State v. Lewis, S-90-1236

• Decision Date: 08 May 1992
• Docket Number: No. S-90-1236,S-90-1236
• Citation: 483 N.W.2d 742,240 Neb. 642
• Parties: STATE of Nebraska, Appellee, v. Charles G. LEWIS, Jr., Appellant.
• Court: Nebraska Supreme Court

Page 742

483 N.W.2d 742

240 Neb. 642

STATE of Nebraska, Appellee, v. Charles G. LEWIS, Jr., Appellant.

No. S-90-1236.

Supreme Court of Nebraska.

May 8, 1992.

Syllabus by the Court

Ordinances: Presumptions: Judicial Notice: Appeal and Error. When an ordinance charging an offense is not properly made a part of the record, an appellate court presumes the existence of a valid ordinance creating the offense charged, and an appellate court will not otherwise take judicial notice of the ordinance.

John C. Vanderslice, Lincoln, for appellant.

Norman Langemach, Jr., Lincoln City Prosecutor, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

PER CURIAM.

Defendant, Charles G. Lewis, Jr., was charged with driving while under the influence of intoxicating liquor, in violation of Lincoln Mun.Code § 10.52.020, and with operating a snowmobile on a public street, in violation of Lincoln Mun.Code § 10.65.010. The county court for Lancaster County, following trial on stipulated facts, found the defendant guilty on each charge and sentenced him to 1 year's probation, a $200 fine, and a 60-day driver's license suspension. Defendant appealed the driving while under the influence charge to the district court for Lancaster County, which affirmed. This appeal followed. In this court, defendant contends that a snowmobile is not a motor vehicle under the Lincoln Municipal Code provision which prohibits driving a motor vehicle while under the influence. We affirm.

The provisions of the Lincoln Municipal Code under which the defendant was convicted and sentenced are not in the record. This court will not take judicial notice of a city ordinance which does not appear in the record.

When an ordinance charging an offense is not properly made a part of the record, an appellate court presumes the existence of a valid ordinance creating the offense charged, and an appellate court will not otherwise take judicial notice of the ordinance.... In the absence from the record of the applicable municipal ordinance, an appellate court presumes that the evidence sustains the findings of the trial court and that a sentence is within the limits set out in the applicable ordinance.

State v. King, 239 Neb. 853, 854, 479 N.W.2d 125, 126 (1992). See, also, State v. Topping, 237 Neb. 130, 464 N.W.2d 799 (1991); State v. Cottingham, 226 Neb. 270, 410 N.W.2d 498 (1987); State v. Lynch, 223 Neb. 849, 394 N.W.2d 651 (1986); State v. Bruce, 213 Neb. 661, 330 N.W.2d 752 (1983).

When the applicable ordinance is not in the record, the district court, on the initial appeal to that court, and the appellate court, on appeal from the district court, will presume that the evidence before the trial court supports the findings of the trial court. State v. Topping, supra; State v. Cottingham, supra. The order of the district court, affirming the order of the county court, is affirmed.

AFFIRMED.

SHANAHAN, Justice, concurring.

This court continues to use a strange standard for disposition of a case involving an omitted ordinance, namely:

When an ordinance charging an offense is not properly made a part of the record, an appellate court presumes the existence of a valid ordinance creating the offense charged.... In the absence from the record of the applicable municipal ordinance, an appellate court presumes that the evidence sustains the findings of the trial court and that a sentence is within the limits set out in the applicable ordinance.

The preceding incantation is used to pull no fewer than two "presumptions" out of a judicial hat to affirm Lewis' conviction. As the result of those unwarranted and untenable presumptions, the majority relieves the State from the fundamental requirement of establishing a valid basis for taking away a defendant's liberty or property. Rather than indulge in such dispensation, other courts in several jurisdictions have concluded that the State's failure to establish the ordinance on which a prosecution is based requires reversal of the conviction and dismissal of the proceeding; for instance, see State v. Pallet, 283 N.C. 705, 198 S.E.2d 433 (1973) (State's failure to establish the municipal ordinance on which the prosecution is based required dismissal of the prosecution); Sisk v. Town of Shenandoah, 200 Va. 277, 280, 105 S.E.2d 169, 171 (1958) (conviction based on a municipal ordinance prohibiting drunk driving is, in the absence of the municipal ordinance in the record, reversed because "[f]air trial practice required that the defendant be afforded the opportunity to know the provisions of the ordinance she is charged with violating"); Hishaw v. City of Oklahoma City, 822 P.2d 1139 (Okla.Crim.App.1991) (conviction reversed because municipal ordinance was absent from record presented to appellate court); Peters v. City of Phenix City, 589 So.2d 800 (Ala.Crim.App.1991) (failure to introduce into evidence the ordinance on which the charge was brought rendered the evidence insufficient to sustain a conviction); Gonon v. State, 579 N.E.2d 614 (Ind.App.1991) (ordinance's absence from the record renders the evidence insufficient to sustain a defendant's conviction). Thus, prosecution of a defendant for violation of an ordinance without including the ordinance in the case against the defendant implicates due process and the right to a fair trial.

Although one might contend that a defendant can offer a certified copy of the ordinance at some stage of the proceeding before judgment in the trial court, the fact remains that the prosecution should be required to prove a prima facie case against a defendant, including existence of the very ordinance under which the prosecution is maintained. Otherwise, this court condones and even assists in the deprivation of a defendant's liberty or property, as the result of prosecution under an ordinance which may, or may not, exist. Moreover, any litigant whose success in an action depends on existence of an ordinance should have the burden to establish existence of the ordinance. Also, in Zybach v. State, 226 Neb. 396, 401, 411 N.W.2d 627, 631 (1987) (quoting Nevels v. State, 205 Neb. 642, 289 N.W.2d 511 (1980)), this court stated that " 'a party seeking the benefit of such provisions [of an ordinance or regulation must] plead and prove the existence of the ordinance or rule.' " Thus, in cases involving an alleged violation of an ordinance, this court "presumes the existence of a valid ordinance creating the offense," while simultaneously requiring that a party who seeks to benefit from the provisions of an ordinance must " 'plead and prove the existence of the ordinance.' " Judicial doublethink!

Furthermore, the standard employed in Lewis' case may effectively eliminate appellate review of a conviction, since the prosecution, by omitting the crucial ordinance from the record in the trial court, can obviate a defendant's successful appeal from a conviction based on the ordinance. The standard in Lewis' case may also lead to certain undesirable and peculiar results, such as this court's upholding a conviction obtained under an unconstitutional ordinance. For example, suppose that a defendant is prosecuted for violating a municipal ordinance which prohibits an individual's criticism of city government or a public official, or suppose that a defendant is charged with violating an ordinance which forbids the presence of a particular racial minority within a city, a racial minority which includes the defendant. In the foregoing examples, notwithstanding that the defendant has properly challenged the constitutionality of the ordinance that is omitted from the trial, the defendant's conviction under a constitutionally suspect ordinance must be upheld, even if the unconstitutional ordinance is missing from the prosecution's case through oversight or deliberate deletion. Could not happen? Take a look at State v. Sator, 194 Neb. 120, 230 N.W.2d 224 (1975); State v. Radcliff, 188 Neb. 236, 196 N.W.2d 119 (1972); and State v. Novak, 153 Neb. 596, 45 N.W.2d 625 (1951).

The only explanation for the strange standard used by the majority regarding the missing ordinance in Lewis' case is the rationalization: "Even though wrong, we've always done it this way." Under that approach to jurisprudence, trial by ordeal and dousing suspected witches would still be acceptable methods to ascertain truth of allegations.

As an alternative to the standard employed by this court regarding an omitted ordinance, Lewis has supplied us with certified copies of applicable Lincoln ordinances pertinent to the prosecution and requests that this court take judicial notice of those ordinances as adjudicative facts. The State does not question the authenticity of the ordinances presented for judicial notice by this court; hence, the applicable Lincoln ordinances are beyond question in Lewis' appeal.

The Nebraska Evidence Rules allow the judicial notice requested by Lewis, for Neb.Evid.R. 201(2) provides: "A judicially noticed fact must be one not subject to reasonable dispute in that it is ... (b) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Neb.Evid.R. 201(6) states that "[j]udicial notice may be taken at any stage of the proceeding." Therefore, an appellate court can take judicial notice of an adjudicative fact.

Various commentators have emphasized the propriety and practicality concerning judicial notice of a municipal ordinance.

In the case of local ordinances, judicial notice was originally withheld by courts other than those of the local adoptive government. The reason is that only the judge of the local court was likely to have knowledge about or access to the ordinance. Therefore the rule of availability would naturally be limited to that court. The facts do not support the rule. Regardless of the court, if the ordinance is available, is reliable and is known to the court, it should be judicially...