While the Law Reporting Bureau by statute is required to publish every opinion, memorandum and motion transmitted to it by the Court of Appeals and the Appellate Divisions, the State Reporter is authorized by statute to selectively publish Appellate Term and Trial Court opinions in the Miscellaneous Reports. Judiciary Law § 431 provides that the Law Reporting Bureau may report any lower court opinion which the "state reporter, with the approval of the court of appeals, considers worthy of being reported because of its usefulness as a precedent or its importance as a matter of public interest."
Judges transmit as many as 10,000 opinions each year to the Law Reporting Bureau for publication in the Miscellaneous Reports. Attorneys often submit Trial Court opinions for publication, and we will solicit from the authoring Judge interesting opinions which we read in the New York Law Journal and other legal publications. However, most of the lower court opinions which we receive each year are submitted by the Judges themselves.
We publish about 600 Appellate Term and Trial Court opinions in the Miscellaneous Reports each year. This constitutes less than 6% of the opinions submitted for publication. In other words, only about 1 in 20 opinions received is accepted for publication in the Miscellaneous Reports. That's not a high percentage, but under a program approved by the Court of Appeals, most of the remainder are being selected exclusively for publication in the New York Slip Opinion Service (www.nycourts.gov/reporter/Decisions.htm) and the New York Official Reports (NY-ORCSU) on Westlaw. These opinions are classified by subject to the Official Reports Digest-Index and are assigned a unique Slip Opinion citation and pagination to permit point-page citations. An abstract of each opinion—providing the case name, authoring judge or justice name, jurisdiction, decision date, and Slip Opinion citation—will be published in the Advance Sheets. Some opinions are published in image (PDF) format. These are not classified to the Digest-Index or abstracted in the Advance Sheets.
Despite the fact that the Miscellaneous Reports cover lower courts, we take the selection process very seriously, recognizing the unique importance of the Miscellaneous Reports to our jurisprudence.
The Miscellaneous Reports are at the cutting edge of the judicial decision-making process where the law concerning new issues entering the court system for the first time is developed, exceptions to the broad rules established by the appellate courts are devised, and practice issues unique to the Trial Courts are decided.
The Rules Concerning Publication of Opinions in the Miscellaneous Reports, which are published at 22 NYCRR part 7300, elaborate on the statutory criteria precedential usefulness and public importance for selection of opinions for the Miscellaneous Reports.
Precedential significance. We select all true "landmark" opinions which make a significant contribution to the law; and any which hold a statute unconstitutional or invalidate administrative regulations. We measure precedential significance by the holdings and matters necessarily decided discussions constituting dicta do not meet our criteria. Some weight is given to the level of court in applying this criterion.
Novelty. This includes opinions which deal with issues of first impression that are likely to be recurrent; which discuss developing areas of the law on which little has been written; which create exceptions to broad rules established at the appellate level, or which extend or clarify appellate case law.
Public importance. We seek to select opinions of broad interest to the bar or to the public at large. These may include cases deciding issues specific to the attorney-client relationship, as well as general interest cases such as decisions involving school funding, elections and powers of state and local governments.
Practical significance. Includes opinions which address issues unique to trial court practice discovery, evidence, spoliation, etc. As a further example, we might select a high percentage of cases on an emerging issue in order to build a more significant body of published case law for the guidance of trial courts on that important issue.
Subject matter diversity. An attempt is made to publish opinions on a broad spectrum of legal issues.
Geographical diversity. We try to publish opinions by courts from all regions of the State.
Author diversity. An attempt is made to publish opinions by as many different judges as possible. In a given year, some judges may have multiple opinions selected. However, in the interest of publishing worthy opinions from as many judges as possible, circumstances in a given year may require that we limit the number of otherwise worthy opinions selected from frequently-published judges.
Literary quality. Preference is given to short (no more than 10 typewritten pages), concisely written opinions which focus on the issue or issues worthy of publication without recitation of nonessential facts or collateral issues or lengthy dissertations on well-known legal principles. In general, opinions longer than 15 typewritten pages will be accepted for publication only on condition that the authoring judge eliminates or summarizes discussion of collateral issues, well-known legal principles, and long quotations or statements of fact.
The Format Guides for submission of opinions are reproduced elsewhere on this Home Page. It is very helpful if a cover letter is provided to explain why the authoring judge believes the opinion to be worthy of publication. This helps us to zero in on the critical issues and to avoid overlooking significant points.
We invoke our partial publication rule (22 NYCRR 7300.5) to request Judges to delete portions of otherwise worthy opinions which do not meet our size criteria. This significantly tightens up the structure of the opinion, improves readability, and saves researchers considerable time by limiting the published version of the opinion to its precedentially significant portions.
By substantially reducing the length of published opinions, the partial publication rule allows us to publish greater numbers of lower court opinions within our budgetary ceiling of four Miscellaneous volumes per year. This enables us to publish the greatest possible number of Miscellaneous opinions containing the greatest variety of legal issues from the greatest possible number of Judges. The partial publication rule is invoked to shorten roughly ¾ of the lower court opinions which exceed 15 pages in length, resulting in an average length for partial publication cases of 4 to 8 pages.
When an opinion is edited for publication pursuant to our partial publication rule, it is the Trial Judge not the State Reporter who determines which portions of the opinion are omitted for purposes of publication and it is the Trial Judge who approves the opinion for publication in its edited form.
Generally, we are able to work with Trial Judges to suggest ways in which worthy, but excessively lengthy, opinions can be condensed for publication.
Despite our best efforts, we are not infallible in applying our selection criteria. Therefore, Judges may request reconsideration of any opinion not selected for publication. Additionally, the State Reporter's Rules Concerning Publication of Opinions in the Miscellaneous Reports permit Trial Judges to appeal the rejection of an opinion to a Committee on Opinions, consisting of four Appellate Division Justices. This procedure has been invoked rarely, probably because we exercise our discretion reasonably and usually are able to publish occasional cases from most Judges who regularly submit opinions to us.