COMMITTEE FOR PUBLIC COUNSEL SERVICES

CHILDREN FAMILY LAW DIVISION

Appeals Court Single Justice Checklist

G.L. c. 231, §118 (appeal of interlocutory order)

Mass. R. App. P. 6(a) (stay pending appeal)

Appeals of Interlocutory Orders – G. L. c. 231, § 118

See Appeals Court's “Standing Order Governing Petitions to the Single Justice Pursuant to G. L. c. 231, sec. 118 (First Paragraph).”

  1. E-FILING REQUIRED (when party is represented by counsel)

A.In addition to the original paper petition/opposition and all other documents filed, also necessary to simultaneously file a searchable PDF copy of the petition/opposition and supporting memoranda of law, either (1) on a CD-ROM, or (2) by email (if under 10 MB) to which the PDF copy is attached. (If using email, note that paper copy to follow). No duplicate paper copy of any document is required.

1.NOTE: A PDF copy of the record appendix "may" be filed if feasible, as above. (Multiple e-mails are acceptable to accommodate the size of the record appendix.) In practice, the court is requiring a PDF of the record appendix and will contact you if you do not submit it at the time you file the paper original.

2.E:MAIL:

  1. REQUIRED DOCUMENTS (note: you do not file a notice of appeal)
  2. Filing letter (on letterhead), indicating that proceedings in the lower court were impounded);
  3. Petition (5pages max);
  4. Memorandum of Law in Support of Petition (15 pgs max);
  5. Record Appendix (relevant portions of the record) (see Standing Order)
  6. Motion to Waive Filing Fee, and current Affidavit of Indigence(if petitioner is parent) or affidavit of counsel as to child’s indigence (if petitioner is child). A NAC is not sufficient;
  7. A proposed order (not required, but recommended); and
  8. Certificate of Serviceby personal or first class mail on all other parties, including the service and filing of a copy in the appropriate trial court clerk’s office from which the matter arose. (Personal service includes delivery of the copy to a responsible person at the office of counsel. Service by first class mail is complete upon filing.) The petition can be filed on the same day you serve it by mail.

1.Do not just indicate on your certificate of service that you served all counsel of record; you must indicate whom you servedand whom that attorney represents (identified not by real name but as “mother,” “father,” “child,” etc.).

2.Include the name, address, and telephone number of counsel or other persons upon whom service has been made, and specify the date and manner of service. Identify the name of each party represented by counsel and specify the counsel who represents each party.

3.Unlike SJC single justice petitions, the Attorney General’s Office need not be served. (As noted above, you must file a copy in the trial court clerk's office.)

  1. File one copy of petition, memorandum of law and other papers with Appeals Court Clerk's Office.

I.Review the Appeals Court's standing order for format and filing requirements. Contact the Appeals Court Clerk’s Office at (617) 725-8106 if you have any questions.

III.TIMING

A.Petitions – must be filed within 30 days of entry of lower court order on docket. This time period is jurisdictional; it cannot be extended, and is not tolled by later motions.

B.Oppositions – must be filed within 7 days if served by hand, or within 10 days if served by mail.

1.Generally, an opposition is not required unless the clerk contacts counsel and asks for one. You may always choose to file an opposition.

2.If you are not sure whether to file an opposition or not, contact CAFL Administration or the Attorney in Charge of the CAFL Appellate Unit for guidance. You canalso contact the Appeals Court and ask to speak with the assistant clerk covering petitions and inform the clerk that you are aware of the petition and will file a response if requested.

IV.PETITION/MEMORANDUM OF LAW

(Note: All documents must conform to Mass. R. App. P. 20 as to form, regarding margins, type face, font, etc. For example, use Courier 12-point font, not Times New Roman; use double-spaced lines; and have big margins of at least 1 ½ inches on each side. If you don’t comply with the formatting requirements, the single justice could deny the petition without prejudice to re-filing in compliance with the standing order.)

A.Cover Page

  1. The word “Impounded” must be clearly displayed above or in the caption;
  2. Leave the Appeals Court's docket # blank (“_____”) (unless clerk gives you one). You may call the clerk to obtain the docket # after the petition is filed;
  3. Do not give parties’ last names in caption (“Susan G.”);
  4. Title –“Petition for Relief Pursuant to G.L. c. 231, § 118.” If the petition seeks emergency relief, state so in the title and in your cover letter, i.e., “Emergency Petition for Relief Pursuant to . . .” See below for more information on emergency petitions.

B.Body of Petition (generally no more than 5 pages)

1.a request for interlocutory review, stating nature of order appealed from, date of order, and name of the judge who entered it;

2.a statement of issues of law raised by petition;

3.statement as to whether a party has filed, served, or intends to file a motion for reconsideration in the trial court (note: you do not have to file a motion for reconsideration; the Court just wants to know if you did, or intend to, file one);

4.a specific request for relief; and

5.addendum containing a copy of the order or action of the trial court (draft order for single justice may be attached)

6.references to the parties in the petition shall be by designation of the party in the trial court

C.Memorandum of Law (no more than 15 pages)

1.Comply with formatting requirements of Mass. R. App. P. 20(a)(1)-(3).

2.Refer to parts of record relevant to issues in petition, cite relevant facts supported by record citations, cite appropriate authorities;

3.Include statement as to why interlocutory relief is appropriate.

4.Relevant portions of the record shall be filed as a “record appendix,” and include a current copy of the trial court docket entries and all relevant papers filed in the trial court, including those filed by the other party or parties.

a.Begin with table of contents that lists each document included.

b.Only those pleadings, exhibits, and papers which were before the trial court when the order appealed from was entered, and which are necessary for an adjudication of the issues raise, may be submitted.

D.Opposition (not required; see TIMING above)

1.Must, like petition, include memorandum of law(no more than 15 pages without leave of court);

2.Memorandum must comply with formatting requirements of Mass. R. App. P. 20(a)(1)-(3).

3.Must set forth why petition should be denied.

4.Shall not restate matters contained in petition unless opposing party is dissatisfied with statement thereof contained in petition.

4.May be accompanied by supplemental record containing additional portions of the record which petitioner failed to include in record appendix.

V.OTHER DOCUMENTS (attached to petition)

A.Copy of trial court docket sheet(s);

B.Transcript, if available. Due to the 30 day deadline to file a petition, a transcript is not required.

1.If you have a transcript, you can submit excerpts if only a few pages are necessary for review, but the court could request you to file a complete volume if needed.

2.If a transcript is not available, include one or more affidavits of counsel (or others) stating what occurred below, what evidence was offered/admitted below, what offers of proof were made, etc. If a transcript becomes available later, it may be substituted for the affidavit of counsel.

VI.EMERGENCY PETITIONS

A.If your single justice petition is an emergency, contact the Clerk’s Office at (617) 725-8106 and ask to speak with the assistant clerk assigned to single justice petitions (the clerks rotate monthly) and explain the nature of the emergency filing to a clerk.

1.It is rare, but the clerk or single justicemay permit you to fax your petition and supporting documents to the Appeals Court. The hard paper original still must be sent to the Appeals Court as soon as possible.

2.In the event you are permitted to file your petition by fax, indicate on your cover memo that it is an emergency andidentify the clerk to whom you spoke. The clerk will also explain how you should serve the petition on other counsel.

B.As stated in G. L. c. 231, s 118, "[t]he filing of a petition does not suspend the execution of the order that is the subject of the petition, except as otherwise ordered by the single justice."

1.By separate motion, request a stay of the lower court’s order, if necessary.

2.NOTE: The petitioner must first request a stay in the lower court (except under extraordinary circumstances, such as dire time constraints). You can request that the trial court itself stay the order, explaining that you need time to prepare the petition, and the single justice to review it. Alternatively, with your petition, you can file a motion to stay the lower court's order pending the single justice's review of the petition.

VII.HEARINGS

A.Single justice has discretion to determine whether to hold a hearing.

B.Usually not granted; most matters are decided on papers. Counsel must therefore argue all points as thoroughly as possible in the papers and not wait to do so at a hearing.

C.If counsel wants a hearing, request one in writing supported by a statement why a hearing is necessary. As noted above, a request does not guarantee a hearing.

Stay Pending Appeal – Mass. R. App. P. 6(a)

See Appeals Court's “Standing Order Governing Motions to Stay a Judgment or

Execution of Sentence Filed Pursuant to Mass. R.A.P. 6.”

I.MUST FIRST GO TO TRIAL COURT, unless

A.“Not practicable” (i.e., true emergency);

B.Lower court has denied motion for stay; or

C.Lower court has not given relief (i.e., not acted on motion)

II.CONTENTS OF MOTION/MEMORANDUM

  1. The word “Impounded” must be clearly displayed above or in the caption.
  2. All documents must conform to Mass. R. App. P. 20 as to form, regarding margins, type face, font, etc.

C.Court prefers a short motion and a longer memorandum of law.

D.Include reasons for relief requested

E.Include facts relied upon (if subject to dispute, then supported by affidavits)

F.A 15-page limit is preferred.

III.REQUIRED DOCUMENTS

A.Cover letter, indicating that the proceedings in the lower court are impounded;

B.Relevant parts of record (motions, memoranda, orders, etc. in trial court relevant to issue of stay);

C.Motion to waive fees and costs, supported by current affidavit of indigency (note:although this is called a “Motion for Stay Pending Appeal” to the single justice, you are nevertheless docketing an “appeal,” and the client must pay the docketing fee unless waived)

C.Certificate of Service (see c. 231, § 118, section II.G above)

D.E-filing required. (see c. 231, § 118 section I above.)

IV.OPPOSITIONS

Not required. See information about oppositions in c. 231, § 118 section IV.D above.

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