Shahar v. Bowers

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

_____________________________________
No. 93-9345
_____________________________________
(District Court No. 1:91-cv-2397-RCF)

ROBIN JOY SHAHAR,
Plaintiff-Appellant,
versus

MICHAEL J. BOWERS, individually and
THURBERT E. BAKER, in his official
capacity as Attorney General of the
State of Georgia,

Defendants-Appellants.
______________________________________

Appeal from the United States District Court
for the Northern District of Georgia
_______________________________________
(August 1, 1997)

Before HATCHETT, Chief Judge, TJOFLAT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA,
BLACK, CARNES and BARKETT, Circuit Judges, and GODBOLD and KRAVITCH, Senior
Circuit Judges.

BY THE C O U R T:

This case is before the court on Plaintiff-Appellant’s petition for
rehearing and on her motion to supplement the record or for a
remand to do so.

MOTION TO SUPPLEMENT

1
 Ms. Shahar’s petition for rehearing relies, in part, on two recent

newspaper articles reporting that former Attorney General Michael J.
Bowers has admitted to having an adulterous affair in the past with a

woman employed in the Department of Law. She requests that this

information become part of the record in this case by judicial notice or
by remand to the district court for discovery. Defendants-Appellees,
stressing arguments of finality, irrelevance and estoppel, argue that the

motion to supplement or to remand should be denied. The motion to

supplement the record or to remand is DENIED.

Although we have inherent equitable power to supplement the

record with information not reviewed by the district court, “[s]uch
authority is rarely exercised.” Ross v. Kemp, 785 F.2d 1467, 1474
(11th Cir. 1986). The reason for this rule is that the district courts are

the courts in which cases are to be litigated and decided initially.
While we have the authority to supplement a record even after we

have rendered both a panel opinion and then an en banc opinion on a
case, the law’s strong interest in finality dictates that supplementation

of the record at such a late stage would be an especially extraordinary

event and would require the clearest showing of just need to warrant

2
the supplementation.1 A review of the present record in this case
shows that no strong equities favor supplementing the record at this

time.
Review of the present record reflects that Ms. Shahar, in the

district court, had the opportunity to pursue discovery on the question
of whether or not lawyers in the Department of Law -- including the
Attorney General -- had committed adultery. She did not press the

matter, however. Instead, the parties entered into an agreement2 in

1
An appeal is the review of the final judgment of the district
court. See 28 U.S.C. §1291 (Final Decision of District Court). When
the district court enters its final judgment on a case, the evidence is
closed; and the record (that is, the factual basis of the case) for
appeal is established. At no time when a case is on appeal is adding
information to the record -- information that was never before the
district court -- usual and favored by the law. Therefore, that the
information which Ms. Shahar wants us to add to the record now
would have been allowed in earlier -- before we had announced our
en banc opinion -- is by no means certain; we need not decide that
issue because that issue is not before us.

2
The Attorney General seemingly never put his signature on the
agreement; the record, however, reflects that Mr. Bowers’
deposition testimony is in conformity with the agreement, see
Bowers Dep. at 67-69, the Motion for Summary Judgment filed by
the Attorney General in the district court referenced the agreement,
see Defendant’s Motion for Summary Judgment at 15-16, and we
are cited to no act of the Attorney General’s office which seems
inconsistent with the agreement, although the Attorney General did
argue issues of public perception and of appearances on the matter
3
district court which limited the efforts of both sides to discover
information about the sexual histories of the specific people involved

in this litigation.

Pursuant to this agreement, the Attorney General stated that he,
on the date that he withdrew the offer to her of employment, had no

specific knowledge of any sexual conduct of Ms. Shahar and that his

decision to withdraw the offer of employment was based on no act of
sexual conduct on Ms. Shahar’s part. In turn, Ms. Shahar -- who has
had the advice of counsel throughout this case -- agreed to forego

having the Attorney General respond to written interrogatories which

had requested the names of any law department employees believed by
the Attorney General to have engaged in sodomy or adultery.3 The

of sodomy and “married” homosexuals in general.
3
Never has Ms. Shahar said that her interrogatories in the district
court were not broad enough to include the Attorney General’s own
conduct. In fact, she tells us that the information that she advances
about Bowers now is precisely the information that “he refused to
discuss in discovery.” Petition for Rehearing and Motion to
Supplement the Record or For Remand to Do So at 2. Particularly
in the light of the correspondence between the parties when they
were in the district court, we agree. Although we think it is plain
that Ms. Shahar did undertake discovery on the matters now at
issue, whether she did so or not, she could have done so; and this
point is the main one.
4
stipulation worked to protect both sides in this litigation from
additional trouble, including intrusions into their personal histories, as

this case churned through the district court.
But this point is the decisive one: Given that Ms. Shahar, in the

district court, made no motions to compel the discovery of the names
of law department employees who had engaged in adultery, we cannot
say that the information about Mr. Bowers which she seeks to inject

into the case now -- almost six years after she filed her lawsuit and

more than three years after the district court ruled against her -- was

information which she could not have discovered with due diligence

years ago. Because Ms. Shahar did not diligently seek out this
information when the information could have been regularly

considered by the district court and then by the court of appeals, no

strong equities favor her request that we take the extraordinary step
of supplementing the record at this late moment.
Parties to lawsuits often agree to limit discovery to avoid extra

costs or embarrassment, or one side just chooses to abandon some line
of discovery as more trouble than it is worth. These kinds of decisions

are strategic and routine. A party’s strategic decisions for litigation

5
are to a great extent based on conjectures about what future course
will be most favorable to the party; with hindsight, some of the

conjectures turn out to be incorrect. But to hold litigants to their
strategic decisions on how broadly or narrowly they wish to litigate is

not unfair.4 So, we will not remand this case for the parties to start

4
Our colleagues, who dissent from the denial of the motion to
supplement, quote one sentence from the Response to the motion.
The sentence is accurately quoted. But the Response as a whole is
about seven pages in length. Taken as a whole, the Response is no
definite and unconditional stipulation by Appellees that the record
should be supplemented now. See, e.g., Response at 1 (“Both Mr.
Baker and Mr. Bowers oppose Appellant’s Motion for Rehearing
and her Motion to Supplement the Record in this case with the
Declaration of Michael Adams [containing the two newspaper
articles].”); Id. at 2 (“The interests of finality alone would dictate
that the motion to supplement should be denied.”).
More important, however, is this point of law: The parties to
an
appeal cannot bind the court to supplement the record no matter
how plainly they both stipulate that supplementation is all right with
them. The appellate court has the duty to make the decision to
supplement or not to supplement.
In some cases, the parties may, for their own reasons, be happy
for litigation to continue or feel -- perhaps for reasons that have
little to do with the case or with the law -- that some evidence should
not be objected to by them. But the cases in this court are our
business, too. An appellate court has the duty to consider wider
circumstances than the parties’ preferences or lack of objections.
For example, it is vital that we see to it that litigation (including
discovery disputes and compromises) in the district courts be taken
seriously by the parties and that the litigation be conducted in an
orderly way in accord with
regular procedures and practices. We also have a duty to see to it
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over now.
In addition to the procedural bar, we point out that the taking of

judicial notice of facts is, as a matter of evidence law, a highly limited

process. The reason for this caution is that the taking of judicial notice
bypasses the safeguards which are involved with the usual process of

proving facts by competent evidence in district court. Courts can take

notice of certain facts without formal proof but only where the fact in
question is “one not subject to reasonable dispute in that it is either (1)
generally known within the territorial jurisdiction of the trial court or

(2) capable of accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned.” Fed. R. Evid.
201(b).

For example, the kinds of things about which courts ordinarily

that finality means something real in the federal courts.
Our duties require (even in cases with great, immediate
attention from the public) not only that we must consider the case
before us, but that we must keep our eyes fixed on the precedent we
might make and on the conduct of the business -- present and future
-- of the courts generally. While we decide one case at a time, we do
so against a background of the law, that is, the set of principles
which will regulate all cases. These simple, but high, concerns drive
today’s decision to prohibit the supplementation -- after our court
has ruled twice and long after the district court has ruled -- of the
record in this case.
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take judicial notice are (1) scientific facts: for instance, when the sun
rises or sets; (2) matters of geography: for instance, what are the

boundaries of a state; or (3) matters of political history: for instance,
who was president in 1958. Ms. Shahar asks us to take judicial notice
of the conduct of one person, Michael J. Bowers; and she asks us to

take judicial notice of conduct which is not his official conduct (an
example of his official conduct which might be judicially noticed would

be that he issued a particular official opinion on a certain date). She

has shown us no case -- and we have found none -- where a federal
court of appeals took judicial notice of the unofficial conduct of one

person based upon newspaper accounts (or the person’s campaign

committee’s press release) about that conduct.5 We are not inclined to
extend the doctrine of judicial notice as far as Plaintiff-Appellant asks

5
We stress that we are not asked merely to take judicial notice of
the fact that the media has reported “X” or the fact that a press
release says “X.” We are asked to know “X.”
The dissent mentions a statement “made by Mr. Bowers.” The
only pertinent statement before us which might be said to have been
made by Mr. Bowers is a written press release on “Bowers for
Governor” letterhead. The statement is unsworn, unsigned, and
speaks neither of “adultery” nor of other sexual conduct; it does use
words like “involved with” and “relationship.” Whatever people in
general may wish to infer for themselves from this release, the
statement lays no foundation for a federal court’s taking judicial
notice that Mr. Bowers has committed adultery or fornication.
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us to take it.6
Apart from these other sufficient and independent reasons for

declining to supplement the record, we also decline because -- if the
proposed supplemental information were to be added to the many

other circumstances already in the case -- we cannot readily say that
the result of the case probably would be different from the 30 May
result.

ON PETITION FOR REHEARING

The petition for rehearing is DENIED.

6
We do not accept this proposition to be part of the law of
evidence: that information -- a “fact” which is an improper subject
of judicial notice -- automatically becomes a proper subject of
judicial notice if no party objects to the “fact”and that, therefore, an
appellate court is bound to take judicial notice of the “fact.”
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