Rules of Appellate Procedure  Appellate Procedure Rule 6: Stay or injunction pending appeal (effective July 1, 2024)

In civil cases, motions for a stay of the judgment or order of a lower court pending appeal, or for approval of a bond under Rule 6 (e), or for an order suspending, modifying, restoring, or granting an injunction during the pendency of an appeal, are governed by this Rule.

In criminal cases, motions for a stay of execution of a sentence pending appeal, or to revoke, vacate, or modify such a stay, are governed by this Rule and by Massachusetts Rule of Criminal Procedure 31.

All Rule 6 motions filed in the Appeals Court shall comply with both this Rule and Massachusetts Appeals Court Rule 6.0.

A motion for a stay of the judgment or order of a lower court pending appeal, or for approval of a bond under Rule 6 (e), or for an order suspending, modifying, restoring, or granting an injunction during the pendency of an appeal, or for stay of execution of a criminal sentence pending appeal, must ordinarily be made in the first instance in the lower court.

(1)  A motion under Rule 6 (a) may also be made to a single justice of the court to which the appeal is being taken. Such a motion must show that a motion to the lower court is not practicable, or that the lower court has previously denied such a motion or did not afford the relief requested.

(2)  A motion to vacate a stay pending appeal may be made by any party, including the Commonwealth, in the first instance to a single justice of the appellate court to which the appeal is being taken.

(3)  Motions made in the appellate court shall show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute, the motion shall be supported by affidavits or other statements signed under the penalties of perjury or copies thereof. The movant shall also file all relevant parts of the lower court record, including, but not limited to, the lower court judge’s decision and reasoning, all filings and information submitted to the lower court in connection with the motion, and (in criminal cases) a copy of the defendant’s criminal history, if any, which shall be designated as impounded. A transcript need not accompany the motion unless oral findings and rulings were placed on the record by the lower court judge. If it is not practicable to timely obtain the transcript, the movant may substitute an audio recording of the hearing or an affidavit from counsel setting out the judge’s oral findings and rulings until the transcript is prepared.

(4)  Where an appeal is being taken to the Supreme Judicial Court, motions made under subsections (1) or (2) shall be filed with the clerk of the Supreme Judicial Court for Suffolk County.

Reasonable notice of the motion shall be given to the nonmoving party.

(1)  If the motion is filed prior to the docketing of the appeal in an appellate court, the time for response shall be governed by Rule 15.

(2)  After an appeal has been docketed pursuant to Rule 10 (a) (2),

(a) if the motion is filed at least 30 days prior to the date the appellant’s brief is due, the time for a response shall be governed by Rule 15; or

(b) if the motion is filed at any other time, the nonmoving party shall have 30 days to respond.

(3)  A single justice may shorten or extend the time for responding to any motion authorized by this rule, and may act on the motion without receiving or awaiting a response.

Relief available in the appellate court under this Rule, or denial of such relief, may be conditioned on such reasonable terms as the appellate court or single justice may impose. For failure to observe such terms, the appellate court or single justice may make such further order as it or the single justice deems just and appropriate.

In civil cases, relief available in the appellate court under this Rule may be conditioned upon the filing of a bond or other appropriate security in the lower court. If security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety thereby shall submit to the jurisdiction of the lower court and irrevocably appoint the clerk of the lower court as an authorized agent upon whom any documents affecting liability on the bond or undertaking may be served. A surety’s liability may be entered against the surety on motion in the lower court without the necessity of an independent action. The motion and such notice of the motion as the lower court prescribes may be served on the clerk of the lower court, who shall forthwith mail copies to the sureties if their addresses are known.

If a defendant fails at any time to take any measure necessary for the hearing of an appeal or report, a stay of execution of a sentence may, on motion of the Commonwealth, be revoked.

Upon the release of the decision by the appellate court of a judgment affirming the conviction, the stay of execution of the sentence automatically expires, unless extended by the appellate court.

Upon release of a decision affirming the conviction, the clerk of the appellate court shall notify the clerk of the lower court and the parties that the conviction has been affirmed and that, therefore, the stay of execution of the sentence has automatically expired.

An order by the single justice allowing or denying a motion under this Rule may be appealed to the appellate court in which the appeal is being taken. The decision of the appellate court shall be final.

(2024)

In Commonwealth v. Nash, 486 Mass. 394, 400 n.10 (2020), the Supreme Judicial Court invited the committee to clarify Rule 6 (b) to “explicitly recognize the Commonwealth’s right to file a motion, in the appellate court that is to hear and decide the underlying appeal, to challenge a trial judge’s granting of a stay.” While considering amendments in response to this invitation, the committee concluded that additional changes were necessary not only to Rule 6 (b), but also to Rule 6 (a). These further changes are primarily for reasons of style, consistency, or clarification.

The amended version of the rule adopts a new structure to avoid unnecessary duplication between former Rule 6 (a) (which pertained to civil cases) and former Rule 6 (b) (which pertained to criminal cases). The amended version has the following structure. The first two introductory paragraphs are merely informative and point the reader to other rules that should be consulted when filing a motion falling within Rule 6. Thereafter, new subsections (a)–(d) pertain to both civil and criminal cases. Subsection (e) pertains to civil cases; subsections (f)–(h) pertain to criminal cases. Subsection (i) pertains to all cases. With the exception of subsection (d), the reorganization is not intended to result in any substantive change, but only to enhance clarity and avoid duplication.

The revisions change the term “application” to “motion” throughout, without intending any substantive change. “Motion” merely is the modern-day term used to describe a request seeking the type of relief encompassed by Rule 6, whether such a request is filed in the lower court or the single justice session of the appellate court. While currently Mass. R. Crim. P. 31 (b), pertaining to the filing of requests for a stay of execution of sentence pending appeal, continues to use the term “application,” there is no substantive distinction between that term and the term “motion” as it is used in Rule 6.

Rule 6 (a) was revised to combine the parallel provisions for criminal and civil cases to eliminate unnecessary duplication in the text of the rule.

Rule 6 (b) (1) is essentially the same as the prior version, but was streamlined to apply to both criminal and civil cases and to eliminate redundant language.

Rule 6 (b) (2) is new and, pursuant to Nash, 486 Mass. at 400 n.10, clarifies that a motion to vacate a stay of execution of sentence pending appeal may be made by any party, including the Commonwealth, in the first instance to the single justice of the appellate court to which the appeal is being taken. As with the appeal of a single justice’s order allowing or denying a stay of execution of sentence, an appeal from a single justice’s order on a motion to vacate a stay may be appealed to the appellate court to which the underlying appeal is being taken.

Rule 6 (b) (3) is revised to state with greater detail and clarity the portions of the record that should accompany a Rule 6 motion. Previously, the rule was vague as it only required “such parts of the record as are relevant.” The amendments clarify that, at a minimum, this includes a complete copy of the judge’s decision and reasoning and all materials submitted to the lower court in connection with the motion, such as the motion, any supporting memoranda, any opposition or responses, and any attachments or other supporting materials.

In criminal cases, the revisions also require the moving party to provide “a copy of the defendant’s criminal history, if any, which shall be designated as impounded.” See S.J.C. Rule 1:15, § 2 (b) (material impounded in the Trial Court shall remain impounded in the appellate court). See also G. L. c. 6, §§ 167–168 (regulating the collection and dissemination of records of criminal proceedings); M.A.C. Rule 6.0 (b) (motions in the Appeals Court containing the defendant’s criminal history are to “be filed in a separate record appendix volume, the cover of which clearly indicates that it includes impounded material.”). This addition recognizes the practice of the appellate court single justices obtaining this information in connection with the determination of Rule 6 motions.

Finally, the revised rule provides that a transcript need not accompany the motion unless oral findings and rulings were placed on the record by the lower court. The revised rule recognizes that production of a transcript can take time to complete, and that time is often of the essence in Rule 6 motions. Accordingly, the revised rule seeks to avoid any unnecessary delay by allowing certain alternate means of conveying the lower court’s oral findings and rulings to the single justice while the transcript is being prepared.

Rule 6 (b) (4) restates what was the final sentence of the prior version of Rule 6 (a) (1) and (b) (1).

Rule 6 (c), which applies to both civil and criminal cases, governs the notice of a motion and response period, and was revised consistent with Commonwealth v. Nash. It provides that a motion to vacate or revoke a stay is governed by the same deadlines as a motion for a stay. Subsection (d), which as prior Rule 6 (a) (3) applied only to civil cases, now applies to both civil and criminal cases. The change is designed to make clear that the appellate court, or a single justice, may impose terms and conditions when imposing or vacating a stay of execution of sentence in a criminal case. No change to the text of prior Rule 6 (a) (3) was made, except to label it as (d), and to move the text to a new section whose scope now includes criminal cases.

Rule 6 (e) restates what was the prior version of Rule 6 (a) (2).

Rules 6 (f)–(h) restate what were the prior versions of Rules 6 (b) (4)–(6).

Rule 6 (i) was amended to include that a single justice’s order allowing or denying a motion to vacate a stay of execution of sentence pending appeal may be appealed to the appellate court in which the appeal is being taken.

Rule 6 (b) and the “gatekeeper” provisions of G. L. c. 278, § 33E. The “gatekeeper” provisions of G. L. c. 278, § 33E provide in part that “[i]f any motion is filed in the superior court after rescript [issues from the direct appeal of a conviction for first-degree murder or third conviction as a habitual offender], no appeal shall lie from the decision of that court upon such motion unless the appeal is allowed by a single justice of the supreme judicial court.” In a case where codefendants filed motions for new trial and motions for stay long after the denial of their direct appeals of their convictions for first-degree murder, the Supreme Judicial Court held that “we do not consider the defendants’ G. L. c. 211, § 3, petition to be an attempt to appeal per se from the [motion] judges’ adverse rulings on the motions for a stay, but the functional equivalent of a new motion for a stay pursuant to rule 6 (b) (1). The defendants were therefore not obligated to file a gatekeeper application before requesting a stay from the single justice.” Pope v. Commonwealth, 487 Mass. 1014, 1014–15 (2021).

(2019)

Rule 6(b)(2) was revised to clarify the standard time period for the Commonwealth to file a response to a motion for a stay of execution of a sentence. A motion to stay execution of a sentence may be filed in the appellate court either prior to completion of the record assembly process and the docketing of the appeal, or after the underlying appeal has been assembled and docketed pursuant to Rules 9 and 10. The timing of the motion affects the timing of the Commonwealth’s response. Rules 6(b)(2)(A) and 6(b)(2)(B)(i) provide that if the motion to stay sentence is filed prior to the docketing of the appeal in the appellate court, or after docketing of the appeal and at least 30 days prior to the due date for the appellant’s brief, the Commonwealth’s response time is governed by Rule 15. Otherwise, the Commonwealth has 30 days to respond pursuant to Rule 6(b)(2)(B)(ii). This clarification will eliminate any misapprehension that the Commonwealth has 30 days to respond in all circumstances. In either situation, the time for response may be shortened or extended by a single justice.

Further organizational and stylistic revisions were made to this rule in 2019 in accordance with a global review and revision of all of the Appellate Rules. These revisions are described in the 2019 Reporter’s Notes to Rule 1.

With regard to the preparation of the 2019 Reporter’s Notes to this Rule, see the first paragraph of the 2019 Reporter’s Notes to Rule 1. For an overview of the 2019 amendments to the Rules and a summary of the global amendments to the Rules, see 2019 Reporter’s Notes to Rule 1, sections I. and II.

(2009)

[The notes to the 2009 amendments were drafted by the Reporter for the Massachusetts Rules of Criminal Procedure]. This Rule was revised in 2009 to describe more fully the procedure for obtaining a stay of execution of a criminal sentence in an appellate court. It complements Rule 31 of the Rules of Criminal Procedure.

The 2009 amendment clarified the appellate process for stays of execution of a criminal sentence pending an appeal. As in civil cases, requests for a stay must first be presented to the trial court, unless such an application is not practicable. Either the defendant or the Commonwealth may seek relief from a single justice of the court that will hear the appeal concerning the trial judge’s decision to deny, e.g., Commonwealth v. Aviles, 422 Mass. 1008 (1996), or grant, e.g. Commonwealth v. Hodge, 380 Mass. 851 (1980), a stay. Only the parties may do so. See Hagen v. Commonwealth, 437 Mass. 374, 375 (2002) (crime victim lacks standing to request revocation of stay). In the ordinary course of events, for all but first-degree murder cases a single justice of the Appeals Court is the appropriate forum. The single justice does not review the decision of the trial judge, but considers the matter de novo. See Commonwealth v. Allen, 378 Mass. 489, 497 (1979).

Rule 6(b)(2) recognizes that it is important to give the Commonwealth adequate time to prepare a response to a motion for a stay, since that will often require substantial effort in addressing the merits of the underlying appeal.

After the single justice decides the issue, there is only one further step in the process: an appeal to the panel of the Appeals Court that will decide the merits, or the full bench of the Supreme Judicial Court if the case will be decided there. This changes prior practice, which allowed a party aggrieved by the decision of a single justice of the Appeals Court the option of seeking relief both by appealing the decision in that court and asking a single justice of the Supreme Judicial Court to entertain the matter. See e.g., Duong v. Commonwealth, 434 Mass. 1006 (2001). The appeal from the decision of the single justice may be accompanied by a motion for an expedited ruling. See e.g., Restucci v. Commonwealth, 442 Mass. 1045 (2004).

As also provided in Mass. R. Crim. P. 31, a stay of execution of sentence automatically expires when the appellate court considering the appeal releases a rescript affirming the conviction, unless the appellate court decides to extend it. A rescript is “released” when it is announced to the public and the appellate court notifies the parties that the court has decided the case. Cf. Mass. R. App. P. 23 (requiring the clerk of the appellate court to mail the parties a copy of the rescript and the opinion, if any). In the ordinary course of events, the rescript “issues” twenty-eight days following the release date or upon the denial of any petition for rehearing or application for further appellate review, whichever is later. Id.

When a rescript is released affirming a conviction, the clerk of the appellate court, in addition to the obligation that Mass. R. App. P. 23 imposes, shall notify the parties and the trial court clerk that the stay of execution of sentence has automatically expired. If the defendant wishes to apply for a new stay, in order to seek a rehearing or further appellate review, such a request should go to the appellate court that decided the case (either the panel of the Appeals Court or the full bench of the Supreme Judicial Court).

The court that decided the appeal may exercise its discretion to extend a stay of execution pending a petition for rehearing, application for further appellate review, or petition for certiorari. Unless otherwise specified, an extended stay expires when the rescript issues. The appellate court may act sua sponte or pursuant to the defendant’s motion, which may be filed before the appeal is decided or after the rescript is released.