Alaska Comm. R. Evid. 201
The term "judicial notice" has been indiscriminately applied to several different aspects of the decisional process. Many of these aspects will not be affected by this Rule.
One aspect not covered by Rule 201 involves assumptions made by the court in its determination of policy; e.g., that a particular change in the law would probably do more harm than good. This is not the sort of fact question that, in a jury trial, would normally be put to the jury, and so is not subsumed by Rule 201 's definition of "judicial notice of fact." Rather than findings of fact, these are policy determinations made by the court acting in its lawmaking capacity. The court as lawmaker is held to the same standard as the legislature is for the veracity of its inferences: it must be rational. The court taking judicial notice of a fact as that term is used in Rule 201 is held to a different and more demanding standard --the same standard required for it to direct a verdict; it must be right, meaning that rational minds would not dispute the fact that the court notices.
Stated more specifically, Rule 201 does not bar:
Rule 201 follows the existing Alaska practice regarding scope of judicial notice rather than adopting the federal practice of separating facts into "adjudicative" and "legislative" categories. This dichotomy is rejected as an unnecessary and artificial description of the difference between taking judicial notice of a fact and making assumptions in the determination of policy. The terms used in the Federal Rule are ambiguous and overlap. See Goodman v. Stalfort, Inc., 411 F. Supp. 889 (D. N.J. 1976), for an example of a court's struggle to come to grips with the categories.
Alaska Rule 201 requires a determination of whether a question is one normally decided by the trier of fact or is the sort properly left to the maker of law. While this determination is not always easy to make, it is one that courts have coped with for many years. Simply stated, the guiding principle should be: if the fact involved tends to show that general conduct X is or is not, or should or should not, be against the law (or unconstitutional), it is for the court to consider freely; if the fact involved tends to prove an instance of X, it is a question for the trier of fact and covered by Rule 201.
The reason we use trial-type procedure, I think, is that we make the practical judgment, on the basis of experience, that taking evidence, subject to cross-examination and rebuttal, is the best way to resolve controversies involving disputes of adjudicative facts, that is, facts pertaining to the parties. The reason we require a determination on the record is that we think fair procedure in resolving disputes of adjudicative facts calls for giving each party a chance to meet in the appropriate fashion the facts that come to the tribunal's attention, and the appropriate fashion for meeting disputed adjudicative facts includes rebuttal evidence, cross-examination, usually confrontation, and argument (either oral or written or both). The key to a fair trial is opportunity to use the appropriate weapons (rebuttal evidence, cross-examination, and argument) to meet adverse materials that come to the tribunal's attention.
A System of Judicial Notice Based on Fairness and Convenience, in Perspectives of Law 69, at 93 (1964). Rule 201 is based on the belief that wherever a lawmaking authority conditions the applicability of a law on the proof of facts, these considerations call for dispensing with traditional methods of proof only in clear cases regardless of what label is attached to the facts. Compare Professor Davis' conclusion that judicial notice should be a matter of convenience, subject to the requirements of procedural fairness. Id. at 94.
For the most part this Rule is consistent with both Federal Rule 201 and the now superseded Alaska Rule of Civil Procedure 43(a), which was based on Uniform Rule 9. Rule 201 limits judicial notice to facts not subject to reasonable dispute in that they are either generally known in the territorial jurisdiction of the trial court or are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be doubted.
These general categories (matters of common knowledge, readily verifiable facts) have traditionally been treated as the clearest cases for judicial notice. See McCormick §§ 328-330. Like the Federal Rule, this Rule omits any mention of propositions of generalized knowledge, which were included in Uniform Rule 9(1) and (2). It is doubtful that many such propositions will fall within the scope of Rule 201 as limited by subdivision (a). Any that do must satisfy the condition of subdivision (b) in order to be judicially noticed. For instance, it is not proper for a court to base its decision on the unsupported belief that "no one could be so naive as to believe that a small advisory service with only 5,000 subscribers could by its own recommending influence cause such stocks as Union Pacific (22,000,000 shares outstanding), . . . invariably and automatically to rise so that defendants could always sell their small holdings at a small profit." Securities and Exchange Commission v. Capital Gains Research Bureau, 300 F.2d 745, at 748 (2d Cir. 1961), reversed and remanded on other grounds 375 U. S. 180, 11 L.Ed.2d 237 (1963).
Lack of information should not be confused with indisputability. If the information before the court, whether or not furnished by the parties, is insufficient to satisfy subdivision (b) or fails to clearly convince the court that a matter should be judicially noticed, the court should decline to take judicial notice and require proof in the usual manner, although the court considers the fact more probable than not. An adequate development of the facts at trial in a jury case protects a party's right to have questions of fact resolved by the jury, and, in a non-jury case, assures the parties the power to cross-examine and submit contrary evidence.
Federal Rule 201(c) and (d) are very similar to this Rule. Compare Uniform Rule 9, making judicial notice of facts universally known mandatory without request, and making judicial notice of facts generally known in the jurisdiction or capable of determination by resort to accurate sources discretionary in the absence of request, but mandatory if request is made and the information furnished. But see Uniform Rule 10(3), which directs the judge to decline to take judicial notice if available information fails to convince him that the matter falls clearly within Uniform Rule 9 or is insufficient to enable him to notice it judicially. Substantially the same approach is found in California Evidence Code § § 451-453 and in New Jersey Evidence Rule 9. In contrast, the present Rule treats alike all facts which are subject to judicial notice.
Alaska Comm. R. Evid. 201