ABSTRACT: Judicial notice is a rule of evidence that allows a fact to be introduced into evidence if the truth of that fact is so well known that it cannot be refuted. There are certain facts that the court is required to take judicial notice of even if not requested by the parties, such as a legislative statute that abolishes the defenses to divorce and legal separation of condonation, collusion, recrimination, and laches (Fla. Stat. §61.044). There are certain matters that the court is permitted to take judicial notice of but is not required to, such as the distance between two locations. If a court is going to make a ruling on whether to take judicial notice of a fact it is not required to take judicial notice of, the court must give each side an opportunity to present argument on their position of the judicial notice. The court is also permitted to rely upon information that is not presented by either of the parties in taking judicial notice, as long as the court indicates what information it relied upon, makes the information part of the record, and allows the parties to present argument regarding whether or not the matter should be judicially noticed. Failing to take judicial notice of a fact does not prevent the court from later deciding to take judicial notice of the same fact in a later hearing.
Statutes:
Fla. Stat. 90.201 Matters which must be judicially noticed
Statutes:
Fla. Stat. 90.201 Matters which must be judicially noticed
- The Court SHALL take judicial notice of:
o Decisional, constitutional, and public statutory law and resolutions of the Florida Legislature and the Congress of the United States. (ex. Fla. Stat. 90.201-Matters which must be Judicially Noticed)
o Florida rules of court that have statewide application, its own rules, and the rules of United States courts adopted by the United States Supreme Court. (ex. Fla. R. Fam. Law R. Proc. 12.450-Evidence)
o Rules of court of the United States Supreme Court and the United States Courts of Appeal (ex. Rule 5. of the U.S. Supreme Court Rules-Admission to the bar)
- The Court May take judicial notice of:
o Special, local, and private acts and resolutions of the Congress of the United States and of the Florida Legislature
o Decisional, constitutional, and public statutory law of every other state, territory, and jurisdiction of the United States.
o Contents of the Federal Register
o Laws of foreign nations and of an organization of nations.
o Official actions of the legislative, executive, and judicial departments of the United States and of any state, territory, or jurisdiction of the United States
o Records of any court of this state or of any court of record of the United States or of any state, territory, or jurisdiction of the United States
o Rules of court of any court of this state or of any court of record of the United States or of any other state, territory, or jurisdiction of the United States
o Provisions of all municipal and country charters and charter amendments of this states, provided they are available in printed copies or as certified copies.
o Rules promulgated by governmental agencies of this state which are published in the Florida Administrative Code or bound written copies
o Duly enacted ordinances and resolutions of municipalities and countries located in Florida,
o Facts that are not subject to dispute because they are generally known within the territorial jurisdiction of the court. (ex. Fleming Island is in Clay County)
o Facts that are not subject to dispute because they are capable of accurate and ready determinations by resort to sources whose accuracy cannot be questioned. (The distance between the office and the courthouse.)
o Official seals of governmental agencies and departments of the United States and of any state, territory, or jurisdiction of the United States.
- A court SHALL take judicial notice of any matter in Fla. Stat. 90.202 when a party requests it and:
o Gives each adverse party timely written notice of the request, proof of which is filed with the court, to enable the adverse party to prepare toe meet the request.
o Furnishes the court with sufficient information to enable it to take judicial notice of the matter.
- When a court determines the take judicial notice of a matter on its own motion, or when a party requests judicial notice and fails to comply with Fla. Stat. 90.203(1), the court must give each party an opportunity to present argument why the court should or should not take judicial notice.
- Court can use any information it wants when deciding whether to take judicial notice of a matter with the exception of privileged information, or information that is excluded as irrelevant under Fla. Stat. 90.403.
- When the court relies on information not received in open court the court is required to make the information relied upon a part of the court record, afford each party an opportunity to challenge the information, and allow each party to offer additional information before judicial notice is taken.
- When a court is going to deny a request for judicial notice, the court shall inform the parties at the earliest practicable time and indicate for the record that it has denied the request for judicial notice.
- The court may instruct the jury during the trial to accept as a fact a matter judicially noticed.
- even if a court fails to take judicial notice of a matter in one proceeding does not preclude the court from taking judicial notice in a later proceeding.
Case Law
Spencer (Court was permitted to take judicial notice of the fact that DHRS was permitted to collect money from indigent parents for child care services rendered)
Spencer (Court was permitted to take judicial notice of the fact that DHRS was permitted to collect money from indigent parents for child care services rendered)
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. AWOOD SPENCER and ALMA SPENCER, Appellees.
No. AM-88
District Court of Appeal of Florida, First District
430 So. 2d 509; 1983 Fla. App. LEXIS 19048
April 14, 1983.
PRIOR HISTORY: [**1] An Appeal from the Circuit Court for Okaloosa County. Thomas D. Beasley, Judge.
COUNSEL: Jon W. Searcy, De Funiak Springs, for appellant.
Nickolas G. Petersen, Fort Walton Beach, for appellees.
JUDGES: Before NIMMONS, J. BOOTH and WIGGINTON, JJ., CONCUR.
OPINION BY: NIMMONS
OPINION
[*510] NIMMONS, J.
The Department of Health and Rehabilitative Services (HRS) appeals from final judgment in favor of appellees, Mr. and Mrs. Spencer, after a non-jury trial in an action brought by HRS against the Spencers to recover costs incurred by the State in maintaining their two minor children in foster care. We reverse and remand.
The Spencers' two children were adjudicated dependent and were removed from their custody pursuant to the provisions of Chapter 39, Florida Statutes. Temporary custody was awarded to HRS which placed the two children in foster care. HRS provided for the care, subsistence and maintenance of the children for almost two years until January 26, 1981, when the children were returned to the custody of the Spencers.
Pursuant to Section 402.33, Florida Statutes, HRS billed the Spencers monthly for costs incurred by the State in maintaining the children in foster care. That section provides for parents of [**2] minors receiving services by HRS to pay fees for such services. Section 402.33(4) further provides in pertinent part:
The department shall only collect... from... parents... fees consistent with the... parents'... ability to pay. Parents of minors receiving services in a program for which fees have been established shall pay fees consistent with their ability to pay....
Section 402.33(3) also requires HRS to determine annually the cost of providing such services and uniform criteria for determining ability to pay. The Spencers completed HRS's maintenance fee disclosure form. At that time, their total income consisted of approximately $ 1100 per month in veteran's benefits. HRS billed them $ 123 per month per child as and for a reasonable contribution towards the State's cost of maintaining the children in foster care taking into account the Spencers' ability to pay at the time of such billings and the criteria set forth in Chapter 10-6, Fla.Admin.Code, which was promulgated pursuant to Section 402.33(3).
The Spencers failed to make any payments to HRS or to contact the fee collection office regarding their failure or inability to pay the monthly bills. In June, 1981, HRS [**3] filed suit to collect $ 5,380.20 in past due maintenance fees. The trial court denied HRS's motion for summary judgment and the case was tried in February, 1982.
The trial court entered judgment in favor of the Spencers and against HRS on the grounds that the Spencers, at the time of the trial, were indigent, and "mentally and physically disabled." During the trial, the court interrupted HRS counsel's cross examination of Mr. Spencer as counsel was questioning Mr. Spencer concerning his expenditures during the period of time when the maintenance costs were being incurred and the monthly billings were being sent to the Spencers. The trial judge advised defense counsel:
The material question on that, Mr. Searcy, is not what he did then but his ability to pay now. I think that is the intention of the statute to give the courts some authority in that to determine whether or not he is able to pay now, not whether he paid then or was able to pay then.
We agree with counsel for HRS that the trial court erroneously assumed that HRS was precluded from recovering judgment for the unpaid maintenance fees by reason of indigency of the Spencers at the time of the trial.
[*511] [**4] We hold that under Section 402.33, Florida Statutes, HRS is authorized to charge parents of minors receiving services in a foster care program fees which have been properly established pursuant to that section and which represent the actual cost of such services, but not greater than the parents' ability to pay at the time such costs of services are incurred. In the instant case, HRS billed the Spencers on a monthly basis during the time the children were in foster care. Any issue as to the Spencers' ability to pay must relate to that period of time, not at the time of the trial or final judgment.
HRS also contends that the trial court erred when it refused to take judicial notice of Chapter 10-6, Fla.Admin. Code. That chapter contains the guidelines and procedure by which HRS determines maintenance fees based upon ability to pay as required by Section 402.33, Florida Statutes. Although no objection was made by opposing counsel, the trial court denied the request observing that it did not believe it could take judicial notice of an administrative rule. Contrary to the trial court's assumption, Section 90.202(9), Florida Statutes, provides that a court may take judicial notice [**5] of "rules promulgated by governmental agencies of this state which are published in the Florida Administrative Code or in bound written copies." Upon remand and the further proceedings hereinafter ordered, the trial court shall consider HRS's judicial notice request in light of the provisions of Section 90.202, Florida Statutes.
Finally, HRS contends that the trial court erred in denying its motion for summary judgment. We hold that the trial court did not err in denying HRS's motion.
The judgment for appellees is reversed and this cause is remanded to the trial court for further proceedings consistent with this opinion including, if necessary, the receiving of additional evidence.
REVERSED and REMANDED.
By Kenny Leigh
