Distribution of judicial decisions still evolving

Nestled on a top shelf in the Indiana Supreme Court’s law library, the book doesn’t stand out, and one might not look at it any differently than the others nearby.

But that book is different, in that it recognizes a notable moment in Hoosier legal history when the state shifted how it published appellate court decisions and paved the way for what’s in place today.

That old legal book symbolizes the closing of a chapter in the mid-1980s that may seem like ancient history to some. Look closely, and it provides a lesson about where we’ve come from and what may lie ahead concerning legal research and how rulings from the state’s highest courts are published.

“Our history on how we’ve had print bound volumes and how we’ve done legal research is very interesting, historically and for today,” Chief Justice Randall T. Shepard said.

The first reports

What began in the early 1800s paved the way to where we are today, beginning with one of the state’s founding Supreme Court justices penning his published books on judicial decisions and later motivating legislators to create a new office that would handle that task. Justice Isaac Blackford published the first of his eight bound volumes in 1830, and they immediately became a hot commodity, according to Chief Justice Shepard.

“Blackford was one of the first anywhere to do this, and his reports were well-known throughout this country,” the chief justice said. “I’ve found reviews in New York legal newspapers from the 1830s and 40s saying they were some of the best around, and they were valued in Britain and other places. There was such a thirst for this printed law at a time when there weren’t even very many newspapers, and that’s how we got started.”

But because then-Justice Blackford was so successful and earned money selling those reports, the Legislature during its constitutional convention in 1851 took away a judge’s ability to compile those reports and created the Indiana Court Reporter’s office to handle the job of publishing and distributing appellate decisions. The office took on the intermediate appellate court when it was established later that century.

This was before any bound volume of court opinions was available for research, and it caused the official Indiana Reports to be published. It called for publication of appellate court decisions, and stated that no jurist would be able to do that as Justice Blackford had done. The section noted that lawmakers couldn’t require judges to write syllabi of their written decisions, and it didn’t prohibit entities other than the state from creating that publication.

In 1887, that’s exactly what happened. West Publishing Co. created the National Reporter System and began cataloging reported cases from across the country. Indiana was tossed into the Northeastern Reporter, which also includes Illinois, Massachusetts, Ohio, and New York. The key cite system was developed and, during the next century, the reporter’s office that Indiana’s General Assembly had created gradually became obsolete.

After 132 years in operation, the reporter’s office was abolished in the early 1980s. Longtime Republican and female political pioneer Marilou Wertzler became the last person to hold that position, a job she’d been elected to in 1968. She served 16 years before the General Assembly determined it was a superfluous position since the reports the office issued became available months after cases were available through West Publishing.

Indianapolis appellate attorney Karl Mulvaney, who worked as the assistant court administrator for six years before becoming administrator in 1984, recalls working with and seeing Wertzler arrive each day for work.

“She was a hard worker but had a very small staff, and it was not surprising that her office could not keep up in publishing the volumes,” he said. “My recollection is that discussion about the topic of sunsetting the reporter’s office was something that went on between members of the General Assembly and the court when it became evident that the decisions were a number of years behind in being published, and because it was clear that West Publishing did such a good job getting opinions out. I believe Marilou Wertzler was consulted before there was a decision to sunset her office.”

Public Law 4-1983, approved in April 1983, abolished the reporter’s office, which had been dictated by provisions of Indiana Code 33-15. Then-Chief Justice Richard Givan signed an order in January 1985 making WestLaw’s Indiana Cases the official publisher and distributor of the state’s judicial decisions.

Though he came onto the Supreme Court later that year as a new justice after that had all transpired, Chief Justice Shepard recalls from the “accepted wisdom I inherited” that the state just didn’t see any reason to continue paying to publish the reports when a commercial outfit was already doing it.

“There was really no advantage of the bench or bar to continue paying for something superfluous, because we’d all be able to still get the opinions,” he said.

Now, except for institutional knowledge about Wertzler, little evidence exists of that position except for what is found in law libraries. Her name remains on the covers of those now-defunct Indiana Reports, the last including a title page announcing it was the final volume and giving a brief history before listing all 24 people who’d held that position.

Though that office was dissolved and West took on what the reporter had previously been doing, the appellate clerk and administrator’s office has essentially evolved into the office responsible for administering former reporter tasks on the state’s side. For years, the clerk’s office supplied WestLaw with the published decisions to catalogue and distribute, but now the publisher mines the state sites and does that electronically to include in the Northeast Reporter, according to Clerk Kevin Smith, who now serves in a position that has become non-elective.

After Wertzler’s position was abolished, her son said she moved to California to be near family and that’s where she remained until she died at age 89 in Palo Alto. Her son, John Wertzler, recalls how his mother sat with then-Gov. Robert Orr in 1984 as he signed the legislation eliminating that office, writing on the photo, “Au revoir, Marilou, (those dogs!!). – Bob”

“The ‘dogs’ reference is targeting at the Legislature that passed the law sunsetting the office,” John said. “She loved that job, but understood the practical and political reasons and knew the office was passed its prime.”

A continuing evolution

Aside from the practical considerations of reducing redundancies and the symbolic nature of eliminating such a historic office, those around at the time say not much changed for the legal community because WestLaw kept doing what it had been doing – publishing Indiana Cases. Chief Justice Shepard recalls how he’s observed the shift from traditional legal books and law library materials during his time on the court.

“One sign that the worm has turned since I’ve been chief justice is when the state moved its warehouse and we had hundreds of cartons of Indiana Reports that would have had to be moved,” he said. “I asked our administrator in the early 1990s if there’d be any interest among lawyers to receive a free set, and we placed an ad in Res Gestae about it… My recollection is that we didn’t get a single taker. Even by then, the e-versions had become more commonly used and there wasn’t anyone willing to add these to their law libraries.”

Justice Frank Sullivan recently heard on a visit to the West Publishing facility in Minnesota what many suspected, that the number of print subscriptions has dropped dramatically through the years. Advance sheets have also been declining in popularity in recent years, the chief justice noted, as more attorneys and judges are able to immediately find opinions and orders online.

Law Librarian Terri Ross says it takes about six weeks to receive those advance sheets and four months until the bound volumes come out. The courts or West has immediate access online for free or a subscription price.

Many practitioners say staying current on the law is easier now with instant access, even though the volume of law hasn’t slowed down and it still takes time to read and understand the content and context. But what that means for the future of judicial decision publication isn’t clear, and it leads the chief justice to think even more change might be coming before long.

“The online opinions or e-versions are what’s first in the hands of the lawyers, by far,” Chief Justice Shepard said. “That has changed the way West is printing the bound volumes, and while we still have them, some have begun to wonder how long that will last.”•