CITY OF AZTEC v. Gurule

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMSC-006

Filing Date: January 25, 2010

Docket No. 31,480

CITY OF AZTEC,

Plaintiff-Respondent,

v.

ANTHONY GURULE,

Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
William C. Birdsall, District Judge

Hugh W. Dangler, Chief Public Defender
Adrianne R. Turner, Assistant Appellate Defender
Santa Fe, NM

for Petitioner

Thrower Law Firm, P.C.
Larry T. Thrower
Farmington, NM
for Respondent

OPINION

SERNA, Justice.

{1} This case permits us to reconsider a long-standing procedural requirement that has lost its
usefulness in the twenty-first century. We hold that municipal ordinances are properly considered
law, and thus need no longer be proven as facts necessary for a prima facie case, and we apply this
rule to affirm Anthony Gurule’s (“Defendant”) conviction of aggravated driving while intoxicated
(“DWI”), contrary to the City Code of Aztec, New Mexico. Aztec, N.M., City Code § 24-21.1
(2007) (“Except as otherwise provided in this article, the following sections of the New Mexico
Motor Vehicle Code . . . are adopted by reference[:] . . . Sections 66-8-1 to 66-8-140[.]”),

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http://www.aztecnm.gov/citycode/chapter24-traffic.pdf.1

I. Procedural History

{2} Defendant was found guilty of aggravated DWI in the City of Aztec Municipal Court. He
appealed to the Eleventh Judicial District Court, and again was found guilty after a trial de novo.
At the close of evidence in the trial de novo, Defendant objected that the city had not met its
evidentiary burden, as it failed to introduce the relevant ordinance into evidence. The City of Aztec
(“City”) admitted that it had not introduced the ordinance, but argued that the ordinance was
presented by reference because Aztec adopted the state statute, to which the judge had ready access.
The City acknowledged that it could not rely on the record for an element of proof. The district
court did not rule on the objection. No mention was made on the record as to whether or not the
district court did, or could, take judicial notice of the city ordinance. Defendant filed a motion to
dismiss after the trial, renewing the argument that the City did not prove its case because it failed
to introduce the relevant ordinance. The motion was denied.

{3} The Court of Appeals upheld the conviction in a Memorandum Opinion by concluding that
the district court took judicial notice of the city ordinance under which Defendant was convicted,
thereby finding the City proved the prima facie elements of its case. City of Aztec v. Gurule, No.
28,705, slip op. at 4 (N.M. Ct. App. Dec. 2, 2008). We now affirm the opinion of the Court of
Appeals on grounds other than those set forth in the Memorandum Opinion and write to clarify the
purpose and method of taking judicial notice of a municipal ordinance, which we now recognize as
law.

II. Discussion

{4} Judicial notice is familiar to the legal community as a tool of evidence. We often neglect to
recognize, however, that courts take notice of law on a daily basis; indeed, we could not succeed
in our work if we were not free to consult the great body of local, state, national, and international
law that exists and, thanks to modern research techniques, is accessible to legal researchers in any
locale. We take this opportunity first to review judicial notice of adjudicative facts, then to discuss
judicial notice of law and why municipal ordinances henceforth will be treated as law.

A. Standard of Review

{5} This case requires us to rule on an issue of law, and therefore our review is de novo. See
Boradiansky v. State Farm Mut. Auto. Ins. Co., 2007-NMSC-015, ¶ 5, 141 N.M. 387, 156 P.3d 25.

B. Judicial Notice of Facts

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We note that the record in this case indicates Defendant was charged under Section
12-1/66-8-102 of the Aztec City Code. However, we located the municipal ordinance under
the citation stated in the text.

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{6} Our rules of evidence permit trial courts to take judicial notice of “adjudicative facts,” Rule
11-201(A) NMRA, which are “simply the facts of the particular case.” Fed. R. Evid. 201 (1972
Advisory Committee note to subdivision (a)). Judicial notice of fact alleviates the evidentiary
burden on a party and is taken pursuant to the rules of evidence. See Personnel Dep’t, Inc. v. Prof’l
Staff Leasing Corp., 297 Fed. Appx. 773, 785 n.10 (10th Cir. 2008). Our rules of evidence permit
courts to take judicial notice of facts “not subject to reasonable dispute,” including facts that are
“capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably
be questioned.” Rule 11-201(B)(2). A court has discretion to take judicial notice sua sponte, Rule
11-201(C), but must take judicial notice if requested by a party and that party has furnished the court
with the information necessary. Rule 11-201(D). Judicial notice may be taken at any time during
the proceeding. Rule 11-201(F).

{7} When a court takes judicial notice of a fact, it must be done on the record. There are two
main reasons trial courts should make a clear record when taking judicial notice of a fact: (1) to
facilitate appellate review, see Frost v. Markham, 86 N.M. 261, 263, 522 P.2d 808, 810 (1974), and
(2) to provide notice, as required by due process, to the opposing party. See Garner v. Louisiana,
368 U.S. 157, 173 (1961). Our trial courts should be explicit when taking judicial notice, for the
benefit of the parties and the reviewing courts.

{8} At the time of Defendant’s trial de novo, our law treated a municipal ordinance that was the
applicable law as a fact which had to be pled and proven as part of a party’s prima facie case.
Muller v. City of Albuquerque, 92 N.M. 264, 265, 587 P.2d 42, 43 (1978). The reason for the rule
requiring proof of municipal ordinances dates to a time when discovering the content of an
ordinance was difficult, if not impossible, for any court not located in that municipality. See Getty
Petroleum Mktg., Inc. v. Capital Terminal Co., 391 F.3d 312, 323-24 (1st Cir. 2004) (Lipez, J.,
concurring) (providing a thorough discussion of the historical reasons for not permitting judicial
notice of local laws, and why these reasons are no longer valid). Municipal ordinances historically
have been treated in the same manner as foreign law, and thus were part of that body of law treated
as fact to be proven by the parties. See 2 George E. Dix et al., McCormick on Evidence § 328 (6th
ed. 2006) (stating that foreign law was treated as a question of fact, “but a peculiar one which only
the judge came to decide”); 1 Clifford S. Fishman, Jones on Evidence § 2.85 (7th ed. 1992) (noting
that courts traditionally refused to take judicial notice of municipal ordinances because ordinances
were “neither common knowledge within the state, nor readily verifiable”).

{9} A magistrate judge may take judicial notice of an ordinance from the same municipality in
which the magistrate sits. See 9A Eugene McQuillan, McQuillan: The Law of Municipal
Corporations § 27:51 (3d ed. 2007). This is for the same reason that our state courts may take
judicial notice of state statutes: it is presumed magistrate courts have ready access to a current copy
of the local ordinances. See Town of Forks v. Fletcher, 652 P.2d 16, 17 (Wash. Ct. App. 1982)
(“The rationale for this rule is that the ordinances are the particular law of the forum and, therefore,
known to the local court.”).

{10} Likewise, we permit a district court conducting a trial de novo to take judicial notice of a
municipal ordinance that controls the case. City of Albuquerque v. Leatherman, 74 N.M. 780, 781,

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399 P.2d 108, 109 (1965). This rule, known as the Leatherman exception, exists because the district
court hearing a case de novo may “take notice of whatever facts the [municipal court] could have
noticed judicially[.]” Id. at 782, 399 P.2d at 110 (internal quotation marks and citation omitted).
While we agree with the Court of Appeals that the district court was permitted to take judicial notice
of the municipal ordinance under the Leatherman exception, because of our holding today, we need
not rule whether judicial notice was properly taken by the district court in this case.2

{11} Our appellate courts do not take judicial notice of municipal ordinances. See Muller, 92
N.M. at 265, 587 P.2d at 43 (“An appellate court will not take judicial notice of municipal
ordinances.”); Coe v. City of Albuquerque, 81 N.M. 361, 364, 467 P.2d 27, 30 (1970); Gen. Servs.
Corp. v. Bd. of Comm’rs of Bernalillo County, 75 N.M. 550, 552, 408 P.2d 51, 52 (1965). This is
because we have treated municipal ordinances as facts, and we do not consider new facts when
conducting appellate review. See Gen. Servs. Corp., 75 N.M. at 552, 408 P.2d at 53 (“[O]ur scope
of appellate review is limited to a consideration of those facts disclosed by the record.”).

C. Judicial Notice of Law

{12} “Judicial notice of fact is distinct from judicial notice of law.” Personnel Dep’t, 297 Fed.
Appx. at 785 n.10. Judicial notice of fact is simply an “evidentiary shortcut,” while judicial notice
of law is “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.”
Getty Petroleum, 391 F.3d at 321-22. Although we do not do so explicitly, “courts take judicial
notice of law every time they cite a statute or judicial decision.” Id. at 324. It is permissible, indeed
required, therefore, for our trial and appellate courts to take judicial notice of the law necessary for
the resolution of all cases in front of the courts.

D. Municipal Ordinances are Law

{13} The rule requiring proof of municipal ordinances as fact is not consistent with the role of
courts with respect to law and fact. “[D]etermination of the applicable law is an issue of law, not
of fact.” City of Cedar Rapids v. Cach, 299 N.W.2d 656, 660 (Iowa 1980). We agree that

[a]s all law has become increasingly accessible and judges have tended to assume the
duty to rule on the tenor of all law, the notion that [the process of treating law as fact
and] part of judicial notice has become increasingly an anachronism. Evidence, after
all, involves the proof of facts. How the law is fed into the judicial machine is more

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A district court may take judicial notice, sua sponte, of its own records in the case,
see In re Bruno R., 2003-NMCA-057, ¶ 22, 133 N.M. 566, 66 P.3d 339, which, in this case,
included the criminal complaint setting forth the ordinance number under which Defendant
was charged. See Gurule, No. 28,705, slip op. at 4. However, the district court below
should have made a clear record that judicial notice was being taken of the complaint.

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 appropriately an aspect of the law pertaining to procedure.

Dix, supra, § 335.

{14} The reasons for distinguishing municipal ordinances as adjudicative facts, not law, are no
longer compelling. See, e.g., id. (“[A]s these [ordinances] 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 notice
of all law.”); Fishman, supra, § 2.72 (stating that not judicially noticing municipal ordinances “was
understandable when trustworthy copies of such laws were hard to come by, but is difficult to justify
today”). The Hawai`i Supreme Court succinctly stated the two main reasons for the trend towards
permitting judicial notice of foreign law, including municipal ordinances: accessibility and
verifiability. State v. West, 18 P.3d 884, 888 n.10 (Haw. 2001). The reasons for the trend in treating
municipal ordinances as law are interconnected: “the increased accessibility of foreign law makes
it more easily verifiable; in turn, like the [i]nternet, the usefulness of this ready availability is
predicated on its trustworthiness. Factors affecting these dual justifications include: (1) publication,
(2) codification, and (3) compilation.” Id. (internal citations omitted).

{15} These exact reasons have eroded the justification in our precedent for treating municipal
ordinances as adjudicative facts which may not be judicially noticed by our courts on appeal.
Municipal ordinances are no longer impossible to find outside of the municipality. It is true that
they are not gathered in one uniform compilation, as are our state statutes. However, learning the
contents of an ordinance no longer requires a trip to the government offices of a far-off town. The
City of Aztec, for example, publishes its City Code online. Municipalities that do not publish their
ordinances online still have easy means of complying with a request by court or counsel for a copy
of an ordinance, and can send the same by fax or email in a reasonably brief time. See Getty
Petroleum, 391 F.3d at 324 (“If there is no doubt that a document accurately states the law, there
is no reason to eschew judicial notice of that law.” (footnote omitted)).

{16} We hold that municipal ordinances are law and may be judicially noticed as such, and thus
lay to rest the practice of treating municipal ordinances as facts. Municipal ordinances should be
treated as law, and “be placed into a case via the mechanism of judicial notice of law, not proof to
the jury.” Id. at 330. We agree with the Court of Appeals in Apodaca v. AAA Gas Co.,
2003-NMCA-085, ¶ 46 n.3, 134 N.M. 77, 73 P.3d 215, that there is “no sound reason to deny an
appellate court access to the law when it is reviewing a case de novo,” and, as discussed above,
conclude that there is no sound reason to deny our appellate courts the right to consult municipal
ordinances, the laws that govern the myriad municipalities of New Mexico. Our rule of evidence
governing judicial notice, therefore, is no longer applicable to the introduction of municipal
ordinances into a case, as our holding means that municipal ordinances are no longer considered
adjudicative facts.

{17} This conclusion requires us to overrule certain cases to the extent that they hold a municipal
ordinance must be pled and proven as any other fact, including Muller, 92 N.M. at 265, 587 P.2d
at 43; Coe, 81 N.M. at 364, 467 P.2d at 30; and Gen. Servs. Corp., 75 N.M. at 552, 408 P.2d at 53.

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The factors we consider before overruling a prior decision are:

1) whether the precedent is so unworkable as to be intolerable; 2) whether parties
justifiably relied on the precedent so that reversing it would create an undue
hardship; 3) whether the principles of law have developed to such an extent as to
leave the old rule no more than a remnant of abandoned doctrine; and 4) whether the
facts have changed in the interval from the old rule to reconsideration so as to have
robbed the old rule of justification.

Padilla v. State Farm Mut. Auto. Ins. Co., 2003-NMSC-011, ¶ 7, 133 N.M. 661, 68 P.3d 901
(internal quotation marks and citations omitted). In this instance, the first three factors are not
determinant. However, the ease of legal research and the resources available to our courts, as well
as to our litigants, have greatly increased, and thus “[t]he rationale for requiring [municipal
ordinances] 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.” Getty Petroleum, 391 F.3d at 329. Our
principle of stare decisis therefore is not offended by overruling the above-cited cases.

{18} The important reasons why we require judicial notice on the record are not harmed by this
change. Appellate review will be enhanced, not hindered, by treating municipal ordinances as laws
which may be judicially noticed. In this case, the due process rights of Defendant are not implicated
because Defendant had notice of the ordinance under which he was being tried, as this was a trial
de novo. See United States v. Garcia, 672 F.2d 1349, 1356 n.9 (11th Cir. 1982). Furthermore, the
municipal ordinance under which Defendant was convicted is not in dispute. See Simes v. Simes,
895 A.2d 852, 861 (Conn. App. Ct. 2006). For these reasons, Defendant is not prejudiced by this
change in the City’s burden to prosecute under municipal ordinances.

{19} Although we are holding that the parties no longer must plead and prove a municipal
ordinance as a fact, if counsel knows the particular ordinance at issue is difficult to obtain, or an old
version of the ordinance is at issue, counsel should take reasonable steps to ensure the court has a
copy of the correct law. See Novak v. Craven, 195 P.3d 1115, 1119 (Colo. Ct. App. 2008) (noting
that “a trial court is not expected to be omniscient: the party must provide the trial court with at least
some notice of the existence of the municipal provision”). When the existence of a municipal
ordinance is at issue, and therefore must be proven to the court, the methods of proof set forth in
NMSA 1978, Section 3-17-5(D) (1965), remain the proper way to prove the ordinance. We find no
evidence that the Legislature passed this statute with the intention of statutorily enacting the rule
treating municipal ordinances as facts that must be pled and proven.

{20} We affirm the decision of the Court of Appeals by applying the rule announced today, and
Defendant’s conviction for DWI contrary to the Aztec City Code is affirmed. This new rule applies
to pending and future cases only. See State v. Frawley, 2007-NMSC-057, ¶ 41, 143 N.M. 7, 172
P.3d 144.

III. CONCLUSION

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{21} We hold that municipal ordinances are properly categorized as law which may be judicially
noticed by all courts in New Mexico. Defendant’s conviction is affirmed.

{22} IT IS SO ORDERED.

____________________________________
PATRICIO M. SERNA Justice

WE CONCUR:

____________________________________
EDWARD L. CHÁVEZ, Chief Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
CHARLES W. DANIELS, Justice

Topic Index for City of Aztec v. Gurule, No. 31,480

EV Evidence
EV-JN Judicial Notice

GV Government
GV-MU Municipalities

CL Criminal Law
CL-DG Driving While Intoxicated

CA Criminal Procedure
CA-SJ Stare Decisis

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