Each of the 9 SCOKY Opinions labeled as not-to-be-published that the Court rendered in January contained the same Notice that has graced not-to-be-published Opinions since the Court began posting its Opinions online, i.e. “IMPORTANT NOTICE. Not To Be Published Opinion. This Opinion is designated ‘Not to be Published.’ Pursuant to the Rules of Civil Procedure Promulgated by the Kentucky Supreme Court, CR 76.28(4)(c), this opinion is not to be published and shall not be cited or used as authority in any other case in any court of this state.”

Prior to January 1, 2007, CR 76.28(4)(c) did read “[o]pinions that are not to be published shall not be cited or used as authority in any other case in any court of this state.”

Effective January 1, 2007, however, CR 76.28(4)(c) has been amended to read: “Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublised decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.” (emphasis added).

As such, it appears that the SCOKY’s “IMPORTANT NOTICE” cover sheet on its not-to-be-published opinions is out-of-date. Of course, none of the January 2007 opinions has reached finality (CR 76.30), and thus, at this point, no responsible practitioner should cite them for consideration by a court anyway. Provided CR 76.28(4)(c)’s readily fungible requirement that “there is no published opinion that would adequately address the issue” is present, however, it appears that these Opinions could be cited as persuasive authority once they become final.

In any event, SCOKYBLOG suggests that the “IMPORTANT NOTICE” cover sheets should be re-drafted to read: “The Court has designated this Opinion as ‘Not to be Published.’ In accordance with the Kentucky Rules of Civil Procedure, therefore, persons should not cite this Opinion as binding authority to any Kentucky court and may cite it for a Kentucky court’s consideration only as set forth in CR 76.28(4)(c).”