The single justice has jurisdiction over all interlocutory orders in criminal cases. In civil cases, except for orders pursuant to G. L. c. 209A, the single justice has jurisdiction over interlocutory orders of the district court. The power of the single justice to review these orders is codified at G. L. c. 211, §3. The first paragraph of G.L. c. 211, §3, gives the single justice general superintendence power over "all courts of inferior jurisdiction to prevent and correct errors and abuses." The second paragraph provides general superintendence of "the administration of all courts of inferior jurisdiction." As illustrated below, the first paragraph provides for review on a case-by-case basis. Matters under the second paragraph typically involve practices and procedures beyond a single case and may have an impact on courts and cases statewide.

Before filing a petition pursuant to G.L. c. 211, §3, the petitioner must thoroughly examine whether

  • there has been a violation of a substantive right,
  • there is another effective remedy available,
  •  review may be made in the normal course of appeal.

See Care and Protection of Lydia, 430 Mass. 1002,1003 (1999). It is well-settled that review under G.L. c. 211, §3 is not a substitute for the normal appellate process. In civil cases, interlocutory orders from the Superior Court, Land Court, Housing and Probate and Family Court must first be reviewed by a single justice of the Appeals Court pursuant to G. L. c. 231, §118. Thereafter, further review may be obtained by a panel of the Appeals Court. In limited circumstances, where panel review is not an effective remedy, the petitioner may then seek review under G.L. c. 211, §3, to a single justice of the Supreme Judicial Court. See generally Ashford v. MBTA, 421 Mass. 563 (1995).

A discussion of those superintendence petitions most frequently reviewed by the single justice and practical guidance with respect to these matters follows.

Bail

The seminal case with regard to the review of bail matters is Commesso v. Commonwealth, 369 Mass. 368 (1975). A single justice has jurisdiction under G.L. c. 211, §3 to review bail determinations made by a lower court pursuant to G. L. c. 276, §58. The scope of review depends upon whether the bail was first set in the Superior Court or the District Court. On review of a superior court bail, the single justice may consider the bail de novo and even consider newly presented facts. Conversely, review of a district court bail, which must first be reviewed by the Superior Court, is limited to whether there was an abuse of discretion or clear error of law by the Superior Court. Under section 58, the judge may also revoke bail under certain conditions and the judge is required to make specific findings to determine whether release of the person would seriously endanger any person or the community. If so, the judge may detain the person for a period not to exceed sixty days. There is no right to superior court review of a district court bail revocation order. Review of a district or superior court bail revocation order may be made pursuant to G.L. c. 211, §3. However, it has been suggested that an alternative procedural route may exist in the form of a petition for a writ of habeas corpus. Delaney v. Commonwealth, 415 Mass. 490, 496-97 (1993).

Practice Note: The rules governing single justice practice do not set a time limit for filing a petition. Nonetheless, a petition challenging a bail or bail revocation order should be filed promptly, as bail matters are afforded heightened attention by the single justice. Counsel should attach copies of all lower court papers, including findings and rulings, and a copy of the defendant's CORI record. It is important to note that the single justice will give appropriate deference and weight to the lower court's bail determination and, as such, will rarely exercise superintendence power.

Care and Protection

The single justice has jurisdiction over interlocutory orders of the district and juvenile courts in care and protection matters. See generally, Care and Protection of Bert, 429 Mass. 1001 (1999)(review of order regarding education of children); Care and Protection of Manuel, 428 Mass. 527 (1998)(review of order denying child's nomination of grandparents as legal custodians); Care and Protection of Marina, 424 Mass. 1003 (1997)(review of order striking appearance of attorney for mother).

 Practice Note: Care and protection cases are impounded by the court to preserve the confidentiality of the parties. As such, the caption should be In Re: Care and Protection. The petitioner must file a motion to impound the matter along with the petition as the court will not impound the matter sua sponte. If a hearing is held, it is important to note that the identities of the parties should not be disclosed.

Double Jeopardy

Ordinarily, a defendant does not have the right to interlocutory review of the denial of a motion to dismiss. The exception is where the motion was based on double jeopardy grounds. A defendant is entitled to review under the court's general superintendence power because "[t]he guaranty against twice being exposed to the risk of conviction, regardless of whether the conviction actually results, would be seriously weakened if appellate review of a claim of double jeopardy were delayed until after a second trial." Costarelli v. Commonwealth, 374 Mass. 677, 680 (1978). See also Hanlon v. Commonwealth, 419 Mass. 1005, 1006 (1995)(request for review is made in the lower court and, if unsuccessful, by means of a petition under G.L. c. 211,§3).

Practice Note: Where the trial date is imminent and review by the single justice may conflict with the trial date, counsel may need a stay of the trial date pending review by the single justice. Counsel must first request a stay of the trial from the lower court before the single justice will consider a motion to stay.

Stay of Sentence

General Laws c. 279, §4 and Mass.R.Crim.P. 31 confer discretionary power to stay the execution of a sentence pending appeal. If a stay is denied by the trial judge, the defendant should seek review by a single justice of the Appeals Court. If the stay is denied by the Appeals Court single justice, the defendant may seek an expedited review by a panel of the Appeals Court. While under panel review, a single justice of the Supreme Judicial Court may, though rarely will, exercise G.L. c. 211 §3 jurisdiction to allow a limited stay to facilitate the panel review. After denial by the panel, or the refusal of a request for panel review, a single justice of the Supreme Judicial Court may consider a petition seeking a stay of execution. The standard of review is whether the defendant has a reasonable likelihood of success on appeal and whether the defendant presents a danger to the community and might commit further criminal acts while the appeal is pending. See Commonwealth v. Allen, 378 Mass. 489, 497-98 (1979). See also Lewis v. Commonwealth, 429 Mass. 1007 (1999).

Summary Process

Summary process petitions are ordinarily filed in emergency situations wherein the petitioner seeks to stay an eviction. The petitioner must first seek review before a single justice of the Appeals Court pursuant to G. L. c. 231, §118. If relief is denied in the Appeals Court, the petitioner may seek a stay of eviction from a single justice of the Supreme Judicial Court.

Practice Note: Petitions in summary process matters must include a copy of the Appeals Court order in which the requested relief was denied. A request to stay the execution must first be made in the District Court or Housing Court and the Appeals Court.

The second paragraph of G.L. c. 211, §3, provides the court with extraordinary power to address administrative matters throughout the court system. The effect of decisions under paragraph two reaches beyond the case at bar and has an impact on the practices and procedures of lower courts in the Commonwealth. See, e.g., Bradford v. Knights, 427 Mass. 748, 750 (1998)(raised an important issue with implications for the administration of justice, and one that is not likely to be presented in the ordinary course of litigation, which permitted review to exercise "general superintendence of the administration of all courts of inferior jurisdiction."); Commonwealth v. Flebotte, 417 Mass. 348, 355 (1994)(invoked superintendence power to require certain questions during jury selection).