Rules of Appellate Procedure

Rules of Appellate Procedure Appellate Procedure Rule 27.1: Further appellate review

Effective Date: 04/01/2001
Updates: Amended effective February 24, 1975 Amended effective July 1, 1991
Amended effective January 1, 1994 Amended effective November 1, 1994 Amended effective February 1, 1995 Amended effective April 14, 1995 Amended October 30, 1997, effective January 1, 1998 Amended May 2, 2001, effective June 1, 2001 Amended February 25, 2004, effective April 1, 2004

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(a) Application; when filed; grounds

Within twenty days after the date of the rescript of the Appeals Court any party to the appeal may file an application for leave to obtain further appellate review of the case by the full Supreme Judicial Court. Such application shall be founded upon substantial reasons affecting the public interest or the interests of justice. Oral argument in support of an application shall not be permitted except by order of the court.

(b) Contents of application; form

The application for leave to obtain further appellate review shall contain, in the following order: (1) a request for leave to obtain further appellate review; (2) a statement of prior proceedings in the case (including whether any party is seeking a rehearing in the Appeals Court); (3) a short statement of facts relevant to the appeal (but facts correctly stated in the opinion, if any, of the Appeals Court shall not be restated); (4) a statement of the points with respect to which further appellate review of the decision of the appeals court is sought; and (5) a brief statement (covering not more than ten pages of typing), including appropriate authorities, indicating why further appellate review is appropriate. A copy of the rescript and opinion, if any, of the Appeals Court shall be appended to the application. In addition, if the Appeals Court entered a memorandum and order under Appeals Court Rule 1:28 which refers to another document, such as a brief or judge's findings and rulings, a copy of that document, or, if appropriate, the pertinent pages of that document, shall be appended to the application. The application shall comply with the requirements of Rule 20.

(c) Opposition; form

Within ten days after the filing of the application, any other party to the appeal may, but need not, file and serve an opposition thereto (covering not more than ten pages of typing) setting forth reasons why the application should not be granted. The opposition shall not restate matters described in subdivision (b)(2) and (3) of this rule unless the opposing party is dissatisfied with the statement thereof contained in the application. An application shall comply with the requirements of Rule 20.

(d) Filing; service

One copy of the application and one copy of each opposition shall be filed in the office of the clerk of the Appeals Court. An original and seventeen copies of the application and of each opposition shall be filed in the office of the clerk of the full Supreme Judicial Court. Filing and service of the application and of any opposition shall comply with Rule 13.

(e) Vote for further appellate review; certification

If any three justices of the Supreme Judicial Court shall vote for further appellate review for substantial reasons affecting the public interest or the interests of justice, or if a majority of the justices of the Appeals Court or a majority of the justices of the Appeals Court deciding the case shall certify that the public interest or the interests of justice make desirable a further appellate review, an order allowing the application or the certificate, as the case may be, shall be transmitted to the clerk of the Appeals Court; upon receipt, further appellate review shall be deemed granted. The clerk shall forthwith transmit to the clerk of the full Supreme Judicial Court all papers theretofore filed in the case and shall notify the clerk of the lower court that leave to obtain further appellate review has been granted.

(f) Briefs

Any party may apply to the Supreme Judicial Court within ten days after the date on which the appeal is docketed in the full Supreme Judicial Court for permission to file a new brief. If the application is granted, the new brief must be filed in accordance with the briefing schedule established by the Clerk of the Supreme Judicial Court, and the court may impose terms as to the length and filing of such brief and any response thereto. If a new brief is filed, it will be considered in lieu of the Appeals Court brief. If permission to file a new brief is denied or not sought, cases in which further appellate review has been granted shall be argued on the briefs filed in the Appeals Court.

(g) Order of argument

The applicant for leave to obtain further appellate review will argue first unless the court directs or the parties agree otherwise.

Reporter's notes

(2004) The 2004 amendment to Appellate Rule 27.1(f) revises the practice of requesting permission to file a separate or supplemental brief in cases where further appellate review in the Supreme Judicial Court has been granted. The parties have the option to rely upon the Appeals Court brief or to request permission (within ten days after the appeal is docketed in the Supreme Judicial Court) to file a new brief in lieu of the Appeals Court brief. Thus, under the revised procedure, only one brief from each party will be considered by the Supreme Judicial Court. No party may file both the brief from the Appeals Court and a new brief.

(2001) Where further appellate review has been granted after consideration of a case by the Appeals Court, the case will be reviewed in the Supreme Judicial Court based on the brief that was earlier filed in the Appeals Court. Prior to the 2001 amendment, Appellate Rule 27.1(f) provided that a party may request permission to file a separate or supplemental brief in the Supreme Judicial Court within ten days of the order granting further appellate review. However, time periods regarding service and filing of briefs in the appellate courts are generally measured from the date the appeal is docketed in the appellate court. See, for example, Appellate Rule 11(g).

To maintain consistency, therefore, the clerk’s office of the Supreme Judicial Court requested that Appellate Rule 27.1(f) be amended. The amended rule provides that the time period to request permission to file a separate or supplemental brief on further appellate review runs from the date the appeal is docketed in the Supreme Judicial Court.

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

(1997) The 1997 amendment to Appellate Rule 27.1(d) increased to seventeen the number of copies of an application for further 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.

(1995) The 1995 amendment to appellate Rule 27.1(e) makes the rule consistent with the practice of the Supreme Judicial Court which is to vote for further appellate review but not to sign an order concerning such vote.

(1994) In those cases in which the Appeals Court has reversed or vacated the judgment in the Trial Court and the Supreme Judicial Court has allowed further appellate review, Rule 27.1(g) places the applicant for further appellate review in the position of appellant for the purpose of order of argument. See Rule 22(c). The court by order or the parties by agreement may change the order of argument. In a case in which both parties apply for further appellate review, order of argument will be controlled by such agreement of the parties or order of the court.

(1979) Appellate Rule 27.1 was previously applicable to further appellate review in criminal cases by virtue of Supreme Judicial Court Rule 3:24, § 7 (1975: 366 Mass. 874), except that the words “record appendix” (prepared by the appellant) were taken to mean “record” (assembled by the clerk, former G.L. c. 278, § 33C [St.1974, c. 458, § 1] ). That distinction is no longer viable (see Rule 18[a]).

In criminal cases, § 7 of Supreme Judicial Court Rule 3:24 imposes two requirements additional to those of Appellate Rule 27.1. Subdivision 27.1(d) calls for copies of an application for further appellate review and any opposition to be filed with the clerks of the Appeals and Supreme Judicial Courts; Rule 3:24, § 7 further mandates that a copy of the application is to be served on the clerk of the trial court the action of which is on appeal. Subdivision 27.1(e) provides for notice to the clerk of the lower court by the clerk of the Appeals Court when an application for further appellate review is granted; Rule 3:24, § 7 further requires such notice in criminal cases if an application is denied.

(1975) As originally promulgated, a party desiring further appellate review had 10 days from the date of rescript to file an appropriate application. Because, in practice, this period did not suffice, it has been enlarged to 20 days. In addition, an amendment to Appellate Rule 27.1(f) allows a party who so desires to apply to the Supreme Judicial Court for leave to file a brief different from or supplementary to his brief in the Appeals Court. As originally promulgated, Rule 27.1(f) did not make clear that the party had a right to lodge such a request. However, absent leave of court, whether because the court denies the application or because the party fails to file it initially, the case will be argued on the Appeals Court papers.

(1973) G.L. c. 211A, § 11 permits the Supreme Judicial Court, for substantial reasons of justice or the public interest, to review cases determined in the Appeals Court, provided three justices of the Supreme Judicial Court so order, or a majority of the Appeals Court or a majority of the Appeals Court panel deciding the case certify the desirability of further review. Appellate Rule 27.1 regulates the application for such review.

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Updates: Amended effective February 24, 1975 Amended effective July 1, 1991
Amended effective January 1, 1994 Amended effective November 1, 1994 Amended effective February 1, 1995 Amended effective April 14, 1995 Amended October 30, 1997, effective January 1, 1998 Amended May 2, 2001, effective June 1, 2001 Amended February 25, 2004, effective April 1, 2004

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