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  ARTICLE II. JUDICIAL NOTICE COMMENTARY

Table of Contents

Article I. General Provisions
Article II. II. Judicial Notice
Rule 201
Rule 202
Rule 203
Rule 204
Article III. Presumptions
Article IV. Relevancy and Its Limits
Article V. Privileges
Article VI. Witnesses
Article VII. Opinions and Expert Testimony
Article VIII. Hearsay
Article X. Contents of Writings, Recordings, 
and Photographs
Revised Rule 202(b). Judicial Notice of Legislative Facts Commentary 202(b). 

One of the major concerns voiced by evidence scholars regarding judicial notice of legislative facts is that the court cannot be restricted to taking judicial notice of legislative facts only when the facts are beyond reasonable dispute. Certainly, the legislature does not require all of the facts that influence the enactment of a statute to be beyond reasonable dispute. When attempting to determine the scope of a law the courts should not be restricted in ways which would prevent them from considering at least those facts that could be used by the legislature.

The requirement that a fact judicially noticed under this rule be "reasonably reliable" is not intended as any substantial restriction on the power of the courts to take judicial notice of legislative facts. A reasonably reliable fact is one that a reasonable person could believe is true. Defining reasonable reliability only restricts the court from taking judicial notice of wholly fanciful facts or facts which find no reasonable support anywhere. This restriction currently exists in the appellate court's ability to reverse factual findings of the trial court that are clearly erroneous.

Other restrictions on the ability of the court to take judicial notice of legislative facts may apply. For example, in Minnesota v. Clover Leaf Creamery Co., the Supreme Court held that a federal court reviewing the constitutionality of certain legislation could not take judicial notice of facts that were different from those facts relied on by the legislature if the legislature's facts were rational. The Court stated:

Although parties challenging legislation under the Equal Protection Clause may introduce evidence supporting their claim that it is irrational, they cannot prevail so long as "it is evident from all the considerations presented to [the legislature], and those which we may take judicial notice, that the question is at least debatable." Where there was evidence before the legislature reasonably supporting the classification, litigants may not procure invalidation of the legislation merely by tendering evidence in court that the legislature was mistaken.

This passage implies that the court cannot, in overturning legislation, take judicial notice of facts which were opposed to those relied on by the legislature unless the legislature's factual basis was totally irrational. At the same time, the Court recognized that courts may take judicial notice of facts to support the rational basis of the legislation. Because the party supporting the legislation can introduce facts that are incorrect but nonetheless rational, the court could also take judicial notice of facts that are disputable but lend rational support for the legislation