Eagle-Tribune Pub. Co. v. Clerk-Magistrate

• Citation: 448 Mass. 647,863 N.E.2d 517
• Parties: EAGLE-TRIBUNE PUBLISHING COMPANY v. CLERK-MAGISTRATE OF the LAWRENCE DIVISION OF the DISTRICT COURT DEPARTMENT & others.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 28 March 2007
• Court: United States State Supreme Judicial Court of Massachusetts

863 N.E.2d 517

448 Mass. 647

EAGLE-TRIBUNE PUBLISHING COMPANY v. CLERK-MAGISTRATE OF the LAWRENCE DIVISION OF the DISTRICT COURT DEPARTMENT & others.¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued February 5, 2007.

Decided March 28, 2007.

COPYRIGHT MATERIAL OMITTED

Peter J. Caruso, Andover (Peter J. Caruso, II, with him) for the plaintiff.

Maura D. McLaughlin, Assistant Attorney General, for the defendants.

Robert J. Ambrogi, Rockport, for Massachusetts Newspaper Publishers Association, amicus curiae, submitted a brief.

Present: GREANEY, SPINA, COWIN, & CORDY, JJ.

COWIN, J.

In this appeal, we consider whether there exists under the First Amendment to the United States Constitution a right of public access to "show cause" hearings that precede the initiation of criminal proceedings in certain cases. We conclude that there is not.²

Background. For purposes of the present appeal, the facts are not in dispute. In October, 2005, a twenty year old woman was stabbed at a nightclub in Lawrence, after she was allegedly served alcohol despite being under the legal drinking age. This incident attracted significant publicity. Soon after, the Lawrence police department filed an application for issuance of criminal process in the District Court against the nightclub's corporate owner. Pursuant to G.L. c. 218, § 35A, a "show cause" hearing before a clerk-magistrate was scheduled, which the court indicated would be closed to the public. The Eagle-Tribune Publishing Company (the Eagle-Tribune), publisher of the Eagle-Tribune newspaper, sought access to the show cause hearing and filed a "Motion to Open Preliminary Probable Cause Hearings to the Press and to the Public." The clerk-magistrate denied the motion,³ as well as the Eagle-Tribune's subsequent motion for reconsideration. The Eagle-Tribune sought relief from a single justice of this court pursuant to G.L. c. 211, § 3, and the Attorney General filed an opposition. The single justice denied relief, and the Eagle-Tribune timely appealed to the full court. Because there is no First Amendment right of public access to show cause hearings, the single justice did not abuse his discretion or commit other error in denying the relief sought.

Show cause hearings. As this case turns largely on the nature of criminal show cause hearings in Massachusetts, we describe some of the aspects of such hearings as they have developed through statute, case law, and the District Court Standards of Judicial Practice: The Complaint Procedure (1975) (Complaint Standards).⁴

Many criminal prosecutions begin with an arrest, followed by the filing of an application for a complaint against the arrested person by a law enforcement officer. See standards 2:00-2:04 of the Complaint Standards. However, prosecution may also be commenced by the filing of an application for issuance of criminal process against an individual or entity by a private citizen or a law enforcement officer.⁵ See standards 3:00-3:26 of the Complaint Standards. In cases where criminal process is sought against a person not under arrest, G.L. c. 218, § 35A, provides for a show cause hearing at which the accused is given "an opportunity to be heard personally or by counsel in opposition to the issuance of any process."⁶,⁷ When first enacted in 1943, G.L. c. 218, § 35A, merely "gave a statutory basis for a practice sometimes . . . followed by the judge or clerk of allowing the attorney for the prospective defendant to state relevant circumstances which might be thought to bear on the propriety of the issuance of process." Commonwealth v. Riley, 333 Mass. 414, 416, 131 N.E.2d 171 (1956). The hearing is "held for the protection and benefit of the respondent named in the application," Victory Distribs., Inc. v. Ayer Div. of the Dist. Court Dep't, 435 Mass. 136, 142, 755 N.E.2d 273 (2001), and is not required by either the Federal Constitution or the Massachusetts Declaration of Rights, Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the Dist. Court Dep't, 439 Mass. 352, 355 n. 3, 787 N.E.2d 1032 (2003).

The show cause hearing is held before a clerk-magistrate, who need not be an attorney. The hearing's legal function is to determine whether there is probable cause to issue criminal process against the accused. See G.L. c. 218, § 35A; commentary to standard 3:00 of the Complaint Standards. However, "[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, 413 N.E.2d 1094 (1980). See Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the Dist. Court Dep't, supra at 356, 787 N.E.2d 1032; Commonwealth v. Clerk of the Boston Div. of the Juvenile Court Dep't, 432 Mass. 693, 702 & n. 12, 738 N.E.2d 1124 (2000); Commonwealth v. Cote, 15 Mass.App.Ct. 229, 235, 444 N.E.2d 1282 (1983). 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, supra at 356, 787 N.E.2d 1032, quoting Bradford v. Knights, 427 Mass. 748, 751, 695 N.E.2d 1068 (1998).⁸

Right of public access to show cause hearings.⁹ We review the decision of a single justice under G.L. c. 211, § 3, for abuse of discretion or other error of law. Victory Distribs., Inc. v. Ayer Div. of the Dist. Court Dep't, supra at 137, 755 N.E.2d 273. As the Eagle-Tribune has not argued any basis for its right to access other than the Federal Constitution, our analysis is limited to whether there exists under the First Amendment a right of public access to show cause hearings.¹⁰

The First Amendment confers a qualified right of public access to certain judicial proceedings.¹¹ See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (Press-Enterprise II); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509-10, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (Press-Enterprise I). For this right of access to apply to a particular proceeding, the proceeding must satisfy a two-part test of "experience" and "logic": (1) the type of proceeding must have a historic tradition of openness, and (2) public access must "play[ ] a significant positive role in the functioning of the particular process in question." Press-Enterprise II, supra at 8, 106 S.Ct. 2735. See WBZ-TV4 v. Executive Office of Labor, 414 Mass. 767, 770, 610 N.E.2d 923 (1993). In applying this test, the United States Supreme Court has recognized that certain proceedings, such as trials, have historically been open to the public and benefit from public access. Press-Enterprise II, supra at 9, 106 S.Ct. 2735. Others, however, notably grand jury proceedings, have always been secret and "would be totally frustrated if conducted openly." Id. If the tests of experience and logic are met and a First Amendment right of access to a type of proceeding is found, such a proceeding may only be closed to the public on specific findings that "closure is essential to preserve higher values and is narrowly tailored to serve that interest." Id., quoting Press-Enterprise I, supra at 510, 104 S.Ct. 819 a. "Experience." Show cause hearings fail the "experience" test because there is no tradition of public access to this type of proceeding. Since their beginnings as informal opportunities for the accused to be heard on the question whether to issue criminal process, see Commonwealth v. Riley, 333 Mass. 414, 416, 131 N.E.2d 171 (1956), show cause hearings have always been "[p]resumptively . . . private and as informal as circumstances will permit." Standard 3:15 of the Complaint Standards. Of course, the "experience" test does not turn merely on the label given the proceeding, Press-Enterprise II, supra at 7, 106 S.Ct. 2735; thus, we must also look to whether any analogous proceedings have historically been open to the public, In re Boston Herald, Inc., 321 F.3d 174, 184 (1st Cir.2003).¹² However, the parties have not called our attention to, nor have we located, any proceeding resembling a Massachusetts show cause hearing to which the public enjoys a right of access.

The Eagle-Tribune argues strenuously that show cause hearings are the equivalent of the preliminary criminal hearings to which the Supreme Court has found a First Amendment right of public access. See Press-Enterprise II, supra at 13, 106 S.Ct. 2735 (finding public right of access to California preliminary hearings). However, this analogy fails on multiple levels. The Press-Enterprise II decision involved preliminary hearings held after a defendant has already been charged with a crime to determine whether sufficient evidence exists to bring the person to trial. See Press-Enterprise II, supra at 12, 106 S.Ct. 2735. In holding that such proceedings, as conducted in California, implicate a First Amendment right of public access, the Supreme Court relied on the fact that they "function[ ] much like a full-scale trial," id. at 7, 106 S.Ct. 2735, in that "[t]he accused has the right to personally appear . . ., to be represented by counsel, to cross-examine hostile witnesses, to present exculpatory evidence, and to exclude illegally obtained evidence," id. at 12, 106 S.Ct. 2735.

By contrast, a show cause hearing, which takes place before any criminal prosecution has begun, bears little resemblance to a trial. The rules of evidence that obtain at a trial do not...