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RAP 22 Prehearing procedure in the court of appeals

Baldwin's Kentucky Revised Statutes AnnotatedRules of Appellate ProcedureEffective: January 1, 2023

Baldwin's Kentucky Revised Statutes Annotated
Rules of Appellate Procedure
Article IV. Preliminary Procedure and Interlocutory Relief
Effective: January 1, 2023
Kentucky Rules of Appellate Procedure Rule 22
RAP 22 Prehearing procedure in the court of appeals
(A) Application.
(1) In all civil cases appealed to the Court of Appeals, except those specified in paragraph (A)(2), each appellant and cross-appellant shall file a prehearing statement no later than 20 days from the filing of its respective notice of appeal or cross-appeal. The prehearing statement shall be filed with the Court of Appeals.
(2) This rule does not apply to criminal cases, to orders granting or denying class action certification under CR 23.06, or to civil cases involving prisoner applications seeking relief relating to confinement or conditions of confinement, appeals of findings of contempt, appeals relating to extraordinary writs, and appeals from circuit court orders determining paternity, dependency, abuse, neglect, domestic violence, or juvenile status offense. This rule also does not apply to cases appealed to or transferred to the Supreme Court.
(B) Running of Time.
(1) The running of time for further steps in cases where this rule applies shall not begin until so ordered by the Court of Appeals except for:
(a) The filing of a notice of cross-appeal under RAP 4;
(b) The filing of a motion to transfer under RAP 17; or
(c) The filing of a prehearing statement under section (C) below.
(2) Unless otherwise ordered by the Court of Appeals, the full time for such further steps shall be computed:
(a) From the date of entry of the order stating that no prehearing conference will be held pursuant to paragraph (D)(3) of this rule, or
(b) From the date of the entry of the order reciting the actions taken and the agreements reached by the parties during a conference held pursuant to paragraph (D)(4)(c) of this rule.
(C) Prehearing Statement and Supplemental Prehearing Statement.
(1) A prehearing statement shall be submitted on a form which is available from each circuit court or from the Court of Justice website. The prehearing statement shall include the following information:
(a) The style of the case and circuit court docket number;
(b) The name, mailing address, and telephone number of each attorney whose appearance is entered in the case, together with the name and address of the party represented by the attorney who is filing the prehearing statement;
(c) The name of the judge who presided over the matter being appealed;
(d) The date on which the notice of appeal and any notice of cross-appeal was filed;
(e) A statement as to whether the matter has previously been before the Court of Appeals;
(f) The type of litigation;
(g) A brief description of the claims, defenses, and issues litigated;
(h) A brief statement of the facts, issues, and jurisdictional challenges to be raised on appeal;
(i) A statement, based on counsel's present knowledge, as to whether the appeal involves a question of first impression;
(j) A statement as to whether the determination of the appeal will turn on the interpretation or application of a particular case or statute and, if so, the name of the case or the number of the statute;
(k) A statement, based on counsel's present knowledge, as to whether there is currently pending in the Court of Appeals or the Supreme Court another case arising from substantially the same case or controversy or involving an issue which is substantially the same, similar or related to an issue in the appeal.
(l) A copy of the complaint or other initiating document, the judgment or order sought to be reviewed, and any opinion or findings of the circuit court or administrative agency.
(2) A party shall be limited on appeal to issues identified in the prehearing statement, except that upon a timely motion demonstrating good cause, the Court of Appeals may permit additional issues to be raised.
(3) A copy of each prehearing statement shall be served on all parties to the appeal. If the constitutionality of a statute is challenged by any party as an issue in the appeal, a copy of the prehearing statement or supplemental statement shall be served upon the Attorney General. If the Attorney General does not file an entry of appearance within 10 days of the filing of the prehearing statement or supplemental statement, then no further filings or briefs shall be served on the Attorney General.
(4) No later than 10 days from the filing of a prehearing statement, each appellee or cross-appellee may file with the Court of Appeals, with copies served on all parties, a supplemental statement containing any other information needed to clarify the issues on appeal and on cross-appeal.
(5) After the filing of a prehearing statement and any supplemental statements, no further steps are required until so ordered by the Court of Appeals, except the following:
(a) The filing of a notice of cross-appeal under RAP 4; or
(b) The filing of a motion to transfer under RAP 17.
(D) Prehearing Conference
(1) In all cases requiring a prehearing statement under paragraph (A)(1), any party may move for a prehearing conference at the time of filing the prehearing statement or supplemental prehearing statement.
(2) In all cases requiring a prehearing statement under paragraph (A)(1), the Court of Appeals will determine whether a prehearing conference would assist the Court or the parties. The determination shall be made by the designee of the Chief Judge of the Court of Appeals. Such designee shall be a judge of the Court of Appeals or a staff attorney of the Court known as a conference attorney.
(3) If it is decided that no prehearing conference will be held, the designee shall issue an order informing the parties. The entry of this order shall commence time running for further steps under these appellate rules.
(4) If a case is selected for a prehearing conference, the designee shall issue an order directing attorneys for all parties to attend a prehearing conference, in person or remotely, and setting the date and location for the conference.
(a) The purpose of the conference shall be to consider the possibility of settlement, the simplification of issues, the contents of the record, the time for filing the record and briefs, and any other matters which may aid in the handling or disposition of the proceedings.
(b) The prehearing conference discussions are confidential, except to the extent disclosed by the prehearing order and shall not be disclosed by the Court's designee or by the parties or counsel in briefs or argument.
(c) Following the conclusion of the prehearing conference procedure, the Court of Appeals' designee shall issue an order reciting the actions taken and the agreements reached, and that order shall govern the subsequent course of the proceedings.
(5) In the event of default by any party in any action required by a prehearing conference order, the Clerk of the Court of Appeals shall issue a notice to the party in default providing a 10-day period within which to file an affidavit showing good cause for the default and including when the required action will be taken.
(6) A judge who participates in a prehearing conference or becomes involved in settlement discussions pursuant to this rule shall not sit as a member of the panel assigned to hear the appeal.
(E) Penalties for Failure to Comply. For any failure to comply with the provisions of this rule, the Court of Appeals may assess reasonable expenses caused by the failure, including attorney's fees; assess all or a portion of the appellate costs; or dismiss the appeal.

Credits

HISTORY: Adopted eff. 1-1-23
Rules App. Proc., Rule 22, KY ST RAP Rule 22
Current with amendments received through November 15, 2023. Some rules may be more current, see credits for details.
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