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fall within the scope of this subsection or subsection (b) of this rule but for the fact that it has been replaced, superseded, or otherwise rendered no longer in force, and (5) the laws of foreign countries, international law, and maritime law.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 ch. 623 (1976) (repealed 1980) (originally enacted as L 1941, c 110, §§1, 2, 3, 4, 5), and Hawaii Rev.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 §622-13(c) (1976) (repealed 1980) (originally enacted as L 1921, c 232, §1; am L 1927, c 165, §1; am L 1945, c 195, §1; am L 1972, c 104, §2(h)). These superseded provisions mandated judicial notice "of the common law and statutes of every state, territory, and other jurisdiction of the United States" and of county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 (2001).

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 (2001).

Requires courts to take judicial notice of all duly enacted ordinances. 9 H. App. 73, 823 P.2d 154 (1992).

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 (1999).

Cited: 133 H. 102, 324 P.3d 912 (2014).