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.

Authentication of Primary Legal Materials and Pricing Options

Always worth reading is Intersect Alert, the one published by the SLA San Francisco Bay Region Chapter (and not to be confused with Chuck Bartowski’s Intersect).

This item about a new California Office of Legislative Counsel white paper is from the most recent issue:

Authentication of Primary Legal Materials and Pricing Options
“The recent passage of the Uniform Electronic Legal Material Act (UELMA) has brought to the forefront the issue of costs of authenticating primary legal materials in electronic format. This white paper briefly reviews five methods of electronic authentication. These methods are based on trustworthiness, file types, effort to implement, and volume of electronic documents to be authenticated. Six sample solutions are described and their relative costs are compared. The white paper also frames the legal landscape and background of authentication for primary legal materials in electronic format, and provides context and points to applicable resources. The aim of this collective effort is to promote the understanding of costs related to authentication and invite further discussion on the issue.”
http://www.mnhs.org/preserve/records/legislativerecords/docs_pdfs/CA_Authentication_WhitePaper_Dec2011.pdf

SCOCAL in the news and its recent growth spurt (with a new feature in development too).

Our Supreme Court of California Resources  database  (SCOCAL) is in the news!  There is an item about the project on page 2 of the  Stanford Lawyer just-out Spring 2011 issue (Volume 45, Issue #2), “California Supreme Court Opinions and Annotations Online.” 

We have 67 students in our Advanced Legal Research class this spring (67!) and they each have to write two annotations.  The first is due today, so 67 new annotations will be appearing online before (or perhaps at) the first stroke of midnight.

Later this summer, in partnership with a law firm, we will be adding a new feature to the database, so please stay tuned.

California Legislative History – It’s all online, right?

Here’s a very useful article from the January/February 2011 issue of FORUM, the magazine of the Consumer Attorneys of California.  It is useful, in particular, for pointing out that offline research is often needed, even for new laws.

Budget-Minded Research: California Legislative History

By Carolina Rose

. . . unfortunately, some researchers make the mistake of thinking that if the legislative history is not available on the free website or from Westlaw or LexisNexis, that the records simply do not exist.  Nothing could be further from the truth.  There are many other records that are not included in these databases that can be obtained from other offline sources and that the courts routinely rely on.  For example, in one case . . . the court relied on two records to support its plain meaning of the statute: 1) An unpublished letter from Pacific Gas and Electric Company dated March 8, 1974, found in Assemblyman Charles Warren’s author’s bill file, and 2) a subsequent bill version apparently incorporating the amendment that had been pro[posed and explained in the letter.”

Citing 2 Cal. App. 4th 206, 222-23

. . .

and:

In short, free online California legislative history research from 1993 to current can be a boon to the budget-minded researcher, but it can also give a false sense of security. . . . the absence of valuable legislative history materials from the free online website or the costly, subscription-based online services does not mean that they do  not exist. . . .

The author of the article is co-founder and president of Legislative Research Inc. (LRI) (and a SLS alumna); in the article she summarizes the steps involved in compiling a legislative history and explains the added research a company such as hers can accomplish with feet on the ground — offline — in Sacramento.   You’ll want to know about such offline documents  so as, as she puts it, to not be “blind-sided by opposing counsel’s use of them.”

Two Million Dollar Gift for Law.Gov

Today, Google announced the winners of their Project 10^100 , giving 10 million dollars in total to ideas that will help change the world.  (Short video of the winning ideas here.)

Law.Gov is one of the winners.  As the Google posting states:

Public.Resource.Org is a non-profit organization focused on enabling online access to public government documents in the United States. We are providing $2 million to Public.Resource.Org to support the Law.Gov initiative, which aims to make all primary legal materials in the United States available to all.

What great news!

Carl Malamud writes on the O”Reilly Radar today: “This grant is going to help Public.Resource.Org continue our work on Law.Gov and Video.Gov. For Law.Gov, this is going to mean a shift into real production, building on the very solid consensus that was reached earlier this year on the Core Law.Gov Principles.

Carl Malamud also shared a status update for Law.gov efforts in that post.  Beyond the amazing gift from Google, the big updates include:

  1. Before the Law.Gov Report can be finished, video from the 15 Law.Gov workshops needs cleaning up and cataloging. ” Point.B Studio and Foolish Tree Films have been hard at work creating a 15-DVD set of workshop proceedings with approximately 70 pieces of video. The video will all get released as a final mix on the net as well as on DVDs printed at Lulu, and this core will form the basis for the next steps of the report.”
  2. To help further the National Inventory of Legal Materials,  there will soon be a “bug tracker where people can enter their survey results, in particular creating trouble tickets for jurisdictions that violate the Law.Gov Core Principles.”
  3. Carl Malamud is close to “a final agreement with UC Hastings and the Internet Archive to scan 3 million pages of 9th Circuit briefs.”  And, Malamud has sent California’s Title 24 out to be “double-keyed, turning it from PDF scans into valid marked up hypertext.”   Carl Malamud is also working on an effort to make fully available online the local codes of his surrounding North Bay Area communities.

More developments are coming up.

Citation Process for California Supreme Court Opinions

On the NOCALL list today was an interesting posting from Kerry Shoji, Paralegal/Research Analyst.

Kerry had recently asked questions on the NOCALL list about the citation process for the California Supreme Court.  Kerry then passed the questions along to the experts, Fran Jones, Director of Library Services, California Judicial Center Library and Edward Jessen, Reporter of Decisions.

Below is the text of Kerry’s questions and Mr. Jessen’s responses. [Reproduced with the permission Kerry Shoji and Edward Jessen.]

“How can you find out a California Supreme Court citation on a recently decided case?  I have the LEXIS citation, but I am curious:

1) How the official reporter volume/page number for the citation is assigned?

The California Official Reports publisher assigns volumes and page numbers because it is essentially a byproduct of the print composition process, and deadlines preclude much involvement in this function by the Reporter of Decisions.  But the publisher is contractually required to print opinions in the order received, and there are contractual requirements for the pagination of volumes.

2) How long does it take to go from slip opinion to the bound opinion?

For example, Official Reports advance pamphlet No. 16 will contain all published opinions filed between 5/17/10 and 5/25/10, and will be issued on 6/17/10.  Promptness is regulated by the Official Reports publication contract.*

Citations for opinions in that pamphlet, however, will be available on LexisNexis by approximately June 11.

3) How one can determine the official citation once bound?

Bound volumes, as a general rule, publish about 10 to 12 months after the last pamphlet issues with opinions  for a particular volume.  Citations, however, never change between advance pamphlets and bound volumes, except that superseded opinions (review granted, depublished, or rehearing granted) are omitted.

4) Do all the Westlaw or Lexis electronic references get converted to the official citation once the bound version is issued?

For the California Official Reports, there are several points in the editorial process leading to the final version of opinions in the bound volumes at which this office or the publisher would “convert” a Lexis or Westlaw cite to another California opinion to the Official Reports cite.  The LexisNexis version of that opinion would also then receive the Official Reports cite in place of the Lexis or Westlaw cite.  I cannot speak to what Westlaw would do in this situation because it is not the official version of opinions and we do not control content in the way we do for opinions on LexisNexis.”

*Special note: Peter W. Martin, Cornell Law School, has published in his Access to Law site many of the contracts between State courts and law report publishers, including California (2003).  There is also a great table showing these contracts, too.

Read the Letter – Update: LexisNexis and Westlaw Violating Copyright?

Yesterday, Paul blogged about the Daily Journal article: “California Courts Come Under Fire for Giving Legal Briefs to For-Profit Firms.”  There was a lot of interest in that posting — our statistics show it as our busiest day ever.  We had 634 visits by 4pm.

This story was picked up by the Volokh Conspiracy with some really interesting commentary.

There was so much interest in that topic that we followed up with attorney Ed Connor and we are now able to share with our readers, with his permission, the letter that he sent to Justice Ronald M. George and Mr. William C. Vickrey.

The text of the letter is available as a PDF here.

Carl Malamud – Liberating Law

Earlier Erika wrote about Carl Malamud and his public.resource.org codes.gov site.  Today our friend and hero Carl is the subject of a story in the San Francisco Chronicle:

Man provides code manuals free online
Matthew B. Stannard, Chronicle Staff Writer

The San Francisco Chronicle, Saturday, September 27, 2008, p. B1

. . .

“Not everybody is going to read the building code, but everybody who wants to should be able to without putting 100 bucks in the slot,” Malamud said. “Primary legal materials are America’s operating system.”

. . .

“It’s very clear in American law that you can’t get intellectual property protection for law,” said Pamela Samuelson, co-director of the UC Berkeley Center for Law and Technology. “Law belongs to everybody.”

. . .

“This stuff has been locked up behind a cash register,” Malamud said. “(It’s) way too important to just leave it there.”

 

I especially enjoyed reading the comments — all favorable — and note that Carl is not just our hero:

Yep! This guy is my hero. When I had to repair parts of my house up “to code” I was like, “Okay, where’s the code book? Let me read up on it…” When I found out it wasn’t available for free from a government website (the most obvious place for it!) I was shocked. It just made NO sense…

. . .

Its about time!! I am a retired building contractor and I say its about time the public had ready access to laws like this that they are controlled by. if youre controlled by a law or regulation, you should have free and ready access to it Thanks, Mr Malamud

 

There are many more posted at SFGate.com.

 

Story update:

Carl is also the subject of a story in the September 29, 2008 New York Times:

“So many people have been moving into the public domain and putting up fences,” he said in an interview from his office in Sebastopol, Calif., where he runs a one-man operation, public.resource.org, on a budget of about $1 million a year. Much of that money goes to buy material, usually in print form, that he then scans into his computer and makes available on the Internet without restriction.

. . .

As of Labor Day, he had put, he estimates, more than 50 percent of the nation’s 11 public safety codes online, including rules for fire prevention. “We have material from all 50 states, but we don’t have all 11 codes for all 50 states,” he said.

Copyright claims for state statutes – Round Two

Our friends Carl Malamud and Tim Stanley are again in the news:

ROWLAND: California seeks compensation for posting laws online
Kara Rowland
The Washington Times, Monday, September 15, 2008

In the latest instance of states claiming copyright over their laws, public information activist Carl Malamud posted the California Code of Regulations online at public.resource.org. According to the Press Democrat in Santa Rosa, Calif., the state government is asserting a copyright over its laws so that people will be forced to buy a digital copy for $1,556 or a print copy for $2,315. The state rakes in nearly $1 million a year from sales of its code.

“We exercise our copyright to benefit the people of California,” Linda Brown, deputy director of California’s Office of Administrative Law, told the paper earlier this month. “We are obtaining compensation for the people of California.”

. . .

Oregon relented in June following negotiations with Mr. Malamud and Mr. Stanley.

Mr. Malamud told the Press Democrat he is willing to go to court.

“If that happens, it opens the doors to innovation,” he said.

The Ethical Conundrums of Unpublished Opinions

Here’s a new, all-you-ever-wanted-to-know plus more article about unpublished/depublished/non precedential/etc. decisions:

“The Ethical Conundrums of Unpublished Opinions”

Shenoa L. Payne

44 Willamette Law Review 723-760 (2008 )

INTRODUCTION

I. BACKGROUND AND HISTORY OF UNPUBLISHED OPINIONS

   A. The Emergence of Unpublished Opinions

   B. The Original Justifications for No-Citation Rules

   C. The Electronic Availability of Unpublished Opinions

   D. The Debate over No-Citation Rules: The Loud Roar from the Eight Circuit

   E. The Treatment of Unpublished Opinions by State Courts and Federal Circuits

II. DEPUBLISHED OPINIONS: WHEN DECISIONS MOVE FROM PRECEDENT TO SECRET

   A. The Depublication Process in the California Courts

   B.  The Changing the Message Behind Depublicaton

   C.  The Criticisms of Depublication

   D.  The Counterarguments

   E.  The Alternatives to Depublication

   F.  The Responsibilities of Lawyers Regarding Depublication and Precedent

III. FEDERAL RULE OF APPELLATE PROCEDURE 32.1: A REAL CHANGE?

   A.  Background

      1. The Value of Unpublished Opinions

      2. The Necessity of Unpublished Opinions for Busy Courts

      3. The Increased Costs of Legal Representation

   B. The Text of Federal Rule of Appellate Procedure 32.1

   C. Is Federal Rule of Appellate Procedure 32.1 a Real Change?

IV. COURTS SHOULD BE REQUIRED TO GIVE UNPUBLISHED OPINIONS THE RESPECT THEY ARE OWED.

   A. Skidmore v. Swift & Co.

   B.  Considerations that Give an Unpublished Opinion “Power to Persude,” if not “Power to Control”

      1. Factually Indistinguishable Cases

      2. Issued by the Same or a Controlling Court

      3. Concerns a Unique Question of Law or Fact

      4. Possesses Other Factors that Give it Power to Persuade, if not Power to Control

   C. The Goal of Uniformity

   D. Guidance for Attorneys

   E. Judicial Accountability and Judicial Efficiency Concerns: A Good Balance

V. SOME PRACTICAL IMPLICATIONS

   A. Why Do Attorneys Want to Use Unpublished Opinions?

   B. Can Attorneys Provide Competent Representation Under No-Citation Rules?

   C. Are Attorneys Able to Provide Diligent Representation in the Face of No-Citation Rules?

   D. Can an Attorney Argue Points Based on Unpublished Opinions Without Bringing a Frivolous Claim?

   E. Does an Attorney Ethically Have to Cite an Unpublished Opinion Contrary to His or Her Position in   Jurisdictions Where No-Citation Rules are Banned?

   F. Is Ignoring Unpublished Opinions in Criminal Cases a Violation of the Constitution?

CONCLUSION

With the availability of unpublished opinions, the original reasons for no-citation rules no longer justify their continued existence. In the face of a long and heated debate, FRAP 32.1 is a step  toward appropriately addressing the problems associated with unpublished opinions. Citation to unpublished opinions is extremely important. However, FRAP 32.1 is extremely limited and allows unpublished opinions only to reach the very bottom tier of precedent, which does not require courts to give unpublished opinions any particular weight.

Courts should employ a uniform rule requiring a Skidmore type deference that gives unpublished opinions respect when due based on four factors: (1) if the facts are indistinguishable; (2) if the unpublished opinion is issued in the same or a controlling court; (3) if the opinion addresses a unique question of law or fact not addressed in published opinions; and (4) all those other factors which give it power to persuade, if lacking power to control. Such a rule would bring uniformity to the treatment of unpublished opinions across federal circuits, give strong guidance to attorneys in assessing their cases, and balance the concerns of judicial efficiency and judicial accountability.

Attorneys face real ethical conundrums even though FRAP 32.1 has prohibited no-citation rules in federal circuits. Attorneys are still bound to (1) local federal rules for unpublished opinions issued prior to January 1, 2007 and (2) the rules of the state courts in which they practice. This means that attorneys must carefully consider their ethical duties of competence, diligence, candor toward the tribunal, the appearance of frivolous claims, and also consider whether they are violating their duties of effective assistance of counsel owed to criminal defendants. Until a uniform rule is in place, such as requiring a Skidmore type deference, attorneys will continue to face challenging ethical conundrums in relation to unpublished opinions.