In a 2013 decision arising out of a probation revocation, the Kentucky Supreme Court, in an opinion by Justice Venters, commented on the fact that both parties had cited unpublished opinions that did not appear to meet the criteria of CR 76.28(4)(c). The Court stated that “as a general rule” the Court is not “greatly influenced by unpublished” appellate decisions. See Com. v. Wright, 415 S.W.3d 606 (Ky. 2013). The Court then analyzed the unpublished cases and concluded that the citations “were not helpful to the Court and were not consistent with the limitations provided in CR 76.28(4)(c).”
It was only in 2007 that the Rule was amended to permit citation of unpublished decisions. The conditions for citation of an unpublished decision under the Rule and related case law are as follows:
1. The decision was rendered by a Kentucky appellate court after January 1, 2003, and is final;
2. There is no published authority that adequately addresses the issue before the court;
3. A copy of the decision should be tendered to the court and to all other parties; and
4. The decision should be not be cited as “binding precedent,” but should rather be offered “for consideration by the court.”
The Court’s discussion of the issue in Wright should serve as a caution to those considering whether to cite an unpublished opinion to a Kentucky court. Only when published authority does not “adequately address the issue before the court” should a final unpublished opinion be cited for the court’s consideration, and only then if it was rendered after January 1, 2003. Finally, it should not be presented as if it were binding precedent.
Note: The foregoing post includes commentary reprinted from the forthcoming 2014 supplement to 7 Phillips & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2014 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-litigation-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.
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