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Univ. of South Carolina School of Law

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Wednesday, February 8, 2012

Going Unnoticed: Sixth Circuit Refuses To Take Judicial Notice In Door-To-Door Canvassing Case

Federal Rule of Evidence 201(b) provides that

The court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

So, let's say that a public interest group files a § 1983 action challenging the constitutionality of an ordinance passed in a suburb of Dayton banning all door-to-door canvassing and soliciting between 6 P.M. and 9 A.M. Can the court take judicial notice

-that like many metropolitan areas in the United States, Dayton and its surroundings face difficult, if not severe, economic times; and/or

-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.?

Well, let's take a look at the recent opinion of the Sixth Circuit in Ohio Citizen Action v. City of Englewood, 2012 WL 310816 (6th Cir. 2012).

In Ohio Citizen Action, the facts were as stated above, with Ohio Citizen Action claiming that the ordinance was overbroad and thus facially invalid under the First Amendment because it proscribed "a 'substantial' amount of constitutionally protected speech...."

In response, the City of Englewood responded, inter alia,

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 note[d] 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 point[ed] out, OCA itself uses the internet and email to communicate with its members.

Accordingly, the City of Englewood asked the court

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."

In response, the court first found that

we 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.

That said, the court then concluded that

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."

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/02/federal-rule-of-evidence-201b-provides-that-text-so-lets-say-that-a-public-interest-groupfiles-a-1983-action-challeng.html

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