SUPREME JUDICIAL COURT FOR SUFFOLK COUNTY No. BOSTON GLOBE MEDIA PARTNERS, LLC, Petitioner, v. CHIEF JUSTICE OF THE TRIAL COURT, and CHIEF JUSTICE OF THE DISTRICT COURT DEPARTMENT Respondents. PETITION TO THE SINGLE JUSTICE OF THE SUPREME JUDICIAL COURT FOR SUFFOLK COUNTY FOR DECLARATORY RELIEF PURSUANT TO CL. C. 211. 3 Petitioner Boston Globe Media Partners, LLC (?Globe?) respectfully submits this petition to the Single Justice of the Supreme Judicial Court for Suffolk County pursuant to G.L. c. 211, 3. The petition seeks review of the policy and practice of the district court department of denying the public a presumptive common law or constitutional right of access to the records of show cause hearings conducted pursuant to G.L. c. 218, 35A after a judicial officer makes a finding of probable cause but nevertheless declines to issue process or a criminal complaint. 2021546]9.1 Review under c. 211, 3 is warranted for several reasons. First, because there is no right to bring a declaratory judgment action against the judicial department, petitioner may not raise the issue presented by way of an action under G.L. c. 231A. Second, the petition involves the proper interpretation. and application of the District Court?s Standards of Judicial Practice, The Complaint Procedure (rev. 2008) (?2008 Standards?), ?administrative regulations promulgated by the Chief Justice of the District Court that [are] treated as statements of desirable practice.? Eagle-Tribune Pub. Co. v. Clerk-Magistrate of Lawrence Div. of the Dist. Ct. Dept., 448 Mass. 647, 649 n.4 (2007) (referring to 1975 Standards) (internal quotation marks and citation omitted). See also Exhibit hereto. This Court has not previously interpreted the specific 2008 Standards at issue, nor has it decided whether the public has a common law or constitutional right of access to the records of show cause hearings in which a finding of probable cause is made but the application for issuance of a complaint is denied. Finally, the petition raises important issues concerning the proper administration of the judicial branch, with implications for the administration of justice that are not likely to be presented in the ordinary course of litigation. 2 PARTIES 1. Petitioner Globe is a limited liability company formed under the laws of Delaware and with a principal place of business at One Exchange Place, Boston, Massachusetts, 02109. Globe is the publisher of The Boston Globe neWSpaper. 2. Subject to the superintendence power of the Supreme Judicial Court as provided G.L. c. 211, 3, respondent Chief Justice of the Trial Court (the ?Trial Court?) is ?the policy and judicial head of the trial court of the commonwealth,? and has ?general superintendence of [its] judicial policy? and the administration of the district court departments. See G.L. c. 211B, 9; see generally campatelli v. Chief Justice of Trial Court, 468 Mass. 455, 470 (2014). 3. Respondent Chief Justice of the District Court (the ?District Court?) is responsible for the operation of the IDistrict Court Department, its clerks, other officers and employees. G.L. c. 211B, 10, first par.; see also campatelli, 468 Mass. at 472. Respondent's predecessor promulgated the 2008 Standards at issue in this case. ALLEGATIONS OF FACT A. Section 35A Show Cause Hearings 4. Criminal prosecutions in the Commonwealth may be commenced by a private citizen or a law enforcement officer filing an application for issuance of criminal DBNZONSMH91 3 process against an individual or entity. Eagle?Tribune Pub. Co. v. Clerk?Magistrate of Lawrence Div. of the Dist. Ct. Dept., 448 Mass. 647, 649 (2007). A judicial officer decides whether to issue the complaint. Victory Distributors, Inc. v. Ayer Div. of Dist. Ct. Dept., 435 Mass. 136, 137 n.1 (2001). 5. A judicial officer in some cases ?shall,? and in other cases ?may,? hold a hearing in which the accused is given an opportunity to be heard personally or by counsel in opposition to the issuance of a criminal complaint (a ?show cause hearing?). G.L. c. 218, 35A.l 1 In the case of applications for the issuance of misdemeanor complaints filed by private citizens or law enforcement officials, if the accused is not under arrest, the judicial officer must hold a show cause hearing, unless there is an imminent threat of bodily injury, commission of a crime, or flight from the Commonwealth by the person against whom such application is made. G.L. c. 218, 35A. In certain automobile law violations involving applications for a misdemeanor complaint, the accused must request a hearing within four days of the violation. G.L. c. 90C, In the case of applications for the issuance of a felony complaint received from a private citizen, a judicial officer may, in his or her discretion, hold a show cause hearing, unless there is an imminent threat of bodily injury, commission of a crime, or flight from the Commonwealth by the person against whom such complaint is made. G.L. c. 218, 35A. In the case of applications for the issuance of a felony complaint received from a law enforcement officer, if the accused is not under arrest and if the law enforcement officer so requests, a judicial officer must hold a show cause hearing, unless there is an imminent threat of bodily injury, the commission of a crime, or flight from the Commonwealth by the person against whom such complaint is made. Id. 2021546191 - 4 F- 6. The legal function of a show cause hearing is to determine whether there is probable cause to issue criminal process against the accused? Eagle-Tribune, 448 Mass. at 649. 7. The probable cause standard requires a judicial officer to determine whether ?there is reasonably trustworthy information sufficient to warrant a prudent person in believing that 21 crime has been committed and that the accused is the perpetrator.? 2008 Standard 3:18; Eagle?Tribune, 448 Mass. at 654 n.16. 8. A judicial officer ruling on an application for a criminal complaint ?may upon consideration of the evidence,? cause process to be issued ?unless there is no probable cause to believe that the person who is the object of the complaint has committed the offense charged." G.L. c. 218, 35A. 9. Judicial officers also may, in the exercise of their discretion, decline to issue a criminal complaint even if probable cause exists to support the issuance of a complaint. Victory Distributors, 435 Mass. at 142. See also G.L. c. 218, 35A. The practice of denying an application for a criminal complaint notwithstanding a finding of probable cause appears to mark a change from the prior Complaint Standards issued in 1975. See Cbmmonwealth v. Clerk of Boston Div. of Juvenile Court Dept., 432 Mass. 693, 701 n.11 (2000) (quoting Standards 5 of Judicial Practice: The Complaint Procedure (1975) (?1975 Standards"), Std. 3:08) B. Public Access to Show Cause Hearings and Records. 10. The Supreme Judicial Court has ruled that the public does not have a presumptive First Amendment right of access to attend show cause hearings, but that judicial officers may allow public access to such hearings in appropriate cases. Eagle-Tribune, 448 Mass. at 647?48, 656?67. 11. For example, if the application for issuance of process is one of ?special public significance, and if in the opinion. of the 'magistrate the legitimate interest of the public outweighs the right of privacy in the accused, the hearing may be open to the public, and should be conducted in the formal atmosphere of a courtroom.? Id. at 656 (quoting Standards of Judicial Practice: The Complaint Procedure (1975) (?1975 Standards?)). 12. The Supreme Judicial Court has not addressed whether the Massachusetts common law, Article 16 of the Declaration of Rights of the Massachusetts Constitution, or the First Amendment grant the public a presumptive right of access to records of show cause hearings. Nor has the Court considered the issue raised by this petition, whether any such right applies to the records of show cause hearings where a judicial officer 202154619) 6 - makes a finding of probable cause but denies the application for a complaint. 13. In the absence of a definitive ruling on the issue by the Court, the District Court promulgated the 2008 Standards, which address public access to records of show cause hearings. 14. The 2008 Standards provide that, in cases where a judicial officer finds probable cause and issues a complaint, ?the application form and any attachments must be filed in the criminal case file.? District Court Standards of Judicial Practice: The Complaint Procedure (rev. 2008) (the ?2008 Standards?), Standard 5:01 (emphasis added). 15. Once made part of the criminal case file, the application form and attachments are presumptively public judicial records. See A Guide to Public Access, Sealing ERpungement of District Cburt Records (rev. 2013) (the ?Guide?) at 12 (listing an; presumptively public ?[a]pplications, police reports and other materials submitted to a clerk or judge in support of, or in opposition to, a criminal complaint that was subsequently issued?). 16. The 2008 Standards further provide that, in cases where the application for a criminal complaint is denied, the application form and any attachments are unavailable to the public and must be destroyed after one year unless the judicial officer ?makes a '7 determination that the legitimate interest of the public outweighs any privacy interests of the accused. 2008 Standards 5:01, 5:02. 17. The 2008 Standards (in not expressly address the specific issue of public availability of records of show cause hearings where the judicial officer makes a finding of probable cause but denies the application for a. complaint? IRespondents and judicial officers who preside over show cause hearings nevertheless have construed the 2008 Standards as precluding public access in such circumstances. C. The Globe's Research of the Show Cause Hearing Process 18. In or about 2017, the Globe began gathering information concerning the functioning c?f show cause hearings in the Commonwealth and how judicial officers perform their duties in connection with such proceedings. 19. The Globe?s research included cases in which a judicial officer made a finding of probable cause but nevertheless denied applications for issuance of a criminal complaint. 20. According to data provided by the Executive Office of the Trial Court to the Globe, there were 18,134 35A show cause hearings in 2016 and 2017 where judicial officers found probable cause that the accused had committed. a crime to issue charges, but denied the 2021546191 8 applications for issuance of a criminal complaint. Copies of the data provided by the Executive Office of the Trial Court are attached hereto as Exhibit A. 21. The Globe unsuccessfully attempted to inspect records of show cause hearings in. which. a judicial officer denied the issuance of a complaint despite having made a finding of probable cause that the accused had committed a crime. 22. The policy and practice of the Trial Court is that the public has no greater right of access to records of show cause hearings in which an application for a complaint is denied after a finding of probable cause is made than it has to records of cases in which no finding of probable cause is made. 23. The Globe has made multiple requests for records of show cause hearings in which the application was dismissed after a finding of probable cause was made, including the following requests: a. On January 8, 2018, the Globe asked the Public Information Officer for the Supreme Judicial Court for records of cases where probable cause was found, but no complaint was issued, including whether such cases in Waltham and Gloucester District Courts were available at the court clerk's office. See Exhibit hereto. b. The response to the Globe?s request was as follows: 9 The Trial Court carefully considered your request for records CH1 all cases for which probable cause was found but a criminal complaint was not issued, reviewing both SJC court rules and case law on open courts and criminal process. A criminal proceeding does not begin in the District or Boston Municipal Court until a criminal complaint is issued. An application for criminal complaint in which the clerk magistrate finds probable cause completes the step of authorizing a criminal complaint to be issued, but the issuance is still subject to prosecutorial discretion. Until the criminal complaint is issued a person is not yet being charged to answer for an alleged crime. Until that step it is not yet a public court record, because the court would be publicly disclosing allegations of wrongdoing where no criminal process resulted. See Exhibit hereto. c. On February 2, 2018, the Globe asked the Trial Court to reconsider its denial of the request for access to ?records of show cause hearings where a clerk magistrate or assistant clerk found there was probable cause to issue a complaint, but declined to do so.? See Exhibit hereto. d. On March 6, 2018, the Trial Court issued a detailed, five?page response to the Globe's request explaining, inter alia, the reasoning underlying its determination that there is no presumptive right of public access to show cause hearings in cases in. which. the application.?was denied, even if 21 finding of probable cause was made. See Exhibit hereto. 10 - e. The Globe also asked the Clerk?Magistrate for the Boston Municipal Court, Dorchester Division for records of a show cause hearing in which the application for 51 complaint was denied. after~ a finding c?f probable cause was made. See, Exhibit hereto (August 3, 2018 request to Clerk Magistrate of Dorchester District Court). In response to the request made in Exhibit F, the Globe was advised that it was the Clerk?Magistrate?s policy not to provide access to show?cause hearings records unless criminal charges issue (regardless of whether probable cause was found or the other circumstances of the case). D. The Public Has a Common Law and Constitutional Right of Access to the Records of Show Cause Hearings Where Findings of Probable Cause Are Made. 24. The Trial Court?s policy and practice with respect to the public availability of the records of show cause hearings where a finding of probable cause is made raises significant issues concerning the administration of justice that warrant review under c. 211, 3. 25. A finding of probable cause constitutes a judicial ruling sufficient to trigger the public?s common law and constitutional right of access to records of show cause hearings. - 11 26. At least two separate judicial determinations are made in such cases. First, a judicial ruling is made that there is ?reasonably trustworthy information sufficient to warrant a prudent person in believing that a crime has been committed and that the accused is the perpetrator.? 2008 Standard 3:18. An additional judicial ruling then is made that a complaint will not issue despite a finding of probable cause. 27. Some cases may contain additional rulings, including whether a complainant consents to a deferral or a denial of the application. See, 2008 Standard 3:07, supra; 2008 Standard 3:19, supra. 28. A finding of probable cause in a show cause hearing is a judicial determination comparable to the finding of probable cause needed to support the issuance of an arrest warrant, a judicial ruling that triggers the public's common law and constitutional rights of access. See, Trial Court Rule XI, Uniform Rule for Probable Cause Determinations for Persons Arrested Without a Warrant (if a judicial officer ?determines that there is probable cause to believe that such arrestee committed one or more of the offenses for which he or she was arrested,? copies of his or her written determination and of any written statement of facts submitted to him or her ?shall be filed and docketed with the record of such case, and shall be a public record?). 12 - 29. A finding of probable cause in a show cause hearing also is analogous to the judicial determination needed to issue a search warrant, the supporting materials for which are presumptively public upon filing with the court even if criminal charges have not yet issued. See generally" Commonwealiil v: Neilson, 423 Mass. 75, n.3 (1996) (?Probable cause for Eburth Amendment purposes means that there is reason to believe that a crime has been committed and that evidence of the crime will be found in the place to be searched 30. Public access to the records of show cause hearings in which a probable cause finding is made would shed light on the performance of official judicial functions and thus would play a significant, positive role in the functioning of 35A show cause hearings. 31. For example, public access would enable the public to inform itself about the following Inatters (among others): a. What percentage of cases in which a finding of probable cause was made before the application was denied represented a voluntary resolution of the matter? In what percentage of cases did the complainants object to the outcome? See, 2008 Standard 3:07 (?Where the complainant is certain that he or she wishes to institute criminal proceedings, the magistrate should proceed accordingly?); 2008 Standard 3:19 13 (?An application should. be acted. upon. unless withdrawn, deferred for necessary investigation, or deferred with the consent of the b. In what types of cases are judicial officers most likely to make a finding of probable cause before denying an application? c. Is the practice of making a finding of probable cause before denying an application more prevalent in some District Courts than others and, if so, why? d. Is there a demonstrable benefit to the practice of lnaking' a finding' of :probable cause before denying an application? e. Does a comparison of cases in which a finding of probable cause results in the issuance of a complaint with (ii) cases in which a finding of probable cause preceded the denial of an application indicate any' disparate treatment of complainants or the accused based on race, gender, national origin, or citizenship? f. Are judicial officers more likely to deny applications for criminal complaints in cases where a probable cause finding is made when the accused is a public official or has hired an attorney? 30. The public thus has a significant interest in examining the records of show cause hearings in which DB3/202l54619.l l4 judicial officers make a finding of probable cause. The public?s interest outweighs the privacy interest of the accused in cases where an application is denied based on a finding of no probable cause. 32. Petitioner respectfully requests that the Court recognize a presumptive common law or constitutional right of public access to the records of show cause hearings where a finding of probable cause is made and establish the legal standard to be applied by judicial officers in considering requests by members of the public for such records. WHEREFORE, petitioner respectfully prays that this Court: 1. Hold a hearing on the petition; 2. After hearing, enter an order determining that there is a pmesumptive public right of access to the records of cause 'hearings in. which. a judicial officer 'makes a finding of probable cause that the accused has committed a crime under the common law of Massachusetts, Article 16 of the Declaration of Rights of the Massachusetts Constitution, or the First Amendment of the United States Constitution, and establish the legal standard to be applied by judicial officers in considering requests by 'members of the public for such records; - 15 3. In the alternative, reserve decision on the petition and report the matter to the full Court for decision; and l6 - 4. Grant such other relief as the Court deems just and proper. BOSTON GLOBE MEDIA PARTNERS, LLC By its attorneys, onathan M. Albano BBO #013850 MORGAN. LEWIS BOCKIUS LLP One Federal Street Boston, MA 02110-1726 +1.617.34l.7700 Dated: October 11, 2018 202154619] - l7 -