UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT U.S. Court & Custom House 1114 Market Street St. Louis, Missouri 63101 March 14, 1997 Mr. John Hehman Chief, Appellate Court and Circuit Administration Division ATTN: ABA Citation Resolution Administrative Office of the United States Courts Washington, D.C. 20544 Re: ABA Citation Resolution !EN Dear Mr. Hehman: A number of the federal circuit clerks have asked me, as chair of the Appellate Court Clerk's Advisory Committee, to submit the following comments on the ABA resolution on case citation for consideration by the Policy and Programs Subcommittee of the Judicial Conference Committee on Automation and Technology. I should note that while the positions expressed in this letter represent the views of the majority of the circuit court clerks, some clerks were not able to sign on to the letter because their courts were still discussing the resolution at the time this letter was prepared. In summary, we dispute the need for the alternative case citation system proposed in the ABA's resolution. We believe "Blue Book" citation of unpublished opinions (by case number, court and date) is still the most effective method for citing electronically reported opinions. We strongly oppose the creation of an opinion citation system which identifies opinions by anything other than the case number assigned by the issuing court. The remainder of this letter will outline the reasons for our positions and note some other concerns we have been regarding the ABA resolution. We wish to begin our discussion by noting that we have strongly supported the electronic dissemination of federal appellate court opinions. The federal courts of appeals have taken the lead in the development of electronic bulletin board systems for the distribution of opinions and case-related information. Currently, lawyers and researchers throughout the nation use these systems to retrieve circuit court opinions. Additionally, we have actively participated with a consortium of law schools around the country to make the courts' opinions accessible through the Internet. This project has made opinions available without charge to literally millions of computer users around the world. As a result of these two efforts, federal appellate court opinions are more widely available than ever before. So we approach the ABA resolution with a wealth of practical experience as to how electronic distribution systems work and how these cases are cited. We would also like to note that the issue of an alternative citation system for opinions was addressed by the appellate court clerks and the Judicial Conference of the United States several years ago. At that time the clerks unanimously recommended rejection of a proposal very similar to the ABA's current resolution. The Judicial Conference eventually voted to reject the proposal. We also offered comments last April to the ABA committee which was working on the current resolution; in those comments we strongly opposed the resolution. Our experience since we first addressed this issue has confirmed our belief that an alternative citation system based on sequential opinion number is not needed in the federal courts. Neither attorneys practicing in our courts nor judges researching and writing opinions have expressed the view that the current system of citation based on case number, date of issuance and court hinders their use or citation of federal court opinions. Likewise, no judge or attorney has ever expressed to any of us any desire to adopt a citation system such as the one proposed in the ABA resolution. In our opinion, the proposal to create a citation system based on sequential opinion numbers is a solution in search of a problem. Assuming for the sake of argument that a new system of citing opinions is required because of the widespread use of electronic case reports, it has always been our position that the system must be based on the case number assigned by the issuing court. We take this position for several reasons. First, the issuing court case number is the key to the history of the case, its current status and all of the documents in the appeal. An opinion identifier which does not include the actual case number of the appeals is, by itself meaningless. A reader who has only the sequential number will always have to take an additional step to determine the case number before the file or procedural history of the case can be accessed. In effect, reliance on a sequential number to identify opinions requires use of a "key" to translate the opinion number into a case number. This is especially important now that the courts offer on-line access to docket information. Future plans to create on-line access to the actual documents in the case file will make the case number even more critical to researchers. Several key questions about this translating key are not answered by the ABA's resolution. Who will create and maintain the key? How will researchers access it? How long will it have to be maintained for future readers' use? We think the answers to these questions are that the clerks of the circuit courts will be required to create and maintain these keys, that we will have to provide the information to users through our existing staffs and resources, and that we will have to maintain the keys forever. All of the circuits are currently making do with reduced staff allocations. Many of us are struggling to maintain the high level of service we provide the bar and the public. In this environment, any suggestion for a change in procedures which requires the expenditure of additional resources and staff time must be carefully examined. A change should only be implemented when a persuasive case can be made that the change will improve the service we offer the bench, the bar, and the public. We believe that the creation of a case citation system based on a sequential opinion number does not meet this test. Second, the use of a sequential number to identify opinions complicates our internal operations. Each clerk's office will have to create and maintain new databases to track this information, and we will have to train deputies in their use. Additionally, some courts have opinion issuance procedures and agreements with printing vendors which would cause confusion with respect to the date of issuance if a sequential numbering system is adopted. For example the Fifth Circuit designates certain opinions for issuance through their printer only, while others issue in manuscript form. The opinions issued through the printer are actually released some time after they are received in the clerk's office due to their printing schedule and, as a result, their numbering would fall outside the numbering sequence anticipated by the ABA resolution. Third, we believe the sequential identifier is no simpler to use than a case number identifier. For example, nearly all of the circuits issue more than a thousand opinions a year. Is 1997 8th Cir. 1234U any easier to use or remember than the current system based on case number, court and date of issuance? The difference between the two forms of citation is simply not significant enough to justify the loss of the important information provided by a citation which includes the actual case number and the date of issuance. Finally, the actual date of issuance of information contained in the current form of citation is important to many users, as it provides direct access to information on our opinion bulletin board and Internet sites, nearly all of which organize opinion directories by date of issuance. We hope the Subcommittee will carefully examine the use of a citation system based on sequential opinion identifiers which are unrelated to case number. We would be happy to provide additional information about its impact on our operations or answer any specific questions the Subcommittee might have. We also have concerns with two other provisions of the ABA resolution. First we object to the provision that the courts should add paragraph numbers to the opinions. We believe this would entail substantial additional work for chambers and for clerks' offices. In our opinion the court should be responsible for the text of the opinion and initial page numbering, and all other services, including paragraph numbering, should be left to the marketplace. Second, the resolution does away with the current practice of providing a parallel pinpoint cite to the Federal Reporter citation. For the foreseeable future, the Federal Reporter will continue to be a significant research tool for judges, lawyers, prisoners and other pro se litigants. Eliminating the parallel pinpoint cite leaves many readers either greatly inconvenienced or at a significant disadvantage, while including it requires little additional effort on the part of the writer. Although the ABA may well be correct in its prediction that primary reliance for case citation will eventually shift to electronic case reports, the clerks believe this day is far enough off that parallel pinpoint cites must still be required. When we forwarded our comments to the ABA's Special Committee on Citation Issues last April, we invited the Committee to open a dialogue with us on issues related to opinion issuance and citation. We regret that the Committee did not see fit to respond to our letter or address our concerns. As the court officers charged with the responsibility for issuance of federal appellate court opinions and maintenance of the courts' official records, the clerks of court have a vital interest in this topic and are in a pivotal position to help shape opinion and practice. We hope that the Committee on Automation and Technology will give serious consideration to the concerns expressed in this letter. Please let me know if our group can be of any further assistance to you or the Committee. Sincerely, Michael E. Gans Clerk of Court Chair, Appellate Court Clerks Advisory Committee cc: All Circuit Court Clerks