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Massachusetts District/Municipal Courts Appellate Division Appeals Rule 8A: Method of Appeal: Expedited Appeal

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(a) Filing and Contents. Within twenty days after the filing of a notice of appeal, the appellant may file in the trial court an "Expedited Appeal," so captioned, in which shall be included, or to which shall be attached, the following:

(1) a copy of the notice of appeal referred to in Rule 3;

(2) the text of any rulings of law by which the appellant claims to be aggrieved and the related requests for ruling, if any;

(3) a description of the stage of the proceedings at which, and the manner in which, the issues presented for review in the notice of appeal arose;

(4) a summary of the undisputed facts and so much of the evidence, including copies of pleadings and other documents, as may be necessary to decide the questions of law presented;

(5) the text of any memorandum of decision and findings of fact issued by the trial court;

(6) official citations to the essential statutes, rules of court, administrative rules or regulations, municipal ordinances and town bylaws;

(7) proof of service upon the parties and the trial court of the expedited appeal, including all attachments, pursuant to Rule 13(d); and

(8) a certification that the expedited appeal contains all the evidence, facts and other material necessary for consideration of the appeal by the Appellate Division.

(b) Service; Objections. The appellant shall serve a copy of the expedited appeal in accordance with Rule 13(c) upon the other parties and upon the judge by whose action the appellant claims to be aggrieved. Such service shall be made no later than the date of filing.

Such service on the judge shall be addressed to the court at which the judge is then sitting or is most likely to be sitting. If any party objects to the contents of the expedited appeal, said party, within ten days of filing, shall file in the trial court and serve upon the other parties a written statement of the objections. The timely filing of objections shall automatically terminate further proceedings under this rule. Such objections shall not be frivolous or made in bad faith. If, after appellee's objection, the appellant proceeds under Rule 8C, the issue of whether the objection was frivolous or made in bad faith may be the subject of a motion in the Appellate Division for costs as provided in Rule 26. Within the same ten days after the filing of the expedited appeal, the judge may enter an order terminating further proceedings under this rule upon a determination of noncompliance with the terms of this rule. In either event, further appellate procedures may proceed under either Rule 8B or 8C.

(c) Copies; Briefs; Transmission to Appellate Division. In the event that a party does not object to, or the judge does not terminate the proceedings as provided in section (b), above, the appellant shall file, within twenty-five days after the filing of the expedited appeal, six additional copies of the expedited appeal and six copies of its brief. One copy of its brief shall be served on each other party within the same time limit. The appellee shall serve one copy and file six copies of its brief within fifteen days after service of the appellant's brief. The appellant may serve one copy and file six copies of a reply brief within ten days after service of the appellee's brief. Briefs shall be in compliance with Rules 16 and 20 of these rules, except that no appendix shall be required. Upon expiration of sixty days from the filing of the expedited appeal, the clerk shall transmit to the Appellate Division six copies of the expedited appeal, six certified copies of the docket entries and six copies of the briefs of each party, if any, unless the court allows further time for the filing of briefs or any other reason. Said transmission shall not be delayed by the failure of any party to file a brief within the required time period or any extension thereof.

Effective July 1, 1994.

Commentary: This rule provides the first of three optional methods of appeal to the Appellate Division. It has no equivalent under the Mass. R.A.P. It is appropriate when the issues are limited in number and fairly clearly defined. It allows an appellant promptly and specifically to describe the issue or issues for appeal. Unless the opposing party files a timely objection or the court enters a timely order, briefs must be filed and the case proceeds to the Appellate Division on those issues. If a timely objection is filed or order is entered, the expedited appeal is terminated. There is no hearing in the trial court on whether an objection is frivolous or made in bad faith. But if the appellant proceeds under Rule 8C, costs may be sought in the Appellate Division under Rule 26. Such costs may be appropriate if the issue on appeal is based solely on the pleadings, requiring no transcript under Rule 8C.

Note that service of the expedited appeal on the judge must be addressed to the court where that judge "is then sitting or is likely to be sitting." This could be a court other than the trial court. Counsel should check with the trial court or, where necessary, the appropriate Regional Administrative Office.

This method of appeal is "expedited" not only because it avoids the cumbersome process of filing and settling a report for the Appellate Division, but also because it requires briefs to be filed within a limited time in the trial court. The clerk must send the case to the Appellate Division after sixty days. This gives all parties a chance to file briefs in the trial court within the time limits allowed. Upon arrival in the Appellate Division, the case can be immediately scheduled for argument. See Rule 10.

It should be noted that the issues stated in the notice of appeal under Rule 3(c) may not be added to in an expedited appeal under this rule.

Given the limited time for filing the expedited appeal, an appellant wishing to first review the taped record may have to check to see that the request for the cassette filed with the notice of appeal is being promptly processed by the trial court. Rule 3(d) requires the clerk to "forthwith" process the order for the cassette copy. This consists of sending the order and the master tape to the District Court Administrative Office (or in some cases to the Trial Court Administrative Office) for duplication. The cassette and master is then sent back to the requesting court and the rule requires the clerk to immediately notify the requesting party of its availability. The "turn around" time for actually making the cassette copy is usually very short, no more than one or two days. Delay can occur if the master tape is not promptly sent out for duplication by the clerk or if notice of the availability of the cassette copy is not promptly given. Courts are not required to mail the cassettes to counsel, but some courts will make such mailing if provided with an addressed, postage-paid envelope by counsel.

If review of the tape is desired before filing an expedited appeal, but delay is encountered, a request for extension of the 20-day period for filing the expedited appeal may be necessary by motion under Rule 2.

Note that no appendix to the appellant's brief is required under this procedure. The contents of the expedited appeal fulfills this function.

Note also that when a party fails to file and serve a brief and the case is transmitted to the Appellate Division, the latter can permit late filing and service (Rule 19(a)) or impose sanctions, including dismissal of the appeal (Rule 19(c)).