Rules of Appellate Procedure Appellate Procedure Rule 7: Disability of a member of the lower court
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If a judge whose decision has been appealed to the appellate court becomes unable to participate further, then any other judge of or assigned to the lower court may be substituted.
Rule 7 was substantially revised to eliminate an enumerated list of the reasons a lower court judge may become unable to participate further in a case on appeal and to clarify that judicial substitutions may be made as needed. The revised language is consistent with Mass. R. Civ. P. 63 and Mass. R. Crim. P. 38.
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.
Disability of the trial judge in criminal cases was formerly dealt with in Supreme Judicial Court Rule 1:10 (1975: 366 Mass. 859-60) and Appeals Court Rule 1:10 (1975: 3 Mass.App.Ct. 803), which are superseded by the application of this rule to criminal proceedings. As to disability of the judge under the trial rules, see Mass.R.Civ.P. 63 (1974) and Mass.R.Crim.P. 38 (1979).
This rule, which does not appear in the Federal Rules of Appellate Procedure, reads into appellate procedure the provisions of Mass.R.Civ.P. 63, and ensures that whenever the Appellate Rules require action by the lower court judge, his disability will not of itself impede the appellate process.