Clerk's Guide - Interlocutory Petitions
Petitions to the Single Justice pursuant to G. L. c. 231, § 118 (First Paragraph)
Except in exigent circumstances, the court expects full compliance with the format and content of the standing order. A petition shall contain:
- a request for interlocutory review with a brief statement of the nature of the lower court order or action, the entry date of such order or action, and the name of the judge who entered it;
- a statement of the issues of law raised in the petition;
- a statement as to whether a party has filed, served, or intends to file a motion for reconsideration in the trial court;
- a statement of the specific relief requested; and
- an addendum containing a copy of the lower court order (a draft order for the single justice may be attached).
The petition shall not exceed five pages of text compliant with Mass.R.A.P. 20 (a) (1)-(3) without leave of the court.
Supporting Memorandum of Law and Record Appendix.
A supporting memorandum of law not to exceed fifteen pages of text in compliance with Mass.R.A.P. 20 (a)(1)-(3) shall accompany the petition.
The argument shall make reference to those portions of the record which are directly relevant to the issues raised in the petition. Relevant portions of the record shall be filed as a record appendix, and include a current copy of the trial court docket entries and all relevant papers filed in the trial court, including those filed by the other party or parties.
The record appendix shall commence with a table of contents that lists each document contained therein.
Within seven days, ten days if the petitioner's certificate of service indicates service was performed by first class mail, after the filing of the petition, or such other time as the court may direct, the other party or parties to the case may, but need not, file and serve an opposition thereto (not to exceed fifteen pages of text compliant with Mass.R.A.P. 20 (a) (1)-(3) unless leave of court has been obtained) setting forth reasons why the petition should not be granted.
The opposition should not restate matters contained in the petition unless the opposing party is dissatisfied with the statement thereof contained in the petition.
The opposition may be accompanied by a supplemental record appendix containing such additional portions of the record as were before the trial court and are necessary for adjudication, and which the petitioner failed to include in its record appendix.
The single justice may, and frequently does, shorten or enlarge the time for filing an opposition.
The petition, memorandum, record appendix, and any subsequently filed opposition and supplemental record appendix, shall be filed in the Office of the Clerk of the Appeals Court with a certificate of service on all other parties in the case, including the service and filing of a copy in the appropriate lower court. No additional paper copies of the petition or opposition are required to be filed in the Appeals Court.
The certificate of service shall set forth the name, address, and telephone number of counsel, and specify the date and manner of service. It should also identify the name of each party represented by counsel and specify the counsel who represents each party.
Service may be personal or by first class mail.
The fee for a motion entered pursuant to Mass.R.A.P. 6 is three hundred and fifteen dollars ($315) in civil cases, and three hundred dollars ($300) in criminal cases. A law firm check or money order is to be made payable to the Commonwealth of Massachusetts. Personal checks will not be accepted. Alternatively, the movant can file a motion to waive the entry fee support by a current affidavit of indigency using the appropriate form promulgated by the SJC.
When a party represented by counsel files a petition or opposition thereto, including any supporting memorandum of law, the filer shall, in addition to the paper copy, simultaneously provide the court with a searchable PDF (portable document format) copy of the petition or opposition, and supporting memoranda of law, either on a CD-ROM, or by an email to which the PDF copy is attached, sent to: email@example.com. A PDF copy of the record appendix may be filed if feasible to produce.
The CD-ROM and email filing requirements are waived for self-represented litigants.
Standard of Review.
The standard of review employed by the single justice is whether there was an error of law by the improper application of legal standards or whether there was an abuse of discretion in the entering of the lower court order that is the subject of review. Jet-Line Services, Inc. v. Selectmen of Stoughton, 25 Mass. App. Ct. 645, 646 (1998). The standard is demanding. If it seems to the single justice that there is a supportable legal basis for the lower court action, the single justice will not disturb that action. Aspinall v. Philip Morris Co., Inc., 442 Mass. 381, 390 (2004); Westinghouse Broadcasting Co. v. N.E. Patriots Football Club, Inc., 10 Mass. App. Ct. 70, 75 (1980). Consequently, single justices grant such exceptional statutory relief "sparingly." Edwin R. Sage Co. v. Foley, 12 Mass. App. Ct. 20, 23 (1981).
The standard of review of orders concerning preliminary injunctions focuses the single justice's review on whether the lower court judge "applied proper legal standards and whether there was reasonable support for [her] evaluation of the factual questions." Hull Mun. Lighting Plant v. Mass. Mun. Wholesale Elec. Co., 399 Mass. 640, 642 (1987). The lower court's legal conclusions are, however, subject to broad review and will be reversed if incorrect. In those instances, the single justice may apply the de novo standard if the preliminary injunction order was predicated solely on documentary evidence. Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 616 (1980).
The single justice may grant or deny the petition, in whole or in part, or take other action deemed appropriate. When acting on a petition for interlocutory review, the order of the single justice is still interlocutory in nature and, therefore, not appealable as of right unless it changes a preliminary injunction order of the lower court. Gos v. Brownstein, 403 Mass. 252, 254 (1988); Ott v. Preferred Truck Leasing, Inc., 9 Mass. App. Ct. 875, 876 (1980). The single justice may authorize the taking of an interlocutory appeal from a lower court order, Leavitt v. Mizner, 404 Mass. 81, 87-88 (1989), or may report an action to a panel of justices, but such authorization is rarely granted.
In any case in which the trial court entered an order impounding, sealing or excluding from public access all or any portion of the trial courts records, or there is material or information in a party's petition, addendum, opposition, or any appendix that is automatically impounded or deemed confidential by statute or court rule, the parties shall comply with Mass.R.A.P. 16(d), 16(m), and 18(g). If the trial court record includes any items listed as "personal identifying data" the parties shall comply with the guidelines of the SJC's Interim Guidelines on Personal Identifying Data in all filings to the Appeals Court.
Prior to filing an opposition, counsel should call the clerk's office to determine whether the single justice requests an opposition.
Hearings are not routinely granted; therefore, the petition should be complete. If a hearing is scheduled, the single justice will set the date, time, and place for the hearing. Some single justices, in their discretion, will allow the hearing to take place by telephone conference call.