Getty Petroleum Marketing, Inc. v. Capital Terminal Co.

United States Court of Appeals
For the First Circuit

No. 03-2324

GETTY PETROLEUM MARKETING, INC., and
GETTY PROPERTIES CORPORATION,

Plaintiffs, Appellees,

v.

CAPITAL TERMINAL COMPANY and
DUNELLEN, LLC,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Lynch and Lipez, Circuit Judges,
and García-Gregory, District Judge.*

Gerald J. Petros, with whom Charles J. Blackman, Hinckley,
Allen & Snyder, LLP, and Duffy & Sweeney, Ltd were on brief, for
appellants.
James W. Ryan, with whom Robert K. Taylor and Partridge, Snow
& Hahn, LLP were on brief, for appellees.

December 10, 2004

_________________________

* Of the District of Puerto Rico, sitting by designation.
 Per Curiam. This case requires us to determine whether

appellant Capital Terminal Company was entitled to reach a jury on

its claim that certain improvements to a fire suppression system

were required by "regulations" under the terms of its written

agreement with appellee Getty Properties Corporation. At the

conclusion of appellant's case, the district court granted

appellee's motion for judgment as a matter of law because, in the

court's view, appellant had failed to establish a basis for

instructing the jury on the content of such regulations, and hence

could not link the required improvements to those regulations. We

affirm.

I.

Appellant Capital Terminal Company (Capital) owns the

Wilkesbarre Pier (the Pier) in East Providence, 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 in East

Providence.1 Capital owns one of the underground terminals;

appellee Getty Properties Corporation (Getty Properties) owns the

other and leases it to Getty Petroleum Marketing, Inc. (Getty

1
The parties dispute ownership of these pipelines. However,
the issue of ownership of the pipelines is not before this court on
appeal.

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Marketing). Getty Properties also owns a usage interest in the

Pier.

An Operating Agreement executed in 1975 governs the

parties' relationship regarding costs associated with the Pier. In

1997, a dispute arose over the nature and extent of repairs to the

Pier. As a result of this dispute, the parties, including Getty

Properties and Capital's predecessor in interest, agreed to a First

Amendment to the Operating Agreement. That amendment provides that

Getty Properties is responsible for "[t]he cost of compliance with

all City, State, or Federal regulations applicable to the operation

of the pipelines." The term "regulations" is not defined in the

Operating Agreement or the First Amendment to the Operating

Agreement.2

Before 1992, the closest source of pressurized water to

the Pier was a hydrant located on neighboring property owned by the

Union Oil Company of California (Unocal). In the event of a fire,

water from the hydrant would have been used to spray fire-retardant

foam onto the pipelines. In 1992, the East Providence Water

Department shut off water to the hydrant because it was concerned

that chemicals from Unocal's operations might contaminate the water

supply. This action left the Pier without sufficient ability to

2
Hereinafter, we refer to the Operating Agreement and the
First Amendment to the Operating Agreement collectively as "the
Agreement."

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suppress a fire on the pipelines. The parties that used the Pier

began to discuss this problem as early as 1994.

In 1997, the East Providence Fire Department contacted

Capital about the lack of a pressurized water supply on the Pier.

Beginning in 1998 and continuing until 2000, Capital attended a

series of meetings (the Advisory Group meetings) at the Coast

Guard's Marine Safety Office. At these meetings, representatives

of Capital, Unocal, the Coast Guard, the State Fire Marshal's

Office, and the East Providence Fire Department discussed how best

to provide adequate fire suppression services to the Pier. A

representative of Getty Marketing also attended several of the

Advisory Group meetings. The parties dispute whether the

representative of Getty Marketing also represented Getty

Properties.

On May 8, 2000, Capital wrote a letter to Gerald A.

Bessette, Chief of the East Providence Fire Department, setting out

a proposal for fire suppression at the Pier. It included four

specific measures: extension of an existing water main to the Pier,

purchase of a mobile Foam Tote Trailer that the Fire Department

could use to suppress a fire anywhere in the city, installation of

a radio signal alarm box at the Pier, and purchase of a portable

chemical fire extinguisher to be housed at the Pier. The letter

stated that "[t]he estimated total cost for the four . . .

improvements is approximately $200,000." It appears that Capital

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anticipated paying for these improvements, as the letter stated

that "[t]his amount is a major expenditure for [Capital], and

represents a hardship, above which we cannot extend ourselves."

On May 12, 2000, the Advisory Group, including

representatives of both Capital and Getty Marketing, as well as

Chief Bessette, discussed Capital's proposal. The minutes from the

meeting state that "[a]ll of the key players agreed to the

following proposal (summarized) . . . submitted by Capital." The

proposal listed in the minutes included all four measures outlined

in Capital's May 8, 2000, letter, plus the additional measure of

installing a pipeline from the head of the Pier to a separate

manifold area of the Pier.

On May 17, 2000, Chief Bessette sent a letter to Capital,

Getty Marketing, and Getty Properties, stating that "[a]s a result

of a number of [Advisory Group] meetings . . . in regard to a lack

of adequate fire protection at the Wilkesbarre Pier, the following

are minimal acceptable improvements to that facility." The letter

then listed the five improvements that the Advisory Group had

agreed upon during its May 12, 2000, meeting. Shortly thereafter,

Capital demanded that Getty Properties pay for the cost of

implementing the improvements listed in Chief Bessette's letter,

contending that those improvements were required by "regulations"

under the terms of the Agreement between the parties.

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 II.

On August 2, 2000, Getty Properties and Getty Marketing

sought a declaratory judgment from the district court that they

were "not obligated to install a water line or fire suppression

system for the pier." On September 8, 2000, Capital filed a

compulsory counterclaim seeking $300,000 to cover the costs of the

fire suppression system that it had already begun to install. The

district court divided the trial into two phases. In phase one,

the court tried Capital's counterclaim before a jury.3 In phase

two, tried at a later time, the court conducted a bench trial to

address Getty Properties's and Getty Marketing's declaratory

judgment action.4

During the jury trial, Capital introduced into evidence

the historical documents governing interests in the Pier, including

the Agreement between Capital and Getty Properties obligating Getty

Properties to pay "[t]he cost of compliance with all City, State,

or Federal regulations applicable to the operation of the

pipelines." Capital also introduced a report written by Orville

Slye, a consultant hired by Capital to assess the fire suppression

needs on the Pier. That report had been presented to the Advisory

3
Phase one also included Getty Marketing's claim that Capital
had breached a separate agreement -- the "Throughput Agreement" --
by failing to make certain repairs to the Pier. That claim is not
before us on appeal.
4
Phase two also included other claims by Getty Properties and
Getty Marketing that are not relevant to the issues on appeal.

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Group and had been used by Capital in developing its proposal for

fire suppression on the Pier. Capital also introduced the minutes

of the Advisory Group meetings.

At the close of Capital's case, Getty moved for judgment

as a matter of law pursuant to Fed. R. Civ. P. 50(a)(1). Getty

argued that "[t]here has been absolutely no testimony here

regarding any particular regulation or any rule of law that Getty

Properties did not comply with." This statement somewhat misstates

the issue that was before the court. The issue was not whether

Getty Properties had failed to comply with any regulation or rule

of law. Rather, the issue was whether the improvements listed in

Chief Bessette's letter were required in order to comply with

"regulations" as that term was used in the Agreement, and therefore

whether Getty Properties was responsible for paying the cost of

installing those improvements.

In response to this motion, the court pressed Capital to

"point [the court] to the regulation which requires the

installation of the fire suppression system that you seek

compensation for." Capital directed the court to R.I. Gen. Laws §

23-28.22-5,5 which with an exception not relevant here, states:

5
In June 2004, Rhode Island repealed R.I. Gen. Laws § 23-
28.22-5 and other portions of Chapter 23 as part of an overhaul of
its fire safety laws. See 2004 R.I. Pub. Laws 225. However, to
properly address whether the improvements listed in Chief
Bessette's letter of May 17, 2000, were "regulations," we refer to
Rhode Island law as it existed at the time of that letter, that is,
the provisions in effect in 2000.

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"The construction, installation, use, storage, and maintenance of

facilities storing, using, and dispensing flammable and combustible

liquids within the scope of this chapter shall be in accordance

with N.F.P.A. Standard 30, 1987 edition." Capital asserted that

the 1987 edition of the National Fire Protection Association

Standard 30 (NFPA 30), a "Flammable and Combustible Liquids Code"

developed by a nongovernmental entity, was incorporated into Rhode

Island law pursuant to R.I. Gen. Laws § 23-28.22-5, and thus

constituted a "regulation" for the purposes of the Agreement.6

The court asked Capital where the regulation was and

Capital responded, "I can get a copy, I suppose." When asked

whether it was introduced into evidence, Capital responded, "It's

a matter of law, your Honor." The court continued to push Capital,

stating, "Show me the Rhode Island Building Code which you say has

force of law," to which Capital responded, "I don't have the

6
R.I. Gen. Laws § 23-28.22-1 governs the applicability of R.I.
Gen. Laws § 23-28.22-5. It provides that the provisions of Chapter
28.22 ("Flammable and Combustible Liquids") "shall not apply to
existing buildings, plants, structures, or equipment now used for
flammable liquids unless the enforcing officer shall determine that
the conditions constitute a distinct hazard." R.I. Gen. Laws § 23-
28.22-1(b). The record indicates that the pipelines in this case
qualify as "existing buildings, plants, structures, or equipment."
However, the district court found that, "[g]iving [Chief Bessette's
letter] the most generous reading that I can and drawing all
reasonable inferences in favor of Capital Terminal," Chief Bessette
had determined that the lack of a fire suppression system on the
pier was a distinct hazard. The district court therefore
determined that "the flammable and combustible liquids chapter of
the Rhode Island General Laws does apply."

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building code." The court articulated its belief that the Standard

should be part of Capital's papers in the case.

The court then asked for the citation. Capital

responded, "It is NFPA 30 and the Rhode Island Building Code, your

Honor, and I will find it and bring it to you, I promise, or at

least I should say I will find it and try to bring it to you." The

court stated that the violation of a regulation was the "bedrock of

[Capital's] claim against Getty" and that it was Capital's

"obligation as the party pressing the claim not only to set forth

the facts that support [the] claim but to set forth the law." The

court observed that Capital had not cited a specific provision of

NFPA 30 that required the introduction of the fire suppression

equipment, let alone given the court a copy of NFPA 30:

[Y]ou rested, but you have not directed me to
any specific regulation. . . . But I'm asking
you to give me a copy of the regulation that
you say supports your argument on this point.
Because if it's not there . . . you will lose
on this claim. It's as simple as that.

Noting that it had looked unsuccessfully for NFPA 30, the court

took a short recess to give Capital time to obtain a copy.

After a recess, the court asked counsel for Capital

whether he was "able in the recess to identify a specific statute,

ordinance, regulation, anything that specifically covers the fire

suppression system that we've been talking about[.]" Capital

simply offered R.I. Gen. Laws § 23-28.22-5; counsel admitted that

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he had a 2000 edition of NFPA 30 but not the 1987 edition. The

court stated:

The problem I have is this. This statute
makes reference to a document. It is not
incorporated, that is, the text of the
document is not incorporated into the statute.
There is nothing before this jury from which
it can make a determination that Getty had an
obligation to comply with certain provisions.

The court noted that Slye, Capital's expert, never stated what was

required by NFPA 30; in fact, he stated that his own

recommendations exceeded NFPA 30's requirements. The court

continued to press Capital:

Where is there anything in the record other
than the reference to this standard or set of
standards that addresses the precise issue in
this case. . . . All you have is the
reference.

The court then commented ominously on the significance of

NFPA 30's absence from the case: "Nobody knows what it says at this

point, but most importantly the jury and I do not know what it

says." Capital responded that the court was confusing issues of

law with issues of fact:

It's not a question of fact, your Honor. This
is a question of law . . . . [Y]our Honor
wouldn't give [the jury] the statute. Your
Honor would, I suspect, charge as to what the
law is. If your Honor believes that NFPA 30
is now the building code law of the State of
Rhode Island, I would expect you to charge
that. I believe that if I had tried to offer
either the General Laws or [NFPA 30] in
evidence, that an objection would have been
made and sustained. It's a matter of law.

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The court was not convinced by Capital's argument, noting, "I'm not

so sure . . . . But I think you've got a hole in your case."

Capital continued:

The point of the matter is that this is now a
matter of law. We will submit a memorandum at
the earliest possible time, and it will be
quickly, to show you what NFPA 30 is and that
it is the law and ask you to charge the jury
accordingly.

The court reminded Capital, "I need the '87 version," and asked,

"Who's got it?" Although counsel offered to get a copy of the 1987

edition of NFPA 30, the court said it was "too late" and admonished

that "[i]f this is what your client is hanging its hat on, this is

something that should have been provided to the Court a long time

ago, not now."

The district court granted Getty Properties's motion for

judgment as a matter of law.7 In reaching its conclusion, the

court probed the nature of NFPA 30. The court noted that NFPA

standards were promulgated by the National Fire Protection

Association, which is a private industry board. From an

evidentiary standpoint, the court believed that because the private

standard was not incorporated into the text of the state statute,

but rather was simply referenced, Capital was required to introduce

NFPA 30 into evidence. The court believed that the problem with

7
The jury trial continued on Getty Marketing's claim that
Capital had breached the "Throughput Agreement." On December 19,
2002, the jury found in favor of Getty Marketing and awarded
damages of $100,000.

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Capital's case was that, "even taking all of the [evidence

introduced at trial] into account, there is absolutely not one

shred of evidence in the case linking the [recommendations of Chief

Bessette] to the 1987 edition of NFPA 30."

In its written order of December 20, 2002, the court

further explained its decision, stating the "dispositive issue" was

"whether there was any evidence that the items listed in Chief

Bessette's letter were in accordance with the standards set forth

in NFPA 30, 1987 edition." The court noted that "[t]he NFPA 30,

1987 edition manual was never offered as an exhibit, and is not

part of the evidence in this case." It further stated that "the

only testimony concerning what was or was not required on the Pier

in the way of fire protection equipment came from Orville Slye,

Jr." The court added that the recommendations in Slye's report, by

the report's own terms, exceeded "minimal, non-mandatory, fire

protection recommended by NFPA 30." The district court concluded

that "[n]owhere does the Slye Report indicate that the

recommendations contained therein are in accordance with the NFPA

30, 1987 edition. Moreover, the report does not state that

recommended Pier improvements are required by statute, ordinance,

or any regulation whatsoever."

In the absence of evidence linking the improvements

listed in Chief Bessette's letter to the requirements of NFPA 30,

the court determined that no reasonable jury could find that those

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improvements were required by "regulations." The court stated that

"[n]owhere in Chief Bessette's letter does he reference a Rhode

Island state statute, city ordinance, or other regulation requiring

installation of the listed items, nor does he mention the NFPA 30,

1987 edition or state that the items listed are in accordance with

NFPA standards." The court concluded that "the failure to make an

evidentiary link between items listed in Chief Bessette's letter

with a corresponding regulation is fatal to plaintiff's claim."8

8
On June 23, 2003, the court proceeded to phase two of the
trial. At the conclusion of phase two, it ruled that Getty
Properties had failed to prove that it was not obligated to install
a fire suppression system on the Pier. Capital contends that the
district court's grant of Getty Properties's Rule 50 motion in
phase one of the trial is inconsistent with its ruling against
Getty Properties in phase two of the trial. There is no necessary
inconsistency in these two rulings. The Rule 50 motion argued only
that Capital had not introduced sufficient evidence to demonstrate
that the improvements listed in Chief Bessette's letter were
required by "regulations." That ruling, however, did not require
the district court to hold, in phase two of the trial, that Getty
Properties had met its burden to demonstrate that it was not
obligated to install a fire suppression system on the Pier. In its
phase two decision, the court explained that its ruling in phase
one of the trial (addressing Capital's counterclaim) had not
decided Getty's declaratory judgment claim on the merits:

As the party seeking the declaratory judgment,
Getty [Properties] had an obligation to come
forward with evidence that established, for
instance, that the installation of the fire
suppression equipment on the Wilkesbarre Pier
is not required by city, state, or federal
regulation, or, in other words, that it has no
obligation to install such equipment on the
Pier. In this, it failed.

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 On appeal, Capital argues that a reasonable jury could

have found that the improvements listed in Chief Bessette's letter

were required by "regulations." Capital's primary arguments are

that (1) the court should have taken judicial notice of the

contents of NFPA 30 because NFPA 30 is part of Rhode Island law and

thus the judge was responsible for instructing the jury as to its

requirements, and (2) the evidence at trial indicated that the

improvements in Chief Bessette's letter were required by the

regulatory authority of the City of East Providence, the State Fire

Marshal, and the Coast Guard.9

9
Capital also argues that it was "ambushed" by Getty
Properties's Rule 50(a) motion because Getty Properties had
admitted in its pleadings that the improvements listed in Chief
Bessette's letter were "required." In its Second Amended
Complaint, Getty Properties states:

Through its Fire Chief, the City of East
Providence has indicated that there is
inadequate fire protection on the Pier and has
set forth certain minimum requirements for
necessary improvements to the Pier or else the
Pier will be closed.

Capital over reads the statement, which does not admit that the
improvements listed in Chief Bessette's letter were required by
"regulations." The statement just acknowledges the obvious fact
that the Chief required the improvements. Moreover, Capital did
not raise this "ambush" argument before the district court until
phase two of the trial, well after the court had ruled on Getty
Properties's Rule 50 motion. Therefore, even if the "ambush"
argument had any validity, it has been forfeited. See, e.g.,
Violette v. Smith & Nephew Dyonics, Inc., 62 F.3d 8, 10 (1st Cir.
1995).

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 III.

"We review the grant of a motion for judgment as a matter

of law de novo." McLane, Graf, Raulerson & Middleton, P.A. v.

Rechberger, 280 F.3d 26, 39 (1st Cir. 2002). In ruling on Getty

Properties's Rule 50(a) motion, the district court held that the

jury could not decide whether "Getty [Properties] had an obligation

to comply with certain provisions" of NFPA without a copy of NFPA

30 being presented.

The contract language at issue provides that Getty

Properties is responsible for "[t]he cost of compliance with all

City, State, or Federal regulations applicable to the operation of

the pipelines." Although the word "regulations" is not defined in

the contract, the word unmistakably means that Getty Properties is

only responsible for the cost of improvements required by city,

state, or federal law.10

We deal quickly with Capital's second argument that

independent of NFPA 30, the evidence introduced at trial permitted

a jury to find the improvements were required by city, state, or

federal regulations, and thus Getty was liable for the cost of the

improvements to the Pier. That is simply not so. Even Capital's

expert did not testify to that effect, but rather said the plan

10
The district court opinion confirms that "[t]he parties do
not dispute that the term 'regulation', which is not defined in the
Operating Agreement, refers to a rule or order having the force of
law."

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exceeded the NFPA recommendations. Indeed, Capital's main

argument, then and now, turns on the assertion that the Rhode

Island statute which references NFPA 30 requires the improvements

made to the Pier and is the regulation which, under the Agreement,

makes Getty responsible.

We now turn to this argument. Capital contends that the

court should have determined the requirements of Rhode Island law

pursuant to its responsibility to determine the law applicable to

the case, and then instructed the jury on those requirements.

Since Rhode Island law provides that "facilities storing, using,

and dispensing flammable and combustible liquids within the scope

of this chapter shall be in accordance with N.F.P.A. Standard 30,

1987 edition," R.I. Gen. Laws § 23-28.22-5 (emphasis added),

Capital argues, NFPA 30 is part of the law of Rhode Island and

hence, as argued in its brief, "[i]t was never [Capital's]

obligation to prove what the law is." Capital maintains the court

was obligated to take judicial notice of the law, in this case,

NFPA 30. Although counsel did not use the words "judicial notice"

in his argument before the district court, we will take it, in his

favor, that the court understood his request in those terms.

We disagree, however, that the court was required to take

judicial notice of NFPA 30. After Getty moved for judgment as a

matter of law pursuant to Fed. R. Civ. P. 50(a)(1), the court asked

Capital for a copy of NFPA 30, referenced in Rhode Island General

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Laws § 23-28.22-5. The court indicated that it had looked for a

copy and was unable to locate one. After a brief recess, Capital

still could not provide the court with a copy; Capital simply

pointed to the Rhode Island statute that referenced the standard.

On appeal, Capital's argument is that the court was required to

take judicial notice of NFPA 30, regardless.

Generally, in the federal system, "[t]he law of any state

of the Union, whether depending upon statutes or upon judicial

opinions, is a matter of which the courts of the United States are

bound to take judicial notice without plea or proof." Lamar v.

Micou, 114 U.S. 218, 223 (1885); White v. Gittens, 121 F.3d 803,

805 n.1 (1st Cir. 1997). Municipal ordinances and private codes

referred to in statutes historically have not been included within

this general rule of judicial notice of law. Under traditional

rules, even a municipal ordinance must be put into evidence. See

Gardner v. Capital Transit Co., 152 F.2d 288, 290 (D.C. Cir.

1945)(affirming trial court's refusal to take judicial notice of or

instruct the jury regarding a District of Columbia ordinance that

appellant had not proven, because "municipal ordinances may not be

judicially noticed by courts of general jurisdiction"); Robinson v.

Denver City Tramway Co., 164 F. 174 (8th Cir. 1908)("[T]o make [an

ordinance] available in establishing a charge of negligence, it

must be pleaded, like any other fact of which judicial notice will

not be taken."); Town of Lincoln v. Cournoyer, 186 A.2d 728, 730

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(R.I. 1962) ("It is generally held that the doctrine of judicial

notice will not be extended to the enactment of specific municipal

ordinances or to the specific provisions of such municipal

ordinances."); 2 John Strong, McCormick on Evidence § 335 (5th ed.

1999)("Private laws and municipal ordinances . . . are not commonly

included within the doctrine of judicial notice of law and these

must be pleaded and proved."); 9 Wigmore, Evidence, § 2572

(Chadbourn rev. 1981) ("[O]rdinances and regulations of local

government boards and councils are usually not noticed.").

We do not know if the court would have taken judicial

notice of NFPA 30, if Capital had provided the district court with

an appropriately certified copy of the 1987 version of it. But

Capital chose not to do so (and apparently did not itself have the

correct version of the Standard). Nor was NFPA 30 readily

available.

Indeed the court informed Capital that it had tried to

find the correct version and had been unsuccessful. Even those

courts which have more liberally construed the rules of judicial

notice as to local ordinances and codes do so only when the law to

be noticed is readily available and there are no issues about

accuracy or authenticity. See Melton v. Oklahoma City, 879 F.2d

706, 724 n.25 (10th Cir. 1989)(taking judicial notice of matters

when they are not subject to reasonable dispute and the accuracy

cannot be questioned); Newcomb v. Brennan, 558 F.2d 825, 829 (7th

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Cir. 1977) (noting that city ordinances can be judicially noticed

because they fall within the category of "common knowledge"). That

is the opposite of this situation.11

The court's conclusion that Capital's case failed for

lack of an essential element of the case was correct, and the court

properly entered judgment as a matter of law for Getty, pursuant to

Fed. R. Civ. P. 50(a)(1). Accordingly, we affirm the decision of

the district court. Costs are awarded to Getty.

(Concurrence follows.)

11
At least one member of the majority has reservations about
the analysis set forth in the concurring opinion.

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 LIPEZ, Circuit Judge, concurring. Although I concur in

the per curiam opinion of my colleagues affirming the decision of

the district court, I write separately to discuss the doctrine of

judicial notice of law generally, some important changes taking

place in the application of that doctrine to municipal ordinances

and mandatory safety codes, and the relevance of those changes to

the judicial notice request made by Capital in this case.

Recognizing that this discussion is not precedent, I nevertheless

hope that the discussion will inform the judicial notice of law

analysis when comparable judicial notice of law issues arise in

future cases.

I.

A. Judicial Notice Generally

To assess Capital's contention that the district court

was required to take judicial notice of NFPA 30, I first

distinguish two concepts lumped together under the rubric of

judicial notice: judicial notice of fact and judicial notice of

law. Judicial notice of fact is an evidentiary shortcut. It

permits facts in a particular case to be established without proof

by admissible evidence if they are "not subject to reasonable

dispute" by virtue of being "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

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accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b).12

For example, if it is necessary to establish that an offense took

place within the special maritime and territorial jurisdiction of

the United States, the court may take judicial notice that the site

of the offense was, in fact, federal property. See United States

v. Bello, 194 F.3d 18, 26 (1st Cir. 1999) (trial court did not err

in taking judicial notice that a certain prison was within

exclusive federal jurisdiction).

Judicial notice of law is the name given to the

commonsense doctrine that the rules of evidence governing

admissibility and proof of documents generally do not make sense to

apply to statutes or judicial opinions -- which are technically

documents -- because they are presented to the court as law, not to

the jury as evidence. See John W. Strong, McCormick on Evidence

§ 335 (5th ed. 1999) ("The heavy-footed common law system of proof

12
The discussion above applies to judicial notice of
"adjudicative" facts, not judicial notice of "legislative" facts.
This distinction is not material in this case, but I summarize it
briefly for purposes of completeness. "Adjudicative" facts, which
are governed by Fed. R. Evid. 201, are "simply the facts of the
particular case." Fed. R. Evid. 201(a) advisory committee's note.
"Legislative facts," by contrast, include facts "which have
relevance to legal reasoning and the lawmaking process, whether in
the formulation of a legal principle or ruling by a judge or court
or in the enactment of a legislative body." Id. For example, in
Muller v. Oregon, 208 U.S. 412, 419-21 & n.1 (1908), the Supreme
Court took judicial notice of extensive sociological research that
supported shorter working hours for women in evaluating the
rationality of statutes mandating such hours. Judicial notice of
legislative facts is not governed by Rule 201. Fed. R. Evid.
201(a); Fed. R. Evid. 201(a) advisory committee's note.

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by witnesses and authenticated documents is too slow and cumbrous

for the judge's task of finding what the applicable law is."). In

the federal system, "[t]he law of any state of the Union, whether

depending upon statutes or upon judicial opinions, is a matter of

which the courts of the United States are bound to take judicial

notice, without plea or proof." Lamar v. Micou, 114 U.S. 218, 223

(1885); White v. Gittens, 121 F.3d 803, 805 n.1 (1st Cir. 1997).13

Although judicial notice of fact and judicial notice of

law share the phrase "judicial notice," they draw on different

rules of practice. Rule 201 "governs only judicial notice of

adjudicative facts." Fed. R. Evid. 201(a). Judicial notice of law

is outside the scope of Rule 201, and derives from practical

considerations and case law that do not rely on Rule 201 or

principles of evidence.14

13
Within the federal court system, the doctrine of judicial
notice of state court decisions also contains an element of
federal-state comity, and federal courts occasionally distinguish
their obligations from those of state courts, which in some cases
require proof of sister state statutes or judicial decisions. See,
e.g., In re Paramount Publix Corp., 85 F.2d 83, 86 (2d Cir. 1936).
14
A footnote in White suggests in dictum that judicial notice
of law emanates from Rule 201(b). See 121 F.3d at 805 n.1.
However, this is not correct. The Advisory Committee specifically
disclaimed any intent to address judicial notice of law because
"the manner in which law is fed into the judicial process is never
a proper concern of the rules of evidence but rather of the rules
of procedure," and instead "suggest[ed] that those matters of law
which . . . have traditionally been treated as requiring pleading
and proof and more recently as the subject of judicial notice be
left to the Rules of Civil and Criminal Procedure." Fed. R. Evid.
201 advisory committee's note. Rule 201, as it says in its very
first sentence, "governs only judicial notice of adjudicative

-22-
 Although this typology is easy enough to outline, nuances

arise at the margins, and "[t]he exact parameters of judicial

notice of state laws and regulations are rarely tested." In re

Madeline Marie Nursing Homes, 694 F.2d 433, 446 (6th Cir. 1982).

For instance, while a federal court must take judicial notice of

state statutes "without plea or proof," Lamar, 114 U.S. at 223,

courts traditionally were not required to take notice of local

ordinances. Yet that tradition is eroding. A brief history of

this exception to the general principle of judicial notice of law

will clarify the issue presented in this case.

B. The Common Law Rule of Proof of Local Ordinances

By longstanding tradition, a local ordinance was

considered to be "not a public statute, but a mere municipal

regulation; and, to make it available . . . it must be pleaded,

like any other fact of which judicial notice will not be taken."

Robinson v. Denver City Tramway Co., 164 F. 174, 176 (8th Cir.

1908); Gardner v. Capital Transit Co., 152 F.2d 288, 290 (D.C.

Cir. 1945) (affirming trial court's refusal to take judicial notice

of or instruct jury regarding District of Columbia ordinance that

appellant had not proven, because "municipal ordinances may not be

facts," and certainly not judicial notice of law. Indeed, one
organization has proposed a new Rule 203 to govern judicial notice
of law, which would hardly be necessary if the topic fell under the
heading of Rule 201. See Paul R. Rice, The Evidence Project:
Proposed Revisions to the Federal Rules of Evidence with Supporting
Commentary, 171 F.R.D. 330, 405 (1997).

-23-
judicially noticed by courts of general jurisdiction"); Broughton

v. Brewer, 298 F. Supp. 260, 265-66 (S.D. Ala. 1969) (refusing to

take judicial notice of ordinances and granting partial judgment

for defendants because plaintiffs had failed to plead or introduce

into evidence official or certified copies of ordinances);

McCormick on Evidence § 335 & n.10; ante at 17-18.

This distinction in the treatment of state statutes and

local ordinances was based on the historic reality that it was much

easier for a court to obtain (and be confident that it had the

correct version of) a state statute than a local ordinance. See

Roden v. Conn. Co., 155 A. 721, 723 (Conn. 1931) ("The means to

ascertain . . . what ordinances of a city are in effect at any

particular time, without change or amendment, are certainly not

reasonably available to the courts, and frequently they are not

capable of ready and unquestionable demonstration.").15 "[W]hen the

15
I cite state law cases only to illustrate trends in historic
practice and the logic behind them. Judicial notice is purely
procedural and hence is governed by federal law. "A federal court
sitting in diversity jurisdiction is obliged to apply federal
procedural law and state substantive law." Alternative Sys.
Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 32 (1st Cir. 2004);
Hanna v. Plumer, 380 U.S. 460, 465 (1965); Erie R.R. v. Tompkins,
304 U.S. 64, 78 (1938). Indeed, if judicial notice in federal
court were subject to state law, then Lamar would be superfluous
where state law provided for judicial notice of state statutes, and
violate Erie where state law did not so provide.
Consequently, I do not believe that the Rhode Island rule
against taking judicial notice of a municipal ordinance, see Town
of Lincoln v. Cournoyer, 186 A.2d 728, 730 (R.I. 1962), would apply
in federal court even if this case involved a municipal ordinance
instead of a document incorporated by reference into a state
statute. Contra H. Wayne Palmer & Assocs. v. Heldor Indus., 839 F.

-24-
source-material was not easily accessible to the judge, as in the

case of . . . city ordinances, law [was historically] treated as a

peculiar species of fact, requiring formal proof." McCormick on

Evidence § 335 (emphasis added). Indeed, Professor McCormick

acknowledged the possibility that local ordinances might in some

cases be "easily accessible to the judge," and anticipated that

"[t]o the extent that these items become readily available in

compilations, it may be expected that they will become subject to

judicial notice." Id. Failing that, however, he suggested that

"it would appear appropriate for judges to take judicial notice of

. . . municipal ordinances if counsel furnish a certified copy

thereof." Id.16

In other words, the rationale for excluding local

ordinances from the Lamar principle (by which federal courts must

Supp. 770, 775 (D. Kan. 1993) (stating that judicial notice would
be governed by Kansas judicial notice procedure); Monk v. City of
Birmingham, 87 F. Supp. 538, 539 (N.D. Ala. 1949) (taking judicial
notice of city ordinance, relying, without discussion, on Alabama
statute that directed state courts to do so), aff'd, 185 F.2d 859
(5th Cir. 1950).
16
The Evidence Project's proposed Rule 203 goes a step further
by eliminating the requirement of a certified or official copy:
"The court shall take judicial notice of ordinances . . . and
similar sources of law of political subdivisions of the States or
Territories of the United States if requested by a party and
supplied with the necessary material." Proposed Fed. R. Evid.
203(b)(3), in The Evidence Project, 171 F.R.D. at 406 (emphasis
added). Proposed Rule 203(b)(3) also allows the court to take
judicial notice of such ordinances, even without submission by
counsel, if the materials are "reasonably available to the court."
Id.

-25-
take judicial notice of state statutes) is derived entirely from

the practical difficulty of obtaining authentic and accurate copies

of those ordinances. If the proponent of an ordinance cures that

difficulty by providing a certified copy of the actual ordinance,

the court should, in my view, take judicial notice of it. The

fundamental concern underlying citation of local law to a federal

court is whether the document offered by the proponent accurately

states the law. If there is no doubt that a document accurately

states the law, there is no reason to eschew judicial notice of

that law.17

C. Basic Principles of Judicial Notice of Law

Professor McCormick's pragmatic analysis sets forth the

basis for applying the judicial notice of law doctrine to other

contexts beyond local ordinances. Without acknowledging it (and

perhaps without even thinking about it) courts take judicial notice

17
I have carefully framed the issue of judicial notice of law
in terms of both "accuracy" and "authenticity" because a focus on
authenticity alone could be misleading. Authenticity simply means
that the document is what its proponent says it is. See generally
Fed. R. Evid. 901-02. If the legal material submitted is in fact
a copy of the ordinance as actually issued by the municipal
authority, authenticity is probably the only issue. If, however,
the document submitted is excerpted from a web page, a legal
research service, or some other non-official source, the question
of authenticity -- whether the document submitted is what it
purports to be -- is eclipsed by the more important question of
whether the document submitted accurately relates the law as set
forth by the enacting authority. In other words, such secondary
materials introduce a hearsay problem; evidence that a page of
regulations included in a brief was, in fact, printed from a
certain web site is probably not helpful in determining whether the
web site accurately stated the law.

-26-
of law every time they cite a statute or judicial decision. See 29

Am. Jur. 2d Evidence § 136 ("A court takes judicial notice of a

litigation document as a source of law when it follows a decision

of [a] superior court, cites a court decision as precedent, or

relies upon it as persuasive authority."). As a practical matter,

in most cases, this law-gathering process flows smoothly without

invoking the machinery of judicial notice because there is usually

no doubt about what the law actually says.18 Theoretically,

however, questions of authenticity and accuracy lurk below the

surface whenever a court refers to a document to establish the law

-- even when that document is the Federal Reporter or the United

States Code. After all, the publishers or codifiers might have

released an incorrect version of the underlying judicial decision

or Congressional enactment. In reality, however, authenticity and

accuracy are never doubted when these widely-available, well-

respected services are cited. In the language of Rule 201 (which

provides a useful reference point even though it does not apply to

judicial notice of law), the accuracy of these sources "cannot

reasonably be questioned." The situation may differ, however, when

the district court is presented with a document purporting to

represent an ordinance of a small New England town. Authenticity

and accuracy -- which are almost never at issue with federal or

state statutes -- can sometimes present real concerns with local

18
What the law means, of course, is often disputed.

-27-
ordinances. "[S]tate statutes are compiled, published and

distributed by recognized professional entities who must vouch for

the integrity of their product and thus they are likely accurate,

readily ascertainable and available while such is often not the

case with ordinances." Keyes v. Amundson, 391 N.W.2d 602, 608

(N.D. 1986).19

The pragmatic underpinnings of the judicial notice of law

doctrine provide the appropriate guides for analysis of the

19
Authenticity and accuracy can also sometimes present real
concerns with state administrative regulations. Federal courts and
most state courts take judicial notice of such regulations. See,
e.g., Roemer v. Bd. of Pub. Works, 426 U.S. 736, 742 n.4 (1976)
(taking judicial notice of state regulation); Nat'l Agric. Chems.
Ass'n v. Rominger, 500 F. Supp. 465, 472 (E.D. Cal. 1980) (same,
though incorrectly suggesting that Rule 201 might be involved); see
also Norman J. Singer, 2 Sutherland on Statutory Construction §
39:4 n.1 (6th ed. 2000) (collecting state cases); 29 Am. Jur. 2d
Evidence § 122 n.98 (2003) (same). Some of the state courts that
decline to take judicial notice of their own state's administrative
regulations have cited the same practical considerations of
accessibility that grounded the traditional refusal to judicially
notice ordinances. See, e.g., Dairyland Power Coop. v. State Bd.
of Equalization & Assessment, 472 N.W.2d 363, 368 (Neb. 1991)
("[B]ecause establishing the existence and contents of a particular
administrative rule or regulation at any given time is often a
difficult and uncertain process, it is an established principle
that, as a general rule, this court will not take judicial notice
of such rules or regulations.") (internal quotation marks omitted);
see also Madeline Marie Nursing Homes, 694 F.2d at 446 (noting that
Ohio administrative regulations were not published until 1976, and
consequently there was "no readily available source from which
[the] court [could] independently ascertain the exact status of the
Ohio regulations in effect in 1976 and earlier"); McCormick on
Evidence § 335 ("State and national administrative regulations
having the force of law will also be noticed, at least if they are
published so as to be readily available.") (emphasis added).
Federal regulations, by contrast, must be judicially noticed under
the Federal Register Act. See 44 U.S.C. § 1507.

-28-
district court's handling of NFPA 30, the fire code relied on by

Capital. Chief among those underpinnings are convenience and

practicality. A court cannot take notice of a code that it cannot

find, even if that code is incorporated by reference into a state

statute. At the same time, rules of thumb that distinguish, for

example, a "mere municipal regulation" from a somehow more worthy

state statute, Robinson, 164 F. at 176, should not be fetishized if

the municipal materials are made available by commonly used legal

research services or by a party. Rather, the doctrine of judicial

notice of law must be applied with a focus on the availability of

the materials at issue. Where documents that establish the

relevant law are readily available by ordinary legal research from

a citation provided by a party, or copies of the relevant documents

are actually submitted, the court would be authorized, in my view,

and in most cases required, to take judicial notice of that law,

whether it is found in statutes, regulations, executive orders,

ordinances, so-called "private" laws, charters, privately developed

standards adopted into law, or comparable documents. By contrast,

where documents are neither readily available -- as is still often

the case with such materials -- nor actually submitted, a court

need not take judicial notice of something that it cannot obtain.20

20
This approach parallels, in some important respects, the
process that federal courts use to determine foreign law. "In
general, foreign law is treated as a fact that must be proven by
the parties." Abdille v. Ashcroft, 242 F.3d 477, 489 n.10 (3d Cir.
2001). However, the Federal Rules of Civil Procedure provide a

-29-
D. Judicial Notice of Safety Codes

The principles set forth above are instructive in

analyzing the theory and practice underlying the choice between

proof or judicial notice of building, fire, and electric codes.

These codes often present the same ease-of-access issues as

municipal ordinances. But they also a introduce a new variable:

whether the safety code is simply a voluntary industry standard, or

legally binding state or local law.

1. Voluntary Industry Standards

Many cases involve voluntary industry standards that do

not have the force of law in the relevant jurisdiction. The

overwhelming majority of such cases are negligence actions where

the industry standard is offered as evidence of the appropriate

standard of care. See, e.g., Miller v. Yazoo Mfg. Co., 26 F.3d 81,

83 (8th Cir. 1994) (in personal injury action, American National

Standards Institute lawnmower safety standards were offered to

establish standard of care); Matthews v. Ashland Chem., Inc., 770

F.2d 1303, 1310-11 (5th Cir. 1985) (in personal injury action,

NFPA, National Electric Code, and the American National Standard

Specifications for Accident Prevention Signs were offered to

more flexible approach that, in some instances, allows the court to
determine foreign law without extensive and cumbersome factfinding
procedures. See Fed. R. Civ. P. 44.1. The Advisory Committee
explained that, while the court "may engage in its own research and
consider any relevant material thus found," it is also "free to
insist on a complete presentation by counsel." Fed. R. Civ. P.
44.1 advisory committee's note.

-30-
establish standard of care); Boston & Me. R.R. v. Talbert, 360 F.2d

286, 290 (1st Cir. 1966) ("certain nationally recognized standards

concerning the design of highway and railroad crossings" were

offered to establish standard of care, with trial judge's warning

that they were "not completely authoritative"); Dickie v. Shockman,

No. A3-98-137, 2000 WL 33339623, *3 (D.N.D. July 17, 2000) (in

personal injury action, NFPA standards "and other codes applicable

within the propane industry" were offered to establish standard of

care).

These voluntary standards do not irrefutably establish

the standard of care in a negligence case. Rather, they constitute

"one more piece of evidence upon which the jury could decide

whether the defendant acted as a reasonably prudent person in the

circumstances of th[e] case." Boston & Me. R.R., 360 F.2d at 290.

The defendant is free to argue that the standard is unduly

demanding, either in general or in the particular instance, and

that it does not reflect industry practice or the standard that a

reasonably prudent person would employ. After all, voluntary

standards are not law; in essence, they are simply recommendations

written by experts who may not themselves be available for cross-

examination. In short, the merits of the standard are "for the

jury's consideration like any other evidence in the case." Id.

Consequently, courts have generally treated such

standards as factual evidence that the court may admit or exclude

-31-
based on ordinary evidentiary principles. See, e.g., Miller, 26

F.3d at 83-84 (voluntary standard was properly admitted); Matthews,

770 F.2d at 1310-11 (voluntary standards were properly excluded);

Boston & Me. R.R., 360 F.2d at 290 (voluntary standards were

properly admitted); Dickie, 2000 WL 33339623, at *3 (admitting

expert testimony regarding voluntary standards). I believe that

this practice is sound.

2. Legally Binding Safety Codes

By contrast, many safety codes are enacted as municipal

ordinances or state administrative regulations, and consequently

have the force of law. See, e.g., Burran v. Dambold, 422 F.2d 133,

135 (10th Cir. 1970) (New Mexico contractors' license board was

"statutorily empowered to adopt a building code having the force of

law and has done so"); Curtis v. District of Columbia, 363 F.2d

973, 974-76 (D.C. Cir. 1966) (District of Columbia Building Code

was enacted by District's Commissioners); Am. States Ins. Co. v.

Hannan Constr. Co., 283 F. Supp. 988, 996 (N.D. Ohio 1966) ("fire

protection provisions of the Ohio Building Code [were] promulgated

by the Board of Building Standards of the Ohio Department of

Industrial Relations"), aff'd, 392 F.2d 171 (6th Cir. 1968) (per

curiam). Violating such codes could lead to an administrative

citation, and may constitute negligence per se in some

jurisdictions. See, e.g., Perkinson v. Gilbert/Robinson, Inc., 821

F.2d 686, 692 (D.C. Cir. 1987) (District of Columbia); Burran, 422

-32-
F.2d 133 at 135-36 (New Mexico); Employers Fire Ins. Co. v. Laney

& Duke Storage Warehouse Co., 392 F.2d 138, 140-41 (5th Cir. 1968)

(Florida).

Many building, fire, electric, and other safety codes

with the force of law were originally developed as industry

standards by private nongovernmental entities and then adopted into

law. Such privately-developed codes can be adopted into law in two

different ways: directly or by reference. Direct adoption occurs

when a model code is originally drafted by a nongovernmental body,

but then incorporated wholesale (i.e., reproduced) into state or

local law and promulgated (in its full text) as an ordinary statute

or administrative regulation. See generally Building Officials &

Code Adm'rs v. Code Tech., Inc., 628 F.2d 730, 732 (1st Cir. 1980)

(explaining that Massachusetts Building Code, promulgated as state

administrative regulation, was explicitly based on the Building

Officials and Code Administrators (BOCA) Building Code, with only

minor changes). Adoption by reference occurs when a government

entity with the authority to enact a safety code promulgates an

administrative regulation or ordinance that does not actually

contain the text of the privately-developed standard, but rather

incorporates it by reference. See R.I. Gen. Laws § 23-28.22-5

(requiring facilities dealing with flammable and combustible

liquids to be "in accordance with N.F.P.A. Standard 30, 1987

edition"); Donovan v. Daniel Constr. Co., 692 F.2d 818, 820 n.2

-33-
(1st Cir. 1982) (federal Occupational Safety and Health

Administration regulations required employers to install and use

electrical facilities in accordance with National Electrical Code,

NFPA, and other standards); Cal.-Pac. Utils. Co. v. United States,

194 Ct. Cl. 703, 781 n.7 (1971) (Nevada law required that power

lines be maintained in accordance with standards of National

Electrical Safety Code).

The cases reveal that the practices for placing legally

binding state or local safety regulations into a case are

undergoing a historic shift. In older cases from the 1950s and

1960s, courts generally treated state and local safety regulations

as evidence for the jury, subject to the ordinary rules of

evidence. See Stemple v. Phillips Petroleum Co., 430 F.2d 178,

180, 182-83 (10th Cir. 1970) (treating NFPA standards adopted by

state fire marshal as evidence); Burran, 422 F.2d at 135 n.3 (New

Mexico building code "was introduced in evidence without

objection"); Laney & Duke Storage Warehouse Co., 392 F.2d at 139

("'Portions of the Ordinance Code of the City of Jacksonville and

portions of the Florida Fire Prevention Code were introduced in

evidence . . . .'") (quoting jury instructions); Curtis, 363 F.2d

at 974-75 (District of Columbia Building Code was offered into

evidence but improperly excluded); Hannan Constr. Co., 283 F. Supp.

at 997 ("Ohio Building Code [was] received in evidence"). Those

cases do not explain why the courts treated law as evidence.

-34-
Rather, they simply assume the propriety of that approach. Indeed,

it is probably safe to guess that counsel did not even request

judicial notice.21

As Professor McCormick anticipated, however, more recent

cases have reflected a shift in the treatment of state and local

safety codes. Beginning around 1970, courts have slowly shifted

from treating these codes as evidence to treating them as law that

must be placed into a case by judicial notice rather than proof.

See Cal.-Pac. Utils. Co., 194 Ct. Cl. at 781 n.7 (taking judicial

notice of relevant standards of National Electrical Safety Code,

which was incorporated by reference into Nevada law). The change

has not always been smooth or steady, and some cases reveal

ambivalence, or even confusion, regarding the proper treatment of

such codes. See Perkinson, 821 F.2d at 688 & n.1;22 United States

v. Holley, 493 F.2d 581, 583-84 & n.3 (9th Cir. 1974) (appellant

21
An exception that perhaps proves the rule is Pub. Hous.
Admin. v. Bristol Township, 146 F. Supp. 859, 866 n.5 (E.D. Pa.
1957). There, the proponent of a local building code submitted
exhibits containing the entire code, but for some reason only
formally offered certain portions into evidence. For eminently
practical reasons, the court took judicial notice of the remainder.
22
In Perkinson, the trial court apparently excluded plaintiff's
evidentiary proffer of the District of Columbia Building Code, and
instead stated that it would take judicial notice of the Code. At
the close of trial, the defendant argued that the plaintiff "waived
her right to have the regulations considered by the jury because
she failed to put them in evidence." After a defendant's verdict,
the trial court admitted that it had "put plaintiff's counsel
off-guard by offering to take judicial notice of the regulations"
and granted the plaintiff's motion for a new trial. 821 F.2d at
688 & n.1.

-35-
had sought to introduce into evidence an extract, the authenticity

of which was not challenged, from county regulatory code; Court of

Appeals expressly declined to address "the propriety of the

practice of admitting extracts from local statutes or ordinances

into evidence vis-a-vis the taking of judicial notice by the Court

of such laws," because appellant had made no request for judicial

notice); cf. Bryant v. Liberty Mut. Ins. Co., 407 F.2d 576, 579-80

& n.2 (4th Cir. 1969) (collecting cases on both sides of "the

ancient rule of the common law that courts may not take judicial

notice of municipal ordinances"). Illustrating the ongoing

confusion in this area, the Tenth Circuit changed positions three

times in a fifteen-year period before finally deciding that a court

may take judicial notice of local ordinances. See Melton v. City

of Oklahoma City, 879 F.2d 706, 724 & n.25 (10th Cir. 1989) (court

may take judicial notice of local ordinances), vacated on other

grounds, 928 F.2d 920 (10th Cir. 1991) (en banc); Ruhs v. Pac.

Power & Light, 671 F.2d 1268, 1273 (10th Cir. 1982) (no judicial

notice of local ordinances); Allred v. Svarczkopf, 573 F.2d 1146,

1151 (10th Cir. 1978) (taking judicial notice of local ordinances);

Dewell v. Lawson, 489 F.2d 877, 879 (10th Cir. 1974) (no judicial

notice of local ordinances). As time progresses, however, the

view that state or local safety codes must be proven as evidence is

being overtaken by the view that these codes should be judicially

-36-
noticed. This evolution has proceeded much as Professor McCormick

envisioned:

[W]hen the source-material was not easily
accessible to the judge . . . law has been
treated as a peculiar species of fact,
requiring formal proof. . . . [A]s these
materials become more accessible, the tendency
is toward permitting the judges to do what
perhaps they should have done in the
beginning, that is, to rely on the diligence
of counsel to provide the necessary materials,
and accordingly to take judicial notice of all
law. This seems to be the goal toward which
the practice is marching.

McCormick on Evidence § 335. In particular, the Seventh and Tenth

Circuits have abandoned the old distinction between state statutes

and local ordinances, and held that courts may take judicial notice

of ordinances upon an adequate submission. See Melton, 879 F.2d at

724 & n.25; Newcomb v. Brennan, 558 F.2d 825, 829 (7th Cir. 1977)

("We hold that matters of public record such as state statutes,

city charters, and city ordinances fall within the category of

'common knowledge' and are therefore proper subjects for judicial

notice."); see also Holst v. Countryside Enters., Inc., 14 F.3d

1319, 1322 n.4 (8th Cir. 1994) ("[I]t would not be appropriate to

prove the fire code by the testimony of the expert architect.

Ordinarily, codes, regulations, and statutes are, if relevant,

established through judicial notice.").

Thus, the evolving trend in the law is that mandatory

safety codes (like local ordinances or state administrative

regulations in general) are, when feasible, established by judicial

-37-
notice, not by witness testimony or other factual proof. The

rationale for requiring such codes to be offered into evidence and

proven -- the practical difficulty of obtaining the necessary

materials -- has been undermined by developments in technology and

open government practices that often make it easier to find the

relevant law.23 Cf. Madeline Marie Nursing Homes, 694 F.2d at 446

(noting that Ohio administrative regulations were not published

until 1976, and consequently there was "no readily available source

from which [the] court [could] independently ascertain the exact

status of the Ohio regulations in effect in 1976 and earlier.").

Furthermore, this trend is paralleled by a similar change of view

in most state court systems.24

23
I do not mean to suggest that state or local safety codes,
local ordinances, and the like are always readily available. My
point is that when they are readily available, the rationale for
requiring them to be offered into evidence and proven to the jury
is undermined.
24
See, e.g., Hawthorne Sav. & Loan Ass'n v. City of Signal
Hill, 23 Cal. Rptr. 2d 272, 275 n.2 (Cal. Ct. App. 1993) (taking
judicial notice of municipal code and of Uniform Code for the
Abatement of Dangerous Buildings); Jimenez v. Hawk, 683 A.2d 457,
460 (D.C. 1996) (trial court took judicial notice of D.C. Fire
Code); Rothstein v. City Univ. of N.Y., 599 N.Y.S.2d 39, 40 (N.Y.
App. Div. 1993) (trial court took sua sponte judicial notice of
city building code); Commonwealth v. Marcus, 690 A.2d 842, 844-45
(Pa. Commw. Ct. 1997) (trial court took judicial notice of BOCA
Building Code, adopted by town ordinance); Hernandez v. Houston
Lighting & Power Co., 795 S.W.2d 775, 776-77 (Tex. App. 1990)
(trial court properly took judicial notice of the National Electric
Safety Code after providing the opposition with an opportunity to
rebut its accuracy); but see Childers v. Richmond County, 467
S.E.2d 176, 177 (Ga. 1996) (court cannot take judicial notice of
city or county ordinances) (internal quotation marks omitted);
Camara v. Bd. of Appeals, 662 N.E.2d 719, 720 (Mass. App. Ct. 1996)

-38-
 In sum, the rationale for not judicially noticing local

or state law other than public state statutes has largely eroded,

and the evolution of the law points in this direction. In my view,

when possible, local ordinances -- including safety codes that have

the force of law -- should be placed into a case via the mechanism

of judicial notice of law, not proof to the jury.

E. Capital's Burden

Because judicial notice of law is a practical doctrine,

the burden of production for the proponent of the law should depend

largely on the nature of the legal materials and how readily they

may be accessed by ordinary legal research methods. If the

document may be accessed by a widely used electronic legal research

service or found in the collection of any reasonably well stocked

public law library, then (absent a local court rule to the

contrary) a simple citation will almost always suffice.

Here, the materials were not so readily available. While

R.I. Gen. Laws § 23-28.22-5 is a public state statute, readily

retrievable by the simplest legal research and itself subject to

judicial notice under Lamar, it is not fully specified. To fully

understand what the statute requires, one must turn to NFPA 30,

which is privately authored, published, and copyrighted. In

respects relevant here, however, it does not differ from an

unpublished ordinance or regulation: it is neither reproduced in

(court cannot take judicial notice of municipal zoning by-laws).

-39-
the Rhode Island statute books nor retrievable via commonly used

legal research methods.

1. Unchallenged Copies

If Capital had provided the district court with a copy of

NFPA 30 that had been certified by the state of Rhode Island as

official, the court would have been required, in my view, to take

judicial notice of it. NFPA 30 is, after all, part of the law of

Rhode Island. In the presence of a certified copy of NFPA 30, I

cannot imagine why it would be necessary or even helpful to prove

its contents or authenticity in lieu of the court taking judicial

notice of law. See generally Fed. R. Evid. 902(4) (certified

copies of public records are self-authenticating); Ryan v. E.A.I.

Constr. Corp., 511 N.E.2d 1244, 1252 (Ill. App. Ct. 1987) ("The

court took judicial notice of the [Chicago Building C]ode after

plaintiff tendered a certified copy to the court.").

If Capital had presented the district court with an

uncertified copy, the analysis would be almost the same. Parties

routinely submit copies of documents of law to federal courts, and

certified copies are rarely required. If Capital had presented the

district court with a copy of the 1987 edition of NFPA 30 that bore

reasonable indicia of authenticity, the court would have been

authorized to judicially notice it, after giving Getty Properties

a reasonable opportunity to contest its authenticity and accuracy

before the court. Cf. S. Pac. Co. v. De Valle Da Costa, 190 F.

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689, 697-98 (1st Cir. 1911) (noting that "under ordinary

circumstances, informality in proof of a general statute of one of

the United States [is not] a sufficient ground for reversal by a

United States court" if there is no actual dispute regarding the

statute's contents). If the authenticity and accuracy of that

uncertified copy of NFPA 30 were not contested, the court, in my

view, would probably have been required to judicially notice it.

2. Challenged Copies

If, on the other hand, there had been a genuine dispute

about the authenticity and accuracy of a proffered copy,25 I believe

that the court -- not the jury -- would have been required to

resolve that dispute. I recognize that traditional doctrine

required the proponent to "prove" ordinances to the jury, see,

e.g., Robinson, 164 F. at 176, which presumably would determine the

law in case of a dispute. But this practice made little sense then

and makes less sense now. Cf. Arthur John Keeffe, William B.

Landis, Jr., & Robert B. Shaad, Sense and Nonsense About Judicial

25
Such disputes do arise. See, e.g., H. Wayne Palmer & Assocs.
v. Heldor Indus., 839 F. Supp. 770, 774-75 (D. Kan. 1993)
(plaintiffs presented expert affidavit that fire code was adopted
by city, but did not provide city ordinance that allegedly adopted
code, and defendants insisted that fire code was never adopted by
city); St. James Constr. Co. v. Morlock, 597 A.2d 1042, 1047 (Md.
Ct. Spec. App. 1991) (appellant argued that trial court erred
because it "took judicial notice of copies of . . . national
building standards rather than the County Code itself, thereby
making it difficult to determine whether and how the national
building standards had been amended in their adoption by [the]
County").

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Notice, 2 Stan. L. Rev. 664, 674 (1950) (describing the view that

determination of foreign law presents a jury question as a

"ridiculous proposition" with "disastrous" results). There was a

view that disputes about the authenticity, accuracy, and contents

of documents were "factual," and factual disputes must be resolved

on admissible evidence submitted to the jury. That view hangs too

much importance on the abstraction of "fact" and not enough on the

logical and institutionally optimal allocation of responsibility

between the judge and the jury. See Norman J. Singer, 2 Sutherland

on Statutory Construction § 39:7 (6th ed. 2000) ("'Proof' of the

ordinance does not make it a fact; it only presents for judicial

consideration a part of the law which may not be as available as

other parts."); cf. Christopher B. Mueller & Laird C. Kirkpatrick,

1 Federal Evidence § 59 (2d ed. 1994) ("Sometimes, because a

question of 'fact' was thought to be involved [in establishing

foreign law], the proof was made to the jury, although the

inappropriateness of having juries make determinations of law is

now generally recognized.").

In my view, the judge, not the jury, should determine the

governing law. "It would appear to be self-evident that it is

peculiarly the function of the judge to find and interpret the law

applicable to the issues in a trial and, in a jury case, to

announce his findings of law to the jury for their guidance."

McCormick on Evidence § 335. If factfinding is necessary to

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ascertain the law, the judge should find the necessary facts and

then instruct the jury:

When a judge presiding in the presence of a
jury decides a question of fact, a
sufficiently unique event occurs to merit
special treatment because the jury is thought
to perform the factfinding role in common law
countries. . . . There is nothing very
remarkable about a judge ruling on the tenor
of the law to be applied to the resolution of
the controversy, however, because by
definition this is the very function judges
are supposed to perform.

Id.; see also Neuber v. Royal Realty Co., 195 P.2d 501, 517-518

(Cal. Ct. App. 1948) (trial court had refused to admit city

ordinances into evidence but instead instructed jury as to what

conduct would violate those ordinances; affirming and explaining

that "it would seem to us just as improper to submit ordinances to

the jury for interpretation as it would be to hand them a copy of

the Civil Code for them to peruse in determining what the law of

the state was"), overruled in part on other grounds, Porter v.

Montgomery Ward & Co., 313 P.2d 854, 857 (Cal. 1957).26

26
The fact that the jury should not be called upon to decide
the law has no impact on whether the jury may see the law. These
are independent questions. Consider an ordinary statute.
Typically, the judge instructs the jury on the law, and does not
give jurors a copy of relevant statutes:

In the orderly trial of a case, the law is given to the
jury by the court and not introduced as evidence. It is
the function of the jury to determine the facts from the
evidence and apply the law as given by the court to the
facts as found by them from the evidence. Obviously, it
would be most confusing to a jury to have legal material
introduced as evidence and then argued as to what the law

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 The superiority of this institutional allocation of

responsibility between judge and jury is illustrated by what could

have happened in this case if the jury had been required to

determine the law. Suppose that Capital had provided the 2000

edition of NFPA 30 (which, in fact, it possessed) and a witness who

would testify that the 1987 edition was materially identical, but

that Getty Properties had disputed that assertion and provided a

contrary witness. It would make little sense for the jury to

decide what the law said, and then for the judge to instruct the

jury on the law based on what the jury had just told the judge.

Suppose, even more simply, that Capital had presented a certified,

undisputed copy of NFPA 30 to the court, but the district court

declined to take judicial notice and instead let the jury decide.

But what exactly would the jury decide? Whether NFPA 30 is in fact

part of the law of Rhode Island? Whether the certified, undisputed

is or ought to be.

United States v. Bernhardt, 642 F.2d 251, 253 (8th Cir. 1981)
(quoting Cooley v. United States, 501 F.2d 1249, 1253-54 (9th Cir.
1974)). However, the judge has broad discretion to give the jurors
copies of statutes for their deliberations, or decline to do so, as
she sees fit. See United States v. Polizzi, 500 F.2d 856, 875-76
(9th Cir. 1974) (court sent statutes and regulations into jury
room; no abuse of discretion because statutes and regulations were
extremely complex and judge could justifiably believe that it would
have been better to give jury the statutes and regulations rather
than have the jury attempt a reconstruction from notes or from
memory). If ordinary statutes, which are always subject to
judicial notice, and should almost never be offered into evidence,
can be given to the jury, then it follows that the trial court has
the discretion to publish to the jury NFPA 30 or any other source
of law, even though the law does not enter the case as "evidence."

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copy presented in court accurately states NFPA 30 to the extent

that it is part of the law of Rhode Island? Further suppose that

the jury got the law wrong: would its decision be reviewable by an

appellate court, and under what standard -- sufficiency of the

evidence? The system works best when the judge conducts the

necessary investigation and determines the law:

In determining the content or applicability of
a rule of domestic law, the judge is
unrestricted in his investigation and
conclusion. . . . He may make an independent
search for persuasive data or rest content
with what he has or what the parties present.
He may reach a conclusion in accord with the
overwhelming weight of available data or
against it. If he is a trial judge, his
conclusion is subject to review.

Edmund M. Morgan, Judicial Notice, 57 Harv. L. Rev. 269, 270

(1944).

3. Procedure for Invoking Judicial Notice

Capital's submission need not have been accompanied by a

formal request for judicial notice of law. Rather, the question is

whether the proponent has submitted material to the court (and to

opposing parties) that effectively makes the judicial notice of law

request. If the material is readily available or actually

submitted in full to the court, the proponent need not formally

request judicial notice of law; the submission of a readily

retrievable citation, or of copies of the relevant documents, ought

to suffice. See State Dep't of Highways v. Halvorson, 181 N.W.2d

473, 476 (Minn. 1970) ("Where a court is asked to take judicial

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notice of an agency regulation . . . counsel should be prepared to

exhibit to the court the relevant contents of the regulation,

either by tendering a copy of the published regulation or by

reference to some other readily available official report

disclosing its contents.") (emphasis added); Commonwealth v.

Marcus, 690 A.2d 842, 844-45 (Pa. Commw. Ct. 1997) (where counsel

submitted a memorandum to trial court at beginning of the hearing,

setting forth BOCA Code and ordinance sections, but did not submit

an authenticated copy of the complete ordinance, "counsel fulfilled

his obligation to aid the trial court in obtaining the relevant

provisions of the Ordinance. Hence, the trial court properly took

judicial notice of the Ordinance with the aid of the counsel

. . . ."). By the same token, the mere fact that a proponent

requests the court to judicially notice a body of law does not

suffice if that law is neither readily available nor actually

submitted.

District courts need not go to Herculean lengths to

discover the law when counsel do not adequately present it.

Rather, the court should have the discretion to determine whether

the proponent's submission sufficiently enables the court to

ascertain the law. Cf. Bello, 194 F.3d at 23 (reviewing trial

court's decision to take judicial notice of adjudicative fact under

Rule 201 for abuse of discretion). Under that standard, if the

court cannot ascertain the law from counsel's submission, then,

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virtually by definition, the submission is inadequate.

Accordingly, the court need not judicially notice a document that

was never presented to the court and that is not reasonably

available by ordinary legal research. Cf. Holst, 14 F.3d at 1323

(affirming trial court's exclusion of cross-examination testimony

regarding fire code; where party neither introduced fire code into

evidence by direct testimony nor requested judicial notice of code,

it was not before the court and could not be investigated in cross-

examination or on re-direct); see also United States v. Buswell, 45

C.M.R. 742, 747 & n.3 (A.C.M.R. 1972) (reversing conviction where

soldier was convicted of violating classified regulation, contents

of which were not presented to military court, and noting that if

the regulation were "physically available" to court, court "would

not hesitate to take judicial notice of it," but without a copy of

allegedly violated regulation, there was nothing to judicially

notice, and therefore the charge failed to state an offense);

Marcher v. Butler, 749 P.2d 486, 489 (Idaho 1988) ("offhand mention

of building codes" in summary judgment memorandum "was insufficient

to put the trial court on notice of them"); Plains Transp. of Kan.,

Inc. v. Baldwin, 535 P.2d 865, 871 (Kan. 1975) (appellants did not

"make a sufficient presentation for the trial judge . . . .

Essentially, the district court had nothing before it which

justified or required the giving of [appellants' requested]

instruction.").

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F. Conclusion

I summarize the principles of judicial notice of law that

I have described here and then apply them to the district court's

ruling on Getty's motion for judgment as a matter of law. Parties

generally must identify the law that is essential to their case.

No formal request for judicial notice of law need be made, but the

relevant law must be provided to the court in a meaningful form.

Where this law can be readily retrieved from a simple citation,

providing that citation to the court will usually suffice. Where

the law is difficult to obtain, the proponent must physically

provide the court with a copy. A certified copy of the ordinance

or other legal document will almost always suffice. An uncertified

copy will suffice if it bears reasonable indicia of authenticity

and there is no genuine dispute as to its accuracy. The court, not

the jury, must resolve any such disputes. Finally, where the law

is not readily obtainable and the proponent does not provide the

court with any copy at all, the court may properly conclude that

the proponent has not established the contents of that law.

Pursuant to its judicial notice of law request, Capital

was required to make the 1987 edition of NFPA 30 -- which is not

readily obtainable by ordinary legal research -- available to the

district court. The court explicitly asked Capital to submit a

copy of NFPA 30. Capital was unable to provide one. Therefore, I

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join my colleagues' conclusion that the court was not required to

take judicial notice of NFPA 30. See ante at 18-19.

Ordinarily, a Rule 50(a) motion is based on a lack of

evidence, not a lack of law. In this breach of contract action,

however, Capital claimed that the improvements were required by a

"City, State, or Federal regulation[] applicable to the operation

of the pipelines." Since NFPA 30, through R.I. Gen. Laws § 23-

28.22-5, was the only "regulation[] applicable to the operation of

the pipelines" arguably involved in this case, and Capital did not

provide an adequate basis for judicially noticing that standard,

Capital failed to provide a "legally sufficient evidentiary basis

for a reasonable jury to find" that the fire suppression equipment

was required by any regulation. See Fed. R. Civ. P. 50(a)(1).

Capital's failure to produce a copy of NFPA 30 was fatal to its

case. Therefore, I concur in the per curiam opinion affirming the

district court.

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