Opinion
No. 16–P–171.
12-13-2016
Jane DOE v. John DOE & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The intervener, Bloomberg L.P., appeals from an order entered by a judge in the District Court denying its motion to modify an impoundment order that was issued in proceedings pursuant to G.L. c. 209A. Bloomberg L.P. contends that the judge abused her discretion or committed an error of law. We affirm.
According to the judge, although Bloomberg L.P.'s motion was "styled [as] a motion to terminate impoundment, [it] actually request[ed] modification of the impoundment [order]."
Background. In 2002, the plaintiff filed an application for an abuse prevention order pursuant to G.L. c. 209A. The judge granted a temporary order based on the ex parte allegations and scheduled a hearing at which the defendant would be afforded an opportunity to be heard. In December of 2002, an extension hearing was held and the judge determined that the standard for issuance of an abuse prevention order had not been met. On May 30, 2003, the judge granted an order to impound the case file as requested by both the plaintiff and the defendant.
The file had remained open to the public from the date of application to the issuance of the impoundment order, a period of more than five months.
On July 15, 2015, Bloomberg L.P. filed a motion to intervene and a motion to terminate the impoundment order. Bloomberg L.P. sought to modify (see note 2, supra) the impoundment order in order to facilitate its investigation into the manner in which colleges handle sexual assault allegations on campus. On October 14, 2015, the judge allowed the motion to intervene, but denied the motion to modify the impoundment order, finding that the defendant, John Doe, established good cause for impoundment over the presumption of public access.
On November 13, 2015, Bloomberg L.P. filed a petition for interlocutory review of the denial of the motion to modify the impoundment order to a single justice of this court, pursuant to G.L. c. 231, § 118, first par. The defendant filed a motion to dismiss the petition. A single justice of this court allowed the motion to dismiss, without prejudice, and authorized Bloomberg L.P.'s appeal to a full panel of this court upon a filing of a notice of appeal. On December 11, 2015, Bloomberg L.P. filed a notice of appeal.
Discussion. 1. Standard of review. Due to the recent amendment of Rule 12 of the Uniform Rules on Impoundment Procedure (Impoundment Rules), it is appropriate that we discuss the process and the standard by which we review an appeal under Rule 12(b).
The original version of Rule 12 became effective on January 1, 1988, and reads in its entirety: "An order impounding or refusing to impound material shall be subject to review by a single justice of an appellate court in accordance with provisions of law and consistent with the procedures established in rule 1:15 of the Rules of the Supreme Judicial Court."
Rule 12 now provides, under subsection (b), that "[u]pon entry of judgment, ... or other final disposition of the proceeding, any appeal of an impoundment order proceeds pursuant to the Massachusetts Rules of Appellate Procedure." Here, Bloomberg L.P. first filed a petition for interlocutory review to a single justice of this court under G.L. c. 231, § 118, first par. The single justice dismissed the petition, without prejudice, and permitted Bloomberg L.P. to proceed with its appeal, as allowed under Rule 12(b) and pursuant to the Massachusetts Rules of Appellate Procedure, to a full panel of this court. Bloomberg L.P. filed a notice of appeal within the time allotted by the single justice. We treat this appeal as being properly before us under Mass.R.A.P. 4, as amended, 430 Mass. 1603 (1999). The judge's decision became a final disposition upon its entry on the docket. Under Rule 12(b), any appeal of that decision proceeds pursuant to the Massachusetts Rules of Appellate Procedure.
The amended version of Rule 12 took effect on October 1, 2015. The prior version, under which Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 600 (2000), was decided (see note 4, supra), provided that impoundment orders, whether entered in final or ongoing proceedings, were only subject to review by a single justice of an appellate court. See id. at 601. Under the prior version of Rule 12, "once a single justice of an appellate court decide[d] a matter pursuant to [R]ule 12, the uniform rules ma[de] no provision for any further [appellate] review." Ibid. However, "where a single justice of the Appeals Court ha[d] decided the [R]ule 12 matter," an aggrieved party could petition the Supreme Judicial Court, "seeking to invoke the court's general superintendence power under G.L. c. 211, § 3." Id. at 601–602. Pursuant to the general superintendence power under the statute, "a single justice of [the Supreme Judicial Court] could grant relief from the decision of the single justice of the Appeals Court if the petitioner demonstrated an otherwise irremediable and substantial violation of its substantive rights." Id. at 602. A party aggrieved by the decision of the single justice of the Supreme Judicial Court could further invoke the court's general superintendence power under G.L. c. 211, § 3, and appeal to the full court. Ibid.
The defendant had argued that the single justice should dismiss the interlocutory petition because Bloomberg L.P.'s appeal under Rule 12(b) should have been filed in accordance with the Massachusetts Rules of Appellate Procedure.
Our standard of review in these matters was most recently restated in Boston Herald, Inc. v. Sharpe, 432 Mass. 593 (2000). The Supreme Judicial Court held that a single justice of the Appeals Court or the Supreme Judicial Court "must determine whether the lower court judge abused his or her discretion or committed an error of law in issuing the order concerning impoundment." Id. at 601. We therefore review the judge's denial of Bloomberg L.P.'s motion to modify the impoundment order under the abuse of discretion or other error of law standard. See ibid. See also New England Internet Café, LLC v. Clerk of the Superior Ct. for Criminal Bus. in Suffolk County, 462 Mass. 76, 83 (2012) ("We review orders concerning impoundment for abuse of discretion or other error of law").
The court went on to elaborate, stating that "[b]oth before and after the promulgation of the uniform rules, this court has recognized that judges have discretion to impound court files in appropriate circumstances, and the court has reviewed impoundment orders to determine whether they constitute an abuse of discretion or are legally erroneous." Boston Herald, supra at 601.
Neither Bloomberg L.P. nor the defendant dispute that this standard of review should apply.
2. Impoundment order. Bloomberg L.P. argues that the judge erred in her analysis of the relevant factors of good cause for impoundment and applied an improper presumption of secrecy rather than a presumption of openness.
"Massachusetts has long recognized a common-law right of access to judicial records." Republican Co. v. Appeals Ct., 442 Mass. 218, 222 (2004). "The principle of publicity of judicial records is not, however, absolute," and may be overcome upon a showing of good cause. Boston Herald, Inc., supra at 604. "In determining good cause, the court shall consider all relevant factors, including but not limited to, (i) the nature of the parties and the controversy, (ii) the type of information and the privacy interests involved, (iii) the extent of community interest, (iv) constitutional rights, and (v) the reason(s) for the request." Rule 7 of the Impoundment Rules.
Bloomberg L.P. also argues that the judge improperly relied on Commonwealth v. Pon, 469 Mass. 296 (2014), in her good cause analysis. We do not find merit in this argument because the judge looked to Pon by analogy and it was within her discretion to consider all relevant factors. She was "not limited to" only those enumerated in Rule 7. Moreover, any error committed by the judge in consideration of Pon was harmless because the judge repeatedly stated in her decision that the defendant established a showing of good cause for impoundment based on the Rule 7 factors.
Despite Bloomberg L.P.'s contentions, the judge correctly began her decision by applying the presumption of public access to judicial records to G.L. c. 209A proceedings. The judge then provided a detailed analysis of the relevant factors of whether the defendant demonstrated good cause to continue impounding the case. The judge found that the case did not receive any public interest either at the time of the original proceedings or when Bloomberg L.P. sought modification of the impoundment order. The judge also noted that there was no press coverage even during the five months that the case was available to the public, after the proceedings had concluded and before the original impoundment order was entered. The judge further reasoned that at the time of the original proceedings, the parties were young college students, and that both during the original proceedings and at the time of Bloomberg L.P.'s motion, the plaintiff and defendant were nonpublic figures. The judge also noted that the thirteen year old allegation of criminal misconduct did not meet "the standards for the issuance of an abuse prevention order ... once the defendant was given an opportunity to be heard."
The judge found that "unimpoundment would result in exposing two non-public figures to significant exposure, embarrassment, and likely approbation based on unconfirmed allegations of college-age misbehavior."
As established by our case law, "[c]ourts possess supervisory power over their records and files, and have properly denied public access where those records and files might have become a vehicle for improper purposes." Boston Herald, Inc., supra at 604 (quotation omitted). Such improper purposes include using judicial files to "promote public scandal," serve "as ‘reservoirs of libelous statements for press consumption,’ " "or as ‘sources of business information that might harm a litigant's competitive standing.’ " Id. at 604 n. 21, quoting from Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978).
Judicial decisions to impound must be determined on an individual case basis. See Boston Herald, Inc., supra at 604 (in determining whether good cause exists, "a judge must balance the rights of the parties based on the particular facts of each case"). In light of these reasonable findings, we cannot say that the judge abused her discretion or committed an error of law by denying Bloomberg L.P.'s motion to modify the impoundment order. See L.L. v. Commonwealth, 470 Mass. 169, 185 n. 27 (2014) (noting abuse of discretion where judge's "decision falls outside the range of reasonable alternatives").
Order denying motion to modify impoundment order affirmed.