Courts are bound by record as submitted by the parties–even at the District Court level. District Judge Johnson (EDNY) apparently missed that fact, as he personally visited the defendants’ business, to determine if they made the appropriate accommodations for disabled persons.
Here is how the NY Times describes this incident:
Something about the cases seemed wrong. The lawsuits, scores of them, accused businesses of failing to provide proper access for disabled customers. Defendants who lost had to pay the plaintiff’s legal fees, and they piled up in case after case. Last year, a federal judge in Brooklyn, citing “troubling litigation tactics,” denied legal fees, based in part on an unusual step by his chambers. His staff members investigated the matter outside the courtroom.
Now a federal appeals court is saying he went too far.
The judge, Sterling Johnson Jr., sent staff members to visit several Brooklyn businesses that were sued by Mike Costello, a paraplegic man, and found that most if not all were never made more accessible to disabled people.
The 2nd Circuit summarily vacated his opinion, and reassigned the case! The panel included all-star judicial diva, Judge Rakoff sitting by designation, who I’m sure enjoyed this benchslap.
However, we cannot affirm the district court’s denial of attorneys’ fees on the record before us. In its order, the district court noted that it visited “each of the businesses that were named defendants in Plaintiff’s eight lawsuits” and purported to take judicial notice of the fact that “most if not all of the alleged structural deficiencies preventing access to persons with disabilities still exist.” App. 115–16 & n.14. The district court drew from its observations the conclusions that plaintiff’s counsel never sought to remedy these failings, that counsel’s conduct was “mendacious,” and therefore that they should receive no attorneys’ fees. Id. at 116.
Judges can’t do this!
However, a court may take judicial notice only of facts that are “not subject to reasonable dispute” because they are generally known in the jurisdiction or “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). While the district court may be correct in its observations that certain structural defects existed at the time of its visit, it is not clear to this Court that such defects are “not subject to reasonable dispute”or that the conclusions that the district court drew from its observations may be “readily determined from sources whose accuracy cannot reasonably be questioned.” …
Moreover, the district court did not provide notice of its investigation or its findings prior to the issuance of its opinion, which deprived Costello of an opportunity to contest the factual findings contained in the order denying attorneys’ fees. …
Under these circumstances, the district court erred in taking judicial notice of the conditions of these businesses and drawing adverse conclusions therefrom, and we cannot say with certainty that the district court would have reached the same conclusion with respect to attorneys’ fees absent this error. Therefore, we must remand for reconsideration of the motion for attorneys’ fees.
This is only slightly worse than appellate judges googling to find facts outside the record. I’m looking at you Justice Breyer.