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

• Citation: 130 N.E.3d 742,483 Mass. 80
• Decision Date: 09 September 2019
• Docket Number: SJC-12681
• Parties: BOSTON GLOBE MEDIA PARTNERS, LLC v. CHIEF JUSTICE OF the TRIAL COURT & another.
• Court: United States State Supreme Judicial Court of Massachusetts

483 Mass. 80

130 N.E.3d 742

BOSTON GLOBE MEDIA PARTNERS, LLC

v.CHIEF JUSTICE OF the TRIAL COURT & another.¹

SJC-12681

Supreme Judicial Court of Massachusetts, Suffolk..

Argued May 7, 2019

Decided September 9, 2019

The following submitted briefs for amici curiae:

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.

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, 863 N.E.2d 517 (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-magistrate² 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, 863 N.E.2d 517. 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, 863 N.E.2d 517 (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, 764 N.E.2d 338 (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, 849 N.E.2d 797 (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, 41 N.E.3d 28 (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 citizen⁷ 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. Id. 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, 863 N.E.2d 517. 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 id. ; 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. Se...