How and When Appeals Court Decisions Issue
The Massachusetts Appeals Court decides all appeals before it by issuing a written decision. Generally, the court's decision will state whether or not the lower court judgment will be upheld and explain the reasons why. A decision by the court will issue after oral argument is held, or after a case is given to a panel of judges for consideration “on the briefs,” that is, without oral argument. While there is no time period set by law or the Massachusetts Rules of Appellate Procedure, a decision generally issues within 130 days.
When the decision issues, all parties to the appeal will receive a notice informing them that a decision has been rendered with instructions on how to receive the full text of the decision from the Office of Reporter of Decisions. The date of this notice starts the clock, so to speak, for filing any application for review of the decision. All attorneys will receive electronic notifications in lieu of paper notices of the court's actions, orders, judgments, rescripts, and decisions. The Court will use the business email addresses on file with the Board of Bar Overseers pursuant to S.J.C. Rule 4:02(11). Attorneys must ensure that their business email address registered with the Board of Bar Overseers is up to date. A self-represented litigant may authorize the Court to send electronic notice in lieu of paper notices.
Decisions are issued in two forms: as full opinions, which are published in the volumes of the court reporter and as “unpublished” decisions that are also referred to as 1:28s, after the Massachusetts Appeals Court Rule that describes them. These unpublished decisions are noted in the court reporter but the full text is not “published” there. Even though they are not published, they are legitimate decisions of the court.
Whether a decision is issued as a full opinion or a 1:28 does not affect a party’s right to file a motion for reconsideration or modification of decision or to seek further appellate review if they contest the decision.
Appeals Court full opinions and 1:28 decisions are available online at no charge through the Reporter’s Office, with some exceptions.
Issuance or Stay of the Decision of the Appellate Court and Entry of Judgment in the Lower Court
The Appeals Court's "decision" is the court’s written opinion, memorandum and order pursuant to Appeals Court Rule 1:28, or other final adjudicative order in the case. Mass. R. App. P. 1(c). This is to be contrasted with the "rescript," which is the appellate court’s order, direction, or mandate to the lower court disposing of the appeal. Mass. R. App. P. 1(c).
The decision is first released to the parties and the public on the day that it is entered on the Appeals Court's docket. In most instances and barring a stay, the rescript then issues to the lower court 28 days after the rescript was released to the parties and the public. Mass. R. App. P. 23(b).
When the appellate court issues a rescript, the appellate court is ordering a lower court to enter the judgment on which the appellate court has decided. See Mass. R. App. P. 1(c) and Mass. R. App. P. 23. When the rescript is issued to the lower court, and the lower court enters the judgment ordered by the rescript, the appellate court's decision takes practical effect. See Mass. R. App. P. 23 and Mass. R. App. P. 28.
The issuance of the rescript to the lower court is automatically stayed when a party to the appeal files a timely motion for reconsideration or modification of decision, or a timely application for further appellate review. In those cases, the rescript will not issue to the lower court until the motion or application is decided. See Mass. R. App. P. 23.
A motion for reconsideration or modification of decision must be filed within 14 days of the decision of the appellate court. See Mass. R. App. P. 27(a). An application for further appellate review must be filed within 21 after the date of the decision of the Appeals Court. See Mass. R. App. P. 27.1(a). If the petition or application is denied, the rescript issues to the lower court immediately. See Mass. R. App. P. 23(c).
If you intend to file a motion for reconsideration or modification of decision or file an application for further appellate review, do not wait until the rescript issues to the lower court. This will jeopardize your appellate rights.