The Massachusetts Judicial Branch

Massachusetts Appeals Court

Clerk's Guide - Single Justice Practice

An Overview

As originally conceived, the Appeals Court was not to have a single justice session.  However, it rapidly developed in the first few years of the court's existence as result of both legislative initiatives and the necessity of managing the pending caseload.

With the enactment of new legislation over the years, the jurisdiction of the Appeals Court single justice has expanded.  The following are matters which are currently properly filed and considered in the single justice session:

  • Petitions filed pursuant to G. L. c. 231, § 118, para. 1
  • Summary process appeal bonds pursuant to G. L c. 239, § 5
  • Appeals for waiver of costs and fees pursuant to G. L. c. 261, § 27D
  • Jurisdictional amount dismissals pursuant to G. L. c. 212, § 3A and G. L. c. 218, § 19
  • Appeals of impoundment orders
  • Mass.R.A.P. 6 motions for stay of judgment or stay of sentence pending appeal
  • Motions for leave to file a notice of appeal late
  • Motions to docket the appeal late
  • Procedural motions to assist the appellate process
 

Statutes, Rules and Standing Orders Governing Practice before the Single Justice

G. L. c 231, § 118, first para. provides for review by a single justice of interlocutory orders of the superior, probate and family, land, and housing courts.  There is no right of review under this statute for interlocutory orders of the Boston Municipal Court, juvenile, or district courts.  The statute provides for review of civil orders only.  A single justice of the Appeals Court does not have jurisdiction to review interlocutory criminal.

Fee for a petition entered pursuant to G. L. c. 231, § 118, first para. is $315.  A law firm check or money order is to be made payable to the Commonwealth of Massachusetts.
 
Appeal Period.  There is a thirty-day time period for the filing of a paragraph 1 petition.  The time runs from the date of entry of the order or action on the trial court docket.  G.D. Mathews & Sons v. MSN Corp., 54 Mass. App. Ct. 18, 24-26 (2002).  It is not the date the order or action was received by counsel.  The thirty-day time limit is set by statute.  It is jurisdictional and cannot be enlarged.  Friedman v. Board of Registration in Medicine, 414 Mass. 663, 665 (1992).  The filing of a motion for reconsideration in the lower court does not enlarge or create a new thirty-day time period.  The denial of a motion for reconsideration, unless, a substantially new or newly supported motion, is not considered an interlocutory order within the meaning of  G. L. c. 231,  § 118, first para.  McGrath v. McGrath, 65 Mass. App. Ct. 670 (2006).

Standing Order Concerning 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
  • a statement of the issues of law raised in the petition
  • a statement of the specific relief requested
  • a copy of the lower court order
  • a draft order may be attached
  • a supporting memorandum of law not to exceed fifteen pages of text in compliance with Mass.R.A.P.20 (a)(1)-(3)
  • attachment of only the relevant portions of the lower court record necessary for an adjudication of the issues raised

Practice Note
It is helpful to include a copy of the lower court docket.  If any party has served a motion for reconsideration or intends to serve a motion for reconsideration, that fact should be brought to the court's attention as it is the practice of the Appeals Court to stay a decision pending resolution in the trial court of the motion for reconsideration.

Counsel should mark accordingly any document which is impounded or not a matter of public record.

Filing   Only one copy of the petition, memorandum, and attachments and one copy of each opposition need be filed.  A certificate of service on all parties in the case, setting forth the name, address, and telephone number of counsel or other party upon whom service has been made shall be filed.

Practice Note
The certificate of service should state the name of the party represented by each counsel.

Opposition  An opposition is to be filed within seven days if the respondent was served in hand on the day the petition was filed or within ten days of the filing date if served by mail.  The preferred form of opposition is a memorandum of law which may not exceed fifteen pages of text in compliance with Mass.R.A.P. 20 (a) (1)-(3) setting forth reasons why the petition should not be granted. The single justice may, and frequently does, shorten or enlarge the time for filing an opposition.

Practice Note
Prior to filing an opposition, counsel should call the clerk's office to determine whether an opposition is needed.  The single justice may have already denied the relief requested upon review of the paper filed by the petitioner.

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.

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 Companies, 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).

Preliminary Injunctions. In contrast is the standard of review of orders concerning preliminary injunctions.  The initial focus of review is 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. Massachusetts 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).

Disposition.  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.