But it is - very important.
The new law amends the so-called Civil Practice Law and Rules Section 4511 that, as of today, reads like this:
Let's go through the original pre-admendment law and see what it means, why was it changed and what problems - if any - the new change has brought to New York litigants, especially those litigants who do not have enough money to afford an attorney, much less a court expert.
A "judicial notice" is a type of action of a court of law to recognize certain law or facts without a trial.
The concept of judicial notice of law is simple and of unquestionable constitutionality. Judges, as a requirement of their professional competence - and CPLR 4511(a) have to know and apply without asking them to do that, laws applicable to the circumstances of a particular case (that are not violative of the U.S. or State Constitutions - such a condition is always implied, as it is in loyalty to the Constitutions that each judge is sworn).
Here is the text of CPLR 4511(a):
"(a) When judicial notice shall be taken without request. Every court shall take judicial notice without request of the common law, constitutions and public statutes of the United States and of every state, territory and jurisdiction of the United States and of the official compilation of codes, rules and regulations of the state except those that relate solely to the organization or internal management of an agency of the state and of all local laws and county acts."
Judicial notice of laws is mandatory for every judge - as reflected by the language of CPLR 4511(a) "every court shall".
Now, a judge may have a choice to take or not to take judicial notice as to some
Here is the text of CPLR 4511(b):
"(b) When judicial notice may be taken without request; when it shall be taken on request. Every court may take judicial notice without request of private acts and resolutions of the congress of the United States and of the legislature of the state; ordinances and regulations of officers, agencies or governmental subdivisions of the state or of the United States; and the laws of foreign countries or their political subdivisions. Judicial notice shall be taken of matters specified in this subdivision if a party requests it, furnishes the court sufficient information to enable it to comply with the request, and has given each adverse party notice of his intention to request it. Notice shall be given in the pleadings or prior to the presentation of any evidence at the trial, but a court may require or permit other notice."
Ok, so if a party requests a court to take judicial notice of:
- private acts and resolution of the Congress of the United States;
- private acts and resolutions of the New York State Legislature;
- ordinances and regulations of officers, agencies or governmental subdivisions of the State of New York or United States, and/or
- laws of foreign countries or their political subdivisions
It is obvious that in such a situation the shifting of the burden of proof to the defendant is a violation of due process, and putting the plaintiff and the defendant on completely unequal grounds undermines fairness and adversarial nature of judicial process.
Note also who constrained the defendant will be now in time to rebut this "judicial notice":