Every order and opinion of the Supreme Court of New Jersey is published. And every Appellate Division opinion is public, posted online at njcourts.gov. Yet, most Appellate Division opinions are not "published," but rather, stamped: "Not For Publication Without the Approval of the Appellate Division." R.1:36-1.

Both lawyers and trial judges wonder—what is the point of this distinction? And what calculus governs publication of an Appellate Division opinion?

First, remember that the Appellate Division decides thousands of cases each year. Publication endows the opinion with precedential value. As any attorney knows who has urged a panel of judges to view an unpublished opinion as authority, judges may be persuaded but are not bound by unpublished opinions, no matter how sound the reasoning. R.1:36-3.

Unlike trial court opinions, whose publication is determined by the Supreme Court appointed Committee on Publication, R.1:36-1(b), publication of any Appellate Division opinion rests with the judges of the Part assigned to the case, R.1:36-2(a).

Pursuant to established Supreme Court policy, three judges are required for all opinions approved for publication. See e.g., R.2:13-2(b) (discussing three judges on appeals presenting question of public importance, of special difficulty, [or] of precedential value …. "). When a matter decided by two judges seems destined for publication, a third judge must be added and the new three-judge part considers and evaluates the merits. While all three judges must agree that an opinion is suitable for publication, the Presiding Judge has a leading role in the publication process.

Quite honestly, the determination whether a matter is ripe for publication starts with writing assignments issued by the Presiding Judge. The Presiding Judges are the first to review the matters assigned on any given week. At times this initial review alerts the Presiding Judge to a substantive matter worthy of publication. Other times, that fact is not so apparent.

Following oral argument (if presented) and the writing assignment, an opinion is drafted. The judges assigned to the case decide whether the opinion warrants publication under the guidelines. The mere application of settled law will not result in a published opinion. Guided by the objective standards set forth in R.1:36-2(d)(1) to (8), the panel decides whether the opinion has precedential value.

For example, does the opinion involve a substantial state or federal Constitutional question or determine a new and important question of law? The panel considers whether the opinion "changes, reverses, seriously questions or criticizes the soundness of an established principle of law," or "determines a substantial question on which the only case law was issued prior to September 15, 1948," when the Judicial Article of the new Constitution became effective (Article XI, Section IV, paragraph 14). Lloyd v. Vermeulen, 40 N.J. Super. 151, 155 (Law. Div.), aff'd, 40 N.J. Super. 301 (App. Div. 1956), aff'd, 22 N.J. 200 (1956).

An opinion "based upon a matter of practice and procedure," not yet discussed in published authority, or one which "resolves an apparent conflict of authority" or addresses a matter "of continuing public interest and importance" falls within the guidelines for publication. Finally, some opinions may not decide a unique issue but are published because they provide "a significant and nonduplicative contribution to legal literature by providing an historical review of the law, or describing legislative history, or containing a collection of cases that should be of substantial aid to the bench and bar."

Even when a case falls within the guidelines, the court may elect not to publish the opinion. The author of the opinion is the first who may decline publication. Reasons for this vary; among them is deference to the Supreme Court, allowing it to be the first to "speak" on an issue.

Next, the panel's Presiding Judge may decline the request for publication. Because all published opinions bind all trial courts, a case that does not squarely meet the objective criteria for publication or a matter that is too fact-specific to serve as broader authority, may not warrant publication. At times, two appellate panels review a substantively similar issue and reach divergent results. Such a circumstance may tilt the balance against publication.

When these hurdles are overcome and all three judges—even a dissenter—agree that the opinion merits publication, the opinion is "Approved for Publication." Know that even a published opinion does not bind all panels of the Appellate Division. David v. Gov't Employees Ins., 360 N.J. Super. 127, 142 (App. Div), certif. denied. 178 N.J. 251 (2003); see also Pressler and Verniero, Current N.J. Court Rules, cmt. 3.3 on R.1:36-3 (2019).

As an aside, if certification is granted, the Supreme Court may direct an Appellate Division's opinion published because the court's opinion affirms in whole or in part for the reasons stated by the Appellate Division.

Another avenue allows counsel or even a party to request publication by writing to the Committee on Opinions. R.1:36-2(c). The request must specify the basis for requesting publication with reference to the categories set forth in Rule 1:36-2(d). Although the committee may offer a recommendation on publication, which is referred to the Presiding Judge, the appellate panel retains the ultimate decision whether to publish.

Practice Tip: When making a request for publication, be sure to do so shortly following the opinion's release. In the event of delay, the Appellate Division may decline the request because the time to seek certification passed, possibly prejudicing a party and denying the Supreme Court the opportunity to consider the issues presented by a "published" opinion.

If you would like to see a topic addressed in a future column, you may submit your suggestion to [email protected].

Next month:  Do the judges really write the opinions?

Marie E. Lihotz, a former Presiding Judge of the Appellate Division, is now of counsel with Archer and Greiner, providing appellate consulting, mediation and arbitration services. Marianne Espinosa, a former Judge of the Appellate Division, is of counsel with Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom & Sinins. She focuses on appellate consultation, mediation, arbitration and the investigation of employment law disputes.