In both the Appellate Division and the Third Circuit Court of Appeals, most opinions issued are not precedential. Sometimes, however, parties wish to have a not precedential opinion changed to a precedential one so that it can be cited by courts going forward.
The New Jersey Court Rules contain an express provision as to how to request that. The Federal Rules of Appellate Procedure, the Third Circuit’s Local Appellate Rules, and that court’s Internal Operating Procedures lack a comparable provision. But the Third Circuit can and does approve motions to change an opinion’s designation from not precedential to precedential. See, e.g., United States v. Greene, 212 F.3d 758 (3d Cir. 2000) (granting, in part, motion by the government to publish a non-precedential memorandum opinion).
In fact, the court did just that today, in G.S. v. Rose Tree Media School District, ___ F.3d ___ (3d Cir. 2018). This was a per curiam opinion, where the issue that led to the re-designation of the opinion as precedential was the definition of “homeless children and youths” under the McKinney-Vento Homeless Assistance Act, 42 U.S.C. §11434a(2). The panel found that G.S. qualified as “homeless” on the facts of the case.
The panel granted a motion by amici to change the designation of the opinion. Thus, it is not only parties who can seek such relief in the Third Circuit.
In state court, Rule 1:36-2(c) governs. That rule states that “[a]ny person may request publication of an opinion by letter to the Committee on Opinions explaining the basis of the request with specificity and with reference to the guidelines prescribed by [Rule 1:36-2(d)].” The rule thus does not seem to limit such requests to parties, so that amici, as in G.S., or even those with no connection to the case at all, can make such a request.
Those guidelines include whether the opinion involves a substantial question under the United States or New Jersey Constitutions, or “determines a new and important question of law,” or “changes, reverses, seriously questions or criticizes the soundness of an established principle of law,” or determines a substantial question on which the only prior law predates September 15, 1948, when the judicial article of the 1947 New Jersey Constitution came into effect, or in several other circumstances.
The final guideline affords residual authority to publish where an opinion “although not otherwise meriting publication, constitutes 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.” Those who wish to re-designate a not precedential Appellate Division opinion as precedential should review the full text of Rule 1:36-2 in aid of such a request.