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

RAP 62 Stays and Bail in Criminal Cases

Stays of execution and bail on appeal are governed by RCr 12.80 except a

stay pending the outcome of a district court appeal is governed by RAP

48(C) and a stay pending the outcome of a habeas corpus appeal is

governed by RAP 52(C).

RAP 63 Bonds in Civil Appeals

(A) Stay Pending Appeal of Judgment Other than Injunction

Judgment.

(1) When an appeal is taken from a judgment other than a

judgment granting a permanent injunction, the appellant may stay

enforcement of the judgment by giving a supersedeas bond as provided

in this rule. The bond may be given at or after the time of filing the

notice of appeal. The stay is effective when the supersedeas bond is

approved by the court or the clerk, and the clerk shall give prompt notice

of such approval to the party or parties in whose favor the judgment was

rendered.

(2) If the appellant is a governmental unit exempted from the

execution of a bond under the provisions of paragraph (E) of this rule,

the filing of a notice of appeal by such party shall stay enforcement of the

judgment as to it in all cases where the giving of the supersedeas bond

would affect such a stay.

(B) Supersedeas Bond.

(1) Whenever an appellant entitled to a stay desires a stay on

appeal of a judgment other than a judgment granting a permanent

injunction, the appellant may present to the trial court clerk or the trial

court for approval an executed supersedeas bond with good and

sufficient surety. The address of the surety shall be shown on the bond.

The bond shall be in a fixed amount and conditioned for the satisfaction

of the judgment in full together with costs, interest, and damages for

delay, if the appeal is dismissed or if the judgment is affirmed, and to

satisfy in full such modification of the judgment and such costs,

including costs on the appeal and interest as the appellate court may

adjudge.

(2) When the judgment is for the recovery of money not

otherwise secured, the amount of the bond shall be fixed at such sum as

will cover the whole amount of the judgment remaining unsatisfied, costs

on the appeal, interest, and damages for delay, unless the trial court

after notice and hearing and for good cause shown fixes a different

amount or orders security other than the bond.

(3) When the judgment determines the disposition of the

property in controversy as in real actions or replevin, or when such

property is in the custody of the sheriff, or when the proceeds of such

property or a bond for its value is in the custody or control of the court,

the amount of the supersedeas bond shall be fixed at such sum only as

will secure the amount recovered for the use and detention of the

property, the costs of the action, costs on appeal, interest, and damages

for delay. A supersedeas bond may be given to stay proceedings on a

part of a judgment, and in such case the bond need only secure the part

superseded.

(C) Failure to File or Insufficiency of Supersedeas Bond.

(1) The sufficiency of the bond or the surety may be determined

by the trial court upon motion and hearing.

(2) During an appeal, the trial court shall retain original

jurisdiction to determine all matters relating to the right to file a

supersedeas bond, the amount and sufficiency thereof and the surety

thereon.

(D) Judgment Against Surety. By entering into a supersedeas bond,

the surety submits to the jurisdiction of the court with which the bond is

filed and liability may be enforced on motion without the necessity of an

independent action. The motion shall be served on the surety as

provided by RAP 5 at least 20 days prior to the date of the hearing.

(E) Exemption of Governmental Units from Giving Bond.

Whenever a bond is or may be required by these rules in order to take

any proceeding, to indemnify any party, or to stay proceedings under or

the enforcement of a judgment, such requirement shall not apply to the

United States, the Commonwealth or any of its municipal corporations or

political subdivisions, or any of their agencies or officers acting for or on

their behalf. Unless otherwise exempted by law, such governmental unit

shall be obligated to the same extent as if it had given the bond required.

II. Amendments to the Rules of Civil Procedure

CR 1(2) – Title and Scope of Rules

CR 1(2) shall read:

(2) These Rules govern procedure and practice in all actions of a civil

nature in the Court of Justice except for special statutory proceedings, in

which the procedural requirements of the statute shall prevail over any

inconsistent procedures set forth in the Rules, and appeals from civil

actions, which are governed by the Rules of Appellate Procedure.

Regulations and manuals published by the Administrative Office of the

Courts upon authorization of the Supreme Court relating to internal

policy and administration within the Court of Justice shall have the

same effect as if incorporated in the Rules.

Delete CR 62.02 – Pending appeal of injunction judgments

CR 62.02 shall be deleted in its entirety.

Delete CR 62.03 – Pending appeal of injunction judgments

CR 62.03 shall be deleted in its entirety.

CR 65.06 – Enforcement of Restraining Orders and Injunctions

CR 65.06 shall read:

Compliance with a restraining order or an injunction, other than an

injunction granted under RAP 20, may be compelled or its disobedience

punished as a contempt by the judge of the court in which the action is

pending, or if he is disqualified or absent from his judicial district, by any

circuit judge. Upon a showing by affidavit or other evidence of the breach

of a restraining order or injunction, the circuit judge may proceed by rule

and attachment against the person committing the breach. If an

appellate court grants an injunction pending appeal under RAP 20,

compliance therewith shall be compelled or disobedience punished by

the appellate court.

Delete CR 65.07 – Interlocutory Relief in Court of Appeals Prior to

Final Judgment

CR 65.07 shall be deleted in its entirety.

Delete CR 65.08 – Interlocutory relief pending appeal from final

judgment

CR 65.08 shall be deleted in its entirety.

Delete CR 65.09 – Interlocutory relief in the Supreme Court

CR 65.09 shall be deleted in its entirety.

Delete – CR 72 – Appeals from District Court

CR 72.01-72.13 shall be deleted in their entirety.

Delete – CR 73 – All Appeals

CR 73.01-73.08 shall be deleted in their entirety.

Delete – CR 74 – Cross-Appeals

CR 74.01-74.02 shall be deleted in their entirety.

Delete – CR 75 – Record on Appeal

CR 75.01-75.15 shall be deleted in their entirety.

Delete CR 76 – Practice and Procedure in Court of Appeals and

Supreme Court

CR 76.01-76.46 shall be deleted in their entirety.

CR 77.04 – Notice of Entry of Judgments and Orders

CR 77.04 shall read:

(1) Immediately upon the entry in the trial court of a judgment, a final

order, an order which affects the running of time for taking an appeal, or

an order which by its terms is required to be served, the clerk shall serve

a notice of the entry by mail in the manner provided in Rule 5 upon every

party who is not in default for failure to appear. Service of notice of entry

of any judgment or order under this rule may be waived by the filing of a

writing signed by the party or his attorney of record.

(2) The clerk shall make a note in the case docket of the service required

in paragraph (1) of this rule and the notation shall show the date of

service. The date of the notation on the docket of the service of notice of

entry, or the date of filing a waiver if prior thereto, shall be the date of

entry for the purpose of fixing the running of the time for appeal under

RAP 3.

(3) The trial court shall require in the order, service of notice of entry of

all orders made under Rules 6.03(2), 12.01, 12.05, 43.04, 50.02, 52.02,

54.02, 59, 62.01, 62.04, and RAP 20 and all orders heard ex parte, or

any other order it deems advisable.

(4) Failure of the trial court to require service of notice of entry of any

judgment or order under this rule or the failure of the clerk to serve such

notice, or the failure of a party to receive notice, shall not affect the

validity of the judgment or order, and does not affect the time to appeal

or relieve or authorize the court to relieve a party for failure to appeal

within the time allowed, except as permitted in RAP 3.

CR 79.05 Original record; removal and transfer

CR 79.05(1) shall read:

(1) General.

The clerk of each trial court shall maintain separately all papers filed,

entered, issued or returned in each action, which with the docket

required by Rule 79.01 or by Criminal Rule 13.01 shall constitute the

original record. Except when transmitted to an appellate court or

withdrawn by counsel pursuant to RAP 26(D), no original record shall be

removed from the office of the clerk unless by a court order. However,

when necessary in the hearing of a motion or in the taking of some step

in an action or proceeding that is to be conducted by the court out of the

county in which the record is kept, an attorney of record in the action, or

if a party is not represented by an attorney, the party himself, may make

a written and signed request to the clerk that the original record be

transferred to the circuit clerk of the county wherein the hearing is to be

conducted. Upon receipt of such request the clerk shall forthwith

transmit the record as requested. The record shall be returned promptly

after completion of the event necessitating the transfer.

Delete CR 79.06 – Clerks of the Court of Appeals and Supreme Court

CR 79.06 shall be deleted in its entirety.

CR 98 – Procedures for video recorded court proceedings and

appeals

CR 98 shall read:

(1) Scope of Rule.

The provisions of this Rule shall apply to any court proceeding presided

over by, or to any appeal from a judgment entered by, a trial judge upon

his/her activation and use of video recording equipment to record the

court proceeding.

(2) Record of Trial Court Proceedings.

In addition to those provisions of the Kentucky Rules of Court relating to

video recorded court proceedings the following procedures shall apply:

(a) Video Recordings. The official record of these court proceedings shall

be constituted as follows:

1. two (2) videotape recordings, recorded simultaneously, of court

proceedings utilizing video cassette equipment; or,

2. two (2) copies of the digital video recording when court proceedings are

otherwise electronically recorded.

(i) Method of identification. For identification purposes, the clerk

shall designate on each of the two video recordings, on one line,

the judicial circuit or district number, the court division number (if

any), the last two digits of the current year, the letters “VR”, the

number of the video recording (counting all video records used

since the start of the current calendar year), either the letter “A”, if

the video recording is retained by the clerk, or the letter “B”, if the

video recording is filed with the clerk, the number of the video

recording used in the proceeding being identified, and the case file

number of the proceeding being identified (for example: 22-3-06-

VR-015-A-1, 06-CR-123). On the second line, the clerk shall

designate the caption of the proceeding recorded on the video (for

example: Smith v. Jones) or refer to the video recording log for the

captions of the proceedings when multiple proceedings are

recorded thereon. On the third line, the clerk shall designate the

date on with which the video record was made (for example:

10/27/06).

(ii) Duplicate copies. The clerk shall arrange for the recording of

duplicate copies of video recordings for use by counsel in preparing

an appeal. The clerk shall charge the person requesting a duplicate

video recording a reasonable fee, which shall be set by the

Administrative Office of the Courts, for each duplicate video tape,

disk or other media requested.

(b) Exhibit List: Trial Log. The trial judge or his/her designee shall make

a written exhibit list, a written trial log, and a written log listing the date

and time of where each witness' testimony begins and ends on the video

recording. The trial judge shall keep one copy of each log and list as part

of the record, and shall place a second copy of each log and list with the

video recording, or portion thereof.

(c) Exhibits. By pretrial order, the trial judge may require that at the time

an exhibit is introduced into evidence, a photograph or photographs of

the exhibit be submitted and included as part of the record, in lieu of the

exhibit itself being retained by the clerk as part of the record. The

photograph(s) shall serve as part of the official record, and the exhibit

itself may be returned for safekeeping to the custody of the party

introducing the exhibit.

(d) Depositions. In a court proceeding in which video recording

equipment is being used to record the proceeding, the official record of a

deposition admitted into evidence may be, in the trial judge's discretion,

either the transcript of the deposition or the video recording of the

deposition.

(e) Court Reporters in Mechanically Recorded Proceedings. Any party to

the case may have a stenographic reporter present as part of the public

or at counsel table and the court shall, to the extent it can do so without

unduly disrupting its proceeding, accommodate the reporter inside the

bar.

III. Amendments to the Rules of Criminal Procedure

RCr 1.02 - Title and Scope of Rules

RCr 1.02(2) shall read:

(2) These rules govern procedure and practice in all criminal proceedings

in the Court of Justice, except appeals from criminal orders and

judgments which are governed by the Rules of Appellate Procedure. To

the extent that they are not inconsistent with these rules, the

regulations, administrative procedures, and manuals published by the

Administrative Office of the Courts upon authorization of the Supreme

Court relating to internal policy and administration within the Court of

Justice shall have the same effect as if incorporated in the rules.

RCr 1.10 – Time

RCr 1.10(e) shall read:

(e) The time for a motion for a new trial or for taking an appeal or cross-appeal shall not be extended. The time for certification of the record on

appeal shall not be extended except as provided in RAP 26.

RCr 4.43 – Appellate review of bail; habeas corpus

RCr 4.43 shall read:

(1) Appeals of a pretrial bail decision of circuit court should be

prosecuted under RAP 51.

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

circuit court review of the action of a district court respecting bail.

RCr 12.02 - Applicability of Civil Rules

The title of this rule shall be amended to read: Applicability of the Rules

of Appellate Procedure.

RCr 12.02 shall read:

The Rules of Appellate Procedure shall apply in criminal actions, except

that an appeal from a judgment imposing a sentence of death, life

imprisonment, or imprisonment for 20 years or more shall be taken

directly to the Supreme Court. Compliance with Rule (2)(H) of the Rules

of Appellate Procedure is required in all cases.

Delete RCr 12.05 - Petition for rehearing and discretionary review

motion not required for exhaustion

RCr 12.05 shall be deleted in its entirety.

RCr 12.06 – Notice of entry of judgments and orders

RCr 12.06(2) shall read:

(2) The clerk shall make a note in the criminal docket of the service

required by paragraph (1) of this Rule, which notation shall show the date

and manner of service. Unless notice has been waived, the date of such

notation shall be the date of entry for purposes of Rule 12.04(3) or, in a

bond forfeiture proceeding, for purposes of RAP 3.

RCr 13.01 – Records

RCr 13.01 shall read:

Civil Rules 79.01, 79.02(1), 79.03, 79.04, 79.05(1), and RAP 27 shall

apply to criminal actions. The general docket of criminal cases in the trial

court shall be kept separately from the general dockets of civil and

appellate cases. The general docket for criminal cases in the trial court

shall include only those cases originating in that court. Appeals from the

district court in criminal cases shall be included in the general docket of

appellate cases in the circuit court. All cases in which an indictment is

returned or an information filed in the circuit court shall be docketed as

original actions in that court.

IV. Amendments to Family Court Rules of Procedure and Practice

Family Court Rules of Procedure and Practice Rule 1 – Title,

purpose, and scope

FCRPP 1(5) shall read:

(5) The Kentucky Rules of Civil Procedure, Rules of Criminal Procedure,

Rules of Appellate Procedure, and Rules of Evidence shall apply to family

law cases to the extent that they are not inconsistent with these rules.

This Order shall be effective January 1, 2023, and until further Order of

this Court.

Entered this 25th day of October 2022.

All sitting. All concur, except that Conley and Keller, JJ., would not

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

Discretionary Review.

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CHIEF JUSTICE