Rules of Appellate Procedure

Rules of Appellate Procedure Appellate Procedure Rule 31: Duties of clerks

Effective Date: 07/01/1974

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(a) General provisions

Any clerk of the appellate court shall take the oath and give the bond required by law. No clerk shall practice in any court as an attorney or as counselor while he continues in office. The Supreme Judicial Court and the Appeals Court shall be deemed always open for the purpose of filing any proper paper, of issuing and returning process and of making motions and orders. The office of the clerk with a clerk in attendance shall be open during the hours from nine in the morning to four-thirty in the afternoon on all days except Saturdays, Sundays, and those days specified in G.L. c. 4, § 7, any other day appointed as a holiday by the President or the Congress of the United States, or designated by the laws of the Commonwealth, and except that either court may authorize closing of its clerk's office at four in the afternoon during the period between the Fourth of July and Labor Day.

(b) The docket; calendar; other records required

The clerk shall keep a book known as the docket, in such form and style as may be prescribed by the appellate court, and shall enter therein each case. Cases shall be assigned consecutive file numbers. The file number of each case shall be noted on the folio of the docket whereon the first entry is made. All papers filed with the clerk and all process, orders and rescripts shall be entered chronologically in the docket on the folio assigned to the case. Entries shall be brief but shall show the nature of each paper filed or rescript or order entered. The entry of an order or rescript shall show the date the entry is made. The clerk shall keep a suitable index of cases contained in the docket. The clerk shall prepare, under the direction of the appellate court, a calendar of cases awaiting argument. In placing cases on the calendar for argument, he shall give preference to appeals in criminal cases and to appeals and other proceedings entitled to preference by law. The clerk shall keep such other books and records as may be required from time to time by law or by the appellate court.

(c) Notice of orders or rescripts

Immediately upon the entry of an order or rescript or upon receipt of notice of the grant of an application for direct or further appellate review the clerk shall serve a notice of entry by mail upon each party to the proceeding together with a copy of any opinion respecting the order or rescript, and shall make a note in the docket of the mailing. Service on a party represented by counsel shall be made on counsel.

(d) Custody of records and papers

The clerk shall have custody of the records and papers of the appellate court. He shall not permit any original record or paper to be taken from his custody except as authorized by the orders or instructions of the court or a single justice. Original papers transmitted as the record on appeal or review shall upon disposition of the case be returned to the lower court from which they were received.

Reporter's notes

(1984) Under the provisions of Mass.R.A.P. 31(d), transcripts filed in the appellate court need not be returned to the lower court. For this purpose, transcripts are not part of the “original papers.” See Mass.R.A.P. 8(a), which lists “original papers” as distinct from “the transcript of proceedings.”

(1979) The duties of clerks set out in this Rule have been applicable to criminal appellate procedure since the effective dates of Appeals Court Rule 1:27 (February 27, 1975: 3 Mass.App.Ct. 805) and Supreme Judicial Court Rule 1:27 (January 1, 1975: 366 Mass. 862).

(1973) Appellate Rule 31, based on F.R.A.P. 45, outlines the duties and responsibilities of the clerk and his assistants. Note that although the clerk’s office is open only during normal business hours, the court is deemed open at all times for purposes of filing motions, papers, and the like. See also Mass.R.Civ.P. 77.

 

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