Rules of Appellate Procedure

Rules of Appellate Procedure Appellate Procedure Rule 23: Notice of decision; issuance of rescript; stay of rescript

Effective Date: 03/01/2019
Updates: Amended effective February 24, 1975 Amended October 31, 2018, effective March 1, 2019, 481 Mass. 1601

Contact

Trial Court Law Libraries

Online

Reference librarians online Chat with a law librarian 

Table of Contents

(a)

The clerk of the appellate court shall send to all parties copies of or a link to the rescript and the decision, if one was written, on the day the decision is released.

(b)

The rescript and the decision of the appellate court shall issue to the lower court 28 days after the date of the decision unless the time is shortened or enlarged by order, except as provided by Rule 23(c).

(c)

The issuance of the rescript will automatically be stayed, unless otherwise ordered by the appellate court, by the timely filing of: (1) a motion for reconsideration or modification pursuant to Rule 27; or (2) an application for further appellate review pursuant to Rule 27.1. The rescript shall issue forthwith after both the disposition of any motions for reconsideration or modification and the denial of any applications for further appellate review, unless the appellate court or a single justice orders otherwise. If an application for further appellate review is granted, the rescript of the Appeals Court shall not issue to the lower court.

Reporter’s notes

(2019)

The title and body of Rule 23 were revised for consistency with the new definition of “decision,” and revised definition of “rescript” in Rule 1(c). These revisions clarify the distinction between the clerk’s release of a decision to the parties and the clerk’s issuance of the rescript to the lower court. Prior Rule 23’s use of the word “rescript” often confused parties because it referred both to the appellate court’s decision and to the order or direction to the lower court disposing of the appeal that is transmitted to the lower court 28 days after the release of the court’s decision. This confusion resulted sometimes in parties not filing timely petitions for rehearing (the term used for Rule 27’s motion for reconsideration or modification of decision prior to the 2019 amendments to the Rules) or applications for further appellate review since each filing was due within a specific time after the date of the rescript.


Rule 23(a) identifies the clerk’s responsibilities to issue notice of the appellate court’s release of a decision, and in Rule 23(b) to issue the rescript to the lower court. When read together, the amendments to Rules 23(a), 23(b), 27(a), and 27.1(a), establish the sequence of events that occur when an appellate court releases a decision: the clerk notifies the parties, the time period commences for filing a motion for reconsideration or modification (and, if the decision is released by the Appeals Court, an application for further appellate review), and the clerk issues the rescript and decision to the lower court 28 days later unless such issuance is stayed for one of the reasons delineated in Rule 23(c). Rule 23(a) was also revised to include that the appellate court clerk may electronically transmit a decision and rescript.

Rule 23(c). Consistent with amendments to Rule 27, the term “petition to rehearing” was changed to “motion for reconsideration or modification.”

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.

(1979)

The current text is unchanged but made applicable to criminal as well as civil cases.

(1975)

The amendment enlarges the period for the issuance of rescript from 14 days to 28 days. This change was required by the amendment to Appellate Rule 27.1(a), extending the period within which the party could apply for further appellate review from 10 days to 20 days. Without the amendment to Appellate Rule 23, therefore, a party properly waiting until the twentieth day to file his application for further appellate review might find that the rescript had issued six days earlier, thus cutting off his additional appellate rights. The other amendment to Appellate Rule 23 merely substitutes “petition” for “request”, to conform with the language of Appellate Rule 27.

(1973)

A rescript is the equivalent at the appellate level, of judgment in the trial court, Appellate Rule 1(c)Mass.R.Civ.P. 54(a). It is the appellate court’s enunciation of its disposition of the appeal, the order directing the lower court’s further conduct of the case. Usually, the rescript will issue to the lower court within fourteen days of its utterance by the appellate court. But a timely application for rehearing, Appellate Rule 27, or for further appellate review (if appropriate), Appellate Rule 27.1, will stay the issuance of the rescript.

Downloads for Appellate Procedure Rule 23: Notice of decision; issuance of rescript; stay of rescript

Contact

Online

Reference librarians online Chat with a law librarian 
Updates: Amended effective February 24, 1975 Amended October 31, 2018, effective March 1, 2019, 481 Mass. 1601
Feedback