Updated: July 23, 2019.
Where the Massachusetts Supreme Judicial Court (“SJC”) and the Appeals Court have concurrent jurisdiction over an appeal, Mass. R. App. P. 11(a) requires that the appeal be docketed in the Appeals Court. However, one or more of the parties may feel that it is important to obtain a ruling from the Commonwealth’s highest court. A party who wants an appeal to be heard in the first instance by the SJC may file an Application for Direct Appellate Review.
One reason to seek Direct Appellate Review, instead of simply appealing an adverse Appeals Court decision to the SJC, is that Direct Appellate Review is easier to obtain than further appellate review. While the SJC grants an Application for Direct Appellate Review when two justices vote in favor of it, further appellate review is allowed only when supported by three justices. In addition, the SJC grants a higher percentage of Applications for Direct Appellate Review than Applications for Further Appellate Review.
Any party may file an Application for Direct Appellate Review within 21 days after an appeal is docketed in the Appeals Court. The Application must establish that the,
questions presented by the appeal are (1) questions of first impression or novel questions of law which should be submitted for final determination to the Supreme Judicial Court; (2) questions of law concerning the Constitution of the Commonwealth or questions concerning the Constitution of the United States which have been raised in a court of the Commonwealth; or (3) questions of such public interest that justice requires a final determination by the full Supreme Judicial Court.
The Application for Direct Appellate Review is deemed granted when “any 2 justices of the Supreme Judicial Court vote for direct appellate review, or [when] a majority of the justices of the Appeals Court shall certify that direct appellate review is in the public interest….” Mass. R. App. P. 11(f).
The Application must contain, in the following order:
(1) a request for direct appellate review; (2) a statement of prior proceedings in the case; (3) a short statement of facts relevant to the appeal; (4) a statement of the issues of law raised by the appeal, together with a statement indicating whether the issues were raised and properly preserved in the lower court; (5) a brief argument thereon (consisting of not more than either 10 pages of text in monospaced font or 2,000 words in proportional font …) including appropriate authorities, in support of the applicant’s position on such issues; and (6) a statement of reasons why direct appellate review is appropriate.
Mass. R. App. P. 11(b). In addition, the applicant must append to the Application a copy of the docket entries and a copy of any written decision, memorandum, findings, rulings, or report of the lower court relevant to the issues on appeal. Id.
An Application also must comply with Mass. R. App. P. 20, which sets forth the requirements for appellate briefs, and must contain a certification of such compliance. Id. More information about the requirements of Rule 20, and about appellate procedure in general, can be found here.
A Response may be filed.
Any other party to the case may file a Response within 14 days after the Application is filed. Mass. R. App. P. 11(c). The Response is limited to 10 pages of text in monospaced font or 2,000 words in proportional font and should not restate the prior proceedings and facts set forth in the Application, unless the opposing party is dissatisfied with their presentation in the Application. Id. Like the Application, any Response must comply with Rule 20 and must contain a certification of such compliance. Id.
An Application or Response should be filed with the clerk for the full SJC. They may be e-filed. If filed in paper form, one copy of the Application and one copy of each Response must be filed in the SJC. No filing is made in the Appeals Court.
Transfer of the appeal.
When an Application for Direct Appellate Review is granted, an order allowing the Application is sent to the clerk of the Appeals Court, who then transmits all papers to the clerk of the full SJC and notifies the clerk of the lower court that the appeal has been transferred. Mass. R. App. P. 11(f).
Impact on briefing schedule.
The filing of an Application for Direct Appellate Review does not extend the time for filing briefs or doing any other required act. However, allowance of an Application may change the briefing schedule as follows:
- “If at the time of transfer all parties have served and filed briefs in the Appeals Court, no further briefs may be filed except that a reply brief may be served and filed on or before the last date allowable had the case not been transferred, or within 14 days after the date on which the appeal is docketed in the full Supreme Judicial Court, whichever is later.” Mass. R. App. P. 11(g)(1).
- “If at the time of transfer only the appellant’s brief has been served and filed in the Appeals Court, the appellant may, but need not, serve and file an amended brief within 21 days after the date on which the appeal is docketed in the full Supreme Judicial Court. The appellee shall serve and file his brief within 30 days after service of any amended brief of the appellant, or within 50 days after the date on which the appeal is docketed in the full Supreme Judicial Court, whichever is later.” Mass. R. App. P. 11(g)(2).
- “If at the time of transfer to the full Supreme Judicial Court no party to the appeal has served or filed a brief, the appellant shall serve and file a brief within 21 days after the date on which the appeal is docketed in the full Supreme Judicial Court or within 40 days after the date on which the appeal was docketed in the Appeals Court, whichever is later.” Mass. R. App. P. 11(g)(4).
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