Direct appellate review

(2019) Rule 11(a) was amended to remove the statement that no oral argument will be allowed in support of an application for direct appellate review. Oral argument is not ordinarily permitted under this rule and removing the reference to oral argument is consistent with Supreme Judicial Court practice. Rule 11(d) was revised to reduce the number of copies of an application or response to an application for direct appellate review that must be filed from “an original and seventeen copies” to 1 copy. Due to advances in paperless practices, the Supreme Judicial Court now only requires 1 copy to properly process and review these documents. The requirement that a copy of the application be filed in the Appeals Court was deleted because the Appeals Court receives automatic notification from the Supreme Judicial Court when an application for direct appellate review is filed. Rule 11(f) was revised to align the rule with court practices. According to the prior rule, although the Supreme Judicial Court entered and sent notice of an order granting direct appellate review, the order would not actually be “deemed granted” until the Appeals Court received it. The amendments to this rule delete the phrase “upon receipt, direct appellate review shall be deemed granted” to clarify that the order is effective upon its entry. Rule 11(f) was also amended to substitute the Supreme Judicial Court in place of the Appeals Court as the court sending notice to the lower court when direct appellate review is granted. Rule 11(g)(1) was amended by inserting “by the parties” after “If at the time of transfer all parties have served and filed briefs in the Appeals Court, no further briefs may be filed” to clarify that in cases that are fully briefed prior to transfer, the prohibition against filing additional briefs does not apply to amicus briefs. 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. (2002) [Notes to Appellate Rule 11(B)] In 2002, the Supreme Judicial Court amended Appellate Rule 11(b) to require that an application for direct appellate review contain “a statement indicating whether the issues were raised and properly preserved in the lower court” and that “a copy of any written decision, memorandum, findings, rulings, or report of the lower court relevant to the issues on appeal” be appended to the application. Having a statement regarding whether issues were raised below and a copy of the lower court’s decision will serve to benefit the court’s determination in considering the application for direct appellate review. (1999) The cover of applications for direct appellate review shall be white. See Appellate Rule 20(b) , as amended in 1999. (1997) The 1997 amendment to Appellate Rule 11(d) increased to seventeen the number of copies of an application for direct appellate review and of each opposition to be filed in the clerk’s office of the Supreme Judicial Court. The amendment also clarified that an original is to be filed together with the seventeen copies. (1996) The 1996 amendment to Mass.R.A.P. 11(f) , effective January 29, 1996, is a technical amendment to that portion of the first sentence relating to certification that direct appellate review by the Supreme Judicial Court is in the public interest. The amendment provides for certification by “a majority of the justices of the Appeals Court,” replacing earlier language providing for certification by “all of the justices of the Appeals Court or any majority thereof.” (1979) Appellate Rule 11 was previously applicable to direct appellate review in criminal cases by virtue of Supreme Judicial Court Rule 3:24, § 4(1) (1975) 366 Mass. 870, (1975) except that the words “the appeal is docketed” were taken to mean “the case is entered.” That distinction is no longer viable (see Rule 10( [a][2] ). Only two changes are made in the former rule. A new first sentence is added to subdivision (a), which restates the first sentence of Supreme Judicial Court Rule 3:24 supra § 3. Section 3 also provided that: All matters preliminary to the entry of . . . appeals [within the concurrent appellate jurisdiction of the Appeals and Supreme Judicial Court] which require action by an appellate court shall be presented to and disposed of by the Appeals Court. That requirement is implicit in Rule 11. Secondly, the time within which an application for direct appellate review may be filed is increased from ten to twenty days after the docketing of the appeal in the Appeals Court. The remainder of the rule is unchanged. (1973) Appellate Rule 11 implements the statutorily-authorized direct review by the Supreme Judicial Court of cases which would otherwise first be heard and determined in the Appeals Court; G.L. c. 211A, § 10 . (For procedure subsequent to an Appeals Court decision, see Appellate Rule 27.1 ). Direct review may result if: (1) The Supreme Judicial Court (or two justices thereof) shall so order, either (a) sua sponte, or (b) on application of one or more parties; or (2) The Appeals Court (or a majority of the justices thereof) shall certify that direct review is in the public interest. The rule deals with the mechanics of application for direct review, and also prescribes the procedure governing cases accorded direct review, no matter what the means which caused such review (order by the Supreme Judicial Court ex mero motu, order on application, or certification by the Appeals Court). Of the routes to direct review, only one--Supreme Judicial Court order after application--ought appropriately to be governed by the Appellate Rules. The other two, self-initiated exercises of judicial discretion and administration, are intracourt matters not subject to procedural regulation. What Appellate Rule 11(a)-(d) accomplishes, therefore, is to assure appellate parties the right to put the matter before the Supreme Judicial Court and to urge direct review; the rule leaves all other means by which review may be granted out of the parties’ control entirely, and completely in the dispositive power of the respective courts. The application for direct review proceeds parallel to the usual requirements, Appellate Rule 11(e) . Application does not in any way “stop the clock” with respect to normal appellate procedure. Once review is granted, however, a special timetable controls, Appellate Rule 11(g) . In general, any brief already filed in the Appeals Court need not be re-filed in the Supreme Judicial Court; if no party has yet filed, the briefing schedule, proceeding as though the appeal had commenced initially in the Supreme Judicial Court, is controlled by Appellate Rule 19 .