Number 9 September 13, 1972

Number 9 September 13, 1972 Henry Clay, Esquire Executive Secretary Council Chamber State House Boston, Massachusetts 02133 Dear Mr. Clay: On behalf of the Executive Council, you have requested my opinion on the following question: "When a question concerning the Constitution of the United States has been raised in a court of the Common- wealth and a finding against the individual raising the ques- tion has been made by the Appeals Court, do the require- ments of Section 10 of Chapter 740 of the Acts of 1972 or of any other section of said Act governing the individual's con- tinuing his appeal render the statute or a portion thereof un- constitutional for the reason that it restricts further appeal to the Supreme Judicial Court and may thereby restrict appeal to the United States Supreme Court?"' For the reasons hereinafter set forth, I answer the question in the negative. General Laws, c. 211 A, §§ 10 and 11, inserted by St. 1972, c. 740. § 1, provides as follows: "Section 10. Subject to such further appellate review by the supreme judicial court as may be permitted pursuant to section eleven or otherwise, the appeals court shall have concurrent appel- late jurisdiction with the supreme judicial court, to the extent review is otherwise allowable, with respect to a determination made in the superior court, the land court and the probate courts, (a) in all civil proceedings at law or in equity without limit as to the subject matter or amount in controversy: (/?) in proceedings in the superior court for the review of adminis- trative determinations; (c) in proceedings in the superior court relating to mandamus, certiorari and all other extraor- dinary writs: and (J) in criminal cases, irrespective of whether sentence has been imposed, except in review of con- victions for first degree murder where a sentence of death or life imprisonment has been imposed. A report from the superior, land or probate courts of any case, in whole or in part, or any question of law arising therein shall be deemed within the concurrent appellate jurisdiction of the supreme court and the appeals court. Without regard to whether review is by appeal, bill of ex- ceptions, report or otherwise, appellate review of decisions made in the superior, land or probate courts, if within the ' By --Seclion 10 of ( hapter 740." I lake you to refer to G. L. c. 21 1,-\. § 10. inserted hy § I of c. 740. P.D. 12 57 jurisdiction of the appeals court, shall be in the first instance by the appeals court except in the following cases in which appellate review shall be directly by the supreme Judicial court without the necessity of any prior hearing or decision by the appeals court on the merits of the issues sought to be reviewed. (A) Whenever two justices of the supreme judicial court issue an order for direct review by the supreme judicial court in any case on appeal, either at the request of one of the par- ties or at the court's own initiative, upon finding that the questions to be decided are: (1) questions of first impression or novel questions of law which should be submitted for final determination to the supreme judicial court; (2) questions of law concerning the Constitution of the commonwealth or questions concerning the Constitution of the United States which have been raised in a court of the commonwealth; (3) questions of such public interest that justice requires a final determination by the supreme judicial court. (B) Whenever the appeals court as a body or a majority of the justices of the appeals court considering a particular case certifies that direct review by the supreme judicial court is in the public interest. In each case where appellate review is not within the juris- diction of the appeals court, appellate review shall be directly . by the supreme judicial court, unless such case is transferred by the supreme judicial court to the appeals court for deter- mination in accordance with section twelve of this chapter. "Section 1 1. There shall be no further appellate review by the supreme judicial court of any matter within the jurisdiction of the ap- peals court which has been decided by the court, except: — (a) where a majority of the justices of the appeals court decid- ing the case, or of the appeals court as a whole, certifies that the public interest or the interests of justice make desirable a further appellate review, or (b) where leave to obtain further appellate review or late review is specifically authorized by three justices of the supreme judicial court for substantial reasons affecting the public interest or the interests of justice. Upon the written order of a majority of the justices of the ap- peals court, the decision of a panel of the appeals court may be reviewed and revised by a majority of the justices of the appeals court. Such a review shall not be a condition prece- dent to obtaining further appellate review by the supreme ju- dicial court." Experience makes manifest that a great many cases, in which one party or another raises some claim or defense based on the Constitution of the United States, will not be 58 P.D. 12 considered of such legal significance or public importance as to warrant further review by the Supreme Judicial Court after a decision by the Appeals Court. However, the fact that the Supreme Judicial Court has exercised its discretion by refus- ing further review in such a case in no way affects the right of the litigants to seek further review in the Supreme Court of the United States. Title 28, Section 1257, of the United States Code provides: "Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court . . ."' (Emphasis supplied.) Under this provision, if the jurisdiction of the Supreme Judicial Court is properly invoked and it declines to review the judgment of the Ap- peals Court, the Appeals Court is then the highest court in which a deci- sion could be had. A party would then be free to appeal that decision to the United States Supreme Court. Minneapolis, St. Paul & Sault Ste Marie R\. Co. v. Rock, 297 U.S. 410: Prudential Ins. Co. ofAmerica v. Cheek, 259 U.S. 530. Very truly yours, ROBERT H. QUINN Attorney General