Future Effective Date
Rules of Appellate Procedure

Effective March 1, 2019

Rules of Appellate Procedure Appellate Procedure Rule 3: Appeal - how taken

Effective Date: 03/01/2019
Updates: Amended May 15, 1979, effective July 1, 1979 Amended May 29, 1986, effective July 1, 1986
Amended July 28, 1999, effective September 1, 1999 Amended October 31, 2018, effective March 1, 2019, 481 Mass. 1601

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Table of Contents

(a) Filing the notice of appeal

(1) An appeal permitted by law from a lower court shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by Rule 4, with service upon all parties. Failure of an appellant to take any step other than the timely filing of a notice of appeal shall not affect the validity of the appeal, but shall be ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal.

(2) A party need not claim an appeal from an interlocutory order to preserve the party’s right to have such order reviewed upon appeal from the final judgment; but for all purposes for which an appeal from an interlocutory order has heretofore been necessary, it is sufficient that the party comply with the requirement of Massachusetts Rule of Civil Procedure 46 or Massachusetts Rule of Criminal Procedure 22, whichever was applicable to the trial of the case in the lower court.

(b) Appeals by multiple parties

If 2 or more persons are entitled to appeal from a judgment, decree, adjudication, order, or part thereof of a lower court and their interests are such as to make joinder practicable, they may file a joint notice of appeal, or may join in appeal after filing separate timely notices of appeal.

(c) Content of the notice of appeal

(1) Content of the Notice of Appeal, Generally. The notice of appeal shall specify the party or parties taking the appeal and shall, in civil cases, designate the judgment, decree, adjudication, order, or part thereof appealed from.

(2) Content of the Notice of Appeal in Child Welfare Cases. In child welfare cases, the notice of appeal and any request for a transcript, if required, shall be signed by the person or persons, or by counsel for the entity, taking the appeal; however, if the appellant is a minor, the notice and request shall be signed by the minor’s counsel. A notice of appeal that is not so signed shall not be accepted for filing by the clerk.

(d) Service of the notice of appeal

The clerk of the lower court shall serve notice of the filing of a notice of appeal by transmitting a copy thereof to counsel of record for each party other than the appellant, or, if a party is not represented by counsel, to the party. The clerk shall note on each copy served the date on which the notice of appeal was filed. Failure of the clerk to serve notice shall not affect the validity of the appeal. Service shall be sufficient notwithstanding the death of a party or counsel. The clerk shall note in the docket the names of the persons to whom copies are transmitted, and the date of transmission.

(e) Change of counsel on appeal in criminal and certain non-criminal cases

If the defendant in a criminal case, or any party in any other proceeding, excluding child welfare cases, in which counsel is required to be made available to such party pursuant to Supreme Judicial Court Rule 3:10, was represented by counsel at trial, the trial court counsel shall continue to represent that party on appeal until an appearance is filed by substitute counsel, if such assignment of counsel is made by the Committee for Public Counsel Services. In such proceedings, assigned trial court counsel shall, no later than the day on which the notice of appeal is filed, notify the Committee for Public Counsel Services that appellate counsel should be assigned. Assigned appellate counsel shall promptly file a notice of appearance in the trial court, following which trial court counsel may file a notice of withdrawal.

(f) Appointment of appellate counsel in child welfare cases

(1) Subject to the provisions of Rule 10(d), any party to a child welfare case in which counsel was appointed pursuant to Supreme Judicial Court Rule 3:10 and who was represented by counsel at trial shall continue to be represented by that counsel on appeal until either the lower court has appointed counsel for appellate purposes and an appearance has been filed by appellate counsel or the lower court has denied a motion to appoint counsel for appellate purposes.

(2) Lower court counsel shall, on the day upon which the signed notice of appeal is filed, file, and request a hearing on, a motion to allow reasonable costs associated with the appeal in the lower court. At the same time, if lower court counsel is not appellate certified by the Committee for Public Counsel Services, counsel shall also file, and request a hearing on, a motion to appoint counsel for appellate purposes in the lower court. Subject to the provisions of Supreme Judicial Court Rule 3:10, § 7, lower court counsel shall continue to represent the party at all lower court proceedings.

(3) If the motion to appoint counsel for appellate purposes is allowed, the Committee for Public Counsel Services shall be assigned to provide representation according to the procedures established in Supreme Judicial Court Rule 3:10.

(4) If counsel has not filed a motion to withdraw appearance in the lower court, or counsel has filed a motion to withdraw but the motion has not been allowed by the lower court prior to the date that the lower court transmits to the appellate court the notice of assembly of the record pursuant to Rule 9, lower court counsel will be designated as counsel in the appellate court. Any motion to withdraw filed thereafter shall comply with Rule 10(d).

Reporter's Notes

(2019)

Rule 3(a). The phrase “with service upon all parties” was added to the first sentence to clarify the appellant’s duty to serve all other parties when filing a notice of appeal. Although the clerk of the lower court is still required to serve notice on the parties pursuant to Rule 3(d), this amendment is consistent with Mass. R. Civ. P. 5(a) and Mass. R. Crim. P. 32(a), which require documents (other than those allowed to be filed ex parte) filed in court to be served on all other parties.

Rule 3(b). The title of this subdivision was revised from “Joint or Consolidated Appeals” to “Appeals by Multiple Parties.” The designation of parties proceeding on appeal as a single appellant is most often made by the appellate court when the appeal is docketed in the appellate court, and not by the lower court after the notice of appeal is filed there. Accordingly, language relating to consolidated appeals and authorizing parties to proceed on appeal as a single appellant was relocated to Rules 10(a)(5) and (6). The first sentence of Rule 3(b) was revised to clarify that in addition to a judgment or order, an appeal may be taken from a “decree, adjudication . . . or part thereof.” The addition of these terms makes this subdivision consistent with other parts of the Rules. See Rules 3(c), 4(a)(1), and 4(b)(1).

Rule 3(c) was reformatted to clarify the required content of a notice of appeal. Rule 3(c)(1) applies “generally” to civil and criminal cases and Rule 3(c)(2) applies to child welfare cases. Because the requirements related to a notice of appeal in a child welfare case are different, a separate paragraph addressing those particular requirements clarifies the rule. Regarding the signing of the notice of appeal in a child welfare case where the appellant is not a minor, the reference is amended from “party or parties taking the appeal,” to “person or persons, or by counsel for the entity, taking the appeal,” to be consistent with the new definition of “party” in Rule 1(c), and because the term “person” ordinarily does not apply to government entities, such as the Department of Children and Families, which may take appeals in child welfare cases and which can act only through counsel.

Rule 3(d) was updated to replace “mailing” with “transmitting,” to accommodate the fact that the lower court may have procedures by which the clerk transmits electronic notice. See Mass. R. Civ. P. 77(d)(2).

Rule 3(e), governing the change of counsel on appeal in criminal and certain non-criminal cases, was amended to change the procedure for counsel to withdraw an appearance upon the filing of a notice of appeal in the common situation that the Committee for Public Counsel Services (CPCS) assigns substitute counsel to handle a party’s appeal. The prior procedure required the defendant’s counsel to file a motion to withdraw that required action by the trial court before notice was made to CPCS to provide appellate representation. The new procedure requires the defendant’s counsel with an appearance in the trial court to notify CPCS no later than the day on which the notice of appeal is to be filed that appellate counsel should be assigned. CPCS will then assign appellate counsel, who is required to file a prompt notice of appearance in the trial court. After the appellate attorney has entered the appearance, the prior counsel of record in the trial court may file a notice of withdrawal.

Rule 3(f)(4) is an entirely new paragraph that explains the existing practices that occur when counsel who has been active in the lower court either has not filed a motion to withdraw appearance in the lower court or when such a motion has been filed and not acted upon prior to the lower court’s issuance of the notice of assembly of the record on appeal. In such instances, the lower court counsel’s appearance in the case will continue and that counsel will be designated as active counsel in the appellate court. Rule 3(f)(4) includes a reference to new Rule 10(d), which governs motions to withdraw appearance after the lower court’s issuance of the notice of assembly and docketing of an appeal in the appellate court.

The addition of Rule 3(f)(4) is intended to clarify that counsel listed as active on the lower court docket at the time the lower court issues the notice of assembly per Rule 9 will be listed as active counsel on the docket of the appellate court, and encourage such counsel to file a prompt notice of withdrawal in the lower court. This is consistent with Mass. R. Civ. P. 11(d) and Mass. R. Prof. C. 1.16(c). Rule 3(f)(4) also clarifies that, after an appeal is docketed in an appellate court, a motion to withdraw must be filed in the appellate court, not the lower court. The inclusion of this longstanding practice into the Rules will reduce confusion on the part of attorneys as to why their appearance was entered on the appellate court docket in circumstances where the attorney was retained or assigned as lower court counsel only, and clarifies that a motion to withdraw appearance should be filed in the appellate court once that court has jurisdiction of a case. See Rule 10(d).

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.

(1999) 

The 1999 amendments to Appellate Rule 3 were part of a comprehensive set of amendments to the Appellate Rules (Rules 1348, and 10) that had been proposed by the Supreme Judicial Court Committee on Appeals of Child Welfare Cases. The purpose of the 1999 amendments is described in the 1999 Reporter’s Notes to Appellate Rule 1(c).

Appellate Rule 3(c) has been amended to require that in child welfare cases, the notice of appeal must be signed by the party or parties taking the appeal unless the appellant is the minor who is the subject of the action. The clerk is directed not to accept an appeal that is not so signed. The purpose of this change is to eliminate the taking of an appeal on behalf of an absent and disinterested client.

The amendment to Appellate Rule 3(f) make it clear that until appellate counsel files an appearance, trial counsel is obligated to continue representation of the client. Even after appellate counsel has filed an appearance, trial counsel will continue to represent the party at all proceedings in the trial court.

(1979) 

The second paragraph of subdivision (a) is amended by the addition of a reference to Mass.R.Crim.P. 22, “Objections,” to clarify that a party need not claim an exception to an interlocutory order adverse to his position to preserve his right to have that order subsequently reviewed on appeal.

Subdivision (b) regulating joint or consolidated appeals, is consistent with prior criminal appellate practice.

Subdivision (c) is amended to reflect the fact that in a civil case, the notice of appeal must designate the judgment, order, or part thereof which is appealed from. It would also be appropriate in an interlocutory appeal in a criminal case for the notice of appeal to designate the order from which an appeal is being taken (e.g., denial of motion to suppress, grant of motion to dismiss), but this is not required by the rule because there is seldom any question about the matter being appealed.

General Laws, c. 278, § 33B (St.1955, c. 352, § 2) formerly provided that the clerk was to notify the District Attorney of a claim of appeal “forthwith.” Subdivision (d) is more explicit in setting out the manner of notice and will require notification of co-defendants, if any, when a notice of appeal is filed.

Subdivision (e) “Change of Counsel on Appeal in Criminal Cases,” is new and addresses the continuing responsibility of the trial attorney to provide assistance to a client beyond entry of final judgment in the trial court. See ABA Standards Relating to Criminal Appeals 21-2.2(a) (2d ed., Approved Draft, 1978). This subdivision seeks to avoid a hiatus in legal representation during a critical period when the defendant has questions as to the meaning and effect of conviction and the option of whether to appeal. ABA Standards, supra, commentary at 10.

In Pires v. Commonwealth, 373 Mass. 829 (1977), the Supreme Judicial Court held that a lawyer has a professional obligation to his client which goes beyond the trial of the case. The court adopted the provisions of the American Bar Association Project on Standards for Criminal Justice as the appropriate measure of the responsibility of counsel. Standard 8.2 of the Defense Function (Approved Draft 1971), provides:

8.2 Appeal. (a) After conviction, the lawyer should explain to the defendant the meaning and consequences of the court’s judgment and his right of appeal. The lawyer should give the defendant his professional judgment as to whether there are meritorious grounds for appeal and as to the probable results of an appeal. He should also explain to the defendant the advantages and disadvantages of an appeal. The decision whether to appeal must be the defendant’s own choice. (b) The lawyer should take whatever steps are necessary to protect the defendant’s right of appeal.

(1973) 

An appeal is initiated by filing in the lower court a notice of appeal, within 30 days following the order or judgment appealed from. If the Commonwealth or any office or agency thereof is a party, however, the appeal time is extended to 60 days. After the notice of appeal has been filed, the clerk of the lower court notifies all other parties by mail of the notice’s having been filed. It is the date of the filing, however, not the date of the notice, which controls the timeliness of the appeal.

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Updates: Amended May 15, 1979, effective July 1, 1979 Amended May 29, 1986, effective July 1, 1986
Amended July 28, 1999, effective September 1, 1999 Amended October 31, 2018, effective March 1, 2019, 481 Mass. 1601

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