Possible, but not likely: expedited appeals in Massachusetts.

• Date: 22 March 2002
• Author: Cooper, Davalene

1. INTRODUCTION

   For all practical purposes, Massachusetts does not have an explicit procedure for expediting the appellate process. Although the state's rules of procedure allow either the Massachusetts Supreme Judicial Court (1) or the Massachusetts Appeals Court to order an expedited appeal, and to develop a procedure for then processing that appeal, this option is rarely used. Massachusetts does, however, have two other processes that may expedite review on appeal--direct review by the supreme judicial court, which enables the parties to bypass the appeals court, and the single-justice proceeding, which can provide the equivalent of expedited appellate review in some cases--both of which are used more often than the alternate procedure. This article will address all three means of expediting review in Massachusetts.

2. THE RULE 2 PROCEDURE

   Appellate Rule 2, entitled "Suspension of the Rules," states:

   In the interest of expediting decision, or for other good cause shown, the appellate court or a single justice may, except as otherwise provided in Rule 14(b), suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction. Such suspension may be on reasonable terms. (2) This rule provides flexibility in the appellate process, and allows the court or a single justice to relax or suspend the rules when necessary. (3) Note, however, that trial judges are not similarly empowered, and even appellate judges are without authority to extend the time for filing an appeal beyond the one-year limitations period. (4)

   Now firmly engrained in Massachusetts practice, this rule was part of a series of new rules that went into effect in 1974. (5) One of the purposes behind their enactment was simplifying the appellate process; the rules were intended to eliminate "many of the previous rigid statutory time limitations which often served as fatal or near-fatal booby traps for inexperienced or unwary practitioners taking a case from the trial court to the appellate court." (6) As a result, the supreme judicial court has pointed out that the rules should be construed to meet the goals of simplifying procedure and eliminating rigid statutory time limits. (7) Thus, Rule 2 can be used to expedite an appeal, (8) although it is rarely used for that purpose. (9)

   Another appellate rule similarly permits the appeals court to decide an appeal on the briefs, without oral argument. (10) This process, known as summary disposition, expedites an appeal to the extent that the parties do not have to wait for oral argument. When invoked by the court, however, it results in the parties' losing the opportunity to present their cases at oral argument. (11) Although Rule 1:28 applies by its terms to all cases, the standard for its application is that there be "no substantial question of law ... presented by the appeal or that some clear error of law has been committed which has injuriously affected the substantial rights of an appellant." (12) That language substantially limits the range of cases to which the rule will apply, so it can in theory be invoked in fewer cases than can Appellate Rule 2.

3. DIRECT REVIEW BY THE SUPREME JUDICIAL COURT

   Under both statutory and rule authority, cases may be appealed directly to the supreme judicial court, bypassing the appeals court. (13) The applicable statute provides that the supreme judicial court and the appeals court have concurrent jurisdiction over most appeals. (14) Subject to the approval of two justices of the supreme judicial court, the court can order direct review of any case on appeal, as long as the issue to be decided is: (1) a question of first impression or a novel question of law; (2) a question of law concerning either the Constitution of the United States or that of the Commonwealth of Massachusetts; or (3) a question of such public interest that justice requires a final determination by the supreme judicial court. (15) Under the statute, a party may request direct appellate review, but the supreme judicial court is also authorized to order direct review sua sponte. (16) Direct appellate review also occurs whenever a majority of justices on the appeals court certify upon considering a case that direct appellate review by the supreme judicial court is in the public interest. (17)

   Appellate Rule 11 describes the process for parties who request direct appellate review. (18) Under this rule, when concurrent jurisdiction exists, an appeal must first be filed in the appeals court by the party wishing to apply for direct review. (19) The party then has twenty days after the appeal is docketed in which to make a written application to the supreme judicial court for direct appellate review. (20) The rule also details the contents of the application for direct review, which include the request itself, statements of prior proceedings in the case, the facts relevant to the appeal, a statement of the legal issues raised and a short argument regarding those issues, and a statement indicating why direct review is appropriate in the case. (21) Any party opposing direct review has ten days after the application is filed in which to file an opposition to it. (22) Whether the application is opposed or not, there is no right to oral argument on it, although the full supreme judicial court has discretion to hear argument in these cases. (23)

   There is one quirk to remember about the direct-review process. It is the only review permitted in a capital case. The appeals court has no jurisdiction over such cases. (24) In exercising this plenary power, the supreme judicial court also performs a gatekeeper function in that once the case has been reviewed by the court...