appellate practice reminders
Appellate Practice Reminders From the Appellate Court Clerk’s Office
Snow White’s Second Bite at the Apple – PFRs/Summary PFRs (Supreme Court Rules 8.03 & 8.03A) Petition for Review. Any party aggrieved by a Court of Appeals decision can attempt to get a second bite at the apple by petitioning the Supreme Court for review under K.S.A. 20‑3018(b) and Rule 8.03. See K.S.A. 60‑2101(b) (providing Supreme Court with jurisdiction to review Court of Appeals decisions). However, the granting of review is discretionary, “not a matter of right”, and the vote of three justices is required to grant the petition. Rule 8.03(g)(2). Structurally, the petition cannot exceed 15 pages, exclusive of the appendix, cover, certificate of service, and table of contents. Don’t forget to attach a copy of the Court of Appeals’ decision to your petition. Otherwise, a petition is structurally similar to a regular brief. The petition must be filed within 30 days after the Court of Appeals decision is filed. This 30-day period is JURISDICTIONAL. That means the Supreme Court does not have jurisdiction to hear any Petition for Review filed after the 30 days expires. Obviously, the jurisdictional lines have been blurred a bit because of COVID-19, but it’s always a good idea to timely file PFRs. Last, the time for ruling on a petition is entirely within the Supreme Court’s discretion. Remember that the statement of the issues in a petition for review, cross-petition, or conditional crosspetition should not merely repeat the issues raised in the Court of Appeals brief; rather, the issues must be tailored to address why review is warranted. The Court will not consider issues not raised before the Court of Appeals or issues not presented or fairly included in the petition for review, cross-petition, or conditional cross-petition. Rule 8.03(b)(6)(C). Build your arguments around the non-exhaustive list of reasons the court may grant review. 8.03(b)(6)(E). Don’t forget to file a cross‑petition or conditional cross-petition no later than 30 days from the date the petition for review is filed if you need to appeal an adverse ruling by the Court of Appeals. Failure to file the cross-appeal waives review of that adverse ruling. Summary Petition for Review. A little over two years ago in the summer of 2018, the Supreme Court established the Summary Petition for Review procedure for easier resolution of certain appeals. When controlling authority is dispositive of an entire appeal or no substantial question is presented by the appeal, a party may file a summary petition for review under Rule 8.03A in lieu of a petition for review under Rule 8.03. Rule 8.03A(a). The same 30-day jurisdictional time limit applies, but the content of the summary petition is more limited. See Rule 8.03A((b)(3) & (4). Apple or Poison Appeal. The Kansas Supreme Court grants an average of 10-15 percent of the petitions that are filed each year. To paraphrase a line from the Hunger Games… “The odds are not in your favor.” However, there is always a chance the Court could grant your petition. The appellate clerk’s office is only a phone call (785) 296-3229 or an email appellateclerk@kscourts.org away. For questions about these or other appellate procedures and practices, call the Office of the Clerk of the Appellate Courts, (785) 296-3229 Douglas T. Shima, Clerk.
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