The ABA Draws a Brightline for Judges Conducting Independent Factual Research

The American Bar Association’s latest formal opinion prohibits judges from conducting independent research on adjudicative facts unless the information is subject to judicial notice. However, judges are permitted to use the Internet to search for general contextual information and to research legislative facts.

Formal Opinion 478 defines an adjudicative fact as one containing information that has factual consequence in determining the outcome of a case—i.e., the who, what, when, where, why and how. A legislative fact, on the other hand, is broad and does not specifically concern the immediate parties at hand.

The opinion offers several hypothetical situations to differentiate between these two types of information. For example, a judge who is assigned to a district with a history of environmental contamination cases may conduct general background learning on the Internet before a case is assigned, and may rely upon that information so long as there is reason to believe that the source is reliable. Conversely, a judge impermissibly gathers information about adjudicative facts when researching the store hours of a specific restaurant while presiding over a case involving a claim of unpaid overtime. There, the restaurant’s hours of operation have factual consequences in determining whether the plaintiff will prevail on the claim.

The ABA derives its bright-line distinction from Model Rule 2.9(C) in the Model Rule of Judicial Conduct. Under Model Rule 2.9(C), a judge’s investigation of facts is restricted to the evidence presented and to any information that may be judicially noticed. Due process protections found in Fed. R. of Evid. 201(e) guarantees that a party is entitled to be heard either before or after a court takes judicial notice of an adjudicative fact.  However, parties do not enjoy the same protections with research of legislative facts because the broad and recurring nature of this information does not raise the same due process concerns as adjudicative facts.

Overall, Formal Opinion 478 aims to preserve judicial impartiality against improper ex parte communications by limiting the scope of independent fact finding not tested by the adversarial process. The ABA emphasizes Model Rule 2.9(D) and reminds judges of their duty to supervise court staff and officials by taking reasonable steps to prevent improper independent investigations. Meanwhile, the ABA also recognizes the utility of the Internet as an important educational tool for today’s judiciary by encouraging judges to draw upon information contained in reliable Internet sources in the same way that they would use information from judicial seminars and books.

To read the ABA’s full opinion, click here.

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