Report of the Appeals Court: FY2008
Created in 1972, the Appeals Court is a court of general appellate jurisdiction. Most appeals from the several divisions of the Trial Court are entered initially in the Appeals Court; some are then transferred to the Supreme Judicial Court, but a large majority will be decided by the Appeals Court. Like most intermediate appellate courts, it usually sits in panels of three. The composition of the panels changes each month.
In addition to its "panel" jurisdiction, the Appeals Court also runs a continuous single justice session, with a separate docket. The single justice may review interlocutory orders and orders for injunctive relief issued by certain departments of the Trial Court, as well as requests for review of summary process appeal bonds, certain attorney's fee awards, motions for stay of civil proceedings or criminal sentences pending appeal, and motions to review impoundment orders. Each associate justice sits as single justice for a month at a time.
There were two judicial retirements during Fiscal 2008. Associate Justice Gordon Doerfer retired in August, and Associate Justice William Cowin retired in April; both Justices had been appointed to the Court in 2001.
Early in 2008 Governor Deval Patrick made his first appointments to the Appeals Court. Associate Justices Peter Rubin and Francis Fecteau joined the Court in January, and Associate Justice Gabrielle Wolohojian joined in February. The Court also had the services during Fiscal 2008 of four recall justices: Christopher Armstrong, Frederick Brown, Raya Dreben, and Kent Smith.
During Fiscal 2008 a total of 2,083 appeals were entered in the Appeals Court. That figure represents an increase of 5.0% from Fiscal 2007 (1,984 entries). The increase was entirely on the criminal side; civil entries decreased from 1,106 in Fiscal 2007 to 1,025 in Fiscal 2008. Criminal appeals rose sharply, from 878 in Fiscal 2007 to 1,058 in Fiscal 2008. The proportion of criminal business thus increased significantly, from 44.3% to 50.8% of the total caseload. This marked the first fiscal year in which a majority of the Court's cases were criminal. A detailed analysis of the sources of the Appeals Court's caseload may be found in the accompanying table.
On the civil side, a substantial majority of the cases (621) came from the Superior Court. The Probate and Family Court supplied 124 civil cases, and the District and Boston Municipal Courts 46 civil matters. The remainder of the civil caseload came from other departments of the Trial Court (58 from the Land Court, 16 from the Housing Court, and 83 from the Juvenile Court), the Appeals Court's single justice session (18 cases), the Industrial Accident Review Board (24), the Appellate Tax Board (28), and the Labor Relations Commission (7).
On the criminal side, 558 cases came from the Superior Court (an increase of 23% from Fiscal 2007), and 467 from the District and Boston Municipal Courts (an increase of 22%). The remainder of the court's criminal cases were from the Juvenile Court (26 cases) and the single justice session (7 cases).
Through various mechanisms, substantial numbers of cases are either transferred to the Supreme Judicial Court or are disposed of before decision by the Appeals Court. During Fiscal Year 2008, 70 cases were transferred to the Supreme Judicial Court for direct appellate review (see G. L. c. 211A, section 10). Another 498 appeals were settled, dismissed or withdrawn (voluntarily or by action of the court if the appellant failed to file its brief), leaving a "net" caseload of 1,515 appeals for the fiscal year. The "net" caseload for Fiscal 2007 was 1,400 cases.
The Appeals Court issued 1,330 decisions during Fiscal 2007. Of the total decisions, 255 (19.2%) were by published opinion, and 1,075 (80.8%) were by summary disposition (see Appeals Court Rule 1:28). The Appeals Court decided 669 civil matters and 661 criminal matters. It affirmed the lower court decision in 1,071 cases, or 80.5% of the total (528 civils, 543 criminals). It reversed the lower court in 171 cases, or 12.9% of the total (83 civils, 88 criminals), and it reached some other result (e.g., partial affirmance, substantial modification, dismissal of appeal) in the remaining 88 cases, or 6.6% of the total (58 civils, 30 criminals).
On the single justice docket, during Fiscal 2008 there were 597 cases entered in the Appeals Court, a decrease of 7.7% from Fiscal 2007, when 647 matters were entered.
Appeals Court Initiatives
Compliance with Guideline on Reaching Cases for Decision
As in Fiscal 2007, the Appeals Court was able to meet the appellate court guideline for the scheduling of cases. By the end of the court year in June 2008, all cases which had been briefed by February 1, 2008, had been argued or had been submitted to panels for decision without oral argument.
Modification of Policy on Citation of Unpublished DecisionsAnd
In Chace v. Curran, 71 Mass. App. Ct. 258 (2008), the Court announced that it would now permit parties to cite unpublished Appeals Court decisions in briefs and other documents filed in the Appeals Court. Citation to unpublished decisions had previously been prohibited, except in very limited circumstances. Lyons v. Labor Relations Commn., 19 Mass. App. Ct. 562, 566 n.7 (1985). The Court noted in the Chace decision that, in the twenty-three years since the Lyons case, the Court's unpublished decisions had become far more widely available through electronic research databases. The change in policy was also consistent with the Federal courts' policy and with those of many other States. The new policy permits the citation of unpublished Appeals Court decisions issued after February 25, 2008 (the date of the Chace opinion). Those decisions may be found, free of charge, on the web site maintained by the Reporter of Decisions: www.MassReports.com.
Department of Children and Families Cases
During recent years there has been a dramatic increase in appeals involving care and protection of children, termination of parental rights, and related cases (virtually all are brought by the Department of Children and Families, formerly known as the Department of Social Services). During Fiscal Year 2008 eighty-four such appeals were filed. As detailed in previous annual reports, DCF cases are expedited during all phases of the appellate process, under the supervision of Associate Justice Charlotte Anne Perretta. Upon the completion of briefing, a DCF case is promptly scheduled for oral argument. The median time interval for a DCF case, measured from entry in the Appeals Court until issuance of the decision, was approximately 185 days for cases decided during Fiscal 2008.
Sessions in Other Locations
The court held most of its sittings in the two courtrooms on the third floor of the John Adams Courthouse in Boston. It also conducted nine sessions at other locations. Sittings were held at four of the Commonwealth's law schools -- Western New England (two sessions), Southern New England, Boston University, and New England -- enabling law students to observe appellate proceedings firsthand. After the sessions the justices met with the students, explaining the court's operating procedures and answering questions about the appellate process. In addition, three-judge panels sat at Trial Court facilities in Pittsfield, Worcester, Fitchburg and Lowell.
Appeals Court Facilities
Entering its fourth year of residence in the magnificently restored John Adams Courthouse, the Appeals Court pursued a number of initiatives including several aimed at improving efficiency of the work environment.
To meet a need for additional workspace driven both by an expected authorization from the Legislature for more staff attorneys and law clerks as well as the arrival of a greater number of very useful summer interns, the court added a second desk to several staff offices. An attempt was made to improve lighting at law clerk and intern workstations by adding desk lamps. At the same time a building-wide problem was discovered with many built-in light fixtures that were found to have been installed with their globes sealed shut with a silicone material that inhibited replacement of bulbs. Discussions between the State and the electrical contractor who worked on the building renovation are ongoing to resolve the issue.
In response to suggestions from the bench and bar, the Appeals Court followed the lead of the Supreme Judicial Court and acquired nameplates that will identify panel members for court sessions beginning in the fall of 2008. The nameplates are expected to be particularly useful for the Appeals Court because with as many as twenty-nine judges able to sit for court sessions it has sometimes been difficult for attorneys to associate names and faces on the panels.
After ten years service as a vital resource supporting appellate judges, law clerks, and staff attorneys from the central and western region of the State, the court's Springfield office, or, more properly, space for that office, must be put out to bid again. The process requires that the Division of Capital Asset Management and the Administrative Office of the Trial Court issue a Request for Proposals before the current lease expires in the fall of 2008. Maintaining the office, arguably of even greater urgency since the expansion of the court by eleven judges in 2001, will also serve as an important affirmation of the court's Statewide role and presence.
The Appeals Court took the occasion of former Chief Justice Armstrong's impending retirement to dedicate and name the court's most centrally located and frequently used conference room in his honor. The distinction will be memorialized for this fourth floor room with a brass lettered inscription over the door and prominently displayed photograph within. The justices and staff remain extremely grateful to Justice Armstrong for his nearly thirty-six years of service to the court including a substantial period as acting Chief and then officially as Chief Justice.
Finally, continuing gratitude is due the Court Facilities Department for their skilled and prompt attention to the maintenance needs of the building.
Following up on an ambitious array of recommendations by the National Center for State Courts, the appellate courts decided to focus available resources on acquiring an updated case management system. The courts' current case management system, Forecourt, has been in use by the Supreme Judicial Court and Appeals Court since 1991 and 1998 respectively. The courts began the process by reviewing features of state of the art case management systems and taking suggestions from users of the current system to determine needed improvements. A proposal was received from Relational Semantics, Inc., to develop a new version of Forecourt with those improvements. It became apparent that the most efficient and cost effective strategy would be to upgrade Forecourt. To that end, the company behind Forecourt, Relational Semantics, Inc., was retained to create a highly functional prototype of the new software, Forecourt Paragon, in the current fiscal year, with completion and implementation of a full system to follow as funding could be obtained.
The National Center had also recommended that judges and staff experiment with the use of two computer monitors as an aid for composing decisions. With this approach an author is able to conduct legal research with a full display on one screen while composing the memorandum or decision on the second screen. The court was able to acquire a quantity of additional flat panel monitors to launch a pilot program in the next fiscal year.
In an effort to improve the efficiency and accuracy of work done by law clerks, the court installed a Lexis software product called CheckCite on all law clerk computers. The software enables the law clerks to Shepardize all the citations in a document as a batch and generates a report that can be saved for future research or other use.
Finally, the Appeals Court is undertaking a revision and updating of its Web site. When complete the planned enhancements are to include information on Appeals Court Justices, guides to many aspects of practice before the court, a schedule of sessions, educational resources, and links to decisions, rules, standing orders and many other sources of information useful to practitioners and pro se litigants alike.