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No. 33038 - Susan M. Jackson, Administratrix of the Estate of Timothy J. Jackson
v. The Putnam County Board of Education
Davis, C.J., concurring, joined by Justice Maynard:
In this proceeding, the majority has affirmed the circuit court's order granting
summary judgment to the Board. I agree with the decision and reasoning of the majority
opinion. However, I have chosen to write separately in support of the majority's decision
not to take judicial notice of the Board's Policy Manual.
Appellate Judicial Notice was Discretionary
Here, the appellant argued that, under the Board's Policy Manual, the decedent
was required to be transported by bus to the campground. Since this did not occur, the Board
violated the Policy Manual and proximately caused the decedent's death. The Policy
Manual was not presented to the trial court. Thus, the appellant asked this Court to take
judicial notice of the Policy Manual. (See footnote 1)
The majority opinion correctly refused to take judicial
notice of the Policy Manual.
The rules of this Court permit judicial notice to be taken of adjudicative facts (See footnote 2)
or law. (See footnote 3)
Regardless of whether judicial notice is requested for adjudicative facts or law,
Professor Cleckley has pointed out that [i]t is discretionary with appellate courts to permit
judicial notice where the matter was not first brought before the trial judge. Franklin D.
Cleckley, Vol. 1, Handbook on Evidence for West Virginia Lawyers, § 2-1(E)(2) (4th
2000). (See footnote 4)
Further, it is inappropriate for appellate courts to take judicial notice of [local
agency documents] that were not noticed in the trial court. Id
., at § 2-2(B). See Vons Cos.,
Inc. v. Seabest Foods, Inc
., 14 Cal. 4th 434, 444 n.3, 58 Cal. Rptr. 2d 899, 905 n.3, 926 P.2d
1085, 1091 n.3 (1996) (Reviewing courts generally do not take judicial notice of evidence
not presented to the trial court.).
The issue of appellate court judicial notice of an agency's policy manual was
addressed by the Court of Appeals of Oregon in State v. Weems
, 190 Or. App. 341, 79 P.3d
884 (2003). Weems
was a criminal case in which the defendant was convicted of possession
of a controlled substance. The circumstances of defendant's arrest involved a minor traffic
infraction. (See footnote 5)
During the investigation, the police learned that an outstanding arrest warrant
had been issued for the defendant, and that the warrant was marked caution. During the
defendant's arrest on the warrant, the police patted him down for weapons. Although the
patdown search did not reveal a weapon, the police searched the defendant's pockets and
discovered a packet containing methamphetamine. When appealing the conviction, the
defendant argued that the drugs found in his pockets should have been suppressed because
the search was unlawful. The appellate court agreed with the defendant concluding that,
once the patdown search did not reveal the presence of a weapon, the police should not have
searched inside the defendant's pockets. The State argued that the search was lawful under
a police policy manual because the outstanding warrant was marked caution. Insofar as
the policy manual was not presented to the trial court during the defendant's motion to
suppress, the State asked the appellate court to take judicial notice of the manual. In
reversing the defendant's conviction because of the unlawful search, the appellate court
rejected the State's judicial notice argument as follows:
In support of its argument that a search was justified, the
state has requested that we take judicial notice of a section from
the Law Enforcement Data System (LEDS) Operating Manual
that defines under what circumstances a caution indicator will
be assigned to a warrant. The LEDS document was not
presented to the trial court. [The police officer] did not testify
as to whether she was relying on the definition of caution
given in the LEDS manual when she searched defendant. We
deny the state's motion to take judicial notice of the LEDS
Weems, 190 Or. App. at 347, 79 P.3d at 887. See also People v. Huntsman, 152 Cal. App.
3d 1073, 1086, 200 Cal. Rptr. 89, 97 (1984) ([T]he Attorney General . . . asked us to take
judicial notice of the asserted fact that eight-by-eleven-inch plastic bags with 'Zip-Loc' tops
are often used in narcotics transactions. We decline the request. . . . [I]n passing on the
legality of a motion to suppress, it is the job of an appellate court to review evidence
submitted on the motion in the trial court. No request for judicial notice was made there.); State v. McCarthy, 197 Conn. 247, 249 n.2, 496 A.2d 513, 515 n.2 (1985) (The defendant
. . . urges this court to take judicial notice of results of the final 1980 census. . . . We decline
to take judicial notice of facts that were not available . . . at the time of trial. To hold
otherwise would be to permit a party to appeal a case on a basis completely different from
that presented below, essentially rendering the lower court decision superfluous.); Hayes
v. State, 488 So. 2d 77, 81 n.3 (Fla. Dist. Ct. App. 1986) ([A]ppellee, State of Florida, filed
a request for us to take . . . judicial notice that . . . the Punta Gorda Police Department had
possession of an F.B.I. report which showed that [defendant] had an arrest record in 1972.
. . . We decline to take such judicial notice in rendering this decision since we must rely
upon the record of the facts as they were revealed to the trial court.); Brant v. Rosen, No.
5-04-0516, 2007 WL 1246973, at *9 (Ill. App. Ct. Apr. 27, 2007) (We decline to take
judicial notice of these documents when they were never submitted to the trial court.); Williams v. Williams, 17 S.W.3d 559, 561 n.4 (Mo. Ct. App. 1999) ([W]e agree with the
dissent that we could take judicial notice of life expectancy and annuity tables . . ., but we
decline to . . . because the record demonstrates that it was not raised before the trial court.); State v. Gagnon, No. 2006-373, 2007 WL 1362902, at *3 (N.H. May 10, 2007) ([W]e
decline to use the budget as a source to take judicial notice for the first time on appeal . . .
because we decline to exercise our discretion on matters not presented to the trial court.); Snyder v. Snyder, No. 99-G-2230, 2000 WL 1876614, at *10 (Ohio Ct. App. Dec. 22, 2000)
(We decline to now take judicial notice of a fact which was not drawn to the attention of the
trial court.); Masters v. Rodgers Dev. Group, 283 S.C. 251, 256, 321 S.E.2d 194, 197 (Ct.
App. 1984) (Appellate courts are generally reluctant to notice adjudicative facts. . . . Notice
of 'facts' for the first time on appeal may deny the adverse party the opportunity to contest
the matters noticed; it may also violate the general principle that appellate review should be
limited to the record. (citations omitted)); Stephens v. Dallas Area Rapid Transit, 50 S.W.3d
621, 634 (Tex. App. 2001) (Appellee . . . has requested this Court to take judicial notice of
. . . its personnel policy manual. Because these portions of the manual were not before the
trial court, they would not properly be before us even if we took judicial notice of them. We
decline to take judicial notice . . . of the . . . personnel policy manual.); Finlayson v.
Finlayson, 874 P.2d 843, 847-48 (Utah Ct. App. 1994) (With very limited exceptions,
judicial notice should not be used to get around the rule precluding raising issues for the first
time on appeal. . . . We therefore decline to take judicial notice, given there is no compelling
countervailing principle to be served in taking such notice and given the trial court supported
its conclusion with evidence not related to the [issue in question]).
It is clear from the above authorities that the majority opinion correctly
declined to take judicial notice of the Board's Policy Manual. As one court noted, an
appellate court is naturally reluctant to take judicial notice of matters . . . promulgated by
. . . agencies when the trial court was not requested to do so and was not given an opportunity
to examine the necessary source material. Sparkman v. Maxwell, 519 S.W.2d 852, 855
Based upon the foregoing, I respectfully concur. I am authorized to state that
Justice Maynard joins me in this concurring opinion.
As pointed out in the majority opinion, this Court denied the appellant's request to
supplement the record to add the Policy Manual in this appeal. See Powderidge Unit Owners
Ass'n v. Highland Props., Ltd.
, 196 W. Va. 692, 700, 474 S.E.2d 872, 880 (1996) ([T]his
Court for obvious reasons, will not consider evidence or arguments that were not presented
to the circuit court for its consideration in ruling on [a] motion [for summary judgment].).
The dissenting opinion has quoted language from the order, denying appellant's request to
supplement the record with the Policy Manual, which suggested that the Policy Manual was
before this Court. Obviously, as known by the dissent, that language was in error because
this Court denied the motion to supplement the record.
The issue of judicial notice of adjudicative facts is addressed in Rule 201 of the West
Virginia Rules of Evidence as follows:
(a) Scope of Rule. This rule governs only judicial notice
of adjudicative facts.
(b) Kinds of Facts. 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.
(c) When Discretionary. A court may take judicial notice,
whether requested or not.
(d) When Mandatory. A court shall take judicial notice if
requested by a party and supplied with the necessary
(e) Opportunity to Be Heard. 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.
(f) Time of Taking Notice. Judicial notice may be taken
at any stage of the proceeding.
(g) Instructing Jury. In a civil action or proceeding, the
court shall instruct the jury to accept as conclusive any fact
judicially noticed. In a criminal case, the court shall instruct the
jury that it may, but is not required to, accept as conclusive any
fact judicially noticed.
The issue of judicial notice of law is addressed in Rule 202 of the West Virginia
Rules of Evidence as follows:
(a) When Mandatory. A court shall take judicial notice
without request by a party of the common law, constitutions, and
public statutes in force in every state, territory, and jurisdiction
of the United States.
(b) When Discretionary. A court may take judicial notice
without request by a party of (1) private acts and resolutions of
the Congress of the United States and of the legislature of West
Virginia and ordinances and regulations of governmental
subdivisions or agencies of West Virginia and the United States;
and (2) the laws of foreign countries.
(c) When Conditionally Mandatory. A court shall take
judicial notice of each matter specified in paragraph (b) of this
rule if a party requests it and (1) furnishes the court sufficient
information to enable it properly to comply with the request and
(2) has given each adverse party such notice as the court may
require to enable the adverse party to prepare to meet the
By statute it is mandatory for this Court to take judicial notice of local or private acts
and resolutions of the Legislature that were relied upon by the trial court. See
W. Va. Code
§ 57-1-2 (1923) (Repl. Vol. 2005) ([A]n appellate court shall take judicial notice of [local
or private acts and resolutions of the Legislature] as appear to have been relied on in the
court below.). See also
Syl. pt. 4, Groves v. County Court of Grant County
, 42 W. Va. 587,
26 S.E. 460 (1896) (This court takes judicial notice of all such acts and resolutions of the
legislature, though local and private, as appear to have been relied on in the court below.).
The defendant's truck was parked with its rear in the way of traffic.