The Court of Appeals of Indiana is one of a few intermediate appellate courts that decides every case by a full written opinion decided by a three-judge panel. There is no significant difference between an opinion that is designated for publication and one that is not. Usually, no decision is made regarding publication until after the opinion is completely drafted. This results in the quality of the not for publication opinions being substantially the same as the for publication opinions.
In some cases, the judges will know from the outset that a particular case will be decided by a published opinion because it clearly falls within the criteria in the rule. In other cases, the decision is made after the opinion is written and circulated to the panel. In all cases, the writing judge makes a recommendation to the other members of the panel regarding publication.
If the recommendation is to publish the opinion, the recommendation will be made by a publication memorandum setting out the reason publication is recommended with reference to the appropriate provision of Appellate Rule 65.
Sometimes, one of the other members of the panel will suggest publication for a case that the writing judge did not originally designate as a for publication case. Occasionally a judge writing a dissent feels that a case should be published because of the nature of the opinion expressed in the dissent. Also on occasion, a member of the Court who is not on the panel will suggest publication. The decision to publish or not publish is made by a majority vote of the panel.
Note: The above material was prepared by the Court in answer to a question posed by the Indiana Law Blog.
The Indiana Supreme Court, on August 21, 2006, issued an order granting a request by the Court of Appeals of Indiana allowing the Appeals Court to post "Not for Publication" (NFP) memorandum opinions to this website.
Members of the bar and the public should note that the status of "Not-for-Publication" memorandum opinions has not changed as a result of this order, and the fact that they are posted to this website does not constitute their "publication" in the terms laid forth by Appellate Rule 65. According to the rule, "Not-for-Publication" opinions "shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case."
NFP Opinions are posted to this website as a matter of public access to court information; these documents have always been and continue to be available to the public through the Appellate Clerk's Office.