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In a case hinging on the ongoing scientific debate over the dangers of secondhand smoke, an upstate New York judge has held that a judicially noticed fact is subject to dispute, despite the absence of statutory or case law resolving the issue. New York Supreme Court Justice Robert F. Julian, presiding over a case where a 14-year-old boy wants to prohibit his mother from smoking in his presence, said that if there is credible scientific evidence that secondhand smoke is not as dangerous as some claim, the mother has a right to bring it forward, even though the court is taking judicial notice of the hazards of environmental tobacco smoke. Johnita M. DeMatteo v. David D. DeMatteo, D-37432, deals with the evidentiary significance of judicially noticed facts, and whether those accepted “facts” are subject to challenge in a bench trial. Justice Julian, of Utica, N.Y., found little authority on the subject and had to reach back to a 1932 New York Court of Appeals opinion ( People ex rel Domingo v. French Bottling, 259 NY4) to find the high tribunal’s “clearest expression” of the question — and then discovered only dicta. Additionally, in examining commentary on federal rules of evidence, Julian found support for the proposition that judicially noticed facts are dispositive in a jury trial, but nothing to indicate how the matter should be handled in the “inherently more flexible format of a bench trial.” The dispute at hand began when a teen-ager who lives with his nonsmoking father and grandparents complained about his mother’s smoking during court-ordered visitations. Even though the boy has no disorder, such as asthma, that could be exacerbated by exposure, Justice Julian earlier this year issued an interim order strictly limiting the mother’s smoking. In that order, Julian proposed taking judicial notice of the dangers of involuntary smoking. The mother opposed judicial notice and submitted literature to support her claim that environmental tobacco exposure is not harmful. Julian found persuasive a legislative enactment in 1989 that limited smoking in public places, and underlying documents attesting to the “substantial body of scientific research showing that breathing secondhand smoke is a significant health hazard for non-smokers.” He also referred to a 1986 report of the U.S. Surgeon General, which to a significant degree provided a scientific foundation for the state legislation. “[T]he only logical conclusion is that this law declared [environmental tobacco smoke] to be a significant health hazard wherever it may be encountered, while regulating exposure only in selected public places,” Julian wrote. He then took judicial notice that secondhand smoke causes cancer in nonsmokers, and that the children of smokers suffer a higher incidence of respiratory problems. That raised another question regarding the taking of judicial notice: So what? JUDICIALLY NOTICED FACTS “Some scholars distinguish judicially noticed facts as either legislative or adjudicative,” Julian wrote. “Adjudicative facts are specific to the case; legislative facts are ‘those which have relevance to legal reasoning and the law making process’ … In this case, the legislative facts that are judicially noticed are based upon the state of medical literature as of 1989. It only makes sense that the plaintiff or any party be allowed to contest this actual finding.” Julian said that “justice and reason” dictate that the mother be allowed to make her case, and noted that she has already come forth with one peer-reviewed article that disputes the carcinogenic hazards linked to involuntary smoking. “The plaintiff should be entitled to dispute the decade-old finding by the Legislature with subsequently developed scientific facts, but the plaintiff will have the burden of proof,” Julian wrote. Appearing were: Joan T. Shkane of Shkane & Shaheen in New Hartford, N.Y., for the mother; Kurt D. Parry of Rome, N.Y., for the father; and law guardian William L. Koslosky of Koslosky & Koslosky in Utica for the boy.

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