Beware of the Courts Bearing Gifts: Is the Supreme Judicial Court’s Order Tolling Statutory Deadlines Constitutional?


By: Michael Lambert and Michael Stanley

April 10, 2020

On April 6, 2020, the Massachusetts Supreme Judicial Court’s (“SJC”) Order Regarding Court Operations Under the Exigent Circumstances Created by the COVID-19 (Coronavirus) Pandemic (the “Order”) became effective. The Order discussed access to courts, emergency matters, clerk’s office procedures, and trial deadlines. Importantly, the Order tolled “all statutes of limitation … from March 17, 2020, through May 3, 2020” and “all deadlines set forth in statutes … that expired or will expire between March 16, 2020, and May 4, 2020.”  The tolling period expires on May 4, 2020. The SJC issued this order under G.L. c. 211, § 3 under its superintendence powers. The question becomes—does the SJC’s superintendence powers bestow it the authority to toll deadlines set by the Massachusetts Legislature? There are three competing concepts that must be considered to answer this question.

The SJC’s Superintendence Powers.

First, the SJC issued the Order pursuant to its “superintendence and ruling making authority.” The superintendence statute, G.L. c. 211, § 3 grants the SJC, “general superintendence of the administration of all courts of inferior jurisdiction” and permits the court to “issue such writs, summonses and other processes and such orders, directions and rules as may be necessary or desirable for the furtherance of justice, the regular execution of the laws, the improvement of the administration of such courts, and the securing of their proper and efficient administration.”[1] Thus, on its face, the superintendence statute is limited to the judiciary and permits the SJC to issue orders to secure the administration of justice within Commonwealth’s courts.[2] Case law interpreting and applying the SJC’s superintendence powers bear this out.

In Simmons v. Clerk-Magistrate of the Bos. Div. of the Hous. Court Dep’t, the SJC was called upon, under G.L. c. 211, § 3, to determine whether the Clerks Office of the Boston Housing Court is required to collect a filing fee from the Boston Housing Authority—a quasi-governmental agency. The SJC first determined whether this dispute was within its superintendence powers. In concluding that it was, the Court collected a litany of cases where the Court exercised its superintendence to correct a “a systemic issue affecting the proper administration of the judiciary.”[3] Based upon Simmons it appears that the SJC traditionally uses its superintendence powers to resolve intra­-judiciary disputes “‘with implications for the effective administration of justice…’”[4] For instance, the SJC has used its superintendence powers to resolve a dispute between members of the judiciary[5], how cases are transferred between the courts,[6] and a dispute regarding courtroom access.[7] And while the SJC has recognized that its “extraordinary superintendence authority” may be used “to remedy matters of public interest “that may cause further uncertainty within the courts”[8] these issue again bear on the administration of justice through the courts.[9]

In addition to case law limiting the superintendence powers to the SJC ability to administer the courts, the Legislature, limited the SJC’s superintendence powers by forbidding the SJC for overriding statutes passed by the Legislature. The superintendence statute provides: “General superintendence shall not include the authority to supersede any general or special law unless the supreme judicial court, acting under its original or appellate jurisdiction finds such law to be unconstitutional in any case or controversy.”[10] Thus, the superintendence statute, itself, places constraints on its scope.

Separation of Powers Under Article 30 of the Massachusetts Declaration of Rights.

Second, Article 30 of the Massachusetts Declaration of Rights (“Article 30”) “articulate[s] an explicit separation of powers.”[11] “Article 30 specifically prohibits the legislative, executive, and judicial branches from ‘exercis[ing] the . . . powers of the other branches.’”[12] Thus, where an order, statute or executive directive “impermissibly allocates a power held by only one branch to [it], [the conduct] violates” Article 30.[13]  The SJC has been “ever solicitous to maintain the sharp division between the three departments of government as declared by art. 30 of the Declaration of Rights.”[14] And, in advising the Massachusetts Legislature on the validity of their conduct, it has noted that separation of powers “‘though sometimes difficult of application, must be scrupulously observed.’”[15] Indeed, the SJC recognized this division, two days before issuing the Order, when it held that a judge overstepped the inherent power of the judiciary where it infringed upon the statutory procedure to assign indigent defendants counsel.[16]

The Legislative Function – Statute of Limitations, Statutory Deadlines to Appeal, and a Court’s Ability to Extend Them.

The third concept to be considered is whether setting the time limits in statute of limitation and appeal deadline are a legislative function. There is support for the conclusion that they are. The Massachusetts Legislature has enacted numerous statutes of limitations. These limitation periods represents the outer time limit for which a party can pursue a certain remedy.[17] Its purpose serves “a legislatively considered policy determination concerning the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale ones.”[18] Additionally, the Legislature has specifically delineated the circumstances under which a statute of limitation will be tolled.[19] Given that the statute of limitation represents the Legislature’s policy decision making, only the Legislature can extend or modify a statute of limitation. [20]

Likewise, where the legislature has created a statutory cause of action—for instance summary process—it has ascribed appeal deadlines associated with those causes of action. Again, those appeal deadlines represent the Legislature’s will.[21] The same is true where the Legislature permits an appeal from an administrative or professional supervisory body’s decision, such as the Board of Medicine.[22] In other circumstances, a court held that because the Legislature prescribed these appeal deadlines “a rule of court cannot override a contrary statutory appeal period ‘when the manner and time for effective filing of an appeal are delineated in the statute.’”[23]

Equitable Tolling Concepts

Equitable tolling concepts adds another wrinkle. Massachusetts follows federal equitable tolling principles, which permit equitable tolling where the plaintiff “shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way” and prevented timely filing.”[24] Indeed, the Massachusetts Appeals Court has recognized that the “‘enactment of statute of limitations does not bar judicial consideration of equitable tolling absent clear statement”’” by the Legislature.[25] However, equitable tolling remains an individual inquiry, which requires proof that it applies to each individual. Thus, while equitable tolling can provide a basis to toll all limitations and statutory deadlines, questions remain as to whether the SJC has to power to find all deadlines equitably tolled.

What Does This All Mean?

Understanding the interplay between separation of powers, statutory deadlines, Court rules and equitable tolling is important to determine the valid scope of the Order. Given Article 30’s command that the judiciary cannot take legislative acts and the superintendence statute’s limitation on the SJC’s power to supersede any general law, there is an argument that that the tolling provisions of the Order exceed these constraints when applied to statute of limitations and statutory appeals period dictated by the Legislature.  However, when applied to deadlines set by the SJC—such as the 30-day deadline to appeal in Mass. R.A.P. 4—the Order is on arguably firmer ground. The Rule of Appellate Procures were enacted by the SJC by order on July 1, 1973 as are their subsequent amendments. Thus, the SJC possesses direct power to toll deadlines set in its orders.

Because the SJC’s Order may be subject to a constitutional challenge the most prudent course is for the Massachusetts Legislature to enact identical relief and provide litigants and lower courts with certainty on these important issues. This type of action is within the Legislative function, as it can define, suspend, toll and extend the deadlines it sets. If the Legislature steps in, litigants and courts would not need to determine whether the deadline in their case are within (or beyond) the scope of the Order or whether equitable tolling principle applies. In other words, the Legislature has the power to place all cases on equal footing during this emergency. Unless and until that happens, litigants may be forced to raise these arguments in front of a court to get a ruling specific to that case.

[1] G.L. c. 211, § 3.

[2] Id.

[3] Simmons v. Clerk-Magistrate of the Bos. Div. of the Hous. Court Dep’t, 448 Mass. 57, 61 (2006)

[4] Id. (quoting First Justice of the Bristol Div. of the Juvenile Court Dep’t v. Clerk-Magistrate of the Bristol Div. of the Juvenile Court Dep’t, 438 Mass. 387, 391 (2003)).

[5] First Justice of the Bristol Div. of the Juvenile Court Dep’t, 438 Mass. at 391

[6] A Juvenile v. Commonwealth (No. 1), 380 Mass. 552, 556 (1980).

[7] County Comm’rs of Bristol v. Judges of Probate of Bristol County, 338 Mass. 738, 741-742, 157 N.E.2d 245 (1959)

[8] Comm. for Pub. Counsel Servs. v. Chief Justice of the Trial Court, No. SJC-12926, 2020 Mass. LEXIS 191, at *26 (Apr. 3, 2020)

[9] Id. (citing Bridgeman v. District Attorney for the Suffolk District, 471 Mass. 465, 474, 30 N.E.3d 806 (2015) (court utilized broad powers of superintendence to address drug lab crisis affecting thousands of potential defendants); Lavallee v. Justices in the Hampden Superior Court, 442 Mass. 228, 239, 812 N.E.2d 895 (2004) (relief under G. L. c. 211, § 3, is necessary to remedy shortages of attorneys to represent indigent defendants).

[10] G.L. c. 211, § 3.

[11] Commonwealth v. Cole, 468 Mass. 294, 301-02 (2014) (citing Opinion of the Justices, 365 Mass. 639, 640, 309 N.E.2d 476 (1974)).

[12] Id.  (quoting LaChapelle v. United Shoe Mach. Corp., 318 Mass. 166, 170 (1945))

[13] Ellis v. Department of Indus. Accs., 463 Mass. 541, 549-550 (2012).

[14] Attorney Gen. v. Brissenden, 271 Mass. 172, 183 (1930).

[15] Opinion of Justices, 365 Mass. 639, 640-41 (1974) (quoting Opinion of the Justices, 302 Mass. 605, 622 (1939)).

[16] Carrasquillo, Jr. v. Hampden Cty. Dist. Courts, 484 Mass. 367, 384 (2020)

[17] Horton v. Attorney General, 269 Mass. 503, 511, 169 N.E. 552, 555 (1930)

[18] RHI Holdings v. Comm’r of Revenue, 51 Mass. App. Ct. 681, 690 (2001)

[19] G.L. c. 260.

[20] Commonwealth v. Bargeron, 402 Mass. 589, 594, 524 N.E.2d 829, 832 (1988)

[21] Adjartey v. Cent. Div. of the Hous. Court Dep’t, 481 Mass. 830, 857 (2019) (noting the short 10-day appeal period in summary process matters exists because the “process provided for in [G. L. c. 239] is designed, after all, to be summary.”).

[22] Friedman v. Bd. of Registration in Med., 414 Mass. 663, 664-65 (1993)

[23] Commonwealth v. Claudio, 96 Mass. App. Ct. 787, 793-94 (2020) (citing Friedman, 414 Mass. at 665. Clark, 67 Mass. App. Ct. at 833 (“An explicit statutory appeal period cannot be extended in the court’s discretion, nor even by contrary rule of court …”)). See also Harper v. Div. of Water Pollution Control, 412 Mass. 464, 465 (1992) (“A rule of court cannot override a contrary statutory provision concerning the manner and time for the effective taking of an appeal from an administrative agency.”); U.S. Bank Tr., N.A. v. Johnson, 96 Mass. App. Ct. 291, 294 (2019) (“It is settled that the ten-day period established by § 5 for filing a notice of appeal is jurisdictional and ineligible for enlargement.”’ ).

[24] Holland v. Florida, 560 U.S. 631, 649 (2010)

[25] Johnson, 96 Mass. App. Ct. at 296-97 (quoting United States v. Kwai Fun Wong, 575 U.S. 402 (2015)).