379 Mass. 846 (1980), Globe Newspaper Co. v. Superior Court

Citation:379 Mass. 846, 401 N.E.2d 360
Case Date:February 26, 1980
Court:Supreme Judicial Court of Massachusetts

Page 846

379 Mass. 846 (1980)

401 N.E.2d 360




Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1980

Argued Oct. 9, 1979.

[401 N.E.2d 362] James F. McHugh, Boston (Janis M. Berry, Boston, with him), for plaintiff.

Mitchell J. Sikora, Jr., Asst. Atty. Gen. (Alan B. Sherr, Asst. Atty. Gen., with him), for defendant.

Marguerite M. Dolan, Turners Falls, for Greenfield Recorder, amicus curiae, submitted a brief.

James C. Heigham, Boston, for Massachusetts Newspaper Publishers Association, amicus curiae, submitted a brief.

Ralph E. Gordon, Sr., amicus curiae, pro se, submitted a brief.


Page 847

LIACOS, Justice.

On April 25, 1979, the plaintiff, Globe Newspaper Company (Globe), petitioned a single justice of this court for extraordinary relief pursuant to G.L. c. 211, § 3. The petition challenged the April 25, 1979, order of a trial judge of defendant Superior Court, who acted under the authority of G.L. c. 278, § 16A, to close a criminal trial to the general public. The judge had denied the Globe's motion to intervene and had denied the Globe's motion for a hearing and motion to revoke the order concerning exclusion of the press. Thus, the Globe sought from the single justice a temporary restraining order and permanent injunction ordering the judge to permit members of the press to attend the trial and related proceedings. On April 26, 1979, as the jury in the criminal trial were being empanelled, a single justice conducted a hearing on the Globe's petition and denied it after stating orally his reasons for his decision. A judgment was entered on May 7, 1979. 1 The Globe appeals. Mass.R.A.P. 1(b), 365 Mass. 844 (1974).

During the pendency of this appeal, the criminal trial proceeded to its conclusion. Thus, the issue raised before the single justice is now moot, and the appeal from his judgment

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must be dismissed. The issues raised by this record, however, are significant and troublesome, and are "capable of repetition yet evading review." Southern Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); Gannett Co. v. DePasquale, 443 U.S. 368, 377, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608 (1979). We deem it appropriate therefore to express our views on the issues argued. Wellesley College v. Attorney Gen., 313 Mass. 722, 731, 49 N.E.2d 220 (1943). In so doing, we consider matters now part of the record, but which were not put before the single justice.

Although neither the single justice nor this court is compelled to take the allegations in the Globe's petition as true, we may do so in light of the circumstances that the Commonwealth did not file an answer, Mass.R.Civ.P. 8(d), 365 Mass. 749 (1974), and that the facts alleged in the petition are not disputed. The petition shows that on or about April 19, 1979, the Superior Court in the County of Norfolk commenced hearings with respect to preliminary motions in the case of Commonwealth vs. Albert Aladjem, Norfolk Superior Court, No. 73102-9. The court caused a sign marked "closed" to be placed on the courtroom door, and court [401 N.E.2d 363] personnel turned away people seeking entry. 2 After failing to gain entry on April 24, 1979, counsel for the Globe on April 25 attempted to file with the court the motion to intervene and the other two motions. At the commencement of proceedings before the court, the judge ruled that he would not accept the Globe's motions as being proper for filing. Without holding a hearing and without argument of counsel, the judge ordered that the trial be closed and the press and general public excluded. Counsel for the defendant objected to the closure order, and the assistant district attorney stated that the Commonwealth did not request closure.

The transcript of the hearing before the judge is annexed to plaintiff's petition. It reveals that the Aladjem case involved

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three girls, ages sixteen, sixteen and seventeen at the time of trial. The indictments contained allegations of forcible rape and forced unnatural rape. The judge ruled that G.L. c. 278, § 16A, requires closure. He stated, "This ruling and Order results from a reading of the statute and from the feeling of the Court that a child-victim of an alleged sexual attack is entitled minimally to at least the same protection that a child-defendant in a case involving sexual matters has."

At the April 26 hearing before the single justice, the Globe and the Attorney General appeared. The assistant district attorney also appeared and stated: "(W)here the defendant is asserting his right to a constitutional, public trial, a trial judge may consider that as outweighing the otherwise legitimate statutory interest, particularly where the Commonwealth on behalf of the victims, and this is literally on behalf of the victims in the sense that they were consulted fully by the prosecutor in this case. The Commonwealth waives whatever rights it may have to exclude the press."

In a supplemental statement, the parties stipulated to facts concerning events after the April 26 hearing. In an April 30 conference with the trial judge, the assistant district attorney represented that she had spoken with the three victims about the presence of the press in the courtroom; the victims stated that they would not object to inclusion of the press if the press promised not to print any personal data about them, photograph them, or attempt to interview them. On May 10, 1979, following a jury trial, the defendant Aladjem was found not guilty.

The Globe argues that the single justice erred in denying its petition, claiming that G.L. c. 278, § 16A, did not authorize the judge to exclude the press from the Aladjem trial. This argument relies not only on statutory language and purpose, but also the principle that a statute should be construed to avoid constitutional doubts. We agree in part that the order closing the entire trial was in error. The Globe also raises several constitutional issues. The Globe contends that the First Amendment to the Constitution of

Page 850

the United States and art. 16 of the Declaration of Rights to the Constitution of Massachusetts protect the right of the public and press to be present during the conduct of criminal trials. In particular, the Globe argues that G.L. c. 278, § 16A, is overbroad and was applied unconstitutionally in this case. Also, the Globe maintains that the trial court's failure to hold a hearing on the closure issue violated the Globe's rights to due process of law. Finally, the Globe argues that the Sixth Amendment creates a right in the public to attend criminal trials. We reach only some of these questions today. 3

[401 N.E.2d 364] 1. The Globe argues that G.L. c. 278, § 16A, is ambiguous and is unconstitutional. Before we can turn to these constitutional arguments, we must construe G.L. c. 278, § 16A, in light of the asserted ambiguity. 4 See Bellotti v. Baird, 443 U.S. 622, 644 n.24, 99 S.Ct. 3035, 3049 n.24, 61 L.Ed.2d 797 (1979); Poulos v. New Hampshire, 345 U.S. 395, 402, 73 S.Ct. 760, 764, 97 L.Ed. 1105 (1953). In considering the claimed ambiguity, we are mindful of two principles of statutory construction.

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First, "(w)ords or phrases in a statute are to be given their ordinary meaning. They are to be construed according to their natural import and approved usage." Burke v. Chief of Police of Newton, 374 Mass. 450, --- a, 373 N.E.2d 949 (1978). "(T)he statutory language itself is the principal source of insight into the legislative purpose. . . . (W)here the language of the statute is plain and unambiguous, . . . legislative history is not ordinarily a proper source of construction." Hoffman v. Howmedica, Inc., 373 Mass. 32, --- b, 364 N.E.2d 1215, 1218 (1977). However, "(i)f the language of a provision is unclear, a court may look to outside sources for assistance in determining the correct construction." Rosenbloom v. Kokofsky, 373 Mass. 778, --- c, 369 N.E.2d 1142, 1144 (1977).

We consider three possible ambiguities in G.L. c. 278, § 16A. First, to what part or parts of a judicial proceeding does the locution, "At the trial . . . the presiding justice shall exclude the general public," refer? Second, is the word, "shall" used in a mandatory or directory sense? Third, are members of the press "persons" with "a direct interest" in the case? The Globe urges that the latter two questions mark ambiguities in the statute, and it is at least clear that the language "a direct interest" has required construction in the past. Commonwealth v. Marshall, 356 Mass. 432, 253 N.E.2d 333 (1969). Commonwealth v. Blondin, 324 Mass. 564, 87 N.E.2d 455 (1949), cert. denied, 339 U.S. 984, 70 S.Ct. 1004, 94 L.Ed. 1387 (1950). Because neither party has recognized the ambiguity underlying our first question, we take time to explicate it here.

The word "trial" is itself ambiguous. In determining the meaning of a word in a statute, we look to its ordinary lexical meaning. Burke v. Chief of Police of Newton, supra. "Rather than using terms in their everyday sense, '(t)he law uses familiar legal expressions in their familiar legal sense.' " Bradley v. United States, 410 U.S. 605, 609, 93 S.Ct. 1151, 1154, 35 L.Ed.2d 528 (1973) (citation omitted). In its legal definition of "trial," Webster's New International Dictionary 2705 (2d ed. 1959) suggests that the term has several senses: "In a general sense trial includes all proceedings from the time when issue is joined, or more usually when the parties are called to try their case in court,

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to the time of its final determination; in criminal law the term trial is, however, generally restricted to proceedings subsequent to swearing in...

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