It’s official: effective January 1, 2007, unpublished Appellate Opinions rendered after January 1, 2003 may be cited for consideration if there is no published opinion on point.
Section (4)(c) of CR 76.28 will read:
(c) Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003 may be cited for consideration by the court if there is no published opinion that would adequately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 Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.
As a member of the Kentucky Supreme Court's Civil Rules Committee, I suggested making the rule prospective so all we thought we knew about the law wouldn't have to be revisited, all our treatises wouldn't have to be updated with old unpublished cases, and we wouldn't have to do legal research on every issue even if we think we know the law just to see whether in the past there was some old unpublished case. I don't know why they settled on applying the law only to 2003 and later opinions, but I am glad it was limited to some extent and I am also pleased it applies only when there is not published authority on point.