Rule 44.1.Determining local and foreign law

Reporter’s Notes—1983 Amendment: Rule 44.1 is amended in conjunction with the adoption of Evidence Rule 201 to provide a basis in the rules for “judicial notice” or proof of ordinances, administrative regulations, and private laws. The amendment makes some changes in prior practice. Previously state administrative regulations were a proper subject of common-law judicial notice, but private laws and municipal ordinances (and presumably regulations) had to be pleaded and proved. See Reporter’s Notes to Evidence Rule 201. Under amended Rule 44.1(a), the content and significance of state regulations and private laws, as was formerly true of foreign law generally, can be determined by the court as questions of law if notice thereof is given by the proponent. This change is warranted for the same reason that underlay the original adoption of Rule 44.1: Increased accessibility of the materials in question makes them appropriately matters of “law” rather than “fact.” See Reporter’s Notes to Civil Rule 44.1. Rule 44.1(b) is new. It provides for municipal ordinances and regulations a simplified and clarified restatement of prior practice. The proponent of a municipal ordinance or regulation must either plead his intention to rely on it or give some other form of written notice of that intention to other parties reasonably before trial. He must then produce evidence of its contents. The rule does not specify what that evidence must be, but under Evidence Rules 1002, 1005, it must be either the original text, or a copy authenticated under Evidence Rule 902 or by testimony, unless such a copy cannot be obtained by reasonable diligence. In the latter event, other evidence, such as the testimony of one familiar with the text, may be received for what it is worth. The content of the ordinance or regulation is to be finally determined by the court, but is a question of fact based on the evidence produced. The construction or interpretation of the ordinance or regulation is a question of law as to which the court is free to refer to any source whether provided by a party or not, as under Rule 44.1(a). Note that the rule does not apply to the general law of Vermont or the United States, because that law is binding on the court ex officio. See Reporter’s Notes to Evidence Rule 201. The rule is also amended to refer to the Vermont Rules of Evidence as the general standard of admissibility.

Reporter’s Notes: This rule is based on Federal Rule 44.1, but extends the provisions of that rule to cover the law of other states and United States territories and dependencies as well as foreign countries. Cf. proposed Massachusetts Rule 44.1. In so far as the law of other United States jurisdictions goes, the rule is consistent with prior Vermont practice. See 12 V.S.A. § 1699 (now superseded); In re Estate of Holden, 110 Vt. 60, 1 A.2d 721 (1938). It was previously held, however, that the law of a foreign country is a question of fact of which judicial notice may not be taken. See In re Everett’s Estate, 112 Vt. 252, 23 A.2d 202 (1941); Wellman v. Mead, 93 Vt. 322, 107 A. 396 (1919). With increased accessibility of foreign legal materials, there seems no reason to maintain the distinction, given the notice provisions of the rule. See 2B Barron & Holtzoff, Federal Practice and Procedure §§ 996-998 (Supp. 1968).