The Supreme Court of Kentucky has published proposed amendments to the Civil, Criminal, and Supreme Court Rules. These amendments will be debated in an open session of the Court during the KBA Convention in Lexington on June 18. A brief summary of the proposed rules changes follows:

 

 

The proposed amendments to the Rules of Civil Procedure basically fall into three groups: (1) adding privacy protection provisions to the rules; (2) a complete overhaul of the rules relating to issuance of subpoenas in civil cases; and (3) minor modifications of rules applicable to appeals.

 

In the first grouping, the Court has proposed adding a new rule, to be numbered CR 7.03, which requires redaction of personal identifiers in pleadings and papers filed with the Court - specifically, Social Security and Taxpayer ID numbers, the month and day included in birthdates, and financial account numbers. This proposal is a modification of Federal Rule of Civil Procedure 5.2, which was adopted by the Supreme Court of the United States effective December 1, 2007. The proposal seems to me to be a good one, given the mushrooming incidence of identity theft in Kentucky.

 

The second group of Civil Rules amendments completely overhauls the rules governing civil subpoenas in Kentucky, CR 45. I am proud to confess that, about a year ago, I sent a letter to the Kentucky Supreme Court recommending just these changes to the subpoena rules. My proposal to the Court is essentially reproduced verbatim in the proposed amendments - with one worthy addition that I will discuss momentarily.

 

As included in the Supreme Court's proposal, the changes to CR 45 that I suggested will bring the Kentucky rules into harmony with Federal Rule 45, specifically:

In addition, the proposed amendments to CR 45 will permit all subpoenas to be served "in any manner that a summons might be served." That means that parties would be able to serve subpoenas by certified mail; currently, all subpoenas must be hand-delivered to the recipient. While not a part of my suggested changes, this is a very worthy proposal. Kentucky's experience with permitting service of summonses by certified mail has been positive - a real cost savings vs. personal service by sheriff, and no noticable lack of notice required by due process. If a Kentucky court may obtain personal jurisdiction over a party, and thus even be able to enter a judgment against him or her by default, then there is no logical reason why that same court should not be able to compel the production of documents or attendance at a hearing, trial, or deposition by the same means. I wholeheartedly endorse all of the proposed changes to Rule 45.

 

Finally, the Supreme Court's proposed civil rules amendments make some housekeeping changes to the rules governing appeals. The changes clarify the timing of filing a notice of appeal in the trial court (I think, codifying the law as it currently stands), require all Court of Appeals opinions to be released on Friday mornings (current rules require the release time to alternate each week between 10 a.m. and 2 p.m.), eliminating references in the rules to obsolete "statements of appeal," and codifying the practice of not allowing reconsideration of the denial of a motion to reconsider. None of these proposals seem to be objectionable.

 

 

Quite a few of the Rules of Criminal Procedure would be affected by the Supreme Court's proposals, but they all have to do with the subject of bail and pretrial release. All of the changes are too numerous to discuss in depth here, but they reflect a recognition by the Supreme Court that, depsite the rules' current preference for reasonable bail and allowing the pretrial release of criminal defendants, our jail populations have exploded in recent years. This is due in no small part to trial courts' tendency to use bail as a sort of pretrial punishment, as opposed to the least restrictive means to ensure a defendant's return to his or her next court appearance. A provision of the proposed amendments would even encourage the pretrial release of defendants charged with Class D felonies involving theft and non-violent property crime. (Senate Bill 92, enacted by the 2008 General Assembly and signed by Governor Beshear, encourages the Supreme Court to include nonviolent Class D felonies in the Uniform Schedule of Bail.)

 

While not a complete solution to the jail overcrowding problem, the changes embodied in the proposed amendments to the Criminal Rules appear to be a worthwhile step in the right direction. I therefore encourage the Court to adopt them. Regardless of the Court's decision, however, this is an issue that merits further study. It is my hope that the LRC's Penal Code Study Subcommittee (created by 2008 Senate Joint Resolution 80) will further consider potential solutions to the overcrowding issue.

 

 

The Supreme Court has also proposed changes to SCR 3.130, which provides the ethical standards that govern the practice of law in Kentucky. This is a massive change (57 pages' worth!), and it cannot possibly be given an adequate treatment in this space. Also, I confess that I am not really up to speed on the minutiae of this proposal, so I do not want to purport to have an opinion on a matter with which I am not well acquainted. I do know that the changes are modeled on the ABA's Ethics 2000 proposal, and that some parts of it have generated a good deal of debate among the Kentucky bar. I welcome any thoughts that you may have concerning the proposed changes. As for me, I hope to learn something on this when I attend the KBA Convention.