In 2014 this blog reported on the decision by Oklahoma’s Supreme Court that the electronic versions of state appellate decisions published on the Oklahoma Supreme Court Network (OSCN) would replace those printed in the National Reporter System as “official”. A budget crisis brought on by declining oil revenues now places that critical publication channel in jeopardy. A proposal before the legislature would divert nearly all the dedicated fees on which OSCN depends to other uses.
Archive for May, 2015
New Mexico’s Unique Citation Rule
Since August 1, 2013 briefs, memoranda, and other papers filed with New Mexico’s courts have been required to use a system of medium-neutral case citation for all New Mexico appellate decisions. That citation system, similar although not identical to the model recommended by the American Bar Association and American Association of Law Libraries, was first implemented by the New Mexico Supreme Court in 1996. Pierce v. State, released for publication on January 4th of that year, was designated “1996-NMSC-001”. The first decision of the state’s court of appeals in 1996, State v. Gutierrez, carried the citation “1996-NMCA-001”. Both were issued with numbered paragraphs. Simultaneously issued citation rules required filings in New Mexico courts to cite those decisions and subsequent ones using their medium-neutral citations.
What is unprecedented about the 2013 amendment to those rules is that it requires that New Mexico’s print-independent citation system be used for all pre-1996 decisions reaching back to 1852. No other state has taken this step. Shortly after Oklahoma implemented medium-neutral citation in 1997, it retrofitted all prior reported decisions. But that state’s citation rule, then and now, simply provides that parallel citations employing the print-independent scheme are “strongly encouraged for opinions promulgated prior to May 1, 1997“.
The New Mexico Compilation Commission began as an agency responsible for producing a full compilation of the state’s statutes, hence its name. In 1982, however, the commission was given additional responsibility — publication of the New Mexico Reports. In 2004 it was declared to be the state’s official legal publisher. In 2011 the commission ended print publication of the New Mexico Reports, and the state’s supreme court designated the authenticated electronic files of decisions at the Compilation Commission web site their final, official version. And in 2012 the Commission’s database of electronic decision files, each with a medium-neutral designation (e.g., “1982-NMCA-051”) and paragraph numbering, was extended all the way back to Bray v. United States, 1852-NMSC-001.
Today, the Compilation Commission offers legal professionals and state offices the compiled statutes of New Mexico in both print and electronic format. Combined with the state’s case law, court rules, decisions of the regional federal courts, and other material, the commission’s integrated DVD and online database serve state and local government offices and compete with the commercial research services in the legal information market. Because of an attractive subscription price (roughly $60 a month for the general public, less for state and local government agencies), official status, and a growing list of features (most recently a limited citator service for its case reports) these services, known as NMONESOURCE, do, in fact, offer serious competition.
The principal drawback of the Compilation Commission’s database for legal professionals is its tight focus on New Mexico. With some frequency the state’s judges and lawyers need access to federal case law, statutes, and regulations. On occasion, they must consult decisions from other states. Although the Compilation Commission’s electronic library includes a collection of the most useful federal decisions and serves as a portal, linking to Google Scholar for the case law of other states and U.S. government sites for the Federal Register and Code of Federal Regulations, it falls short of providing a full range of non-New Mexico primary legal material. At a minimum the users of NMONESOURCE must, from time to time, turn to some other research service. Convenience may lead them to stay or even start out elsewhere. The default “other service” for New Mexico’s lawyers is Fastcase, available as a membership service to all members of the bar. For the state’s judges it is Westlaw, to which all of them, from the district courts through the state supreme court, have access under a group Westlaw subscription.
Consequences to Date
Compliance by Judges, Lawyers, and Law Students
Current decisions of the appellate courts of New Mexico model the citation format the 2013 rule requires of lawyers. While that rule does not require parallel print-based citations for state decisions dated after the cutoff for the final volume of the New Mexico Reports, judges continue to include parallel references to the Pacific Reporter of the Thomson Reuters National Reporter System. As the rule directs, however, their pinpoint references employ the paragraph numbers of the medium-neutral format. Review of a small sample of briefs filed in recent New Mexico appeals leaves little doubt that the system has also taken hold among lawyers. Student editors of the New Mexico Law Review employ the new citation method in their writing.
Take Up by Major Law Databases
To comply with the 2013 citation rule, the judge, lawyer, or law student needs access to a database that has retrofitted its collection of New Mexico’s pre-1996 decisions with medium-neutral case identifiers and paragraph numbers. A database search on “contract breach” may lead a researcher to the 1959 decision of the New Mexico Supreme Court in Wolf v. Perry or the 1993 case, Mark V, Inc. v. Mellekas. When first published and for years thereafter the volume and page numbers of those two decisions in the New Mexico Reports and Pacific Reporter would have provided proper citations. Indeed, they had none other. But as of August 1, 2013, Wolf v. Perry is to be cited as “1959-NMSC-044”; Mark V, Inc., as “1993-NMSC-001”. While a search on Bloomberg Law, Google Scholar, or Fastcase will take you to those cases, none of those services yet delivers their neutral citations, let alone the paragraph numbering needed to direct a reader to a specific passage.
Does this place the subscription service offered by the New Mexico Compilation Commission in a unique competitive position? No. The same search conducted on LexisNexis or Westlaw reveals that those services have followed the commission’s lead and added neutral cites and paragraph numbers to all pre-1996 New Mexico cases. Other research services serious about the New Mexico market will, no doubt, do the same. No license from the state is required. Despite the copyright notices that appear throughout the Compilation Commission site, New Mexico could not and does not claim copyright in either the case citations or paragraph numbers.
In the meantime, researchers who wish to cite pre-1996 cases identified through use of a database that has not inserted the new citation parameters can obtain them, case-by-case, from open access resources offered by the Compilation Commission. The commission’s web site holds tables that allow one to convert any pre-2013 official cite (“65 N.M. 457” or “114 N.M. 778”, say) to the new system (“1959-NMSC-004” and “1993-NMSC-001”, respectively). The site also provides, as a free public resource, a comprehensive case law collection reformatted in accordance with the new standard. From it one can draw the paragraph numbers the new rule calls for in pinpoint cites. Furthermore, because the commission’s site is open to external search engines it is possible to bypass the lookup tables and go straight to the decision one wants to cite. A Google search on “114 N.M. 778” or “845 P.2d 1232” limited to the commission’s site will lead directly to the medium-neutral version of Mark V, Inc. v. Mellekas as well as recent cases citing that decision. In fact, because the site is open to external search engines the initial case research need not begin elsewhere.
Lack of Reinforcement in NMSA and Most Other Annotations
As the state’s official publisher the New Mexico Compilation Commission also publishes the New Mexico Statutes Annotated and the New Mexico Rules Annotated. Both are included in electronic form as components of its online and disc products. They are also sold in print. In neither have annotations to pre-1996 decisions yet been conformed to the new rule. An annotation’s reference to a 1994 case will still cite it as “In re Cutter, 118 N.M. 152, 879 P.2d 784 (1994)” rather than “In re Cutter, 1994-NMSC-086, 118 N.M. 152″. So long as a researcher is working from the DVD or online version the annotation’s obsolete format is not a problem for the cites are linked to copies of the opinions, which carry the now official neutral citations and paragraph numbers. On the other hand, since programmatic conversion of the old-form citations should be fairly straightforward there is reason to expect that it will occur before long.
The annotations that appear in Michie’s Annotated Statutes of New Mexico, as published online by LexisNexis, do contain cites that conform to the new rule. Those in West’s New Mexico Statutes Annotated and in the Fastcase annotations to the New Mexico Statutes, as yet, do not.
Effects Limited to New Mexico
Many decisions of the U.S. District Court for New Mexico do employ the state’s medium-neutral citation scheme when citing its courts’ post-1996 decisions. Not all do, however, and there is little evidence to date that federal judges will be induced to cite older New Mexico decisions in accordance with the 2013 rule. When decisions from New Mexico, contemporary or older, are cited in other states, even states with their own systems of neutral citation, they are, almost invariably, cited by volume and page number.
A Model for Other States?
Oklahoma is the only other state to apply a non-proprietary medium-neutral citation scheme retrospectively to its full body of case law. There, nearly two decades of “strong encouragement” to use the system in citing older decisions has had a pervasive effect on in-state citation practice. In Oklahoma, like New Mexico, the policy was undergirded by creation of a comprehensive database of state law open to judges, other public officials, lawyers, and members of the general public — an initiative explicitly aimed at loosening dependence on commercial systems.
The barriers inhibiting prospective adoption of any new citation approach are sufficiently daunting and the costs of creating the necessary supporting database large enough that all other states adopting medium-neutral schemes have been content to leave their print-era case law wrapped in print-era citations. Two of them, Arkansas and North Dakota, have done so despite having created public databases of earlier appellate decisions. So long as the boundary between old and new is distinct this seems a totally defensible approach. How a Illinois judge or lawyer should cite decisions of that state’s courts rests very clearly on when the decisions were filed. Those released prior to July 1, 2011 and published in the Illinois Official Reports must be cited by volume and page number. Decisions filed on or after July 1, 2011 with a “public-domain citation” must be cited using it.
What reasons might have led New Mexico to take a more radical approach to citation reform? The first is that it could. Without a full retrospective case law collection the publications and legal research services of the New Mexico Compilation Commission were seriously incomplete, including importantly its flagship New Mexico Statutes Annotated. Assuming that construction of such a comprehensive digital archive had to be undertaken, the attachment of non-print-based citations in the same format as those that judges and lawyers had used for post-1996 cases may have seemed a modest add-on. Moreover, the rule change could be seen as placing NMONESOURCE, the Compilation Commission’s subscription service, in a uniquely authoritative position. Set up as an “enterprise unit” funded out of sales and subscription revenue along with a dedicated portion of court filing fees, the commission was in need of a resource boost. As the annual report of the New Mexico judiciary for fiscal year 2013 noted:
The challenges facing the [commission] are the increases in publishing costs while revenue declined for the second year in a row. There is a significant loss in civil action filing fees due to the decrease in civil actions filed. There is strained subscription revenue stemming from the economy overall and the increase in self-represented litigants who elect to file civil actions and appear in court without legal counsel. Lawyers are forced to make difficult decisions to postpone subscribing to the official laws in favor of the limited, unannotated laws on the public access site.
However, since that same public access site provides a complete set of New Mexico decisions as well as look-up tables matching volume and page number cites with their medium-neutral equivalents and the leading commercial database services have rapidly incorporated the new cites, the 2013 rule change may not, in the end, have a significant effect on NMONESOURCE subscription revenue.
No other U.S. jurisdiction has an agency with the broad charge and challenging duties of New Mexico’s Compilation Commission or today has the initiative, incentive, or resources within the judiciary to create a database like the one Oklahoma established years ago. For that reason it seems unlikely that the path New Mexico and Oklahoma have blazed will be followed by others anytime soon.
A recent decision of the West Virginia Supreme Court of Appeals quotes a local aphorism that underscores the importance of specificity when citing either to the record or legal authority. It is to the effect that: “Judges are not like pigs, hunting for truffles buried in briefs.”