Alaska Comm. R. Evid. 202

As amended through December 18, 2024
Rule 202 - Judicial Notice of Law
(a)Scope of Rule. The Federal Rules of Evidence contain no provision analogous to this Rule. Expressing the view that the manner in which law is "fed into the judicial process" is not the proper concern of rules of evidence, the Advisory Committee recognizes Rule 44.1 of the Federal Rules of Civil Procedure and Rule 26.1 of the Federal Rules of Criminal Procedure as governing the method of invoking the law of foreign countries. However, in adopting Rules of Evidence based on the Federal Rules, Nevada provides for judicial notice of matters of law. See Nevada Rule of Evidence 47.140. Because Alaska R. Civ. P. 43(a), superseded by this Rule, combined judicial notice of law and fact, and because the failure of a court to take judicial notice of law may result in proof being offered by the parties, Rule 202 follows Nevada's lead in including a provision for judicial notice of law among evidence rules. This Rule governs judicial notice of domestic laws and regulations, and both foreign and international law.
(b)Without Request -- Mandatory. Under this subdivision, judicial notice of the laws of sister states is not mandatory upon the court. For some time judicial notice has only been taken of a state's own laws and the laws of the federal government. It has been necessary to both plead and prove the law of other jurisdictions. In 1936 the National Conference of Commissioners on Uniform State Laws drafted the Uniform Judicial Notice of Foreign Law Act which was adopted in substance by over half the jurisdictions (withdrawn in 1966). In effect, this Act provided that every court within the adopting jurisdiction must take judicial notice of the common law and statutes of every other state. This was also the approach of Uniform Rule 9 (1953). Alaska R. Civ. P. 43(a), superseded by this Rule accepted the reform. This subdivision does not make notice mandatory because the Committee on Rules believed that the realities of law practice in Alaska, especially the availability of books, was such that parties should be encouraged to provide the court and opposing counsel with copies of sister states' laws. It is important to recognize that a court will take notice of sister state law if a proper request and presentation are made, or if the court decides to exercise its option to take notice under subdivision (c), infra.
(c)Without Request -- Optional. This subdivision defines the discretionary power of the court to take judicial notice on its own initiative.

Section (1) recognizes that federal rules, and state and territorial laws may often be difficult to find in Alaska libraries. However, where the court is in possession of relevant material, notice may be taken.

Section (2) is very similar to Uniform Rule 9(2) (a), which was based on the Model Code of Evidence, Rule 802(a) (1942). Where private acts and resolutions are easily ascertained the court can conveniently take judicial notice of them and often will. Where agency regulations operate with the power of law there is every reason to take judicial notice of them. See AS 44.62.110, providing for judicial notice of regulations printed in the Alaska Administrative Code or Alaska Administrative Register. See also 44 U.S.C.A. § 1507, providing for judicial notice of the contents of the Federal Register; and Alaska Airlines, Inc. v. Northwest Airlines, Inc., 228 F. Supp. 322 (D. Alaska 1964), cert. denied, 383 U.S. 936, 15 L.Ed. 2d 853 (1965). Due to the difficulty of ascertaining all such acts, resolutions, regulations and ordinances as may be applicable to a case, the court need only take judicial notice on its own initiative where it is convenient to do so. See Australaska Corp. v. Sisters of Charity, 397 P.2d 966 (Alaska 1965).

Section (3) expands the scope of judicial notice. It recognizes that today there is no reason to conclusively presume that the law of sister states is beyond the reach of Alaska. Sometimes acts, regulations, and local ordinances of other states will be unavailable. If so the court will not have to take notice of them, because this section is permissive and Subdivision (d) places a burden of producing sufficient information on a party before notice must be taken. If Subdivision (d) is satisfied, there is no good reason not to take notice. A similar view is taken with respect to emergency and unpublished regulations of Alaska agencies.

Section (4) provides for discretionary notice of foreign law and international law. Long after the law of foreign states became a matter of judicial notice in many jurisdictions, the law of foreign countries remained a matter of fact to be pleaded and proved. The Uniform Judicial Notice of Foreign Law Act, although only applicable to the law of sister states, did state that determining the law of foreign countries ought to be an issue for the court, not the jury. See 9A Uniform Laws Ann. 550, 569 (1965). Foreign law still had to be pleaded and proved even after some states took the determination of foreign law from the jury. Where it was not pleaded or properly proved, dismissal was usually avoided by presuming the foreign law to be the same as the law of the forum. See Stern, Foreign Law in the Courts: Judicial Notice and Proof, 45 Cal. L. Rev. 23 (1957).

Federal R. Civ. P. 44.1 and its identical counterpart, Crim. R. P. 26.1 require that to raise an issue of foreign law, either notice must be given in the pleadings or other reasonable notice must be given. In determining foreign law, the court "may consider any relevant material or source, including testimony." The notice requirement functions to alert the parties that foreign law is an issue in the case.

Evidence Rule 202 treats foreign law as the proper subject of judicial notice. This is the view taken by Uniform Rule 9(2) (b) and by Alaska R. Civ. P. 43(a) (2) [b], superseded by this Rule. The court may look to any pertinent source of information including the testimony of expert witnesses to ascertain foreign law.

Section (2) also provides for judicial notice of international law. It was early stated that [i]nternational law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdictions as often as questions of right depending upon it are duly presented for their determination.

The Paquete Habana, 175 U.S. 677, 700, 44 L.Ed. 320, 328 (1899).

In ascertaining international law the court may consult and use any source of pertinent information. Just as in English canon law experts played a large part in determining foreign law, it is anticipated that expert testimony may play a role in showing what foreign and international law is in a given situation. See Texas v. Louisiana, 410 U.S. 702, 35 L.Ed. 2d 646 (1973); Panel, "Proving International Law in a National Forum," 70 Am. Soc'y Int'l L. (1976). Maritime law is treated similarly.

Section (5) provides that if a matter of law could be noticed under this Rule, but the law has been repealed or replaced, it still may be proved by judicial notice, if it remains relevant to the case.

(d)With Request -- Mandatory. At the request of a party the court shall take notice of any matter included in subdivision (c). If the party's request is accompanied by sufficient information and adequate notice to adverse parties, it is mandatory that the court take judicial notice. The difficulty of finding all applicable law and obtaining proper information under subdivision (c) disappears when the requirements of this subdivision are satisfied. The notice requirement to adverse parties provides the opportunity for a chance to be heard on the propriety of taking judicial notice of the matter.

Alaska Comm. R. Evid. 202