Rule 202  Judicial notice of law.  (a) 
Scope of rule.  This rule governs only judicial notice of law.



(b)  Mandatory judicial notice of law.  The
court shall take judicial notice of (1) the common law, (2) the constitutions
and statutes of the United States and of every state, territory, and other
jurisdiction of the United States, (3) all rules adopted by the United States
Supreme Court or by the Hawaii Supreme Court, and (4) all duly enacted
ordinances of cities or counties of this State.



(c)  Optional judicial notice of law.  Upon
reasonable notice to adverse parties, a party may request that the court take,
and the court may take, judicial notice of (1) all duly adopted federal and
state rules of court, (2) all duly published regulations of federal and state
agencies, (3) all duly enacted ordinances of municipalities or other
governmental subdivisions of other states, (4) any matter of law which would
fall within the scope of this subsection or subsection (b) of this rule but for
the fact that it has been replaced, superseded, or otherwise rendered no longer
in force, and (5) the laws of foreign countries, international law, and
maritime law.



(d)  Determination by court.  All
determinations of law made pursuant to this rule shall be made by the court and
not by the jury, and the court may consider any relevant material or source,
including testimony, whether or not submitted by a party or admissible under
these rules. [L 1980, c 164, pt of §1]



 



RULE 202 COMMENTARY



 



  This rule, which has no counterpart in Fed. R. Evid.,
generally restates statutory law, Hawaii Rev. Stat. ch. 623 (1976) (repealed
1980) (originally enacted as L 1941, c 110, §§1, 2, 3, 4, 5), and Hawaii Rev.
Stat. §622-13(c) (1976) (repealed 1980) (originally enacted as L 1921, c 232,
§1; am L 1927, c 165, §1; am L 1945, c 195, §1; am L 1972, c 104, §2(h)). 
These superseded provisions mandated judicial notice "of the common law
and statutes of every state, territory, and other jurisdiction of the United
States" and of county ordinances, and provided for judicial determination
of foreign and other laws.



  Subsection (b):  This adds to the mandatory category U.S.
Supreme Court and local court rules and is consistent with Schoening v. Miner,
22 H. 196, 202 (1914), where the court said: "[R]ules made by a judge of a
circuit court, and approved by this court, should be judicially noticed by this
court."



  Subsection (c):  The early Hawaii case law considered foreign
law an issue of fact that required pleading and proof and was subject to
determination by the trier of fact.  In Board of Immigration v. Estrella, 5 H.
211, 214 (1884), for example, the court said, "A foreign law, relied upon
as a defense, must be proved, like any other fact in the case."  Hawaii
Rev. Stat. §623-3 (1976) (repealed 1980) provided simply that "the law of
a [foreign country] shall be an issue for the court, but shall not be subject
to...judicial notice."  This rule includes foreign law among those items
that may be judicially noticed.



  Subsection (d):  This provision is based upon the last two
sentences of HRCP 44.1, which provides:



The court, in determining foreign law, may consider any
relevant material or source, including testimony, whether or not submitted by a
party or admissible under Rule 43.  The court's determination shall be treated
as ruling on a question of law.



The subsection extends the provisions of this court rule to
every category of law subject to judicial notice under Rule 202.



 



Case Notes



 



  Courts are duty-bound to take judicial notice of municipal
ordinances; therefore, state circuit and district courts must treat ordinances
like state statutes, specifically, as not required to be admitted in evidence
or to be expressly requested by counsel.  95 H. 22, 18 P.3d 884.



  Where trial court properly took judicial notice of the speed
limit, as required by subsection (b), there was sufficient evidence to find
motorist guilty of violating §291C-102(a).  95 H. 22, 18 P.3d 884.



  Requires courts to take judicial notice of all duly enacted
ordinances.  9 H. App. 73, 823 P.2d 154.



  Though reliability of the horizontal gaze nystagmus (HGN)
test did not constitute an adjudicative fact under rule 201 or a matter of law
that can be judicially noticed under this rule, district court properly took
judicial notice of the validity of the principles underlying HGN testing and
the reliability of HGN test results.  90 H. 225 (App.), 978 P.2d 191.