Taking Judicial Notice of Prior Decisions

By Judge James L. Kimbler

There was an interesting decision out of the Summit County Court of Appeals concerning judicial notice this past week. The decision, which can be cited as In re J.C., 2010-Ohio-637, contains the following language at P. 14:

This Court has stated that “‘[t]rial courts will not take judicial notice of their own proceedings in other cases, even though between the same parties and even though the same judge presided.’” See, e.g., Patel v. Gadd, 9th Dist No. 21604, 2004-Ohio-436, at ¶7, quoting State v. Hill (June 9, 1993), 9th Dist. No. 92CA005358, citing Diversified Mortgage Investors, Inc. v. Bd. of Revision (1982), 7 Ohio App.3d 157, 159. A trial court “may only take judicial notice of prior proceedings in the immediate case.” In re LoDico, 5th Dist. No. 2003-CA-00446, 2005-Ohio-172, at ¶94. See, also, In the Matter of Erin N. (Apr.12, 1996), 6th Dist. Nos. E-95-029 and 95-JN-000001 (holding that the juvenile court committed reversible error by sua sponte taking “judicial notice” of a prior dependency case involving the same parent and child).

The rationale for the rule is then stated in P. 15, which reads as follows:

The rationale for this rule is that an appellate court cannot review the propriety of the trial court’s reliance on such prior proceedings when that record is not before the appellate court. NorthPoint Properties, Inc. v. Petticord, 179 Ohio App.3d 342, 2008-Ohio-5996. This Court’s review is necessarily limited to the record on appeal. “[A] reviewing court should be limited to what transpired in the trial court as reflected by the record made of the proceedings.” State v. Ishmail (1978), 54 Ohio St.2d 402, 406. Matters outside the record cannot be used to demonstrate error, nor can they be considered in defense of the judgment.

Although the case in which the above language appeared was an appeal from a juvenile court decision, the same rationale would seem to apply to other areas of litigation. For example, let's suppose that a trial judge had a case in which his or her prior decision would be applicable in a pending case and wanted to apply the prior ruling. That judge couldn't just take judicial notice of the prior decision, even though the case was in front of that judge and the records were kept in his or her court. Apparently, in such a situation, the judge would make the prior ruling an exhibit and then introduce it into the record of the pending case, thus allowing the court of appeals to review the appropriateness of the prior decision.

Given the decision and language of In Re JCattorneys asking judges to take judicial notice of prior decisions would be well advised to have a certified copy of the prior entry to introduce into the record of the case in which they are seeking such notice.