RAP 21 Stays Require Particularized, Immediate Irreparable Harm: No Automatic Stay of Merits Pending Class-Certification Appeals

RAP 21 Stays Require Particularized, Immediate Irreparable Harm: No Automatic Stay of Merits Pending Class-Certification Appeals

Case: Toby Berry, on Behalf of Himself and a Certified Class v. Commonwealth of Kentucky ex rel. Attorney General Russell Coleman, Cookie Crews (official capacity), and Kentucky Department of Corrections

Court: Supreme Court of Kentucky

Date: October 23, 2025

Disposition: Motion for interlocutory relief granted; Court of Appeals stay vacated; remanded for further proceedings on the class-certification appeal

Publication Status: Not to be published (RAP 40(D)); non-binding precedent, but potentially citable for consideration when no published opinion adequately addresses the issue and the full decision is provided

Introduction

This interlocutory decision arises at the intersection of Kentucky’s stay practice under the Rules of Appellate Procedure and a time-sensitive, statewide parole-eligibility controversy triggered by House Bill 5 (the “Safer Kentucky Act”). After the Kentucky Department of Corrections (DOC) announced it would retroactively apply HB 5’s amendment to KRS 439.3401—treating first-degree strangulation as a “violent offender” offense and recalculating parole eligibility from 20% to 85% for persons sentenced on or after July 14, 2024—Toby Berry, a criminal defendant who had pled pursuant to a plea offer premised on 20% parole eligibility, brought declaratory and injunctive claims in Franklin Circuit Court and obtained class certification.

The Commonwealth appealed the class certification and secured from the Court of Appeals a stay of the circuit court’s merits proceedings. Berry then sought Supreme Court intervention under RAP 21(B) and RAP 20(F), arguing that the stay would effectively decide the controversy by delay—many putative class members would surpass their 20% parole-eligibility date before any merits ruling—and that the Commonwealth had not made the requisite showing of “immediate and irreparable injury.”

The Supreme Court vacated the stay. In doing so, it clarified that appellate stays under RAP 21(A)(1) require a concrete, record-specific demonstration of both immediacy and irreparability, and that the oft-cited presumption of irreparable harm from “non-enforcement of a duly enacted statute” does not apply absent an injunction or actual non-enforcement. Class-certification appeals under CR 23.06 do not automatically halt merits proceedings.

Summary of the Opinion

  • Threshold standard: A party seeking Supreme Court review of Court of Appeals stay orders must show “extraordinary cause” under RAP 20(F)(1) (formerly CR 65.09(1)). Abuse of discretion by the lower courts can constitute extraordinary cause.
  • Stay standard: Under RAP 21(A)(1), the movant must demonstrate that, absent relief, it will suffer “immediate and irreparable injury” before the appeal is decided.
  • Error identified: The Court of Appeals relied on a general statement that non-enforcement of a statute constitutes irreparable harm. But here, there was neither an injunction nor non-enforcement—the DOC was enforcing HB 5—so no such harm existed, let alone one that was immediate.
  • Immediacy lacking: The Court of Appeals’ “immediacy” finding rested only on Berry’s filing of a merits motion, not on any adverse ruling or imminent action threatening injury.
  • Practical prejudice from the stay: Given historical timelines for class-certification appeals (even when expedited), staying the merits risked resolving the case by inertia: many class members could pass their 20% eligibility thresholds before a merits decision.
  • Disposition: The Supreme Court granted Berry’s motion, vacated the stay, and remanded to the Court of Appeals for continued consideration of the class-certification appeal without impeding the circuit court’s adjudication of the merits.

Analysis

Precedents Cited and Their Influence

  • Cameron v. EMW Women’s Surgical Center, P.S.C., 664 S.W.3d 633 (Ky. 2023): Often cited for the proposition that “non-enforcement of a duly-enacted statute constitutes irreparable harm.” In EMW, a circuit court had actually enjoined statutes, preventing enforcement pending trial. The Supreme Court here distinguishes EMW: no injunction or non-enforcement occurred in Berry; the DOC was enforcing HB 5. Thus, EMW’s reasoning does not supply a categorical or automatic irreparable-harm finding in the absence of non-enforcement.
  • Boone Creek Properties, LLC v. Lexington-Fayette Urban County Bd. of Adjustment, 442 S.W.3d 36 (Ky. 2014): Also cited for the non-enforcement presumption, which the Supreme Court emphasizes is just that—a presumption. It is not self-executing and requires context, particularly where there is no injunction at all.
  • Chesley v. Abbott, 503 S.W.3d 148 (Ky. 2016); Courier-Journal, Inc. v. Lawson, 307 S.W.3d 617 (Ky. 2010); Kindred Hospitals Ltd. P’ship v. Luttrell, 190 S.W.3d 916 (Ky. 2006); NCAA v. Lasege, 53 S.W.3d 77 (Ky. 2001): This line of cases establishes that Supreme Court review of Court of Appeals’ interlocutory orders is extraordinary and discretionary, with the movant carrying an “enormous burden.” Crucially, they recognize that “abuse of discretion” can satisfy “extraordinary cause,” opening the door to correction when intermediate courts apply incorrect legal standards.
  • Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999): Defines abuse of discretion—rulings that are arbitrary, unreasonable, unfair, or unsupported by sound legal principles. The Supreme Court applied this yardstick to the Court of Appeals’ stay analysis.
  • Procedural Rules:
    • RAP 21(A)(1): A stay (intermediate relief) requires a satisfactory showing that the movant will suffer “immediate and irreparable injury” before final disposition.
    • RAP 21(B): Authorizes Supreme Court review of Court of Appeals decisions on intermediate relief.
    • RAP 20(F)(1): Supreme Court may vacate or modify Court of Appeals orders for “extraordinary cause.”
    • CR 23.06: Class-certification orders are immediately appealable within 10 days and “an appeal does not stay proceedings in the circuit court unless the circuit judge or the Court of Appeals so orders.” Proceedings should be expedited, but there is no automatic stay.
    • CR 65.09(1) (repealed; predecessor to RAP 20(F)(1)): The prior version of the extraordinary-cause framework, incorporated verbatim into RAP 20(F)(1), anchoring continuity in standards.

Legal Reasoning

  1. Extraordinary Cause and Abuse of Discretion: The Court set the review lens: it would grant relief only upon “extraordinary cause.” Abuse of discretion by the Court of Appeals satisfies that standard when the lower court’s decision rests on unsound legal principles.
  2. Misapplication of the Irreparable Harm Presumption: The Court of Appeals invoked EMW and Boone Creek to presume irreparable harm from non-enforcement of a statute. But no court had enjoined HB 5, and the DOC was actively enforcing the amendment (by recalculating Berry’s and others’ parole eligibility to 85%). The Supreme Court underscored:
    • The “non-enforcement” presumption is inapplicable without actual non-enforcement (e.g., an injunction barring the state’s enforcement).
    • Even where there is non-enforcement, Boone Creek frames harm as a presumptive—not conclusive—factor, requiring case-specific analysis.
  3. No Showing of Immediacy: The Court of Appeals’ immediacy finding hinged only on the fact that Berry filed a dispositive motion. Filing alone is not imminent injury. There had been no adverse merits ruling. And even a favorable defense ruling would not cause immediate releases, as parole eligibility determinations do not automatically result in release; the Parole Board remains the gatekeeper.
  4. Class-Certification Appeals Do Not Justify Halting the Merits: CR 23.06 permits appeal and instructs expedited treatment, but explicitly provides that an appeal “does not stay proceedings” unless ordered. The Commonwealth sought to freeze merits litigation until the class issue was resolved, but the Supreme Court observed:
    • The circuit court’s statutory interpretation of HB 5 will be the same regardless of a class ruling.
    • Stays in this context risk mooting the case by delay. The Court credited record examples of lengthy class-certification appellate timelines—some exceeding a year and, in one instance cited by Berry, years—during which many putative class members could pass their 20% parole-eligibility dates.
    • In this particular case, where the DOC recalculated parole eligibility in a way that conflicts with the plea-based expectation and even an agreed circuit court order, “a decision on the merits” is needed “as soon as possible.”
  5. Net Result: Because the Commonwealth did not carry its burden to show both irreparable and immediate harm, the stay was an abuse of discretion. That abuse supplied the “extraordinary cause” necessary for Supreme Court intervention. The Court therefore vacated the stay and remanded, allowing the class-cert appeal to proceed while the circuit court addresses the merits without delay.

Impact

  • Stays in Class-Certification Appeals: This decision makes clear that:
    • There is no automatic stay of merits proceedings when a party appeals class certification under CR 23.06.
    • Movants must make a particularized showing under RAP 21(A)(1) of both immediacy and irreparability; generalized invocations of “harm to the government” are insufficient, especially where the government is currently enforcing the challenged statute.
  • Rebalancing the EMW/Boone Creek Presumption: Courts should not reflexively apply the “non-enforcement equals irreparable harm” presumption. It applies, if at all, only after non-enforcement has been judicially imposed (e.g., an actual injunction) and remains rebuttable by case-specific considerations.
  • Time-Sensitive Rights and Mootness by Delay: The Court recognizes, and gives weight to, the risk that interlocutory stays can resolve disputes de facto by running out the clock—particularly where liberty interests and parole eligibility are involved. This will likely prompt lower courts to prefer proceeding to the merits in similar contexts.
  • Agency Conduct and Court Orders: While the Court did not decide the merits, it highlighted the DOC’s refusal to adjust Berry’s parole calculation even after an agreed circuit court order recognizing 20% eligibility. The message is clear: when administrative action conflicts with judicial understandings underlying plea dispositions, rapid merits resolution is paramount.
  • Strategic Guidance for Litigants:
    • For movants seeking a stay: Provide concrete, record-based evidence of harm that is both imminent and irreparable absent a stay. Do not rely solely on generalized public-interest assertions.
    • For opponents of a stay: Show ongoing enforcement, the absence of any injunction, and the practical prejudice of delay (e.g., mooting risks, parole-eligibility windows) to undercut claims of immediacy and irreparability.
  • Scope and Precedential Weight: Although designated “Not to be Published,” this decision offers persuasive guidance on Kentucky’s stay standards under RAP 21 and the treatment of class-certification appeals. Under RAP 40(D), it is not binding precedent, but it may be cited for consideration in the absence of adequate published authority if the full decision is supplied.

Complex Concepts Simplified

  • What is a “stay”? A judicial order that pauses proceedings or the effect of a judgment while an appeal or interlocutory review is pending. Here, the Court of Appeals stayed the trial court from proceeding to the merits while the class-certification appeal was pending; the Supreme Court removed that pause.
  • “Immediate and irreparable injury” (RAP 21(A)(1)):
    • Immediate: Harm that is imminent—not speculative or contingent on future events such as a ruling that has not been made.
    • Irreparable: Harm that cannot be adequately remedied by money damages or later corrective measures. Courts require specifics, not generalized assertions.
  • “Extraordinary cause” (RAP 20(F)(1)): A high threshold for Supreme Court intervention in interlocutory matters. It is satisfied where the lower court’s order reflects an abuse of discretion—i.e., it is arbitrary, unreasonable, unfair, or contrary to sound legal principles.
  • Class-certification appeal (CR 23.06): Kentucky allows immediate appeal from orders granting or denying class certification. Importantly, such appeals do not automatically stay trial court proceedings—any stay must be affirmatively ordered and justified.
  • Violent-offender classification and parole eligibility (KRS 439.3401): Kentucky designates certain offenses as “violent.” Violent offenders are generally eligible for parole only after serving 85% of their sentence; nonviolent offenders may be eligible after 20%, subject to other laws and Board discretion. HB 5 added first-degree strangulation to the list of violent offenses.
  • Parole eligibility vs. release: Eligibility sets the earliest time when the Parole Board may consider release. It does not guarantee release. This distinction undermined the Commonwealth’s immediacy argument.
  • Retroactivity dispute: Berry does not claim HB 5 is unconstitutional; he contends it cannot be applied to increase parole eligibility for offenders whose plea or conviction predated the statute’s effective date, even if sentencing occurred afterward. The Supreme Court did not decide that merits question here.

Conclusion

The Supreme Court’s order in Berry squarely reaffirms that stays are exceptional, not automatic. When a party seeks a stay pending an interlocutory appeal—especially a class-certification appeal under CR 23.06—it must carry the burden under RAP 21(A)(1) to prove injury that is both immediate and irreparable. The presumption of irreparable harm from non-enforcement of statutes applies, if at all, only where a court has actually barred enforcement; it is neither categorical nor available when, as here, the statute is being enforced.

By vacating the stay, the Court prioritized timely adjudication of a merits dispute with profound, time-sensitive liberty implications and signaled that interlocutory maneuvering should not effectively resolve cases by delay. While the opinion is unpublished and non-binding, it offers clear, practical guidance: appellate courts must engage in careful, fact-driven stay analysis, and trial courts should proceed to the merits absent a particularized showing of immediate, irreparable harm. The merits of HB 5’s retroactivity and the DOC’s parole calculations remain for the circuit court and, as appropriate, subsequent appellate review.

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