A Legal Fiction: The "Unpublished" Appellate Division Opinion
When New Jersey’s Appellate Division issues an opinion, it is designated as either “published” or “unpublished.” Under Rule 1:36-2(a), “[o]pinions of the Appellate Division shall be published only upon the direction of the panel issuing the opinion.”
The difference between published and unpublished opinions is an important one. Published opinions are precedential and can be cited by any court. In contrast, under Rule 1:36-3, “[n]o unpublished opinion shall constitute precedent or be binding upon any court.” With only a few exceptions, that same rule says that “no unpublished opinion shall be cited by any court.”
The original reason for the limitations on the use of unpublished opinions was that, until relatively recent times, only opinions designated as “published” were accessible to judges, lawyers, or the public. Those opinions were the only ones that appeared in the books of case reports such as New Jersey Reports or New Jersey Superior Court Reports that filled law libraries. And those reporters were the only source of judicial opinions.
Unpublished opinions, in contrast, were known only to the lawyers and parties involved with those decisions. It was thus considered unfair to allow the use of unpublished opinions, since those who knew about favorable unpublished decisions had an advantage, and those who did not know about unfavorable unpublished opinions could be at a disadvantage against those who did know of them.
As the electronic age dawned, however, the distinction between the two types of opinions has gradually disappeared, like the Cheshire cat in Lewis Carroll’s “Alice in Wonderland.”
First, both published and unpublished opinions began to appear on electronic research services such as Lexis and Westlaw. Thus, unpublished opinions became just as available as published rulings to anyone who subscribed to one of those services. Still, not all lawyers paid for electronic research subscriptions, so there remained a rationale for restricting the use of unpublished opinions.
In 2005, however, any remaining reason for distinguishing between published and unpublished opinions evaporated. In that year, all decisions of the Appellate Division, both published and unpublished, began to appear, in full, on the Judiciary’s website, www.njcourtsonline.com
, on the same day that those opinions are issued. Since internet access is available to virtually everyone, the playing field was leveled regarding access to unpublished opinions. The reality is now that, even as to opinions designated as “unpublished,” all Appellate Division decisions are published, in the sense that they are made public.
Despite that, New Jersey’s Court Rules continue to limit the use of unpublished opinions, as though nothing had changed. Unpublished opinions are still not considered precedent, and the limits on citation of unpublished opinions by judges remain.
Ever since Rule 1:36-3 was adopted in 1981, parties have been allowed to cite unpublished opinions in their briefs, but only if “the court and all other parties are served with a copy of the opinion and of all contrary unpublished opinions known to counsel.” That mandate too remains in force, even though unpublished Appellate Division opinions are available on judges’ computer screens just as published opinions are. That requirement is not particularly onerous, though a few more trees will die because of it, at least until electronic filing becomes fully operative in the appellate courts.
Within the last few days, the Appellate Division reinforced the distinction between “published” and “unpublished” decisions
But it seems inevitable that, at some point, the Supreme Court, which makes the rules, will abolish the distinction and treat all Appellate Division decisions equally. Rule 1:36-2(a) already does that with Supreme Court opinions, stating that “[a]ll opinions of the Supreme Court shall be published except where otherwise directed by the Court.”
Since all Appellate Division decisions are now in fact public, the notion that some are “unpublished” is merely a legal fiction. It is time to abandon that fiction and treat all Appellate Division decisions alike, to be relied upon if persuasive and to be rejected if they are not.