The Supreme Judicial Court for Suffolk County, also known as the single justice session, is that part of the court's business in which an associate justice acts as a trial judge-as was the function of the first justices-or as an administrator of the court's supervisory power under G. L. c. 211, § 3. The county court, as it is often called, has original, concurrent, interlocutory and appellate jurisdiction conferred by the Massachusetts Constitution, statutes, rules of court and case law. Practice before the single justice is governed by the Massachusetts Rules of Civil Procedure, SJC Rule 2:01 et seq. and pertinent Standing Orders. In reality, however, the practice has diverted from strict compliance with the Massachusetts Rules of Civil Procedure and is presently governed by a hybrid of formal rules and historic customs and practices.
In addition to the single justice caseload, the associate justice also sits on bar docket matters, which include attorney discipline and administrative matters affecting members of the bar. The single justice also presides over formal bar admission ceremonies twice a year.
This section offers basic, useful information concerning single justice practice and procedure. There is a discussion of the responsibilities of the clerk and assistant clerks bearing on single justice practice and the steps necessary to open a single justice case.
The clerk and assistant clerks are available during all business hours to assist counsel with questions covering every facet of single justice practice and procedure. The clerk and assistant clerks perform the following functions:
serve as a liaison between the single justice and the parties;
receive and review petitions, complaints and motions in all single justice matters, including bar docket cases;
assist counsel in determining the proper jurisdictional basis for the issue presented;
confer with counsel in the clerk's office or by telephone about single justice practice and procedure, bar docket practice and procedure, appellate procedure and jurisdiction;
conduct court sessions;
administer oaths to new attorneys; and
serve as the in-state agent for service of process on licensed foreign legal consultants pursuant to SJC Rule 3:05, § 7, 7.1.
Single justice practice is similar to practice before the superior court. As set forth in Mass.R.Civ.P. 1, practice before the single justice is governed by the Massachusetts Rules of Civil Procedure and not the more formal Massachusetts Rules of Appellate Procedure. Cases are opened upon the filing of one original petition, application or complaint, together with the requisite filing fee of $315.00 payable to the Commonwealth of Massachusetts. In the event of indigence, a motion to waive the filing fee and a supporting affidavit of indigence must be filed in lieu of the filing fee. Under no circumstance may a single justice case be opened without either a filing fee or a motion to waive the fee. If the petitioner has been appointed counsel in the lower court, a copy of the Notice of Appearance of Counsel form issued by the lower court should be filed as well.
A petition or application should set forth with specificity the lower court procedural history including the name of the court and justice, the docket number, trial date (if applicable), a brief discussion of the order subject to review, the grounds upon which review is necessary and the relief sought. The petition should be accompanied by all lower court papers including the findings and rulings if any, together with a memorandum of law in support of the requested relief.
In the event of a request for emergency relief, as often is the case in review of bail determinations, rulings in care and protection cases and summary process (eviction) orders, the title of the petition should reflect the emergency nature of the petition. A party seeking emergency relief should inform the clerk or an assistant clerk at the earliest possible stage that an emergency petition will be filed. A ruling cannot be obtained from a single justice until papers are actually filed with the court. In limited instances where time is of the essence, a facsimile of the emergency petition will be accepted by the clerk's office so long as the original petition is filed forthwith.
All pleadings filed in the single justice session may be served by first class mail, hand delivery or, in the case of emergencies, via facsimile. Because many matters before the single justice require speedy disposition, the formal application of the rules regarding service of process is relaxed. The petitioner or plaintiff is not required to serve a summons with the original pleading. However, a certificate of service is required with every pleading. It must set forth the method and date of service and the name and address of each party served. If counsel is served on behalf of a party, the name of the attorney and the particular party represented by the attorney must be included.
If the petitioner or plaintiff chooses to serve an opposing party with a summons, despite the relaxed service requirement, summonses are available through the clerk's office for a nominal fee of $.50.
With the exception of applications for interlocutory appeal, which require a response within seven days, there is no strict adherence to Mass.R.Civ.P. 12 (a)(1) requiring a party to serve a responsive pleading within 20 days of service. Instead, the clerk and assistant clerks coordinate a date for filing with opposing counsel based upon any time constraints imposed by lower court proceedings or the agreed upon date for hearing before the single justice. If the matter is scheduled for hearing before the single justice, any responsive pleading should be filed at least four to five calendar days prior to the hearing date.
The single justice has the discretion to decide any matter on the papers without a hearing. Parties may request a hearing, and the single justice will determine whether a hearing would help in deciding the matter. Rule 2:18 of the Supreme Judicial Court Rules states that sittings of the single justice "will be on Wednesday unless the single justice otherwise directs." The court calendar lists Wednesdays as being available for single justice hearings, however, the practice has become that a single justice will schedule hearings at any time which is mutually convenient to the parties and the justice, or as dictated by the needs of a particular case. Hearings are held in the Oliver Wendell Holmes Courtroom (Courtroom 2, Adams Courthouse). Hearings are digitally recorded.
Telephone conference hearings are available when time is of the essence, or it is impractical for counsel to travel to Boston, e.g., counsel are on trial or are from Barnstable, Dukes, Berkshire Counties or other distant venues. Telephone conferences may be conducted in the justice’s lobby or wherever the single justice deems appropriate, and then docketed in the single justice file.
Certain single justice cases do not require a hearing. For example, hearings are not held on corporate dissolutions and motions for payment in receivership cases. Unless ordered by a single justice, applications for leave to appeal pursuant to Mass.R.Crim.P. 15(a)(2) are no longer marked for hearing. (See SJC Standing Order entitled, "Applications to a Single Justice Pursuant to Mass.R.Crim.P. 15(a)(2)," effective February 1, 1997.) Finally, the single justice has the discretion to decide any matter on the papers, although the practice is to allow a hearing under most circumstances.
The single justice is vested with the power to dispose of matters before the county court in a variety of ways. The single justice may:
The single justice may also reserve ruling and report the matter to the full court. Matters most often reserved and reported are public utility and board of registration appeals. Novel questions of law unresolved by existing case law may also be grounds for the single justice to reserve and report the matter. See generally, Veksler v. Board of Registration in Dentistry, 429 Mass. 711 (1999)(board of registration appeal); Krochta v. Commonwealth, 429 Mass. 530 (1999)(defensive collateral estoppel and double jeopardy issues); Cablevision Systems Corp. v. Department of Telecommunications and Energy, 428 Mass. 436 (1999)(public utility appeal).
A party aggrieved by a final judgment of the single justice may appeal therefrom to the full court of the Supreme Judicial Court. See G. L. c. 231, § 114. As a general rule, the Massachusetts Rules of Appellate Procedure govern all such appeals. The full court will not reverse an order of the single justice in the absence of an abuse of discretion or clear error of law. Milton v. City of Boston, 427 Mass. 1016, 1016-1017 (1998).
The exception occurs where the single justice denies G.L. c. 211, § 3 relief from an interlocutory ruling of the lower court. In this instance, SJC Rule 2:21 governs the appellate procedure. Under SJC Rule 2:21, the petitioner must file a notice of appeal with the clerk within seven days. The record on appeal consists of the papers before the single justice and a memorandum, not to exceed 10 pages, that the appellant must file with the clerk for the full court explaining why review of the adverse ruling cannot otherwise be obtained after the entry of final judgment.
The single justice has jurisdiction over all interlocutory orders in criminal cases. In civil cases, except for orders pursuant to G. L. c. 209A, the single justice has jurisdiction over interlocutory orders of the district court. The power of the single justice to review these orders is codified at G. L. c. 211, § 3. The first paragraph of G.L. c. 211, § 3, gives the single justice general superintendence power over "all courts of inferior jurisdiction to prevent and correct errors and abuses." The second paragraph provides general superintendence of "the administration of all courts of inferior jurisdiction." As illustrated below, the first paragraph provides for review on a case-by-case basis. Matters under the second paragraph typically involve practices and procedures beyond a single case and may have an impact on courts and cases statewide.
Before filing a petition pursuant to G.L. c. 211, § 3, the petitioner must thoroughly examine whether
See Care and Protection of Lydia, 430 Mass. 1002,1003 (1999). It is well-settled that review under G.L. c. 211, § 3 is not a substitute for the normal appellate process. In civil cases, interlocutory orders from the Superior Court, Land Court, Housing and Probate and Family Court must first be reviewed by a single justice of the Appeals Court pursuant to G. L. c. 231, § 118. Thereafter, further review may be obtained by a panel of the Appeals Court. In limited circumstances, where panel review is not an effective remedy, the petitioner may then seek review under G.L. c. 211, § 3, to a single justice of the Supreme Judicial Court. See generally Ashford v. MBTA, 421 Mass. 563 (1995).
A discussion of those superintendence petitions most frequently reviewed by the single justice and practical guidance with respect to these matters follows.
The seminal case with regard to the review of bail matters is Commesso v. Commonwealth, 369 Mass. 368 (1975). A single justice has jurisdiction under G.L. c. 211, § 3 to review bail determinations made by a lower court pursuant to G. L. c. 276, § 58. The scope of review depends upon whether the bail was first set in the Superior Court or the District Court. On review of a superior court bail, the single justice may consider the bail de novo and even consider newly presented facts. Conversely, review of a district court bail, which must first be reviewed by the Superior Court, is limited to whether there was an abuse of discretion or clear error of law by the Superior Court. Under section 58, the judge may also revoke bail under certain conditions and the judge is required to make specific findings to determine whether release of the person would seriously endanger any person or the community. If so, the judge may detain the person Afor a period not to exceed sixty days. There is no right to superior court review of a district court bail revocation order. Review of a district or superior court bail revocation order may be made pursuant to G.L. c. 211, § 3. However, it has been suggested that an alternative procedural route may exist in the form of a petition for a writ of habeas corpus. Delaney v. Commonwealth, 415 Mass. 490, 496-97 (1993).
Practice Note: The rules governing single justice practice do not set a time limit for filing a petition. Nonetheless, a petition challenging a bail or bail revocation order should be filed promptly, as bail matters are afforded heightened attention by the single justice. Counsel should attach copies of all lower court papers, including findings and rulings, and a copy of the defendant's CORI record. It is important to note that the single justice will give appropriate deference and weight to the lower court's bail determination and, as such, will rarely exercise superintendence power.
The single justice has jurisdiction over interlocutory orders of the district and juvenile courts in care and protection matters. See generally, Care and Protection of Bert, 429 Mass. 1001 (1999)(review of order regarding education of children); Care and Protection of Manuel, 428 Mass. 527 (1998)(review of order denying child's nomination of grandparents as legal custodians); Care and Protection of Marina, 424 Mass. 1003 (1997)(review of order striking appearance of attorney for mother).
Practice Note: Care and protection cases are impounded by the court to preserve the confidentiality of the parties. As such, the caption should be AIn Re: Care and Protection. The petitioner must file a motion to impound the matter along with the petition as the court will not impound the matter sua sponte. If a hearing is held, it is important to note that the identities of the parties should not be disclosed.
Ordinarily, a defendant does not have the right to interlocutory review of the denial of a motion to dismiss. The exception is where the motion was based on double jeopardy grounds. A defendant is entitled to review under the court's general superintendence power because "[t]he guaranty against twice being exposed to the risk of conviction, regardless of whether the conviction actually results, would be seriously weakened if appellate review of a claim of double jeopardy were delayed until after a second trial." Costarelli v. Commonwealth, 374 Mass. 677, 680 (1978). See also Hanlon v. Commonwealth, 419 Mass. 1005, 1006 (1995)(request for review is made in the lower court and, if unsuccessful, by means of a petition under G.L. c. 211,§ 3.).
Practice Note Where the trial date is imminent and review by the single justice may conflict with the trial date, counsel may need a stay of the trial date pending review by the single justice. Counsel must first request a stay of the trial from the lower court before the single justice will consider a motion to stay.
General Laws c. 279, § 4 and Mass.R.Crim.P. 31 confer discretionary power to stay the execution of a sentence pending appeal. If a stay is denied by the trial judge, the defendant should seek review by a single justice of the Appeals Court. If the stay is denied by the Appeals Court single justice, the defendant may seek an expedited review by a panel of the Appeals Court. While under panel review, a single justice of the Supreme Judicial Court may, though rarely will, exercise G.L. c. 211 § 3 jurisdiction to allow a limited stay to facilitate the panel review. After denial by the panel, or the refusal of a request for panel review, a single justice of the Supreme Judicial Court may consider a petition seeking a stay of execution. The standard of review is whether the defendant has a reasonable likelihood of success on appeal and whether the defendant presents a danger to the community and might commit further criminal acts while the appeal is pending. See Commonwealth v. Allen, 378 Mass. 489, 497-98 (1979). See also Lewis v. Commonwealth, 429 Mass. 1007 (1999).
Summary process petitions are ordinarily filed in emergency situations wherein the petitioner seeks to stay an eviction. The petitioner must first seek review before a single justice of the Appeals Court pursuant to G. L. c. 231, § 118. If relief is denied in the Appeals Court, the petitioner may seek a stay of eviction from a single justice of the Supreme Judicial Court.
Practice Note Petitions in summary process matters must include a copy of the Appeals Court order in which the requested relief was denied. A request to stay the execution must first be made in the District Court or Housing Court and the Appeals Court.
The second paragraph of G.L. c. 211, § 3, provides the court with extraordinary power to address administrative matters throughout the court system. The effect of decisions under paragraph two reaches beyond the case at bar and has an impact on the practices and procedures of lower courts in the Commonwealth. See, e.g., Bradford v. Knights, 427 Mass. 748, 750 (1998)(raised an important issue with implications for the administration of justice, and one that is not likely to be presented in the ordinary course of litigation, which permitted review to exercise "general superintendence of the administration of all courts of inferior jurisdiction."); Commonwealth v. Flebotte, 417 Mass. 348, 355 (1994)(invoked superintendence power to require certain questions during jury selection).
There are two occasions when a petitioner may request that the single justice grant leave to appeal a lower court order. The single justice serves as a gatekeeper and may grant permission for the appeal to go forward (open the gate) or decline the request for leave to appeal (keep the gate closed).
A party aggrieved by an adverse ruling from a motion to suppress determined either in the District Court or Superior Court Ashall have the right and opportunity to apply to a single justice of the Supreme Judicial Court for leave to appeal an order determining a motion to suppress evidence prior to trial. Mass.R.Crim.P. 15 (a)(2). Moreover, the rule provides that the case shall be stayed and the defendant should not be placed in jeopardy Auntil interlocutory review has been waived or the period specified (ten days) for instituting interlocutory procedures has expired." See Mass.R.Crim.P. 15(c), 15(e). Both the Commonwealth (in the event a motion to suppress is allowed) and the defendant (in the event a motion to suppress is denied) are given the opportunity under the rule to file a petition before a single justice pursuant to Mass.R.Crim.P. 15(a)(2) seeking leave to appeal the order on the motion to suppress. On February 1, 1997, a standing order became effective relative to interlocutory appeals pursuant to Mass.R.Crim.P. 15 (a)(2). Read in conjunction, the rule and standing order identify the time to file the appeal, the contents of the petition, and address the issues of late applications and stays of trials pending a ruling on the application. Rule 15 (a)(2) provides for the filing of an application within ten days of the Aissuance of notice of the order@ being challenged. (The rule does not give guidance on the meaning of the phrase Aissuance of notice of the order.) The standing order reduces that time to seven days. The trial judge must issue findings and rulings within the time allotted for filing the notice of appeal.
Practice Note A party seeking additional time before the single justice is encouraged to file the entire petition simultaneously with the filing of the motion for late filing. The first paragraph of the standing order provides a list of information to be included in the application. If the lower court judge has not issued findings and rulings, counsel must file a request for findings and rulings with the lower court.
In cases where the defendant is convicted of first degree murder, and after the full court has affirmed the conviction, the defendant may seek full court review of the Superior Court's denial of a motion for new trial. G. L. c. 278, § 33E. Here, the single justice determines whether the application presents a new and substantial question that should be reviewed by the full court. Commonwealth v. Therrien, 428 Mass. 607 (1998). It is important to note that where plenary review of a first-degree murder conviction resulted in a reduction of the verdict, the defendant is not subject to the gatekeeper provisions under Section 33E. Commonwealth v. Perry, 424 Mass. 1019 (1997); Commonwealth v. Lattimore, 400 Mass. 1001 (1987).
There are a number of specific statutes that confer appellate jurisdiction to the single justice over administrative decisions. A discussion of the most frequently filed appeals follows.
General Laws c. 112, § 64, provides, in pertinent part, that the "supreme judicial court, upon petition of a person whose certificate, registration, license, authority has been suspended, revoked or canceled, may enter a decree revising or reversing the decision of the board . . . ." These matters involve a wide variety of orders affecting the status of professional licenses. After the petition is filed, the record must be assembled and filed by the board of registration with the clerk. The parties often work with the clerk's office in setting a briefing schedule after the record is filed.
General Laws c. 25, § 5, in pertinent part, allows an appeal to the county court from the final decision of the Department of Telecommunications and Energy (formerly the Department of Public Utilities). It is incumbent upon the department to file the record of proceedings with the clerk. As in appeals from boards of registration, the parties will set a briefing schedule with the assistance of the clerk's office.
Practice Note Some portion of these appeals are reserved and reported to the full court where there are pure questions of law. After the record is filed with the clerk, the parties typically discuss a joint motion to reserve and report the case to the full court. There can be no dispute of facts and the parties are customarily expected to present an agreed statement of facts.
Other statutes granting appellate jurisdiction in administrative appeals include those involving certain decisions by the commissioner of insurance. See G. L. c. 175, § 113B; G. L. c. 175E, § 13; G. L. c. 176A, § 5.
This section presents a discussion of select statutes involving original actions. First, there is a discussion of those statutes where the court has exclusive jurisdiction, and second, where there is concurrent jurisdiction.
General Laws c. 197, § 10 gives the Supreme Judicial Court the authority to enter judgment in favor of an estate creditor if Ajustice and equity require it and upon a showing that the creditor Ais not chargeable with culpable neglect in not prosecuting within the time so limited." The "time so limited," set forth in G.L. c. 197, § 9, is one year from the date of death. It is settled that "[a] claimant has not 'prosecuted' a claim under § 10 unless the claimant has met both requirements under § 9 for timely institution of the action (i.e., filing a complaint and providing notice to the executor as provided in the statute)." Tamulevich v. Robie, 426 Mass 712, 714 (1998); See Also Hastoupis v. Gargas, 9 Mass. App. Ct. 27, 32 (1980).
General Laws c. 180, § 11A, provides for single justice review and determination of a complaint requesting dissolution of a nonprofit charitable corporation. It is important to note that before the single justice will allow motions for the entry of an interlocutory order or for entry of judgment, the Office of the Attorney General must also endorse the motions.
Practice Note The first step in the dissolution process should be to contact the Public Charities Division of the Attorney General's Office. The Public Charities Division will provide information about the process by which nonprofit charitable corporations are dissolved.
There are a number of statutes in the general laws providing concurrent jurisdiction with the Supreme Judicial Court and lower courts. This section discusses the most commonly filed matters. Unless specifically proscribed by statute, the majority of these cases are transferred to the Superior Court pursuant to G. L. c. 211, § 4A.
General Laws c. 248, § 1 allows an imprisoned or restrained person to "prosecute a writ of habeas corpus . . . to obtain release from such imprisonment or restraint, if it proves to be unlawful . . . ." The writ may be issued "by the supreme judicial or the superior court, by a probate or a district court or by a judge of any of said courts." G. L. c. 248, § 2.
Certiorari is a civil action that may be filed in the Supreme Judicial Court or the Superior Court. Such an action provides a remedy to correct errors in proceedings not otherwise subject to review by motion or appeal and must be commenced within 60 days after the complained of proceeding. G. L. c. 249, § 4. Review by the Supreme Judicial Court "will correct only 'substantial errors of law apparent on the record adversely affecting material rights'." Murray v. Second District Court of Eastern Middlesex, 389 Mass. 508, 511 (1983)(quoting Commissioners of Civil Serv. v. Municipal Court of the City of Boston, 369 Mass. 84, 90 (1975)). The court will correct "only those errors which have resulted in manifest injustice to the plaintiff or which adversely affected the real interests of the general public." Murray, 389 Mass. at 511.
While the writ of mandamus was formally abolished by Mass.R.Civ.P. 81 (b), "[a] civil action to obtain relief formerly available by writ of mandamus may be brought in the supreme judicial or superior court." G. L. c. 249, § 5. Mandamus is a remedy for administrative inaction and is not available where action has already been taken. Doherty v. Retirement Board of Medford, 425 Mass 130, 134 (1997). A petitioner must have no other adequate or effective remedy. Coach & Six Restaurant, Inc. v. Public Works Comm'n, 363 Mass. 643, 644 (1973). Other statutes in which original and concurrent jurisdiction with the superior court is granted are G. L. c. 214, § 1 (equity) and G. L. c. 231A, § 1 (declaratory judgment).
Practice Note In matters in which there is concurrent jurisdiction, the petitioner or plaintiff is encouraged to file the matter in the Superior Court. The single justice session does not engage in discovery and will transfer matters where there is a dispute as to the facts.
In 1999 the name of the county court docket that primarily deals with attorney discipline was changed from "bar discipline docket" to "bar docket." This deceptively simple change is significant as there are matters entered in that docket that are purely administrative and not disciplinary in nature.
Administrative matters concerning the bar can include:
Administrative matters concerning the bar can include:
SJC Rule 4:01 of the Supreme Judicial Court grants the county court jurisdiction over bar discipline matters involving Aany lawyer admitted to, or engaging in, the practice of law in the Commonwealth and empowers the Board of Bar Overseers (board) with the responsibility to investigate and prosecute such matters. Those actions most frequently filed by the Office of Bar Counsel (bar counsel) are petitions for suspension (temporary, term or indefinite), disbarment and reciprocal discipline. The grounds upon which bar counsel may petition the single justice for disciplinary action against an attorney include:
In addition, the rule gives the single justice discretion to accept an attorney's resignation or to place an attorney on disability inactive status. An order of the single justice in bar docket matters is appealable to the full court and the standard by which the sanction imposed is reviewed is whether the sanction is Amarkedly disparate from those ordinarily entered in similar cases. Matter of Kerlinsky, 428 Mass 656, 664 (1999).
There are many actions conferring jurisdiction on the single justice that are filed in the county court. As noted below, these statutes confer exclusive or concurrent jurisdiction. Those matters having concurrent jurisdiction are customarily transferred to the lower court pursuant to G. L. c. 211, §4A.
Statutes conferring exclusive jurisdiction on the single justice included the following:
Statutes conferring concurrent jurisdiction are as follows:
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