COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. SUPREME JUDICIAL COURT

FOR SUFFOLK COUNTY
No. SJ-2024-0018

Cambridge District Court

TRUSTEES OF BOSTON UNIVERSITY AND

BOSTON GLOBE MEDIA PARTNERSHIP LLC

v.

CLERK-MAGISTRATE OF THE CAMBRIDGE DISTRICT COURT

MEMORANDUM OF DECISION AND ORDER OF REMAND

This matter came before me on a petition filed under G.L.

c. 211, § 3. The petitioners, owners of WBUR-FM and the Boston

Globe newspaper, seek the release of applications for criminal

complaint in advance of public show-cause hearings for twenty-

eight individuals accused of violating G.L. c. 272, § 53A (sex-

for-fee). The clerk-magistrate of the Cambridge District Court

(clerk-magistrate), represented by the Attorney General, filed

an opposition.

To date, individuals, who received notice of show cause

hearings and are referred to as John Doe #1-17, were allowed to

intervene in this matter. The interveners seek to vacate the

clerk-magistrate's decision to open the show cause hearings to

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the public and request that the matter be referred to the full

court. 1

The criminal charges arise out of a highly publicized

Federal investigation into a multi-state prostitution ring. At

issue in this petition is whether the clerk-magistrate abused

her discretion by (1) allowing public access to presumptively

closed show cause hearings or (2) denying the release of

applications for criminal complaint in advance of the public

show cause hearings. Under the District Court Revised Standards

on the Complaint Procedure §§ 3:15 and 5:02, the clerk-

magistrate applies the same legal standard to decisions to allow

public access to show cause hearings and decisions to release

corresponding applications for complaint. In both instances,

she determines if legitimate public interests outweigh the

accused's right of privacy. See District Court Revised

Standards on the Complaint Procedure §§ 3:15 and 5:02 (2008)

(Complaint Standards). Here, review of the clerk-magistrate's

decisions is hampered by the absence of factual findings. See

Commentary to Complaint Standards § 3:15, citing, Eagle-Tribune

Pub. Co. v. Clerk-Magistrate of Lawrence Div. of Dist. Court

Dep’t, 448 Mass. 647, 657 n.17 (2007) (clerk-magistrate

1 In addition, the Association of Magistrates and Assistant

Clerks and Massachusetts Association of Criminal Defense Lawyers
filed amicus briefs.

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encouraged to make a written record of the reasons for a

decision to open a show cause hearing to public). The matter is

therefore remanded to provide the clerk-magistrate an

opportunity to articulate a basis for finding that public

interest outweighed privacy rights in one instance but not the

other.

Background. A Cambridge police detective, on December 18,

2023, filed applications for criminal complaint against twenty-

eight individuals for violations of G. L. c. 272, § 53A. The

clerk-magistrate scheduled the cases for show cause hearings to

commence on January 18, 2014. The cases have been widely

reported in the media following the November 2023 arrests of Han

Lee, James Lee, and Junmyung Lee for operating high-end brothels

in greater Boston and eastern Virginia. In connection with the

Federal charges, the United States Attorney for the District of

Massachusetts issued a press release announcing that "commercial

sex buyers" at brothels included "elected officials, high tech

and pharmaceutical executives. Doctors, military officers,

government contractors that possess security clearances,

professors, attorneys, scientists and accountants, among

others." November 8, 2023 Press Release, United States

Attorney’s office, District of Massachusetts.

On December 21, 2023, the clerk-magistrate allowed a

request filed by the Boston Globe, WBUR, and NBC 10 Boston

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seeking public access to the show cause hearings. The hearings,

according to a representative from WBUR, involved "defendants

seeking or holding political office or in other key governmental

positions." The clerk-magistrate, quoting from Eagle-Tribune

Publ. Co. v. Clerk-Magistrate of the Lawrence Div. of the Dist.

Ct. Dep't, 448 Mass. at 656, noted: "Where an incident has

already attracted public attention prior to a show cause

hearing, the interests in shielding the participants from

publicity is necessarily diminished, while the public's

legitimate interest in access is correspondingly stronger."

Recognizing the District Court's "long-standing and important

practice" of shielding individual's accused of minor crimes from

unfair public scrutiny prior to a finding of probable cause, the

clerk-magistrate nonetheless found that "legitimate public

interest" warranted public hearings.

The next day, a WBUR reporter requested access to the

"applications for criminal complaint" in advance of the

scheduled show cause hearings. The clerk-magistrate, on

December 26, 2023, denied the request. She quoted Section 5:02

of the Complaint Standards, which provides:

If an application for complaint has been filed but no

determination has yet been made, it is merely an accusation
as to which no judicial officer has yet found probable
cause. Public dissemination of inaccurate information in
such an application could unfairly stain the reputation of
the accused. Pending applications, therefore, are
presumptively unavailable to the public unless a magistrate

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 or judge makes a determination that the legitimate
interests of the public outweigh any privacy interests of
the accused.

The clerk-magistrate noted also that there is no general right

of access to show cause hearings. The clerk-magistrate found:

"Having considered all of the above, the request for any

application for criminal complaints or disclosure of the names

of the accused prior to a finding of probable cause by a

judicial officer are hereby denied."

On January 8, 2024, the WBUR reporter sought judicial

review of the clerk-magistrate's decision from a Cambridge

District Court judge. The judge, citing the Complaint Standards

and Eagle Tribune Pub. Co., declined to rule on the appeal on

the grounds that "any request for relief . . . should thus be

directed to the single justice of the Supreme Judicial Court." 2

Discussion. G. L. c. 218, § 35A provides a statutory right

to a show cause hearing to determine whether probable cause

exists to issue misdemeanor complaints where there is no arrest

or imminent threat of bodily injury, of the commission of a new

crime, or flight. Boston Globe Media Partners, LLC v. Chief

2 I do not address the judge’s conclusion that the Single

Justice has exclusive jurisdiction over an appeal from a clerk-
magistrate’s decision to allow or deny public access to
applications for criminal complaint. See Boston Globe Media
Partners, LLC v. Chief Justice of Trial Court, 483 Mass. 80, 102
n.20 (2019) (requester may appeal denial of a record request to
a judge and seek relief from clerk-magistrate or judge’s
decision from a single justice in extraordinary circumstances).
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Justice of the Trial Court, 483 Mass. 80, 84-85 (2019). Show

cause hearings are presumptively "private and closed to the

public." Complaint Standard § 3:15. Upon request to open the

show cause hearing to the public, the magistrate should require

that the person or organization making the request demonstrate

"a legitimate reason for access that justifies an exception to

the rule." Id. Section 3:15 provides, "[i]f the application is

one of special public significance and the magistrate concludes

that the legitimate public interests outweigh the accused's

right of privacy, the hearing may be opened to the public." The

balancing test requires the clerk-magistrate consider the

interest of transparency, accountability, and public confidence

in judicial decision-making against the risk of unfair

collateral consequences that might befall the wrongfully

accused. Boston Globe, 483 Mass. at 102. Where the accused is

a public official, public interest is at its "apex if the

conduct at issue occurred in the performance of the official's

professional duties or materially bears on the official's

ability to perform those duties honestly or capably." Id.

Likewise, applications for criminal complaint are

presumptively unavailable to the public. Unless and until a

clerk-magistrate finds probable cause to determine that the

accused committed a crime, public dissemination of this

information could "unfairly stain the reputation of the

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accused." Id. See Boston Globe, 438 Mass. at 95 (release of

applications for criminal complaint contrary to purpose of show

cause hearing to "screen a variety of minor criminal or

potentially criminal matters out of criminal justice system");

Eagle-Tribune Publ. Co., supra at 651-656 (no First Amendment or

common-law right of access to show cause hearing proceedings);

Complaint Standards, § 5:02. The presumption against public

access to applications for complaint may be overcome in

exceptional circumstances involving public interest in potential

criminal charges. See Boston Globe, supra at 102; Complaint

Standards § 5:02. Under Section 5:02, upon request for public

access to applications for complaint, "the appropriate

considerations are similar to those in determining whether to

permit the public to attend a show cause hearing."

The Single Justice reviews the clerk-magistrate's decision

for error of law or abuse of discretion. An abuse of discretion

occurs when a judge or judicial officer makes a clear error in

weighing the relevant factors such that the decision "falls

outside the range of reasonable alternatives". L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014). The role of a

reviewing court in this context is not to exercise independent

discretion but merely to review the correctness of the ruling.

See id., citing Bucchiere v. New England Tel. & Tel. Co., 396

Mass. 639, 641 (1986) ("[I]t is plainly not an abuse of

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discretion simply because a reviewing court would have reached a

different result").

It is difficult to determine whether the clerk-magistrate

abused her discretion because I cannot reconcile the conflicting

orders on this record. The clerk-magistrate apparently

determined, in the first instance, that this is one of the

exceptional cases where a legitimate public interest outweighs

the individual's privacy rights to a closed show cause hearing.

The clerk-magistrate did not make any specific finding of fact.

It is possible to infer, based on her citation to Eagle-Tribune

Pub. Co., 448 Mass. at 656, that she determined the accused's

privacy rights were diminished by publicity generated prior to

the hearings. She did not, however, balance the public interest

contained in the complaint allegations against privacy rights.

Moreover, the decision appears to group the twenty-eight

individuals together and did not consider each individual’s

right of privacy.

In the second instance, the clerk-magistrate recited the

privacy concerns embedded in Standard 5:02 that presumptively

deny the public access to applications for complaint. At the

same time, however, she relied on the lack of a "tradition of

public access to show cause hearings," in a case where she, the

day prior, bucked that tradition by opening the show cause

hearings to the public.

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 In her opposition, the clerk-magistrate, through counsel,

essentially contends that the media have enough information to

do their job by virtue of the open hearings. Moreover, release

of the applications for complaint would allow publication of the

accused's name prior to a probable cause determination and may

increase the likelihood of misidentification of the accused or

the inability to correct other mistakes.

John Doe #1-15, for their part, assert procedural due

process protections to the non-disclosure of their identities

prior to a probable cause determination. They also point out

that the clerk-magistrate lumped the accused together -- failing

to make individualized assessments of privacy interests. The

decision to open the proceedings, they argue, "will turn

ordinarily confidential show cause hearings into public walks of

shame and humiliation before there is even a probable cause

determination made to each individual."

John Doe #16-17 contend that employment in one of the

occupations identified in the United States Attorney’s press

release, including service as an "elected official," does not

automatically create a legitimate public interest that outweighs

the accused’s right to privacy. The clerk-magistrate, they

argue, is required to consider whether there is a "nexus between

the alleged conduct and the performance of official duties."

See Boston Globe, 438 Mass. at 102.

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 The issue in this petition is whether the clerk-magistrate

abused her discretion. The pleadings, which rely on a series of

assumptions about the clerk-magistrate's reasoning, cannot fill

gaps in an inadequate record. Remand is necessary to allow the

clerk-magistrate to answer the following questions: First, what

is the public interest that justified opening the presumptively

closed show cause hearing? Second, how is that public interest

balanced against the individual privacy rights of the accused to

non-public hearings? Third, how is that public interest

balanced against privacy interests in the nondisclosure of

applications for complaint? Fourth, what are the increased

privacy rights at stake that require disparate treatment of

requests for public access to applications for complaint?

Upon consideration thereof, the matter is remanded to the

clerk-magistrate to answer the above questions. A response

shall be filed on or before 4:00 P.M., on January 26, 2024. The

petitioners, respondent, and interveners shall have the

opportunity to file a written response to the clerk-magistrate’s

findings. These responses shall be limited to five pages each

and shall be filed on or before 4:00 PM, on January 31, 2024.

By the Court,

/s/ Frank M. Gaziano_____________

Associate Justice

Entered: January 23, 2024

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