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HON. JASON NEMES - INSIDE THE KY. SUPREME COURT

Editor: Jason Nemes. is one of the bright new stars in the Kentucky Bar. Jason has served as the Legal Counsel to Chief Justice Lambert, and later served as the head of the Administrative Office of the Courts. He is now an attorney with Dinsmore & Shohl of Louisville, Ky. .

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INSIDE THE KENTUCKY SUPREME COURT (SCOKY)

HON. JASON NEMES

AUGUST 17, 2010

After taking its customary summer recess, the Kentucky Supreme Court (sometimes referred to herein as "SCOKY") returns to Frankfort this week to conference cases and hear oral arguments. Known as courtweek, the Court will meet in the conference room adjacent to its august courtroom to consider opinions and motions for discretionary review on Monday and Tuesday, and it will hear oral arguments on the latter three days of the week.

While there will be ample time to consider the pending docket in the weeks and months to come, the beginning of the August court week is the ideal time to review the past year. To that end, I plan a series of posts this week designed to take a birds'-eye view of the Court's past 12 months. This post will present timelines and voting patterns. Later this week, I will post the 30 most important opinions from the Court's term ending June 2010.[1]

The first thing that should be noted in any review of the current Court is that it is much less predictable than the U.S. Supreme Court. While an average court-watcher can predict with reasonable success the lineup of most 5-4 opinions of the U.S. Supreme Court, that is not the case with the Kentucky Supreme Court. There are some trends that emerge, but cases are not decided according to a conservative/liberal split on Kentucky's high court.

A second notable observation about the SCOKY is that it is not ideological. After major turnover in the Court's membership in 2007 and 2008, these seven justices have served together for more than two years. And what emerges is a middle-of-the-road approach in both civil and criminal cases. Since January of 2008, there have been 37 close cases in civil law. (A close case is a decision with at least 2 dissenting justices.) Of those 37 close cases 17 have favored the Plaintiff and 20 have favored the Defendant. And in that time there have been 54 close cases in criminal law. The prosecution prevailed 29 times, the defense 25.

Timelines¯From Petition to Rendition

Approximately 20 months pass between the time the petitioner files its petition for discretionary review and the Court renders a final opinion. These 20 months can be broken down into four categories: discretionary review, merits briefing, oral argument, and the opinion.

It has taken as little as 3 months and as much as 12 months for the Court to decide whether it will review a case this past year. The average decision comes in 7 months. This is an area where the Court seems to be improving, but it is an area where more improvement is possible.

Once the decision to take the case has been made, the briefing schedule averages 5 months. By Court rule, after a petition for discretionary review has been granted, the petitioner has 60 days to file its brief, after which the respondent has 60 days to file its brief. There is an additional 15 days for the petitioner's reply brief. This briefing schedule was extended to its current state when the Court of Justice transitioned to a video record as the official record.

In cases where the Court schedules oral argument, which are still the majority that reach the Court by discretionary review, there is a 2-4 month lag between full briefing and the oral argument. This is an area where the Court has substantially improved. And after oral argument, the average time it took over the past year to render a final opinion was 6 months. This number is highly dependent on each case, however. For instance, if there is a dissenting or concurring opinion, an opinion could take twice as long (or longer) to reach the Court's rendition docket.

A Brief Word About Voting Patterns

As a general rule, the SCOKY justices do not vote in blocs. But some trends are emerging. First and foremost, Justice Abramson is the center of the Court. This is true in both civil and criminal cases. Abramson has been in the majority in close cases since she joined the Court 79 percent of the time. In civil cases, Justice Noble is a close second; in criminal cases Justice Venters is in the majority more than any other justice except Abramson.

There is one voting bloc, however, that one may accurately predict. In close criminal cases, Deputy Chief Justice Scott and Justice Cunningham are far more likely than their colleagues to vote to uphold jury convictions. On the other end of the spectrum, Noble is the most-likely justice to vote to reverse a conviction (followed by Chief Justice Minton and Justice Schroder). And this Court reverses about 8 percent more convictions than the previous Court.

A Few Other Notable Numbers

The SCOKY rendered 251 opinions in the year ending June 2010. This is significantly higher than the number of most state Supreme Courts, and it is triple the number decided by the U.S. Supreme Court. But it is down markedly from the 333 cases decided by the previous Court for the last full year it was together (July 2005-June 2006). However, this reduction is due to a variety of reasons. The Court of Appeals is not deciding as many cases (because there aren't as many appeals); Workers' Compensation law, which has been a sizeable portion of the SCOKY's docket, is increasingly settled; and the Court is granting fewer cases.

Finally, two stats only appellate advocates could love: the SCOKY denied 85 percent of the motions for discretionary review (386) and granted 15 percent (67). And a full 93 percent of the petitions for rehearing were denied¯only 4 such petitions were granted.

[1] Unlike the United States Supreme Court, whose annual term begins each October, the Kentucky Supreme Court sits in continuous session. However, like the U.S. Supreme Court, the Kentucky Supreme Court takes a summer recess¯albeit for one month rather than three. It is due to this internal scheduling decision that the best time to break one year from the next is when the Court returns in August.