In re Lisse, s. 18-1866 & 18-1889

• Decision Date: 28 September 2018
• Docket Number: Nos. 18-1866 & 18-1889,s. 18-1866 & 18-1889
• Parties: IN THE MATTER OF: Steven Robert LISSE, Debtor. Appeals Of: Wendy Alison Nora
• Court: U.S. Court of Appeals — Seventh Circuit

905 F.3d 495

IN THE MATTER OF: Steven Robert LISSE, Debtor. Appeals Of: Wendy Alison Nora

Nos. 18-1866 & 18-1889

United States Court of Appeals, Seventh Circuit.

SUBMITTED SEPTEMBER 24, 2018

DECIDED SEPTEMBER 28, 2018

Easterbrook, Circuit Judge, in chambers.

Appellant has submitted a document styled "Request for Judicial Notice." In my capacity as motions judge, I deny this and publish a brief explanation in the hope of forestalling other, similar applications, which recently have increased in frequency.

Rule 201(b) of the Federal Rules of Evidence permits a court to take judicial notice of an adjudicative fact that is "not subject to reasonable dispute" because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

The "Request" asks the court to take judicial notice of four documents. Two of them are orders entered by a state court in Wisconsin. They are public records and appropriate subjects of judicial notice. See Menominee Indian Tribe v. Thompson , 161 F.3d 449, 456 (7th Cir. 1998) ; Fed. R. Evid. 901(b)(7).

The third is a power of attorney filed in state court. The fact that a document is in a state court’s record does not make it an appropriate subject of notice, however, because its provenance may be disputed. Is it authentic? See Rules 901 to 903. Are the four signatures real or forged? (The signature lines say that all four signers are officers of Bank of America; none is a party to this proceeding.) Is it the original, or perhaps a duplicate admissible under Rule 1003? Is the document even relevant? See Rule 402. If the power of attorney had been submitted in this proceeding it would not be subject to judicial notice. It does not get a privileged status because it was filed in a state suit.

The fourth document is a lawyer’s motion filed in the same state case. That document is not subject to judicial notice because it is not evidence of an adjudicative fact. A lawyer’s appellate brief in the Seventh Circuit is not evidence; neither is a lawyer’s motion in state court. If the document were being offered just to show that it had been filed, that fact might be subject to judicial notice, but the "Request" does not suggest that appellant wants this court to take notice that a particular document was filed on a specific date in some other tribunal.

I said at the outset that I am denying the "Request," and readers may...