Rules of Appellate Procedure  Appellate Procedure Rule 11: Direct appellate review

An appeal within the concurrent appellate jurisdiction of the Appeals Court and Supreme Judicial Court shall be docketed in the Appeals Court before a party may apply to the Supreme Judicial Court for direct appellate review. Within 21 days after the docketing of an appeal in the Appeals Court, any party to the case (or 2 or more parties jointly) may apply in writing to the Supreme Judicial Court for direct appellate review, provided the questions presented by the appeal are (1) questions of first impression or novel questions of law which should be submitted for final determination to the Supreme Judicial Court; (2) questions of law concerning the Constitution of the Commonwealth or questions concerning the Constitution of the United States which have been raised in a court of the Commonwealth; or (3) questions of such public interest that justice requires a final determination by the full Supreme Judicial Court.

The application for direct appellate review shall contain, in the following order: (1) a request for direct appellate review; (2) a statement of prior proceedings in the case; (3) a short statement of facts relevant to the appeal; (4) a statement of the issues of law raised by the appeal, together with a statement indicating whether the issues were raised and properly preserved in the lower court; (5) a brief argument thereon (consisting of not more than either 10 pages of text in monospaced font or 2,000 words in proportional font, as defined in Rule 20(a)(4)(B)) including appropriate authorities, in support of the applicant’s position on such issues; and (6) a statement of reasons why direct appellate review is appropriate. A copy of the docket entries shall be appended to the application. The applicant shall also append a copy of any written decision, memorandum, findings, rulings, or report of the lower court relevant to the appeal. The application shall comply with the requirements of Rule 20(a), and shall contain a certification of such compliance, including a statement of how compliance with the foregoing length limit was ascertained, as specified in Rule 16(k).

Within 14 days after the filing of the application, any other party to the case may, but need not, file and serve a response thereto (consisting of not more than either 10 pages of text in monospace font or 2,000 words in proportional font, as defined in Rule 20(a)(4)(B)) setting forth reasons why the application should or should not be granted. The response shall not restate matters described in Rule 11(b)(2) and (3) unless the party is dissatisfied with the statement thereof contained in the application. The response shall comply with the requirements of Rule 20(a), and shall contain a certification of such compliance, including a statement of how compliance with the foregoing length limit was ascertained, as specified in Rule 16(k). A response may be filed in a different form as permitted by the court.

One copy of the application and of each response shall be filed in the office of the clerk of the full Supreme Judicial Court. Filing and service of the application and of any response shall comply with Rule 13.

The filing of an application for direct appellate review shall not extend the time for filing briefs or doing any other act required to be done under these rules.

If any 2 justices of the Supreme Judicial Court vote for direct appellate review, or if a majority of the justices of the Appeals Court shall certify that direct appellate review is in the public interest, an order allowing the application (or transferring the appeal sua sponte) or the certificate, as the case may be, shall be transmitted to the clerk of the Appeals Court with notice to the lower court. The clerk of the Appeals Court shall forthwith transmit to the clerk of the full Supreme Judicial Court all documents filed in the case.

In any appeal transferred to the full Supreme Judicial Court from the Appeals Court:

(1) If at the time of transfer all parties have served and filed briefs in the Appeals Court, no further briefs may be filed by the parties except that a reply brief may be served and filed on or before the last date allowable had the case not been transferred, or within 14 days after the date on which the appeal is docketed in the full Supreme Judicial Court, whichever is later.

(2) If at the time of transfer only the appellant’s brief has been served and filed in the Appeals Court the appellant may, but need not, serve and file an amended brief within 21 days after the date on which the appeal is docketed in the full Supreme Judicial Court. The appellee shall serve and file a brief within 30 days after service of any amended brief of the appellant, or within 50 days after the date on which the appeal is docketed in the full Supreme Judicial Court, whichever is later.

(3) Service and filing of a reply brief shall comply with Rule 19.

(4) If at the time of transfer to the full Supreme Judicial Court no party to the appeal has served or filed a brief, the appellant shall serve and file a brief within 21 days after the date on which the appeal is docketed in the full Supreme Judicial Court or within 40 days after the date on which the appeal was docketed in the Appeals Court, whichever is later.

(2019)

Rule 11(a) was amended to remove the statement that no oral argument will be allowed in support of an application for direct appellate review. Oral argument is not ordinarily permitted under this rule and removing the reference to oral argument is consistent with Supreme Judicial Court practice.

Rule 11(d) was revised to reduce the number of copies of an application or response to an application for direct appellate review that must be filed from “an original and seventeen copies” to 1 copy. Due to advances in paperless practices, the Supreme Judicial Court now only requires 1 copy to properly process and review these documents. The requirement that a copy of the application be filed in the Appeals Court was deleted because the Appeals Court receives automatic notification from the Supreme Judicial Court when an application for direct appellate review is filed.

Rule 11(f) was revised to align the rule with court practices. According to the prior rule, although the Supreme Judicial Court entered and sent notice of an order granting direct appellate review, the order would not actually be “deemed granted” until the Appeals Court received it. The amendments to this rule delete the phrase “upon receipt, direct appellate review shall be deemed granted” to clarify that the order is effective upon its entry. Rule 11(f) was also amended to substitute the Supreme Judicial Court in place of the Appeals Court as the court sending notice to the lower court when direct appellate review is granted.

Rule 11(g)(1) was amended by inserting “by the parties” after “If at the time of transfer all parties have served and filed briefs in the Appeals Court, no further briefs may be filed” to clarify that in cases that are fully briefed prior to transfer, the prohibition against filing additional briefs does not apply to amicus briefs.

Further organizational and stylistic revisions were made to this rule in 2019 in accordance with a global review and revision of all of the Appellate Rules. These revisions are described in the 2019 Reporter’s Notes to Rule 1.

With regard to the preparation of the 2019 Reporter’s Notes to this Rule, see the first paragraph of the 2019 Reporter’s Notes to Rule 1. For an overview of the 2019 amendments to the Rules and a summary of the global amendments to the Rules, see 2019 Reporter’s Notes to Rule 1, sections I. and II.

(2002)

[Notes to Appellate Rule 11(B)] In 2002, the Supreme Judicial Court amended Appellate Rule 11(b) to require that an application for direct appellate review contain “a statement indicating whether the issues were raised and properly preserved in the lower court” and that “a copy of any written decision, memorandum, findings, rulings, or report of the lower court relevant to the issues on appeal” be appended to the application. Having a statement regarding whether issues were raised below and a copy of the lower court’s decision will serve to benefit the court’s determination in considering the application for direct appellate review.

(1999) 

The cover of applications for direct appellate review shall be white. See Appellate Rule 20(b), as amended in 1999.

(1997) 

The 1997 amendment to Appellate Rule 11(d) increased to seventeen the number of copies of an application for direct appellate review and of each opposition to be filed in the clerk’s office of the Supreme Judicial Court. The amendment also clarified that an original is to be filed together with the seventeen copies.

(1996) 

The 1996 amendment to Mass.R.A.P. 11(f), effective January 29, 1996, is a technical amendment to that portion of the first sentence relating to certification that direct appellate review by the Supreme Judicial Court is in the public interest. The amendment provides for certification by “a majority of the justices of the Appeals Court,” replacing earlier language providing for certification by “all of the justices of the Appeals Court or any majority thereof.”

(1979) 

Appellate Rule 11 was previously applicable to direct appellate review in criminal cases by virtue of Supreme Judicial Court Rule 3:24, § 4(1) (1975) 366 Mass. 870, (1975) except that the words “the appeal is docketed” were taken to mean “the case is entered.” That distinction is no longer viable (see Rule 10( [a][2]).

Only two changes are made in the former rule. A new first sentence is added to subdivision (a), which restates the first sentence of Supreme Judicial Court Rule 3:24 supra § 3. Section 3 also provided that:

All matters preliminary to the entry of . . . appeals [within the concurrent appellate jurisdiction of the Appeals and Supreme Judicial Court] which require action by an appellate court shall be presented to and disposed of by the Appeals Court.

That requirement is implicit in Rule 11.

Secondly, the time within which an application for direct appellate review may be filed is increased from ten to twenty days after the docketing of the appeal in the Appeals Court. The remainder of the rule is unchanged.

(1973) 

Appellate Rule 11 implements the statutorily-authorized direct review by the Supreme Judicial Court of cases which would otherwise first be heard and determined in the Appeals Court; G.L. c. 211A, § 10. (For procedure subsequent to an Appeals Court decision, see Appellate Rule 27.1). Direct review may result if: (1) The Supreme Judicial Court (or two justices thereof) shall so order, either (a) sua sponte, or (b) on application of one or more parties; or (2) The Appeals Court (or a majority of the justices thereof) shall certify that direct review is in the public interest.

The rule deals with the mechanics of application for direct review, and also prescribes the procedure governing cases accorded direct review, no matter what the means which caused such review (order by the Supreme Judicial Court ex mero motu, order on application, or certification by the Appeals Court).

Of the routes to direct review, only one--Supreme Judicial Court order after application--ought appropriately to be governed by the Appellate Rules. The other two, self-initiated exercises of judicial discretion and administration, are intracourt matters not subject to procedural regulation.

What Appellate Rule 11(a)-(d) accomplishes, therefore, is to assure appellate parties the right to put the matter before the Supreme Judicial Court and to urge direct review; the rule leaves all other means by which review may be granted out of the parties’ control entirely, and completely in the dispositive power of the respective courts.

The application for direct review proceeds parallel to the usual requirements, Appellate Rule 11(e). Application does not in any way “stop the clock” with respect to normal appellate procedure. Once review is granted, however, a special timetable controls, Appellate Rule 11(g). In general, any brief already filed in the Appeals Court need not be re-filed in the Supreme Judicial Court; if no party has yet filed, the briefing schedule, proceeding as though the appeal had commenced initially in the Supreme Judicial Court, is controlled by Appellate Rule 19.