Decision of Judge to Close Courtroom over John Smith's Objection and His Petition for Interlocutory Relief of Closed Session

 

Petition for Interlocutory Relief of Closed Session COMMONWEALTH OF MASSACHUSETTS  APPEALS COURT  COUNTY, SS.                                                                      C.A. NO. ________________     WIFE X. SMITH, Plaintiff/Appellee  v.  HUSBAND SMITH, Defendant/Appellant ___________________________________________________________ ______________________________________________________ This petition arises out of an order entered into the docket of a COUNTY Probate & Family Court action, WIFE SMITH v. HUSBAND SMITH, No. 99D-9999-DV1, and is brought by HUSBAND SMITH. ["SMITH"]. It is comprised of the four sections mandated by the Standing Order Concerning Petitions to the Single Justice pursuant to G.L. c. 231, sec. 118 (first paragraph).  A certificate of service is at the end of the pleading.   1. REQUEST FOR INTERLOCUTORY REVIEW The review currently sought is from the order commanding that the 209A abuse prevention and supervised visitation hearings be closed to the public.  Further, because the basis provided by the court for the closing during the hearings was overbroad, and does not reflect what was occurring during the hearings at that juncture, it is likely that the courtroom will be closed for all hearings on this matter. Therefore, SMITH seeks a ruling that all proceedings and hearings in the SMITH Probate & Family Court action be open to public scrutiny.    2. STATEMENT OF THE ISSUES 1. Where there is no justification for closing the sessions, the court proceedings must remain open to the public. a. Where in the Probate & Family Court the quality of justice does not comport with the traditional notions of justice, proceedings and hearings must be open to the public. FACTS On several occasions, after SMITH's counsel was seated in the courtroom where evidentiary hearings were to continue, a CLOSED SESSION sign was put on the courtroom door. Each time this occurred, the presiding justice, ZEE OLDERJUDGE, had both failed to alert the parties or their counsel that the session was being closed and failed to ask for the parties' consent or objection to a closed session. On 26 April 2001, there were three persons from the public sitting silently on a bench in the gallery when the session began. They had come to the session specifically to scrutinize the SMITH hearing. One identified himself to the court as a freelance writer.  The judge, refusing to continue the session with them present in the courtroom, called a recess in order to write a memorandum and order, returned to the session with the order, and told HUSBAND SMITH's counsel with that order, she could appeal the denial of her oral motion to keep the courtroom open. The session did not continue until the gentlemen left. The relevant part of the order of 26 April 2001 [see Addendum] for the purposes of this appeal is: In the instant matter, public disclosure of the inflammatory sexual abuse allegations made by the defendant against the xxxxxxxxxxxxxxxxxxxxxxxx would cause serious harm to the plaintiff and to the parties' minor children. By all accounts, the xxxxxxxxxxxxxxxx   appears to be a pillar of the community in the XXXXX, State of ZZZZ where the plaintiff and the minor children reside. The xxxxxxxxxxxxxxxxxxxx  is a graduate of the Harvard Business School, and routinely volunteers his time in children's activities within the community. These explosive allegations, if made public, would have far reaching results, causing irreparable damage to the daily lives of the xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. Prior to and on 26 April 2001, that court repeatedly violated the due-process rights of HUSBAND SMITH.1 Those transgressions were the reason, SMITH contends, the three men wanted to be on-lookers. SMITH's counsel believed that with eyes watching, her client's rights might not be as readily trampled.  1 Because SMITH did not receive timely the ordered tapes of the proceedings and hearings in his case (all in 2001: 1/17, 2/20, 3/1, 3/9, 3/19, 4/2, 4/3), he arranged for a private court reporter to be present on 24 and 26 April 2001, and shall continue to do so until the issues in the SMITH divorce are resolved. One excuse was that the person in charge of the tapes was out ill. Another, that the judge (OLDERJUDGE, J.) had possession of the tapes. All but one of the tapes were received within the past week. They are being transcribed.  Such reversible errors have included, but are not limited to, the following: 1. without SMITH's consent and without an evidentiary hearing, the issue of an order allowing removal of the SMITH children to State of ZZZZ without any investigation as to the environment to which the children would be taken (while SMITH's prior counsel was attorney of record); 2. the issue of an order constituting a prior restraint on SMITH's current counsel which prohibits her discussing the case with others or sharing it with the public; 3. the interruption of an ongoing 209A hearing requested by SMITH by a hearing requested by WIFE SMITH ["WIFE"] on her emergency motion to terminate visitation, so that hearing #1 was suspended for hearing #2;2 2 On 10 March 2001, SMITH had presented a tape of (a) the SMITH twins saying that they had witnessed their mother xxxxxxxxxxxxxxxxxxxxxxx with a boyfriend and (b) one of the twins describing how he was xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. On 19 March 2001, the guardian ad litem filed a second report alleging that SMITH had coached the boys and told them to lie on the tape. On that same date, WIFE's emergency motion was based on the same set of hearsay facts and was brought before Judge YOUNGJUDGE. The court swore in witnesses and allowed them to speak standing before the bench but denied SMITH the ability to cross-examine his accusers. SMITH also objected to the court considering the guardian ad litem's report when determining the motion without giving him an opportunity to cross-examine the G.A.L. and rebut any adverse materials. Judge YOUNGJUDGE then ordered the G.A.L. to appear for hearing on 2 April, the next scheduled hearing date in front of Judge OLDERJUDGE. On the grounds that SMITH coached and asked his boys to lie on the tape, Judge YOUNGJUDGE, on 19 March 2001, suspended SMITH's visitation with his sons until a supervisor for visitation could be found, but allowed the boys to continue living under the same roof with the accused grandfather. At that point, the case became one of "Killing the Messenger."  SMITH has filed an interlocutory appeal on Judge YOUNGJUDGE's order.  4. prior to SMITH taking the stand in his defense on either the 209A or visitation hearing, the limitating of SMITH's testimony to 35 minutes (over repeated objections), thereby denying him the ability to put on his complete defense to both the 209A and the wife's emergency motion.3Clark v. Clark, 47 Mass.App.Ct. 737 (1999) ("limits [ ] should not be such that a party is prevented from presenting its entire case to the fact finder"), citing Goldman v. Ashkins, 266 Mass. 374, 380 (1929) and Chandler v. FMC Corp., 35 Mass.App.Ct. 332, 338 (1993) (vacating judgment and remanding for new trial). Guardianship of Brandon, 424 Mass. 482 (1997);  3WIFE SMITH ["WIFE"] had put on a friend and then her father, GRANDFATHER, on to testify that GRANDFATHER did not have incest with his MIDDLE DAUGHTER (one-year older than WIFE) . . . and that MIDDLE DAUGHTER's accusation was as a result of F.M.S., to wit, a product of a false memory. Upon cross-examination, GRANDFATHER admitted that he has always loved children and that he volunteers at the day-care centers of churches, frequents recreation centers and playgrounds, and assists a public-school kindergarten teacher. 5. after improperly limiting SMITH's testimony, and after telling WIFE's counsel that the court had not heard any evidence to suspend the visitation, the allowing of WIFE to take the stand again.4,5 4 WIFE was the first witness in the 209A hearing, but had not -- until then -- taken the stand for the visitation hearing.  5 The basis of allowing WIFE to retake the stand was unclear, i.e., whether the judge was allowing WIFE to re-open or to be a rebuttal witness; (a) to allow WIFE to be a rebuttal witness was improper (i) where there was no new and unanticipated testimony given by SMITH and (ii) where her testimony was only to bolster her position as movant;  (b) to allow WIFE to give hearsay evidence of the statements of 6-year-old children where there was no factual evidence to support the children's statements was clearly erroneous; and  (c) to allow WIFE to give opinion evidence on the ultimate question of her motion, to wit, that her husband coached the children to answer questions in order to accuse their mother and xxxxxxxxxxxxxxxxxxxxxxxxx of wrongdoing, was clearly erroneous;6 6 For legal arguments, see HUSBAND SMITH'S MOTION STRIKE WIFE SMITH'S OPINION AND HEARSAY  Neither has SMITH had an opportunity to put on his case and argue his OPPOSITION TO PLAINTIFF'S EMERGENCY MOTION TO TERMINATE VISITATION.  6. the judge's failure even to err on the side of caution and immediately pull the children out from under xxxxxxxxxxxx's roof; 7. the court's conclusion that the maternal grandfather "routinely volunteers his time in children's activities within the community" and "appears to be a pillar of the community in the XXXXXXX, State of ZZZZ area where the plaintiff and the minor children reside is without basis in the evidence: that he graduated a fine school does not preclude the likelihood that the man is a predator. To conclude thusly, the court had to conclude the grandfather was truthful and the twin boy, lying; 8. gender-discriminating against the male party: had the grandfather been the husband's grandfather, the court would have immediately pulled the children out from under the grandfather's roof; 9. judicial intimidation that he sign on April 26th a stipulation for supervised visits. "`Intimidation' involves putting in fear for the purpose of compelling or deterring conduct." Sarvis v. Boston Safe Deposit & Trust Co. 47 Mass.App.Ct. 86 (1999) quoting Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, cert. denied 513 U.S. 868 (1994). Not having seen his children for almost two months, and fearing that he would prematurely lose his bid for custody if he did not comply with the judge's command to participate in a pseudo-mediation with opposing counsel in the Family Service Office, he participated in the meaningless exercise, which was not only to his detriment but also to the serious detriment of his children: with the judicial misfeasance, his children will not be protected from harm; and  10. apparent retaliation on April 26 for having the public's eyes prepared to watch and ears to listen, by allowing WIFE's motion to stop spousal support without allowing either SMITH's request for an evidentiary hearing or even argument on the motion.7 7 For legal arguments, see HUSBAND SMITH'S MOTION AND MEMORANDUM TO INCREASE SUPPORT and OPPOSITION TO PLAINTIFF'S MOTION FOR MODIFICATION OF SUPPORT ORDER in the Addendum. SMITH was not allowed to argue or give evidence on either motion before Judge SMITH surprised him and his counsel subsequently in a written order that his support would stop by the end of May. The bogus reason was that he had been given the exclusive use and possession of the couple's property in CITY. That the property has been completely stripped by the wife of all furniture but a naked bed and two straw chairs (no table) and a plastic fork and knife and that he needed time to get up-to-date and recertified in his profession after having been the house husband for five years was not considered because the judge never took evidence or heard argument. The rules of procedure and evidence and common law as well as civility to SMITH's counsel have been shunted aside throughout the proceedings. Only public scrutiny can stop the charade of justice occurring in courtroom X on the Yth floor of COUNTY Probate & Family Court.    ARGUMENTS  "In the absence of a statute, a rule of court, or a principle expressed in an appellate opinion authorizing or directing a courtroom to be closed, the expectation is that courtrooms will be open." Globe Newspaper Co. v. Com, 407 Mass. 879, 884 (1990). Boston Herald v. Sharpe, 432 Mass. 393 (2000).  The rationale is that "[p]ublicity prevents abuses of a single judge's power." Globe Newspaper Co. v. Superior Court, 379 Mass. 846, 855 (1980), citing In re Oliver, 333 U.S. 257, 268-270. That statement is particularly significant here, where the court hearings8 have not comported with traditional notions of how hearings are conducted.  8 SMITH makes the distinction between proceedings and hearings. Hearings are proceedings at which "one is allowed to argue or present evidence," Umina v. Malbica, 27 Mass.App.Ct. 351, 361 (1989). This "`general principle of publicity', . . . [which] governs judicial proceedings in this Commonwealth," was affirmed again in Com. v. Stetson, 384 Mass. 545, 549 (1981) ("judicial system should be open for public inspection"), citing Cowley v. Pulsifer, 137 Mass. 392, 394 (1884), and again in H.S. Gere & Sons, Inc. v. Frey, 400 Mass. 326, 329 (1987). "The right to a public trial, guaranteed by the Sixth Amendment to the Constitution of the United States, is applicable to our courts under the Fourteenth Amendment." Stetson, 384 Mass. at 549.  "This guaranty, the importance of which cannot be overstated, exists primarily to prevent the courts from becoming instruments of persecution." Id., citing Commonwealth v. Bohmer, 374 Mass. 368 (1978); In re Oliver, 333 U.S. 257, 270 (1948); and Note, Trial Secrecy and the First Amendment Right of Public Access to Judicial Proceedings, 91 Harv.L.Rev. 1899, 1902 (1978).  Under the public gaze, witnesses, counsel, and the judge are more strongly moved to a strict consciousness of their duty, thus improving the quality and fairness of our judicial system. Globe I, supra. Stetson, 384 Mass. at 549-550, citing In re Oliver, supra and 6 J. Wigmore, Evidence s 1834, at 438 (Chadbourn rev. 1976); 91 Harv.L.Rev. at 1905. Further, the proceedings must have "an historic tradition of openness," and the public's access must play "a significant positive role in the functioning of the particular process in question." Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 606 (2000), quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986). "[T]he public [also] has a powerful interest in monitoring G.L. c. 209A proceedings and judicial resolution of claims of domestic abuse." Herald, 432 Mass. at 607. Here there was a 209A being heard, but there was no claim of domestic abuse: the wife who has been living in the State of ZZZZ during the past year had claimed she feared her husband because he had accessed the marital home in CITY, Massachusetts, where her brother was. SMITH had no knowledge that his wife had installed her brother into their home as a tenant.  Here, too, the court wrote that there was an explosive sexual abuse allegation. That is insufficient to close a courtroom. A compelling state interest is needed. There was none here. Given that here the 6-year-old victim was not going to testify and his name was not going to be shared with the public, closure of the session was improper. Globe Newspaper Co. v. Superior Court, 379 Mass. 846 (1980). Care and Protection of Edith, 421 Mass. 703, 704 (1996), where the court stated that the desire to prevent the disclosure of children's names was not a compelling state interest. Id. at 704-705. U.S.C.A. Const. Amend. 1. The order to close the session had the same result as a prior restraint on speech, and constituted an unlawful prior restraint. George W. Prescott Pub. Co. v. Stoughton Div. of Dist. Court Dept. of Trial Court, 428 Mass. 309, 311 (1998). By analogy, the desire to protect the accused maternal grandfather's name is also not a compelling state interest. Thus, the order, being Judge OLDERJUDGE's primary reason for closing the session, was reversible error. "That order [closing the session,] a prior restraint on speech, "cannot properly be upheld against the father's constitutionally-based challenges." Id. at 705. The constitutional principles that govern our consideration of the challenged order are well established and are not significantly different under art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments than under the First Amendment to the Constitution of  the United States. See Krebiozen Research Found. v. Beacon Press, Inc., 334 Mass. 86, 96-97, cert. denied, 352 U.S. 848 (1956). An injunction that forbids speech activities is a classic example of a prior restraint. Alexander v. United States, 509 U.S. 544, ---- (1993). Cf. Commonwealth v.  Blanding, 3 Pick. 304, 313 (1826). Such a restraint presents a serious threat to rights of free speech. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976). Near v. Minnesota, 283 U.S. 697, 713-714 (1931). Any attempt to restrain speech must be justified by a compelling State interest to protect against a serious threat of harm. See Nebraska Press Ass'n v. Stuart, supra at 561, 570. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971); Wood v. Georgia, 370 U.S. 375, 384-385, 391-393  (1962). Any limitation on protected expression must be no greater than is necessary to protect the compelling interest that is asserted as a justification for the restraint. SeeOttaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 547-548 (1977); Commonwealth v. Dennis, 368 Mass. 92, 99 (1975). It is apparent that any order seeking to enjoin  speech must be based on detailed findings of fact that (a) identify a compelling interest that the restraint will serve and (b) demonstrate that no reasonable, less restrictive alternative to the order is available. Care and Protection of Edith, 421 Mass. at 706 ("Relief should be granted under G.L. c. 211, s 3, when (a) a violation of substantive rights has been shown and (b) the error cannot be remedied by pursuing the ordinary trial and appellate process").  "Any limitation on protected expression must be no greater than is necessary to protect the compelling interest that is asserted as a justification for the restraint. George W. Prescott Pub. Co. 428 Mass. at 311, quoting Care and Protection of Edith, supra. It follows, therefore, the court could or should have used the less restrictive alternative available to it: the judge could have prohibited the mentioning of the grandfather's name.  It is apparent that any order seeking to enjoin speech must be based on detailed findings of fact that (a) identify a compelling interest that the restraint will serve and (b) demonstrate that no reasonable, less restrictive alternative to the order is available." See also Oklahoma Publ. Co. v.  District Court, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977) (reversing court order enjoining media from publishing name or photograph of eleven year old boy accused of delinquency by reason of murder).  Prescott, at 311, cites omitted.  Thus, WIFE SMITH did not meet her burden of showing necessity. Globe, 379 Mass. at 865. This "`requirement of a showing of overriding necessity [is], in part, because of the great public interest in disclosure of all information relevant to misuse of authority and official wrongdoing. H.S. Gere, 400 Mass. at 332, citing George W. Prescott Publishing Co., 395 Mass. at 279-280.  Given, also, that "[p]ublicity prevents abuses of a single judge's power" [Globe, 379 Mass. at 855] and "[that] the pressure of public scrutiny may deter witness perjury [ ] and may engender confidence in court officials, [o]pen trials may also induce members of the public to come forward with new testimony or other evidence. Id.  Other benefits of publicity are more abstract. As the audience of the courts' struggle to do justice, the public learns how courts work and may suggest how courts can improve. At the same time, the public experiences the drama of justice being done. Like theater, the judicial drama teaches the audience not to make the participants' mistakes, it deters criminal misconduct and permits a catharsis a sense that wrongs have been righted. . . . Globe, 379 Mass. at 855-856, cites omitted. On the facts here and the case law, there being no lawful basis on the record for the order excluding the public from the courtroom, the judge committed an error of law when refusing to continue the hearings on the two motions with the public present. The three men should have been allowed to be witnesses to the proceeding. Globe, 407 Mass. at 805-806.   3. STATEMENT OF THE SPECIFIC RELIEF REQUESTED HUSBAND SMITH seeks not only the reversal of the order closing the two hearings specified by the trial judge but also a declaration that all proceedings in the SMITH divorce action in the Probate & Family Court shalll remain open to the public.   4. A COPY OF THE ORDER OF THE TRIAL COURT The order by Probate & Family Court is attached to the petition as part of the addendum. Respectfully submitted, DEFENDANT SMITH, By his attorney, 16 May 2001                       Barbara C. Johnson                                                   Barbara C. Johnson, Esq.                                                   6 Appletree Lane                                                   Andover, MA 01810-4102                                                   508-474-0833     CERTIFICATE OF SERVICE ADDENDUM 1. Order dated 26 April 2001 by Judge ZEE OLDERJUDGE 2. HUSBAND SMITH'S MOTION STRIKE WIFE SMITH'S OPINION AND  HEARSAY REBUTTAL TESTIMONY  3. OPPOSITION TO PLAINTIFF'S EMERGENCY MOTION TO TERMINATE  VISITATION  4. SMITH'S MOTION AND MEMORANDUM TO INCREASE SUPPORT <>5. OPPOSITION TO PLAINTIFF'S MOTION FOR MODIFICATION OF  SUPPORT ORDER