Ky. Supreme Court Limits Number of “Published” Decisions by Court of Appeals

LawReader will begin identifying Ct. of Appeals Opinions , in our weekly synopsis, that we feel should have been published due to their importance and relevance.  We welcome comments by members of the bench and bar on this topic.

LawReader weekly publishes a synopsis of every Kentucky Appellate Decision.  In that process we note that since the Supreme Court approved new rules allowing litgants to cite unpublished cases, the number of cases designated as “To Be Published”  has fallen. (see rules below).


 The Ct. of Appeals issues some 1,400 decisions each year.  The typical number of designated “to be published” has now fallen to 2 or 3 a week.  That would average out to about 150 published decisions a year.

In recent weeks the number of Published Decisions has averaged only 2 published decisions a week. (Although for the week of May 22nd, they Published 3 cases. This week we have found two decisions that were not ordered to be published that were very important, dealt with new issues of law, and would have been very helpful for legal researchers in the future. 

We believe that the failure to recognize the importance and usefulness of Ct. of Appeals decisions based on some magical statistical number is detrimental to the development of the law.


While we readily concede that the Supreme Court can depublish Ct. of Appeals decisions, we find that a number of decisions issued by the Ct. of Appeals are of such merit and usefulness to the Bar that they should, in our opinion, be published.

Our sleuthing traced this issue and found a claim from a reliable source, that former Chief Justice Joseph Lambert wrote members of the Court of Appeals before his retirement, and in his strongly worded letter warned the Judges of the Ct. of Appeals to strictly limit the number of cases they designate for publication.

The letter reportedly contained language to the effect that if the Court of Appeals defied the Chief Justice’s publishing restriction, that the Sup. Ct. might not allow any  Ct. of Appeals decisions to be published.

While this may be inside baseball for many, we find this important, since the findings of the Court of Appeals account for 75% of all appellate rulings, and provide highly useful guidance for the practice of law.   Most legal issues are never appealed to the Supreme Court, and therefore, the Bar is deprived of the ability to readily cite these cases except in limited situations. 


Perhaps the reason for the non-publishing order is to save trees…that is a noble endeavor. If that is the justification, then a new category of designation could be created to have three categories of cases instead of two. 

The court could allow:

Category One:  Not to be published

Category Two:  To be Published and placed in SW3.

Category Three:  May be cited, but not to be printed in SW3.

Perhaps there is some other reason why the Supreme Court is putting a muzzle on the Court of Appeals…we don’t really know.  If anyone with actual knowledge, has some insight on this issue, we would welcome your comments.

   This week, we read two cases that in our opinion should have been published.       


We invite our readers to call up these cases and decide for yourself if these cases merit the status of a Published Decision. 


1) Click case number to read full text and decide for yourself:   2007-CA-002243                May 22, 2009 – NOT TO BE PUBLISHED



This case discussed:

Federal Civil Rights Action brought in state court for sex abuse of a student- laches-statute of limitations-duty of school officials to report sex abuse of students-postjudgment interest in Civil Rights actions brought in state courts.


This case dealt with a practice where the Fayette County School Board ignored state law and failed to report claims of sexual abuse of students by faculty.  This practice had gone on for years.  The legal issues involved the statute of limitations, tolling of the statute due to concealment, the duty of officials to report sexual abuse to the police, and a discussion of when litigation costs could be awarded.  The case discussed important distinctions between Civil Rights actions filed in State Court versus such actions filed in Federal Court.



2) Click case number to read full text and decide for yourself:  2008-CA-000387





impeachment on collateral facts- reckless homicide –child seat belt restraint


This case involved the criminal prosecution of a mother who was involved in an auto collision in which her child was killed.  She had not placed the child in a proper restraint chair, as required by law.  The case discusses when such a failure to secure a child, can be used to enhance the offense, and when it cannot.  This case also discussed the unpublished rule of procedure where “impeachment by collateral facts” is not allowed, and exceptions.



 There are two Kentucky rules concerning the use of unpublished decisions.  Any unpublished decision issued before Jan 1, 2003 is governed by the old rule, and many not be cited as authority.

 However, with those old cases, we have found that the legal theory they propose is usually supported by a citation which is published, and in any event many judges will appreciate the unpublished decision for it approach, although they will not be bound to follow it.



 Unpublished cases released after Jan. 1, 2003 may now be cited subject to the following conditions:

 CR 76.28(4)(c)

(4) Publication.      


        (Section c was adopted by the Sup. Ct. in Jan. of 2007)
(c) Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.



Unpublished decisions issued before Jan. 1, 2003 can be very useful.  We would submit that one attempting to use an unpublished decision follow this procedure:


   1.  Clearly identify the case as being unpublished.

2. Point out that the reasoning behind the decision is persuasive although not binding.

 3. Point out that while the decision was not published the particular point found in that case is supported by a citation which is published (in those cases that this is correct)..


NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.



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