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

RAP 49 Appeals from Workers’ Compensation Board

(A) General. Pursuant to Section 111(2) of the Kentucky Constitution

and SCR 1.030(3), decisions of the Workers’ Compensation Board shall

be subject to direct review by the Court of Appeals in accordance with

the procedures set out in this rule.

(B) Time for Petition. No later than 30 days from the date upon

which the Board enters its final decision pursuant to KRS 342.285(3),

any party aggrieved by that decision may file a petition for review with

the Clerk of the Court of Appeals and pay the filing fee required by RAP

13. Failure to file the petition and pay the filing fee within the time

allowed shall require dismissal of the petition.

(C) Format. Five copies (1 unbound and 4 bound) of the petition shall

be filed with the Clerk of the Court of Appeals. All petitions and

responses shall be in the form prescribed by RAP 31, but with covers

colored as follows: Petition—Red; Response—Blue.

(D) Contents of Petition. The petition shall designate the parties as

appellant(s) and appellee(s) and shall contain the following:

(1) The name and address of each appellant and each appellee

and the names and addresses of their respective counsel. The appellant

shall specifically designate as appellees all adverse parties and the

Workers’ Compensation Board.

(2) The petition shall state the date of the entry of the decision

by the administrative law judge and the date of entry of the final decision

of the Workers’ Compensation Board.

(3) Each petition shall begin with a table of points and

authorities stating the issues to be raised. The petition shall contain a

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

law involved, and (c) the specific reason(s) why relief from the Board’s

decision should be granted by the Court of Appeals. The petition shall be

prepared with the expectation that it will be the only document filed by

the petitioner in the appeal and shall be limited to 8,750 words or 20

pages if computer generated or to 25 pages if handwritten or typewritten.

The cover, table of points and authorities, signatures, and attachments

are excluded from the page and word limits. A computer-generated

petition that exceeds the page limit but falls within the word limit must

include a word-count certificate in conformity with RAP 15.

(4) Copies of the following documents shall be attached to each

copy of the petition filed in the Court of Appeals: (a) the decision of the

administrative law judge, (b) the final decision of the Workers’

Compensation Board, and (c) a set of the briefs filed with the Board by

the appellant and each appellee. If review is sought of a decision on a

motion to reopen, copies of the motion, any responses thereto, and

decisions on that motion by the administrative law judge and the Board

shall be attached. The petition shall clearly state whether there is or is

not any other action concerning the injury pending before any other state

or federal court or administrative body.

(E) Record. Upon receipt of the petition, the Clerk of the Court of

Appeals will request that the original record of the Workers’

Compensation Board be prepared by the board in conformity with RAP

24, 25, and 26, certified no later than 30 days from the date of the

request, and transported forthwith to the office of the Clerk of the Court

of Appeals. This certification and transmission may occur by electronic

means.

(F) Response to Petition. Each appellee may file 5 copies (1 unbound

and 4 bound) of a response to the petition no later than 30 days from the

date on which the petition was filed with the Court of Appeals. A

response shall be limited to 8,750 words or 20 pages if computer

generated or to 25 pages if handwritten or typewritten. The cover, table of

points and authorities, signatures, and attachments are excluded from

the page and word limits. A computer-generated petition that exceeds the

page limit but falls within the word limit must include a word-count

certificate in conformity with RAP 15. No reply to the response shall be

filed.

(G) Certification and Service.

(1) The petition and the response shall be signed by each party

or his counsel and that signature shall constitute a certification that the

statements therein are true and made in good faith.

(2) Upon filing, a copy of the petition and any response shall be

served on counsel of record, or on any party not represented by counsel,

and on the Workers’ Compensation Board. Such service shall be

certified on the petition or response pursuant to RAP 5.

(3) In any case in which the constitutionality of a statute is

questioned, a copy of the petition and response shall be served on the

Attorney General by the party challenging the validity of the statute. The

Attorney General may file an entry of appearance no later than 10 days

from the date of such service. If no entry of appearance is filed, no

further filings need be served on the Attorney General.

(H) Cross-Petition and Response.

(1) Any party designated as an appellee may file a cross-petition

no later than 30 days from filing of the petition. The cross-petition shall

state the name of each cross-appellant and each cross-appellee and the

names and addresses of their respective counsel. The cross-petition

shall contain a clear and concise statement of the issues that the cross-appellant seeks to raise and any material facts relevant to those issues

not presented in the petition.

(2) Any cross-appellee may file a response to the cross-petition

no later than 30 days from the filing of the cross-petition.

(3) Five copies (1 unbound and 4 bound) of the cross-petition

and response shall be filed with the Clerk of the Court of Appeals. A

combined cross-petition and response shall be limited to 14,000 words or

30 pages if computer generated and limited to 40 pages if handwritten or

typewritten. The cover, table of points and authorities, signatures, and

attachments are excluded from the page and word limits. A computer-generated petition that exceeds the page limit but falls within the word

limit must include a word-count certificate in conformity with RAP 15.

(4) Cross-petitions and responses shall be signed and served in

accordance with paragraph (G) of this rule, with colored covers and

binding in accordance with paragraph (C) of this rule.

(I) Submission. The petition, any responses, cross-petitions, and the

record shall be submitted to the Court of Appeals for review, and the

matter shall proceed further as directed by order of the Court of Appeals.

The court may order the filing of briefs compliant with RAP 30–32 or

direct that the appeal be submitted for decision based only upon the

petition and response.

(J) Disposition. After the Court of Appeals issues a decision, the Clerk

shall send a copy of the decision to counsel for each party and to the

Workers’ Compensation Board.

(K) Procedure for Further Review. Further review may be sought in

the Supreme Court of a final decision or final order of the Court of

Appeals in a Workers’ Compensation matter, and shall be prosecuted in

accordance with the rules generally applicable to other appeals pursuant

to RAP 30, 31, 32 and 60.

RAP 50 Certification of Question of Law to or from the Supreme

Court

(A) Power to Answer Federal Court or Sister State Highest Court. If

in any proceeding before any federal court or the highest appellate court

of any other state or the District of Columbia, questions of law of this

state may be determinative of the cause then pending before that

originating court, and it appears to that court or a party that there is no

controlling precedent in the decisions of the Supreme Court and the

Court of Appeals of this state, a request that the Kentucky Supreme

Court certify the law may be made by the originating court.

(B) Procedure for Request. Certification of the law may be requested

by any of the courts referred to in paragraph (A) of this rule either upon

the requesting court’s own motion or upon motion to the requesting

court by any party to the cause before it. Other than the Commonwealth

of Kentucky, as set forth in paragraph (J) below, no party may directly

request certification from the Kentucky Supreme Court.

(C) Contents of Certification Request. The request for certification

shall set forth:

(1) the questions of law to be answered;

(2) a statement of all facts relevant to the questions certified

showing fully the nature of the controversy in which the questions arose;

(3) the names of each appellant and appellee; and

(4) the names and addresses of counsel for each appellant and

appellee.

(D) Preparation of Request for Certification. A request from any of

the courts referred to in paragraph (A) of this rule shall be prepared by

the originating court, signed by the judge presiding at the hearing, and

10 copies shall be forwarded to the Supreme Court by the clerk of the

originating court under its official seal. The Supreme Court may require

the original or copies of all or such portion of the record before the

originating court as it deems necessary.

(E) Disposition by Supreme Court of Kentucky.

(1) An order denying the request for certification of the law will

not be reconsidered.

(2) Upon entry of an order granting the request for certification,

the matter shall be docketed in the same manner as in a civil appeal.

The filing fee in the Supreme Court shall be equally divided between the

parties unless otherwise ordered by the originating court, and each party

shall pay its share of the filing fee within 30 days of the date of the entry

of the order granting certification.

(F) Briefs and Argument. Within 30 days of the date of the order

granting certification, each of the parties desiring to be heard shall file

with the clerk of the Supreme Court 10 copies of a brief setting forth the

party’s arguments. Oral arguments will not be required or permitted

unless so ordered by the Supreme Court.

(G) Opinion. The written opinion of the Supreme Court stating the law

governing the questions certified shall be sent by the clerk under the seal

of the Supreme Court to the certifying court and to the parties.

(H) Procedure on Certifying. The procedures for certification from

this state to the receiving state shall be those provided in the laws of the

receiving state or district.

(I) Power to Certify. The Supreme Court, on its own motion or on the

motion of any party, may order certification of questions of law to the

highest court of any state or the District of Columbia when it appears to

the Supreme Court that there are involved in any proceedings before the

Supreme Court questions of law of the receiving state or district which

may be determinative of the cause then pending in the Supreme Court

and it appears to the Supreme Court that there are no controlling

precedents in the decisions of the highest court or intermediate appellate

courts of the receiving state.

(J) Request for Certification of Law by the Commonwealth. A

request by the Commonwealth of Kentucky pursuant to Section 115 of

the Constitution of Kentucky for a certification of law shall be initiated in

the Supreme Court. The request shall be initiated within 30 days of a

final order adverse to the Commonwealth. The Commonwealth shall

initiate the certification procedure by motion requesting the Supreme

Court to accept review. The motion shall contain the same elements as

provided in section (C) of this rule. The motion shall be served and

response permitted in conformity with the rules applicable to motion

practice in the Supreme Court. Ten copies of the request for certification

by the Commonwealth and the response, if any, shall be filed with the

Clerk of the Supreme Court. If the motion is granted, thereafter the case

shall proceed in the same manner as any other criminal appeal.

RAP 51 Review of Decisions Concerning Bail

(A) Appellate Review of Bail Pending Trial.

(1) When a circuit court has granted or denied a motion for a

review of a bail bond under RCr 4.38 or 4.40, or has changed a condition

of release pursuant to RCr 4.42, a defendant aggrieved by such a

decision may appeal that decision to the Court of Appeals under the

following procedures.

(a) The notice of appeal from the order of the trial court

shall be filed within 10 days after the date of entry, subject to RCr

12.82, and shall otherwise be in the manner fixed by RAP 2 and 3.

(b) Upon the filing of the notice of appeal, the clerk of the

circuit court shall prepare and certify a copy of such portion of the

record or proceedings as relates to the question of bail and is

needed for the purpose of deciding the issue on appeal, including,

but not limited to, the order of the trial court, the motion and any

responses thereto, and any video recording of the hearing on the

motion being appealed. The abbreviated record shall be filed with

the clerk of the appellate court within 14 days after filing of the

notice of appeal.

(c) The appellant shall, within 10 days after the filing of

the record, file a brief with the appellate court. The brief 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 and otherwise comply with the briefing requirements of

RAP 30–32. Such brief shall not exceed 2,450 or 5 pages if

computer-generated and shall not exceed 7 pages if handwritten or

typewritten. A computer-generated petition that exceeds the page

limit but falls within the word limit must include a word-count

certificate in conformity with RAP 15.

(d) The brief and record appendix shall be served on both

the local Commonwealth’s Attorney and on the Attorney General.

(e) No brief shall be required of the appellee, but the

appellee may file a brief within 10 days after the date the

appellant's brief is filed. Such brief shall not exceed 2,450 words

or 5 pages if computer-generated and shall not exceed 7 pages if

handwritten or typewritten, and shall otherwise comply with the

requirements of RAP 30–32. A computer-generated petition that

exceeds the page limit but falls within the word limit must include

a word-count certificate in conformity with RAP 14. No other briefs

shall be filed unless requested by the appellate court.

(f) The appeal shall stand submitted for final disposition

10 days after the date on which the appeal was perfected by the

appellant or upon the filing of the appellee’s brief, whichever

occurs first. Oral argument will not be held unless ordered by the

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

(g) Neither the filing of the notice of appeal nor the

pendency of the appeal shall stay further proceedings in the

prosecution.

(h) A final disposition by the Court of Appeals on the

appeal shall not be subject to rehearing or modification under RAP

43.

(i) Any party adversely affected by the final disposition of

the appeal by the Court of Appeals may move the Supreme Court

for discretionary review under RAP 44 within 30 days from the date

the decision of the Court of Appeals was entered. Such a motion

will be entertained only for extraordinary cause show in the

motion. A response to the motion for discretionary review, which

must conform to RAP 44, may be filed within 30 days after the

motion is filed.

(2) The writ of habeas corpus remains the proper method for

seeking circuit court review of the action of a district court respecting

bail.

(B) Appellate Review of Bail During Pendency of Appeal. An

appellant may seek bail on appeal from the trial court pursuant to RCr

12.78. An appellant aggrieved by a decision of the trial court regarding

bail on appeal may seek review in the appellate court pursuant to this

section.

(1) Such an application shall be made pursuant to RAP 7 and

shall show that: (1) application has been made and denied, with reasons

given for the denial; (2) application to the trial court is not practicable; or

(3) the action on the application did not afford the relief to which the

applicant considers himself or herself to be entitled.

(2) The decision of the trial court regarding bail will not be

disturbed by an appellate court unless it is demonstrated that the trial

judge failed to exercise sound discretion.

RAP 52 Habeas Corpus Appeals

(A) Procedure. Any party may appeal a ruling granting or denying a

writ of habeas corpus by filing a notice of appeal with the clerk of the

court where the order was entered pursuant to KRS 419.130. The notice

of appeal shall be filed no later than 30 days after the order denying or

granting the writ of habeas corpus. The notice shall be served on all

parties no later than the date of filing.

(B) Record. The appeal under this section is an expedited proceeding

without briefing. A designation of the record is not required. The record

on appeal will consist of all documents on file with the circuit clerk and

all video record of any hearings held, unless the party appealing directs

otherwise. The original record shall be bound and numbered according

to the normal procedure for a record on appeal. The record shall be

transmitted to the Court of Appeals as soon as possible, but no later

than 10 days from the filing of the Notice of Appeal.

(C) Stay on Appeal. If the judgment of the circuit court grants release

of the person detained, any party may request the circuit court to stay

the judgment or to set bond for release of the person detained. Upon

proper motion, the Court of Appeals may continue, modify or set aside

the bond or stay pending appeal.

RAP 53 Reserved.

RAP 54 Motions to Proceed in Forma Pauperis and Appoint

Counsel

(A) General.

(1) To proceed in forma pauperis—meaning without payment of

costs and fees, or with payment of partial costs and fees—in an action

governed by these rules, a person must file a motion with an affidavit

stating the reasons the person applying for relief is unable to pay the

costs and fees required to file the action. The motion and affidavit must

be filed in the court where the document initiating the action governed by

these rules must be filed, at the same time the document initiating the

action governed by these rules is filed, unless exempted by another

provision of this rule.

(2) Motions and responses filed in the Court of Appeals or in the

Supreme Court under this rule must be filed in accordance with RAP 7.

(3) In criminal actions governed by these rules in which a

person is represented by a public defender, the payment of a filing fee

shall not be required.

(B) Criminal Actions.

(1) Persons Represented by Public Defender.

(a) A person represented by a public defender at the time

of sentencing in a criminal case may proceed in forma pauperis on

appeal without requiring further proof of a person’s indigency, and

the sentencing court must automatically enter an order permitting

a person to proceed in forma pauperis on appeal, unless the

sentencing court determines, after conducting a hearing, good

cause exists that the represented person is no longer indigent.

(b) The public defender may continue representation of a

person on appeal without filing a motion to proceed in forma

pauperis and without seeking reappointment at each stage of a

proceeding governed by these rules, unless a court having

jurisdiction over the action determines, after conducting a hearing,

that the represented person is no longer indigent.

(2) Persons Not Represented by Public Defender.

(a) A person not represented by a public defender,

including an inmate acting pro se, who wants to proceed in forma

pauperis in a criminal action governed by these rules, must do so

by filing a motion in compliance with paragraph (A) of this rule.

(b) If a person is proceeding under paragraph (B)(2) of this

rule, a motion in compliance with paragraph (A) must be filed each

time a filing fee or cost is required and such a motion must be

made at the same time a filing requiring a fee or cost is made.

(C) Civil Actions.

(1) Non-Inmate. A person who wants to proceed in forma

pauperis in a civil proceeding governed by these rules, must file a motion

in compliance with paragraph (A).

(2) Inmate

(a) A person, who is currently an inmate in a state or

federally-operated facility, a county jail, or other facility of local

government, and who wants to proceed in forma pauperis in a civil

proceeding governed by these rules, must file a motion and

affidavit in compliance with paragraph (A) and also include a

certified copy of their inmate prison account statement showing

the total deposits for the 6 months immediately preceding the filing

of the motion to proceed in forma pauperis. If an inmate prison

account statement for the preceding 6 months is not available, all

inmate account records that are available shall be filed with the

motion and affidavit.

(b) An inmate who commences, intervenes, or joins an

action or an appeal of a judgment in a civil action or proceeding,

must pay, at a minimum, a $5.00 partial filing fee unless the court

in which the motion is filed determines the inmate is unable to pay

a fee or costs.

(3) Motion required each time a filing fee or cost must be

paid. At the same time a filing is made that requires a filing fee or cost,

a person proceeding under paragraphs (C)(1) or (C)(2) of this rule must

file a motion in compliance with RAP 54(A).

(D) Appointment of Counsel

(1) If a party seeks appointed counsel on appeal, the party shall

file a motion for appointment of counsel on appeal in a court having

jurisdiction over the action.

(2) A motion for appointment of counsel on appeal may be filed

with the document that initiates an action under these rules. If the trial

court denies the motion or if the party later seeks counsel on appeal, the

motion may be filed with the appellate court.

(3) If counsel is appointed, the court ruling on the motion may

assess an amount to be paid for representation. The amount may be

ordered to be paid in lump sum or installment payments. Failure to pay

may result in civil collection proceedings, but will not affect the filing of

the notice of appeal.

RAP 55 Appeal of the Denial of In Forma Pauperis

(A) Scope. A party may appeal the following by filing a notice of appeal

with the clerk of the court where the order was entered: (1) the denial of

a motion to proceed in forma pauperis in the trial court or on appeal; (2)

the assessment of a partial filing fee; or (3) the denial of a motion to

waive all fees.

(B) No Filing Fee Required. No filing fee or motion to proceed in

forma pauperis is required to file this notice of appeal.

(C) Time to Appeal. The notice of appeal shall be filed no later than

30 days from the entry of the order or no later than 10 days from the

expiration of time given to pay the filing fee, whichever is later.

(D) Abbreviated Record. The appeal under this section is an

expedited proceeding without briefing. A designation of the record is not

required. The abbreviated record shall contain:

(1) The motion to proceed in forma pauperis with supporting

documents.

(2) The tendered notice of appeal.

(3) Any subsequent motion with supporting documents relating

to in forma pauperis status.

(4) Any response from another party.

(5) The orders of the trial court ruling on the motion(s).

(6) If a hearing was held, a copy of the video record of the

hearing.

(7) The notice of appeal of the rulings of the trial court.

A certified copy of the abbreviated record shall be bound and page

numbered according to the normal procedure for a record on appeal.

The original record shall be retained by the lower court clerk. The

certified copy of the abbreviated record shall be transmitted to the

appellate court clerk as soon as possible, but no later than 10 days from

the notice of appeal.

(E) Time to Pay, if Trial Court Order is Affirmed. If the filing fee or

partial filing fee is affirmed, the fee or partial fee must be paid no later

than 30 days from the entry of the appellate court decision.

RAP 56 Reserved.

RAP 57 Reserved.

RAP 58 Reserved.

RAP 59 Reserved.