SOME PROBLEMS IN KENTUCKY APPELLATE PRACTICE – A PRIMER AND A PROPOSAL BY HON. SHERYL SNYDER

SOME PROBLEMS IN KENTUCKY APPELLATE PRACTICE – A PRIMER AND A PROPOSAL March 16, 2013

Sheryl G. Snyder is a Fellow of the American Academy of Appellate Lawyers and co-author of 19 KENTUCKY PRACTICE, APPELLATE PRACTICE (Thomson/West) (2006) (hereinafter “KENTUCKY APPELLATE PRACTICE”). He is a Past President of the Kentucky Bar Association and was Editor-in-Chief of Vol. 59 KY. L. J. (1970-71).

He is a Member of Frost Brown Todd LLC. The author expresses appreciation to Griffin Terry Sumner and Jason P. Renzelmann of Frost Brown Todd LLC who worked with him on the appeals discussed herein and, more importantly, for their valuable comments on this article. The author also acknowledges the invaluable research assistance of Reed Ennis, an attorney who provides extraordinary service in the law firm’s library in Louisville. 1 and the advent of substantial compliance with the rules of appellate procedure.2

Such positive developments occur when appellate judges and practitioners discern the need for, and then advocate, further improvement of the judiciary. 3 Unfortunately, several idiosyncrasies and traps for the unwary remain. Accordingly, in an effort to continue contributing to the reform process, this article identifies five issues that merit consideration by the bench and bar for changes in Kentucky appellate rules and practice. 4 Neither do the rules of other states.5 6 After the passage of the Judicial Article in 1975, the Court amended the rules. New CR 73.03 provided that “[t]he notice of appeal shall specify all the appellants and all the appellees; ‘et al.’ and ‘etc.’ are not proper designations of parties.”7 We have been unable to find any contemporaneous explanation of the reason for the change in the rule. 8 Rule 1.090(a) prescribed the contents of the mandatory statement of appeal, and required “[t]he name of each appellant and each appellee (only parties named are before the Court – ‘et al.’ and ‘etc.’ are not proper designations of parties).”9 Apparently in that era of strict compliance with the rules, a decision was made to create this trap for the unwary by moving the informational requirement from the post-notice procedural rules into the requirements of a notice of appeal. In the era of substantial compliance, the pre-1976 wording of CR 73.03 should be restored. en banc in Yocom v. Franklin County Fiscal Court.10 The Court quoted both the old rule and new rule in their entirety11 and concluded that the amended rule “clearly requires that the notice of appeal specify the names of all of the appellees, as well as all of the appellants.”12 However, the Court decided it was sufficient that the caption of the notice identified the appellee. 13 14 But the Court of Appeals’ post hoc rationalization for the Supreme Court’s decision to revise the rule is clearly a makeweight argument because appellees make that decision in every other jurisdiction – and made that decision in Kentucky prior to 1976 – without the notice of appeal identifying the appellees against whom the appeal is taken. Like the rules in other jurisdictions,15 CR 73.03(2) requires the clerk to serve all parties, each of whom may decide for themselves whether to cross-appeal. dicta in Yocom resulted in the indispensible party exception to the doctrine of substance compliance announced in City of Devondale.16 In that case, the fifth class City of Devondale purported to annex by referendum certain previously unincorporated territory. Some residents of the annexed area filed suit, and the City of Louisville and Jefferson County intervened to contend that their City-County Compact rendered the annexation void. The Jefferson Circuit Court granted summary judgment invalidating the annexation and the City of Devondale appealed. Devondale’s notice of appeal failed to name the City of Louisville or Jefferson County as appellees, but the notice of appeal was timely filed and served upon their counsel of record. Over a dissent by Justice Leibson, the Supreme Court affirmed the dismissal of the appeal in an opinion written by Chief Justice Stephens. The majority reasoned that the City of Louisville and Jefferson County were indispensible parties to the relief sought by the 4 City of Devondale’s requirement of naming every appellee – on pain of dismissal of the entire appeal, for failure to name an indispensible party – is a trap for the unwary that has spawned needless satellite litigation and resulted in the dismissal of appeals in spite of the abrogation of the doctrine of strict compliance with appellate rules. That portion of CR 73.03(1) should be repealed, restoring the pre-1976 wording of the rule. Lassiter v. American Express,17 American Express sued the elected State Treasurer seeking a judgment declaring unconstitutional a provision in the biennial budget shortening the time period after which traveler’s checks are presumed abandoned. The elected State Treasurer, who soon thereafter became a candidate for Governor, was a Democrat who had no stake in defending the controversial use of “notwithstanding clauses” in the Republican Governor’s budget.18 The Treasurer therefore sought to implead both the Legislative Research Commission and Governor Fletcher’s Budget Director. The Franklin Circuit Court brought the Budget Director, but not LRC, into the case. Thereafter, the Budget Director defended the budget with the Treasurer filing “me too” briefs. City of Devondale19 – American Express moved to dismiss the Budget Director’s appeal. In a 2-1 decision, the Court of Appeals dismissed the appeal. Blackburn20 principle, the Department was properly named as an appellee to the appeal.”21 Lassiter implicitly reaffirmed the indispensible party doctrine announced in City of Devondale.

While the Supreme Court did not cite City of 6 , it reiterated that “tardy appeals and the naming of indispensible parties” continued to be exceptions to the rule of substantial compliance.22 Accordingly, while Lassiter was an important reaffirmation of the doctrine of substantial compliance with the rules of appellate procedure,23 it left the trap for the unwary that was created when CR 73.03 was amended to require the notice of appeal to name each and every appellee. Lassiter, both the Supreme Court and the Court of Appeals have continued to dismiss appeals for imperfections in the notice of appeal. For example, in A.M.W. v. Cabinet for Health and Family Services, Commonwealth of Kentucky,24 the Court of Appeals dismissed the appeal of a parent whose parental rights had been revoked, for failure to identify one of the parties as an appellee. In that case, the notice of appeal correctly stated that the “person or entity against whom this appeal is taken is the Petitioner, Cabinet for Health and Family Services, Commonwealth of Kentucky.” After all, it was the Cabinet that had filed the petition to revoke the appellant’s parental rights. But the notice of appeal failed to name or serve the child’s guardian ad litem, a nominal party. Rather than saving the parent’s appeal of a judgment terminating his parental rights by invoking the rule of substantial compliance, the Court of Appeals dismissed the appeal. Browning v. Preece,25 the Supreme Court affirmed the dismissal of a landowner’s appeal from a judgment granting an easement over his property because his notice of appeal named only the adverse party who obtained the easement and did not name the co-defendants whose property was also subject to the easement. The Court recited that the notice of appeal was served on the co-defendants’ attorney. The Court nevertheless held the co-defendants were indispensible parties to the appeal and that the failure to name them in the notice of appeal was “a jurisdictional defect that cannot be remedied . . . .”26 7 City of Devondale was wrongly decided to begin with. Devondale, the City’s notice of appeal stated that “[t]he name of the Appellees against whom this appeal is taken are” the individual residents who had filed the lawsuit. “Only the original plaintiffs were named as appellees. . . . [I]ntervenors Louisville and Jefferson County were not named as parties, but copies of the notice of appeal were served on their attorneys.”27 The City timely filed a prehearing statement which was also served upon counsel for the Louisville and Jefferson County, although they also were not named as parties in the statement of appeal, either. Shortly thereafter Devondale moved to amend its notice of appeal, but the Court of Appeals denied that motion. The Court of Appeals also initially denied the appellees’ motion to dismiss the appeal but, after oral argument, “the Court of Appeals changed its mind and did, in fact, dismiss the appeal.”28 The Supreme Court granted discretionary review, and affirmed the dismissal of the appeal. 29 30 He noted that Devondale’s notice of appeal had been timely filed. He then noted that “[t]he rest of CR 73.02(2) specifies that ‘failure of any party to comply with other rules relating to appeals . . . does not affect the validity of the appeal . . . but is ground only for such action as the appellate court deems appropriate’ . . .”.31 Because the City of Louisville and Jefferson County had been timely served with the notice of appeal, they were not prejudiced and prejudice to the opposing party is essential to the severe sanction of dismissal of the appeal. “Thus, contrary to the statement in the Majority Opinion that the ‘plain language of CR 73 supports this [the majority’s] view,’ the fact is that the ‘plain language of CR 73’ supports the opposite view.”32 City of Devondale “constitutes an aberration.”33 In an ensuing series of decisions – authored by Justice Leibson – he set about to prove that Devondale is an aberration. Johnson v. Smith,34 a notice of appeal is not “jurisdictional.” Appellate jurisdiction is vested by the Constitution, not by the parties’ filings. 9 create jurisdiction, but only prescribes “the method by which the jurisdiction of an appellate court is invoked.” . . . not jurisdictional. It is a procedural device prescribed by the rules of the court by which a litigant may invoke the exercise of the inherent jurisdiction of the court as constitutionally delegated.35 Johnson v. Smith, Justice Leibson narrowed City of Devondale to its facts. Unfortunately, however, City of Devondale was not overruled, but was expressly reaffirmed in Justice Leibson’s opinion: Excepting for tardy appeals and the naming of indispensible parties, we follow a rule of substantial compliance.36 37 Thus, under the doctrine of substantial compliance, “dismissal is a disfavored remedy for violation of the civil rules related to appellate procedure.”38 Instead, “the sanction imposed should bear some reasonable relationship to the seriousness of the defect.”39 AK Steel Corp. v. Carico,40 the notice of appeal was timely filed in Devondale. Accordingly, Justice Leibson’s dissent in Devondale was better reasoned than Chief Justice Stephens’s majority opinion. The notice of appeal having been 10 41 and the policy that “the sanction imposed should bear some reasonable relationship to the seriousness of the defect”42 required granting leave to amend the notice of appeal to identify the party rather than dismissal of the appeal. further illustrates the point. In that case, Preece sued Mr. and Mr. Horn, claiming an easement in a roadway that straddled the boundary between the Horns’ and Browning’s property. Upon the Horns’ motion, Browning was added as a defendant. The circuit court upheld the claimed easement and Browning appealed. Apparently the Horns did not appeal. The notice of appeal named Mr. Horn in the caption but did not name Mrs. Horn in either the caption or the body of the notice. The notice was served on the Horns’ counsel of record. In federal and other states’ courts, that would have been sufficient. But the Supreme Court held the notice was fatally defective under the Devondale precedent. Reasoning that the easement could be widened or narrowed by the appellate courts, the Supreme Court held that “[t]he necessity of joining parties whose interest may be affected is not eliminated simply because the effect upon that interest may be minimal, or even beneficial to them”43 With respect, counsel for the Horns was served with the notice of appeal and they therefore could decide for themselves whether to participate in the appeal. 44 and its analogue in most states,45 Kentucky does not have a separate rule prescribing the procedure for obtaining a stay pending appeal of a nonmonetary, noninjunctive judgment or order. CR 62.03(1) and CR 73.04 set forth the procedure for staying execution upon a money judgment by posting a supersedeas bond. Similarly, CR 62.02, CR 65.07 and CR 65.08 set forth the procedure for obtaining relief from the Court of Appeals from an interlocutory order or final judgment granting or denying temporary or permanent injunctive relief, respectively. CR 62.04 provides that when a trial court has entered judgment on some but not all of the claims in a multi-claim or multi-party case within the meaning of CR 54.02, “the court may stay enforcement of that judgment” until a final judgment has been entered as to the remainder of the case. However, “CR 62.04, which provides that a trial court may stay the effect of a partial judgment made final under CR 54.02, does not authorize an appellate court to do anything.”46 47 Compared to the federal rule, however, CR 76.33 inadequately describes the procedure for obtaining a stay pending appeal. And, in contrast to CR 65.09 and CR 76.36(7), CR 76.33 is silent on whether and how one may obtain Supreme Court review of a stay issued by the Court of Appeals under that rule. While the Supreme Court held in Green Valley48 that a stay issued by the Court of Appeals pursuant to CR 76.33 may be reviewed by the Supreme Court via an 12 dictum in Ephraim McDowell49 creates a question whether that holding in Green Valley remains viable. And CR 76.33 remains silent as to Supreme Court review. A new rule patterned after federal appellate Rule 8, and expressly providing for Supreme Court review as provided in CR 65.09 as to injunctive relief, should be considered by the committee presently drafting rules of appellate procedure for Kentucky. 50 It is equally fundamental that the mere filing of an appeal does not stay the judgment appealed from.51 Execution on a money judgment is stayed by posting a supersedeas bond pursuant to CR 62.03(1) and relief from an injunction is obtained pursuant to CR 65.07 and CR 65.08, as the Court explained in Bella Gardens. Bella Gardens, the circuit court had ordered a tenant to vacate certain premises, and made the order final and appealable under CR 54.02. The tenant “moved the Court of Appeals for a stay of the judgment pending appeal, purportedly under CR 62.04 . . . .”52 The Chief Judge of the Court of Appeals entered an ex parte emergency order staying the circuit court’s order and, pursuant to the order of the Chief Judge, a supersedeas bond was posted in circuit court. The Court of Appeals subsequently dissolved its order, but held that the injunction issued by the circuit court continued to be stayed by the supersedeas bond. The owner of the apartments filed both a matter-of-right appeal and a petition for writ a prohibition. 55, which simply required certain portions of the record be filed with any “motion for an intermediate order under CR 75.10 or RCr 12.62 . . . .”56 Perhaps it is therefore not surprising that CR 76.33 is so succinct in contrast to federal appellate Rule 8. Green Valley, the Supreme Court held that the procedure for obtaining review by the Supreme Court of a stay issued by the Court of Appeals pursuant to CR 76.33 is to file an original action pursuant to CR 76.36 in the Supreme Court. In that case, environmentalists succeeded in overturning an administrative order granting Green Valley permits to construct and operate a solid waste landfill. Green Valley appealed. The environmentalists sought a stay of further administrative proceedings by the Cabinet for the duration of the appeal, and the Court of Appeals granted the stay pursuant to CR 76.33. 57 58 Green Valley is called into question by the opinion in Ephraim McDowell.59 In that case, the circuit court had granted a restraining order requiring the lessee of a hospital to vacate the premises. The Court of Appeals denied relief pursuant to CR 65.07 because a restraining order is not appealable.60 But, the lessee had also filed an original action, and the Court of Appeals granted “intermediate relief under CR 76.36(4) in the form of a temporary stay of the circuit court order.”61 temporary stay granted by the Court of Appeals under CR 76.36(4).”62 ever appropriate before this Court.”63 The Court parsed the wording of CR 76.36(1) and held that an original action is the appropriate procedure to obtain review of an interlocutory order issued by the Court of Appeals in an original action pending in the Court of Appeals: original action in this Court.64 Green Valley for the proposition that the lessor was not irreparably harmed because the stay merely preserved the status quo pendent lite. But before reaching the merits of that motion, the Court offered a rationale for its decision that seems to undercut the holding in Green Valley that a stay issued by the Court of Appeals in an appeal may be reviewed via an original action in the Supreme Court, because the Court seemed to say that an original action could be venued in the Supreme Court only if the order being reviewed was issued by the Court of Appeals in an original action in the Court of Appeals: an appellate court,” but the Rule also places a limit on when such an action may be brought, namely, such an action may be “prosecuted only against a judge or agency whose decisions may be reviewed as a matter of right by that appellate court.” As such, original actions in this Court are limited in that they may be filed against the Court of Appeals only when the final action of the Court of Appeals may be appealed to this Court as a matter of right. Such occurrence is rare because most decisions of the Court of Appeals are subject only to discretionary review by this Court. But, as CR 76.36(7) makes clear, original actions in the Court of Appeals are appealed to this Court as a matter of right. Thus, we conclude that an original action in this Court seeking to prohibit the proceedings in an original action in the Court of Appeals is allowed under the Rules because the final ruling in an original action in the Court of Appeals would be appealed as a matter of right to this Court.65 Green Valley sub silentio because, in Green Valley, the Court of Appeals issued the stay pursuant to CR 76.33 in an ordinary appeal, not in an original action. And the Supreme Court permitted review of the Court of Appeals order only via an original action in the Supreme Court. If original actions in the Supreme Court may be filed “only when” the Court of Appeals issues interlocutory orders pursuant to CR 76.36(4) in 17 Green Valley held was the lone procedural vehicle for review of Court of Appeals order issued under CR 76.33. Ephraim McDowell seems nonessential to the holding, especially since the Court cited Green Valley with approval rather than overruling it. In its effort to explain that such cases would be rare, the Court in Ephraim McDowell parsed 76.36(1) too narrowly. CR 76.36(1) addresses the court in which the original action must be filed, not the kind of lower court actions that can become the subject matter of an original action in the higher court. The fact that an original action seeking relief against the Court of Appeals must be filed in the Supreme Court does not limit original actions in the Supreme Court to relief from interlocutory orders issued in original actions in the Court of Appeals. Technically, the obiter dictum in Ephraim McDowell did not overrule the actual holding in Green Valley, which continues to be the binding precedent. However, the apparent conflict between the subsequent decision in Ephraim McDowell and the previous decision in Green Valley leaves the practitioner at least somewhat uncertain as to the procedure available for obtaining review by the Supreme Court of a stay pending appeal issued by the Court of Appeals pursuant to CR 76.33. Any new rule dealing with stays pending appeal should resolve this issue by prescribing a procedure for review by the Supreme Court of stays issued by the Court of Appeals. ex hypothesi both wrong and irreparably damaging.66 67 with one important difference. A stay pending appeal enjoins a judgment entered after there has been a full adjudication of the parties’ rights, whereas a preliminary injunction is issued at the outset of the litigation, often to preserve the status quo pending adjudication of the parties’ rights. Consequently, the movant need only show a substantial question on the merits for a temporary injunction if the equities weigh sufficiently in favor of the movant, whereas an appellant seeking to stay a final judgment must show a “substantial likelihood of success” on the merits of the appeal.68 Green Valley decision. Granting the Supreme Court discretion whether to grant review in the first instance avoids any concern that the Supreme Court’s docket would be deluged with appeals of interlocutory Court of Appeals orders, while preserving the ability of the Court to intervene in those few cases where a interlocutory stay by the Court of Appeals does threaten immediate irreparable consequences. Goodenough69 that section 115 of the Constitution guarantees an appeal in such cases, that holding should be reconsidered when the Court promulgates the new rules of appellate procedure. 70 Francis v. Taylor71 the real party in interest contended that only the Supreme Court may issue writs because section 110(2)(a) of the Constitution vests the supervisory power over the Court of Justice solely in the Supreme Court. The Supreme Court rejected that contention and squarely held that – by vesting in the Court of Appeals “the power ‘to issue all writs necessary in aid of its appellate jurisdiction, . . .’ and to issue all writs necessary to aid ‘the complete determination of any cause. . .’” – section 111(2) empowered the Court of Appeals to decide petitions for writs of mandamus and prohibition.72 The Court rejected the argument “that the granting of a writ of mandamus is supervisory in nature and thus falls within the aegis of the exclusive authority of the Supreme Court as provided in Sec. 110(2)(a) of the Kentucky Constitution.”73 The Supreme Court held: have only appellate jurisdiction but have the power, through the issuance of writs, to implement that jurisdiction. The Supreme Court, in addition, has the control (or supervision) of the entire Court of Justice.74 Francis makes clear that deciding petitions for writs is the exercise of appellate jurisdiction. Accordingly, the Supreme Court could provide by rule that further review is within the Supreme Court’s discretion, as with injunctive relief under CR 65.09. Sweasy,75 the Supreme Court held that the trial judge is not an indispensable party to an original action in the Court of Appeals, and the Court therefore denied a motion to dismiss an appeal to the Supreme Court despite the fact that the notice of appeal failed to name the trial judge as an appellee. The Supreme Court held that the trial judge is merely a nominal party, recognizing that original actions are “appellate proceedings” seeking interlocutory appellate relief in the underlying case pending in circuit court. The Supreme Court held: in a pending action is different from other appellate proceedings. The trial judge is a party in name only. He has no interest in the outcome of the litigation, and no connection to it other than the obligation to abide by the Court of Appeals’ decision. . . . 76 77 In Kentucky, the trial judge rarely files a response, although that occasionally occurs.78 On at least one occasion, the Supreme Court has said that the Court of Appeals “acted as a trial court” in an original action79, and in Lexington Public Library80 the Supreme Court said that “[a] petition for an extraordinary writ is a separate civil action brought pursuant to CR 81, not an interlocutory appeal from the underlying action brought pursuant to CR 73.01(2).”81 However, that passing remark was made as part of the explanation that the Supreme Court did not have a full record on appeal to assist it in deciding the appeal from the decision of the Court of Appeals granting a writ of prohibition. The Supreme Court affirmed the Court of Appeals’ decision vacating a circuit court’s order compelling discovery of information that the Court of Appeals determined was protected by the attorney-client privilege. The Supreme Court described that writ as “interlocutory intervention” in the underlying case,82 a recognition that the decision granting the writ granted interlocutory appellate relief in the underlying case in circuit court. 83 The terminology in the rule is “[o]riginal proceedings in an appellate court . . .”84 and is derived from the fact that a petition for an extraordinary writ is often referred to as invoking the appellate court’s “original jurisdiction” pursuant to the All Writs Clause. For example, the analogous Ohio rule says it 23 85 In contrast, federal Rule 21 refers to “petitioning for a writ of mandamus or prohibition”86 and an “application for an extraordinary writ”87 – a much simpler, and accurate, description of the appellate proceeding by which a litigant seeks interlocutory relief in the nature of mandamus or prohibition. Goodenough and revise CR 76.36(7) to provide that it is in the Supreme Court’s discretion whether to review decisions of the Court of Appeals granting or denying petitions for writs of mandamus and prohibition.88 The Court could also reconsider the terminology “original proceedings” in favor of the simpler wording of federal Rule 21. 89 Previously in that same case, the lawyers had filed an original action in the Court of Appeals. The Court of Appeals dismissed the action, citing Delahanty v. Commonwealth ex rel. Maze90 for the proposition that original actions seeking relief against a district judge must be 24 91 92 holding that a timely-filed petition for rehearing did not toll the time for filing a notice of appeal. The Court held that a Rule 59 motion should have been filed rather than a petition for rehearing because the appeal was in circuit court. The Supreme Court denied discretionary review. Commonwealth ex rel. Mason v. Hughes,93 the party adversely affected by the appellate decision of a circuit court filed a Rule 59 motion. When it was denied, a motion for discretionary review was filed in the Court of Appeals. The respondent moved to dismiss the discretionary review motion, arguing that a Rule 59 motion may not be filed in a circuit court sitting as an appellate court because Rule 59 is a trial court rule. The Court of Appeals saw no reason why a Rule 59 motion could not be filed when circuit court is sitting as an appellate court; “however, the time for filing the motion for discretionary review is not affected by the CR 59 motion” because CR 76.20(2)(a) “do[es] not provide that the running of time for filing a motion for discretionary review in the Court of Appeals be terminated by a CR 59 motion.”94 Mason that the timely filed Rule 59 motion did not suspend the deadline for filing the motion for discretionary review, therefore the motion for discretionary review was dismissed as untimely. Bates v. Connelly,95 the Supreme Court overruled Mason, saying: “we find this holding to be inconsistent with other recognized appellate practice and uncalled for by the language of the rules.”96 The Supreme Court interpreted the word “judgment” in CR 76.20(2)(a) to mean a “final judgment.” Holding that “a judgment subject to a CR 59 motion cannot be final until the motion has been ruled on,” the Supreme Court held that a Rule 59 motion filed in circuit court sitting as an appellate court does suspend the running of time for filing a motion for discretionary review in the Court of Appeals. Unfortunately, however, in the 17 years since Bates was decided, CR 76.20(2)(a) has not been amended to inform the practitioner what procedural vehicle to utilize to toll the time for filing a motion for discretionary review by the Court of Appeals of a circuit court judgment in a case appealed from district court. The rule continues to be silent on whether there is a procedural vehicle which tolls the running of time. Bates does not hold that a party may not file a petition for rehearing in a circuit court sitting as an appellate court, nor that a timely filed petition for rehearing does not suspend the running of time for filing a motion for discretionary review. Instead, Bates applied the doctrine of substantial compliance with appellate rules of procedure to save that otherwise timely motion for discretionary review by permitting the timely Rule 59 motion to toll the running of time for filing the discretionary motion. 27 97 Conversely, CR 59 clearly speaks to trial court proceedings in circuit court, such as a motion for a new trial. Adams that the literal wording of the rule “must be intended to except appellate opinions of the circuit court from its purview. . . . [B]ecause the (sic) CR 76.32 by its own terms does not extend to appellate opinions of the circuit court, it cannot serve to stay the time for filing a CR 76.20(2) motion for discretionary review to this Court.”98 The Court of Appeals therefore reasoned that, under Bates, the time for filing a motion with the Court of Appeals for discretionary review of an appellate decision of a circuit court can be tolled only by a Rule 59 motion. Concluding that the petition for rehearing was therefore a nullity, the Court of Appeals said “it cannot serve to stay the time for filing a CR 76.20(2) motion for discretionary review . . . .”99 Adams, it illustrates the traps for the unwary that arise from gaps in the rules applicable to appeals to circuit court from district court. Those proceedings also cause one to question the wisdom of vesting in the circuit court jurisdiction of petitions for writs against district judges. 100 And such supervisory power should be exercised only by those appellate courts. In Indiana, for example, only the Supreme Court has jurisdiction to issue 28 101 In Ohio, only the Supreme Court or Court of Appeals may issue a writ of prohibition to an inferior court.102 103 While the Constitution provides that circuit courts “shall have such appellate jurisdiction as may be provided by law”104, it is the civil rules promulgated by the Supreme Court which vest this supervisory power in circuit courts.105 The Court of Appeals has extensive experience applying the well settled precedents governing relief in the nature of mandamus and prohibition. Most circuit judges have very little, if any, experience with such proceedings. Moreover, the judges of the Court of Appeals are further removed from the district judges than are circuit judges, both institutionally and geographically. Both judicial economy and consistent application of the law favor vesting jurisdiction over petitions for such writs against district judges in the Court of Appeals. The committee promulgating the new rules of appellate procedure should consider vesting jurisdiction over writs against district judges in the Court of Appeals. 106 it would seem that the relative importance of issues presented by a motion for discretionary review would be a situation in which amicus filings could be considerably helpful to the Court. For example, in a recent case the Court of Appeals issued a stay pending a landowner’s appeal of a utility’s right to take in an eminent domain action.107 The utility filed a motion for discretionary review of the stay.108 The potential for costly delay in projects approved by the Public Service Commission resulting from such stays made the order an issue of great significance to all major utilities doing business in Kentucky. Consequently, an amicus brief signed by counsel for ten regulated utilities was tendered to the Court with a motion for leave to file it.109 It was returned, unfiled, with a clerk’s notice stating that it was an “unauthorized” filing. 110 While the utility’s motion for discretionary review obviously made the point that the issue was of industry-wide importance, the credibility of that argument would clearly have been bolstered if the amicus curiae filing had been accepted. And one can easily envision other situations in which the significance of the issues presented for review could be emphasized for the Court by permitting an amicus filing in support of a motion for discretionary review. 112 an amicus curiae brief in support of, or in opposition to, a petition for a writ of certiorari. Likewise, Ohio rules specifically authorize the filing of amicus curiae memoranda in support of, or in opposition to the Ohio Supreme Court granting review of a lower court decision, and leave of court is not required.113 Indiana’s appellate rules combine amicus filings on jurisdiction and the merits into a single rule, which requires leave of court.114 See sections 110 and 111, KY. CONST., ratified on November 4, 1975, as part of what is popularly referred to as the Judicial Article of the Constitution of Kentucky (“Judicial Article”). CR 73.02(2) (effective January 1, 1985); see also Ready v. Jamison, 705 S.W.2d 479 (Ky. 1986). Fischer v. Fischer, 348 S.W.3d 582, 591-97 (Ky. 2011) (quoting KENTUCKY APPELLATE PRACTICE § 11:5 (2006)). See, e.g., OHIO R. APP. P. 3(D). Kentucky Rules of Court, 1974 Desk Copy, p. 142 (West Publ’g Co. 1974) (copy on file in Louisville library of Frost Brown Todd LLC). Kentucky Rules of Court, 1976 Desk Copy, p. 141 (West Publ’g. Co. 1976) (copy on file in Louisville library of Frost Brown Todd LLC). The new 1976 rules changed the nomenclature to Rules of Appellate Procedure. See Kentucky Rules of Court, 1976 Desk Copy, p. 333 (West Publ’g Co. 1976). The appellate rules were incorporated into CR 76 by rules changes effective January 1, 1978. See Kentucky Rules of Court, 1978 Desk Copy, p. 159 (West Publ’g Co. 1978) (copy on file in Louisville library of Frost Brown Todd LLC). A committee chaired by Justice Lisabeth Abramson is presently drafting a new set of rules of appellate procedure, continuing a project commenced by then-Chief Judge Sara Combs. Kentucky Rules of Court, 1976 Desk Copy, p. 344 (West Publ’g Co. 1976). The statement of appeal has been replaced by the prehearing statement. See CR 76.03(4). For the convenience of the clerks and staff attorneys, the statement must identify each party and its counsel. However, defects in the prehearing statement are not jurisdictional. Crossley v. Anheuser-Busch, Inc., 747 S.W.2d 600 (Ky. 1988). Id. at 297. Id. Id. at 299. Id. at 297. See, e.g., Fed. R. App. P. 3(d)(1). City of Devondale v. Stallings, 795 S.W.2d 954 (Ky. 1990). Lassiter v. Am. Express Travel Related Serv. Co., 308 S.W.3d 714 (Ky. 2010). In Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437 (Ky. 1986), the Court held that the legislature has the authority under section 15 of the Kentucky Constitution to suspend substantive statutes for the biennium in the budget. The legislature exercises that power with provisions in the budget that say: “notwithstanding” a particular statute; hence, in Capitol jargon, suspensions of statutes are known as “notwithstandings.” The author argued the cause for Gov. Collins in that case. Blackburn v. Blackburn, 810 S.W.2d 55 (Ky. 1991). Id. Significantly, that same term the Supreme Court reaffirmed that the doctrine of strict compliance continues to govern statutory appeals. Louisville Gas & Elec. Co. v. Hardin & Meade County Prop. Owners for Co-Location, 319 S.W.3d 397 (Ky. 2010). The author argued the cause for the prevailing party in both cases. Id. (quoting Nelson County Bd. Of Educ v. Forte, 337 S.W.3d 617, 616 (Ky. 2011) (quoting City of Devondale, 795 S.W.2d at 957). Id. at 956. Id. at 957. Id. at 958. Id. Id. Id. at 958. 885 S.W.2d at 949-50 (italics in original) (quoting Manly v. Manly, 669 S.W.2d 537, 539 (Ky. 1984)); accord Beard v. Commonwealth ex rel. Shaw, 891 S.W.2d 382 (Ky. 1994). Crossley, 747 S.W.2d at 601. Id. Ready v. Jamison, 705 S.W.2d at 482. Crossley, 747 S.W.2d at 601. Ready, 705 S.W.2d at 482. See, e.g., IND. R. APP. P. 39; OHIO R. APP. P. 7A; see generally AM. BAR ASS’N, SUPERSEDING AND STAYING JUDGMENTS, A NATIONAL COMPENDIUM (2007). Bella Gardens Apartments, Ltd. v. Johnson, 642 S.W.2d 898, 900 (Ky. 1982). Id. (“The authority of an appellate court to grant intermediate relief is derived from CR 65 and CR 76.33.”). CR 76.36(4) also authorizes “intermediate relief” when an original action is pending in the Court of Appeals or the Supreme Court. Green Valley Envtl. Corp. v. Clay, 798 S.W.2d 141 (Ky. 1990). Russell County, Ky. Hosp. Dist. Health Facilities Corp. v. Ephraim McDowell Health, Inc., 152 S.W.3d 230 (Ky. 2004). Elk Horn Coal Corp. v. Cheyenne Res., Inc., 163 S.W.3d 408 (Ky. 2005). Taustine v. Fleig, 374 S.W.2d 508, 509 (Ky. 1964). (“An appeal does not stay a judgment.”). Id. at 900. Id. KY. R.C.A. 1.179 (1974). 33 Id. Id. at 144. Id. at 233 (citing Common Cause of Kentucky v. Commonwealth, 143 S.W.3d 634 (Ky. App. 2004)). Id. at 231. Id. at 233 (italics in original). Id. at 234 (italics in original). Id. at 235 (italics in original) (internal citation omitted). Id. at 235-36 (italics in original) (emphasis added) (internal citation omitted). Coleman v. PACCAR, Inc., 424 U.S. 1301, 1304 (1976) (italics in original). Coalition to Defend Affirmative Action v. Granholm, 473 F.3d 237, 244 (6th Cir. 2006) (“Our standard for reviewing a motion for a stay pending appeal is . . . [m]uch like the standard for determining whether to issue a preliminary injunction . . . .”). Ohio ex rel. Celebrezze v. Nuclear Regulatory Comm’n, 812 F.2d 288, 290 (6th Cir. 1987). Stephens v. Goodenough, 560 S.W.2d 556 (Ky. 1977); see also Gilliece v. City of Covington, 565 S.W.2d 451 (Ky. 1978). Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 808, 810-811 (Ky. 2004). 593 S.W.2d at 515 (quoting KY. CONST. §§ 110(2)(a), 111(2)). Id. Id. (emphasis added). Sweasy v. King’s Daughters Mem’l Hosp., 771 S.W.2d 812 (Ky. 1989). Id. at 817 (emphasis added). Doe v. Potter, 225 S.W.3d 395, 399 (Ky. App. 2006). Grange Mut. Ins., 151 S.W.3d at 809. Lexington Pub. Library v. Clark, 90 S.W.3d 53 (Ky. 2002). Id. at 56. Id. at 62 (quoting Southeastern United Medigroup Inc v. Hughes, 952 S.W.2d 195, 200 (Ky. 1997)). Sweasy, 771 S.W.2d at 817. Adams v. Karem, No. 2010-CA-001551-MR and No. 2010-CA-001609-MR, slip op. (Ky. App. Sept. 23, 2010). By treating the lawyers’ misnomer as controlling, the Court of Appeals deviated from the maxim that the law will “not . . . permit the formal designation or name of a motion to control the rights of the parties where the nature of the relief sought is apparent and the substantive rights of the parties may be properly determined.” Cargo Truck Leasing Co. v. Piper, 394 S.W.2d 472, 474 (Ky. 1965); accord, Griffith v. Schultz, 609 S.W.2d 125, 126 (Ky. 1980) (“However, the nature and legal effect of a pleading will be determined by its substance rather than by mere linguistic form.”). Both a motion for discretionary review and notice of appeal were filed because the circuit court had consolidated Adams’s appeal from district court with her original action in circuit court. The author was appellate counsel for Adams. 725 S.W.2d 865 (Ky. App. 1987), overruled by Bates v. Connelly, 892 S.W.2d 586 (Ky. 1995). Id. at 867. 34 Id. at 588. Ash v. Security Nat’l Ins. Co., 574 S.W.2d 346, 349 (Ky. App. 1978). Adams v. Karem, slip op. at 13. Id. KY. CONST. §§ 110, 111. IND. R. P. for Original Actions 1(a). MARK P. PAINTER & DOUGLAS R. DENNIS, OHIO APPELLATE PRACTICE § 10:48 (2007-2008 ed.) (“An action in prohibition involving any court inferior to the courts of appeals may be brought in the Supreme Court or the courts of appeals, since both have concurrent original jurisdiction in prohibition. . . . No other courts have jurisdiction in prohibition.”). KY. CONST. § 109. KY. CONST. § 112(5). See CR 76.36(1) (“Original proceedings in an appellate court may be prosecuted only against a judge or agency whose decisions may be reviewed as a matter of right by that appellate court.”). Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1063 (7th Cir. 1997) (“The vast majority of amicus curiae briefs are filed by allies of litigants and duplicate the arguments made in the litigants’ briefs, in effect merely extending the length of the litigant’s brief. Such amicus briefs should not be allowed. They are an abuse. The term ‘amicus curiae’ means friend of the court, not friend of a party.”). But that criticism is largely inapplicable to amicus filings at the discretionary review stage where the issue is whether the case is sufficiently important to merit further appellate review. Jent v. Ky. Util. Co., 2008-CA-001565, 2008-CA-001566, 2008-CA-001567 (Ky. App. May 6, 2009) (Order granting Mot. for Intermediate Relief). Ky. Util. Co. v. Jent, 2009-SC-000379-D (Ky. June 23, 2009). The utility also filed a motion for interlocutory relief pursuant to CR 76.33 and an original action pursuant to CR 76.36. The case presented the issues discussed above in the section advocating promulgation of a new rule to govern the procedure for obtaining review by the Supreme Court of stays issued by the Court of Appeals. Ky. Util. Co. v. Jent, 2009-SC-000379-D (Ky. July 8, 2009) (Motion for Leave to File Amici Curiae Brief in Support of Kentucky Utility Company’s Motion for Discretionary Review). Ky. Util. Co. v. Jent, 2009-SC-000379-D (Ky. Nov. 18, 2009) (Order Denying Discretionary Review). Jent v. Ky. Util. Co., 332 S.W.3d 102 (Ky. App. 2010); see also N. Ky. Port Auth., Inc. v. Cornett, 625 S.W.2d 104 (Ky. 1981). The author argued the cause for the utility in the Court of Appeals. SUP. CT. R. 37.2(a). OHIO S. CT. PRAC. R. 3.5 (“An amicus curiae may file a jurisdictional memorandum urging the Supreme Court to accept or decline to accept a claimed appeal of right or a discretionary appeal. Leave to file an amicus memorandum is not required.”). IND. R. APP. P. 41.
By: Sheryl G. Snyder*
*
Those who have practiced in Kentucky’s appellate courts during the last four decades have witnessed several positive developments in appellate practice, particularly the creation of the intermediate Court of Appeals
For example, the Supreme Court recently cited commentators’ criticism of a “trap for the unwary,” and overruled prior decisions requiring a cross-motion for discretionary review to preserve arguments for affirming the decision under review.
Requiring notices of appeal to name each and every appellee is an unnecessary trap for the unwary.
CR 73.03(1) contains a requirement unique to Kentucky – that a notice of appeal must name each and every appellee. The parallel federal rule does not include that requirement.
Interestingly, Kentucky did not include that requirement, either, prior to July 1, 1976. The requirement of naming each appellee was added when the rules were amended with the 2
advent of the intermediate Court of Appeals after passage of the Judicial Article. The prior rule, CR 73.03, mirrored the federal rule and required only that “[t]he notice of appeal shall specify the parties taking the appeal . . . .”
Prior to the Judicial Article, the appellate rules – denominated Rules of the Court of Appeals Relating to Practice and Procedure (Ky. R.C.A.) – were separate from the Rules of Civil Procedure.
The newly amended rule was first considered by the then-new, intermediate Court of Appeals sitting
In the consolidated companion case, the Court held the new rule would not apply until 3
January 1, 1977, to give lawyers more time to become familiar with the amendments promulgated in 1976. Presaging the advent of substantial compliance a decade later, the Court invoked “the new policy of Section 115 of the Kentucky Constitution that there shall be as a matter of right one appeal in every case.”
Unfortunately, however, the Court offered a rationale for the new rule: “In order that the court can determine who is entitled to the additional ten days to cross-appeal allowed by CR 74 . . . .”
The unfortunate
City of Devondale’s appeal and that the failure to specifically name them as appellees in the notice of appeal was therefore a jurisdictional defect.
In the final analysis,
For example, in
When Judge Wingate held the traveler’s check provision contravened section 51 of the Kentucky Constitution, the Budget Director appealed. The Treasurer’s nonactive status in the litigation gave rise to an alleged defect in the notice of appeal which almost cost the Budget Director her right to obtain appellate review of a decision declaring unconstitutional an important provision in the biennial budget.
As noted, CR 73.03(1) provides that the “notice of appeal shall specify by name all appellants and all appellees (‘et al.’ and ‘etc.’ are not proper designation of parties) . . . .” 5
Implementing that rule, Official Form 22 directs that the notice of appeal shall state “[t]he name[s] of the appellee[s] against whom this appeal is taken . . . .” The Budget Director’s notice of appeal therefore accurately stated:
The name of the Appellee against whom this appeal is taken is American Express Travel Related Services Company, Inc., the plaintiff in this proceeding.
The Commonwealth of Kentucky, Kentucky Department of Treasury, Jonathan Miller, Treasurer, was also a defendant in this proceeding, but is not a party against whom this appeal is taken.
Contending that this choice of words divested the appellate courts of jurisdiction over the Treasurer – whom American Express contended was an indispensible party to the appeal under
In a 7-0 decision, the Supreme Court reversed. As counsel for the Budget Director, I will concede that the Supreme Court was correct when it noted that “the notice contained multiple imperfections” and was not “a model pleading.” However, the Court was also correct in holding that the notice was sufficient to invoke the jurisdiction of the Court of Appeals over both the Budget Director’s appeal and the Treasurer. Reiterating its adherence to “a rule of substantial compliance in regard to notices of appeal” and holding “that the principal objective of a pleading is to give fair notice to the opposing party,” the Court held that the identification of the Department of the Treasury in both the caption and body of the notice of appeal “gave fair notice to American Express that the Budget Director was naming the Department as a party to the appeal, and thus under the
Unfortunately, however, the opinion in
Devondale
Indeed, after the decision in
In its very recent decision in
In view of these decisions, it is also worth reconsidering whether dissenting Justice Leibson was correct when he argued that
In
The City of Devondale argued that both the City of Louisville and Jefferson County had actual notice of the appeal because they were timely served copies of the notice of appeal and that the notice therefore substantially complied with CR 73.01 pursuant to CR 73.02(2), the rule of substantial compliance with appellate rules.
The Supreme Court adopted the Court of Appeals’ rationale that the City of Louisville and Jefferson County were indispensible parties to Devondale’s appeal because they were parties to a final judgment declaring Devondale’s annexation void and Devondale could not obtain a reversal of the judgment if Louisville and Jefferson County were not parties to Devondale’s appeal. Of course, all that begged the question whether the timely filed notice, served on counsel for those parties, substantially complied with CR 73.03 despite not expressly naming Louisville 8
and Jefferson County as appellees in the text of the notice.
The Supreme Court reasoned that a timely filed notice of appeal is essential to invoking the jurisdiction of the appellate court, which is why a timely notice of appeal is an exception to the rule of substantial compliance:
The plain language of CR 73 supports this view. CR 73.02(2) singles out the timely filing of a notice of appeal as being different from other rules relating to appeals and mandates that “[t]he failure . . . to file notice of appeal within the time specified in this Rule . . . shall result in a dismissal of the appeal.”
The dissent specifically disagreed with the majority’s interpretation of that portion of CR 73.02(2). Justice Leibson correctly stated that “[n]ew CR 73.02(2) specifies that the only defect in the notice of appeal which is automatically fatal to the appeal is ‘the failure of a party to file notice of appeal within the time specified.’”
Justice Leibson concluded that the decision in
As Justice Leibson carefully wrote in
Notices of appeal merely invoke the court’s jurisdiction. And the timely filing of those jurisdiction-invoking pleadings are exceptions to the doctrine of substantial compliance as a result of the policy decision made by the Supreme Court when promulgating CR 73.02(2), not because they are “jurisdictional”:
Contrary to the Court of Appeals’ opinion, filing a notice of appeal in compliance with CR 73.02 is not a matter of jurisdiction, but only of procedure. Our rule does not
To be precise, losing litigants are constitutionally vested with a right of appeal and appellate courts are constitutionally vested with jurisdiction. Strictly speaking, the notice of appeal is
Thus, in
The battle between strict compliance with the rules of appellate procedure to avoid dismissal . . . and substantial compliance . . . is now over.
The objective of the doctrine of substantial compliance is “deciding cases on the merits, and seeing to it that litigants do not needlessly suffer the loss of their constitutional right to appeal.”
Unlike the untimely notice of appeal in
timely filed – and having been served upon counsel for the parties whose names were negligently omitted from the notice of appeal by counsel for the appellants – the policy of “seeing to it that litigants do not needlessly suffer the loss of their constitutional right to appeal”
Browning
In sum, the court should simply amend CR 73.02 to reinstate the pre-1976 version of that rule – which is also the rule in federal and other state courts – by deleting the requirement that all appellees be named in the notice of appeal. That would eliminate a trap for the unwary that serves no useful substantive purpose in appellate practice and procedure. 11
The rules should expressly prescribe the procedure for obtaining review by the Supreme Court of a stay pending appeal issued by the Court of Appeals pursuant to CR 76.33.
Unlike the federal appellate rule
Otherwise, however, the Kentucky rules mention “a stay pending appeal” only in CR 75.10, the rule pertaining to the record for motions filed before the full record on appeal has been transmitted to the Clerk of the Court of Appeals. Of course, CR 76.33 authorizes “intermediate relief” when an appeal is pending, and “intermediate relief” includes a stay pending appeal.
original action pursuant to CR 76.36,
It is axiomatic that one need not supersede a judgment as a prerequisite to appealing from the judgment.
In
The Supreme Court first held that the supersedeas bond could not effect a stay of an injunction pending appeal:
[T]he provisions of CR 62.03 and CR 73.04 for effecting a stay of judgment by the execution of a supersedeas bond do not apply to a judgment granting or denying injunctive relief. . . . CR 65.08 is exclusive authority under which a stay may be had after a final judgment granting or denying injunctive relief has been appealed.53 13
The Court then explained that CR 76.33 is the rule authorizing an appellate court to stay a non-money judgment:
CR 62.04, which provides that a trial court may stay the effect of a partial judgment made final under CR 54.02, does not authorize an appellate court to do anything. The authority of an appellate court to grant intermediate relief is derived from CR 65 and CR 76.33.54
CR 76.33 was part of the new rules promulgated after passage of the Judicial Article, effective January 1, 1978. Prior to the promulgation of CR 76.33, a motion “for a stay pending appeal” was included in CR 75.10 (as it is today) and referenced in appellate Rule 1.170
In
Green Valley sought review by the Supreme Court pursuant to both CR 76.33 and CR 65.09, and also filed an original action pursuant to CR 76.36. The Supreme Court held that only CR 76.36 could be used to obtain review by the Supreme Court of the stay pending appeal issued by the Court of Appeals pursuant to CR 76.33.
First, the Supreme Court held that a stay issued pursuant to CR 76.33 is not an order granting injunctive relief that may be reviewed pursuant to CR 65.09: 14
Although the effect of the Court of Appeals’ action in granting a stay of further administrative procedures herein may have been somewhat akin to the granting of injunctive relief, this Court is without jurisdiction to grant relief pursuant to CR 65.09. The specific mandate of the rule states that such action arises only when a party is affected by an order of the Court of Appeals in a proceeding under CR 65.07, CR 65.08 or in a habeas corpus proceeding. No such injunctive relief pursuant to CR 65.07 or CR 65.08 or proceeding for a writ of habeas corpus having been so filed, movant’s motion for interlocutory relief pursuant to CR 65.09 is denied . . . .
The Supreme Court also held that the stay issued by the Court of Appeals was an interlocutory order, not a final judgment, and therefore dismissed Green Valley’s purportedly matter-of-right appeal. The Court had previously denied Green Valley’s motion for relief under CR 76.33 and therefore did not expressly decide whether CR 76.33 was also unavailable, but that would seem to be a logical extrapolation from the dismissal of the matter-of-right appeal because CR 76.33 seems to contemplate a motion filed in the court in which the appeal is pending. The literal language of CR 76.33 does not encompass Supreme Court review of a decision by the Court of Appeals to issue a stay under that rule.
Third, the Supreme Court held that it could and would review the stay issued by the Court of Appeals under the auspices of the original action filed pursuant to CR 76.36. The inevitable consequence of that holding, however, was to apply the extremely narrow standards for obtaining a writ of prohibition, rather than to decide whether the Court of Appeals had correctly applied the standards for issuing a stay pending appeal. Noting the obvious point that “the Court of Appeals was proceeding within its jurisdiction,” the Supreme Court held that “Green Valley has the burden to prove it is without an adequate remedy by way of appeal and that it will suffer great and irreparable injury without extraordinary relief.”
In addition to applying the standard for a writ of prohibition, rather than determining whether the Court of Appeals had abused its discretion, the decision that a litigant may use CR 15
76.36 to obtain review by the Supreme Court of a stay issued by the Court of Appeals makes such review a matter-of-right, in contrast to CR 65.09, which provides that in a case involving the grant or denial of injunctive relief, “[t]he decision [by the Supreme Court] whether to review such order [by the Court of Appeals] shall be discretionary with the Supreme Court.”
As noted above, the holding in
The lessor filed an original action in the Supreme Court under CR 76.36 and a motion for intermediate relief under CR 76.36(4), as well as a matter-of-right appeal under CR 76.36(7) and a motion under CR 65.09. The Supreme Court denied the motions filed under CR 76.36(4) and CR 65.09, respectively, but held that the “petition for a writ of prohibition filed under CR 76.36″ was an appropriate vehicle for review by the Supreme Court of “the
In the Supreme Court’s view, the dispositive question was “whether an original action is
The argument could be raised that because CR 76.36(7)(a) allows for a direct, matter of right appeal of decisions in original actions at the Court of Appeals to this Court, then allowing a separate original action in this Court is unnecessary or somehow contrary to the spirit of CR 76.36(7)(a). . . . While that is certainly the appropriate remedy once the Court of Appeals has finally ruled on a petition for a writ of prohibition, what could be done if the Court of Appeals 16
somehow acted outside its jurisdiction while an original action was still pending before that court? The obvious and appropriate remedy in such a case would be a writ of prohibition from this Court, but such a writ can only be obtained by an
Proceeding to the merits of the motion for intermediate relief, the Court cited
As discussed above, CR 76.36(1) allows that an original action may be brought in ”
Read literally, that portion of the opinion would overrule
original actions, then an order issued by the Court of Appeals pursuant to CR 76.33 would no longer be reviewable by the Supreme Court via an original action – which
However, the statement in
The practice in the Supreme Court of the United States is that a single Justice may decide a motion to dissolve a stay issued by a federal circuit court of appeals despite the fact that no statute comparable to 28 U.S.C. § 1253 (expressly providing for Supreme Court review on preliminary injunctions) expressly authorizes dissolution of a stay. As Justice Rehnquist wrote in the course of reviewing such a stay: 18
[A] Circuit Justice has jurisdiction to vacate a stay where it appears that the rights of the parties to a case pending in the court of appeals, which case could and very likely would be reviewed here upon final disposition in the court of appeals, may be seriously and irreparably injured by the stay, and the Circuit Justice is of the opinion that the court of appeals is demonstrably wrong in its application of accepted standards in deciding to issue the stay. A narrower rule would leave the party without any practicable remedy for an interlocutory order of a court of appeals which was
That practice should be incorporated into a new Kentucky rule.
The model is CR 65.09 which provides that further review in a case involving injunctive relief is discretionary with the Supreme Court and the standard for review is appropriately very high:
The decision whether to review such order shall be discretionary with the Supreme Court. Such a motion will be entertained only for extraordinary cause shown in the motion.
CR 65.09 is also analogous because the standards for issuing a stay pending appeal are very similar to the standards for issuing a temporary injunction,
In addition to incorporating a new rule patterned after Rule 8 of the Federal Rules of Appellate Procedure, including review by the Supreme Court patterned after CR 65.09, the committee should consider incorporating into the body of the rule the four-prong standard for issuing a stay of a nonmonetary judgment pending appeal because the caselaw in Kentucky is unclear as to the standard and that lack of clarity is exacerbated by the Supreme Court’s decision 19
that a stay issued by the Court of Appeals is reviewed under the standard for obtaining a writ of prohibition, not the standard for reviewing the issuance of an injunction. Because the likelihood of success prong for a stay pending appeal is not merely presenting a substantial question, but having a strong likelihood of success on the merits of the appeal, it would be useful to the bench and bar to spell out the test in the rule rather than promulgating the rule and announcing the test months or even years later in an opinion construing the rule.
A new rule delineating the procedure for obtaining a stay pending appeal should not only enunciate the criteria to be applied by the Court of Appeals when deciding whether to grant the stay, but should also provide that further review by the Supreme Court would be a discretionary decision by the Supreme Court, consistent with the approach reflected in CR 65.09 and the
Appeals to the Supreme Court in original actions should be discretionary rather than matter-of-right.
The Supreme Court should also reconsider CR 76.36(7), which provides for a matter-of-right appeal to the Supreme Court in original actions commenced in the Court of Appeals. While the Court held in
A petition for relief in the nature of mandamus or prohibition is actually a form of interlocutory appellate review of a decision of the trial court, similar to appellate review of an 20
interlocutory decision granting or denying injunctive relief. Indeed, the source of the appellate courts’ jurisdiction to grant writs of mandamus or prohibition is the All Writs Clause in the Constitution, which empowers the Court of Appeals to issue a writ in aid of its future appellate jurisdiction over the case from which the petition arises. And a requirement for such relief (if the trial court has jurisdiction) is that subsequent appellate review would be inadequate, justifying interlocutory appellate review.
In
In the simplest of terms, both courts
Section 115 guarantees one appeal as a matter of right “in all cases . . .” A petition for a writ is not truly a separate “case,” but is an appellate proceeding seeking interlocutory appellate relief from an order issued in a circuit court “case.” Section 115 therefore does not require the Supreme Court to hear an appeal in every “original action” commenced in the Court of Appeals. Moreover, section 110(2)(b) limits the Supreme Court’s mandatory jurisdiction to certain appeals 21
in criminal cases and expressly provides that “[i]n all other cases, criminal and civil, the Supreme Court shall exercise appellate jurisdiction as provided by its rules.” Section 110(2)(b) warrants interpreting section 115 as permitting the Supreme Court to decide in its discretion whether to review decisions by the Court of Appeals granting or denying petitions for writs, especially since
The Court recognized the reality that petitions for writs are interlocutory appellate review when it added subsection 8 to CR 76.36 in 1985, which states that the trial judge is a nominal party and that the adverse party in circuit court is the “real party in interest” in writ proceedings in the appellate courts. In
An original action in the Court of Appeals, such as this seeking a writ of mandamus or prohibition ordering a trial judge to grant or deny interlocutory relief
Recognizing this problem, in 1985 we amended the Civil Rules, CR 76.36(2) and (8), to provide that the “real party in interest” as well as the “party (judge) against whom relief is sought” can “file a response” to a petition seeking prohibition or mandamus against a trial judge. We define “real party in interest” in this Rule as “any party in the circuit court action from which the original action 22
arises who may be adversely affected by the relief sought pursuant to this Rule.” The real party in interest in the trial court is the person who will be adversely affected if the Petition is granted; he may respond and defend even though the trial judge does not. It is this party and not the trial judge who has an interest in perfecting the appeal when the writ of prohibition or mandamus is granted.
In federal appellate courts, the trial judge is prohibited from addressing the petition “unless invited or ordered to do so by the court of appeals.”
The misapprehension that the Court of Appeals is sitting as “a trial court” in “a separate civil action” arises, in part, from the terminology “original action.”
“applies only to actions . . . within the original jurisdiction of the Supreme Court under Article IV, Section 2 of the Ohio Constitution.”
In sum, the Supreme Court should overrule
Gaps in the rules applicable to appeals from district court to circuit court create traps for the unwary.
Even experienced appellate practitioners rarely handle appeals from district court. Those proceedings are more often handled by the district court practitioners who are familiar with the substantive law applicable to matters within the jurisdiction of district courts. It might therefore surprise even seasoned appellate advocates to learn that the ordinary civil rules govern much of appellate practice in circuit court, rather than the rules of appellate procedure found in CR 73 through CR 76.
For example, in a recent, unpublished decision, the Court of Appeals dismissed a matter-of-right appeal from the denial of relief in an original action in the circuit court, holding that a motion under CR 65.07 was the exclusive avenue for appealing the circuit court’s denial of relief.
filed in circuit court. The next day, counsel refiled their petition in circuit court, seeking the exact same relief they had sought in the Court of Appeals, namely, an order prohibiting the district judge from taking certain action. But since they were now in circuit court, the lawyers slightly modified the wording of the petition to refer to a restraining order, citing CR 65. When relief was denied by the circuit court, an appeal was taken as a matter-of-right pursuant to CR 76.36(7). But the Court of Appeals held that CR 65.07 was the exclusive avenue for obtaining appellate review of the circuit court’s decision, and that the time had expired for filing such a motion. The Supreme Court denied discretionary review.
In that same case, the Court of Appeals dismissed as untimely a motion for discretionary review,
These rulings demonstrate the traps for the unwary created by gaps in the civil rules resulting from the failure of the rules to expressly state how and when they apply when the appeal is in circuit court rather than the Court of Appeals. The new rules of appellate procedure being drafted by Justice Abramson’s committee could remedy these problems.
CR 72 – entitled “Appeals from district courts” – relates to matter-of-right appeals from district court to circuit court. But Rule 72 covers only the manner of perfecting such an appeal. CR 72 stops there, and is silent as to what occurs after the counterstatement of appeal is filed by the appellee. Appellate counsel must look elsewhere in the rules for guidance after that step in the appellate process. 25
Looking elsewhere is authorized by CR 73.01(1), which expressly provides that “Rules 73, 74, 75 and 76 apply to all appeals in civil actions except as otherwise provided in Rule 72 . . . .” The practitioner would assume that CR 73.01(1) was intended to subsume most, if not all, of the procedural rules set forth in CR 76. But the Court of Appeals and Supreme Court have held otherwise.
For example, in
Literally, CR 76.20(2)(a) provides that 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 Rule 77.04(2) and Criminal Rule 12.06(2)”, which are the rules pertaining to the clerk making a notation in the record of the date the judgment was served upon counsel for the parties. In contrast CR 76.20(2)(b) expressly provides that the time for filing a “motion for discretionary review by the Supreme Court of a Court of Appeals decision” is suspended by “a timely petition [for rehearing] under Rule 76.32 . . . .” Likewise, CR 73.02(1)(e) literally provides that a Rule 59 motion suspends the time for filing a notice of appeal and does not 26
mention motions for discretionary review. The Court of Appeals therefore held in
But CR 76.20(2)(a) expressly incorporates CR 77.04(2) as the trigger date, and a “judgment” is not a judgment for purposes of that rule until any timely filed Rule 59 motion is denied. Accordingly, in
Moreover,
The practitioner could easily extrapolate from CR 73.01(1) that a petition for rehearing is the appropriate procedural vehicle. After all, “a petition for rehearing is a request by a party for an appellate court to modify or set aside its own judgment in an appeal.”
However, CR 76.32(1) literally permits a petition for rehearing to be filed only as to “an opinion of the Supreme Court or Court of Appeals . . . .” The Court of Appeals therefore held in
Whether one agrees or disagrees with the Court of Appeals decision in
The Constitution vests jurisdiction to issue writs only in the Supreme Court and the Court of Appeals, expressly stating that each “shall have the power to issue all writs necessary in aid of its appellate jurisdiction . . . .”
writs of mandamus or prohibition against inferior courts.
The circuit court is correctly described in the Constitution as “a trial court of general jurisdiction . . . .”
Amicus curiae briefs in support of motions for discretionary review should be allowed.
Under a prevailing (albeit unwritten) practice, the Kentucky Supreme Court Clerk will not accept for filing motions for leave to file an amicus curiae brief in support of a motion for discretionary review. While CR 76.12(7) provides for the filing of a brief for an amicus curiae if leave of court is granted, it is a subsection of the rule for the parties’ briefs on the merits and it therefore could logically be interpreted as being limited to amicus curiae briefs on the merits of an appeal. Moreover, CR 76.20, which prescribes the procedure for motions for discretionary review, makes no reference to filings by amici in support of (or opposition to) a grant of discretionary review. 29
Not surprisingly, then, when an amicus files a motion for leave to file a brief in support of a pending motion for discretionary review, the Clerk refuses to accept the motion for leave and returns it as “an unauthorized filing.” The Supreme Court should reconsider that unwritten policy.
While friend of court briefs on the merits are increasingly criticized as “friend of friend” briefs,
Discretionary review was denied.
Fortunately for Kentucky’s public utilities, the subsequent decision on the merits by the Court of Appeals effectively overruled the stay and reestablished the rule that public projects 30
should not be delayed by dragging out eminent domain litigation.111
In the United States Supreme Court, amicus briefs in support of petitions for certiorari are a staple for Supreme Court practitioners. The amicus briefs are often written by Supreme Court advocates with considerably more experience with certiorari practice than counsel for the parties, and amicus filings are therefore deemed useful by the Justices in deciding whether or not to grant certiorari. My partners in Indiana and Ohio tell me the practice is equally frequent in those states’ Supreme Courts. One would think that the Justices of the Kentucky Supreme Court would likewise benefit by a rule that would permit filings in support of motions for discretionary review.
The rules of the U.S. Supreme Court expressly authorize
From the standpoint of drafting new rules, a stand-alone rule governing all amicus filings – both at the discretionary review stage and the merits stage – would make the most sense to practitioners, rather than adding a subsection to CR 76.20 relating to motions for discretionary review and retaining CR 76.12(7) as to briefs on the merits. The Supreme Court could repeal CR 76.12(7) and promulgate a new, separate rule applicable to amicus filings in support of motions for discretionary review and amicus briefs on the merits of appeals. Such a rule could be patterned after U.S. Supreme Court Rule 37. 31
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4 Fed. R. App. P. 3(c)(1)(A).
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10 545 S.W.2d 296 (Ky. App. 1976).
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12
Conclusion
These five issues of Kentucky appellate practice and procedure are surely not the only challenges facing Justice Abramson’s committee and the Court. They are five vexing issues that this appellate advocate has encountered over the years. Hopefully, as they write the much needed rules of appellate procedure, the committee and the Court will consider: (1) amending CR 73.02 to the pre-1976 version of that rule, eliminating the requirement of naming every appellee in the notice of appeal; (2) adopting a new rule delineating the procedure and criteria for obtaining a stay pending appeal, and providing for discretionary review of stays by the Supreme Court; (3) amending CR 76.36(7) to provide that further review by the Supreme Court in original actions is discretionary; (4) encompassing appeals from district court in the rules of appellate procedure while vesting in the Court of Appeals, rather than circuit courts, jurisdiction of original actions involving district judges; and (5) permitting amicus curiae filings in support of motions for discretionary review. 32
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19 795 S.W.2d 954.
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21 308 S.W.3d at 718.
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24 356 S.W.3d 134 (Ky. App. 2011).
25 2013 WL 646201, No. 2011-SC-000459-DG (Ky. Feb. 21, 2013).
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27 795 S.W.2d at 955.
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34 885 S.W.2d 944 (Ky. 1994).
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36 885 S.W.2d at 950 (citations omitted) (emphasis added).
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40 122 S.W.3d 585 (Ky. 2003).
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43 2013 WL 646201 at *3.
44 Fed. R. App. P. 8.
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52 642 S.W.2d at 899.
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57 798 S.W.2d at 143.
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59 152 S.W.3d 230 (Ky. 2004).
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71 593 S.W.2d 514 (Ky. 1980).
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77 Fed. R. App. P. 21(b)(4).
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84 CR 76.36(1).
85 Rules of Practice in the Ohio Supreme Court X § 1(A).
86 Fed. R. App. P. 21(a)(1).
87 Fed. R. App. P. 21(c).
88 At present, circuit courts entertain petitions seeking mandamus or prohibition against a district judge. This article argues (in the next section) that all such petitions should be filed in the Court of Appeals, not in circuit court. However, if that recommended change is not adopted, then the matter of right appeal from circuit court to the Court of Appeals would need to be considered. For the same reasons that the author favors vesting jurisdiction of petitions from district court in the Court of Appeals, matter of right appeals from circuit court decisions in original actions could remain appropriate. The better resolution of that policy question is to place the jurisdiction in the Court of Appeals.
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90 295 S.W.3d 136 (Ky. App. 2009).
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95 892 S.W.2d 586 (Ky. 1995).
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