As of today, the SCOKY has rendered 106 Opinions, 20 Opinions and Orders in KBA Cases, and a handful of other Opinions and Orders to which the Supreme Court minutes do not include hyperlinks (and thus could be anything from a full-blown Opinion to a one-line “grant, vacate, and remand for reconsideration in light of [case]” Order). In any event, even if we assume that every Opinion and Order warrants the “Opinion” label, the total is no more than 140. Spread amongst the 7 Justices, that would be an average of 20 Opinions per Justice, or approximately 3 and 1/3 Opinions each per month.

During the same time frame, the Court of Appeals has rendered 704 Opinions. Spread among the 14 Court of Appeals Judges, that would be an average of just over 50 Opinions per Judge, or approximately 8 and 1/3 Opinions each per month. Of course, with the addition of the Senior Status Judges, there are really more than 14 Judges writing Opinions, so we re-ran the math and divided the 704 Opinions among 18 Judges. [We could come up with at least 5 Senior Status Judges (Paisley, Knopf, Buckingham, Henry, and Rosenblum) pretty quickly from reviewing the recent COA Minutes, and decided to divide them by 2 (because they are at least theoretically part-timers who are working 180 days a year) and then add another 1.5 Judges because (a) we figured we probably forgot about at least one Senior Status Judge, and (b) there were a smattering of “holdover” Opinions in the early months of the year from Judges who were no longer on the bench. (Justice Barber, for instance, rendered at least one Opinion a full 6 weeks after his term ended).] Even divided among 18 Judges, the 704 Opinions add up to 39 Opinions for each Judge, or an average of 6.5 Opinions each per month, i.e., approximately twice the output from the SCOKY Justices.

These statistics fall in the “food for thought” category. There could be any number of explanations for the COA’s ability to “double-up” the SCOKY in terms of productivity ranging from “the SCOKY’s Opinions are more thorough and address more issues” to “the SCOKY has to deal with all of those MDRs, which should be figured in there somewhere.” The extended page limits for briefs to the SCOKY might account for part of the difference. So, we thought we’d just toss the numbers out there and see if anyone else had any thoughts.

As of the June renditions, which chronologically speaking is the mid-point of the SCOKY’s 2007 term, the SCOKY has rendered a total of 16 Opinions in cases to which the SCOKY previously granted discretionary review. Not a huge sample size, but we decided to crunch some numbers anyway. Here’s what we came up with:

The Court has rendered Opinions in 7 criminal and 9 civil cases.

Of the “DG” Opinions rendered to date, Justice Noble has authored the most (4). Justices Minton and Schroder have each authored 3 Opinions. Justices Cunningham and Scott have authored 2 Opinions apiece. Chief Justice Lambert and Justice McAnulty have each authored 1 Opinion.

In 13 (81.25%) of the Opinions, the Court reversed the Court of Appeals in whole or in part.

In 7 (43.75%) of the cases, less than all seven of the Justices decided the case. (In one of those 7, the case was nevertheless decided by a full Court that included 2 Special Justices.) The recent COA Justices were the most likely to recuse, with Justice Minton far in the lead with 5 recusals, and Justices McAnulty and Schroder each recusing in a single case. Justice Scott also recused on one occasion.

Given the recent media attention to the number of 5-4 decisions from the United States Supreme Court in its most-recent term, perhaps the most interesting thing about the Opinions rendered to date by the SCOKY is an apparent lack of divisiveness. In 12 (75%) of the Opinions, the participating Justices unanimously joined in a single Opinion. (4 cases were 6-0 rather than 7-0 because of a single Justice’s recusal). In another 2 cases, the participating Justices’ votes were unanimous as to the result reached. Thus, in 14 of the 16 cases (or 87.5%) of them, the SCOKY reached a unanimous result. There have been no 4-3 cases to this point.

In only 3 cases (2 criminal / 1 civil) did Justices write separate concurring or dissenting Opinions. Justice Scott wrote the two dissenting opinions (both of which appeared in criminal cases). Justice McAnulty (a civil case) and Justice Cunningham (a criminal case, and one of the ones in which Justice Scott filed a dissenting opinion) each filed one concurring opinion.

Perhaps it is a good thing that there was not a great deal of dissension. Karlos Brown v. Commonwealth of Kentucky (2005-SC-0078-DG), the only case to generate more than one separate opinion (and thus the leader of the pack in terms of divergent views), is a bit of a head-scratcher. The same four Justices (Lambert, C.J., Cunningham, Minton, Noble, J.J.) joined both the Opinion of the Court by Justice Noble and the separate concurring opinion by Justice Cunningham that plainly disagrees with a portion of the lead opinion’s reasoning. The concluding sentence of Justice Cunningham’s separate concurring opinion reads: “I concur in the result of the majority opinion herein, but would vary somewhat as to its reasoning and direction.” Logically, it is difficult to imagine how a Justice could both join an Opinion and also join a concurring opinion that is critical of its analysis. Imagining how four Justices could do so is even more difficult. If a majority of the Court agreed with the Cunningham view, why wasn’t it reflected in the Opinion of the Court? Given that only 6 Justices sat in this case, and there were two dissenting votes (McAnulty, Scott, J.J.), perhaps the ultimate vote distribution was a compromise position designed to avoid an unpalatable plurality opinion and ensure that the Court’s Opinion would have precedential value.

Of course, any conclusions about the unexpectedly high level of unanimity in DG Opinions should take into account the fact that it typically takes the SCOKY longer to render Opinions in cases where the Justices disagree as to the reasoning and/or the result than it does to render Opinions in cases where everyone agrees. Cases can languish for a month or two (or considerably longer) while a Justice finishes up a dissenting opinion. And occasionally a well-written dissenting opinion will end up with a “new” majority of votes, requiring a re-write of the lead Opinion followed sometimes by another month or two waiting for the “old” lead Opinion’s author to finish his/her “new” dissenting opinion. Given the fact that much of the Court’s present membership is new to the Court, and that the Opinions they have generated may still be in the “drafting and discussion” phase, SCOKYBLOG looks to see the percentage of 5-2 and 4-3 cases increase in the future.

Back on March 26, 2007, SCOKYBLOG had this to say after viewing the Oral Argument in Dunn v. Felty (2005-SC-0295-DG):

SCOKYBLOG sees this one as an affirmance of the Court of Appeals. Our best guess is 5-2, with Justices Scott and Cunningham as the most-likely dissenters, and Justtice Noble as the most likely author of the majority Opinion.

Chalk another one up in the “correct prediction” column for SCOKYBLOG. The June renditions included a well-written-and-analyzed, unanimous Opinion of the Court by Justice McAnulty affirming the Court of Appeals and holding that Mr. Dunn had blown his statute of limitations.

Between now and the August renditions, SCOKYBLOG’s predictors will endeavor to get their hands on as many Oral Argument videotapes as possible and will go on record with additional predictions.

After musing over our incorrect prediction that Justice Noble would author the Court’s Opinion in Dunn v. Felty, SCOKYBLOG believes it appropriate to make as many excuses for that oversight as possible. So, to begin with, it’s exceedingly difficult to predict who will author an Opinion. Many times, a prediction about the Court’s overall result is little more than a blind guess, and predictions about individual justices’ leanings are even more suspect. (For example, from Oral Argument, it certainly looked as if Justices Cunningham and Scott might be willing to reverse the COA in Dunn v. Felty. The Opinion rendered, however, is unanimous. Maybe their initial views changed as a result of the Oral Argument. Maybe they initialy voted to dissent, but were persuaded by Justice McAnulty’s draft Opinion and decided to join instead. Maybe they were always of the view that the SCOKY should affirm the COA, but wanted to make the Appellee’s counsel work at little at Oral Argument. You never can tell.).

Of course, even if the coin lands on the right side and we correctly predict the Court’s result, and furthermore correctly assume that a given Justice is part of that numerical majority, trying to predict the ultimate author is a crap-shoot. Most of the time, our prediction boils down to “well, it’s probably going that way, and Justice X seemed to be leaning that direction and was the most vocal.” There are a number of other variables, however, that make such a prediction hazardous. Normally, the Chief Justice (who makes all case assignments in Oral Argument cases regardless of whether he is in the majority after the post-Oral Argument straw vote) makes an effort to distribute the case-load as evenly as possible. In other words, if there are 9 cases orally argued in a month, most Justices will probably end up with one assignment and a couple will end up with two. (A particularly clever Justice who found himself or herself without a case assignment as of the 11:00 a.m. Oral Argument on Friday morning could “duck” an assignment that month if he or she cast his or her “straw vote” contrary to the Court’s majority.) Much of the time, one or more Justices will volunteer to write the opinion (sometimes in an effort to avoid a real “stinker” of a case coming up later in the week), and the Chief Justice ends up assigning most of the cases (probably 75-85%) to a volunteer. (The remaining cases, which involve a disproportionate amount of “billboard law” and other mind-numbing issues, typically end up getting assigned to a particularly congenial Justice who is willing to “take one for the team,” or perhaps to a Justice who foolishly makes eye contact with the Chief at the wrong time.) So, to get back to the point regarding the difficulty of predicting the author of an Opinion, even if Justice X would be a good fit for a particular opinion, e.g., part of the straw-vote majority and interested enough in the issues in the case to consider volunteering, he or she may have his or her eye on another case for one reason or another. Sometimes, the Justice knows there’s a case later in the day or later in the week in which he or she led the fight for granting discretionary review or a case that would allow the Court to address one of his or her “pet issues.” There’s a real science to knowing when to say “I’d like to take a stab at writing that one, Chief.” If you do so on a case that you’re only lukewarm about, you might miss out on a case that really fascinates you. But, if you wait for the case that fascinates you, and end up in a dissenting position, you might end up saddled with some awful case involving the UCC or coal leases or the like.

So, we’ll continue to make authorship predictions when we feel moved to do so, but those predictions should be taken with a nano-grain of salt.

Since January, the Court has rendered just shy of 50 Opinions in matter-of-right criminal cases, which should be a sufficient sample size to run a few numbers.

In the 49 rendered Opinions, the SCOKY has:

Affirmed the underlying judgment in 81.6% (40) of the Opinions

Affirmed the underlying judgment unanimously (as to result) in 73.5 % (36) of the Opinions.

Flat-reversed or reversed-and-remanded the entire case in 12.2% (6) of the Opinions.

Partially reversed the judgment in another 6.12% (3) cases).

Justices have dissented from the result (either with or without separate opinion) in 9 of the 49 Opinions. Justice Scott has been the most frequent dissenter in these cases, and has written or joined 4 dissenting opinions (all in cases where the majority of the Court voted to reversed the judgment below). Dissenting from 3 Opinions have been Justices Cunningham (1 from an “affirm” Opinion, 2 from “reverse” Opinions), Minton (1/2), Noble (2/1), and Schroder (3/0). Justice McAnulty has dissented from 2 Opinions (1/0/1). Chief Justice Lambert has not dissented from any of the 49 Opinions in the matter-of-right criminal cases.

For what it’s worth, the Court affirmed unanimously with respect to the other 3 Opinions rendered in matter-of-right appeals (all appeals from denials of writs by the Court of Appeals),

What, if anything, these statistics mean is anyone’s guess. SCOKYBLOG will endeavor to keep track and update these statistics after the August Renditions and again at the end of the year.

After correctly predicting the results in Commonwealth v. York and in the Autry v. WKU cases, SCOKYBLOG stubbed its toe on Clark v. Commonwealth. Although hedging its bets as much as possible, SCOKYBLOG ultimately predicted a split decision affirming the conviction. The Court however, ultimately rendered a split decision reversing the conviction (in part upon an issue that SCOKYBLOG didn’t give a snowball’s chance in hell of securing a reversal). Although its collective head had swelled with the 2-for-2 start, SCOKYBLOG never realistically anticipated that it would run the table. Oral arguments are just the starting point of the Court’s deliberation process, and, as it turned out, the record in this case turned out not to permit the Court to review the issue that occupied most of the Oral Argument. SCOKYBLOG has a couple of videos to review, and will get a couple more predictions up before the June rendition date. Hopefully, we can make it to the July break still above .500.

Now that the Court is one-third of the way through its 2007 term and has rendered four (4) months’ worth of Opinions, SCOKYBLOG has pulled out its “Rosetta Stone” and prepared an up-to-date scorecard of our best guess as to the authorship of the Opinions rendered thus far.

Excluding the eighteen (18) Opinions rendered in Workers’ Compensation cases, which SCOKYBLOG believes were primarily authored by one or more SCOKY staff attorneys rather than coming from any individual Justice’s chambers, there have been a total of forty-nine (49) Opinions rendered since January. Only sixteen (16) of those Opinions identify their authors, and thus there have been thirty-three (33) unsigned opinions authored by one of the Justices.

SCOKYBLOG freely admits that determining (some might call it “guessing”) which Justices wrote which not-to-be-published Memorandum Opinions of the Court is a considerably-less-than-scientific process. In fact, if we’re correct even two-thirds of the time, we’d be ecstatic. It’s a little bit like fingerprint identification in that we know that certain Justices are fairly consistent in their use of certain formatting (indenting, footnoted citations, etc.) that we can usually make a reasonably educated guess about which of them wrote a particular Opinion. It’s the “fairly” part of being “fairly consistent” that makes it maddening. Occasionally, especially in short Opinions, the “points of comparison” are few, and our guess is less “reasonably educated” than in other situations. In large part, the whole identification process rests on the assumption that Justices’ writing styles are generally consistent from published to unpublished cases. Sometimes, that’s just not the case. Justices’ writing styles evolve. Different law clerks may have done the drafting, and they may have their own quirks that make perfect identifications difficult. In the end, however, SCOKYBLOG made the decision that – since this exercise is really just for fun anyway – we’d make our best guess unless we were totally at a loss, which was the case only as to Giancola v. Commonwealth (#55) (most likely either Justice McAnulty or Justice Schroder, but so much of a hodge-podge of both that to pick either would be a totally blind guess)

So, with that extensive disclaimer, here are our calculations of the Justices’ Opinion-output statistics through the April Court Conference Week. The number in parentheses after each case is the number assigned to it by the SCOKY’s Clerk’s Office that appears on the Minutes.

Justice Cunningham

Although SCOKYBLOG believes it highly likely that we’ve given some other Justice credit for one or more of Justice Cunningham’s Opinions, which leave the least-identifiable fingerprint, our statistics show him with the 1 to-be-published Opinion that bears his name, 1 other Memorandum Opinion, and 1 Separate Opinion, for a total of 4 Opinions:

Stone v. Commonwealth (#33) (identified)

Gadd v. Commonwealth (#37)

Separate Opinion in Williams v. Commonwealth (#49)

Cook v. Commonwealth (#59)

Chief Justice Lambert

SCOKYBLOG’s statistics credit El Jefe with 4 to-be-published Opinions that identify him as the author and 5 Memorandum Opinions, for a total of 9 Opinions:

Geary v. Commonwealth (#18)

Wallace v. Commonwealth (#22)

Brooks v. Commonwealth (#30) (identified)

Heard v. Commonwealth (#31) (identified)

Monk v. Commonwealth (#35)

Hammond v. Foellger (#38)

Wyatt v. Commonwealth (#51) (identified)

Holt v. Commonwealth (#52) (identified)

Walker v. Judicial Conduct Commission (#53)

Justice McAnulty

SCOKYBLOG is still training its collective eye to spot Justice McAnulty’s work, so our confidence is less than high that our numbers are on target. Our statistics credit Justice McAnulty with the 1 published Opinion identifying him as its author, 4 Memorandum Opinions, and 2 Separate Opinions, for a total of 7 Opinions:

Warren v. Commonwealth (#20)

Bridgewater v. Commonwealth (#34)

Separate Opinion in Monk v. Commonwealth (#35)

Separate Opinion in Buckman v. Commonwealth (#45)

Williams v. Commonwealth (#49) (identified)

Gaines v. Commonwealth (#54)

Bowling v. Commonwealth (#66)

Justice Minton

SCOKYBLOG credits Justice Minton with the 2 to-be-published Opinions bearing his name and 9 Memorandum Opinions (a number that seems a bit high, although Justice Minton has one of the more distinctive styles), for a total of 11 Opinions.

Cumberland Valley Contractors, Inc. v. Bell County Coal Corporation (#2) (identified)

Trowell v. Commonwealth (#4)

Turley v. Commonwealth (#7)

Schmidt v. Leppert (#12) (identified)

Simeon v. Commonwealth (#17)

Litton v. Commonwealth (#19)

Martin County Coal Corp. v. Sparks (#28)

Morman v. Commonwealth (#29)

Hudson v. Commonwealth (#39)

Minton v. Commonwealth (#58)

Farris v. Commonwealth (#60)

Justice Noble

SCOKYBLOG credits Justice Noble with the 2 published Opinions bearing her name and 4 Memorandum Opinions, for a total of 6 Opinions:

Patterson v. Commonwealth (#21)

Buckman v. Commonwealth (#45)

Woodard v. Commonwealth / Franklin v. Commonwealth (#47) (identified)

Autry v. WKU / WKU Student Life Foundation v. Autry (#50) (identified)

Brock v. Commonwealth (#57)

Penley v. Commonwealth (#67)

Justice Schroder

With an confessed low degree of confidence in their accuracy in pinpointing Justice Schroder’s work, SCOKYBLOG credits Justice Schroder with the 2 published Opinions bearing his name, 3 Memorandum Opinions, and 2 Separate Opinions, for a total of 7 Opinions:

Separate Opinion in Ross v. Threave Main Stud (#9)

Hinkle v. Commonwealth (#11)

Separate Opinion in Geary v. Commonwealth (#18)

Daniels v. Commonwealth (#23)

Reece v. Nationwide Mutual Insurance Co. (#32) (identified)

Commonwealth v. Perry (#46) (identified)

Toll v. Commonwealth (#56)

Justice Scott

SCOKYBLOG credits Justice Scott with the 4 published Opinions bearing his name, 5 Memorandum Opinions, and 1 Separate Opinion, for a total of 10 Opinions:

Cain v. Abramson (#1) (identified)

Stratton v. Commonwealth (#3)

Morningstar v. Commonwealth (#5)

Raney v. Commonwealth (#6)

Commonwealth v. McKenzie (#14) (identified)

Commonwealth v. York (#15) (identified)

Goins v. Commonwealth (#24)

Hill v. Commonwealth (#36)

Fields v. Commonwealth (#48) (identified)

Separate Opinion in Holt v. Commonwealth (#52)

Even setting aside the potential problems with the statistics themselves, what they mean is anyone’s guess. Even if Justice Minton (11), Justice Scott (10), and Chief Justice Lambert (9) are actually the “top three” in terms of Opinions rendered at this point, that would not necessarily mean that they are the workhorses of the Court. Other Justices may have produced as many or even more draft Opinions by this point, but still be waiting on concurring or dissenting Opinions before the Court can officially render those Opinions.

Although slightly “off-mission” from SCOKYBLOG’s usual focus on the present Justices, occasionally my mind wanders a bit, and a week or so ago it ended up somewhere interesting enough to share.

I recognize that it is entirely possible that this only happens to me, but, from to time when researching one issue or another, I’ll run across a citation to a case (typicaly one that was otherwise memorable to me for one reason or another) where the SCOKY reversed and remanded for a new trial, and I’ll wonder what happened at the retrial. Usually, the jury’s verdict at the retrial is not substantially different from the first go-round, so I can find out from the subsequent appeal. Occasionally, however, I have to dig a little deeper.

A week or so ago, on a lazy Friday afternoon, my mind wandered to Melissa Holland’s case.

The SCOKY rendered the Opinion in Melissa Phillips Holland v. Commonwealth (this takes a while to load, but it’s worth the time) in September 2003. This one is memorable to me for a number of reasons, largely because it was a factual intriguing case, but also because I have a friend in the Lexington legal criminal defense bar who refers to it as her favorite opinion ever and mentions it to me from time to time. Like many of the cases that find their way to the SCOKY, this one involved a tragic shooting that left one of Ms. Holland’s victim’s paralyzed for life. It was the factual circumstances leading up to the shooting, e.g., a love triangle, alleged physical abuse of the defendant by one of the victims, a handgun purchased by the defendant while she was wearing a hospital gown and in the midst of a day-or-so-long prescription- painkiller-induced fugue-like state, etc., that made this case memorable.

In 1998, a Hardin Circuit Court jury found Ms. Holland guilty of two counts two counts of Attempted Murder and one count of First-Degree Burglary and the trial judge ultimately sentenced Ms. Holland to the aggregate forty-year prison sentence recommended by the jury. On appeal, in August 2000 the SCOKY initially rendered an Opinion affirming the Hardin Circuit Court Judgment. Subsequently, however, Ms. Holland filed a Petition for Rehearing, which the SCOKY first held in abeyance pending the Court’s resolution of another case involving a similar issue concerning extreme emotional disturbance (EED) and then granted and directed the parties to submit supplemental briefs. Ultimately, in September 2003, the Court rendered an Opinion reversing the Judgment of the Hardin Circuit Court and remanding the case for a new trial because of errors in the trial court’s instructions.

My first thought was to search the Kentucky Court of Justice website for a pending or (in case I missed it) a rendered Opinion from the judgment following the retrial. I found footprints from some interlocutory appellate / extraordinary relief litigation, but no post-judgment appeal.

Fortunately, the Fourth Estate is alive and well in Hardin County, and The News Enterprise has an excellent online archive. As a result, I was able to track the proceedings upon remand up through the ultimate verdict in a series of articles written by reporter Rebecca Johns. Links to each of the articles are provided below, grouped loosely by topic:

Supreme Court Decision:

Retrial Ordered In 1996 Love Triangle Shootings

New Trial Doesn’t Rest Well With One Victim

Post-Remand Pre-Trial Proceedings in Trial Court:

Holland Retrial Can Proceed: Judge Finds Woman Competent For Retrial For Double Attempted Murder

Retrial Weighs Heavy On One Victim

More Twists Surround Holland Case

Holland Retrial Delayed Again

Judge Questions Holland’s Competence After Courtroom Outburst

High Profile Cases Pack Circuit Court Tuesday

Holland’s Attempted Murder Charges Could Be Dropped

Holland Refuses To Attend Pretrial Hearing

The Retrial:

Holland Jury To Be Chosen Today

Holland Questions Potential Jurors

Prosecutor Says Jealous Rage Made Holland Shoot

Holland Says She Has Counsel Woes Again

Danny Darnall Takes The Stand

Suspect, Victim Spar On Stand

Victim Describes Night Of Shooting

Doctors: Holland Suffers From Disorder

Holland Denied Bid For Mistrial

Holland Takes The Stand

Holland Guilty, But Could Go Free

(I love the part of this article that reports about Ms. Holland’s efforts to have a portion of the SCOKY’s Opinion quoted verbatim in the jury’s instructions. Apparently, some appellant litigants do hang on every word in these Opinions.)

Holland Could Be Free By Tuesday

Post-Retrial Proceedings:

Juror In 98 Trial Disagrees With Outcome

Holland’s Parents To Take Her To N.C.

Holland Denied Bid For New Trial

Ultimately, therefore, the second jury found Ms. Holland guilty only of the lesser-included offenses (Assault Under Extreme Emotional Disturbance) and sentenced her to a sentence for which she had already satisfied the minimum expiration date. In light of the fact that Ms. Holland’s entitlement to EED instructions was one of the critical issues in her original direct appeal, it appears that the SCOKY correctly concluded that those instructions could have made a significant difference. I can only assume that Ms. Holland ultimately decided not to pursue a post-Judgment appeal.

The SCOKY Clerk’s Office has utilized a new notice on the not-to-be-published Opinions rendered in February. The new notice acknowledges the January 2007 change to CR 76.28(4)(c).

Upon further review, it appears that the SCOKY Clerk’s Office utilized these same new notices earlier this month upon finality of the January not-to-be-published Opinions (to which, as SCOKYBLOG has previously reported, anachronistic, pre-rule-change notices had originally been attached).

After a brief interruption of active blogging as a result of an office move and a healthy amount of associated chaos, SCOKYBLOG’s editors are back on the job.

This afternoon’s topic is speculation as to the actual authorship of January’s unsigned, Not-to-be-Published, matter-of-right criminal appeals.

Although it’s conceivable that former Justices Graves and Wintersheimer, who occupied their seats during the December writing period, actually authored some of the matter-of-right criminal appeals rendered this month (and, in the case of former Justice Wintershimer, perhaps even likely given his demonstration, year after year for more than two decades, that he was the “workhorse” of Kentucky’s appellate courts), SCOKYBLOG’s editors had to start somewhere in this analyis, and they started with the premises that: (1) each of the January Opinions was more than likely authored by a current Justice; and (2) Justices Schroder and Cunningham did not author any of the January opinions. (Neither Justice’s term actually began until January, and “cutoff day” for the circulation of draft opinions would have been on or about January 5, 2007.)

That leaves five Justices (Chief Justice Lambert and Justices McAnulty, Minton, Noble, and Scott) as possible authors. Because Justice Noble did not take her seat until after the Secretary of State certified the results of the November 2006 election to fill the unexpired term of former Justice James E. Keller, and did not sign any December 2006 or January 2007 Opinions (Majority or Separate), SCOKYBLOG cannot make any definitive pronouncements about her writing style (e.g. footnoted citations or textual citations, indenting and subheading conventions, etc.). As to the other four Justices, writing-style preferences are ascertainable at least to some degree. Accordingly, SCOKYBLOG’s editors believe that:

Justice McAnulty authored the Opinions in Stratton v. Commonwealth and Morningstar v. Commonwealth.

Justice Minton authored the Opinions in Trowell v. Commonwealth and Turley v. Commonwealth.

The Opinion in Raney v. Commonwealth has characteristics similar to Justice Scott’s writing style, but there are some significant differences. SCOKYBLOG will withold judgment, but suspects that Justice Noble may have drafted this one.

The Opinion in Hinkle v. Commonwealth appears to challenge Premise #1, and SCOKYBLOG believes it was most likely drafted by Justice Graves prior to his leaving the bench.

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).”