
(federal
Cir.1982)
Safety and
Occupational
In
Department of
of the Ohio
Standards
regulations
re-
Relations”),
Administration
aff'd,
The eases reveal that the
as law that
placed
must be
into a case
placing legally binding
safety
state or local
proof.
notice rather than
See Cal.
undergoing
into a case are
Co.,
Pac.
at
n.
Utils.
Ct.Cl.
historic shift.
In older eases from the
(taking judicial notice of relevant stan
1960s,
generally
1950's and
courts
treated
Code,
of National
Safety
dards
Electrical
safety regulations
state and local
as evi-
incorporated by
which was
reference into
subject
jury,
ordinary
dence for the
law).
change
always
Nevada
has not
Stemple v. Phillips
rules of evidence. See
steady,
been smooth or
and some cases
Co.,
178, 180,
Petroleum
430 F.2d
182-83
ambivalence,
confusion,
reveal
or even
re
(10th Cir.1970) (treating NFPA standards
garding
proper
treatment of such
evidence);
adopted by state fire marshal as
Perkinson,
codes. See
821 F.2d at
&688
(New
Burran, 422
n.
F.2d
Mexico
1;22
n.
Holley,
United States v.
building code “was introduced in evidence
(9th Cir.1974)
& n.
(appellant
objection”);
without
Laney & Duke Stor-
sought
to introduce into evidence an
age Warehouse
As Professor anticipated, McCormick in fifteen-year times period finally before however, more recent cases have reflected deciding judicial that a court take a shift in the treatment of state and local notice of local ordinances. safety codes. See Melton Beginning around City City, courts Oklahoma slowly treating have shifted from 879 F.2d 724 (10th Cir.1989) (court these treating codes as evidence to them n. 25 & may take exception perhaps proves 21. An that the rule judicial stead stated that it would take Admin, is Township, Pub. Hous. v. Bristol trial, of the Code. At the close of the defen- There, (E.D.Pa.1957). F.Supp. 866 n. 5 argued plaintiff dant the "waived her proponent building the aof local code submit- right to have the considered code, containing ted exhibits the entire but for put the because she failed to them in only formally some reason offered certain verdict, evidence.” After a defendant’s portions eminently prac- into evidence. For "put plaintiff's trial court admitted that it had reasons, judicial tical the court took notice of off-guard by offering counsel judicial to take the remainder. regulations” granted notice of the and plaintiff's motion for a new trial. 821 F.2d Perkinson, apparently the trial court ex- 688 &n. 1. plaintiff’s evidentiary proffer cluded of the Code, Building District of Columbia and in- Brennan, 558 F.2d ordinances), Newcomb v. notice of local vacated Cir.1977) (“We (10th (7th hold that matters Cir. 928 F.2d grounds, on other statutes, city record such as state 1991) (en banc); public & v. Pac. Power Ruhs Cir.1982) charters, (10th city ordinances fall within 1268, 1273 671 F.2d Light, ordinances); knowledge’ of .‘common category All (no notice of local subjects proper 1151 are therefore Svarczkopf, red v. Cir.1978) notice.”); Countryside see also Holst v.
(10th judicial notice of (taking (8th Enters., Inc.; Lawson, 1322 n. 4 F.3d ordinances); Dewell v. local Cir.1994) (“[I]t (no (10th Cir.1974) appropriate to would not be F.2d ordinances). testimony prog prove the fire code As time local codes, Ordinarily, regu- architect. however, expert resses, view that state are, relevant, lations, if estab- as evi and statutes proven must be safety codes local notice.”). through judicial lished by the view being overtaken dence judicially noticed. be these codes should Thus, in' evolving trend the law is much as Pro proceeded has This evolution (like local or- mandatory safety codes envisioned: fessor McCormick regula- dinances or state administrative [Wjhen not easi- are, feasible,' the source-material estab- general) when tions ... law has judge ly notice, accessible to by witness by judicial lished species of peculiar as a been treated The ra- testimony proof: other factual fact, proof.... formal requiring [A]s be of- requiring such codes to tionale accessible, more these materials become proven prac- fered into evidence —the tendency permitting is toward necessary difficulty obtaining tical they should judges perhaps to do what undermined devel- materials —has been is, beginning, in the have done technology open govern- opments in pro- diligence of counsel rely make it easier to practices that often ment *17 materials, and ac- necessary vide the Ma- law.23 Madeline find the relevant Cf. judicial notice of all cordingly to take (not- Homes, F.2d at 446 Nursing 694 rie goal toward This seems to be law. regulations administrative ing Ohio marching. practice 1976-,and conse- until published were not readily available 'there was “no quently § In partic- 335. on Evidence McCormick inde- [could] from which court ular, [the] have source and Tenth Circuits the Seventh the exact status of ascertain pendently the old distinction between abandoned earli- in effect in 1976 and ordinances, and Ohio and local state statutes er.”). Furthermore, paral- this trend is judicial notice of may take held that courts in most change of view by leled a similar adequate submission. upon ordinances 25; systems.24 court Melton, n. state 724 & See Hawk, 457, A.2d 460 ings); v. 683 suggest that state or local I do not mean to Jimenez (trial ordinances, (D.C.1996) judicial codes, court took notice safety like local Code); City Univ. v. D.C. Fire Rothstein always readily My point is that are available. 39, 533, N.Y., 40 available, 599 N.Y.S.2d 194 A.D.2d they readily the rationale are when (trial court took sua (N.Y.App.Div.1993) evidence requiring them to be offered into for code); building1 city judicial sponte notice proven is undermined. 842, Marcus, A.2d 844- v. 690 Commonwealth (trial (Pa.Commw.Ct.1997) judi took See, court 45 Loan Ass'n v. e.g., Hawthorne Sav. & Code, adopted Hill, Building cial- notice of BOCA. Signal Cal.App.4th City ordinance); (1993) Houston (taking judi- town Hernandez Cal.Rptr.2d 275 n. 2 776- Lighting & Power S.W.2d municipal Uniform code and of notice of .cial (trial properly took (Tex.App.1990) court Dangerous Build Abatement of Code sum, judicially In the rationale for not certified the state of Rhode Island as noticing local or state law other than pub- official, the court would have re been eroded, largely lic state statutes has view, quired, my judicial to take notice points the evolution of the law in this is, all, of it. NFPA 30 part after view, my possible, direction. In when local law of Rhode presence Island. of a including safety codes ordinances— copy imag certified of NFPA I cannot placed have the force of law—should be why ine it would necessary be or even into case via the mechanism of helpful prove its contents or authentici proof jury. to the ty in taking judicial lieu of the court notice 902(4) generally of law. See Fed.R.Evid. Capital’s E. Burden (certified copies public records are self- prac- Because notice of law is a authenticating); Ryan v. E.A.I. Constr. doctrine, tical production the burden of Corp., Ill.App.3d 110 Ill.Dec. proponent of the law depend should (1987) (“The 511 N.E.2d largely on legal the nature of the materials took [Chicago notice of the Build readily they may and how be accessed ing plaintiff C]ode after tendered certi ordinary legal research If methods. court.”). fied to the document by widely be accessed used legal electronic research service If Capital had presented the district found in the collection of reasonably court with an copy, analysis uncertified (ab- public library, well stocked then would be almost the same. Parties rou sent a local court rule contrary) tinely submit copies of documents of law to simple citation always will almost suffice. courts, federal copies and certified Here, the materials readily were not so rarely required. If presented available. While R.I. Gen. Laws 23- the district court with a copy of the 1987 statute, public 28.22-5 is a readily state edition of NFPA 30 that bore reasonable simplest retrievable legal research authenticity, indicia of the court would subject and itself notice under it, have been judicially authorized to Lamar, fully is not specified. fully To after giving Getty Properties a reasonable understand requires, what the statute one opportunity to contest its authenticity and must turn to NFPA privately which is *18 accuracy before the court. S. Pac. Co. Cf. authored, published, copyrighted. and In Costa, 689, v. De Valle Da 190 F. 697-98 respects here, however, relevant it does (1st Cir.1911) (noting that “under ordinary unpublished not differ from an ordinance circumstances, informality in proof of a or regulation: it is reproduced neither general statute of one of the United States the Rhode Island statute books nor re- [is a sufficient ground not] for reversal commonly trievable via legal used research a United States court” if there is no actual methods.
dispute contents). regarding the statute’s 1. Unchallenged Copies If authenticity the accuracy and of that If Capital uncertified provided the district of NFPA 30 were not with a copy contested, of NFPA court, 30 had been view, in my would
judicial notice Safety ordinances) of the National city Electric county notice of providing (internal Code opposition omitted); after quotation with an marks Camara opportunity accuracy); to rebut its but Appeals, Mass.App.Ct. see v. Bd. 40 662 County, Childers v. ( 1996) (court Richmond 266 Ga. N.E.2d cannot take (1996) (court 467 S.E.2d cannot municipal zoning by-laws). take (2d 1994) (“Sometimes, § dence ed. judicially to have been probably question thought a of ‘fact’was to because notice it. law], establishing foreign be involved [in Challenged Copies 2. jury, although to the proof was made hand, a If, there had been juries other inappropriateness having on the authenticity and dispute about the genuine gener- determinations of law is now make copy,25I accuracy proffered of a believe ally recognized.”). jury have court—not the
that the —would view, my judge, jury, not the I dispute. required to resolve been law. “It governing should determine the doctrine re- traditional recognize that it appear to be self-evident is would “prove” ordi- proponent quired judge the function of the to find peculiarly Robinson, see, jury, e.g., to the nances to the interpret applicable the law would deter- presumably which F. and, ease, jury in a in a trial issues dispute. a But this law in case of mine the jury for findings announce his of law to the then and makes made little sense practice guidance.” McCormick on Evidence their Keeffe, Arthur now. John less sense Cf. factfinding necessary § If is to ascer- Shaad, Landis, Jr., & Robert B. B. William judge should find the tain the About Judicial No- and Nonsense Sense jury: instruct the necessary facts and then ‘(de- (1950) tice, 2 L.Rev. Stan. that determination scribing the view judge presiding presence a When a jury question as foreign presents fact, question jury of a decides proposition” with “disastrous” “ridiculous event occurs to merit sufficiently unique results). disputes There was a view treatment because the special con- authenticity, accuracy, and about the factfinding role thought perform “factual,” tents of documents countries.... There is in common law on ad- disputes must be resolved factual judge about a nothing very remarkable jury. missible evidence submitted law to be on the tenor of the ruling importance much on hangs That view too of the contro- to the resolution applied on enough “fact” and not the abstraction of however, because definition versy, institutionally allo- optimal logical sup- very judges function this is the judge responsibility between cation posed perform. Singer, jury. and the See Norman J. Id.; Royal Realty also Neuber v. see Statutory Construction Sutherland 195 P.2d Cal.App.2d 2000) (“ (6th ‘Proof of the ed. 39:7 (1948) (trial city to admit court had refused fact; only make it a ordinance does not in into evidence but instead ordinances part consideration presents conduct would jury as to what structed not be as available the law ordinances; affirming ex viplate those Christopher B. Mueller parts.”); other *19 cf. just us that “it would seem to plaining 1 Federal Evi- Kirkpatrick, Laird C. & See, (appellant (Md.Ct.Spec.App.1991) ar- Wayne e.g.,H. disputes do arise. 25. Such Indus., 839 it “took gued v. Heldor court erred because & Assocs. 770, that trial Palmer (D.Kan.1993) (plaintiffs F.Supp. copies 774-75 build- of ... national expert fire code was presented affidavit that County Code ing than the' standards rather city provide ordi- adopted by city, did not but itself, thereby making to determine it difficult code, allegedly adopted and defen- nance building stan- and how the national whether code was never fire dants insisted adoption by been amended in their dards had by city); Constr. Co. adopted St. James County”). [the] Morlock, Md.App. 597 A.2d improper jury certified, to submit ordinances to the Rhode Island? Whether the un- interpretation as it would be to hand disputed copy presented in court accurate- a copy them of the Civil Code for them to ly states NFPA 30 to the extent that it is peruse determining in what the law of the part of the law of Rhode Island? Further was”), state in part overruled on other suppose jury got that the wrong: grounds, Montgomery Porter v. Ward & would its decision be reviewable 48 Cal.2d P.2d court, appellate and under what stan- (1957).26 sufficiency of the evidence? The dard — superiority of this institutional allo- system works judge best when the con- responsibility judge cation of between ducts necessary investigation and de- jury is illustrated what could have hap- termines the law: pened jury this case if the had been In determining applicabil- the content or required to determine the law. Suppose ity law, of a rule of domestic the judge is that Capital provided had the 2000 edition investigation unrestricted his and con- (which, fact, of NFPA 30 possessed) .... may clusion He make an indepen- and a testify witness who would that the persuasive dent search for data or rest identical, materially 1987 edition was but content with what he has or what the Getty Properties disputed had parties present. may He reach a con- provided assertion and a contrary witness. clusion in accord with the overwhelming It jury would make little sense for the to weight of against available data or it. If said, decide what the law and then for the judge, he is a trial his conclusion is judge jury instruct the on the law based subject to review. jury just on what the had judge. told the Notice, Morgan, Edmund M. Judicial Suppose, simply, even more that Capital (1944). Harv. certified, L.Rev. presented undisputed copy court, of NFPA 30 to the but the district 3. Procedure for Invoking Judicial No- court declined to take notice and tice jury instead let the decide. But what ex- actly jury Capital’s would the decide? Whether submission need not have been NFPA 30 in fact part of the law of accompanied by a request judi- formal 1974)). jury However, 26. The fact that the should be judge called has broad discre upon decide impact the law has no give jurors copies tion to of statutes for jury whether the see the law. These are deliberations, so, their or decline to do as she independent questions. ordinary Consider an Polizzi, sees fit. See United States v. Typically, judge statute. jury instructs the (9th Cir.1974) (court sent stat give jurors on the and does not room; regulations jury utes and into no abuse relevant statutes: regulations discretion because statutes and case, orderly In the trial of a the law is extremely complex judge just could given jury by to the the court and not intro- ifiably believe that it would have been better duced as evidence. It is the function of the give jury the statutes and rather jury to determine the facts from the evi- jury attempt than have the a reconstruction apply given dence the law as memory). from notes or ordinary from If court to the facts as found them from the statutes, always subject which are Obviously, evidence. it would be most con- notice, and should almost never be offered fusing legal to a to have material intro- evidence, given jury, into can be then it argued duced as evidence and then as to follows that the trial court has the discretion *20 ought what the law is or to be. publish to to the NFPA 30 or other Bernhardt, 251, United States v. 642 F.2d 253 though source of even the law does not (8th Cir.1981) (quoting Cooley v. United enter the case as “evidence.” States, 1249, (9th 501 F.2d 1253-54 Cir.
333
submission, then, virtually
counsel’s
Rather,
is
from
question
the
law.
notice of
cial
definition,
inadequate.
ma
submission is
the
has submitted
proponent
whether
(and
judicially
need not
opposing parties) Accordingly,
to
the court
terial
judicial
present
notice of
never
effectively makes the
a document that was
readily
reasonably
If the material
request.
court and that is not
ed to the
in full to
actually
or
submitted
by ordinary legal
available
research.
available
Cf.
formally
court,
not
need
proponent
Holst,
(affirming
at 1323
trial
law; the submis
judicial notice of
request
of cross-examination tes
court’s exclusion
citation, or of
readily
of a
retrievable
sion
code;
party
where
timony, regarding fire
documents,
to
ought
the relevant
copies of
into evidence
introduced fire code
neither
Highways v.
Dep’t
See State
suffice.
testimony
requested
nor
of
direct
Halvorson,
424, 181
Minn.
N.W.2d
288
code, not before the court
notice of
was
(“Where
(1970)
to take
a court is asked
investigated
be
cross-
and could not
...
regulation
agency
of an
judicial notice
re-direct);
on
see also
examination or
to
to exhibit
prepared
should be
counsel
Buswell,
v.
C.M.R.
United States
reg
contents of the
the relevant
the court
(A.C.M.R.1972)
n.
vide the court A certified
copy legal or other the ordinance docu- always
ment will almost suffice. An un- copy
certified will suffice if it bears reason-
able of authenticity indicia and there is no
genuine dispute accuracy. as to its court, jury, not the any must resolve such America, UNITED STATES of disputes. Finally, where the law is not Appellee, readily proponent obtainable and the does all, provide the court with copy at properly conclude that the COFIELD, Defendant, Edward proponent has not established the contents Appellant. of that law. No. 04-1053.
Pursuant to its notice of law request, Capital was to make the Appeals, United States Court of 1987 edition of NFPA 30—which is not First Circuit. readily by ordinary legal obtainable re- search—available to the district court. Heard Nov. 2004. explicitly The court Capital asked to sub- Decided Dec. mit of NFPA Capital was Therefore, provide join unable to one. I
my colleagues’ conclusion that the court
was not required to take
NFPA 30. See ante at 321. 50(a)
Ordinarily, a Rule motion is based evidence,
on a lack of lack not a of law. In action, however,
this breach of contract
Capital claimed that improvements State, required by “City, or Feder-
al regulation[ applicable operation to the ] the pipelines.” NFPA Since
through 23-28.22-5, R.I. Gen. Laws only “regulation[ applicable ]
opei-ation pipelines” arguably in- case,
volved this did not
provide adequate judicially basis for
noticing standard, Capital failed to
provide a “legally sufficient evidentiary ba-