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Boston Globe Media Partners, LLC v. Chief Justice of Trial Court

Supreme Judicial Court of Massachusetts, Suffolk

September 9, 2019

BOSTON GLOBE MEDIA PARTNERS, LLC
v.
CHIEF JUSTICE OF THE TRIAL COURT & another. [1]

          Heard: May 7, 2019

         Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 11, 2018.

         The case was reported by Lowy, J.

          Jonathan M. Albano for the petitioner.

          Eric A. Haskell, Assistant Attorney General, for the respondents.

          Peter J. Haley for Association of Magistrates and Assistant Clerks of the Trial Court.

         The following submitted briefs for amici curiae:

          Ruth A. Bourquin, Matthew R. Segal, & Daniel L. McFadden for American Civil Liberties Union of Massachusetts & another.

          Esme Caramello for Harvard Defenders & others.

          Pauline Quirion for Greater Boston Legal Services & another.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.

          GANTS, C.J.

         In Eagle-Tribune Publ. Co. v. Clerk-Magistrate of the Lawrence Div. of the Dist. Court Dep't, 448 Mass. 647, 647-648 (2007) (Eagle-Tribune), this court held that the public has no right under the First Amendment to the United States Constitution to attend "show cause" hearings, during which individuals who have been accused of a crime but have not been arrested have the opportunity to be heard by a clerk-magistrate[2]before the issuance of a criminal complaint. See G. L. c. 218, § 35A. Boston Globe Media Partners, LLC (the Globe), does not challenge that holding here. Nor does the Globe argue that the records of all show cause hearings should be available for public inspection. Instead, the Globe claims that the public has a common-law and constitutional right to access the records of a particular subset of show cause hearings: those where a clerk-magistrate in the District Court or the Boston Municipal Court makes a finding of probable cause, but declines in the exercise of his or her discretion to issue a criminal complaint.

         We conclude that the requested show cause hearing records are not presumptively public under the common law, the First Amendment, or art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Constitution. We therefore deny the Globe's request for declaratory relief under G. L. c. 211, § 3. Any member of the public, however, may request that the records of a particular show cause hearing be made publicly available, and a clerk-magistrate or a judge shall grant such a request where the interests of justice so require.

         To promote transparency, accountability, and public confidence in our judiciary with respect to the conduct of show cause hearings in the absence of a presumptive right of public access, we exercise our superintendence authority to require that all show cause hearings be electronically recorded. We also direct the Trial Court to establish uniform policies and procedures for the collection of information regarding show cause hearings. This information can be used to develop compilations that could be made available to the public upon request and, at the discretion of the Trial Court, periodically published. Such compilations will not, however, reveal the identities of the persons accused where no complaint issued.[3]

         Background.

         1. Initiating a criminal case.

         Generally, the decision whether to charge an individual with a crime is made without the participation of the accused. "Many criminal prosecutions begin with [a warrantless] arrest, followed by the filing of an application for a complaint against the arrested person by a law enforcement officer."[4] Eagle-Tribune, 448 Mass. at 648-649. Under these circumstances, the clerk-magistrate reviewing the application must authorize the criminal complaint if he or she determines that it is supported by probable cause.[5]See Mass. R. Crim. P. 3 (g) (2), as appearing in 442 Mass. 1502 (2004); standard 2:04 of the District Court Standards of Judicial Practice: The Complaint Procedure (2008) (Complaint Standards)[6] ("magistrate should deny a complaint for a charged offense [where the accused has been arrested] only if he or she finds no probable cause or has not been provided with the facts necessary to determine whether there is probable cause for that offense").

         An arrested individual, of course, has no right to be heard by a judicial officer before being arrested, and also has no right to dispute the existence of probable cause before the clerk-magistrate who decides whether to issue a criminal complaint. See Eagle-Tribune, 448 Mass. at 655 (accused not present during ex parte "complaint procedure for arrested individuals, in which a law enforcement officer swears to the underlying facts before a clerk-magistrate who must determine probable cause"); standard 2:02 of the Complaint Standards. Therefore, if the accused is arrested and a criminal complaint issues, he or she may challenge the validity of the complaint only by filing a motion to dismiss. See Commonwealth v. DiBennadetto, 436 Mass. 310, 313 (2002) ("motion to dismiss . . . is the appropriate and only way to challenge a finding of probable cause" after issuance of complaint).

         An individual likewise has no right to be heard by a grand jury before indictment. See Matter of a Grand Jury Subpoena, 447 Mass. 88, 93 (2006) ("defendant does not have a right to testify before a grand jury"). If the individual is indicted, he or she may challenge the validity of the indictment only by filing a motion to dismiss it. See Commonwealth v. Garrett, 473 Mass. 257, 264 (2015) (challenge to sufficiency of indictment generally must be raised by motion to dismiss prior to trial).

         But where a person has not been arrested or indicted and where a law enforcement officer or private citizen[7] applies for a criminal complaint, the Legislature has granted the accused individual in many cases the right to be "heard personally or by counsel" at a show cause hearing to oppose the issuance of the complaint. G. L. c. 218, § 35A. Under § 35A, an accused's right to a show cause hearing depends on whether the alleged crime is a felony or a misdemeanor, whether the individual who files the application for a criminal complaint is a law enforcement officer or a private citizen, and whether there is an imminent threat of bodily injury, of the commission of a new crime, or of the accused's flight.[8]

         Where the alleged crime is a misdemeanor, the accused "shall ... be given an opportunity" to participate in a show cause hearing, regardless of whether the complainant is a law enforcement officer or a private citizen. I_d. Thus, for example, where two parents get into a fist fight at a youth hockey game and one of the parents (or a law enforcement officer who observed the altercation) seeks to bring misdemeanor assault and battery charges against the other parent, the clerk-magistrate must hold a show cause hearing.

         Where the alleged crime is a felony and the complainant is a law enforcement officer, a show cause hearing shall be held only if the law enforcement officer requests it. G. L. c. 218, § 35A. See standard 3:08 & commentary of the Complaint Standards. Using our example of an altercation at a youth hockey game, this means that if a dangerous weapon is used in the assault and battery and a police officer applies for a felony complaint against the perpetrator, no show cause hearing will be held unless the police officer requests such a hearing.

         If the law enforcement officer chooses not to request a show cause hearing, the clerk-magistrate shall proceed as though the accused had been arrested and decide whether probable cause exists based only on information provided by the officer. G. L. c. 218, § 35A. See standard 3:08 & commentary of the Complaint Standards.

         Where the complainant seeking felony charges is not a law enforcement officer, the clerk-magistrate may exercise his or her discretion to hold a show cause hearing. G. L. c. 218, § 35A. See standard 3:09 of the Complaint Standards. The Complaint Standards encourage clerk-magistrates to schedule show cause hearings for felony charges sought by private complainants "unless there are public safety or other reasons for not doing so."[9] Standard 3:09 of the Complaint Standards.

         Show cause hearings "bear[] little resemblance to a trial." Eagle-Tribune, 448 Mass. at 653. The accused has a right to offer his or her version of events but no right to cross-examine witnesses, and the clerk-magistrate may consider evidence, including hearsay, that would not be admissible at trial. Id. And although the accused may retain a private attorney to represent him or her at the hearing, the accused has no right to appointed counsel if he or she is indigent. See i_d.; G. L. c. 218, § 35A; Mass. R. Crim. P. 8, as amended, 397 Mass. 1226 (1986) (right to counsel attaches when "defendant charged with a crime" initially appears in court).

         If the clerk-magistrate determines that there is not probable cause to believe that the accused committed the crime alleged, regardless of who applied for the complaint and whether the application alleges a felony or a misdemeanor, the clerk-magistrate must decline to issue the complaint. G. L. c. 218, § 35A. If the clerk-magistrate determines that there is probable cause, however, it matters whether a law enforcement officer or private citizen applied for the complaint, whether the application alleges a felony or a misdemeanor, and whether a prosecutor's office has communicated a decision to prosecute the case.

         Where a law enforcement officer applies for a felony complaint, a clerk-magistrate who finds probable cause must authorize the complaint unless a prosecutor's office opposes its issuance. See standard 3:08 & commentary of the Complaint Standards. Where a private citizen applies for a felony complaint, or where anyone applies for a misdemeanor complaint, a clerk-magistrate who finds probable cause must authorize the complaint if the prosecutor's office communicates to the clerk- magistrate its intention to prosecute the case if probable cause is found. See Victory Distribs., Inc. v. Ayer Div. of the Dist. Court Dep't, 435 Mass. 136, 143 (2001) ("Should [a prosecutor] decide to prosecute, neither a judge . . . nor a clerk-magistrate may bar the prosecution, as long as the complaint is legally valid"); standard 3:00 of the Complaint Standards ("If the Attorney General's office or the [d]istrict [a]ttorney's office has decided to prosecute, a magistrate must authorize the requested complaint if supported by probable cause"). "A magistrate may ordinarily assume that the [d]istrict [a]ttorney's office will prosecute a complaint supported by probable cause that is sought by police or other authorized law enforcement officials, but may also inquire in doubtful cases."[10]Standard 3.00 of the Complaint Standards.

         But where a private citizen applies for a felony or misdemeanor complaint and a prosecutor's office has not communicated a decision to prosecute the case, a clerk- magistrate may in the exercise of his or her discretion decline to issue a criminal complaint even where probable cause is found. See G. L. c. 218, § 35A (clerk-magistrate "may . . . cause process to be issued unless there is no probable cause" [emphasis added]); Victory Distribs., Inc., 435 Mass. at 142. Returning to our youth hockey altercation example, where a clerk-magistrate finds probable cause to believe that the accused parent struck or pushed the complainant parent, and therefore committed a misdemeanor assault and battery, and where the prosecutor's office has not communicated an intent to prosecute the accused parent, the clerk-magistrate may decline to issue a criminal complaint and instead explore with the complainant and the accused ways to resolve their dispute outside the criminal justice system.

         As we explained in Eagle-Tribune, 448 Mass. at 650-651, apart from the legal function of the show cause hearing to determine whether there is probable cause,

"'[t]he implicit purpose of the [§] 35A hearings is to enable the [clerk-magistrate] to screen a variety of minor criminal or potentially criminal matters out of the criminal justice system through a combination of counseling, discussion, or threat of prosecution --techniques which might be described as characteristic, in a general way, of the process of mediation.' Snyder, Crime and Community Mediation -- The Boston Experience: A Preliminary Report on the Dorchester Urban Court Program, 1978 Wis. L. Rev. 737, 746-747, quoted with approval in Gordon v. Fay, 382 Mass. 64, 69-70 (1980) .... Thus, 'a show cause hearing . . . will often be used by a clerk-magistrate in an effort to bring about an informal settlement of grievances, typically relating to minor matters involving "the frictions and altercations of daily life."' [Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the Dist. Court Dep't, 439 Mass. 352, 356 (2003)], quoting Bradford v. Knights, 427 Mass. 748, 751 (1998)."

         The records of these show cause hearings -- where a clerk-magistrate finds probable cause but declines to issue a criminal complaint -- are what the Globe contends are presumptively public judicial records.

         Where a clerk-magistrate authorizes a criminal complaint, "the application, together with any record of the facts presented to the magistrate, including any recordings, becomes part of the criminal case file and is publicly available unless impounded by a judge." Standard 5:02 of the Complaint Standards. See Administrative Office of the District Court, A Guide to Public Access, Sealing & Expungement of District Court Records, at 12 (rev. Sept. 2013) (Guide to Public Access) ("Applications, police reports and other materials submitted to a clerk or judge in support of, or in opposition to, a criminal complaint that was subsequently issued" included among publicly available documents).

         But where a clerk-magistrate declines to issue a criminal complaint, the application, together with any record of the facts presented to the magistrate, including any recordings, "shall be maintained separately from other records of such court." G. L. c. 218, § 35. See standard 5:01 of the Complaint Standards ("If a complaint is denied, the application form and any attachments must be kept separate from any criminal records"). In contrast with case files, which must be retained for at least ten years before being destroyed, see S.J.C. Rule 1:11, as appearing in 480 Mass. 1322 (2018), denied complaint applications and their accompanying records shall be destroyed "one year after the date such application was filed, unless [a judge] shall for good cause order that such application be retained on file for a further period of time." G. L. c. 218, § 35. See standard 5:01 of the Complaint Standards ("If a complaint is denied, the application form and any attachments must be . . . destroyed after one year;" if show cause hearing was recorded, "the recording must be preserved for one year"), [11]

         If the complainant seeks redetermination by a judge of the clerk-magistrate's decision to deny the issuance of a criminal complaint, the judge may examine the denied applications and the records associated with them. See standard 3:22 of the Complaint Standards. A request for redetermination is not formally an appeal, because there is no entitlement to review by a judge. See J_d. ("If the magistrate denies a complaint, the complainant may not appeal the magistrate's determination, but may request a judge to redetermine the matter"). But it does provide a potential avenue of relief for an aggrieved complainant.[12] Where a redetermination is requested, the judge has the discretion to "consider the application de novo" and hold a new show cause hearing, to review the factual information previously provided to the clerk-magistrate, or to deny redetermination, presumably because the complainant's allegations do not warrant further review. I_d. If the judge decides to hold a new hearing, the complainant and the accused shall have a right to attend and present evidence. If the judge denies redetermination or declines to issue a complaint after redetermination, the complainant has no right to further judicial review. See Commonwealth v. Orbin 0., 478 Mass. 759, 765 (2018), quoting Bradford, 427 Mass. at 751 ("even where the Legislature has given a private party the opportunity to seek a criminal complaint, we have uniformly held that the denial of a complaint creates no judicially cognizable wrong").

         2. The Globe's records requests and petition pursuant to ...


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