Oklahoma Makes It Official (But What Does That Signify?)

1. “Official” Digital Case Law

For over 16 years Oklahoma appellate courts have attached non-proprietary, print-independent citation data to their decisions at the time of release, placed those decisions online at a public site, and required lawyers to cite state precedent using this contemporary system. Moreover, setting Oklahoma apart from other neutral citation pioneers, the judiciary staff applied neutral citations retrospectively to all prior decisions rendered during the print era, placed copies of them online as well, and encouraged but did not require that they also be cited by the new system.  Until this year, however, the print reports of the National Reporter System remained the “official” version of Oklahoma decisions.  As of January 1, 2014, sixty years after the Oklahoma Supreme Court designated the West Publishing Company as the “official publisher” of its decisions, it revoked that designation.  For decisions of the Oklahoma Supreme Court and the Oklahoma Court of Civil Appeals rendered after that date, the digital files published on the Oklahoma State Courts Network constitute the official versions.  Reflecting the new status, decisions that have become final will now be marked official by “the placement of the respective court’s official seal of authentication” in the upper right hand corner.  See, e.g., Carney v. DirectTV Group, Inc., 2014 OK CIV APP 4.

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The Oklahoma judiciary is not the first to declare electronic versions of its appellate decisions “official.”  It follows Arkansas, Illinois, and New Mexico in taking this step.  In addition there are states that while not making such a declaration nonetheless maintain reliable online collections of final, citable copies of their appellate decisions as Oklahoma did prior to 2014.  Nonetheless, Oklahoma’s recent action set on top of its strong history of electronic publication and viewed alongside the situation in other states that take digital publication seriously invites scrutiny of the implications of declaring a jurisdiction’s electronic case law files “official.”

2. Implications for Citation?

In some cases “official” means “must cite to,” but as applied by the Oklahoma Supreme Court the new label compels no change in case citation.  Ever since 1997 the state has required use of citations embedded in the electronic decision files released by the court and stored at its public web site.  Furthermore, while the Thomson Reuters regional reporter has had its “official” status revoked court rules still call for lawyers to furnish parallel citations to P.3d.   (Since the Oklahoma State Courts Network has, from the beginning, furnished each decision’s regional reporter citation and the rule does not mandate parallel pinpoint citation, that requirement, while unnecessary, imposes no added research burden on the state’s lawyers.)

3. In the Event of Discrepant Texts, the “Official Version” Prevails

Presumably one consequence of the “official” designation is an altered rule for resolving conflicts among versions.  The U.S. Supreme Court web site, which distributes electronic slip opinions on day of decision, and years later, following publication of the final bound volume of the United States Reports, a pdf file of that volume in full, explains “official” in these terms:

Only the printed bound volumes of the United States Reports contain the final, official opinions of the Supreme Court of the United States. In case of discrepancies between a bound volume and the materials included here–or any other version of the same materials, whether print or electronic, official or unofficial–the printed bound volume controls.

In truth in the modern era this meaning of “official” has little occasion for application.  As I observed in a 2011 article about Arkansas’s break with official print reports:

Most legal research and law writing is done without checking key passages drawn from unofficial sources against the version designated as “official.” In those rare cases where discrepancies appear and where they bear directly on the resolution of a critical issue courts generally do not take the literal text of the official publication as dispositive. They weigh other evidence, looking to the context of the contested word, phrase or passage, its consistency with other decisions and whether a typographical error seems probable. [Footnotes omitted.]

4. Having Designated a Public Database as the “Official” Record of Its Decisions, the Court Will Take All Necessary Steps to Assure Its Accuracy

In varying degrees courts fiddle with their decisions in the days and weeks following initial release.  The judicial web sites of some jurisdictions are very clear that one shouldn’t count on such post-release revisions being incorporated into the electronic texts they hold.  A recent example from Indiana illustrates the problems this can generate.

On October 17, 2012, the Indiana Supreme Court issued an opinion in J.M. v. Review Bd. of Indiana Dept. of Workforce Development.  The decision was posted at the web site of Indiana’s judicial branch.  As released footnote 1 of the decision read:

Identities of the claimant and employing unit are generally subject to the confidentiality requirements prescribed in Indiana Code section 22-4-19-6(b) (2007). This confidentiality requirement is expressly implemented as to judicial proceedings by Indiana Administrative Rule 9(G)(1)(b)(xviii).

Less than a month later Indiana’s intermediate appellate court quoted the J.M. case for that proposition.  Sometime later (it being unclear exactly when) the Indiana Supreme Court revised footnote 1 of the J.M. case to read:

Although in this case we kept the claimant and employing unit confidential, our practice going forward will be to keep these parties confidential only if they make an affirmative request as outlined in Recker v. Review Board, 958 N.E.2d 1136, 1138 n.4 (Ind. 2011). As discussed in Recker, an affirmative request must be made for confidentiality.

BUT although the change was communicated to Thomson Reuters for sure and perhaps other publishers, as well, the opinion file at the judicial branch web site remained unaltered.  Now the web site does caution:

Opinions posted here are for informational purposes only. Official copies of opinions are available from West (Thomson/Reuters) or from the Clerk of the Supreme Court, Court of Appeals, and Tax Court.

But the discrepancy between the footnote text in the regional reporter and the original version posted at the court site forced the Court of Appeals in a later case to consider which one to follow.  In Albright v. Review Bd. of Indiana Dept. of Workforce Development, decided on September, 12, 2013, the court concluded that “[a]lthough there is no indication of the supreme court having issued an order that footnote 1 was being amended or entering notice thereof on the official docket maintained by the clerk of the supreme court” and despite its own past precedent relying on the original version, it was obliged to conform to the practice set out in the regional reporter version.  Manifestly, the appeals court was displeased with the failure to flag the revision of the J.M. decision at the judicial web site.  Before long an updated J.M. file appeared at that site.  But reflecting the site’s uncertain function, that revised file purports to be the original 2012 decision, for it carries an image of the Clerk’s seal showing the date October 17, 2012. Only the file’s metadata (“properties”) show that it was modified on October 30, 2013, following the Court of Appeals decision pointing out the discrepancy.

5. Official Digital Case Law and Authentication

Indiana’s failure to track or report opinion revision at the court site highlights the need for official sites to furnish some means of assurance to those relying on their electronic decision texts that they have not been altered, altered either by the court or in the course of redistribution by a legal information service or publisher.  Section 5 of the Uniform Electronic Legal Material Act (UELMA), promulgated in 2011 and now enacted in eight states, requires that public bodies using electronic means to disseminate “official” legal materials provide authentication, namely “a method for the user to determine that the record received by the user … is unaltered.”  While the Act is careful to remain “technology-neutral, leaving it to the enacting state to choose its preferred technology for authentication” it clearly requires more than the insertion of an image of the court’s seal, Oklahoma’s measure for assuring users that a decision file is the “final” and “official version.”  The Indiana example, noted in the prior section, demonstrates how easy it is to change a decision file and reinsert such an image.

Two of the states moving to official digital case law provide authentication in the UELMA sense.  Both Arkansas and New Mexico use digital signatures to do so.  See, e.g., Loveless v. Agee, 2010 Ark. 53 and State v. Sisneros, 2013-NMSC-049.

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An alternative, employed by Utah with its administrative code, is to provide a hash for each official electronic document.  Although these states were not required to provide technical assurance of this sort since, like Oklahoma, none of them has yet adopted the uniform act, their authentication measures illustrate what “official” electronic law reports can and ought to include.

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One Response to “Oklahoma Makes It Official (But What Does That Signify?)”

  1. […] of Cornell Law School, and co-founder of Cornell’s Legal Information Institute (LII), has written on this topic more than once and noted CourtListener’s usefulness for detecting these sorts of judicial […]

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