Updated July 24, 2019.
Although there is no right to appeal an adverse decision of the Massachusetts Appeals Court to the Supreme Judicial Court, a litigant may seek additional review of an Appeals Court decision by filing either a Motion for Reconsideration or Modification (“Motion for Reconsideration”) or an Application for Further Appellate Review (“FAR Application”).
The Appeals Court issues its decision and a rescript which orders the lower court to take certain action in the case (such as entering judgment for a particular party). If the Appeals Court issues an opinion, it also issues a rescript. Under Mass. R. App. P. 23, the Appeals Court clerk is to issue the decision and the rescript to the lower court, “28 days after the date of the decision unless the time is shortened or enlarged by order.” Thus, there is usually a four week delay, after the decision is entered, before it and the rescript issue to the lower court. However, “[t]he issuance of the rescript will automatically be stayed, unless otherwise ordered by the appellate court, by the timely filing of: (1) a motion for reconsideration or modification pursuant to Rule 27; or (2) an application for further appellate review pursuant to Rule 27.1.” The rescript is to issue immediately upon denial of the Motion or Application, unless the court orders otherwise. If the Petition or Application is granted, then the rescript will not issue.
Time limits for Petition for Rehearing and FAR Application.
A Motion for Reconsideration must be filed with the clerk of the appellate court within 14 days after the date of the decision, unless the time is modified by the Court.
A FAR Application must be filed within 21 days after the date of the decision. Because the Appeals Court will probably not act on a Motion for Reconsideration before the deadline for filing of a FAR Application passes, a Massachusetts appellate attorney should consider filing both a Motion and an Application. If that is done, the attorney must notify the Supreme Judicial Court of any action on the Motion for Reconsideration, as that Court will not grant a FAR Application for review of an Appeals Court decision for which rehearing has been granted. Mass. R. App. P. 27(f).
If a party needs more time to file either a Motion for Reconsideration or a FAR Application, that party may file a motion seeking additional time. The motion to should state the reasons why additional time is needed and should provide a date by which the Motion or Application will be filed. If the additional time requested will result in the Motion or Application being filed more than 28 days after the Appeals Court’s decision (i.e. after the rescript is to issue to the lower court), the party seeking the extension should also move the Appeals Court to stay issuance of the rescript (Rule 23 provides that the Appeals Court may modify the date of issuance of the rescript).
Motion for Reconsideration.
A Motion for Reconsideration is heard by the panel or quorum which decided the appeal. Mass. R. App. P. 27(a). The Motion is filed with the clerk of the appellate court that rendered the decision (the Appeals Court or the Supreme Judicial Court, as the case may be). Mass. R. App. P. 27(a). In the Supreme Judicial Court, the moving party must file a paper original and 7 copies. Mass. R. App. P. 27(d). A Motion for Reconsideration must be filed in the Appeals Court using the e-filing system.
The Motion for Reconsideration, which should not exceed either 10 pages of text in a monospaced font or 2000 words in a proportional font, “shall state with particularity the points of law or fact which it is contended the court has overlooked or misapprehended and shall contain such argument in support of the motion as the movant desires to present.” Mass. R. App. P. 27(a), (b).
The party opposing a Motion for Reconsideration is not permitted to file a Response unless the requested to do so, nor is there oral argument, unless the Court requests it. Mass. R. App. P. 27(c). Any Response is subject to the same length limits as the Motion. Mass. R. App. P. 27(c). Both the Motion and any Response must contain a certification as to compliance with the applicable length limitation. Mass. R. App. P. 27(c)
If the Motion for Reconsideration is granted, the panel may enter a final disposition of the appeal, may restore it to the Court’s calendar for reargument, or may take any other appropriate action. Mass. R. App. P. 27(e). In addition, regardless of whether the Motion is granted, the panel may award costs, including reasonable attorney’s fees, to the prevailing party. Mass. R. App. P. 27(e).
A FAR Application is filed in the Supreme Judicial Court. Mass. R. App. P. 27.1(a). The adverse party may file a Response within 14 days after filing of the Application. Mass. R. App. P. 27.1(c). The FAR Application and any Response may be filed using the e-filing system. If filed in paper form, one copy of the Application and of each Response must be filed in the office of the clerk for the full Supreme Judicial Court. No filing is made in the Appeals Court. Mass. R. App. P. 27.1(d) The filing fee for a FAR Application is $270.
Oral argument on an Application is not permitted unless requested by the Court. Mass. R. App. P. 27.1(a).
The Application “shall be founded upon substantial reasons affecting the public interest or the interests of justice.” Mass. R. App. P. 27.1(a). Thus, the applicant should attempt to show that the case presents special factors warranting further review. Such factors might include the presence of an important public interest, a decision of the Appeals Court at odds with prior Supreme Judicial Court precedent, or a decision that creates bad law on an issue of importance.
Under Rule 27.1(b), the Application is required to contain, in the following order:
(1) a request for further appellate review; (2) a statement of prior proceedings in the case (including whether any party is seeking a reconsideration or modification in the Appeals Court); (3) a short statement of facts relevant to the appeal (but facts correctly stated in the decision of the Appeals Court shall not be restated); (4) a statement of the points with respect to which further appellate review of the decision of the Appeals Court is sought; and (5) a brief statement (consisting of not more than either 10 pages of text in monospaced font or 2,000 words in proportional font …), including appropriate authorities, indicating why further appellate review is appropriate.
In addition, the applicant must append to the Application a copy of the Appeals Court’s rescript and decision. Mass. R. App. P. 27.1(b). Further, if the Appeals Court decided the appeal via a Rule 1:28 memorandum, and that memorandum “refers to another document, such as a brief or judge’s findings and rulings, a copy of that document, or, if appropriate, the pertinent pages of that document, shall be appended to the application.” Mass. R. App. P. 27.1(b).
Any other party may file a Response to the FAR Application, not to exceed “either 10 pages of text in monospaced font or 2,000 words in proportional font,” within 14 days after the Application is filed. Mass. R. App. P. 27.1(c). The Response should not restate the prior proceedings or facts unless the responding party is dissatisfied with the statement thereof in the Application. The Response may request that the Supreme Judicial Court consider issues not raised by the FAR Application.
The form of the Application and any Response are governed by Mass. R. App. P. 20, which sets forth the requirements for appellate briefs. Mass. R. App. P. 27.1(b), (c). More information about the requirements of Rule 20, and about appellate procedure in general, can be found here. The Covers of both the Application and any Response, if filed in paper form, must be white. Both the Application and Response must contain a certification under rule 16(k) of compliance with format and length requirements.
The Court grants an FAR Application if (1) “any 3 justices of the Supreme Judicial Court shall vote for further appellate review” or if, (2) “a majority of the justices of the Appeals Court or a majority of the justices of the Appeals Court deciding the case shall certify that the public interest or the interests of justice make desirable further appellate review.” Mass. R. App. P. 27.1(e). See also Massachusetts G.L. c. 211A, §11.
When further appellate review is granted, any party may rely on his or her briefs already on file in the Appeals Court or may apply to the Supreme Judicial Court, within 14 days after the appeal is docketed in the full Supreme Judicial Court, for permission to file new briefs. Mass. R. App. P. 27.1(f). If permission is granted, the Supreme Judicial Court will establish a briefing schedule and may impose other limitations (as to length, etc.) on the brief. Mass. R. App. P. 27.1(f).
Updated: July 23, 2019.
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