Search Warrant Affidavits Public Records, SJC Rules

The Quincy Patriot Ledger building (Photo credit: Wikipedia)

The Massachusetts Supreme Judicial Court this week, in Com. v. George Prescott Publishing Co., LLC (Case No. 11062), ruled that police affidavits supporting search warrants must be produced under the Commonwealth's Public Records Law (G.L. c. 66, sec. 10).

Siding with the Quincy Patriot Ledger, which sought a State Police affidavit involving alleged sexual misconduct by a prominent real estate developer allegedly involving a minor, the SJC rejected arguments by the developer's counsel that his client's right to a fair trial would be compromised and by authorities, who contended that G.L. c. 41, sec. 97D was controlling and shielded the affidavit from production. That statute exempts rape and sexual assault reports, along with conversations between police and victims, from production under the Public Records Law. A Quincy District Court judge had sealed the document, prompting the daily to appeal.

The SJC frowns on impounding documents and cited in its opinion well-established case law treating search warrants and supporting documentation as presumptive public records. The high court's ruling voiced confidence in trial judges' ability to balance First Amendment concerns against a criminal defendant's right to a presumption of innocence.

Is Speaking Ill of the Dead Protected by the 1st Amendment?

Image via WikipediaThe Massachusetts Supreme Judicial Court is expected to decide in the next three months whether a funeral home embalmer's First Amendment rights were violated when a Commonwealth regulatory agency revoked his license over published controversial remarks concerning corpses.

The SJC heard arguments January 6 in the case of Troy J. Schoeller v. Board of Registration of Funeral Directors and Embalmers (Docket No. 10980) in which the 35-year-old Schoeller sued after the state board pulled his license in 2010 for allegedly violating 239 C.M.R. sec. 3.13(7) that bars embalmers and funeral directors from commenting on the condition of any human body entrusted to their care.

According to an Associated Press account, Schoeller, an embalmer specializing in reconstructive art who plied his trade in Florida and Massachusetts for more than 13 years, was twice interviewed for a 2006 article in the alternative weekly newspaper, The Boston Phoenix prompted by his opening a clothing store called Horror Business. During his second interview, which occurred in a restaurant, Schoeller allegedly made several offensive comments concerning his work, such as purportedly expressing distaste for embalming fat people and allegedly likening an infant's body to a "bearskin rug."

Schoeller's counsel contends his client is the first embalmer in the Commonwealth ever to be disciplined for such conduct and claims the regulation at issue is over-broad and violates Schoeller's freedom of speech. He also argues that funeral directors and embalmers discuss their work in trade journals and other publications as a matter of course because of public interest. The assistant attorneys general representing the Commonwealth, however, suggest Schoeller's conduct was unprofessional and his purported comments were insensitive.

Although he maintains he didn't say anything that was untruthful, Schoeller cedes in the AP article that he might have been more artful in his choice of words.  Perhaps it's an occupational hazard that those who spend their work day among the dead forget how to speak to the living.

SJC Allows Press Access to Civil Commitment Hearings

Image by Mr. Ducke via FlickrIn Kirk v. Commonwealth of Massachusetts, 459 Mass. 67 (2011), the Supreme Judicial Court this week said civil recommitment hearings are presumptively open to the public.

The case involves Helen Kirk, a Carver, Mass., woman who in 2007 was found not guilty by reason of insanity of strangling her three-year-old son in March 2005, and committed to a state hospital. Two years later, state hospital officials believed Kirk could be released to a residential facility, but the Plymouth County District Attorney sought a civil recommitment hearing to keep her hospitalized.

Kirk requested that the recommitment hearing at Taunton District Court be closed to the public, which the court denied. More than three decades ago, the U.S. Supreme Court in Richmond Newspapers, Inc. v.  Virginia, 448 U.S. 555 (1980), held that the First Amendment entitles the public to attend criminal trials. SJC Justice Judith Cowin noted that although neither the federal nor Commonwealth High Courts has ever ruled that a corresponding right exists to attend civil trials, Massachusetts common law nonetheless presumes the public has such a right.

"Public access to the commitment proceedings underscores the seriousness of a potential deprivation of liberty and combats tendencies toward informality that may threaten an individual's due process rights," Justice Cowin wrote. The SJC concluded "both the legal evolution of civil commitment proceedings and the likely beneficial effects of public access to such proceedings support a conclusion that civil commitment hearings held pursuant to G.L. c. 123, sec. 16(c) are presumptively open to the public."

Kirk had argued that the release of  personal information in open court was violative of her privacy and could have a detrimental effect on her treatment. The Court said Kirk's contention was unsupported by expert testimony or other evidence. The SJC noted that although commitment hearings were presumptively open, a court could order closure of the proceedings if:  (1) the petitioner demonstrates an overriding interest that is likely to be prejudiced by an open hearing, (2) closure is no broader than necessary to protect that interest, (3) the trial court weighs reasonable alternatives to closure, and (4) the court makes written findings adequate to support the closure.

SJC: Public Records Law Doesn't Override Judicial Protective Order

Image by Getty Images via @daylifeIn Commonwealth of Massachusetts v. Fremont Investment & Loan et al. (Case No. 10749), the Supreme Judicial Court of Massachusetts this week ruled that courts' traditional power to enter protective orders sealing documents is not overridden by the Commonwealth's public records law (M.G.L. c. 66, sec. 10).

In October 2007, Massachusetts Attorney General Martha Coakley sued Fremont under the Commonwealth's consumer protection law, alleging the mortgage company engaged in predatory lending practices that were unfair and deceptive (Com. v. Fremont Inv. & Loan, 452 Mass. 733 (2008)) Fremont paid a $10 million fine and costs, but during the litigation, the parties filed a joint protective order governing the exchange of purportedly confidential documents.

Samuel J. Lieberman  sought access to the more than 5.5 million pages of these sealed documents from the Attorney General's office via the public records law. Writing for the High Court, Justice Judith Cowin concluded that interpreting the public records law to negate a judicial order sealing documents "would raise serious constitutional doubts as to the validity of the statute." Issuing protective orders is an inherent judicial power essential to the function of the judicial department and the courts' ability to decide cases and cannot be trumped by the public records law, the SJC ruled.

Mass. Courts to Open Doors to New Media?

Image via WikipediaWith the blessings of the Judiciary-Media Committee, the Rules Committee of the Massachusetts Supreme Judicial Court ("SJC") has proposed amendments to SJC Rule 1:19 concerning cameras in the courtroom that would expand the use of a broader range of electronic technology.

The proposed revisions include re-christening Rule 1:19 Electronic Access to the Courts. More substantive changes involve allowing live blogging in the courtroom and the use of laptops and smartphones.  Those covering the courts, be they online journalists, traditional print and broadcast journalists or bloggers, would be required under the rule change to register with the Court's Public Information Office and sign a declaration agreeing to abide by coverage restrictions, such as not photographing or recording on video jurors, sidebar conferences, or juvenile proceedings.

To the present allowance of one "pool" video camera and one "still" camera, the proposed amendments would add a third pool camera for bloggers and other non-mainstream journalists.  The SJC is soliciting comments on the proposed revisions due on or before January 28, 2011.

Mass. SJC Renders 'Enterprising' Libel Decision

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Massachusetts' longstanding tradition of recognizing a fair and accurate reporting privilege of official statements and actions as a defense to defamation claims received a shot in the arm today from the Supreme Judicial Court ("SJC") ruling in the 2005 case, Howell v. Enterprise.

The SJC reversed the lower court's denial of the Brockton Enterprise's summary judgment motion on libel and intentional infliction of emotional distress claims, in dismissing the case brought by an official from the Town of Abington who was the subject of 11 Enterprise articles from May 2005, to Nov. 2005, regarding his alleged use of town computers to access pornography.

The SJC opinion by Justice Robert Cordy said the high court must be: "on alert for two sorts of reporting errors: mistakes in reporting what actually happened (accurate), and liberties taken in reporting the character of what actually happened (fair). We examine both through the lens of the reasonable recipient of the report to gauge the substantiality of the report's accuracy and fairness." The SJC goes on to include that the newspaper's reports were both substantially accurate and fair.

The SJC opinion further states that the fairness and accuracy privilege should be liberally construed by courts.

SJC To Decide How 'Open' Mass. Open Meeting Law Should Be

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The Supreme Judicial Court of Massachusetts next week will hear arguments in District Attorney for the Northern District v. Wayland School Committee (SJC-10406), which turns on how broadly to interpret the exceptions to the Commonwealth's Open Meeting Law (M.G.L. c. 39, sec. 23B).

As reported by attorney and  blogger Bob Ambrogi (http://www.legaline.com/medialaw.html), who submitted an amicus brief on behalf of the Massachusetts Newspaper Publishers Assn., the case involves an out of view school committee meeting that addressed the performance evaluation of the school superintendent.  The closed door session was deemed lawful by a trial judge, who relied on an exception in M.G.L. c. 39, sec. 23B that allows officials privately to "conduct strategy sessions in preparation for negotiations with nonunion personnel, to conduct collective bargaining sessions or contract negotiations with nonunion personnel."  The judge reasoned that evaluation of the superintendent came within this exception because the superintendent's contractual compensation is influenced by the committee's evaluation, so that the evaluation is thereby part of the contract negotiation.

The lower court's ruling ignores a more germane exception under the statute that permits excluding the public so that officials can "discuss the reputation, character physical condition or mental health rather than the professional competence of an individual [emphasis supplied]." The exception suggests an airing about an individual's professional competence should occur in open session.

If the SJC upholds the lower court's interpretation, it will make the "contract negotiation" a catch-all exception and closed-door meetings by elected officials will be considerably harder to pry open.