THE COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF THE TRIAL COURT
Two Center Plaza, Fifth Floor
Boston, MA 02108
617-742-8575

Daniel P. Sullivan
General Counsel

March 6, 2018

VIA FIRST-CLASS MAIL AND ELECTRONIC MAIL
Dan Krockmalnic

General Counsel

The Boston Globe

PO. Box 55819

Boston, MA 02205-5819

Re: February 2, 2018.1etter to Chief Justice Paula M. Carey

Dear Mr. Krockmalnic:

This letter responds to your letter to Chief Justice Paula M. Carey dated February 2,
2018. Therein, you request that the Trial Court reconsider its denial of a request by reporter
Todd Wallack for access to records on show cause hearings in which a clerk-magistrate or
assistant clerk-magistrate found that an application for criminal complaint was supported by
suf?cient facts for a ?nding of probable cause but declined to issue a complaint.

A show cause hearing before a clerk-magistrate is conducted in cases where no arrest has
been made and the offenses charged are misdemeanors (or certain, limited felonies described in
the statutory language in the marginl). G.L. c. 218, 35A.

 

G.L. c. 218, 35A reads in relevant part:

the person against whom such complaint is made, if not under arrest for the
offense for which the complaint is made, shall, in the case of a complaint for a
misdemeanor or a complaint for a felony received from a law enforcement of?cer
who so requests, and may, in the discretion of any said of?cers in the case Of a
complaint for a felony which is not received from a law enforcement of?cer, be
given an opportunity to be heard personally or by counsel in opposition to the
issuance of any process based on such complaint unless there is an imminent

Dan Krockmalnic, General Counsel
March 6, 2018
Page 2

The decision to prosecute an individual is ultimately at the discretion of a prosecutor.
SE Commonwealth v. Taylor, 428 Mass. 623, 629, (1999) (?First, we note that our decisions
uniformly uphold a prosecutor's wide discretion in deciding whether to prosecute a particular
defendant?) Even where there is probable cause, the district attorney may decline to prosecute,
either because the matter is relatively minor or because it can be litigated civilly. Similarly, the
clerk-magistrate has discretion to decline to authorize a criminal complaint, even if the
application establishes probable cause, unless the Attorney General?s of?ce or the district
attorney has communicated a decision to prosecute. S_ee_Victory Distribs., Inc. v. Ayer Div. of
Dist. Court Dep?t, 435 Mass 136, 143 (2001).2

It is undisputed that there is no right of access to show cause hearings. Eagle-Tribune
Pub. Co. v. Clerk?Magistrate of Lawrence Div. of Dist. Court Dep?t, 448 Mass. 647, 655?656
(2007). Eagle-Tribune did not explicitly limit its holding to matters where no probable cause
was found. In fact, Eagle-Tribune notes that, in addition to the legal function of ?nding probable
cause:

?[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.?

Id. at 650, quoting Snyder, Crime and Community Mediation?The Boston Experience: A
Preliminary Report on the Dorchester Urban Court Program, 1978 Wis. L.Rev. 737, 746?747
(emphasis added.) Thus, Eagle-Tribune acknowledges that, in addition to potentially criminal
matters, ?minor criminal? matters can be screened out of the criminal justice system through a

threat of bodily injury, of the commission of a crime, or of ?ight from the
commonwealth by the person against whom such complaint is made.

Id.

2 A clerk-magistrate, upon ?nding that probable cause supports an application for
criminal complaint ?may upon consideration of the evidence cause [a complaint] to be
issued. . G.L. c. 218, 35A. However, ?neither a judge of the District Court nor a clerk?
magistrate may bar the prosecution, as long as the complaint is legally valid.? Victory
Distributors, Inc. v. Ayer Division of the District Court Department, 435 Mass. 136, 143 (2001).
Conversely, even if the clerk-magistrate causes a complaint to issue, the district attorney may
decide not to prosecute. Id. at 143 n. 9.

Dan Krockmalnic, General Counsel
March 6, 2018
Page 3

show cause hearing. In view of this screening function, the SJ determined that such hearings
are not presumptively open to the public. Eagle-Tribune Pub. Co., 448 at 655-56.

The tradition of privacy in cause hearings is partially attributed to the hope of
resolution before the initiation of a criminal proceeding. Id. (?Finally, to the extent that show
cause hearings often function as informal dispute resolution sessions akin to court-facilitated
mediation, they share in a tradition not of openness, but of privacy?) The SJ expressed
concern that ?the ability of clerk-magistrates to resolve commonplace disputes without the need
for criminal prosecution could be compromised by hearings open to the public, which may
in?ame the animosities involved.? Id. at 657. Your letter suggests this concern is inapposite
because the ?Globe is not seeking access to the hearings themselves-only to the records of the
proceedings after the Boston Globe Letter, p. 2 (February 2, 2018). However, a party
faced with the prospect of public exposure of the criminal allegations against him or her, but
without the potential vindication of a dismissal or a not guilty verdict, would have less reason to
remedy the matter prior to the formal issuance of a criminal complaint. Once the charges have
been publicly exposed, the accused could not be publicly absolved when no complaint issued
because he or she would not have the public vindication of a dismissal or entry of a not guilty
verdict. Therefore, publishing a record of a proceeding at which no criminal complaint issued
would cause the same reputational harm to the accused that opening that hearing to the public
would have.

A historical right of access to a judicial record is an important factor in determining
whether there is a right of access to judicial records. See Commonwealth v. Pon, 469 Mass. 296,
309 (2014) quoting Press-Enterprise Co., 478 US. at 8 (1986). (?First, we ?consider[ whether
the place and process have historically been open to the press and general public.??) In this case,
there is no historical right of access to probable cause ?ndings after a show cause hearing where
a criminal complaint did not issue. gg, Standards on the Complaint Procedure 5:02.

The requested records have not historically been accessible to the public because the
Commonwealth has not initiated a criminal proceeding. criminal proceeding does not
commence in the District Court until a complaint has been authorized.? Standards on the
Complaint Procedure 5:02, Commentary (September 10, 2008); als_o Commonwealth v.
Vitale, 44 Mass.App.Ct. 908, 909 (1997) (?Rule 3 of the Massachusetts Rules of Criminal
Procedure, in pertinent part, states that criminal proceeding shall be commenced in the
District Court by a complaint,? not an application for a complaint?) Similarly, G.L. c. 263, 4
provides that person shall be held to answer in any court for an alleged crime, except upon
an indictment by a grand jury or upon a complaint before a district (emphasis added.)
Access to judicial records is closely linked to those records of?cially ?led in the case ?le. 
Commonwealth v. Win?eld, 464 Mass. 672, 677-78 (2013) (?nding no right of access to a
recording if such recording ?is not referenced or contained in the court An of?cial case
?le does not exist until a criminal proceeding has commenced. Publicizing ?ndings of probable

3

Dan Krockmalnic, General Counsel
March 6, 2018
Page 4

cause would hold an individual open to public scrutiny when he or she is not yet answerable for
an alleged crime.

Cases and statutes focused on search warrants and arrests are not analogous to a denied
application for criminal complaint even when there is a ?nding of probable cause. Public
awareness of the government?s seizure of property or deprivation of an individual?s liberty, and
the court?s justi?cation for condoning such extreme measures, is imperative to prevent
government tyranny. By contrast, the implicit purpose of a show cause hearing is to prevent
over-zealous prosecution, which could lead to the deprivation of liberty and, instead, provide an
alternative resolution ?akin to court-facilitated Eagle-Tribune Pub. 448 Mass.
at 656. While the issuance of a search warrant creates a risk of an unwarranted invasion of
privacy, show cause hearings serve the public-protecting purpose of testing the basis for a
prosecution before authorizing it.

Search warrant materials are also not open to the public until they have been returned to
the court. Win?eld, 464 Mass. at 679 search warrant af?davit becomes a presumptively
public document only after the warrant is returned because the af?davit is ?led in the court with
the return?) If an application for criminal complaint is denied, there is no analogous court ?ling.

You cite Sibley v. Holyoke ranscript-T elegram Pub. Co., Inc, 391 Mass. 468, 472
(1984) generally for the proposition that press liability for libel should not serve to ?shroud in
secrecy, for want of publication, the government?s scrutiny of its citizens.? Pon, 469 Mass.
at 300 (?nding that, in closed criminal matters, the state had a compelling interest in ?providing
privacy protections for former criminal defendants to enable them to participate fully in
society?) In Sibley, the reporter found the af?davit in support of the application for search
warrant in a public case ?le. Although ?[t]he jury found. . .that the newspaper did not act
reasonably in checking the truth or falsity of the statements before publication,? it nonetheless
concluded that ?the article did ?constitute a fair and accurate account of the proceedings which
resulted in the issuance of a warrant.?3 Sibley, 391 Mass. at 472. The SJ af?rmed, holding
that the defendant publication was not liable because the quali?ed privilege of fair report of a
judicial proceeding applied to the issuance of a search warrant.

Sibley concerned the public?s right to know the government?s basis for issuing a search
warrant against a citizen. Applying the quali?ed privilege of fair report of a judicial proceeding,
the SJ held that a publication could not be held liable for disclosing the sworn and ?led basis
for the search warrant. Whether a publication may be held civilly liable for the publication of an
article based upon a public court record is distinguishable from the question of whether a clerk-
magistrate?s basis for not issuing a criminal complaint following a closed proceeding should be

publicly accessible.

Dan Krockmalnic, General Counsel
March 6, 2018
Page 5

The Trial Court recognizes that clerk-magistrates have the discretion, although not the
obligation, to make records concerning a show cause hearing open to the public. Eagle-
Tribune Publishing Co., 448 Mass. at 656 (?While the First Amendment does not require that a
Massachusetts show cause hearing be Open to the public, there may be circumstances in which an
open hearing is appropriate. Standard 3:15 of the Complaint Standards states only that show
cause hearings are "presumptively" closed, not that they should always be closed?) Determining
whether records of an individual show cause hearing should be open requires a balancing test of
the bene?ts and drawbacks associated with granting access. Id. at 656-657. However, Mr.
Wallack?s request was not for speci?ed judicial records but for a compiled list of matters
meeting his search criteria. As such, this is a compiled data request governed by Trial Court
Rule XIV, Rule 

No appellate court having jurisdiction over the Commonwealth of Massachusetts has
found that courts have a duty to compile data into a separate document to administratively
support the right of access to existing judicial records. g, Of?ce of State Court Adm 'r v.
Background Information Services, Inc, 994 P.2d 420, 432 (Colo. 1999) (?nding that ?courts do
not have an implied duty to manipulate computer-generated data in order to create a new
document solely for purposes of disclosure?) Even if individual records concerning a particular
show cause hearings may be opened to public inspection, they are not presumptively open. If a
clerk-magistrate opened an individual show cause record in his discretion based upon public
interest, his or her decision on that individual proceeding would not render show cause hearing
records generally available in the requested compiled format.

Thank you.

Very truly yours

I - rm

Daniel Sullivan
General Counsel

cc: Hon. Paula M. Carey, Chief Justice of the Trial Court
Jonathan S. Williams, Court Administrator