§ CR 76.20 Motion for discretionary review

CR 76.20 Motion for discretionary review

(1) General.

A motion for discretionary review by the Supreme Court of a decision of the Court of Appeals, and a motion for such review by the Court of Appeals of a judgment of the circuit court in a case appealed to it from the district court, shall be prosecuted as provided by this Rule 76.20 and in accordance with the Rules generally applicable to other motions. Such review is a matter of judicial discretion and will be granted only when there are special reasons for it.

(2) Time for Motion.

(a) 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).

(b) A motion for discretionary review by the Supreme Court of a Court of Appeals decision shall be filed within 30 days after the date of the order or opinion sought to be reviewed unless (i) a timely petition under Rule 76.32 or (ii) a timely motion for reconsideration under Rule 76.38(2) has been filed or an extension of time has been granted for that purpose, in which event a motion for discretionary review shall be filed within 30 days after the date of the order denying the petition or motion for reconsideration or, if it was granted, within 30 days after the date of the opinion or order finally disposing of the case in the Court of Appeals.

(c) The failure of a party to file a Motion for Discretionary Review within the time specified in this Rule, or as extended by a previous order, shall result in a dismissal of the Motion for Discretionary Review.

(3) The Motion.

The motion shall designate the parties as Movant(s) and Respondent(s), shall not exceed fifteen (15) pages in length, unless otherwise authorized by the Court, and shall contain the following:

(a) The name of each movant and each respondent and the names and addresses of their counsel,

(b) The date of entry of the judgment sought to be reviewed, or the date of final disposition by the Court of Appeals, as the case may be,

(d) A clear and concise statement of (i) the material facts, (ii) the questions of law involved, and (iii) the specific reason or reasons why the judgment should be reviewed; and

(e) If the motion is addressed to the Supreme Court, a statement that the movant does not have a petition for rehearing or motion for reconsideration pending in the Court of Appeals,

(f) A statement showing whether any other party to the proceeding has a petition for rehearing or motion for reconsideration pending in the Court of Appeals.

(4) Record on Motion.

There shall be filed with each motion photocopies of the final order or judgment, any findings of fact, conclusions of law and opinion of the trial court, and any opinion or final order of the appellate court, including any decision on any petition for rehearing or motion for reconsideration. In administrative agency cases, copies of the findings of fact, conclusions of law and award or order of the administrative agency shall be filed. No other record on the motion shall be required unless the court to which the motion is addressed so orders.

(5) Response to Motion.

Each respondent may file a response to the motion within 30 days after the motion is filed. Said response shall not exceed fifteen (15) pages in length, unless otherwise authorized by the Court. No reply to a response shall be filed unless requested by the Court.

(6) Form, Signing, and Number of Copies Required.

The motion and the response shall be either printed or reproduced by an acceptable duplicating process, and shall be signed by each party or his counsel in his individual name, which signature shall constitute a certification that the statements of fact therein are true. Ten copies shall be filed for a motion in the Supreme Court, and five in the Court of Appeals.

(7) Service of Motion and Response.

Before filing, the motion and the response shall be served on the other parties and on the clerk of the court whose decision is sought to be reviewed, and such service shall be shown as provided in Rules 5.02 and 5.03.

(8) Submission.

The motion shall be submitted to the court for consideration when the response is filed or when the time for filing such response has expired, whichever is sooner.

(9) Disposition of Motion.

(a) If the motion is denied the decision shall stand affirmed, and if a supersedeas bond has been executed, damages for delay shall be recoverable pursuant to KRS Chapter 26A. The denial of a motion for discretionary review does not indicate approval of the opinion or order sought to be reviewed and shall not be cited as connoting such approval.

(b) If the motion is in the Supreme Court and is granted, the times prescribed in Rule 76.12(2) for the filing of briefs shall be computed from the date of the entry of the order granting the motion, the movant being regarded as the appellant and the respondent as the appellee.

(c) If the motion is in the Court of Appeals and is granted, the appeal shall be perfected in the same time and manner as if it were an appeal as a matter of right, unless otherwise directed by the court. Evidence designated under Rule 75.01 must be transcribed. The time prescribed by Rule 73.08 for preparation and certification of the record, and by Rule 75.01 for designation of the evidence or other proceedings requiring transcription, shall be computed from the date of the order granting the motion.

(d) A motion for discretionary review in the Supreme Court will not be ruled upon during the pendency of a petition for rehearing or motion for reconsideration in the Court of Appeals. If a party files a timely petition for rehearing or motion for reconsideration in the Court of Appeals after another party has filed a motion for discretionary review in the Supreme Court, the clerk shall withhold submission of the latter pending final disposition of the case in the Court of Appeals.

(e) A ruling by the Court of Appeals granting or denying a motion for discretionary review will not be reconsidered by the Court of Appeals. A ruling by the Supreme Court granting or denying a motion for discretionary review will not be reconsidered by the Supreme Court. A motion for reconsideration, however styled, shall not be accepted for filing by the clerk of the Supreme Court or Court of Appeals.

(f) Copies of the order shall be sent forthwith by the clerk of the appellate court to counsel for each party and to the clerk of the court whose decision is sought to be reviewed.

(10) Costs.

Payment of the filing fee specified in Rule 76.42(2)(a) shall be required with the motion.