Future Effective Date
Rules of Appellate Procedure

Effective March 1, 2019

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

Effective Date: 03/01/2019
Updates: Effective July 1, 1974 Amended October 31, 2018, effective March 1, 2019, 481 Mass. 1601

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Table of Contents

(a) General provisions.

The Supreme Judicial Court and the Appeals Court shall be deemed always open for the purpose of filing any proper document, 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 regular court business hours on all weekdays except State and Federal holidays recognized by the Commonwealth.

(b) The docket; calendar; other records required.

(1) The clerk shall keep an electronic 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 docket numbers. All filings, orders, decisions, and rescripts shall be entered chronologically on the docket. Entries shall show the nature of each filing, order, decision, or rescript.

(2) 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, the clerk shall give preference to appeals in child welfare and criminal cases, and to appeals and other proceedings entitled to preference by law.

(3) The clerk shall keep such other records as may be required from time to time by law or by the appellate court.

(c) Notice of orders, decisions, or rescripts.

Upon the entry of an order, decision, or rescript, including an order on an application for direct or further appellate review, the clerk of the appellate court shall send a notice of entry to each party, and include a copy of or a link to any decision and rescript. The clerk shall send such notice to the electronic business address of an attorney that is registered with the Board of Bar Overseers, and may send paper notice by conventional mail. The clerk shall send such notice to the mailing or electronic address of a self-represented party, depending upon such party’s address preference as registered with the clerk.

(d) Custody of records and documents.

The clerk shall have custody of the records and documents of the appellate court. The clerk shall not permit any original record or document to be taken from the clerk’s custody except as authorized by the orders or instructions of the court or a single justice. Original documents transmitted as the record on appeal or review shall be returned to the lower court.

Reporter’s notes

(2019)

Rule 31(a). The first two sentences of the prior rule were deleted as unnecessary because the clerk’s oath and bond requirements are established by statute (G.L. c. 221, § 12) and the prohibition on practicing law has been superseded by S.J.C. Rule 3:02 and S.J.C. Rule 3:12, Canon 3. The provisions regarding specific business hours of court (weekdays and holidays) were removed because they are outside the scope of the Rules of Appellate Procedure.

Rule 31(b) was separated into three paragraphs for clarity, and the language updated for consistency, with current practices and the revisions to the definitions in Rule 1(c). Consistent with the appellate courts’ longstanding practices, the revised rule includes child welfare cases as proceedings to be given preference by the clerk when scheduling cases for argument. Criminal cases and other proceedings are entitled to preference by law. See G.L. c. 211, § 7 and G.L. c. 211A, § 13.

Rule 31(c). The title of this rule was amended to include “decision” given its addition in 2019 to Rule 1(c). Language was added authorizing the clerk to send notices to an attorney’s electronic business address registered with the Board of Bar Overseers, and providing that paper notice by conventional mail may be sent. In addition, the clerk is authorized to send electronic or paper notice to self-represented parties, depending upon such party’s preference as registered with the clerk.

Rule 31(d). In the last sentence, the phrases “upon the disposition of the case” and “from which they were received” were deleted. The first phrase was deleted because it is current practice to return original documents transmitted to an appellate court back to the lower court when review of the case is completed; the clerk does not presently wait for disposition of the case before doing so. The second phrase was deleted as unnecessary; the clerk of the appellate court only returns original documents to the lower court which had transmitted the records.

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.

(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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