Why Do We Still Have “Unpublished” Appellate Division Opinions?

State v. Thompson, 462 N.J. Super. 370 (App. Div. 2020). Judge Fisher, in this ruling issued today in a DWI case, “readily acknowledge[d] this opinion expresses nothing new.” One might wonder, then, why the opinion was designated for publication. Rule 1:36-2(d) provides a number of “guidelines” under which opinions “shall be published.” Several of those guidelines relate, in one way or another, to whether an opinion (to paraphrase Judge Fisher) “expresses something new.”

But Judge Fisher explained that today’s opinion was being published because the issue presented– “whether an intoxicated person, sleeping behind the wheel of a parked car with its engine running, can be convicted of [violating] N.J.S.A.39:4-50(a),” a statute commonly described as banning “driving while intoxicated”– had been decided seven times within the last twelve months in unpublished opinions. “For the benefit of the public, as well as the bench and bar, we deem it appropriate to express our holding in a published opinion.”

The court’s answer to the question posed was “yes.” The statute does not actually refer to “driving” a vehicle. Instead, the Legislature chose to criminalize “operating” a vehicle. Today’s opinion collected prior Supreme Court and Appellate Division decisions, led by State v. Tischio, 107 N.J. 504 (1987), that held that “‘operation’ may be found from evidence that would reveal ‘a defendant’s intent to operate a motor vehicle.'”

Judge Fisher concluded that “[t]here is no doubt that an intoxicated and sleeping defendant behind the wheel of a motor vehicle with the engine running is operating the vehicle within the meaning of N.J.S.A.39:4-50(a), even if the vehicle was not observed in motion; it is ‘the possibility of motion’ that is relevant.” Not only the precedents, but the Supreme Court’s mandate in Tischio that the statute be construed “flexibly, pragmatically and purposefully to effectuate the legislative goals of the drunk-driving laws,” supported that result.

Absent Supreme Court review and reversal, the issuance of today’s opinion as a published ruling seemingly settles the question presented. But the opinion raises the question whether Rule 1:36-3, which states that “[n]o unpublished opinion shall constitute precedent or be binding upon any court,” makes any sense any longer.

A key reason for Rule 1:36-3 was that some attorneys or clients had better access to opinions than did others, so that limiting precedential effect to published opinions leveled the playing field. All Appellate Division opinions are now available to anyone with a computer on the same day that those opinions are issued, so no one has an advantage any longer.

Another rationale was that publishing opinions adds to the already challenging workload of Appellate Division judges (New Jersey’s Appellate Division has historically been the busiest undivided appellate court in the United States) by requiring them to polish their opinions to a level worthy of publication. That seems to demean opinions that, until now, have not been designated for publication. The court presumably makes every effort to issue well-supported opinions in every case. Besides, since even “unpublished” opinions are instantly available to the public, the Appellate Division’s work product is already exposed to scrutiny in every case, so that judges already are called on to produce their best work.

Finally, there was at one time concern about how law libraries would have space if every opinion made it into the literal “books.” But now that most legal publication and research is electronic (most law firms, for example, have limited or even dispensed with libraries containing physical case reporters), the “books” can be filled with opinions without causing libraries to run out of space.

In short, there seems little reason to limit precedential effect only to those opinions that are designated for publication. Had any of the seven unpublished opinions that Judge Fisher cited in today’s opinion been accorded precedential effect, some of those cases, as well as today’s, might never have been necessary, as the issue would have been deemed largely settled.

The Supreme Court should consider amending Rule 1:36 to treat all opinions as precedential. Judges can still consider the persuasiveness of precedents, and other factors, in making their own decisions. The fact that, unlike in the Third Circuit, the decision of one Appellate Division panel is not binding on another panel, leaves room for a panel to decline to follow a prior ruling even when it is precedential.