Rule 6. Stay or Injunction Pending Appeal

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) Relief Must Ordinarily Be Sought in the First Instance in the Lower Court. 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.

(b) Motion for Relief in Appellate Court; Requirements for Same.

(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.

(c) Reasonable Notice and Response Period. 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.

(d) Terms. 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.

(e) Civil Cases; Stay May Be Conditioned Upon Giving of Bond; Proceedings Against Sureties. 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.

(f) Revocation of Stay in Criminal Case. 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.

(g) Expiration of Stay in Criminal Case. 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.

(h) Notice of Expiration of Stay in Criminal Case. 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.

(i) Appealability of Single Justice Order; Finality. 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.