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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Bill Would Impose Appeal Bond On Appeals To Court of Appeals In Planning And Zoning Cases  Posted: February 26, 2016

HOUSE BILL 490 WOULD IMPOSE AN UNCONSTITUTIONAL FINANCIAL BARRIER TO ACCESS TO THE COURT OF APPEALS FOR REVIEW OF ZONING DECISIONS

House Bill 490 would require posting of a “supersedeas” bond as a condition prerequisite to a non-governmental party appealing a rezoning decision from the Circuit Court to the Kentucky Court of Appeals. The litigant seeking judicial review of a circuit court decision on review of a rezoning decision could be required to prepay all potential damages, attorney fees, and costs, which would be forfeited if the Court of Appeals affirmed the circuit court decision, even if the appeal raised arguments that had merit.

KRC opposes the bill, for these reasons:

•The prospect of having to file an appeal bond would place a financial hardship on most individuals and neighborhood associations, and would have a chilling effect on even meritorious claims, by pricing an appeal out of the reach of many individuals and neighborhoods, while allowing frivolous appeals by wealthy individuals to proceed.

•Remedies already exist if the Court of Appeals determines an appeal to have been brought that was frivolous and in bad faith. Damages and 1 to 2 times costs can be assessed by the Court of Appeals under Civil Rule 73.02(4).

•Requiring the filing of an appeal bond as a prerequisite to filing an appeal violates Kentucky Constitution Section 115, providing that “in all cases…there shall be allowed as a matter of right at least one appeal to another court….” (emphasis added). In White v. Comm., 299 S.W.2d 618 (1957), the Court declined to apply the then-existing rule that an appeal bond be posted prior to any appeal from county court to circuit court to bastardy proceedings, since “to hold otherwise would ‘effectively’ deny a party the right of appeal granted by statute.” With the 1976 constitutional amendment creating a right in Ky. Const. 115 to one level of appellate review of a judicial decision, any legislative interference with the exercise of that right would be unconstitutional.

•The exemption of governmental entities from the possible obligation to file an appeal bond, implicates equal protection issues, since it would place a burden on nongovernmental parties but exempt those similarly situated (i.e. desiring to file an appeal of a circuit court judgment). Elk Horn Coal Corporation v. Cheyenne Resources, 163 S.W. 3d 408 (Ky. 2005), struck down KRS 26A.300, which provided for a 10% penalty if a money judgment was affirmed or dismissed on appeal after the first appeal (i.e discretionary review), based both on Ky. Const. Sec 116 and as a violation of the equal protection provisions of Ky. Const. Sec. 2.

•The bill also intrudes on matters of appellate procedure that are expressly reserved to the judicial branch under the state constitution, in violation of Section 116 of the Kentucky Constitution, which grants the Supreme Court the power to prescribe rules governing appellate jurisdiction, and has been construed as vesting “exclusive jurisdiction in the Supreme Court to prescribe ‘rules of practice and procedure for the Court of Justice.” O’Bryan v. Hedgespeth, 892 S.W.2d 571, 576 (Ky. 1995); Elk Horn Coal Corporation v. Cheyenne Resources, 163 S.W. 3d 408 (Ky. 2005); Commonwealth v. Reneer, 734 S.W.2d 794 (Ky. 1987).

•Finally, the bill conflicts with KRS 21A.050(2), which recognizes that the procedures for appellate review are within the exclusive jurisdiction of the Supreme Court.

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