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Notwithstanding the proscriptions of Rule 1:36-2, unpublished decisions currently have some standing before the courts of New Jersey. If the conclusions of Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), are adopted in New Jersey, then unpublished decisions could achieve the stature currently held by their published counterparts. But that will depend, in large part, on how readily unpublished decisions can be incorporated into a lawyer’s practice. Suppose you are looking for a decision supporting the proposition that there is no statute of limitations on a Spill Act claim. You are familiar with Pitney Bowes, Inc. v. Baker Indus., Inc., 277 N.J. Super. 484 (App. Div. 1994), in which the Appellate Division held that a statute of repose does not apply to Spill Act claims. You would like to argue that the reasoning of Pitney Bowes applies in full force, if not a fortiori, to a statute of limitations. In fact, one panel of the Appellate Division has used those exact words. See Mason v. Mobil Oil Corp., No. A-885-98T1, slip opinion at 9 (App. Div. June 8, 1999). Unfortunately, the decision is unpublished and, pursuant to R. 1:36-3, “no unpublished opinion shall constitute precedent or be binding upon any court.” Even more disheartening, the rule generally forbids a court from even citing unpublished decisions. To your rescue comes Anastasoff, in which the 8th U.S. Circuit Court of Appeals, shackled by a rule similar to R. 1:36-3, held that it was nevertheless obligated by the federal Constitution to follow its prior unpublished decisions as precedent. The plaintiff in Anastasoff sought a refund from the Internal Revenue Service, and the I.R.S. argued that her claim was untimely filed. An 8th Circuit unpublished decision confirmed the position of the I.R.S., but the 8th Circuit’s own rule, 28A(i), forbade reliance on that decision. Circuit Judge Richard Arnold reached back to the works of Blackstone, Coke, Madison and Wilson, and out to current commentators, for support for his premise that the judicial power established in Article III of the U.S. Constitution was limited by the doctrine of precedent. Rule 28A(i) allowed courts to “ignore [that] limit.” Accordingly, Judge Arnold tossed out the rule: “Rule 28A(i) allows us to depart from the law set out in such prior decisions without any reason to differentiate the cases. This discretion is completely inconsistent with the doctrine of precedent … . Insofar as it limits the precedential effect of our prior decisions, the Rule is therefore unconstitutional.” New Jersey courts are not bound by Article III, but the New Jersey Constitution does provide for the judicial power to reside in specified courts. N.J. Const., Art. 6, Section 1. Thus, it should be anticipated that arguments similar to those relied on by Arnold will be used to attack R. 1:36-3. Anastasoff has received attention in the national and local press. See Roger Parloff, “Publication Rights,” American Lawyer at 15 (Oct. 2000); Steve France, “Right to Cite,” ABA Journal at 24 (Oct. 2000); Steve France, “Swift En Banc Review Expected of Case Treating Unpublished Opinions as Precedent,” 69 U.S. L. Wk. 2227 (BNA Oct. 24, 2000); Tony Mauro, “Court Upholds Precedential Value of Unpublished Opinions,” 161 N.J.L.J. 1026 (Sept. 4, 2000); Editorial, “All Opinions Are Precedential,” 161 N.J.L.J. 1042 (Sept. 4, 2000); Jose L. Fuentes and James F. Dial, “Uncouple Precedential Value of Opinions from Publication Status,” 161 N.J.L.J. 1123 (Sept. 11, 2000). Practitioners should expect to see briefs citing more unpublished decisions, and judges paying more attention to them. As one law professor commented: “It would be a foolhardy lawyer in the 8th Circuit � or other circuits � who did not go through the unpublished decisions from now on.” (Professor William Reynolds, University of Maryland School of Law quoted by Mauro, above.) RULE 1:36-3 APPLIED The language of R. 1:36-3 might imply that unpublished decisions have no place in New Jersey jurisprudence. One Appellate Division decision adopts that line: “Both sides rely on an unpublished opinion of this court. That opinion is not precedential and we do not discuss it.” See Bergen County Utils. Authority v. Department of Public Advocate, 276 N.J. Super. 577, 583 (App. Div. 1994). Yet it clearly is not that simple. The Appellate Division has drawn a distinction between an unpublished order, which is authoritative, and an unpublished opinion, which is not. See State v. Cruz Const. Co., Inc., 279 N.J. Super. 241, 250 (App. Div. 1995). Also, regulations apparently have been modified based on unpublished decisions. See Herrera v. Township of South Orange Village, 270 N.J. Super. 417, 421 (App. Div. 1993). A split of Appellate Division decisions, some of which were unpublished, occasioned a recommendation to the Legislature that a particular state statute be modified. See Riverview Realty, Inc. v. Williamson, 284 N.J. Super. 566, 570 (App. Div. 1995). And administrative proceedings are often decided based on the Appellate Division’s unpublished rulings. See, e.g., In re Robros Recycling Corp., 266 N.J. Super. 343, 350 (App. Div. 1988); In re Pemberton Township Mun. Utils. Authority, 205 N.J. Super. 31, 33 (App. Div. 1985); Charatan v. Board of Review, 200 N.J. Super. 74, 82 (App. Div. 1985). Finally, notwithstanding R. 1:36-3, some trial courts actually rely on unpublished decisions. See Newark Ins. Co. v. Acupac Packaging, Inc., 2000 WL 202629 at **10 n.4 (N.J. App. Div. 2000); Morton Intern., Inc. v. General Accident. Ins. Co. of Am., 266 N.J. Super. 300, 318 (App. Div. 1991); Avallone v. Mortimer, 252 N.J. Super. 434, 436 (App. Div. 1991). Other trial courts are less overt in confirming the authority for their decisions. See, e.g., General Accident. Ins. Co. v. Poller, 321 N.J. Super. 252, 253 (App. Div. 1999) (trial court adopted standard of review “espoused” by unpublished Appellate Division decision); Higgins v. Swiecicki, 315 N.J. Super. 488, 491 (App. Div. 1998) (trial judge “persuaded” by unpublished opinion); Kingwood Township Volunteer Fire Co. Number One v. Board of Adjustment of Township of Kingwood, 272 N.J. Super. 498, 504 n.2 (Law Div. 1993) (unpublished opinions provide “useful guidance”); Colts Run Civic Ass’n v. Colts Neck Township Zoning Bd. of Adjustment, 315 N.J. Super. 240, 253 n.8 (Law Div. 1998) (“noting” that legal status of particular use was recognized in unpublished decision). Even the Appellate Division, on occasion, has been “content to follow [its] prior [unpublished] decisions,” State v. Alexander, 264 N.J. Super. 102, 107 (App. Div. 1993), or to find an unpublished decision “illustrative.” Roach v. TRW, Inc., 320 N.J. Super. 558, 573 (App. Div. 1999). As can be seen from the above survey, it may not be too strong to say that the rule against citing unpublished decisions is ignored. One cannot go that far regarding the status of unpublished opinions as precedent. However, practitioners are on solid ground if they argue such cases are illustrative or useful guidance. Thus, even apart from the conclusions of Anastasoff, unpublished decisions are a meaningful part of New Jersey jurisprudence. If New Jersey were to adopt Anastasoff, whether unpublished decisions achieved the precedential stature of their published counterparts would depend on how readily the unpublished decisions could be incorporated into a lawyer’s practice. The New Jersey Supreme Court is not required to publish all of its opinions. Appellate Division decisions are published at the discretion of the panel deciding the case. Approximately 10 percent of the decisions reviewed are approved for publication. Publication of a trial court decision depends on the decision of the Committee on Opinions, which must follow certain conditions set forth in R. 1:36-2(b), (d). The committee has no authority, however, to publish letter opinions or transcripts of oral opinions. Practitioners also can request that a decision be published. Unpublished decisions that have not been approved for publication can be found in a variety of sources. Generally, they are available from the court that issued the decision. Some are also found in a number of print and online sources. However, the indexing of and ability to search the decisions are extremely limited. Yet, search capability and indexing are essential. As the court said in West Publ’g Co. v. Mead Data Central, Inc., 616 F. Supp. 1571, 1578 (D. Minn. 1985): “The statement of the mere existence of the case … standing alone is useless. It is useless because that decision, as issued, cannot be accessed. Its voice is silent, and its teachings are unheeded.” ONLINE RESOURCES Some practitioners may be familiar with the online availability of state court decisions from the Rutgers-Camden law library. Unfortunately, no unpublished opinions are available there. The only Internet source for unpublished New Jersey opinions, of which the authors are aware, are the decisions published by certain judges in certain counties ( http://www.judiciary.state.nj.us/decisions.htm). These decisions are not searchable, however. For searchable databases, one must turn to the information made available by Lexis-Nexis and West Publishing. All practitioners are familiar with Lexis and Westlaw, which include federal and state unpublished decisions in their databases. Unpublished decisions on these services can be searched for particular terms. Lexis’ core term feature is available for newer cases. West Publishing does not assign head notes or identify unpublished decisions in its case digest tables. However, electronically available unpublished decisions for New Jersey state courts are extremely rare. A search on Lexis identified only five such opinions in all of 1999; a Westlaw search retrieved only four opinions. In 1990, Lexis’ parent company sought an agreement with the New Jersey judiciary to publish “unpublished” decisions. Apparently, no agreement was ever reached. See Bruce Rosen, “Lexis Seeks Access to Unpublished Opinions,” 126 N.J.L.J. 988 (Oct. 11, 1990). The digests and summaries prepared by the New Jersey Law Journal and the New Jersey Lawyer are another reference source for unpublished opinions in New Jersey. Each newspaper also has a daily electronic newsletter, the Daily Decision Alert and the Daily Briefing, respectively. These publications, at the discretion of their respective editors, summarize New Jersey state, federal and administrative decisions from both the appellate and trial courts. The selection standards of each paper are not identical, and the cases that are chosen for summary often differ. Unless a practitioner saves, in a searchable format, each and every daily electronic newsletter, these databases are not searchable. However, Westlaw (from 1996) and Lexis (erratically from 1998) both publish each paper’s summaries, which can be searched by terms. Once a practitioner has located a likely summary, the full text of the decision must still be ordered from either the New Jersey Law Journal‘s Daily Decision Service or the New Jersey Lawyer‘s Facts-on-Call. LITIGATION REPORTERS Because of the lack of effective indexing for electronic resources, hard copy resources still have a place. Litigation reporters published by companies such as Andrews Publications and Mealey Publications provide copies of unpublished decisions. Correspondents in the state and federal courts provide copies of case filings to these publications, and significant cases are then included in the reporters. Full-text reproductions of case documents are usually included in each issue, and if they are not included, opinions can be ordered from the appropriate publisher’s document delivery services. Both Andrews and Mealey publish annual print indices to their reporters that provide various ways to locate case information. Mealey publishes annual indices that allow searching by subject, jurisdiction, case name and the names of other entities involved in the case, (e.g., the Insurance Bad Faith Litigation Reporter will include an index of insurance carriers, agents and adjusters). Andrews publishes yearly indices that provide searching by case names and subjects. Both litigation reporters are available and searchable on Lexis-Nexis and Westlaw. The files include the articles and case summaries from the print versions going back to the mid-1990s, depending on the reporter. The full-text documents are not included in these files. Again, they can be ordered from each publisher’s document delivery service. Both Andrews and Mealey have Internet products available by subscription that includes searchable archives of cases and articles. Keyword searching in Mealey’s archives is possible going back to 1984. Full-text court documents from March 2000 forward can be obtained online. Earlier documents are available with a credit card via Mealey’s document delivery service. Andrews also offers searchable archives on its Web site. Documents are available via the document access service. The Law Reporters Publishing Group publishes several reporters that include unpublished opinions. An example is the Bank and Corporate Governance Law Reporter, a monthly journal of articles, opinions, briefs and oral arguments. Annual indices are published for the reporters, with listings by article titles, authors and case names. These reporters are available to subscribers in print or by e-mail in pdf format. They are not available on Lexis-Nexis or Westlaw. If the arguments made in the Anastasoff decision gain sway in New Jersey, practitioners will have even more reason to know how to access those decisions. At a minimum, a practitioner should consider searching Westlaw or Lexis for relevant summaries and reviewing the appropriate specialized reporter. However, even if some members of the bar become completely familiar with the resources outlined above, they will still be subject to the editorial decisions employed by the various entities that make some, but not all, unpublished materials available. This cannot be remedied until all decisions are made available and searchable � which is done, for example, by the Bankruptcy Court for the Northern District of California, http://www.canb.uscourts.gov/canb/documents.nsf. Whether that is practical, however, cannot be predicted.

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