For those of you who helped me with this story, and those who are
interested, here is the unedited version of the story about the
California Supreme Court asking for comment on banning cites to
electronically published opinions, federal and state, until they
officially appear in print.
Jim Evans
SF Daily Journal
San Francisco Daily Journal
Nov. 3, 1995
By James Evans
The California Supreme Court appears to be trying to push back
the intractable march of electronic information, and has attorneys
across the state scratching their heads in wonder at the move.
In a notice issued Wednesday requesting comment from lawyers and
law librarians about a proposed change in rule 977 of the California
Rules of Court, regarding a prohibition against citing unpublished
opinions, the state high court suggested that it would like to define
published as appearing in print only.
After explaining the proposed innocuous change to rule 977, which
would merely clarify that unpublished decisions from a court of appeal
or an appellate department of the superior court should not be cited,
the Supreme Court then asked how the legal profession felt about
banning any citation of a ruling unless it first appeared in print.
``The court also invites public comment on whether rule 977
should be further amended to expressly prohibit the citation of any
opinion of a federal or state court available on in (1) a
computer-based source of decisional law and/or (2) a specialized or
topical reporter,'' the notice said.
A court employee, who requested anonymity, said the justices were
floating a trial balloon, and probably didn't intend to be so broad in
the prohibition. Yet the employee acknowledged that certain justices
favored defining ``published'' as appearing only in print at a time
when court opinions and other legal information increasingly are
digitized.
The notice suggests that rulings appearing in electronic form,
including from the state Judicial Council's own computer bulletin
board, or printed in specialty publications like the Daily Journal and
other newspaper appellate reports, should not be citable.
However, the employee said it would be doubtful if such a rule,
if adopted, would be that expansive.
Opinions normally are printed by a variety of established and
officially sanctioned legal publisherns about three weeks after they
are issued, the employee said, adding that the notice as written may
confuse counsel.
Astounded is a better characterization.
``It's bizarre,'' said Mike Ladra, a partner at Palo Alto's
Wilson, Sonsini, Goodrich & Rosati. ``It makes no sense.
``Historically lawyers always have been able to cite to slip
opinions available from the court,'' he said. ``To say that nothing is
legitimate until it's in hard copy form, that's a silly notion.
``To prohibit citing to specialty publishers will cause problems,
and upset years and years of practice. It doesn't make sense.''
Ladra said he doubted there would be much support for the
proposal, and probably it will encounter widespread opposition. ``I
certainly would oppose it,'' he said.
Susan Brandt-Hawley, an environmental specialist in Sonoma
County, said she couldn't understand why the court would be turning
away from readily available and widely-used technology.
``It's helpful for the court and for attorneys to cite published
decisions as soon as they appear,'' she said. ``In my field of
environmental law, things are changing so rapidly its very important to
cite to immediate law.''
Jeff Riffer, a litigation partner at Los Angeles' Jeffer,
Mangels, Butler & Marmaro, said that if an opinion is published in a
reasonably accessible place, lawyers ought to be able to cite to it.
``I don't think the proposal's a good idea,'' he said. ``There's
a lot of dispute over sanctioned citation systems. The trend is in
other direction.''
Riffer added that the Supreme Court itself has cited depublished
opinions, specifically mentioning Justice Joyce Kennard's citation in
1993 to Cynthia D v. Superior Court, 5 Cal 4th, 242 254.
The court issued its notice because language that was dropped
from rule 977 in 1983 created confusion in the bench and bar, and
resulted in several state appellate decisions that were at odds with
each other concerning citations and sources of rulings.
The Supreme Court proposes that the displaced language,
clarifying which courts are affected by the rule, be reinstated.
The new rule would read: An opinion of a Court of Appeal or of an
appellate department of a superior court that is not published shall
not be cited or relied on by a court or a party in any other action or
proceeding except as provided in subdivision (b).
The official request for comment was accompanied by a separate
notice advising legal publishers and law librarians that the second
proposal may have a significant impact on them, and specifically
invited them to comment on it.
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