Tennessee law of evidence requires courts to take judicial notice of Tennessee statutes, the statutes of other states, and the statutes of the United States. T.R.E. 202(a). But the same thing is not true regarding ordinances. Rather, a trial court may take judicial notice of municipal ordinances “upon reasonable notice to adverse parties.” T.R.E. 202(b).
Judicial notice of an ordinance is not automatic. For instance, in State v. Chearis, No. 02C01-9710-CC-00407, 1999 WL 167609, at *2 (Tenn.Crim.App. at Jackson, March 29, 1999), the appellate court ruled that neither it nor the trial court could take judicial notice of an ordinance that had not been entered into evidence or submitted to the court for introduction into evidence and the State’s failure to request that the court take judicial notice of the ordinance.
In Montepeque v. Adevai, No. E200901871COAR3CV, 2010 WL 3025541, at *9 (Tenn. Ct. App. Aug. 4, 2010), the court said “it is left to the sound discretion of the trial judge to ascertain whether the reasonable notice criterion has been satisfied under the particular circumstances of the case.”
In State v. Chearis, 995 S.W.2d 641, 643 (Tenn.Crim.App.1999), the Court of Appeals found that a trial court may not take judicial notice of a municipal ordinance absent compliance with Rule 202 of the Tennessee Rules of Evidence. In that case,
[t]he State’s witnesses testified that defendant was arrested for violation of a Somerville city ordinance prohibiting the possession or consumption of alcohol in a public place. However, in spite of defendant’s objection, at no time was a copy of that ordinance entered, or attempted to be entered, into evidence by the state. Nor do we find in the record notice by the state of its intent to request that judicial notice be taken of the ordinance. Given the dictates of Rule 202, the trial court could not take judicial notice of the ordinance, nor can this Court.
Id. at 643.
The Court of Appeals refused to consider Knoxville zoning ordinances when neither party brought them to the attention of the trial court or each other. 411 Partnership v. Knox County, 372 S.W.3d 582 (Tenn. Ct. App. 2011).
The lesson: if success for your claim or defense depends in part on a municipal ordinance, obtain a copy of the ordinance as early as possible. If the ordinance is not published and readily available, it is suggested you obtain and use a certified copy of it. Make sure the ordinance was in effect on the date(s) at issue.
When should you give your opponent notice of your intent to use it at a hearing or trial? That will depend on the circumstances, and may depend on the scheduling order (if any) entered in the case. Be sure to file it with the court, along with a certificate of when you supplied it to opposing counsel.
Finally, remember that BirdDog Law has a database of ordinances in effect in many Tennessee cities and towns.