A Small Step in the Right Direction Regarding “Unpublished” Appellate Division Opinions

On September 12, Chief Justice Rabner issued an order that amendments to Rule 1:36-3, and a new Rule 8:9-6, both of which were attached to the order, would be effective immediately. On September 19, Judge Grant, Administrative Director of the Courts, issued a Notice to the Bar about that action. The order and notice were published yesterday and are available here.

The amendment to Rule 1:36-3, a Rule regarding unpublished opinions, adds “appellate opinions not approved for publication that have been reported in New Jersey Tax Court Reports” to the limited group of unpublished opinions that may be cited by a court. The new Rule 8:9-6 provides that Appellate Division opinions that review a published opinion of the Tax Court but are not themselves designated for publication in the New Jersey Superior Court Reports (that is, are unpublished as defined in the Court Rules) “shall be published in the New Jersey Tax Court Reports with consent of the Appellate Division of the New Jersey Superior Court. If published in the New Jersey Tax Court Reports, such opinions will be precedential in the Tax Court.”

The Notice to the Bar explains that there is a “current and longstanding practice in which an unpublished Appellate Division opinion reviewing a published Tax Court opinion is, with the approval of the Chief Judge of the Appellate Division [who was, until very recently, known as the Presiding Judge for Administration], published in the New Jersey Tax Court Reports. Based on that publication in the New Jersey Tax Court Reports, members of the bar and others have understood those otherwise unpublished Appellate Division opinions to be precedential in the Tax Court. The amendments to Rule 1:36-3 [there is actually only one amendment to that Rule, so it is unclear why the plural was used] and new Rule 8:9-6 codify that limited precedential nature of those opinions.”

The entire idea that Appellate Division opinions designated as “not for publication,” all of which are available on the internet, including on the Judiciary’s own website, cannot be cited by a court and lack precedential value is, at best, an outmoded concept in today’s world. That is a subject for another post. But this amendment and new Rule open the door just a crack to a system where all Appellate Division opinions are treated equally. The fact that this action was prompted by what “members of the bar and others have understood” might suggest that the Supreme Court could at some point equalize all Appellate Division opinions if there is a groundswell in that direction from members of the bar and others.

For today, however, a question: The final sentence of Rule 8:9-6 says that the subset of opinions described will be “precedential in the Tax Court.” Will they also be precedential in courts other than the Tax Court? Can an opinion be precedential in one court but not in others? We will have to wait and see.