Ky. Sup. Ct. Order 2022-49 art. IV

RELIEF

RAP 17 Transfer of Appeal from Court of Appeals to Supreme

Court

(A) General. No later than 10 days from the date on which a notice of

appeal to the Court of Appeals has been filed, any party may serve and

file a motion in the Supreme Court for transfer of the case to that Court.

A copy of the notice of appeal shall accompany a motion for transfer filed

in the Supreme Court. The requirements of RAP 44(C)–(I) shall apply to

such motions, except that other parties to the appeal may file a response

in the Supreme Court within 10 days of the filing of the motion for

transfer.

(B) Death Penalty. The filing of a notice of appeal in a case in which a

death penalty has been imposed will automatically serve to transfer the

appeal to the Supreme Court. The filing of a notice of interlocutory

appeal in a case in which a death penalty is sought will automatically

serve to transfer the appeal to the Supreme Court.

(C) Considerations Governing Transfer. Transfer is within the

discretion of the Supreme Court and will be granted only upon a showing

that the case is of great and immediate public importance, except that if

separate appeals in a criminal case to the Supreme Court and to the

Court of Appeals arise from the same trial, the Supreme Court in its

discretion, on motion of the appellant whose appeal lies to the Court of

Appeals, may transfer that appeal to the Supreme Court.

(D) Running of Time. Filing of the motion shall suspend the running

of time for further steps in the appeal, and the full time for such steps

shall be computed from the date of the order granting or denying the

transfer.

(E) Granting of Motion. If the motion is granted, the appeal shall be

perfected and prosecuted as in appeals taken as a matter of right unless

otherwise directed by the Supreme Court.

(F) Recommendation by Court of Appeals. The Supreme Court may

at any time, upon recommendation of the Court of Appeals, transfer to

the Supreme Court any case pending before the Court of Appeals that

falls within the criteria set forth in paragraph (C) above. The entry of a

recommendation for transfer by the Court of Appeals shall suspend the

running of time for any further steps in the appeal, and the full time for

such steps shall be computed from the date of the order of the Supreme

Court granting or denying the transfer.

(G) Transfer to Appropriate Court. If the Supreme Court Clerk or

Court of Appeals Clerk receives a notice of appeal within the exclusive

appellate jurisdiction of the other appellate court, the clerks may consult

and transfer the appeal to the appropriate court. Upon docketing of the

appeal in the appropriate court, the appeal shall proceed as if it had been

originally filed in the court with jurisdiction.

(H) Costs. Payment of the filing fee specified in RAP 13 shall be

required with the motion.

RAP 18 Reserved.

RAP 19 Reserved.

RAP 20 Motion for Relief from an Order Granting or Denying an

Injunction

(A) No Appellate Review of Restraining Order. There is no appellate

review of a restraining order entered by a circuit court under CR 65.03.

(B) Relief Regarding Temporary Injunction. When a circuit court by

interlocutory order has granted, denied, modified, or dissolved a

temporary injunction, a party adversely affected may, no later than 20

days from the entry thereof, move the Court of Appeals for relief from

such order. If the order dissolves a temporary injunction previously

granted, the circuit court may in its discretion suspend the operation of

the order for a period not exceeding 20 days to permit such party to

proceed under this rule.

(1) Filing Requirements. One unbound and four bound copies

of the motion for relief shall be filed in the office of the Clerk of the Court

of Appeals. The movant shall pay the filing fee required by RAP 13. The

format of the motion shall be the same as for other motions filed in the

appellate court under RAP 7. The motion shall state clearly the

procedural history of the case, the factual history of the dispute, and the

grounds on which movant’s claim for relief is based.

(2) Record. The movant shall file with the motion copies of

such portions of the record as may be necessary to a proper

consideration and disposition of the motion.

(3) Response. Any respondent may file five copies (1 unbound

and 4 bound) of a response no later than 10 days from the date on which

the motion is filed.

(4) Service. In addition to service on all other parties as

required by RAP 5, the motion and all attachments, as well as any

response, shall be served on the judge whose decision is under review.

The date and method of service shall be certified on the motion.

(5) Submission. Upon the running of response time provided in

paragraph (B)(3), the motion and any responses shall be submitted to a

panel for decision. Oral argument will not be held unless ordered by the

Court on its own motion or on the motion of a party.

(6) Basis for Affirmative Relief Regarding Temporary

Injunction. The basis of affirmative relief from an order denying,

modifying, or dissolving a temporary injunction shall be the grounds

specified in CR 65.04(1), and if such relief is granted, a bond may be

required to be executed in the circuit court as provided by CR 65.05.

(7) Order. A signed copy of the order entered on a motion

made pursuant to section (B) of this rule shall be sent forthwith to the

clerk of the circuit court where the action is pending and when filed in

the circuit clerk’s office shall have the same effect as an order entered by

such circuit court.

(C) Relief Regarding Permanent Injunction.

(1) Relief in circuit court. After an appeal is taken from a final

judgment granting or denying an injunction, any party may move the

circuit court to grant, suspend or modify injunctive relief during the

pendency of the appeal. The circuit court, in its discretion, may provide

in the order ruling on the motion that the status existing immediately

before the entry of the final judgment shall be maintained for a specified

limited time to protect a party wishing to proceed promptly under section

(C)(2) of this rule.

(2) Relief in Court of Appeals. A party adversely affected by a

ruling by the circuit court under paragraph (C)(1) of this rule may move

the Court of Appeals for relief.

(a) Filing Requirements. Relief shall be sought in the

Court of Appeals by filing five copies (1 unbound and 4 bound) of a

motion complying in all respects with other motions filed in the

appellate court under RAP 7. The motion shall state clearly the

procedural history of the case, the factual history of the dispute,

and the grounds on which movant’s claim for relief is based. If no

request was made to the trial court under paragraph (C)(1) of this

rule, the motion shall state why such request was impractical.

(b) Record. The movant shall file with the motion copies

of such portions of the record as may be necessary to a proper

consideration and disposition of the motion.

(c) Response. Any party may file five copies of a response

(1 unbound and 4 bound) not later than ten days from the date on

which the motion was filed.

(d) Service. In addition to service on all other parties as

required by RAP 5, the motion and all attachments, as well as any

response, shall be served on the judge whose decision is under

review. The date and method of service shall be certified on the

motion.

(e) Submission. The motion and any responses shall be

submitted to a panel of the Court for decision. No oral argument

will be heard unless ordered by the court on its own motion or on

motion of a party.

(f) Order. Any order entered under this rule may fix such

terms as are proper to secure the rights of the parties, including

the execution of an injunction bond subject to the provisions of CR

65.05.

(D) Emergency Relief in Court of Appeals. If a movant will suffer

irreparable injury before a motion under sections (B) or (C) of this rule

will be considered by a panel of the Court of Appeals, the movant may

request emergency relief by filing five copies (1 unbound and 4 bound) of

a separate motion for emergency relief in the office of the Clerk of the

Court of Appeals. The motion for emergency relief shall clearly set out

the nature of the irreparable injury that will occur unless emergency

relief is granted. The emergency request shall be assigned to a judge of

the Court of Appeals in accordance with the normal practice of the Court.

The judge may deny the request without response or may provide for a

written response or oral response by telephone if necessary. Emergency

relief shall not be granted ex parte except under the most extraordinary

circumstances as shown in the motion.

(E) No Reconsideration. A ruling granting or denying interlocutory or

emergency relief under sections (B), (C), or (D) of this rule will not be

reconsidered.

(F) Review by Supreme Court

(1) When Authorized. Any party adversely affected by an order

of the Court of Appeals in a proceeding under sections (B) or (C) of this

rule may, no later than 10 days from the date on which such order was

entered, move the Supreme Court to vacate or modify it. The decision

whether to review such order shall be discretionary with the Supreme

Court. Such a motion will be entertained only for extraordinary cause

shown in the motion.

(2) Requirements. Ten copies (1 unbound and 9 bound) of the

motion shall be filed with the Clerk of the Supreme Court. The movant

shall pay the filing fee required by RAP 13. The format of the motion

shall be the same as for other motions filed in the appellate court under

RAP 7. The motion shall state clearly the procedural history of the case,

the factual history of the dispute, and the grounds on which movant’s

claim for relief is based. The motion and all attachments shall be served

on all other parties, the circuit court, and the Court of Appeals. The date

and method of service shall be certified on the motion.

(3) Record. The movant shall attach to each copy of the motion

copies of the order or orders of the Court of Appeals and all other

portions of the record submitted to the Court of Appeals pursuant to

paragraphs (B)(2) and (C)(2)(b) of this rule.

(4) Response. Any party may file a response to the motion

within 10 days of the date on which the motion was filed, or such earlier

time as directed by the Supreme Court. The response shall be filed and

formatted in accordance with paragraph (F)(2) of this rule.

(5) Emergency Relief in Supreme Court. If a Court of Appeals

judge has granted or denied emergency relief under paragraph (D) of

this rule, any party adversely affected by that order may move the

Supreme Court for relief in the same manner as provided in paragraphs

(F)(1)–(3) of this rule.

(a) If the Supreme Court declines to exercise its

discretion to immediately review the ruling, the motion for relief in

the Court of Appeals will be assigned to a panel of that Court for

decision.

(b) Unless the Supreme Court directs otherwise, any

party may file a response within 10 days of the date on which a

motion for emergency relief was filed.

(c) If the Supreme Court decides to exercise its discretion

to immediately review the ruling, the Supreme Court review shall

encompass both the emergency motion and the motion for relief

under paragraph (F)(1) of this rule.

(d) Failure of a party to seek Supreme Court emergency

review under section (F)(5) shall not affect the party’s right to seek

review under paragraph (F)(1) of a decision of a Court of Appeals

panel disposing of the motion for relief under sections (B) or (C) of

this rule.

RAP 21 Motion for Intermediate Relief During Pendency of

Appeal

(A) When Authorized.

(1) Time. At any time after a notice of appeal under RAP 2 or a

motion for discretionary review under RAP 44 has been filed, a party to

the appeal or motion may move the appellate court for intermediate relief

upon a satisfactory showing that otherwise the movant will suffer

immediate and irreparable injury before final disposition of the appeal.

(2) Requirements. Five copies (1 unbound and 4 bound) of the

motion shall be filed in the appellate court. The format of the motion

shall be the same as for other motions filed in the appellate court under

RAP 7. The motion shall state with specificity the procedural and factual

history of the dispute and the grounds on which the movant’s claim for

relief is based.

(3) Record Required. Unless the record has previously been

certified to the appellate court, the movant shall attach to each copy of

the motion copies of the final judgment, any motion for stay filed in the

circuit court, any circuit court order disposing of the motion for stay, and

copies of any other portions of the record necessary for disposition of the

motion.

(4) Response. Any opposing party may file a response to the

motion for intermediate relief no later than 10 days from the date on

which the motion is filed. Five copies (1 unbound and 4 bound) of the

response shall be filed in appellate court and the format shall be the

same as motions filed in the appellate courts.

(5) Hearing and Disposition. Upon the filing of the response or

the expiration of the time for a response, the motion shall be submitted

for decision. No replies are allowed.

(a) Except for motions that call for final disposition of an

appeal or original action in the appellate court, any member of the

court designated by the Chief Justice or Chief Judge may hear and

dispose of any motion; and

(b) Any intermediate order of a procedural nature pending

final disposition of a proceeding pending in an appellate court may

be issued on the signature of any judge of that court.

(B) Review. Any party adversely affected by a decision of the Court of

Appeals under this rule may seek review in the Supreme Court under the

procedure provided for review of injunctions under RAP 20(F).

RAP 22 Prehearing Procedure in the Court of Appeals

(A) Application.

(1) In all civil cases appealed to the Court of Appeals, except

those specified in paragraph (A)(2), each appellant and cross-appellant

shall file a prehearing statement no later than 20 days from the filing of

its respective notice of appeal or cross-appeal. The prehearing statement

shall be filed with the Court of Appeals.

(2) This rule does not apply to criminal cases, to orders granting

or denying class action certification under CR 23.06, or to civil cases

involving prisoner applications seeking relief relating to confinement or

conditions of confinement, appeals of findings of contempt, appeals

relating to extraordinary writs, and appeals from circuit court orders

determining paternity, dependency, abuse, neglect, domestic violence, or

juvenile status offense. This rule also does not apply to cases appealed

to or transferred to the Supreme Court.

(B) Running of Time.

(1) The running of time for further steps in cases where this rule

applies shall not begin until so ordered by the Court of Appeals except

for:

(a) The filing of a notice of cross-appeal under RAP 4;

(b) The filing of a motion to transfer under RAP 17; or

(c) The filing of a prehearing statement under section (C)

below.

(2) Unless otherwise ordered by the Court of Appeals, the full

time for such further steps shall be computed:

(a) From the date of entry of the order stating that no

prehearing conference will be held pursuant to paragraph (D)(3) of

this rule, or

(b) From the date of the entry of the order reciting the

actions taken and the agreements reached by the parties during a

conference held pursuant to paragraph (D)(4)(c) of this rule.

(C) Prehearing Statement and Supplemental Prehearing Statement.

(1) A prehearing statement shall be submitted on a form which

is available from each circuit court or from the Court of Justice website.

The prehearing statement shall include the following information:

(a) The style of the case and circuit court docket number;

(b) The name, mailing address, and telephone number of

each attorney whose appearance is entered in the case, together

with the name and address of the party represented by the

attorney who is filing the prehearing statement;

(c) The name of the judge who presided over the matter

being appealed;

(d) The date on which the notice of appeal and any notice

of cross-appeal was filed;

(e) A statement as to whether the matter has previously

been before the Court of Appeals;

(f) The type of litigation;

(g) A brief description of the claims, defenses, and issues

litigated;

(h) A brief statement of the facts, issues, and

jurisdictional challenges to be raised on appeal;

(i) A statement, based on counsel’s present knowledge, as

to whether the appeal involves a question of first impression;

(j) A statement as to whether the determination of the

appeal will turn on the interpretation or application of a particular

case or statute and, if so, the name of the case or the number of

the statute;

(k) A statement, based on counsel’s present knowledge, as

to whether there is currently pending in the Court of Appeals or

the Supreme Court another case arising from substantially the

same case or controversy or involving an issue which is

substantially the same, similar or related to an issue in the appeal.

(l) A copy of the complaint or other initiating document,

the judgment or order sought to be reviewed, and any opinion or

findings of the circuit court or administrative agency.

(2) A party shall be limited on appeal to issues identified in the

prehearing statement, except that upon a timely motion demonstrating

good cause, the Court of Appeals may permit additional issues to be

raised.

(3) A copy of each prehearing statement shall be served on all

parties to the appeal. If the constitutionality of a statute is challenged by

any party as an issue in the appeal, a copy of the prehearing statement

or supplemental statement shall be served upon the Attorney General. If

the Attorney General does not file an entry of appearance within 10 days

of the filing of the prehearing statement or supplemental statement, then

no further filings or briefs shall be served on the Attorney General.

(4) No later than 10 days from the filing of a prehearing

statement, each appellee or cross-appellee may file with the Court of

Appeals, with copies served on all parties, a supplemental statement

containing any other information needed to clarify the issues on appeal

and on cross-appeal.

(5) After the filing of a prehearing statement and any

supplemental statements, no further steps are required until so ordered

by the Court of Appeals, except the following:

(a) The filing of a notice of cross-appeal under RAP 4; or

(b) The filing of a motion to transfer under RAP 17.

(D) Prehearing Conference

(1) In all cases requiring a prehearing statement under

paragraph (A)(1), any party may move for a prehearing conference at the

time of filing the prehearing statement or supplemental prehearing

statement.

(2) In all cases requiring a prehearing statement under

paragraph (A)(1), the Court of Appeals will determine whether a

prehearing conference would assist the Court or the parties. The

determination shall be made by the designee of the Chief Judge of the

Court of Appeals. Such designee shall be a judge of the Court of Appeals

or a staff attorney of the Court known as a conference attorney.

(3) If it is decided that no prehearing conference will be held, the

designee shall issue an order informing the parties. The entry of this

order shall commence time running for further steps under these

appellate rules.

(4) If a case is selected for a prehearing conference, the designee

shall issue an order directing attorneys for all parties to attend a

prehearing conference, in person or remotely, and setting the date and

location for the conference.

(a) The purpose of the conference shall be to consider the

possibility of settlement, the simplification of issues, the contents

of the record, the time for filing the record and briefs, and any

other matters which may aid in the handling or disposition of the

proceedings.

(b) The prehearing conference discussions are

confidential, except to the extent disclosed by the prehearing order

and shall not be disclosed by the Court’s designee or by the parties

or counsel in briefs or argument.

(c) Following the conclusion of the prehearing conference

procedure, the Court of Appeals’ designee shall issue an order

reciting the actions taken and the agreements reached, and that

order shall govern the subsequent course of the proceedings.

(5) In the event of default by any party in any action required by

a prehearing conference order, the Clerk of the Court of Appeals shall

issue a notice to the party in default providing a 10-day period within

which to file an affidavit showing good cause for the default and

including when the required action will be taken.

(6) A judge who participates in a prehearing conference or

becomes involved in settlement discussions pursuant to this rule shall

not sit as a member of the panel assigned to hear the appeal.

(E) Penalties for Failure to Comply. For any failure to comply with

the provisions of this rule, the Court of Appeals may assess reasonable

expenses caused by the failure, including attorney’s fees; assess all or a

portion of the appellate costs; or dismiss the appeal.

RAP 23 Reserved.