Commonwealth v. Fremont Inv. & Loan & Another 1 (and a Companion Case 2).
Decision Date | 01 April 2011 |
Docket Number | SJC–10749. |
Citation | 459 Mass. 209,944 N.E.2d 1019 |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Parties | COMMONWEALTHv.FREMONT INVESTMENT & LOAN & another 1 (and a companion case 2). |
OPINION TEXT STARTS HERE
David Pastor, Boston, for Samuel J. Lieberman.Christopher K. Barry–Smith, Assistant Attorney General (Matthew H. Schrumpf, Assistant Attorney General, with him) for the Commonwealth.James R. Carroll (Peter Simshauser with him), Boston, for Fremont Investment & Loan & another.
Daniel P. Chiplock, of New York, for National Association of Shareholder and Consumer Attorneys, amicus curiae, submitted a brief.Present: IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.COWIN, J.
This case concerns Samuel J. Lieberman's claim to a right of access, pursuant to the public records law, G.L. c. 66, § 10 ( ); see G.L. c. 4, § 7, Twenty-sixth (defining “[p]ublic records” and exemptions), to documents received in litigation by the Attorney General. The relevant documents were produced by Fremont Investment & Loan 3 and Fremont General Corporation (hereinafter, collectively, Fremont) in an enforcement action by the Attorney General against Fremont (enforcement action), and were subject to a protective order entered in that case. See generally Commonwealth v. Fremont Inv. & Loan, 452 Mass. 733, 897 N.E.2d 548 (2008).
This case consolidates two appeals by Lieberman. One arises from Lieberman's motion to intervene in the enforcement action to pursue his claim of access to the documents under the public records law. A Superior Court judge (enforcement action judge) denied Lieberman's motion for intervention. 4 We vacate that order and remand for further consideration consistent with this opinion.
Lieberman also filed a separate action in the Superior Court challenging the protective order (public records action). There, a second judge (public records action judge) allowed the Commonwealth's motion for judgment on the pleadings and dismissed Lieberman's complaint. We affirm the judgment.
1. Background. In October, 2007, the Attorney General brought an enforcement action against Fremont in the Superior Court, alleging unfair and deceptive practices in Fremont's mortgage lending business. During pretrial discovery, the Commonwealth and Fremont filed a joint motion for a protective order to govern the exchange of documents and information the parties claimed were confidential. The enforcement action judge entered such a protective order, and that order remains in effect.
The order defines “Confidential Materials” as those “entitled to confidential treatment pursuant to Rule 26(c) of the Massachusetts Rules of Civil Procedure” and designated as confidential by the producing party. Such materials are ordered to be used “only for the purposes of preparing for and conducting the [l]itigation” and are not to be disclosed to persons other than “Qualified Persons.” 5 The Attorney General estimates that Fremont designated 5.5 million pages as confidential pursuant to the order, and the Attorney General did not challenge any of Fremont's designations. The Attorney General and Fremont ultimately settled the case and a consent order was entered in June, 2009.
In May, 2009, Lieberman wrote to the Attorney General, pursuant to the public records law, asserting a statutory right of access to certain categories of documents received by the Attorney General during the enforcement action. The Attorney General responded with a letter indicating that she would not produce copies of any of the documents designated confidential by Fremont. 6
Lieberman thereafter filed the public records action seeking declaratory and injunctive relief compelling the Commonwealth to comply with his request under the public records law. Lieberman filed the action in the business litigation session of the Superior Court Department, where the protective order had been issued, but the case was denied acceptance into that session and was assigned to a judge in a different session. The Commonwealth subsequently filed a motion for judgment on the pleadings, and after a hearing the public records action judge granted the Commonwealth's motion and dismissed Lieberman's complaint.
During the pendency of the public records action, Lieberman filed a motion to intervene in the enforcement action, or in the alternative to transfer the public records action to the business litigation session. Fremont assented to Lieberman's intervention, and the Commonwealth did not object. The enforcement action judge nonetheless denied the motion, stating, “This court has already declined to take the public records action (09–2592A) into the [business litigation session] and intervention is unwarranted.”
Lieberman appealed to the Appeals Court both the order denying intervention in the enforcement action and the judgment dismissing the public records action, and the Appeals Court granted a motion to consolidate the appeals. We transferred the case here on our own motion.7
2. Discussion. a. The public records action. We turn first to the decision of the judge in the public records action. “We review de novo [a] judge's order allowing a motion for judgment on the pleadings under [Mass. R. Civ. P. 12(c), 365 Mass. 754 (1974) ].” Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 600, 925 N.E.2d 9 (2010).
The statutory basis for Lieberman's claim in the public records action is the public records law. That law governs the maintenance of public records and provides the public a right to inspect such records. See G.L. c. 66, § 10. The definition of “[p]ublic records” encompasses records “made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of any political subdivision thereof, or of any authority established by the general court to serve a public purpose.” See G.L. c. 4, § 7, Twenty-sixth. The Attorney General does not dispute that she is among the public authorities subject to the law. Although certain categories of records are exempted from the definition of public records, none of those exemptions make explicit reference to protective orders, and the issue is not addressed elsewhere in the public records law.
The question before us is whether the public records law constitutes a legislative determination that the public interest in access to government records overrides the traditional authority of courts to enter protective orders, and thus obligates the Attorney General to provide the documents to Lieberman. As an interpretation of the public records law that would compel such a conclusion would raise serious constitutional doubts as to the validity of the statute, we conclude that it does not.
The courts of the Commonwealth have certain inherent powers that are “essential to the function of the judicial department, to the maintenance of its authority, or to its capacity to decide cases.” Querubin v. Commonwealth, 440 Mass. 108, 114, 795 N.E.2d 534 (2003), quoting Gray v. Commissioner of Revenue, 422 Mass. 666, 672, 665 N.E.2d 17 (1996). Such inherent powers are protected by art. 30 of the Massachusetts Declaration of Rights.8 “Although inherent powers may be recognized by statute, they exist independently, because they ‘directly affect[ ] the capacity of the judicial department to function’ and cannot be nullified by the Legislature without violating art. 30 [of the Massachusetts Declaration of Rights].” Querubin v. Commonwealth, supra, 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, 397, 780 N.E.2d 908 (2003).
Among those inherent powers is the court's authority to issue protective orders. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984), quoting International Prods. Corp. v. Koons, 325 F.2d 403, 407–408 (2d Cir.1963) (Friendly, J.) ( ). Protective orders serve to shield litigants and third parties from unwarranted disclosures, and, as a practical matter, to facilitate the discovery necessary for a trial. We have held, analogously, that a court has inherent authority to impound documents filed with it. See George W. Prescott Publ. Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 277, 479 N.E.2d 658 (1985).
Where fairly possible, a statute must be construed “so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.” Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 771, 897 N.E.2d 1001 (2008), quoting Commonwealth v. Joyce, 382 Mass. 222, 226 n. 5, 415 N.E.2d 181 (1981). As construing the public records law to invalidate an otherwise providently entered protective order would raise serious constitutional questions about the validity of that law, we conclude that the public records action judge did not err in dismissing Lieberman's claim.
Lieberman contends that if a particular class of documents is subject to the disclosure requirements of the public records law, then the courts may not bind a public entity to a protective order that prevents the disclosure of such documents. He characterizes the protective order as having been entered for the purpose of protecting “confidential business information,” and notes that an exemption of the public records law squarely addresses such documents.9 That exemption provides an exception to disclosure for “trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality.” G.L. c. 4, § 7, Twenty-sixth ( g ). The exemption...
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