Massachusetts High Court Allows Show Cause Hearings to Be Closed
May 15, 2007
Damon M. Seligson- Boston
In Eagle-Tribune Publishing Co. v. Clerk Magistrate of the Lawrence Division of the District Court Department, the Supreme Judicial Court (SJC) of Massachusetts recently ruled that the First Amendment to the U.S. Constitution does not guarantee a right of public access to show cause hearings – a type of pretrial hearing conducted before the initiation of criminal proceedings in order to weigh charges against individuals who are yet to be arrested. Although the SJC denied access in this case and held that show cause hearings are to be closed as a general rule, it left open the possibility of access in future cases in the event of exceptional circumstances.
The underlying case arose out of an altercation at a nightclub in Lawrence, Massachusetts. The underage victim, who had been drinking illegally, was stabbed. The incident attracted significant publicity, particularly after the Lawrence police sought the issuance of criminal process against the nightclub’s owner. Pursuant to Massachusetts statute, the Lawrence District Court scheduled a show cause hearing before a clerk-magistrate, the authority that issues criminal arrest papers, and ruled that it would be closed to the public.
A newspaper company sought access to the show cause hearing, but the trial court denied the motion. On appeal to the SJC, the newspaper argued that, under the Constitution, show cause hearings are equivalent to the preliminary criminal proceedings that the U.S. Supreme Court has ruled should be open to the public.
The SJC, however, disagreed. Writing for the state’s high court, Justice Judith Cowan distinguished show cause hearings from probable cause hearings. Show cause hearings, she wrote, are designed to screen out minor criminal matters through a “combination of counseling, discussion, or threat of prosecution.” She likened this process to mediation in which the accused is afforded an opportunity to resolve the “minor matters” typically at issue.
The SJC acknowledged that while the First Amendment confers a qualified right of public access to certain judicial proceedings, such a right exists only where the proceeding satisfies the U.S. Supreme Court’s two-pronged test of “experience” and “logic.” In short, for the right of access to apply: (1) the 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.” For instance, trials have historically been open to, and benefited from, public access. In contrast, grand jury proceedings have always been held in secret because the purpose of the proceeding would be frustrated if the public was permitted access. Moreover, if, under the test, a First Amendment right of access 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.”
Show cause hearings, the SJC held, fail the “experience” test because unlike a trial, they are informal proceedings that lack the tradition of public access. The accused is not permitted to cross-examine witnesses, and there is no right to appointed counsel. Additionally, to the extent a show cause hearing may function as an informal dispute resolution session, such informal sessions have a deep tradition of secrecy, not openness.
Additionally, because public access would not significantly aid their functioning, show cause hearings likewise fail the “logic” test. Show cause hearings, the SJC reasoned, are intended to protect and benefit the accused. At a show cause hearing, a criminal complaint may be screened privately without the risk of damaging the reputation of the accused in open court or inflaming animosities of those affected by the incident at issue.
Finally, the SJC ruled that while show cause hearings are, as a general rule, to remain closed to the public, exceptions will apply, particularly where an incident has already attracted public attention prior to the hearing and the “interest in shielding the participants from publicity is necessarily diminished, while the public’s legitimate interest in access is correspondingly stronger.” Thus, while the SJC ruled that show cause hearings are presumably closed to the public, discretion now rests with the applicable clerk-magistrate to weigh the competing interests of the public versus the privacy interest of the accused in deciding whether to allow public access to the proceeding.
For more information, e-mail Damon M. Seligson at damon.seligson@hklaw.com or call toll free, 1-888-688-8500.