Our Supreme Court denies far more petitions for certification than it grants. Many people think that a denial of certification means that the Court has ruled in favor of the opponent of certification. In fact, that is not so.
In West Point Island Civic Ass’n v. Dover Tp. Comm., 54 N.J. 339 (1969), the Court addressed this very issue. That case had gone through the appellate process once before. The Law Division had granted summary judgment to the defendant Township, but the Appellate Division reversed. The Township petitioned for certification, but the Court denied that petition. On remand, plaintiff prevailed in the Law Division, and the Appellate Division affirmed. The Township petitioned for certification, which the Court granted.
In the Supreme Court, plaintiff argued that the denial of certification on the first appeal was the law of the case, and that therefore the Court’s review was to be limited only to issues raised in the second appeal. The Court rejected that argument. “Our denial of certification at an earlier stage of this action was not tantamount to an affirmance of the Appellate Division on the merits, nor can a denial of certification ever be interpreted in this way. Rather, it was an example of our traditional reluctance, except in extraordinary circumstances, to determine a case prior to a final judgment or the completion of a full record.”
The Court has at least once since reiterated that principle. State v. Hodge, 105 N.J. 518, 519 (1986) (“noting that its denial of the petition for certification does not constitute approval of the opinion or judgment below”) (citing West Point Island). Other courts too have cited West Point Island in this connection. E.g., First Nat’l State Bank v. Commonwealth Federal Savings & Loan Ass’n, 455 F. Supp. 464, 471 n.2 (D.N.J. 1978) (“Of course, the denial of the petition for certification by the New Jersey Supreme Court in [a prior Appellate Division case] imparts no expression of opinion on the merits of the case.”).
Among other contexts in which this principle has relevance is the circumstance where a party is adversely affected by a prior Appellate Division decision as to which the Court denied certification. Since the denial of certification did not constitute a ruling on the merits, the party in the later case is free to ask the Court to overrule the earlier ruling. The Court has in fact done that in various circumstances. E.g., Sanchez v. Fitness Factory Edgewater, LLC, 242 N.J. 252, 264 (2020) (ruling for plaintiff in Retail Installment Sales Act case against gym and disapproving contrary prior decision, Mellet v. Aquasid, LLC, 352 N.J. Super. 23 (App. Div. 2017), in which the Court had denied certification, 231 N.J. 224 (2017)).
Incidentally, denials of certiorari by the Supreme Court of the United States have the same non-effect on the merits. That Court has made that clear for many decades. See, e.g., United States v. Carver, 260 U.S. 482, 490 (1923) (“the denial of a writ of certiorari imports no expression of opinion upon the merits of the case, as the bar has been told many times.”).
In short, denials of discretionary review, such as certification, do no more than deny discretionary review. They do not constitute rulings on the merits.