Doe v. Manor Coll.

• Decision Date: 22 February 2022
• Docket Number: Civil Action 18-5309
• Court: U.S. District Court — Eastern District of Pennsylvania
• Parties: JANE DOE, Plaintiff v. MANOR COLLEGE, Defendant

JANE DOE, Plaintiff
v.
MANOR COLLEGE, Defendant

Civil Action No. 18-5309

United States District Court, E.D. Pennsylvania

February 22, 2022

MEMORANDUM

GENE E.K. PRATTER UNITED STATES DISTRICT JUDGE

In this Title IX case, Jane Doe sued Manor College, claiming that the College discriminated and retaliated against her when it issued 13 different sanctions against her after she reported an alleged sexual assault, culminating in her removal from the College dormitory. One of those sanctions was for Ms. Doe taking an audio recording of the alleged assailants during the assault, which school administrators thought illegal. Ms. Doe contended that the Court, either by way of a jury instruction or an evidentiary use of judicial notice, should inform the jury about a Pennsylvania law that can allow an otherwise illegal taping.

This litigation concerned whether the school discriminated against Ms. Doe under Title IX, not whether the alleged sexual assault actually happened. A jury instruction on the legality of the audio recording based on whether Ms. Doe reasonably suspected a violent crime was about to take place would have risked confusing the issues and misleading the jury. Ms. Doe had other mid-trial methods for presenting this information to the extent it could have been relevant to a disputed issue. The Court thus declined to issue a jury instruction or take judicial notice of the three Pennsylvania wiretapping statutes.

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Background

Ms. Doe brought a Title IX action against Manor College based on its response to her report of on-campus sexual harassment, including an alleged sexual assault. Ms. Doe alleged that Manor College was deliberately indifferent to her complaints and retaliated against her by removing her from the College dormitory. Manor College responded by asserting that her removal from the dormitory was not due to her complaints about an alleged sexual assault, but rather her various violations of the school's Code of Conduct between September and November 2016. The cited violations included "[i]llegal audio recording without permission," disorderly conduct, disrespect for authority, failure to appear for a hearing, and a guest policy violation. PL's Ex. 106, at 36 (Dep. Ex. 30).

Ms. Doe's proposed jury instruction on this issue focused on the first of 13 Code of Conduct violations, for her "illegal" audio recording. This recording is one that Ms. Doe took with her cell phone at the beginning of the alleged sexual assault. Though the audio recording was mentioned at trial, Ms. Doe never introduced the recording.

As part of their investigation at the time of Ms. Doe's report, Manor College administrators formed the opinion that the audio recording was illegal under Pennsylvania wiretapping law because Ms. Doe did not have her alleged assailants' permission to take the audio recording. At the time Ms. Doe was sanctioned for the audio recording, she knew of, but did not contest, Manor's assessment. She was not charged for violating the state criminal law and there was no police investigation concerning the audio recording.

At trial, Ms. Doe argued that her audio recording was in fact legal under Pennsylvania law. Pennsylvania is a "two party" state that requires consent to record another. But this rule has many exceptions, including when a "person is under a reasonable suspicion that the intercepted party is

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committing, about to commit or has committed a crime of violence and there is reason to believe that evidence of the crime of violence may be obtained from the interception." 18 Pa. Stat. § 5704(17). Based on this argument, Ms. Doe proposed the following jury instruction:

In Pennsylvania, it is unlawful to audio record a person without their consent; however, it is not unlawful, and no prior consent is needed, for a victim to audio record a person when the victim believes that person is about to commit or has committed a crime, including sexual assault [citing 18 Pa. Cons. Stat. Ann. § 5702(1)(ii), 18 Pa Cons. Stat. Ann. § 5704(17)].

Doc. No. 85, at 12.

The Court held a conference with counsel on February 9, 2022 to finalize the jury instructions, at the end of the third day of trial. At the conference, counsel for Ms. Doe requested, for the first time, that the Court take judicial notice of three Pennsylvania statutes related to the exception to the statute prohibiting recording without consent. Specifically, Ms. Doe requested judicial notice of portions of three Pennsylvania statutory provisions (hereinafter, "the three state wiretapping statutes"): 18 Pa. Cons. Stat. § 5704(17) (exception for crime of violence); 18 Pa. Cons. Stat. § 5702 (defining "crime of violence"); and 18 Pa. Cons. Stat. § 3125 (defining "aggravated indecent assault").^[1]

Manor College objected to the Court taking judicial notice of the statutes, arguing that it is not proper for the Court to take judicial notice of a statute in this scenario and that the statutes involved a distracting side issue. Ms. Doe submitted a brief on February 9, 2022 in support of her request for judicial notice of the state wiretapping statutes. The Court ruled against Ms. Doe on this issue at the conference and now more fully explains that decision.

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Legal Standard

Federal Rule of Evidence 201 permits, and in some cases requires, judicial notice of "a fact that is not subject to reasonable dispute." Fed.R.Evid. 201(b). However, Rule 201 "governs judicial notice of an adjudicative fact only, not a legislative fact." Fed.R.Evid. 201(a). "Adjudicative facts are simply the facts of the particular case." Fed.R.Evid. 201, advisory committee's note to subdivision (a) of 1972 proposed rules. Adjudicative facts include, for example, the occurrence of a snowstorm, see United States v. Davis, 183 F.3d 231, 251 (3d Cir. 1999), a stock price on a given day, see Ieradi v. Mylan Labs., Inc., 230 F.3d 594, 600 n.3 (3d Cir. 2000), or geographical locations and boundaries, In re Int'l Bldg. Components, 159 B.R. 173, 180 (W.D. Pa. 1993). "Legislative facts, on the other hand, are those which have relevance to legal reasoning and the lawmaking process . . . [such as] the enactment of a legislative body." Fed.R.Evid. 201, note a.

A state statute is a quintessential legislative fact because it is the "enactment of a legislative body." Fed.R.Evid. 201, advisory committee's note to subdivision (a) of 1972 proposed rules; see also Project Vote v. Kelly, 805 F.Supp.2d 152, 184 (W.D. Pa. 2011) ("Unlike adjudicative facts, which concern the particular parties before the Court, legislative facts relate to the content of the law itself"). Legislative facts are not addressed in Rule 201 and no Federal Rule of Evidence specifically "deals with judicial notice of 'legislative' facts." Fed.R.Evid. 201, advisory committee's note to subdivision (a) of 1972 proposed rules.

Courts presiding over jury trials typically do not take "judicial notice" of laws. "The phrase 'judicial notice' applies to facts, not laws" because "judges, not juries, determine what is the law." United States v. Wynn, 987 F.2d 354, 358 (6th Cir. 1993); see also Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010) ("Judicial notice of legislative facts

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... is unnecessary."); Toth v. Grand Trunk R.R., 306 F.3d 335, 349 (6th Cir. 2002) ("[J]udicial notice is generally not the appropriate means to establish the legal principles governing the case."); Lemieux v. Cwalt, Inc., No. 15-cv-77, 2017 WL 365481, at *1 (D. Mont. Jan. 25, 2017) ("[B]ecause these statutes, cases, and regulations are 'legislative facts' rather than 'adjudicative facts,' they are not appropriate for judicial notice.").^[2]

Discussion

Ms. Doe requested judicial notice and a jury instruction on three state wiretapping statutes. In order to analyze this request, the Court considers whether these statutes fit within the limited circumstances where a federal court should consider a state statute in a federal question case and whether, even if the state statutes are relevant and proper to introduce, they should not be introduced to the jury due to risk of confusion, misleading the jury, or unfair prejudice to the opposing party under Federal Rule of Evidence 403.

I. This Is Not the Type of Federal Case in Which Judicial Notice of State Statutes is Appropriate

It is sometimes necessary to consider a state statute in a federal action. Though most obvious in diversity cases where the federal court must apply state law, state statutes are also implicated by federal question cases in limited circumstances, such as where...