On Tuesday, the North Carolina Court of Appeals issued an opinion in Jackson/Hill Aviation, Inc. v. Town of Ocean Isle that reaffirmed the rule that North Carolina courts “cannot take judicial notice of municipal ordinances.”  The practical effect of that rule, as played out in Jackson/Hill Aviation, is that unless a municipal ordinance is specifically mentioned in a plaintiff’s complaint, a defendant cannot use that ordinance to defeat the plaintiff’s complaint on a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.  The ordinance is considered “evidence” outside the four corners of the complaint, and therefore the court cannot consider that “evidence.”  This raises the question of “why not?”  As the Town of Ocean Isle argued in its appeal brief, relying on J.G. Winston-Salem, L.L.C. v Cent. Carolina Surgical Eye Assocs., P.A., 175 N.C. App. 592 (2006), courts may use judicial notice to consider laws, administrative regulations, important public documents and a range of miscellaneous facts. Thus, the argument goes, if a municipal ordinance is considered a “law,” it would seem to fit within the categories of “evidence” appropriate for judicial notice.

The cited decision of the North Carolina Supreme Court, McEwen Funeral Service, Inc. v. Charlotte City Coach Lines, Inc., which bound the decision of the Court of Appeals in Jackson/Hill Aviation, provides no explanation for the rule that prevents a court from taking judicial notice of a municipal ordinance.  The only apparent reasoning from earlier cases setting forth the rule is that the legislature has prescribed the manner by which a municipal ordinance must be proven in court proceedings. See N.C. Gen. Stat. § 160A-79, “Pleading and proving city ordinances.”  Presumably, then, the rationale is that because the legislature has set out such a specific standard of proof, municipal ordinances are excepted from the category of “laws” of which a court can take judicial notice.  Conversely, pursuant to N.C. Gen. Stat. § 8-4, the North Carolina state courts are required to take judicial notice of “the law of the United States, or of any other state or territory of the United States, or of the District of Columbia, or of any foreign country.”

Meanwhile, federal courts in the Fourth Circuit do take judicial notice of local government ordinances. See, e.g., Randolph M. James, P.C. v. Oconee Cty. Aeronautics Comm’n, 2011 WL 5909939, at *3 (D.S.C. Nov. 28, 2011) (noting in ruling on a motion to dismiss that “[t]he [County] Ordinance is a matter of public record, and the court may take judicial notice of the Ordinance without converting this matter to a motion for summary judgment”).  The Fourth Circuit itself has noted that “the rule proscribing judicial notice of municipal ordinances has been vigorously criticized by the commentators” and then gone on to consider ordinances handed up by counsel at oral argument. Bryant v. Liberty Mut. Ins. Co., 407 F.2d 576, 580 (4th Cir. 1969).  And United States Supreme Court Justices have also taken judicial notice of a county ordinance, albeit in a dissenting opinion. See First English Evangelical Lutheran Church of Glendale v. Los Angeles Cty.., 482 U.S. 304, 328 (1987) (Stevens, J., dissenting).

This contrary view brings us back to the question of why North Carolina state courts cannot take judicial notice of municipal ordinances. One prominent evidentiary commentator stated about the rule in general (it should be noted that North Carolina jurisprudence is not alone in its position with respect to this issue):

Of course, these technical quiddities, in the reviewing Court’s rulings, refusing to take judicial notice, mean little more than that counsel should have taken care to adduce formal proof of the law or ordinance at the trial below, or at least to have set it forth in the appellate brief. But the curious layman will ask, in most of these cases, why did not the appellate Court send to the law library for the book and be done with the bother of looking up precedents to authorize and excuse not doing so? Or why not, in oral argument, take a recess, until counsel fetched the book and marked the page?

Wigmore, Evidence, § 2572, pp. 552-54.

Is there any reason as to why North Carolina state courts should not be able to take judicial notice of municipal ordinances? Let us know in the comments.

–Patrick Kane