Withdrawing a Published Opinion

State v. Jones, 449 N.J. Super. 12 (App. Div. 2017).  In the “old days,” when judicial opinions appeared only in books, there was a procedure for withdrawing an Appellate Division opinion that had been approved for publication.  At that time, paper volumes of opinions approved for publication were released every week.  When there were enough pages in those soft-covered issues to fill a volume of New Jersey Superior Court Reports, the weekly paper versions were replaced by the bound volume.  If, for any reason, circumstances arose that required the withdrawal of an opinion that had been approved for publication and disseminated in the weekly issues, a notation would appear in the bound volume to the effect that the opinion that had begun on that page of the paper version had been withdrawn.

In the internet age, that procedure no longer suffices, as this per curiam opinion, issued yesterday, shows.  The Appellate Division had affirmed defendant’s criminal conviction in a published opinion that appeared at 443 N.J. Super. 515 (App. Div. 2016).  Defendant petitioned the Supreme Court for certification.  “Subsequently, the State moved before the Law Division to vacate defendant’s conviction and dismiss the indictment with prejudice, which the trial judge granted.”  The reason for that was the State’s concession that defendant should not have been indicted on the charge that had been brought.

Defendant then amended his petition for certification, seeking to withdraw it and to vacate and have withdrawn the Appellate Division’s published opinion.  The Supreme Court allowed withdrawal of defendant’s petition but denied the other relief he sought.

Defendant then moved for reconsideration in the Appellate Division, asking that court to vacate its prior judgment and withdraw its published opinion.  The Appellate Division granted that motion, vacated the judgment, and advised that an opinion would be filed thereafter that would withdraw the published opinion.  For that purpose (and recounting this history), the court issued yesterday’s opinion.  In the electronic era, only an electronic withdrawal can undo an electronically available published opinion.