Mass. R. App. P. 1
"appeal" means an appeal to an appellate court and supersedes any procedure other than reservation and report by which matters have heretofore been brought before an appellate court for review.
"appellate court" means the full Supreme Judicial Court, the full Appeals Court, or a statutory quorum of either, as the case may be, whichever court is exercising jurisdiction over the case at bar.
"child welfare case" means any case that is before a court of competent jurisdiction pursuant to G.L. c. 119, §§ 21-39J; G.L. c. 190B regarding guardianship of minors; or G.L. c. 210, §§ 1-11.
"clerk" means "clerk," "register," "recorder," and their respective assistants or deputies; "clerk of the appellate division" means the clerk of the trial court from which the action was appealed or reported to the appellate division.
"decision" means, when referring to an appellate court, the court's written opinion, memorandum and order pursuant to M.A.C. Rule 23.0, or other final adjudicative order in the case.
"first class mail or its equivalent" means (1) use of the United States Postal Service through first class postage or other class of mail that is at least as expeditious, postage prepaid or (2) dispatch to a third-party commercial carrier for delivery within 3 days. Registration or certification shall not be required unless specifically stated to be necessary.
"indigent party" means a person who is a party to a legal proceeding and whom a court has determined meets the statutory criteria to obtain waiver, reduction, or payment of certain fees and costs incident to civil and criminal litigation, including appeals in that proceeding.
"lower court" means the single justice, court, appellate division, board, commission, or other body whose decision is the subject of a direct appeal to an appellate court; for the purpose of Rule 9, the term includes any member of the lower court.
"party" means a person or entity appearing in a case, including an appeal. In the context of performing any act under these rules, a party means counsel, where a party is represented by counsel, and, when a party is not represented by counsel, it means the self-represented litigant.
"rescript" means the appellate court's order, direction, or mandate to the lower court disposing of the appeal.
"single justice" means a single justice of whichever appellate court is exercising jurisdiction over the case at bar.
"transmission" or "transmit" means the sending or conveying of a document or court record through a medium authorized by the court or these rules, and may include, but is not limited to, first class mail or its equivalent, electronic filing, electronic mail, facsimile, or electronic file share.
Mass. R. App. P. 1
Reporter's Notes (2019):
These Reporter's Notes describing the 2019 amendments were prepared by the subcommittee appointed by the Supreme Judicial Court Standing Advisory Committee on the Rules of Civil and Appellate Procedure, in conjunction with the Standing Advisory Committee on the Rules of Criminal Procedure.
I. Overview.
In 2015, the Supreme Judicial Court Standing Advisory Committee on the Rules of Civil and Appellate Procedure, in conjunction with the Standing Advisory Committee on the Rules of Criminal Procedure, appointed a subcommittee to review the Massachusetts Rules of Appellate Procedure (hereinafter "Rules"). The Rules were enacted in 1974 and, although many isolated amendments were adopted over the ensuing years, no full-scale review of the Rules had occurred in over four decades. Accordingly, the Standing Advisory Committee charged the subcommittee to review the Rules and identify proposals that would:
. make the Rules more easily understood and followed;
. facilitate the just and expeditious resolution of appeals;
. clarify and simplify filing and formatting requirements;
. eliminate arcane language and incorporate consistent style and terminology;
. incorporate existing practices and procedures; and
. facilitate the appellate and trial courts' development of paperless processes.
In 2017, the subcommittee posted many proposed amendments for a period of public comment and review. Numerous public comments were submitted. The subcommittee studied the comments and made many significant changes in response.
Where possible, the subcommittee sought to preserve the current Rules' language and related procedures so not to disrupt established practices that, for the most part, operate well. Consequently, many proposed amendments are merely stylistic or organizational, and require minimal change to current procedures. Other proposed amendments are substantive and intended to improve a rule or procedure consistent with the subcommittee's charge.
The subcommittee also compared the relevant Federal Rules of Appellate Procedure, aware of both the differences between the Massachusetts and Federal courts and case types, and of the recent Federal "restyling" amendments designed to make those rules more comprehensible. While the subcommittee followed the spirit of the Federal restyling amendments, the subcommittee concluded the preferable route in most instances would be to maintain the existing Massachusetts Rules' language, style, and procedures instead of proposing a wholesale adoption of the current Federal rules. However, in certain situations the subcommittee derived amendments from adopted Federal language. See, e.g., Rules 4(d) and 13(a)(2) (timeliness of filings by a self-represented party confined in an institution); Rules 20(a)(2) and (a)(3) (word count alternative to page limitation for briefs).
The subcommittee's proposals were endorsed by the Supreme Judicial Court Standing Advisory Committee on the Rules of Civil and Appellate Procedure, and by the Standing Advisory Committee on the Rules of Criminal Procedure. In 2018, the Supreme Judicial Court approved the amendments and identified their effective date.
II. Global Amendments.
The following global amendments were made, where appropriate, throughout the Rules:
(1) Gender Neutrality. Masculine gender pronouns were removed in favor of gender- neutral phrases.
(2) Provisions Rendered Obsolete by Technology. The amendments removed certain provisions that had become obsolete because of technological developments and work processes.
(3) Word Count. The Rules were amended to allow, as does Fed. R. App. P. 32(a)(7), the use of a word limit together with a proportionally spaced font, as an alternative to a page limit, in setting the permissible lengths of principal and reply briefs, amicus briefs, motions for reconsideration or modification of decision (previously called petitions for rehearing), and applications for and responses to direct and further appellate review. The word limits are not intended to allow for longer documents.
The word limits are: 11,000 for a principal brief in all cases except cross appeals (Rule 20(a)(2)(A) ); 4,500 for a reply brief in all cases except cross appeals (Rule 20(a)(2)(B) ); 11,000 for an appellant's principal brief in a cross appeal (Rule 20(a)(3)(A) ); 13,000 for an appellee's principal/response brief in a cross appeal (Rule 20(a)(3)(B) ); 11,000 for an appellant's response/reply brief in a cross appeal (Rule 20(a)(3)(C) ); 4,500 for an appellee's reply brief in a cross appeal (Rule 20(a)(3)(D) ); 7,500 for an amicus brief (Rules 20(a)(2)(C) and (a)(3)(E) ); 2,000 for a motion for reconsideration or modification of decision (Rules 27(b) and (c) ); 2,000 for argument in applications for direct appellate review and for further appellate review, as well as any response to those documents (Rules 11(b), 11(c), and 27.1 ); and 1,000 for a response to a transfer from the Supreme Judicial Court (Rule 11.1 ).
The amendments exclude items for inclusion in the length limits consistent with current Rule 16(h), and current Fed. R. App. P. 32(a)(7)(B)(ii), except that the signature block also is excluded. See Rules 20(a)(2)(D) and 20(a)(3)(E). The amendments to Rule 16(k) require a certification as to how compliance with the brief-length limit was ascertained. See Rules 20(a)(2)(F), 20(a)(3)(G) and 16(k).
The Federal rules likewise require a certificate of compliance for word count. See Fed. R. App. P. 32(a)(7)(C).
This amendment eliminates the considerable time parties sometimes spend using formatting devices solely to comply with the current page limits.
The amendments are consistent with the word limit/proportional font approach in the Federal rules.
Importantly, the amendments allow for no more than the amount of text that currently fits into a properly formatted 50-page principal brief or 20-page reply brief. The subcommittee reviewed the Federal rules for guidance as to comparative ratios among the different types of briefs (i.e., principal, reply, and amicus), but not for the absolute numbers of words, since it was determined that adopting the Federal word count applicable to the various briefs would lead to substantially longer briefs than the 50 pages currently authorized in the Massachusetts rules. For this reason, the word limits for briefs are less than their Federal counterparts and, as stated above, allow no more than the amount of text permitted under the prior rules.
Under the amended rule, a significant change is that for briefing in a cross appeal, the appellee's principal brief may include approximately the amount of text that fits into a properly formatted 60-page brief. This is consistent with the Federal approach by recognizing that in an appellee/cross-appellant's brief, the appellee must both respond to the arguments in the appellant's brief and present the appellee's arguments in the cross appeal. For a further discussion of the amendments regarding the briefing process in a cross appeal, see the Reporter's Note to Rule 20(a)(3).
(4) Freestanding Paragraphs: Separation into Smaller Segments and Numbering. Multiple prior rules had long, freestanding paragraphs either comprising the complete rule or contained within multiple paragraphs of a rule. This decreased readability of the rule and made reference to particular provisions of a rule more difficult. Accordingly, in 2019 many freestanding paragraphs were numbered and separated into distinct paragraphs, making it easier to locate and refer to different sections. Where appropriate, titles were also added.
(5) Consistent Numbering. Throughout the Rules, numbers were consistently changed to numeral format. Excluded from this change are internal rule cross-references and other citations, as well as numbers that begin a sentence.
(6) Changing "Paper" to "Document." The word "paper" is replaced with "document" throughout the Rules. The word "document" encompasses more media (e.g., PDFs) and is consistent with the courts' transition to electronic filing and storage of electronic documents.
(7) Changing Deadlines to Increments of 7 Days. Many filing deadlines in the Rules were revised to be in increments of 7. Most 10-day deadlines were converted to 14-day deadlines, and all 20-day deadlines to 21-day deadlines. Because a court's action is often the event that triggers a deadline, changing the deadlines to increments of 7 will guarantee that the final day falls on a weekday. For example, if the Appeals Court releases a decision on a Tuesday, the final day for filing an application for further appellate review is certain to fall 21 days later on the third following Tuesday. See Rules 23(a) and 27.1(a). This clarifies filing dates for parties and makes processing filings easier in the appellate courts. The change also significantly decreases the likelihood that a deadline will fall on a non-business day, which causes confusion to litigants who are not aware that such a deadline is extended to the next business day. See Rule 14(a). Deadlines in increments of 30 or 40 days are unchanged because those are well established and traditionally referenced time periods that are not as affected by weekends as the shorter time periods referenced above.
(8) Changing "Trial" Court to "Lower" Court. All references to the "trial court" are amended to lower court, consistent with the definition of "lower court" in Rule 1(c).
(9) Changing "Opposition" to "Response." All references to "opposition" are amended to "response" to reflect that, depending on the particular circumstances of a case or motion, the nonmoving party may want to respond to the moving party's request, but not necessarily oppose that request. Parties remain free to caption a response as an "opposition" if they so desire.
(10) Form of Cross-References. Internal rule cross-references to other Massachusetts Rules of Appellate Procedure are changed to be in the form "Rule 6(a)(2)" instead of "paragraph (a)(2) of this rule," to clarify the cross-reference.
III. Amendments to Rule 1.
Rule 1(a). The title of this subdivision was amended by adding "and Construction" to clarify the content of the rule. In addition, a new second sentence was added stating that the Rules should be construed in order to secure the just, speedy, and inexpensive determination of appeals. This sentence is consistent with Fed. R. Civ. P. 1 and Mass. R. Civ. P. 1. As stated in the 2015 Reporter's Notes to Mass. R. Civ. P. 1, "The purpose of the change was to acknowledge that both the court and the parties have the obligation to employ the rules for the purposes set forth." The appellate courts and the parties have the same obligation as the lower court, leading to this amendment.
A new sentence has been added to acknowledge and highlight that these Rules are not to be viewed in isolation. In addition to complying with these Rules, parties must also comply with the Rules of the Supreme Judicial Court, Appeals Court Rules, and standing orders of the appellate courts, including but not limited to: S.J.C. Rule 1:15 (impoundment procedure in the appellate courts), S.J.C. Rule 1:21 (corporate disclosure statement), and Appeals Court Rule 1:28 (summary disposition).
Including in Rule 1(a) a reference to the appellate courts' rules and standing orders also removes a socalled "trap for the unwary," as individuals who rely only on the Rules of Appellate Procedure may miss additional procedural requirements and potentially compromise their appellate rights. See Commonwealth v. Hartsgrove, 407 Mass. 441, 444-445 (1990) ("The Massachusetts Rules of Appellate Procedure were intended to simplify the procedure by which individuals take a case from the trial court to the appellate court, removing many of the traps for the unwary which previously prevented a litigant from having his appeal heard on the merits."). To the extent possible, the 2019 amendments have incorporated and cross-referenced other appellate court requirements, to eliminate such "traps."
Rule 1(b). The second sentence of this subdivision was deleted as unnecessary in light of the broad language of the first sentence. An appeal from a decision of a single justice of the Supreme Judicial Court must be to the Supreme Judicial Court, but other proceedings related to such an appeal may not be. See Pixley v. Commonwealth, 453 Mass. 827 (2009) (describing subsequent proceedings related to the appeal to take place in the Appeals Court); Commonwealth v. Pixley, 77 Mass. App. Ct. 624(2010) (related proceedings in the Appeals Court).
Rule 1(c). The clause "unless the context clearly indicates otherwise" was added to the beginning of the rule to address instances when the words, as used in the Rules, are more broad or narrow than that included in the definitions. Rule 1(c) was also amended by adding new or revising existing definitions as follows:
"Appellate Court": The word "statutory" before "jurisdiction" was removed because appellate court jurisdiction is derived from additional sources than only a statute. For instance, the jurisdiction of the Supreme Judicial Court is derived primarily from the Massachusetts Constitution and the Appeals Court's statutory jurisdiction has been expanded by decisions of the Supreme Judicial Court.
"Child welfare case": The reference to G.L. c. 190B in the definition of "child welfare case" was revised to clarify that only the provisions of G.L. c. 190B regarding guardianship of minors is encompassed in the definition, so as to ensure the definition is neither over- nor under- inclusive.
"Decision": A definition of "decision" was added to distinguish between the appellate court's written opinion, memorandum and order pursuant to Rule 1:28, or other final adjudicative order in the case (the decision), and the "rescript," which is the appellate court's order, direction, or mandate disposing of the appeal. The prior rules' use of "rescript" caused some confusion for parties as to when to begin calculating the time to file a petition for rehearing and an application for further appellate review. In accordance with this definition, the word "rescript" was replaced with "decision" in Rules 27(a), 27.1(a) and 27.1(b), as well as in Rules 23(a), 23(b), and 31(c).
"First class mail or its equivalent": This definition has been expanded to include "or its equivalent" to first class mail and specify that a third-party commercial carrier is permissible. Including third-party carriers within the definition of "first class mail" conforms with the parallel Fed. R. App. P. 25(a)(2)(B). In addition, this definition better serves the parties by making it clear that these services may be used. Requiring "delivery within 3 days" ensures that use of a third-party carrier is comparable to the use of United States Postal Service first class mail.
"Indigent Party": A definition of "indigent party" was added. This new term replaces the prior term, "in forma pauperis," throughout the Rules. "In forma pauperis" was not commonly used in practice or in the relevant legal authorities. "Indigent party" is the term set forth in the relevant Massachusetts statutes, see G. L. c. 261, §§ 27A-27D and 29, and rules of court, see S.J.C. Rule 3:10.
"Lower court": The definition was amended by revising "whose decision is the subject of an appeal" to "whose decision is the subject of a direct appeal to an appellate court." This amendment is intended to clarify that where an appeal from an administrative agency decision is first reviewed by the lower court, such as the Superior Court pursuant to G.L. c. 30A, the other body is not the lower court.
"Party": A new definition of "party" is intended to recognize that, as used throughout the Rules, a "party" may mean a person or entity participating in a proceeding or appeal (such as an appellant, appellee, petitioner, respondent, etc.). When used to describe any act that is performed under the Rules (such as filing or serving documents), "party" may mean counsel, where a party is represented by counsel, or, when a party is not represented by counsel, it means the self- represented litigant. This recognizes the reality that if a person or entity is represented by counsel in an appeal, it will be counsel that is performing the acts necessary to carry out the appeal. This definition avoids the need to explicitly reference both counsel and any self- represented litigant in each of the numerous places "party" is used in the Rules in connection with performing an act. The definition is not intended to make any substantive change to the rights of a person or entity to participate in a legal proceeding or appeal.
"Rescript": A stylistic revision to "rescript" is made to clarify rescript "means the appellate court's order, direction, or mandate to the lower court disposing of the appeal." No substantive change is intended.
"Single justice": The word "statutory" was removed before "jurisdiction" because the single justice's authority is derived from other means than statute.
"Transmission" or "transmit": A new definition was added to clarify that these words allow for the sending or conveying of documents or court records using a method authorized by the court. The definition provides a non-exhaustive list of current methods of transmission used by the courts and is intended to allow for future methods as new technologies are adopted by the courts.
Rule 1(d). The last clause of prior Rule 1(d) which stated "words importing the masculine gender may include the feminine and neuter[,]" was removed. The sentence was no longer necessary as words that import the masculine gender were globally removed from the Rules and replaced with gender-neutral language.
Reporter's Notes (2009): The 2009 amendments reflect changes resulting from the adoption of the Massachusetts Uniform Probate Code.
Reporter's Notes (1999):
[Rule 1(c) ]
The 1999 amendment to Appellate Rule 1(c) was part of a comprehensive set of amendments to the Appellate Rules (Rules 1, 3, 4, 8, and 10 ) that had been proposed by the Supreme Judicial Court Committee on Appeals of Child Welfare Cases. The Committee's recommendations were intended to: (1) provide a uniform appeal period for child welfare cases; (2) establish a procedure for filing a notice of appeal which would eliminate the taking of appeals on behalf of absent and disinterested clients; (3) establish a procedure for the appointment of appellate counsel which makes it clear that trial counsel continues to be responsible for all trial court proceedings; (4) expedite the assembly of the record; and (5) provide notice to the trial court, for jurisdictional purposes, when appeals are entered in the appellate courts. The amendment to Appellate Rule 1(c) defines the term "child welfare case" as it is used in the Appellate Rules.
Reporter's Notes (1995):
[Rule 1(b) ]
The 1995 amendment to Mass.R.A.P. 1(b), effective November 15, 1995, provides that the Rules of Appellate Procedure are not applicable to proceedings governed by Supreme Judicial Court Rule 2:21, also effective November 15, 1995. Supreme Judicial Court Rule 2:21 regulates the procedure for appeal to the full court of a single justice's denial of relief from an interlocutory ruling in the trial court.
Reporter's Notes (1987):
[Rule 1(b) ]
This amendment deletes the reference to appeals from "a decision of the Appellate Division of the District Courts." Pursuant to G.L. c.211A, § 10, as amended, review of such decisions is in the first instance by the Appeals Court.
Reporter's Notes to July 1979 Amendment
[Rule 1(a) ]
Subdivision (a) of Rule 1 is amended by the deletion of the word "civil," thereby enlarging the scope of the Rules of Appellate Procedure to encompass both civil and criminal appeals. As thus amended, the rules govern interlocutory appeals in criminal cases (G.L. c. 278, § 28E, as amended; Mass. R. Crim. P. 15 [1979] ), appeals from single justice proceedings and appeals from final convictions.
Bills of exceptions (former G.L. c. 278, § 31 ), writs of error (former G.L. c. 250, §§ 1-2, 9-13 ), and the limited "appeal" from a judgment of the Superior Court based on a "matter of law apparent upon the record" (former G.L. c. 278, § 28 ) are superseded by an appeal under these rules by virtue of subdivision (c). The appeal available pursuant to the rules is similar in many respects to the direct appeal on the transcript previously provided by G.L. c. 278, §§ 33A - 33H, but the assignment of error as a vehicle for isolating and identifying issues (G.L. c. 278, § 28D ) is abolished. Reports in criminal cases are governed by Mass. R. Crim. P. 34 and Mass. R. App. P. 5.
"Lower court" as defined in subdivision (c) may include a justice of the district court department sitting in a jury-waived session. While ordinarily the only avenue for review of a judgment or order in a jurywaived session will be by way of appeal to a jury session, the Commonwealth is granted an interlocutory appeal of orders granting motions to dismiss or to suppress evidence by G.L. c. 278, § 28E, as amended, and Mass. R. Crim. P. 15(a).
Reporters' Notes (1973): The Appellate Rules, modeled almost entirely upon the Federal Rules of Appellate Procedure, drastically alter the procedure for judicial review in non-criminal cases as heretofore known in Massachusetts. Mass. R. Civ. P. 46 having eliminated the concept of the exception, all existing authority and learning pertaining to bills of exceptions are now obsolete. In addition, the Appellate Rules eradicate heretofore existing distinctions between bills of exceptions, appeals, claims of reports, and the like. The Appellate Rules are drafted to apply to any "procedure by which matters have heretofore been brought before an appellate court for review," except reservation and report (see Mass. R. Civ. P. 64; M.R.A.P. 5 ). The word "appeal" by definition includes all such preexisting procedures. The Appellate Rules apply to any review by the full Supreme Judicial Court or the Appeals Court of the decision of any "lower court," which latter term is defined to include any "single justice, court, appellate division, board, commission, or other party whose decision is the subject of an appeal."
Note that in the Appellate Rules "appellate court" refers to either the full Supreme Judicial Court or the full Appeals Court, whichever is then exercising jurisdiction, and that "single justice" similarly refers to a single justice of either court.
"Rescript," a term well-known to Massachusetts practice, covers the meaning of "mandate," the term used in the Federal Rules, F.R.A.P. 41.