Filings in Legal Databases as Possible Source for Withdrawn State Court Opinions

We wanted to share as a tip the good fortune that might be had in a legal database’s collection of “Filings” when one is searching for withdrawn state court opinions.  In our scenario, citations in both WestlawNext (“WLN”) and LexisAdvance (“LA”) indicated that a particular state supreme court opinion had been withdrawn.  The WLN & LA results for the withdrawn opinion revealed only that the opinion had been substituted, but no longer contained the text for the withdrawn opinion.  However, with some deep digging into WLN’s “Filings” linked to the substituted opinion, we were able to find a PDF copy of the withdrawn opinion attached as an exhibit to a petition for review.  Often (and as was the case here) the HTML versions of these “Filings” lack referenced exhibits, but thank goodness for PDFs…particularly for these 25-year-old, pre-electronic-filing state court cases!

We hope you’re equally as lucky in gaining ready access to withdrawn state supreme court opinions!

California’s Prop. 8 in Federal Court: Key Timeline, Briefs, and Opinions Leading to Hollingsworth Cert Petition

On July 30, 2012, California Proposition 8 proponents petitioned the U.S. Supreme Court for a writ of certiorari.  In Hollingsworth v. Perry, petitioners (the original “Defendant-Intervenors”) ask the Court to review the Ninth Circuit Court of Appeals’ opinion in Perry v. Brown, (671 F.3d 1052), which affirmed the district court’s determination that Proposition 8 is unconstitutional (Perry v. Schwarzenegger, 704 F. Supp. 2d 921).

We have prepared a timeline of key events, and gathered the main briefs and opinions, for the Prop. 8 federal cases leading up to the Hollingsworth petition.  These are intended as highlight compilations only.  Both are linked below.

Prop 8 in Federal Court_Key Timeline

Prop 8 in Federal Court_Main Briefs and Opinions

Cross-posted on the SLS Law Library Blog.

HeinOnline’s Browsable Congressional Record Index

We’ve recently learned that HeinOnline’s “U.S. Congressional Documents” library offers browsable copies of the Congressional Record Index.  Given proposals to axe many print copies of the Congressional Record, there is concern that, among other things, we could lose ready access to the great research tool that is the Index.  Last year, we researched dozens of wilderness-related bills in the 1950s-1960s.  Initially, title searching in Congressional documents databases did not identify them all, because a few of the earlier bills were captioned as “forestry”—a fact discovered by using the print version of the Congressional Record Index.  So, we are  relieved that HeinOnline has preserved the Index’s utility with browsable PDFs.  To boot, they do a great job with metadata structuring.  Each letter within an Index may be accessed via separate hyperlink.  As one browses, the list of hyperlinks remains visible along the left of the screen, allowing for easy navigation.  Thank you, HeinOnline!

Finding History in a Drawer

In 1875, a jury committed Mary Todd Lincoln to an insane asylum.  This week, the Chicago Tribune reported that two Illinois State Supreme Court justices discovered her trial papers still on file with the Cook County Clerk!  The Clerk’s Office will be donating them to the Lincoln museum, but we hope the story does not end there.  Like many others, we’ve previously posted about the cultural heritage reflected in state court files.  Some of the stories told in these documents are historically significant, like Mary Todd Lincoln’s commitment, or John Wesley Hardin’s murder trial (see this Texas Task Force report).  Many stories, however, are just minor threads in life’s tapestry: divorces, probates, business disputes.  Whether the story is big or small, the court records that tell it may be irreplaceable.

Each state’s preservation rules differ.  Some place the retention determination in the hands of state libraries or archives, some issue mandatory retention schedules based on the nature of the action, and some afford the clerk of court discretion to dispose of files after prescribed time periods.  Even if a clerk of court wanted to save everything, storage expenses and space constraints make this impossible.  The costs of digitizing every paper record are prohibitive.  As cultural institutions may not be interested in less noteworthy files, many are noticed for destruction.  Provided that a state’s rules allow it, however, law libraries may be uniquely positioned to rescue these files — preserving not just the documents, but also state history.  And if you spend some time digging through them all, you never know just what you might find…

How to Use Legislative History to Teach Grammar

Anyone teaching the importance of legislative history in legal research need only point to a single punctuation mark: the mighty comma.  As a disclaimer, I strive to put my years of Latin classes to good use, but do not profess to be punctuationally-perfect.  (Interestingly, the Romans did not use modern punctuation, but I digress…)   One thing I do know, however, is that other people’s grammatical shortcomings sure can wreak a lot of havoc… making them a great teaching tool.

This past week, I was researching a state statute that, among many other things, imposed conditions on persons who had committed a “felony or misdemeanor crime of domestic violence.”  At first blush, one would read this to mean that the conditions apply to persons involved in domestic violence felonies and misdemeanors.  Get this:  That provision actually governs anyone who commits either a “felony” or a “misdemeanor crime of domestic violence.”  In other words, we should really be reading a comma into the statute between “felony” and “misdemeanor” where the legislators neglected to put one!

Uncovering the latent comma was not easy.  News articles referred to the imposition of the conditions on felons, but without citing the supporting statutory clause.  Secondary sources referred to conditions emanating from the “domestic violence clause” of the statute, failing to illuminate that the clause also covers all felonies.  Case law cited the statute as creating certain conditions, but decided matters on other grounds.

The best recourse was to trace the historical progression of the clause, which I was able to do through older versions of the statute and the legislators’ own analysis.  Earlier iterations made no reference to domestic violence whatsoever, as the clause originally pertained to persons who had committed any felony.  Years later, the legislature added “or misdemeanor crime of domestic violence,” but failed to demarcate this clause with a comma that would have resolved ambiguity.  If the legislators had simply written “any felony, or misdemeanor crime of domestic violence,” I would have spent fifteen minutes on a project that instead took five hours!  (Note:  I do not require legislators to bold, italicize, or underscore the comma; any font or stylization will do!)

Do you have any grammar-related teachable moments you’d like to share?  We’d love to hear them and pass them along to our classes.  To that end, I particularly enjoyed Prof. Susan J. Hankin’s “Statutory Interpretation in the Age of Grammatical Permissiveness:  An Object Lesson for Teaching Why Grammar Matters,” which references recent literature on the subject and also offers some great case law examples to use in class.

Don’t Mess With Texas State Court Documents

State court case files are rife with personal and community histories that often cannot be found anywhere else.  These documents also reflect developments in the language of the law, and the procedures of our court systems.  Preserving these historical gems is increasingly important as many records face destruction due to court space and budget constraints, and the ill effects of time or the elements.  We hope to provide periodic updates here about states’ efforts to preserve such records and, on that note, want to spread the word about developments today in Texas.

Just shy of two years ago, the Texas Supreme Court established a volunteer task force of attorneys, judges, historians, document preservationists, and county and statewide officials to “develop a report that discusses statewide county preservation needs, the importance of protecting the records, and providing assistance to counties to do that.”  (See this Texas state bar blog.)  After extensive studies, the Task Force issued this report on August 31, 2011.  In addition to containing practical information for other jurisdictions similarly seeking to preserve state court files, the report contains anecdotes that scratch the surface of the kind of information at risk of being lost.

Here is an excerpt from its “Overview”:

In his classic song, Hardin Wouldn’t Run, Johnny Cash sang that outlaw John Wesley Hardin was a steadfast man. Truth is, Hardin was not so firmly fixed. After shooting Deputy Sheriff Charles Webb in Comanche County in 1874, Hardin fled Texas and headed east. Texas Ranger John B. Armstrong pursued Hardin and found him on a train outside Pensacola, Florida several years later. Armstrong overtook Hardin after Hardin got his pistols tangled up in his suspenders when he tried to draw. He was brought back to Comanche County, Texas, and put on trial before a jury of twelve citizens of the county. Bob Dylan, in his Hardin song, sang that “no crime held against him could they prove.” That is also incorrect. Unlike Jesse James and Billy the Kid, who were both gunned down, John Wesley Hardin, who killed many people in multiple states, was convicted of murder in 1878 and sentenced to prison in Huntsville, Texas.  The historical documents that record the true story about the trial and sentencing of Hardin are at risk of being stolen, destroyed, or lost . . .  The Hardin records are not unique. Thousands of other Records are stored in hundreds of Texas district and county clerk archives. Some of these facilities are excellent; some of these Records are preserved, or in the process of being preserved. But many of the oldest Records – especially those that date back to the Republic of Texas, early statehood, or the Civil War – are at risk of being lost forever, unless measures are soon taken to help district and county clerks protect them.

The Existential Exercise of Finding State Court Materials Online

Recently, we’ve had the opportunity to explore the online availability of state superior court filings, both through commercial retrieval services (such as Lexis’ CourtLink or Westlaw’s CourtExpress), and the superior courts’ own websites.  Sites like Justia are also incredible resources for obtaining select trial court documents, but our project instead examined more standardized provision of dockets and filings.

Having wrapped up this undertaking, we thought it would be useful to share our reflections.  First, a quick caveat about what this project did not involve. We were not comprehensively indexing document availability in every U.S. county, or even in all fifty states.  Rather, we examined selected states and counties, based mainly on population size.  In addition, though we are aware of various existing studies and compilations documenting the availability of state court records, we wanted to look behind some of these reports.  As we often found, a commercial retrieval service’s representation that the “civil filings are available” did not mean all filings on all matters.  Moreover, in a world of ever-changing court websites and eFiling programs, existing studies unfortunately have a somewhat limited shelf life.

So, with those disclaimers in mind, we are excited to share how floored we were by the disparities in the online provision of state court dockets and pleadings!  Here are a couple of observations:

I.          Commercial Services (e.g. CourtLink and CourtExpress)

  • Sometimes, one can get little for one’s money.  The commercial services’ promotional materials are sometimes misleading if you want to retrieve filings.  For instance, their coverage charts could indicate that dockets from Shawnee County, Kansas are available, but one can’t actually retrieve the dockets online; they are “available” only in the sense that one can make a request online (and pay additional money) to have a runner pull them from the court.
  • Another drawback was the infrequency with which commercial services updated their state trial court dockets.  Even if one clicks a button to manually update a docket, this does nothing if one is attempting to do so within the long stretches between docket captures.  (Commercial services capture docket snapshots only every 45 or 60 days, meaning that even if one tries updating in an intervening period, one really isn’t getting any newly-added information.)
  • We also found that, while commercial services often capture federal dockets and filings from PACER indiscriminately, their state court coverage is extraordinarily selective.  They often choose cases based on subject matter cachet, or the perceived needs of their customers.  If you want documents from a run-of-the-mill breach of contract case, you might be out of luck.
  • Don’t try this at home if you want to conduct empirical analysis!  What isn’t available through commercial services significantly constrains research, but what hinders research even further is the inability to determine what isn’t available. How can one properly evaluate, for example, filings in a given jurisdiction when it is unclear what hasn’t been made available for searching?

II.        Publicly-Available Court Websites

  • A trial court’s offering of documents online is not necessarily a question of whether the court sits in a county wealthy enough to provide them.  For example, the superior court in Cincinnati, OH (sitting in Hamilton County) offers document access online, but San Diego County does not.  And one can view civil dockets from Dallas, TX, but not from Denver, CO.  There seems to be something other than wealth or the political inclinations of the jurisdiction at play.  Perhaps it is a matter of prioritization by the state legislature or judiciary, or maybe even the serendipity of having companies nearby that can get databases up and running.  Certainly, jurisdictions with well-established eFiling programs have a leg up on putting documents online; but, even in jurisdictions with eFiling in place, it is not always the case that dockets—let alone documents—can be retrieved on the Web!
  • The quality of available dockets varies dramatically because state court clerks exercise no uniformity in document description.  It is difficult to compile a collection of complaints if various clerks label documents “pleading” or “misc. filing.”
  • Navigational problems can leave you lost at sea.  We spent a lot of time fumbling our way around some of these sites.  One wonders if it is truly “access” to records if one needs a vacation after trying to find them.

At the end of the day, we found too many gaps in coverage for anything to be considered “consistently” available online.  One first step in measuring the parameters of these disparities would seem to be a county-by-county analysis of which trial courts in which states provide online access to dockets and/or filings—either through commercial services or their public websites.  Surveys like the McCormick Tribune Foundation’s comprehensive 2007 assessment, or the commercial services’ coverage charts, are great first steps—but additional testing is required, particularly to keep such studies current.

Un-Legislative History

Wikipedia is often a boon for quick legal research about well-publicized matters.  It’s a great way to find where a statute is codified, or the background of a famous case.  When it comes to legislative history, though, sometimes Wikipedia’s a bust.  For anyone looking for a good example of why one must follow up with proper research into legislative history, please see Wikipedia’s entry on the Dodd-Frank Wall Street Reform and Consumer Protection Act, which passed in July 2010.  As of Nov. 16, 2010, Wikipedia has the following to say about the changes implemented by Title XI of Dodd-Frank:

“The Federal Reserve Act is amended to change the New York Federal Reserve President to a Presidential appointment, with the advice and consent of the Senate.”

In support of this assertion, Wikipedia cites and links to the Enrolled Final Version of HR 4173, available on the LOC’s Thomas page.  Unfortunately, Wikipedia gets it wrong:  The version of the bill that passed Congress removed that language (which had been proposed by the Senate but rejected by the House).  The Senate’s proposal in this regard was snipped on June 17, 2010, weeks before the final bill passed.  Legislative history research–including review of committee meeting transcripts–coupled with news and secondary source coverage bore out the truth.

We always offer cautions when it comes to Wikipedia, and now there’s a handy example to which we can refer.

UPDATE:  Thanks to our helpful reader, Wikipedia has been policed. . .while its lesson remains!