What can an appellate judge do?

Howard Bashman has this interesting article at law.com on whether appellate judges should be allowed/encouraged to look at blawgs related to substantive matters in pending cases. We have been dealing with a slight variance of this question at the ADO in the past few weeks.

In State v. Smith, a Pottawatomie County jail credit case, Matt Edge had filed a brief and the state had responded conceding that Mr. Smith should get a hearing. A few weeks before the calendar date, however, we got an order from the COA stating that according to KASPER, Mr. Smith was an absconder and requiring us to prove that he was within the jurisdiction of the district court or face dismissal pursuant to State v. Scott.

We have been getting more of these types of orders since DOC went on line with its population information. The question is: is it proper for the COA sua sponte to look at and/or rely on a web site that is not part of the record and which itself disclaims its own accuracy?

We responded with a motion to reconsider the order citing Canon 3 of the Rules of Judicial Conduct, which prohibits judges from conducting independent investigations, but requires judges to decide the case on the record brought before them. We also cited K.S.A. 60-409 and -412, dealing with judicial notice, which allow appellate judges to take judicial notice of facts of generalized knowledge that are easily confirmed by reference to a source of indisputable accuracy. An inmates custody status is neither a fact of generalized knowledge nor is KASPER indisputably accurate. (For example, in the area of persons listed as "DOC warrant issued" or "absconder, it may only mean that the inmate failed to report to his/her parole officer. It does not mean that the person has actively avoided judicial process.)

In Smith, the COA didn't act on the motion to reconsider right away, so we ended up filing a petition for review 30 days after the order to show cause was issued. About a week ago, Mr. Smith was returned to Kansas and we so notified the COA. Yesterday, the COA issued an opinion reversing and remanding for a hearing on jail credit and separately withdrew its order to show cause.