By Emily K. Musgrave, and Caroline Gelinne
In 2024, the Massachusetts Supreme Judicial Court (the “SJC”) issued an opinion that captured the interest of legal and lay readers alike. Johnson v. Settino, 495 Mass. 42 (2024) addressed an age-old question: When an engaged couple cancels their wedding, who keeps the engagement ring? The answer, according to the SJC: whoever gave the ring gets to keep it, regardless of who was “at fault” for the breakup. Given its attention-grabbing subject matter, Johnson percolated through national and state media outlets. But for Massachusetts appellate lawyers, the case stands out not because of the precious diamond at issue, but because the SJC took up the case on further appellate review (“FAR”).
What is FAR?
At first blush, the Massachusetts appellate system appears to be a two-rung ladder, with cases progressing from the trial courts, to the intermediate appellate court (the “Appeals Court”), to the SJC. In practice, however, very few cases will be heard by both the Appeals Court and by the SJC. This is by design. See Judith Michelman & Neal Quenzer, MCLE Appellate Practice in Massachusetts § 3.1.1 (5th ed. 2024) (“The objective . . . is to have each appeal heard and decided only once.”). The Legislature created the Appeals Court in 1972 to share the load of the appellate docket with the SJC. And so, the Appeals Court and the SJC share concurrent jurisdiction over most appeals, with most cases being heard by the Appeals Court. See G.L. c. 211A, § 10(A). On average, the Appeals Court decides about 1,000 cases each year, while the SJC decides about 200.
Certain categories of appeals, however, are subject to direct appellate review (“DAR”), meaning that the cases jump directly from the trial court to the SJC. See id. (listing three categories of cases warranting DAR). DAR can be granted either on “the court’s own initiative,” from the SJC monitoring the Appeals Court docket and identifying cases that warrant immediate consideration by the highest court, or by application from either party. Id. For appeals not taken up on DAR, the statute presumes that the SJC will decline further review of the Appeals Court’s decision. Id. § 11. Indeed, the SJC may only hear a case on FAR if (1) a majority of the Appeals Court justices deciding the case (or the Appeals Court as a whole) certifies that the public interest or the interests of justice make further review desirable, or if (2) upon a party’s application, three of the SJC’s seven justices agree that further review is warranted for “substantial reasons affecting the public interest or the interests of justice.” Id.
This statutory scheme effectively means that Massachusetts is a one-appeal system in most cases, and that FAR is the exception rather than the rule. The SJC’s case statistics reflect this: between 2016 and 2023, the Court granted nearly 40% of DAR applications, but under 3% of FAR applications. Clearly, in Massachusetts, parties cannot count on a second bite at the appellate apple.
When is FAR most likely to be granted?
Though not a perfect science, recent FAR cases signal a few common ingredients in the formula for a successful FAR bid.
The threshold question presented by the FAR statute and the attendant procedural rule is whether a case implicates the “public interest” or the “interests of justice.” That threshold may be satisfied in cases addressing an issue the SJC rarely has occasion to examine (or re-examine), causing longstanding Massachusetts precedents to fall out of trend. In Johnson, for example, the Court remarked that it had not addressed engagement-ring rights in “[m]ore than six decades,” Johnson, 495 Mass. at 42, during which time the Massachusetts rule (which assigned engagement-ring rights on a fault-based analysis of the couple’s separation) had grown “out of step with modern relationships.” Id. at 52. The deeply personal nature of the interest at issue may also have swayed the Court to grant FAR in Johnson. Indeed, a similarly personal issue was at stake in Church of the Holy Spirit of Wayland v. Heinrich, 491 Mass. 464 (2023), where the Court granted FAR to resolve the common-law rights of family members in the interred remains of their loved ones. Johnson and Heinrich suggest a type of case that may satisfy the “public interest” or “interests of justice” standard.
The SJC may also grant FAR when it perceives a need to redirect lower courts’ handling of a particular area of law. In Bristol Asphalt Co., Inc. v. Rochester Bituminous Products, Inc., 493 Mass. 539 (2024), for example, the Court granted FAR to overhaul the framework governing anti-SLAPP cases. The anti-SLAPP statute certainly implicates the public interest (i.e., the right of citizens to exercise political and legal rights of petition), and the SJC discerned that its existing anti-SLAPP framework “ha[d] led to additional time and expense for litigants,” frustrating the statute’s purpose. Id. at 541. FAR gave the Court a mechanism to intervene.
The SJC may also grant FAR where the noteworthy issue surfaces only after the Appeals Court issues its decision, leaving FAR as the SJC’s last resort to address the matter immediately. In Dorchester Mutual Insurance Company v. Miville, 491 Mass. 489 (2023), for example, the SJC gleaned that the parties may have misconstrued a footnote from a 2020 SJC opinion addressing the interpretation of “physical abuse” in an insurance policy exclusion. Before the Appeals Court, the parties disputed the footnote’s meaning, and specifically whether it created an alternate category of “physical abuse” that did not require an imbalance of power. This alone would not have indicated to the SJC that DAR was warranted. After all, the SJC had recently addressed the same issue. But then, in a Rule 23.0 decision, the Appeals Court concluded that “the SJC does not require an imbalance of power” to show “physical abuse.” Dorchester Mut. Ins. Co. v. Brengle, No. 21-P-656 (Mass. App. Ct. Apr. 13, 2022). The SJC granted FAR to “clarify” that, contrary to the Appeals Court’s conclusion, conduct constituting “physical abuse” under the policy exclusion “must involve an imbalance or misuse of power in addition to being physically harmful.” Miville, 491 Mass. at 500. Thus, the SJC might recognize that it has cause to grant FAR only after reviewing an Appeals Court decision and determining that the decision veers from the SJC’s intended course.
Alternatively, the Appeals Court may invite the SJC to intervene where it feels bound by SJC precedent with which it disagrees. Take Johnson. There, the engagement-ring rule the SJC articulated more than sixty years ago restricted the Appeals Court’s analysis, and so Appeals Court Justice Milkey expressly called on the SJC to reconsider its precedent: “[T]his case presents an opportune moment for the Supreme Judicial Court to revisit the existing case law.” Johnson v. Settino, 103 Mass. App. Ct. at 304 (2023) (Milkey, J., dissenting in part).
How Should SJC Hopefuls Proceed?
Given the relative rarity of FAR, those seeking SJC appellate review should focus their efforts on applying for DAR in the first instance, and on highlighting in their application why the case is novel, of constitutional dimension, or “of such public interest that justice requires a final determination by the supreme judicial court.” G.L. c. 211A, § 10(A). They should remember, however, that most Massachusetts appeals will be heard only once, and most often by the Appeals Court.
Emily K. Musgrave is a partner in the Boston office of Mintz and Co-Chair of the firm’s Appellate Practice Group. Emily also served as a law clerk for the Honorable Margot Botsford of the Massachusetts Supreme Judicial Court, and for the Honorable Leo T. Sorokin, then a Magistrate Judge, of the United States District Court for the District of Massachusetts.
Caroline Gelinne is an associate in the Boston office of Mintz with a focus on complex commercial litigation and appellate matters. Caroline also served as a law clerk for the Honorable Gregory A. Phillips of the Tenth Circuit Court of Appeals, and for the Honorable Paul A. Suttell of the Rhode Island Supreme Court.
