Can Appellate Courts Take Judicial Notice of Facts Not Otherwise in the Record? Sometimes.

Sometimes oral argument in a case highlights oddities of the work we do. That happened today in the Virginia Supreme Court in LaRock v. City of Norfolk. Can an appellate court in a particular case go outside the appellate record to take judicial notice of proceedings in a different case? The answer appears to be that it probably can.

It's a well understood maxim of appellate practice that the appellate court's review is limited to the record of the case on appeal. There are good reasons for that limitation. Appellate courts generally can't call for new evidence.  They can't subpoena witnesses to testify. Allowing new evidence on appeal undercuts the work everyone did putting on a fulsome trial. If a document wasn't introduced into the record at trial, it's generally too late to try and get it in front of the appellate court later. When people talk about "making a good record" or "protecting the record" this is what they're talking about. Make sure that if a thing is important to your appeal that you first presented that thing to the trial court.

LaRock, though, posed an interesting wrinkle to the general rule.

Ms. LaRock used to work for the City of Norfolk. The City, citing her for misconduct, terminated her employment.  She then lodged a grievance that the termination was improper. At the grievance hearing, she won. She won both back pay and reinstatement to her old job.

After that win, though, the City learned of other misconduct by Ms. LaRock. While her grievance was pending, she had improperly accessed City computer files using her old login credentials.

Uh oh.

Based on this new information, the City refused to reinstate Ms. LaRock even though the grievance panel had given her her job back. Ms. LaRock complained about that refusal to the Norfolk Circuit Court and that Court also refused to reinstate her. Hence, the appeal, from there, to the Virginia Supreme Court.

While the litigation concerning her first grievance was underway, Ms. LaRock filed a second grievance. The second one complained that Norfolk should have reinstated her employment after she won her first grievance.

What happened in the second grievance? The Justices on the Supreme Court were very curious. Whether she won or lost, and why she won or lost, may have all sorts of implications for the case the Supreme Court has in front of it today.  If she won, maybe the case is moot. On the other hand, if she lost, depending on why she lost, the case might be moot for that reason. The Virginia Supreme Court can't tell, from the record, what happened because the second grievance happened in a completely different case. What to do?

Judicial notice gallops to the rescue.

Judicial notice is the legal doctrine that allows courts to accept as true certain facts even though no one formally introduces evidence of those facts. Take, for example, the question of how many people live in the City of Richmond, Virginia. The US Census Bureau  says it's 226,610 people as of 2020.  A court can take "judicial notice" of that readily verifiable fact without the parties having to call a demographer to testify about the City's population.

During the LaRock oral argument, Justice Mims asked whether the Supreme Court could take judicial notice of the second grievance proceedings.  Virginia's Rules of Evidence permit judicial notice of facts that are readily determined and not subject to reasonable dispute. The rules also permit judicial notice of laws and regulations and the contents of all official publications of the Commonwealth and its political subdivisions.

The parties seemed to agree that the Court could take judicial notice of the publicly available portions of the second grievance proceeding in addition to the portions that Ms. LaRock agreed to make public.

And that's, sort of, what happened. Counsel for Ms. LaRock provided the information he knew about the second grievance proceeding (Ms. LaRock lost.). He then engaged in a discussion with the Justices about what that meant for the case.

The takeaway lesson for appellate practitioners is that being fluent with the record in your case is necessary, but not always sufficient, for your argument. Sometimes you may have to field a question about events that happened outside the record. In that event you'll have to be prepared to sort out which of those events can be considered on appeal. If that happens, don't forget to notice judicial notice.