The Supreme Court has published for comments the report of its Civil Practice Committee. The report is available here. The Committee has proposed revisions to three appellate rules.
There are two proposed changes to Rule 2:6-2. Revised Rule 2:6-2(a)(1) would require that, in every point heading in the appellant’s brief, a parenthetical reference at the end of the heading state “the place in the record where the opinion or ruling in question is located or if the issue was not raised below a statement indicating that the issue was not raised below.”
Relatedly, a new Rule 2:6-2(a)(2) would mandate a separate “table of judgments, orders and rulings being appealed.” That table would have to list the places in the record where trial court judgments, orders, and rulings, administrative agency final decisions, the trial judge’s written or oral opinion, and any “intermediate decisions,” such as “Planning Board resolutions, initial decisions of the Administrative Law Judge, and Appeal Tribunal decisions.” Judge Fisher previously expressed frustration with the difficulty of finding these materials in appellate appendices, and had mentioned this pending rule change.
Prior Appellate Division decisions in the same case were also a subject of Judge Fisher’s concern, but the examples of “intermediate decisions” in the proposed rule do not include those. The rule, and presumably the judges, would benefit from expressly including such opinions in this new table.
The second change to Rule 2:6-2 involves Rule 2:6-2(b), which governs letter briefs. Currently, such briefs need not have a table of citations. The revised rule would require such a table. The Committee commented that “most law firms have the capacity to insert a table of citations to a letter brief with little or no extra effort.”
The Committee also has proposed changes to Rule 2:6-11(d). That rule currently allows parties to submit supplemental letters regarding “relevant cases decided, or legislation enacted, subsequent to the filing of the brief.” The Committee was concerned that the current rule was both too lax and too restrictive.
In terms of laxity, there is currently no explicit ban on the submission of “unauthorized, unpublished opinions,” which Rule 1:36-3 normally precludes courts from citing. There is also no page limit, the only parameter being a statement that supplemental letters are to provide “a brief indication of [the] significance” of the newly-submitted authority. The current rule was seen as too restrictive in that it is limited to new cases or legislation.
The proposed amended rule would thus allow submission not only of relevant cases or legislation, but also “rules, regulations and ordinances adopted” after the briefing. The revised rule says explicitly that “[u]npublished opinions shall not be submitted pursuant to this rule, unless they are of a type that the reviewing court is permitted under [Rule] 1:36-3 to cite in its own opinions.” Finally, there would now be a two-page limit on supplemental letters and responses to those letters. These all seem to be reasonable amendments.
The final rule for which an amendment is proposed is Rule 2:12-9. That rule addresses circumstances where a party both petitions the Supreme Court for certification and files an appeal as of right.
Currently, the rule provides that denials of certification in such cases also constitute a dismissal of the appeal. There was concern, however, that such a result is inappropriate where an appeal as of right from a 2-1 decision of the Appellate Division is at issue. In those instances, the issue(s) on which the dissent is based belong before the Supreme Court no matter what disposition it makes of the petition for certification on other issues. The proposed amendment makes clear that automatic dismissal of an appeal when certification is denied does not apply to appeals based on a dissent in the Appellate Division. This is a sound proposal. It conforms the rule to the practice of the Supreme Court Clerk’s office, as the Committee’s commentary notes.
Any comments on these or other proposed rule changes are due by April 1, 2016.