Rules of Appellate Procedure

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

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

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Table of Contents

(a) Application; when filed; grounds.

Within 21 days after the date of the decision of the Appeals Court, any party to the appeal may file an application for further appellate review of the case by the 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 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 reconsideration or modification in the Appeals Court); (3) a short statement of facts relevant to the appeal (but facts correctly stated in the decision 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 (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, indicating why further appellate review is appropriate. A copy of the rescript and decision 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(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).

(c) Response; form.

Within 14 days after the filing of the application, any other party to the appeal may, but need not, file and serve a response thereto (consisting of not more than either 10 pages of text in monospaced font or 2,000 words of text 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 27.1(b)(2) and (3) unless the opposing party is dissatisfied with the statement thereof contained in the application. A 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.

(d) Filing; service.

One copy of the application and of each response shall be filed in the office of the clerk of the full Supreme Judicial Court. No copy of the application or any response need be filed in the Appeals Court. Filing and service of the application and of any response shall comply with Rule 13.

(e) Vote for further appellate review; certification.

If any 3 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 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.

(f) Briefs.

Any party may apply to the Supreme Judicial Court within 14 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) Equally divided vote on further appellate review.

If, following allowance of an application for further appellate review, the justices of the Supreme Judicial Court are equally divided in opinion, unless a majority of the participating justices decides otherwise, the court shall issue an order noting such equal division, the effect of which shall be the same as if the court had denied the application for further appellate review.

Reporter’s notes

(2019)

Rule 27.1(a). The word “rescript” was replaced with “decision” consistent with the new definitions contained in Rule 1(c), and the related amendments made to Rule 23, to 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, (see 2019 Reporter’s Notes to Rules 1(c) and 23), and that is the appellate court’s release of the decision that commences the timeframe for filing an application for further appellate review. A party has 21 days after the date of the decision of the Appeals Court to file an application for further appellate review in the Supreme Judicial Court. The time period does not commence on the date the Appeals Court issues the rescript to the lower court.

Rules 27.1(a) and (b). References to “an application for leave to obtain further appellate review” were revised to “an application for further appellate review” to simplify the phrase. No substantive change was intended. See G.L. c. 211A, § 11.

Rules 27.1(b) and (c), governing the length requirements of both the application and response, were revised to include the new word count alternative to the page limit, as explained in the 2019 Reporter’s Notes to Rule 1.

Rule 27.1(c) was amended to change “opposition” to “response” to more generally describe an answer to an application since not all applications are opposed.

Rule 27.1(d) was revised to reduce the number of copies of an application or response to an application for further appellate review that must be filed from “an original and seventeen copies” to 1 copy and the requirement that a copy need be filed in the Appeals Court was deleted. Fewer copies are required in the Supreme Judicial Court due to advances in paperless practices and no copy is required in the Appeals Court because the Appeals Court receives automatic notification from the Supreme Judicial Court when an application for further appellate review, or a response to an application, is filed, and an electronic copy of the document is automatically shared with the Appeals Court.

Rule 27.1(e). The phrase “upon receipt, further appellate review shall be deemed granted” was removed. According to the prior rule, although the Supreme Judicial Court entered and sent notice of an order granting further appellate review, the application would not be “deemed granted” until the Appeals Court received the order. By deleting this phrase, consistent with all other orders issued by an appellate court, the order is effective upon entry. The rule was also amended to require the Supreme Judicial Court to send notice to the lower court when it grants further appellate review.

The content of prior Rule 27.1(g), governing order of oral argument in cases argued on further appellate review, was removed. The order of argument in a case where further appellate review is granted will be the same as in any other case, with the appellant arguing first. See Rule 22(c)(1). As prior Rule 24.1 (Divided Vote on Further Appellate Review) and Rule 27.1 are closely-related, prior Rule 24.1 was deleted and its content moved to Rule 27.1(g). See 2019 Reporter’s Note to Rule 24.1.

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.

(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.

Downloads for Appellate Procedure Rule 27.1: Further appellate 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 Amended October 31, 2018, effective March 1, 2019, 481 Mass. 1601
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