ASSOCIATION OF REPORTERS OF JUDICIAL DECISIONS 7909 Roswell Drive Falls Church, VA 22043 March 11, 1997 Appellate Court and Circuit Administration Division Attn: ABA Citation Resolution Suite 4-512 Administrative Office of the U.S. Courts Washington, D.C. 20544 On behalf of the Association of Reporters of Judicial Decisions (ARJD), I submit for your consideration a dissenting opinion to the report issued by the American Association of Law Librarians Task Force on Citation Formats. This opinion represents the views of the ARJD on the question addressed by the ABA Citation Resolution. The ARJD consists of those responsible at various courts for writing syllabuses, editing opinions, preparing opinions for publication, and having those opinions published officially for the courts. Sincerely, Wm. Scott Henwood Chair, Electronic Publishing Committee Enclosure * * * * * One Commerce Plaza, 17th Fl. Albany, N.Y. 12210 (518) 473-4597 March 1, 1995 AALL TASK FORCE ON CITATION FORMATS FINAL REPORT DISSENTING OPINION Frederick A. Muller, dissenting: Because the basic Wisconsin form recommended by the Task Force majority is an untried and unproven generic citation form which excludes parallel citations, prohibits use of volume and page numbers in case reports which causes the recommended citation form to be incompatible with continued production of print case reports in many jurisdictions, and is likely to "balkanize" and fragment the present established citation system, thereby complicating, confusing, and making legal research and verification of citations more costly and time consuming, I am compelled to dissent from the majority report. /1/ The comments stated in this dissenting opinion are my personal views expressed as an individual member of this Task Force and as the representative of the Association of Reporters of Judicial Decisions /2/ to this Task Force, and should not be interpreted as representing the views of the New York State Unified Court System. The Association of Reporters of Judicial Decisions consists of those responsible at various courts for writing headnotes, summaries and syllabuses, editing opinions, preparing opinions for publication, and supervising the official publication of those opinions for the courts. The purposes of the Association are to improve the accuracy and efficiency of reporting judicial decisions, and, to that end, to serve as a forum for communication and cooperation among official reporters of judicial decisions. /3/ As the public officials responsible for implementing changes in citation forms, reporters of judicial decisions are directly affected by the majority's recommendations. On August 5, 1994, the Association of Reporters of Judicial Decisions unanimously adopted the following policy statement concerning proposals to replace the current system of official and proprietary citations with a new so-called medium and vendor neutral citation system: "The Association of Reporters of Judicial Decisions consists of those responsible at various courts for writing syllabuses, editing opinions, preparing opinions for publication, and having those opinions published officially for the courts. The goal of each member is to provide easy access to opinions at a reasonable cost. We are always open to ideas to improve the system. The members believe that, as to those jurisdictions that publish their opinions in official reports, creation of a vendor-neutral form of electronic citation is unnecessary. There is no evidence that citation to the present official reports does not adequately serve the needs of all users. Pagination in those reports is now easily accessible and not copyrighted. Any problems can be dealt with by reporters of decisions or other responsible personnel in the respective jurisdictions. Where there is no official report, citation can be to the regional reporter system with the addition of paragraph numbers being provided by the court in the opinion. Those numbers could be used -- in lieu of pinpoint citations. As for unpublished opinions, the fact that they are unpublished suggests the court does not want them cited; desires of users cannot override the intent of the issuing court." The basic Wisconsin form recommended by the Task Force majority uses four elements: year of decision, court, sequential opinion number, and paragraph number, e.g., Smith v Jones, 1996 Wis 235, 15, where 1996 is the year of decision, Wis is the abbreviation for the Wisconsin Supreme Court, 235 is the 235th decision released by that court in 1996, and 15 is the 15th paragraph in the opinion. Each court would possess a separate sequential numbering system, e.g., Wisconsin Court of Appeals opinions would be cited as People v Smith, 1996 Wis App 142, 18. The recommended citation form excludes parallel citations -- only the generic so-called vendor and medium neutral citation is permitted. Volume and page numbers are prohibited. Books would be identified on the spine with year and case numbers, e.g., 1996 Wis Cases 200-399. /4/ The Axel-Lute /5/ honesty principle requires that writers be permitted to cite to the specific source they actually use. The basic Wisconsin citation form recommended by the majority is a generic citation form which EXCLUDES parallel citation to the specific source actually used. Often, the slip opinions initially released by the courts to the public are substantially edited and corrected by reporters' offices before the final text is officially published in Advance Sheets, bound volumes, CD-ROM and on-line. Courts also amend, clarify, vacate and depublish slip opinions. These changes are an integral part of the judicial decision-making process; they are essential to the integrity of the judicial process and are reflected in the timetables of finalization of the officially published text. My reporter's office corrects several thousand errors of a substantive nature each year, and makes many thousands of corrections of a stylistic nature. Thus, the final edited text which is officially reported may be significantly different than the unedited slip opinions initially released by the courts. In the meantime, while reporters' offices are editing the slip opinions and preparing them for official publication, the unedited slip opinions obtained from court electronic bulletin boards or in print slip form are being widely distributed by various publishers, and libraries, law firms and others are adding the unedited slip opinions to their files and electronic databases. Because hundreds, and perhaps thousands of copies of each unedited slip opinion are distributed, and sometimes intermediate versions of opinions are distributed which do not contain all of the final textual changes, it is essential that the traditional official reports citations be preserved to distinguish between different versions of the text of a cited opinion and to permit people to cite to the specific official report of a case which not only includes the final edited text, but also may include headnotes, summaries, syllabuses, and other editorial enhancements approved by the court that authored the opinion. Concerns regarding proliferation of parallel citations could be resolved by permitting citation to any reliable source, with one parallel reference to a public domain citation if a proprietary citation is used as the primary citation. No parallel citation would be required if the primary citation was in the public domain. For example, reporters would cite to the official reports in their jurisdictions and no parallel citation would be required since official reports are in the public domain. The basic Wisconsin citation form recommended by the majority eliminates volume numbers and page numbers; books would be identified on the spine with year and case numbers rather than volume numbers, e.g., 1996 Wis Cases 200-399. Since the Wisconsin citation form eliminates page numbers, print volumes necessarily would have to be organized by sequential opinion numbers so that readers could locate opinions within the print volumes. As a practical matter, this proposal would be incompatible with continued book production in jurisdictions where unedited slip opinions are released to the public followed by editing by the reporter's office which must be approved by the authoring Judges. Sometimes Judges and courts will withhold final approval of opinions for official publication for several weeks, or even months. This does not delay print publication using traditional page numbers since the edited opinions are not published in the order of sequential opinion numbers, but are assigned page numbers for publication as soon as the Judges approve them for official publication. On the other hand, print publications must be organized by sequential opinion numbers if page numbers are eliminated. Thus, under the Wisconsin citation form, print publications could be delayed for weeks or months if a court or Judge were to delay approval of editorial changes to one opinion, since all subsequently (higher) numbered opinions could not be published until all of the previously (lower) numbered opinions were printed in numerical order. For example, if a Judge delayed approval of editorial work concerning Opinion No. 10, and Opinions Nos. 11-191 were edited and approved for official publication, Opinions Nos. 11- 191 could not be printed until Opinion No. 10 was approved for official publication. Given the fact that delays in approval of editorial work by Judges and courts are common and inherent in the judicial process, I believe that the Wisconsin citation form is incompatible with timely production of print weekly Advance Sheets and bound volumes. Indeed, I believe that the delays would be significant enough to make continued book production impractical in many jurisdictions; these delays take on added significance where print case reports are competing against CD-ROM and on-line products. Because the Wisconsin citation form eliminates volume and page numbers and each court utilizes its separate sequential numbering system, the recommended citation form is incompatible with the continued publication of multiple courts in a single print case reporter. Multiple courts would each have separate numbering systems and there would not be sufficient space on the spines of books for several different numbering systems. For example, in its official Miscellaneous Reports, New York State publishes the opinions of the Appellate Terms of Supreme Court, Supreme Court (State-wide trial court of general jurisdiction), Court of Claims, Family Court, Surrogate's Court, Criminal Court of City of New York, Civil Court of City of New York, County Courts, District Courts, 61 different City Courts, 932 Town Justice Courts, and 552 Village Courts. Obviously, there would be insufficient space on the spines of the printed Miscellaneous Reports bound volumes to list all of the various courts and opinion numbers printed in the particular print volumes, and it would be difficult to locate particular opinions in a volume with many different numbering systems -- one for each court whose opinions are published in that volume. A fortiori, it would be even more difficult to publish opinions in the weekly official New York Advance Sheets which combine opinions from the Court of Appeals and the Appellate Divisions of Supreme Court with all lower court opinions in a single weekly Advance Sheet containing more courts and less space on the spine than the bound volumes. Also, under the Wisconsin citation form, the printing of multiple courts in a single print reporter would require cumbersome cross-reference tables and blue and white books which would make print research more complicated, time consuming and costly. If unpublished and published opinions are sequentially numbered according to one numbering sequence, with the unpublished opinions being designated with a "U" following the citation (e.g., 1996 Wis 208 [U]), the resulting discontinuity of published opinion numbers would be incompatible with continued book production in jurisdictions with large numbers of unpublished opinions because of gaps in published opinion numbers and insufficient space on the spine of a volume to list all of the numbers of the opinions published in a particular volume, e.g., 1996 (court) Cases 4,296-4,298, (numbering gap] 5,423, [numbering gap) 5,842, [numbering gap) 6,901-6,905, (numbering gap) 10,164-10,165, (numbering gap] 11,201, etc. Assuming that 300-400 opinions were published in a particular volume, it is likely there would not be sufficient space on the spine to list all the published opinion numbers. This is particularly true in large jurisdictions with hundreds of thousands of unpublished decisions each year. Thus, I conclude that the recommended Wisconsin citation form would be incompatible with continued case report book production in many jurisdictions, and that it would result in print production delays and be so cumbersome for researchers to use that it would hasten the demise of print publications in other jurisdictions. The unspoken premise which appears to underlie the majority's recommended Wisconsin citation form is that books will be replaced by electronic publications in a short time and, thus, objections related to difficulties of continued book production are insignificant. Ironically, by making book production and research cumbersome and impractical in many jurisdictions, the Wisconsin citation form would restrict low cost access to the law because a majority of people still do not have access to computer assisted legal research; books are today, and will be for some years to come, the lowest cost and most widely available source of legal opinions for the public. The Task Force's recommended Wisconsin citation form cannot appropriately be characterized as "medium neutral" unless it is fully compatible with continued book production in all jurisdictions. As presently proposed, the Task Force's recommended citation form is more accurately characterized as a vendor neutral electronic citation form which its proponents are attempting to force on print publications, but it would be incompatible with book production in many jurisdictions. In response to an earlier draft of the Task Force's Report, which proposed that the same Wisconsin citation form be adopted, California State Reporter of Decisions Edward W. Jessen, wrote: "The AALL Task Force proposal for a nonproprietary, medium- neutral citation system imposes significant new citation burdens, complexities, and expense on the bench, bar, and public for reasons that, as a practical matter, fall far short of providing a correlative public benefit. * * * "The proprietary citation problem is simply not significant in large states that have viable official reports with citations that are safely in the public domain (e.g., New York and California). Thus, those states most critical to the success of such a radical change in citation style will be the states least motivated to do so. There are just not enough good reasons for states with official reports and public domain citations to undertake the disruptive and radical changes reflected in the Task Force's draft. "New York and California tend to define the legal marketplace in many ways, and radically changing the citation system may or may not be one of the ways. If these two states do not embrace and enforce whatever emerges from the AALL's Task Force, the citation style will only succeed on a limited basis, and probably not at all. "Policy considerations aside, incidentally the proposal is completely impractical as to California law and practice, and it is categorically unworkable in the present form." /6/ In my experience, official reports and book citations work well in CD-ROM and on-line. The text and pagination of official reports cases are now easily accessible and are not copyrighted: the internal page numbers from official reports cases are available to private publishers and the public without restriction. Official reports citations are true public domain citations. Some official reports also utilize public domain electronic citations, primarily intended for the period between the public release of unedited slip opinions and the date official print citations become available, but these official electronic citations are permanent and can be used to retrieve officially reported cases after the print citations become available. There are no monopolistic barriers preventing legal publishers from marketing court opinions in jurisdictions with official reporters; in those jurisdictions, publishers are able to compete on a "level playing field". Official reports citations do not require paragraph numbers since internal page numbers used for pinpoint citations are not copyrighted. However, reporters are always open to ideas to improve the traditional citation system, and paragraph numbering proposals could be addressed on a jurisdiction-by-jurisdiction basis with due consideration being given to the established benefits of paragraph numbering compared to the burdens imposed on courts and reporters' offices. In jurisdictions which do not have an official reporter, copyright problems may be avoided by citation to the National Reporter System with the addition of paragraph numbers or slip opinion page breaks being provided by the courts. The traditional citation system of official and proprietary citations has evolved over more than 100 years to accommodate the judicial process and the diverse ways court opinions are released for publication and finalized in 50 State court systems and the Federal court system. The traditional citation system has served the bench, bar and public well. Preservation of the traditional system of official and proprietary citations, consisting of millions of existing citations in print and electronic publications, with a parallel vendor neutral citation assigned by the courts at the time opinions are released, would satisfy the Axel-Lute criteria of tradition, honesty, redundancy, uniqueness, informativeness and standardization, and would meet the objectives of open competition and immediate availability of a public domain citation for private publishers, Internet users and the public. As noted by the majority, within the past two years, Louisiana adopted one form of public domain citation, Colorado adopted a second form, the Sixth Circuit Court of Appeals is experimenting with a third form, and a fourth form currently is under consideration in Wisconsin. Since the new public domain citation forms are prospective only, those jurisdictions adopting new citation forms will have a dual citation system of traditional citations and post-reform new form citations. This proliferation of different citation forms will complicate the work of reporters and publishers in verifying and styling citations from 50 State court systems and the Federal courts, and increase costs; courts don't limit their citations to their own jurisdiction, and reporters must verify and style citations from all jurisdictions. Likewise, legal research will become more complicated and costly if there is a proliferation of different citation forms. I believe that the Task Force's recommendation to replace the long-established traditional system of official and proprietary citations with an exclusive generic citation form will not be accepted in jurisdictions with official reporters and is unlikely to be accepted in most jurisdictions without official reporters. Thus, at best, or worst, depending on one's perspective, only a few jurisdictions might consider experimenting with such a radical proposal. Since the Task Force's recommendation is unlikely to be adopted in most jurisdictions, it will only "balkanize" and fragment the traditional established citation system, and, thus, will complicate, confuse, and make legal research and verification of citations more costly and time consuming. Where a court presently releases opinions at multiple locations, the single sequential numbering system mandated by the Wisconsin proposal might require the establishment of a central government office to assign sequential opinion numbers to opinions released by many Judges at many different locations, including many opinions released on the same day. The administration of a central numbering system becomes more complicated when there are many courts within one jurisdiction, with separate numbering systems for each court. Some jurisdictions may find that implementation of a Wisconsin-type proposal might require establishment of a government archive of opinions. This would not be the low-cost electronic bulletin board system currently operated by some courts with a few dozen or perhaps few hundred slip opinions temporarily posted, but would be a permanent archive. Thus, if 100,000 opinions were added each year, after 10 years the archive would contain 1,000,000 opinions, and after 20 years it would contain 2,000,000 opinions. Also, it is likely that some people would request that the archive include all previously published case law in that jurisdiction. The government would be required to update the archive with all corrections made to opinions after they were initially added to the archive, and decisions pertaining to a particular case should be linked together. Further, to be useful to the public, this huge government archive would need a search and retrieval engine, and also might provide an Internet connection, so the public could conveniently locate cases. Obviously, this would be very costly to the taxpayers. I do not recommend government archives (databases) of case law as this is a service currently being provided efficiently by private publishers, but I point this out to indicate the potential huge costs inherent in the Wisconsin proposal if it were to be implemented in some jurisdictions. The current times are marked by the "downsizing" of government and the "privatization" of government services. Governments cannot afford to restructure court operations, adopt costly new procedures, purchase expensive new computer equipment, hire additional staff and establish new computer databases to accommodate an untried and unproven new vendor and so-called medium neutral citation system intended to facilitate the distribution and marketing of court opinions -- in effect, benefiting certain legal publishers by undermining the widely used proprietary citation system of another legal publisher. I believe that government's responsibility to make judicial opinions accessible to the public ends with making judicial decisions equally available to the public, whether in the form of paper slip opinions, posting on court electronic bulletin boards, or other means determined by the courts to be appropriate. Those judicial opinions are citable in the current traditional citation system the day they are released to the public. The cost of enhancements to facilitate the distribution and marketing of those opinions should be borne by publishers and consumers of those services -- not by the taxpayers. I believe that the Task Force's work would gain much wider acceptance, and have greater impact on the future course of citation forms if the Task Force were to accept the continued existence of official and proprietary citations, and focus its efforts on devising the best possible medium and vendor neutral parallel citation. FOOTNOTES /1/ The fifth and final draft that Task Force Chair Lynn Foster produced, dated March 1, 1995, was not available prior to the deadline for submitting my dissenting opinion. Therefore, my dissent was directed to the fourth draft which I assumed to be the view of the majority for purposes of this document. Since the final majority report adheres to the previous recommendation that the basic Wisconsin citation form be adopted, but with subtle changes in language which I regard to be cosmetic, I adhere to my previously submitted dissenting opinion. /2/ The Executive Board of the Association of Reporters of Judicial Decisions has approved the text of this dissenting opinion. /3/ Association of Reporters of Judicial Decisions, Articles of Association and By-Laws, Article II, Section 1. /4/ Proposed Citation System for Wisconsin, Report to the Board of Governors, Technology Resource Committee, June 22, 1994. /5/ Paul Axel-Lute, Legal Citation Form: Theory and Practice, 75 L. Libr. J. 148 (1982). /6/ Letter of Edward W. Jessen, California State Reporter of Decisions, dated October 17, 1994, which was distributed to all Task Force members. END OF FOOTNOTES