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

RAP 43 Petition for Rehearing or Other Relief as to Opinion or

Opinion and Order or Motion for Reconsideration of Order

(A) Scope of Rule. Any decision of the Supreme Court or Court of

Appeals styled an “Opinion” or “Opinion and Order” is governed by

Section (B) of this rule. Any decision or ruling styled as an “Order’ is an

order governed by section (D) of this rule.

(B) Petition Regarding Opinion or Opinion and Order

(1) When Petition for Rehearing Authorized. A party affected

by an Opinion or Opinion and Order of the Supreme Court or Court of

Appeals in an appealed case may petition the Court for the following

relief:

(a) Rehearing. Except in extraordinary cases when

justice demands it, a petition for rehearing shall be limited to a

consideration of the issues argued on the appeal and will be

granted only when it appears that the court has overlooked a

material fact in the record, or a controlling statute or decision, or

has misconceived the issues presented on the appeal or the law

applicable thereto.

(b) Modification. When it is desired to point out and

have corrected any inaccuracies in statements of law or fact

contained in an opinion or opinion and order of the court, and the

result reached is not questioned, a party may request a

modification.

(c) Extension. When it is desired to extend the opinion

or opinion and order to cover matters in issue not discussed

therein, and the result is not questioned, a party may request an

extension.

(2) Style. A party may petition for a combination of the above

(rehearing, modification, and extension), if appropriate, but must style

the petition to specifically include all forms of relief sought.

(3) Time for Filing. A petition for rehearing, modification,

extension, or publication shall be filed not later than 20 days from the

date on which the opinion or opinion and order was issued, and any

response thereto shall be filed no later than 20 days from the date on

which the petition was filed. Unless a timely motion for discretionary

review of an opinion or opinion and order of the Court of the Appeals is

filed pursuant to RAP 44, the failure of a party to timely file a petition

shall result in the appeal becoming final.

(4) Form. All petitions regarding opinions or opinion and orders

and responses under this rule shall be in the form prescribed by RAP 31

(excluding an introduction and statement of oral argument, and

statement of points and authorities), but with covers colored as follows:

Petition—Green; Response—Gray. All petitions shall attach a copy of the

opinion at issue.

(5) Length. Petitions for rehearing, modification, extension, or

publication, and any responses shall be limited to 3,500 words or 8

pages if computer generated and limited to 10 pages if handwritten or

typewritten. If a computer-generated document exceeds the page limit

but is within the word limit, a word-count certificate in conformity with

RAP 15 is required. Covers, signatures, and appendices are not included

in the word or page limit.

(6) Disposition. In the Supreme Court, a petition for rehearing

will be assigned to a justice other than the one who prepared the

opinion. In the Court of Appeals, a petition for rehearing will be assigned

to a member of the panel that decided the case, other than the member

who prepared the opinion.

(7) Procedure if rehearing or reconsideration is granted. In

the event a petition for rehearing is granted, a party adversely affected by

the new opinion may petition for a rehearing, modification or extension

under the same rules governing the original petition for rehearing,

modification, or extension.

(C) Amicus Curiae in Support of or Opposition to Petition for

Rehearing of Opinion or Opinion and Order

(1) Motion Required. An amicus curiae memorandum in

support of or in opposition to a petition filed pursuant to RAP 43(B) shall

not be filed except in extraordinary circumstances upon order of the

appellate court, pursuant to a motion for leave filed simultaneously with

the tendered memorandum that specifies with particularity the nature of

the movant’s interest, the points to be presented, and their relevance to

the disposition of the petition for rehearing.

(a) Time for Filing. A motion for leave to file an amicus curiae

memorandum and accompanying memorandum must be filed

within 10 days of the filing of the petition.

(b) Payment. Payment of the filing fee specified in RAP 13 for a

motion to file an amicus curiae brief shall be required with a

motion for leave to file an amicus curiae memorandum in support

of or in opposition to the petition.

(2) Amicus Curiae Memorandum

(a) Content. An amicus curiae memorandum should provide

reasons for or against rehearing, modification, or extension that are

unlikely to be brought to the attention of the court by the parties. An

amicus curiae memorandum that does not serve this purpose burdens

the Court, and its filing is not favored.

(b) Form. An amicus curiae memorandum shall have a white

cover containing the information required by RAP 5(A)(1) and (2) and the

name of the party on whose behalf the motion is submitted and it shall

include a word count certificate in conformity with RAP 15. An amicus

curiae memorandum shall not exceed 1,750 words, excluding the cover,

signature block, and word count certificate. The memorandum shall not

contain appendices, other than copies of unpublished opinions as

required by RAP 41.

(D) Motion for Reconsideration of Order.

(1) Time for Filing. Unless otherwise provided by these rules

or ordered by the court, a party adversely affected by a decision of the

Supreme Court or Court of Appeals rendered by order may no later than

20 days from the date of its entry move the court to reconsider it. On ex

parte motion, the court may suspend the effectiveness of such order

pending disposition of the motion to reconsider and any response thereto

shall be filed no later than 20 days from the date on which the petition

was filed.

(2) Form. All motions for reconsideration of orders shall be in

the form prescribed by RAP 7, with responses as allowed by that rule.

(3) Length. The length of motions for reconsideration or orders

and any responses are limited as set forth for petitions in paragraph

(B)(5) above.

(4) Motion to Reconsider Order on Motion to Dismiss. The

timely filing of a motion to reconsider an order granting or denying a

motion to dismiss shall suspend the running of time to the same extent

as provided by RAP 7(G) with respect to the filing of a motion to dismiss.

(5) No Reconsideration of Certain Orders. Paragraph (D)(1) of

this rule shall not apply to orders granting or denying transfer under

RAP 17, to orders granting or denying relief under RAP 20 or 21, or to

orders granting or denying discretionary review under RAP 44. Orders

granting or denying a petition for rehearing or a motion for

reconsideration under this rule will not be reconsidered.

(E) Number of Copies. In the Supreme Court 10 copies (1 unbound

and 9 bound) shall be filed. In the Court of Appeals 5 copies (1 original

and 4 bound) shall be filed.

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

required with a petition or motion made pursuant to this rule.

(G) Interplay with Motion for Discretionary Review. A motion for

discretionary review will not be ruled on during the pendency of a

petition for rehearing or motion for reconsideration. A party who has

moved for discretionary review under RAP 44 may not file a petition for

rehearing or motion for reconsideration of the same case in the court

that rendered the opinion or order for which review is sought, unless the

opinion or order sought to be reviewed is revised or set aside pursuant to

another party’s petition for rehearing or motion for reconsideration. If

the order or opinion sought to be reviewed is set aside, the pending

motion for discretionary review shall be dismissed without prejudice, and

any party may file a subsequent motion for discretionary review of the

order or opinion finally disposing of the case. The filing of a subsequent

motion for discretionary review following a dismissal without prejudice

under this paragraph shall not require payment of another filing fee.

(H) Motion to Publish. When an opinion or opinion and order was

originally designated not to be published and it is desired to cite the

opinion or opinion and order as binding or persuasive precedent in any

court of this state, a party may request publication. A motion to publish

an opinion shall be filed not later than 20 days from the date on which

the opinion was issued. The motion and any response shall be filed in

accordance with KAP 7. No filing fee will be charged for a motion to

publish.

RAP 44 Motion for Discretionary Review

(A) General. A motion for discretionary review by the Supreme Court

of a decision of the Court of Appeals, and a motion for such review by the

Court of Appeals of a judgment of the circuit court in a case appealed to

it from the district court, shall be prosecuted as provided by this rule

and in accordance with the rules generally applicable to other motions.

Such review is a matter of judicial discretion and will be granted only

when there are special reasons for it.

(B) Time for Motion.

(1) A motion for discretionary review by the Court of Appeals of

a circuit court judgment in a case appealed from the district court shall

be filed within 30 days after the date on which the judgment of the

circuit court was entered, subject to the provisions of CR 77.04(2) and

Criminal Rule 12.06(2).

(2) A motion for discretionary review by the Supreme Court of a

Court of Appeals decision shall be filed within 30 days after the date of

the order or opinion sought to be reviewed unless a timely petition or

motion under RAP 43 has been filed or an extension of time has been

granted for that purpose, in which event a motion for discretionary

review shall be filed within 30 days after the date of the order denying

the petition or motion for reconsideration or, if it was granted, within 30

days after the date of the opinion or order finally disposing of the case in

the Court of Appeals.

(3) The failure of a party to file a motion for discretionary review

within the time specified in this rule, or as extended by a previous order,

shall result in a dismissal of the motion for discretionary review.

(C) Contents. The motion shall conform to RAP 5 and shall contain

the name of the party on whose behalf the motion is submitted. The

motion shall also contain:

(1) The name of each movant and each respondent and the

names and addresses of their counsel;

(2) The date of entry of the judgment sought to be reviewed, or

the date of final disposition by the Court of Appeals, as the case may be;

(3) A statement of whether a supersedeas bond, or bail bond on

appeal, has been executed;

(4) If the motion is addressed to the Supreme Court, a

statement that the movant does not have a petition for rehearing or

motion for reconsideration pending in the Court of Appeals and a

statement showing whether any other party to the proceeding has a

petition for rehearing or motion for reconsideration pending in the Court

of Appeals; and

(5) A clear and concise statement of (a) the material facts, (b) the

questions of law involved, and (c) the specific reason or reasons why the

judgment should be reviewed.

(D) Length. The motion shall not exceed 5,250 words or 13 pages in

length if computer-generated and shall not exceed 15 pages in length if

handwritten or typewritten. The caption, certificate of service, and the

items listed in section (C)(1) through (C)(4) above are excluded from the

word and page limits. A motion that exceeds the page limit but falls

within the word limit must include a word-count certificate in conformity

with RAP 15.

(E) Response to Motion. Each respondent may file a response to the

motion within 30 days after the motion is filed. Paragraph (D) of this rule

applies to the response. No reply to a response shall be filed.

(F) Record on Motion. The movant shall file with each motion copies

of the final order or judgment, any findings of fact, conclusions of law

and opinion of the trial court, and any opinion or final order of the

appellate court, including any decision on any petition for rehearing or

motion for reconsideration. In administrative agency cases, copies of the

findings of fact, conclusions of law and award or order of the

administrative agency shall be filed. While no other record on the motion

shall be required unless the court to which the motion is addressed so

orders, the parties may attach copies of portions of the record that will

assist the court in considering the motion or response.

(G) Form, Signing, and Number of Copies Required. The motion and

the response shall be clearly readable, in black type no smaller than 12

point (including footnotes), single sided, and on unglazed white paper 8

½ by 11 inches in dimension with at least a double space between lines

and 1-inch margins. The motion and response shall be signed by each

party or its counsel in that person’s individual name, which signature

shall constitute a certification that the statements of fact therein are

true. Ten copies (1 unbound and 9 bound) shall be filed for a motion in

the Supreme Court and 5 (1 unbound and 4 bound) in the Court of

Appeals.

(H) Service of Motion and Response. Upon filing, the motion and the

response shall be served on the other parties and on the clerk of the

court whose decision is sought to be reviewed, and such service shall be

shown as provided in RAP 5.

(I) Submission. The motion shall be submitted to the court for

consideration when the response is filed or when the time for filing such

response has expired, whichever is sooner.

(J) Disposition of Motion. The denial of a motion for discretionary

review does not indicate approval of the opinion or order sought to be

reviewed and shall not be cited as connoting such approval.

(1) If the motion is in the Supreme Court and is granted, the

times prescribed in RAP 30 for the filing of briefs shall be computed from

the date of the entry of the order granting the motion. In further

proceedings in the Supreme Court, the movant shall be the appellant

and the respondent shall be the appellee.

(2) If the motion is in the Court of Appeals and is granted, the

appeal shall be perfected in the same time and manner as if it were an

appeal as a matter of right, unless otherwise directed by the court.

(3) A motion for discretionary review in the Supreme Court will

not be ruled upon during the pendency of a petition for rehearing or

motion for reconsideration in the Court of Appeals. If a party files a

timely petition for rehearing or motion for reconsideration in the Court of

Appeals after another party has filed a motion for discretionary review in

the Supreme Court, the clerk shall withhold submission of the latter

pending final disposition of the case in the Court of Appeals.

(4) A ruling by the Court of Appeals granting or denying a

motion for discretionary review will not be reconsidered by the Court of

Appeals. A ruling by the Supreme Court granting or denying a motion

for discretionary review will not be reconsidered by the Supreme Court.

A motion for reconsideration, however styled, shall not be accepted for

filing by the clerk of the Supreme Court or Court of Appeals.

(5) Copies of the order shall be sent forthwith by the clerk of the

appellate court to counsel for each party and to the clerk of the court

whose decision is sought to be reviewed.

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

required with the motion.

RAP 45 Amicus Curiae in Support of or Opposition to Motion for

Discretionary Review

(A) Motion Required. An amicus curiae memorandum in support of

or in opposition to a motion for discretionary review shall not be filed

except in extraordinary circumstances upon order of the appellate court,

pursuant to a motion for leave filed simultaneously with the tendered

memorandum that specifies with particularity the nature of the movant’s

interest, the points to be presented, and their relevance to the disposition

of the motion for discretionary review. The motion shall conform to RAP

7 with service on all parties to the appeal.

(1) Time for Filing. A motion for leave to file an amicus curiae

memorandum and accompanying memorandum must be filed within 15

days of the filing of the motion for discretionary review.

(2) Payment. Payment of the filing fee specified in RAP 13 for a

motion to file an amicus curiae brief shall be required with a motion for

leave to file an amicus curiae memorandum in support of or in

opposition to a motion for discretionary review.

(B) Amicus Curiae Memorandum.

(1) Content. An amicus curiae memorandum should provide

reasons for or against discretionary review that are unlikely to be

brought to the attention of the court by the parties. An amicus curiae

memorandum that does not serve this purpose burdens the Court, and

its filing is not favored.

(2) Form. An amicus curiae memorandum shall conform to

RAP 5, have a white cover containing the information required by RAP

5(1)(A) and the name of the party on whose behalf the motion is

submitted, and include a word-count certificate in conformity with RAP

15. An amicus curiae memorandum shall not exceed 1,750 words,

excluding the cover and signature block. The memorandum shall not

contain appendices, other than copies of unpublished opinions as

required by RAP 41.

RAP 46 Cross Motion for Discretionary Review

(A) Time for Motion. If a motion for discretionary review is granted,

the respondent shall then be permitted 10 days thereafter in which to file

a cross motion for discretionary review designating issues raised in the

original appeal that are not included in the motion for discretionary

review but that should be considered in reviewing the appeal in order to

properly dispose of the case.

(B) Form and Response. A cross motion for discretionary review will

be practiced in conformity with RAP 7, motion practice in appellate

courts. Each cross respondent may file a response to the cross motion

within 10 days after the cross motion is filed. No reply to a cross

response shall be filed. Ten copies (1 unbound and 9 bound) of any

cross motion or cross response shall be filed in the Supreme Court and 5

(1 unbound and 4 bound) in the Court of Appeals.

(C) Record on Motion. The cross-movant shall file with each motion

copies of the final order or judgment, any findings of fact, conclusions of

law and opinion of the trial court, and any opinion or final order of the

appellate court, including any decision on any petition for rehearing or

motion for reconsideration. In administrative agency cases, copies of the

findings of fact, conclusions of law and award or order of the

administrative agency shall be filed. While no other record on the motion

shall be required unless the court to which the motion is addressed so

orders, the parties may attach copies of portions of the record that will

assist the Court in considering the motion or response.

(D) Suspension of Time. The filing of a cross motion for discretionary

review shall suspend the running of time for briefing discretionary review

as heretofore granted, and the full time for briefing shall be computed

from the date of the order granting or denying the cross motion for

discretionary review.

(E) Briefing if Cross Motion Granted. If the cross motion for

discretionary review is granted, the cross-movant shall brief the issues

raised in the cross motion in the brief responding to the brief on behalf of

the original movant. The original movant shall then be permitted to reply

to the issues raised in the cross-motion in the reply brief permitted by

RAP 30.

RAP 47 Neither Petition for Rehearing nor Motion Discretionary

Review Required for Exhaustion in Criminal Appeals

In all appeals from criminal convictions or post-conviction relief

matters a litigant shall not be required to petition for rehearing or to file

a motion for discretionary review to either the Kentucky Court of Appeals

or Kentucky Supreme Court following an adverse decision of either the

circuit court or Court of Appeals in order to be deemed to have

exhausted all available state remedies respecting a claim of error.

Rather, when the claim has been presented to the appellate court, and

relief has been denied, the litigant shall be deemed to have exhausted all

available state remedies available for that claim. If rehearing or

discretionary review is sought on less than all of the claims of error

presented on appeal, the litigant, nevertheless, shall be deemed to have

exhausted all available state remedies respecting the claim(s) of error for

which rehearing or discretionary review is not sought. Finality of the

opinion for all claims of error is governed by RAP 40(G).