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

RAP 37 Submission

Appeals will be submitted for consideration on the merits by the

appellate court when all briefs have been filed or when the time for such

filing has expired, whichever is sooner. No document filed or tendered

after submission will be considered unless filed pursuant to these rules

or with leave of court.

RAP 38 Oral Argument

(A) When Heard. Oral arguments on the merits will be heard in cases

designated by the appellate court. RAP 32 provides for the parties to

include in their brief statements concerning the need for oral argument

in the appeal.

(B) Procedure. In an oral argument, the appellant shall open and

close. Unless otherwise directed, each side will be allowed 15 minutes.

Visual aids based on the record may be used at oral argument with leave

of the court.

(C) Non-Attorneys. A person who is not an attorney will be permitted

to make an oral argument only with special leave of the court.

(D) Death Penalty Cases - Notice of Issues. In cases where the

death penalty was imposed, appellant shall file and serve upon appellee

not later than 14 days before oral argument a notice of issues that

appellant intends to argue orally, with specific reference to the argument

number and page numbers of each issue in appellant’s brief. If appellant

fails to do so without good cause, appellant’s oral argument may be

limited to answering questions from the Court.

(E) Supplemental Authority. In cases set for oral argument, a party

shall file any motion under RAP 35 for leave to cite supplemental

authority for oral argument not later than 10 days before oral argument,

unless good cause is shown for a later filing.

RAP 39 Reserved.

RAP 40 Opinions and Orders—Issuance and Effective Date

(A) Written Opinions and Orders.

(1) Appellate court opinions and orders shall be reduced to

writing and, except for unanimous actions of the Supreme Court, shall

list the names of the members concurring or dissenting and indicate the

name of any member who did not participate in the decision.

(2) Opinions and orders finally deciding a case on the merits

shall include an explanation of the legal reasoning underlying the

decision.

(B) Time of Announcement. Unless otherwise determined by the

Supreme Court, opinions of the Supreme Court will be released for

publication on Thursdays. Unless otherwise determined by the Court of

Appeals, opinions of the Court of Appeals shall be released on Fridays.

(C) Distribution of Copies. Promptly after an opinion is handed

down, the clerk shall send a copy to the trial judge, to any intermediate

court which made a decision in the case, and to each attorney in the

case.

(D) Publication.

(1) Each opinion rendered by the Supreme Court and the Court

of Appeals must show on its face whether it is “To Be Published” or “Not

To Be Published.” The decision as to publication will be made by the

court rendering the opinion. Opinions designated “Not To Be Published”

are not binding precedent. These opinions may, however, be cited as

non-binding authority as permitted by RAP 41.

(2) If a motion for discretionary review of an opinion of the Court

of Appeals is filed under RAP 44, the opinion may not be published until

the Supreme Court has entered an order making a final disposition of

that matter. If the motion for discretionary review is denied or

withdrawn, whether the opinion shall be published is determined by how

the Court of Appeals designated the opinion, unless the Supreme Court

directs otherwise. If the motion for discretionary review is granted, the

opinion of the Court of Appeals shall not be published unless expressly

ordered to be published by the Supreme Court.

(E) Withdrawal of Opinions. Parties to an appeal may not by

agreement dismiss an appeal and have an opinion withdrawn after it has

been issued.

(F) Effective Date of Opinions, Orders, and “Opinions and Orders.”

(1) Effective Date of Opinions and “Opinion and Orders.” An

opinion or an “opinion and order” is effective upon finality as set forth in

section (G) of this rule.

(2) Effective Date of Orders. Unless otherwise directed, all

orders of an appellate court, including those in original proceedings

under RAP 60, are effective upon entry and filing with the clerk. As set

forth in RAP 43(D), the court may suspend the effectiveness of certain

orders.

(G) Finality of Opinions and “Opinion and Orders.” This

paragraph, RAP 40(G), applies to any decision of an appellate court

styled as an “Opinion” or “Opinion and Order.”

(1) An opinion of the Supreme Court becomes final on the 21st

day after the date of its rendition unless a petition under RAP 43 has

been timely filed or an extension of time has been granted for that

purpose. An opinion of the Court of Appeals becomes final on the 31st

day after the date of its rendition unless a petition under RAP 43 or a

motion for discretionary review under RAP 44 has been timely filed or an

extension of time has been granted for one of those purposes.

(2) The filing of a timely motion for discretionary review under

RAP 44 suspends finality of the opinion for which review is sought. An

order denying the motion or permitting its withdrawal reinstates the

opinion of the lower court. If the motion for review is granted, the

opinion of the court finally disposing of the matter supersedes all lower

court opinions arising from the appeal.

(3) In the event of a timely petition for rehearing under RAP 43,

(a) if it is in the Supreme Court and is denied, the opinion

becomes final immediately upon such denial;

(b) if it is in the Supreme Court and is granted and a new

or revised opinion is rendered, the new or revised opinion becomes

final on the 21st day after the date of its rendition unless otherwise

ordered, or unless a further petition under RAP 43 has been timely

filed or an extension of time has been granted for that purpose;

(c) if it is in the Court of Appeals and is denied, the

opinion becomes final on the 31st day after the date the petition

was denied unless a motion for discretionary review under RAP 44

has been timely filed; or

(d) if it is in the Court of Appeals and is granted, and a

new or revised opinion is rendered, the new or revised opinion

becomes final on the 31st day after the date of its rendition unless

otherwise ordered, or unless a further petition under RAP 43 or a

motion for discretionary review under RAP 44 has been timely filed

or an extension of time has been granted for one of those purposes.

(4) Unless otherwise ordered, in no event shall an opinion

become final pending final disposition of a timely petition under RAP 43

or a timely motion for discretionary review under RAP 44; and in every

case it shall become final when no such motion or petition has been filed

within the time allowed for that purpose.

(5) When an opinion has become final or when a dispositive order

has been issued, the clerk of the appellate court that rendered it shall

forthwith send it to the clerk of the trial court and, if the opinion results

from a review of the decision of another appellate court, to the clerk of

that court also, a copy of the opinion with an endorsement stamped

thereon showing the date upon which it became final, whereupon the

clerk of the trial court shall forthwith file the opinion as enclosed in the

original record and note the filing on the proper docket. In the event a

final opinion directs that an administrative agency, board, or commission

conduct further proceedings with respect to such action, the clerk of the

trial court shall forthwith remand the action to the administrative

agency, board, or commission before which said action originated

without further order of the trial court.

(6) No mandate shall be required to effectuate the final decision of

an appellate court, whether entered by order, opinion, or opinion and

order.

(H) Non-Final Opinions. Non-final opinions, orders, or opinions and

orders may not be cited as binding precedent in any court of this state

and may not be cited without indicating the non-final status.

(I) Clerical Corrections. The Supreme Court may, on the court’s

own motion, make clerical corrections to an opinion or opinion and order

that do not change its substance until the opinion or opinion and order

becomes final. The Court of Appeals may, on the court’s own motion,

make clerical corrections to an opinion, opinion and order, or order that

do not change its substance until the 31st day after the opinion, opinion

and order, or order is rendered, unless a petition for rehearing or motion

for reconsideration has been filed. Clerical corrections under this rule do

not affect the finality of the opinion, order, or opinion and order, and do

not affect the deadlines for filing a petition for rehearing or

reconsideration under RAP 43 or a motion for discretionary review under

RAP 44.

RAP 41 Citation to Unpublished Opinions

(A) Kentucky Opinions. “Not To Be Published” opinions of the

Supreme Court and the Court of Appeals are not binding precedent

and citation of these opinions is disfavored. A party may cite to and

rely on a “Not To Be Published” opinion for consideration if:

(1) it was rendered after January 1, 2003,

(2) it is final under RAP 40(G),

(3) there is no published opinion of the Supreme Court or the

Court of Appeals that would adequately address the point of law argued

by the party, and

(4) the party clearly states that the opinion is not binding

authority.

(B) Unpublished Opinions from Other Jurisdictions. Unpublished

opinions from other jurisdictions are not binding precedent and citation

of these opinions is disfavored.

(C) Citation and Copies.

(1) When citing a “Not To Be Published” opinion of the

Kentucky appellate courts, the party must provide the style, date, and

case number of the opinion: e.g. Doe v. Roe, 2019-SC-1234 (Ky. Feb. 20,

2020), or Smith v. Jones, 2019-CA-1999 (Ky. App. Dec. 4, 2020).

(2) When citing an unpublished opinion from another state, the

party must either provide a URL or other identifier that will permit easy

access to the opinion on a publicly available electronic database or

include a copy of the entire opinion in the appendix to the party’s brief

RAP 42 Stay Pending Review by United States Supreme Court

(A) Filing Petition in U.S. Supreme Court Does Not Affect Finality.

The filing in the Supreme Court of the United States of a petition for

review on a writ of certiorari does not affect the finality of an opinion or

final order.

(B) Procedure for Seeking and Granting Stay. An order staying

execution or enforcement of an opinion or final order may be entered

upon motion made pursuant to RAP 7 to the appellate court that

rendered the opinion or final order for which review is sought. A stay

may be granted from the date of opinion or order until the time to file

certiorari expires with no petition being filed, or if a petition is timely

filed, until the case before the United States Supreme Court is finally

resolved, and the appellate court retains jurisdiction to render such a

stay during this time period. If the stay is to act as a supersedeas, a

supersedeas bond shall be required in accordance with the Rules of the

Supreme Court of the United States.