The Massachusetts Supreme Judicial Court has recognized that “[t]he implicit
purpose of the [clerk magistrate 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.” *1 Accordingly the SJC has noted with approval
that “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.’ *2
These observations from the state’s highest court correctly state the reality of the
clerk-magistrate hearings that take place hundreds of times a day in the
Commonwealth and provide the legal support for those practices.
Clerk/Magistrates are on the frontlines every day and are the true gatekeepers for
Access to Justice. In any given year, Magistrates, pursuant to their statutory
authority, successfully resolve tens of thousands of civil, criminal, housing and
juvenile disputes. With the explosion of self- represented litigants, Magistrates
exercise their discretion daily by providing a neutral and safe forum for parties to be
heard and, when appropriate, and with the complainant’s consent, craft informal
resolutions that protect individuals from potentially life long, negative and highly
prejudicial consequences such as a criminal record, employment disqualification
and discriminatory housing practices.
*1 [See, Eagle-Tribune Pub. Co. v. Clerk-Magistrate of Lawrence Div. of Dist. Court
Dept., 448 Mass. 647, 863 N.E.2d 517 (2007) citing 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).]
*2 Id., citing 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).
Sincerely,
Daniel J. Hogan