When you hear about an appellate decision, what comes to mind? Typically, I think of a formal “opinion”—at least when the appeal has been briefed on the merits. And historically, I have thought of an “order” as a short ruling—often just one or two sentences—on a motion or petition.
Am I wrong?? Perhaps. (And let me say for the record that it would not be the first time.)
For example, in a recent criminal case the Court of Appeals issued a three-page order that dismissed the defendant’s appeal and denied the defendant’s petition for writ of certiorari. The petition was filed in March 2022 based on the notice of appeal being filed one day late. The State’s response merely said that the decision to issue the writ was within the Court’s discretion. The case was then fully briefed. In its order dated 12 September 2022, the Court of Appeals panel dismissed the appeal and addressed the merits of the defendant’s argument in the course of explaining why it was exercising its discretion to deny the certiorari petition.
In another case (in which my firm represented one of the parties), the appellee moved to dismiss an appeal for lack of appellate jurisdiction. The motion was filed in October 2021. The appellant responded by arguing that the order at issue was a final judgment and, in the alternative, the Court of Appeals should invoke Appellate Rule 2 to consider the merits. The case was again fully briefed. Then, in a two-page order entered 7 June 2022, the Court of Appeals dismissed the appeal. The panel addressed not only the interlocutory nature of the trial court’s order but also some of the parties’ arguments on the merits.
Could those cases have been decided by opinion rather than order? Why would a panel choose to issue an order rather than an opinion? Certainly it goes beyond the mere length of the decision. After all, a per curiam “opinion” can be very short. (Although even that is not always the case. Interestingly, we have previously noted an uptick in Court of Appeals opinions decided by per curiam opinions.) On the other hand, an “order” can be quite lengthy, such as the Supreme Court’s nine-page order in Harper v. Hall.
So what’s the difference between the two?
One difference is that opinions are searchable on databases like Westlaw and LexisNexis, whereas orders by the Court of Appeals are trickier to locate.
Another difference is that opinions generally identify the judges making the decision, whereas orders (until recently) may not.
But is there a substantive difference between an appellate order and an appellate opinion? Do orders have precedential value? Are these orders indicative of a new trend?
I, for one, am curious.