In 1985, the Kentucky Court of Appeals was struggling with a backlog of an estimated 1,000 appeals. In response, the Kentucky Supreme Court established the expedited appeals process. (1) The overall goals of this new process were:
(1) to continue to provide full appellate review for all cases which came
to the Court; (2) to resolve cases in as short a time frame as possible
without any sacrifice in the quality of review or fairness to the parties
involved; (3) to promote a decrease in the amount of time to be spent by
the attorneys in preparing their appeals and a commensurate decrease in
costs to the litigants; and (4) to dispose of the growing backlog, which
was assuming alarming proportions. (2)
The new program gave expedited treatment to appeals that involved relatively simple issues, did not require extensive transcription of the record, and were previously briefed in the court below. The special appeal procedure, outlined in Kentucky Civil Rule 76.05, (3) called for abbreviated pleadings and oral arguments before a special panel of judges.
However, effective February 1, 2001, the Kentucky Supreme Court repealed Civil Rule 76.05 in its entirety. (4) And, for the first time in recent memory, the backlog that was such a concern in the late eighties and early nineties was suddenly non-existent.
This Article will explore the original procedure set out by Civil Rule 76.05, and compare it to the method used now to advance appeals in Kentucky. This information will be useful in case the backlog ever returns and for comparison to other states.
II. CASE SELECTION UNDER FORMER CIVIL RULE 76.05
Civil Rule 76.03 requires a preheating statement to be filed in every civil case within twenty days of filing a notice of appeal. (5) Although nothing in Civil Rule 76.03 or Civil Rule 76.05 authorized requests for special appeals, the rules did not specifically prohibit a party from asking for a special appeal. Regardless of any request, the court granted expedited appeals after reviewing the prehearing statement. The staff reviewed the nature of the appeal to determine if it involved single or non-complex issues that could be resolved quickly without further briefing or record additions. Until 1986, the designation of a special appeal often occurred at the preheating conference as a suggestion of the presiding judge or conference attorney or by agreement of the parties. (6) Thereafter, special appeals were designated by court of appeals staff after undergoing a screening process.
In 1991 and 1992, only ten percent of all appeals were submitted through the special appeals procedure. (7) Certain types of cases were deemed most appropriate for the expedited procedures. These included cases from the circuit courts that had been resolved on Rule 12 dismissals or Rule 56 summary judgments. Also appropriate were cases appealed to the circuit courts from administrative agencies. Those cases usually had been briefed and argued extensively in the administrative bodies from which they originated and before the circuit courts. Finally, certain domestic relations cases that already had transcribed records or were tried by deposition were candidates for expedited review. Expedited review was not appropriate for "jury trials, bench trials, custody hearings, or any other case in which untranscribed evidence [wa]s a factor." (8) In addition, criminal cases were not included in this program because there was no document similar to a preheating statement required in the criminal system. (9)
III. ORDER AND RECORD
The order designating the case as a special appeal provided procedural directions and required all counsel within twenty days to file with the court:
(i) A concise position statement of no more than three (3) pages in length
setting forth the position and contentions of the party and including
citations of authority in regard to the issues set forth in the preheating
(ii) Any prehearing document (either the prehearing statement or the
optional supplemental preheating statement, whichever pertain[ed]) filed by
the party pursuant to CR 76. …