United States Court of Appeals
For the Eighth Circuit
U.S. Court & Custom House
114 Market Street
St. Louis, MO 63101
Michael E. Gans
Clerk of the Court
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Book" citation of unpublished opinions (by case number, court and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
Chair, Appellate Court
Clerks Advisory Committee
cc: All Circuit Court Clerks