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Rule 8.03
Transfer to and Review by Supreme Court

Supreme Court Review of Court of Appeals Decision

(a) PETITION. Any party aggrieved by a decision of the Court of Appeals may petition the Supreme Court for discretionary review. For the purpose of this rule, "decision" means any formal or memorandum opinion, order, or involuntary dismissal pursuant to Rule 5.05.

(1) Time for Filing. The petition shall be filed with the Clerk of the Appellate Courts within thirty (30) days after the date of the decision of the Court of Appeals. The thirty day period for filing a petition for review is jurisdictional.

(2) Filing; Service. The petitioner shall file the original and nine (9) copies of the petition with the Clerk of the Appellate Courts. In addition, within thirty (30) days after the date of the decision of the Court of Appeals, one copy shall be served on all parties who have appeared in the Court of Appeals.

(3) Effect of Motion for Rehearing or Modification. The filing of a petition for review under this rule does not preclude the filing of a timely motion for rehearing or modification under Rule 7.05. If a timely motion for rehearing or modification is filed, the Court of Appeals shall retain jurisdiction over the case and shall proceed in accordance with Rule 7.05. No action will be taken by the Supreme Court on a petition for review until the Court of Appeals has made a final determination of all motions for rehearing and modification pursuant to Rule 7.05.

(4) Form. A petition for review shall be in the form of a brief, conforming to the applicable provisions of Rule 6.07. The cover of the petition shall be white, and the petition shall not exceed fifteen (15) pages in length, exclusive of the appendix.

(5) Contents. The petition shall contain concise statements of the following, in the order indicated:

(a) A prayer for review, clearly stating the nature of the relief sought.

(b) Date of the decision of the Court of Appeals.

(c) Statement of the issues decided by the Court of Appeals of which review is sought. Issues not presented in the petition, or fairly included therein, will not be considered by the court. The court may, however, at its option, address a plain error not presented. In a civil case, the petitioner shall also list, separately and without argument, those additional issues decided by the district court that were presented to, but not decided by, the Court of Appeals, which the petitioner wishes to have determined if review is granted. In a criminal case, the Supreme Court will not review a conviction reversed by the Court of Appeals unless the prosecuting jurisdiction preserves the issue by filing a petition or cross petition for review.

(d) A short statement of relevant facts. Facts correctly stated in the opinion of the Court of Appeals need not be restated.

(e) A short argument, including appropriate authorities, stating why review is warranted.

(f) An appendix containing a copy of the opinion of the Court of Appeals. The appendix also shall include copies of opinions, findings of fact, conclusions of law, orders, judgments, or decrees issued by the district court or administrative agency from which review was taken to the Court of Appeals, if relevant to the issues presented for review.

(b) CROSS PETITION.

(1) Time for Filing; Form; Contents. Within fourteen (14) days from the date a petition for review is filed, a respondent may file and serve a cross petition for review. A cross petition shall be in the same form, length, and have the same contents, in the same order, as the petition.

(2) Filing; Service. The cross petitioner shall file the original and nine (9) copies of the cross petition with the Clerk of the Appellate Courts. In addition, one copy shall be served on all parties who have appeared in the Court of Appeals.

(c) RESPONSE.

(1) Time for Filing; Service. Any party wishing to oppose the petition or cross petition may file a response within fourteen (14) days from the date the petition or cross petition is filed. The original and nine copies shall be filed with the Clerk of the Appellate Courts. In addition, one copy shall be served on all parties who have appeared in the Court of Appeals.

(2) Form. The response shall comply with Rule 6.07 and shall not exceed fifteen (15) pages, exclusive of the appendix. The cover of the response shall be white.

(3) Contents. The response shall be confined to argument in reply to issues presented in the petition or cross petition for review, or to argument that provides alternative grounds for affirmance of the decision of the Court of Appeals, provided those grounds were raised and briefed in the Court of Appeals. In a civil case, the response also may present for review adverse rulings or decisions of the district court that should be considered by the Supreme Court in the event of a new trial, provided that the respondent raised such issues in the Court of Appeals.

(4) Effect of Failure to File Response. Failure to file a response shall not be an admission that the petition should be granted.

(d) REPLY. The reply should be addressed to arguments raised in the response that are not covered sufficiently in the petition or cross petition. The reply may not exceed ten (10) pages in length. The court need not delay decision pending the filing of a reply.

(e) DISCRETION IN GRANTING REVIEW.

(1) Review as a Matter of Right. As provided by K.S.A. 60 2101(b) and K.S.A. 22 3602(d), any party may appeal as a matter of right from a final decision of the Court of Appeals in any case in which a question under the Constitution of either the United States or the State of Kansas arises for the first time as a result of the decision of the Court of Appeals.

(2) Discretionary Review. In all other cases, review by petition is not a matter of right, but of judicial discretion. All petitions for review will be considered en banc and the vote of three justices shall be required to grant any petition for review.

(3) Purpose of Petition. The purpose of the petition for review, cross petition, response, and reply is to set forth the reasons why the Supreme Court should grant or deny review of the decision of the Court of Appeals. Generally, the only documents considered by the Supreme Court will be the petition for review, cross petition, response, and reply. Briefs filed in the Court of Appeals, briefs filed in support of a petition for rehearing or modification, and the record on appeal generally will not be considered in acting on a petition or cross petition for review.

(f) ORDER DENYING REVIEW; EFFECT. If the Supreme Court denies review, the Clerk shall so notify the parties. The decision of the Court of Appeals shall be final as of the date of the decision denying review, and the mandate shall be issued by the Clerk forthwith. The denial of a petition for review of a Court of Appeals' decision imports no opinion on the merits of the case. The denial of a petition for review is not subject to a motion for reconsideration by the Supreme Court.

(g) ORDER GRANTING REVIEW; SUBSEQUENT PROCEDURE.

(1) Issues Subject to Review. The order granting review may limit the questions on review. If review is not limited, the issues before the Supreme Court include all issues properly before the Court of Appeals that the petition for review or cross petition allege were decided erroneously by the Court of Appeals. In civil cases, the Supreme Court may, but need not, consider other issues that were presented to the Court of Appeals and that the parties have preserved for review.

(2) Briefs; Record. Unless the Supreme Court otherwise orders, the issues to be reviewed shall be considered on the basis of the record and briefs previously filed with the Court of Appeals. Within fourteen (14) days of the date of the order granting review, the parties shall file with the Clerk of Appellate Courts ten (10) additional copies of the briefs originally filed with the Court of Appeals.

(3) Supplemental Briefs. Within thirty (30) days after the date of the order granting review, any party may file a supplemental brief. Any opposing party may file a brief in response to a supplemental brief within thirty (30) days from the date the supplemental brief is filed. Except by order of the Supreme Court, a supplemental brief shall not exceed one half the number of pages permitted for original briefs as prescribed by Rule 6.07.

(4) Oral Argument. Unless otherwise ordered by the Supreme Court, the party whose petition for review was granted will argue first and may reserve time for rebuttal.

(h) OTHER DISPOSITIONS.

(1) Review Improvidently Granted. If the Supreme Court determines that review was improvidently granted, a per curiam opinion may be issued stating that the petition for review was improvidently granted and that the Court of Appeals' opinion or disposition of the case is approved.

(2) Remand for Reconsideration. When review has been granted, the Supreme Court may remand the appeal to the Court of Appeals for reconsideration in light of authority identified in the Supreme Court's order.

(3) Issues Not Decided by Court of Appeals. In a civil case, if issues decided by the district court were presented to, but not decided by, the Court of Appeals and review has been preserved as to those issues, the Supreme Court may consider and decide such issues, may remand the appeal to the Court of Appeals for decision of such issues, or may make such other disposition with respect to such issues as it deems appropriate.

(4) Moot Questions. If a case becomes moot after a petition for review has been granted, the Supreme Court may dismiss the appeal or, in a civil case at the discretion of the Court, may review the decision of the district court.

(i) EFFECT OF COURT OF APPEALS' DECISION PENDING REVIEW. The timely filing of a petition for review shall stay the issuance of the mandate of the Court of Appeals. Pending the determination of the Supreme Court on the petition for review or during the time in which to file a petition for review, the opinion of the Court of Appeals is not binding on the parties or on the district courts. Any interested person who wishes to cite a Court of Appeals opinion for persuasive authority before the mandate has issued shall note in the citation that the case is not final and may be subject to review or rehearing. If a petition for review is granted, the decision or opinion of the Court of Appeals has no force or effect, and the mandate shall not issue. If a petition for review is granted in part, a combined mandate shall issue when appellate review is concluded, unless otherwise specifically directed by the Supreme Court. If review is refused, the decision of the Court of Appeals shall be final as of the date of the refusal, and the mandate of the Court of Appeals shall be issued by the Clerk forthwith.

[History: Am. effective April 15, 1992; Am. effective February 8, 1994; Am. (b), (c), (g) effective July 1, 1997; Am. (i) effective October 7, 2004; Am. (i) effective September 6, 2005; Am. (a) effective March 18, 2009; Am. (b), (c), and (g) effective July 1, 2010; Am. (g)(4) effective July 21, 2011.]