graphic image depicting green amicus briefs for Atlantic Legal Foundation Amicus Brief Summary

Prejudicial Notice: 10th Circuit Takes ”Judicial Notice” of Outdated Theory to ”Prove” Essential Element of Case

The Tenth Circuit Panel correctly recognized that, under City of Richmond v. J.A. Croson Co., 488 U.S. 469, 486-92, 500 (1989), the critical inquiry for strict scrutiny purposes is whether there is a “strong basis in evidence” for the legislative conclusion that “remedial action was necessary,” see Adarand Constructors v. Slater, 228 F.3d 1147, 1167 (10th Cir. 2000). However, rather than analyzing the evidence, as Justice O’Connor did in Croson, the Panel found the legislative conclusion by taking judicial notice of the ultimate fact raised by the summary judgment motions. 228 F.3d 1147 at 1168, n. 12.

The Panel took “judicial notice of the content of hearings and testimony before the congressional committees and subcommittees cited by the government” and deemed “the disparity studies were . . . introduced into evidence . . . via [Appendix A].” This single document of approximately 15 pages, was prepared, while this case was in litigation, by a then unidentified employee of the Department of Justice. This document, the “Appendix – The Compelling Interest for Affirmative Action in Federal Procurement: A Preliminary Survey” (61 Fed.Reg. 26050 (1996)) early on states the conclusion of which the Panel took judicial notice: “In short, there is today a compelling interest to take remedial action in federal procurement.”

The panel took judicial notice of single and double (an likely even more remote) hearsay, compiled, crafted, and preferred by a litigant, which ignores most lower court decisions that have rejected similar theories to the one supporting the case at bar, and largely ignore the most recent Supreme Court cases on the evidence necessary to support race and ethnic conscious remedies.



Issue Areas:

Limited Government

Read the Amicus Brief:
Question(s) Presented:

May a Court take judicial notice of the primary evidence in controversy?

Additional Background:

One noted commentator provides a succinct summary of the several applications of judicial notice:
The scope of facts that may be noticed includes:
(1) Matters which are actually so notorious to all that the production of evidence would be unnecessary;
(2) Matters which the judicial function supposes the judge to be acquainted with, in theory at least;
(3) Sundry matters not included under either of these heads; they are subject for the most part to the consideration that though they are neither actually notorious nor bound to be judicially known, yet they would be capable of such instant and unquestionable demonstration, if desired, that no party would think of imposing a falsity on the tribunal in the face of an intelligent adversary.”

These parameters are codified in the Rule 201 of the Federal Rules of Evidence which, by its terms, operates only as to adjudicative facts. Fed R. Evid. 201(a), Advisory Committee Notes; Siderius, Inc. v. M.V. Amilla, 880 F.2d 662, 666 (2d Cir. 1989).

ALF’s Amicus Brief:

The Court of Appeals’ sole basis for finding a compelling government interest in enacting the Department of Transportation’s DBE program was “judicial notice” of Appendix A — “The Compelling Interest,”, a document prepared by one of the litigants. Appendix A consists entirely of hearsay, double hearsay and even more remote hearsay. The Court of Appeals did not examine the underlying documents on which Appendix A was purportedly based.

Appendix A is an insufficient basis in evidence on which to grant summary judgment in favor of Respondents. The Court of Appeals’ attempt to make Appendix A “evidence” by taking judicial notice of its contents should be reversed because the truth of the matters in Appendix A is the at the very heart of the issue in controversy and Appendix A is not a proper subject of judicial notice.

Even if Appendix A were properly susceptible of judicial notice, it does not support a finding that there is the “strong basis in evidence” required to uphold a racially discriminatory government program because its statistical and anecdotal bases are flawed. The Court of Appeals failed to analyze whether there was a valid basis for finding a statistical disparity, and whether a pattern of discrimination caused any disparity. The Court of Appeals also failed to inquire whether the government participated in discrimination, and Appendix A does not establish such government complicity.


On November 27, 2001, the Supreme Court denied the petition for certiorari.

Date Originally Posted: June 11, 2001

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