The Boston Herald, Inc. v. Sharpe

• Decision Date: 06 October 2000
• Citation: 432 Mass. 593,737 NE 2d 859
• Parties: THE BOSTON HERALD, INC. v. RICHARD J. SHARPE (and two consolidated cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

432 Mass. 593

737 NE 2d 859

THE BOSTON HERALD, INC. v.RICHARD J. SHARPE (and two consolidated cases¹).

Supreme Judicial Court of Massachusetts, Suffolk.

October 6, 2000.

November 8, 2000.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, & SOSMAN, JJ.

Paul G. Lannon, Jr., & Joseph J. Balliro(Karen R. Sweeney Shea with them) for Richard J. Sharpe.

Elizabeth A. Ritvo for The Boston Herald, Inc., intervener.

Michael T. Gass(Marc J. Goldstein with him) for WHDTV, Inc., intervener.Roger D. Matthews for The Essex County Newspapers, Inc., intervener.

Jacob M. Atwood(Mark T. Smith & Erin Moran Shapiro with him) for Karen H. Sharpe, intervener.

MARSHALL, C.J.

On July 14, 2000, Karen H. Sharpe was shot to death in her home in Wenham.Two days later her husband, Richard J. Sharpe(Sharpe), was arrested in New Hampshire in connection with her death and was returned to the Commonwealth.He has now been indicted for murder in the first degree, and violation of a protective order, G. L. c. 209A.The death of Karen Sharpe, the police manhunt for, and the arrest of Sharpe were widely reported.In the wake of these events, The Boston Herald, Inc.(Boston Herald); The Essex County Newspapers, Inc.(Essex County Newspapers); and WHDH-TV, Inc.(WHDH-TV)(collectively, the media interveners) sought access to impounded documents in the Sharpes' divorce action and a related abuse prevention injunctive action.A judge in the Probate and Family Court allowed their motions and unsealed all of the impounded records.

On July 31, 2000, and August 1, 2000, the media interveners filed in the Supreme Judicial Court for Suffolk County petitions pursuant to G. L. c. 211, § 3, seeking review of an order of a single justice of the Appeals Court impounding some but not all of the disputed documents.A single justice of this court vacated the order and effectively unsealed the court records.²Sharpe takes the present appeal to the full court from her order.³

We hold that in the specific circumstances of this case the public has a right of access to all of the judicial records of the relevant court proceedings in the Probate and Family Court; the continued impoundment of the documents is not necessary to protect Sharpe's constitutional or other rights to a fair trial or to protect any privacy rights he may have.

I

To elucidate his claims, and those of the media interveners, we describe summarily the actions in the Probate and Family Court that underlie this appeal, and the efforts of the media interveners to inspect the records of those proceedings.Richard and Karen Sharpe were married in 1973.In February, 2000, Karen Sharpe moved out of the marital home in Gloucester and, after some weeks, moved with their two minor children to a new home in Wenham.On March 9, 2000, Sharpe filed for divorce in the Probate and Family Court(divorce action).In May, 2000, at the request of Karen Sharpe, supported by her affidavit dated May 17, 2000, and after an ex parte hearing, a judge in the Probate and Family Court issued, in a separate action, an abuse prevention order against Sharpe under G. L. c. 209A(abuse prevention action).The record does not reflect whether the judge received any other evidence at that time.

On May 30, 2000, the judge extended the abuse prevention order, by agreement.On June 12, 2000, the judge again ordered that the protective order be continued.Two additional affidavits of Karen Sharpe, dated June 9 and June 12, 2000, respectively, were filed in support of the continued protective order.We need not describe here the contents of those affidavits, except to note that they contain, generally, allegations of Karen Sharpe that her husband had verbally and physically abused her on a number of occasions.

By June, 2000, there were multiple outstanding disputes between the Sharpes in their divorce action concerning discovery, temporary visitation agreements, financial disclosures, and related matters.On June 12, 2000, they filed in both the divorce action and in the abuse prevention action a stipulation that resolved those disputes.The judge thereupon entered several orders.First, as noted above, he extended indefinitely the abuse prevention order against Sharpe.Second, he appointed a guardian ad litem for the minor children.Third, with the agreement of Sharpe, he allowed a motion of Karen Sharpe filed in the divorce action to impound that case file.⁴The judge indorsed the motion as follows: "Motion allowed, so as to impound case file only (not docket entries) — for 1 year."The judge did not make any written findings.⁵Although the order makes no reference to the abuse prevention action, Karen Sharpe's motion to impound refers to her affidavits filed therein, noting that the consequences of their public disclosure "may be extremely detrimental to the parties and their minor children."⁶

In July, 2000, following the death of Karen Sharpe, the media interveners filed in the Probate and Family Court separate motions to vacate the blanket impoundment order entered on June 12, 2000.⁷Sharpe opposed the motions, and filed an "emergency"motion to appoint a guardian ad litem for the minor children on the issue of unsealing the records.Following a closed hearing,⁸ the judge in the Probate and Family Court vacated his impoundment order of June 12, 2000, adding that "[t]o the extent" the impoundment order was entered in the abuse prevention action, that order was also vacated.He ordered that the files in both actions be made available to the public.⁹He also denied Sharpe's motion to appoint a guardian ad litem for the minor children.¹⁰

On July 26, 2000, Sharpe sought review of that order pursuant to Rule 12 of the Uniform Rules on Impoundment Procedure¹¹ and G. L. c. 231, § 118, first par.,¹² before a single justice of the Appeals Court.He claimed that his right to a fair trial outweighed the public's interest in access "to pretrial documentation filed in a divorce action."He also asserted that the judge in the Probate and Family Court had failed to accord the appropriate weight to his rights under the Sixth Amendment to the United States Constitution to a fair trial, and to his privacy rights.A single justice of the Appeals Court allowed his motion in part: she ordered that Karen Sharpe's affidavits of June 9 and June 12, 2000, remain subject to the initial order of impoundment "pending the conclusion of the criminal proceedings against Sharpe, or further order of court."She ordered that all other documents "shall not be impounded."Sharpe filed an emergency motion for reconsideration and for leave to appeal to the full Appeals Court.On reconsideration, the single justice ordered the impoundment of a third affidavit (dated May 17, 2000).She denied his motion in all other respects.

The three media interveners then filed in the county court the petitions described above.¹³A single justice of this court vacated the order of the single justice of the Appeals Court and reinstated the order of the Probate and Family Court, thereby unsealing all of the judicial records.This appeal by Sharpe from her order followed.

II

We clarify first the status in this appeal of the various documents subject to the initial blanket impoundment order entered on June 12, 2000.

As noted above, on July 25, 2000, the Probate Court judge vacated the entire impoundment order.On Sharpe's petition to the Appeals Court, the single justice again impounded three affidavits of Karen Sharpe; she affirmed the Probate Court judge in all other respects.Only the media interveners sought review of her order pursuant to G. L. c. 211, § 3, each specifying that they sought relief only from the impoundment of the three affidavits.¹⁴In its petition the Boston Herald added that the "remainder" of the order of the single justice of the Appeals Court effectively released all other documents and "thus that part of the order is not at issue in this petition."

For his part Sharpe took no affirmative steps to seek review of any aspect of the order of the single justice of the Appeals Court; he did not file a petition before the single justice of this court, nor did he file a cross petition.In a memorandum in opposition to the petitions of the media interveners, he did argue that the June 12, 2000, blanket order of impoundment should be "reinstated."But an aggrieved party"may not secure modification of a judgment unless [he] has filed a cross [petition]."Hartford Ins. Co. v. Hertz Corp.,410 Mass. 279, 288(1991), and cases cited.SeeAetna Cas. & Sur. Co. v. Continental Cas. Co.,413 Mass. 730, 734(1992);15 C.A.Wright, A.R. Miller & E.H. Cooper, Federal Practice and Procedure§ 3904(1995).¹⁵We have stated that generally "failure to take a cross [petition] precludes a party from obtaining a judgment more favorable to it than the judgment entered below."Hartford Ins. Co. v. Hertz Corp., supra, quotingBoston Edison Co. v. Boston Redevelopment Auth.,374 Mass. 37, 43 n.5(1977), and cases cited.An order of the single justice of this court to impound all of the documents would surely have been a judgment more favorable to Sharpe than the relief ordered by the single justice of the Appeals Court.She implicitly declined to consider Sharpe's request to impound the entire file.¹⁶She was correct to do so, for "[t]his is not that rare case in which a court should entertain such an argument...."Aetna Cas. & Sur. Co. v. Continental Cas. Co., supra.The case files of both actions in the Probate and Family Court, other than Karen Sharpe's three affidavits, are thus not subject to any impoundment order; they remain sealed only because of the stay entered by the single justice of this court.We review only her order releasing the three affidavits and do not address Sharpe's broader requests for relief.¹⁷

III

Because it is a recurring problem, we next discuss the correct procedure for litigants to follow when seeking appellate review, under the...