#59,
Drano Series
Complaint in the Nature of a Petition for Writ of Certiorari
(about closed hearings),
Pursuant to M.G.L. c. 211, sec. 3,
and to Invoke the General Superintendence of the Court*
and
Single-Justice Spina's Decision
on Both Complaints
See related pleadings Drano Series 41, Decision on Closed Hearing and Removal of Children (Drano Series #35 and #36)
Drano Series #47, Interloctory Appeal Pursuant to M.G.L. c. 231, sec. 118
(on GAL fees)Drano Series #48, Supplemental Brief to the Petition in #47 (on GAL fees),
Drano Series #49, Second Supplemental Brief to the Petition in #47 (on GAL fees),
Complaint in the Nature of a Petition for a Writ of Mandamus, Pursuant to M.G.L. c. 211, sec. 3 (about the removal of the children) Drano Series #59 [this pleading], the Complaint in the Nature of a Petition for a Writ of Certiorari, Pursuant to M.G.L. c. 211, sec. 3 (about the closed hearings) and
Drano Series 60, the Consolidated SJC Rule 2:21 Appeal of the Denials of Relief about the closed hearings and the removal of the children
Drano Series #61, the Decision on the Consolidated Appeals
COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURTSUFFOLK COUNTY, ss. CIVIL ACTION NO. ______
_____________________________________
JOHN SMITH
Petitioner
v.POCAHONTAS SMITH and
Suffolk County Probate & Family Court
Respondents
_____________________________________
COMPLAINT IN THE NATURE OF A PETITION FOR
A WRIT OF CERTIORARI
AND TO INVOKE THE GENERAL SUPERINTENDENCE OF THE COURTPRELIMINARY STATEMENT
In the single-justice session in the Appeals Court, your Petitioner sought 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 shall remain open to the public.
The single justice wrote, for all intents and purposes, that the Probate Judge was aware of the importance that trials be public, but that since the hearing was over, there was no relief that the single justice could grant. [Addendum at 3]. Where the issue of public hearings is, SMITH contends, of great importance, review is appropriate. Hashimi v. Kalil, 388 Mass. 607, 609 (1983) (cited omitted).
Petitioner contends that while moot for that hearing, the issue is capable of repetition and evading review. "An issue apt to evade review is one which tends to arise only in circumstances that create a substantial likelihood of mootness prior to completion of the appellate process." First Natl. Bank of Boston v. Haufler, 377 Mass. 209 (1979). This court may exercise its discretion in favor of responding to the important moot issue which is "capable of repetition, yet evading review." Karchmar v. Worcester, 364 Mass. 124, 136, 301 N.E.2d 570 (1973), quoting from Southern Pac. Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515 (1911). Com. v. Yameen, 401 Mass. 331, 333 (1987) (appellate review exercised when recurring question would again be moot).
The mootness doctrine applies also to appellate review of lower court decisions. International Marathons, Inc. v. Attorney General 392 Mass. 376, 380 (1984).
JURISDICTION
1. Jurisdiction is conferred upon this Court by M.G.L. c. 211, sec. 3, which provides a party the right to seek review under the court's superintendency powers of interlocutory matters where no posttrial relief would put the appealing party "in statu quo." Planned Parenthood League of Massachusetts, Inc. et al v. Operation Rescue et al, 406 Mass. 701 (1990), citing Elder v. Commonwealth, 385 Mass. 128, 132 (1982).
PARTIES
2. Your petitioner, JOHN SMITH ["SMITH"], is the defendant POCAHONTAS SMITH v. JOHN SMITH, entered as Docket Number 99D-2583-DV1 in the Suffolk County Division of the Probate & Family Court. He is the biological father of TWIN2 and TWIN1, born 0 oooooooo 1999.
3. Your respondent, POCAHONTAS SMITH ["POCAHONTAS"], is the plaintiff in POCAHONTAS SMITH v. JOHN SMITH. She is a natural person, a Harvard-Law-School-educated attorney, a member of the Massachusetts and XXXX Bars, resides at 00 PRETTY STREET, XXXXXX, State of XXXX and is the mother of the above-mentioned twin boys.
4. Respondent Suffolk County Probate & Family Court is a division of a department of the trial court of the Commmonwealth of Massachusetts and includes Justice Nancy M. Gould, who was at all relevant times accountable to the SMITHs and their children.1
1Com. v. Ellis, 429 Mass. 362, 371 (1999): "Article 5 [in Part the First, the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts], . . . provides that officers [including judges] of government `are at all times accountable to [the people].'"
FACTS REGARDING THE DAY THE SESSION WAS CLOSED: 4/26/01On 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, Nancy M. Gould, 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 was a freelance writer.
Refusing to continue the session with them present in the courtroom, the judge called a recess in order to write or cause to be written a memorandum and order, returned to the session with the order, and told JOHN 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 maternal grandfather would cause serious harm to the plaintiff and to the parties' minor children. By all accounts, the maternal grandfather appears to be a pillar of the community in the XXXXXX, XXXX area where the plaintiff and the minor children reside. The maternal grandfather is a graduate of the XXXXXXX 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 maternal grandfather, the plaintiff and the minor children. Given that the evidence did not support a finding that the maternal grandfather whom one of the SMITH's twin sons had accused of sodomizing him was a "pillar of the community,"2 as the Probate judge concluded, the "explosive allegations" excuse for closing the courtroom is but a smokescreen to conceal the repeated violations of JOHN SMITH's due-process rights prior to 26 April 2001 and others likely to occur that day.32Entire transcript of tape is in Appendix at 19B-19D.Those transgressions were the reason, SMITH contends, the three men wanted to be onlookers. SMITH's counsel believed that with eyes watching, her client's rights might not be as readily trampled.SMITH: Let me ask you this question. Has anybody ever hurt you?
TWIN1: Yes.
SMITH: Who hurt you?
TWIN1: Ahhh . . . Pop [maternal grandfather].
SMITH: Is this X or Pop from Pop and Y?
TWIN1: Pop from Pop and Y.
SMITH: And now, what did Pop do to you to hurt you?
TWIN1: Um ... Jumped up and down on me and put his penis in
my poo-poo hole.
SMITH: Say that again.
TWIN1: He jumped up and down on me and putted his penis in my
poo-poo hole. My mother said to keep it a secret.
SMITH: Are you sure he did that to you?
TWIN1: Yes.
3 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), the tapes are only now being transcribed. Also because of the tape problem, SMITH arranged for a private court reporter to be present on 24 and 26 April 2001.
BACKGROUND OF PROCEEDINGS AND HEARINGS PRIOR TO 4/26/01
On Saturday, 18 November 2000, one of the twins, TWIN1, had bloody stools. SMITH, who had been primary caregiver to the boys before they were removed to XXXX, had never seen the child with this condition. His prior counsel took no action regarding the event. SMITH terminated his services the next month.
On or around 16 February 2001, SMITH's successor and present counsel filed a MOTION FOR MODIFICATION OF TEMPORARY CUSTODY ORDER. [Appendix at 11]. The motion court has not yet either heard evidence on this motion or acted upon it.
On or around 20 February 2001, SMITH's counsel filed a MOTION AND MEMORANDUM TO VACATE ORDERS ALLOWING REMOVAL TO XXXX. [Appendix at 15]. The motion court has not yet either heard evidence on this motion or acted upon it.
On 10 March 2001, SMITH taped the children. On the tape, (a) the SMITH twins said that they had witnessed their mother having sexual intercourse with a boyfriend and (b) one of the twins described how he was sodomized by his maternal grandfather.
On or around 16 March 2001, SMITH's counsel filed an EMERGENCY MOTION TO SUPPLEMENT FACTS FOR EXISTING MOTION FOR MODIFICATION OF TEMPORARY CUSTODY ORDER and MARKS THIS MOTION FOR HEARING ON 3/19/01. [Appendix at 19A]. The motion court has not yet either heard evidence on this motion or acted upon it.
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, the emergency motion brought by the mother, POCAHONTAS, which was based on the same set of hearsay facts as that the G.A.L. used, was brought before Judge Ordonez.4 The court swore in witnesses and allowed them to speak standing before the bench but denied SMITH the opportunity to cross-examine his accusers.5
4A woman who had been scorned and/or rejected by SMITH told POCAHONTAS's counsel, POCAHONTAS, and the G.A.L. that SMITH had coached the children and told them to lie. SMITH was not allowed to cross-examine that woman in Judge Ordonez' court. That woman had no personal knowledge of such acts by SMITH. Neither did POCAHONTAS, but POCAHONTAS, too, was allowed to swear to the same facts. The totem-pole hearsay was acceptable in Judge Ordonez' court. SMITH was again not allowed to cross-examine. It was one of the bases used by Judge Ordonez to suspend SMITH's visitation.SMITH also objected to the court considering the G.A.L. report when determining the motion without giving him an opportunity to cross-examine the G.A.L. and rebut any adverse materials. Judge Ordonez then ordered the G.A.L. to appear for hearing on 2 April, the next scheduled hearing date in front of Judge Gould. Next, notwithstanding SMITH's lack of opportunity to cross-examine the sworn witnesses, and on the grounds that he had coached and asked the twins to lie on the tape, Judge Ordonez 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."5 During that proceeding, POCAHONTAS stated that one of her sisters alleged she had been sexually abused as a youngster. POCAHONTAS added that it could have been by any one of 100 people. [Appendix at 42]. When defendant's father testified on 2 April 2001, he controverted POCAHONTAS's sworn statement to Judge Ordonez, when he admitted to a 10-year estranged relationship with his second daughter and claimed that the allegation was from "F.M.S.," i.e., the product of a false memory. [See Appendix at 47 and 47A (to come)].
SMITH's interlocutory appeal on Judge Ordonez' order has been denied.
On 2 April 2001, the G.A.L. testified.6 Then both POCAHONTAS's second step-grandfather and her father, OLD SMOOTHIE, testified. The second step-grandfather testified how OLD SMOOTHIE loved children, and OLD SMOOTHIE testified that he did not sodomize one of the twins and that he did not have incest with his second daughter (one-year older than POCAHONTAS) . . . and that [that daughter]'s accusation was as a result of "F.M.S.," to wit, a product of a false memory.
6 Much time was wasted because (1) the G.A.L. had ignored SMITH's subpoena to deposition in January, (2) the court had not and still has not acted on SMITH's motion to compel her to deposition, and (3) the court did not enforce SMITH's second subpoena served on the G.A.L. to produce copies of her file at the April 2d hearing. In fact, since then, the discovery master appointed by the court recommended the court have the G.A.L. turn over copies of her file in the case to SMITH's counsel, but the court has also not acted on the now-aged recommendation.Upon cross-examination, OLD SMOOTHIE, the TOP IVY LEAGUE COLLEGE and TOP-Business-School graduate, admitted that he retired prematurely in 1986 from his family-owned business and has since taken up a vocation involving children, whom he has always loved. At that vocation, he said, he volunteers at the day-care centers of churches, frequents recreation centers and playgrounds, assists a public-school kindergarten teacher. He further testified that within the last year he went to therapy because he had an attention-deficit disorder. [Appendix at 47A (to come).] One wonders why a 67-year-old retired multi-multi-millionaire is concerned about having an attention-deficit disorder.On 3 April 2001, the G.A.L. retook the stand and admitted on cross-examination that she never investigated the situation into which she was recommending the children be sent in XXXX.
POCAHONTAS then rested.
Before SMITH took the stand, the judge limited him to 35 minutes (over SMITH's objection). [Appendix at 50A (to come) and 51]. Given that there were two active motions pending on the hearing and four people had testified adversely to his interests, 35 minutes was insufficient. Within the 35 minutes, SMITH entered 22 exhibits into evidence, but barely any time was left for testimony.
Judge Gould then stated that she had not heard evidence to terminate visitation. [Appendix at 53].
Remarkably, the judge then allowed POCAHONTAS to reopen her case [Appendix at 53 and 61]. POCAHONTAS testified on 24 and 26 April 2001. Then, as on April 3d, before SMITH began cross-examining POCAHONTAS, SMITH was again improperly time-limited to 15 minutes in which to cross-examine her [Appendix at 62], and was never allowed to retake the stand either to put on his case or to defend against POCAHONTAS's.
Making the injury even more egregious is the fact that POCAHONTAS had not complied with a notice of deposition in February and the court refused to act on SMITH's motion to compel her to deposition. Once the discovery master got into the act, POCAHONTAS made herself available for deposition on 23 April 2001, but a day before the motions hearing was resumed and the deposition transcript would be needed for impeachment, forcing SMITH to pay for an expedited but "rough draft" transcript.7
7 A "rough draft" transcript is one with the certified reporter's stenographic abbreviations still in it.Neither hearing -- on the 209A or the so-called emergency motion to terminate visitation -- has concluded. The next scheduled date for the hearings is 17 August 2001. Until then SMITH's visitation has been limited to two hours supervised every other weekend in XXXX. The "Torture of the Messenger" continues.TRANSGRESSIONS BY THE COURT
Such reversible errors have included, but are not limited to, the following:
1. the violation of the Massachusetts Child Custody Jurisdiction Act by the court's allowance of the removal, without SMITH's consent and without an evidentiary hearing, of the SMITH children to XXXX without any investigation as to the environment to which the children would be taken (while SMITH's prior counsel was attorney of record) [testimony of Guardian ad litem BOB, Appendix at 43]; 2. the oral order constituting prior-restraint on SMITH's current counsel which prohibits her discussing the case with others or sharing it with the public [Appendix at 40];
3. the failure to allot time for a complete hearing in a timely manner after the issuance of a temporary 209A order on 4 January 2001: the temporary hearing will not be heard again until 17 August 2001 -- causing SMITH to wait 8-1/2 months before he will be heard -- if ever -- in his own defense [Appendix at 66];8
8 The wife's counsel was allowed to bounce the ongoing 209A hearing requested by SMITH so as to have a hearing requested by POCAHONTAS on her emergency motion to terminate visitation; i.e., hearing #1 was suspended for hearing #2. Then after almost another two months' continuance of the hearing on the two motions, the judge allowed a further interruption by wife's counsel for several other motions. That SMITH be allowed to argue or present evidence was considered be the motion court to be almost a frivolous request. 4. the order to limit SMITH's testimony before he even took the stand in his defense on either the 209A or visitation hearing . . . 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;9
9 "[L]imits [] should not be such that a party is prevented from presenting its entire case to the fact finder." Clark v. Clark, 47 Mass.App.Ct. 737 (1999) 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).
5. after improperly limiting SMITH's testimony, and after telling POCAHONTAS's counsel that the court had not heard any evidence to suspend the visitation, the allowing of POCAHONTAS to take the stand again.10,11
10 POCAHONTAS was the first witness in the 209A hearing, which began on 17 January 2001, but had not -- until 3 April 2001 -- taken the stand for the visitation-termination hearing. 11 The basis of allowing POCAHONTAS to retake the stand was unclear, i.e., whether the judge was allowing POCAHONTAS to re-open or to be a rebuttal witness;
6. the judge's failure even to err on the side of caution and immediately pull the children out from under OLD SMOOTHIE’s roof; (a) to allow POCAHONTAS 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 POCAHONTAS 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 POCAHONTAS 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 maternal grandfather of wrongdoing, was clearly erroneous;12
12For legal arguments, see JOHN SMITH'S MOTION TO STRIKE POCAHONTAS SMITH'S OPINION AND HEARSAY REBUTTAL TESTIMONY. [Appendix at 26]. This motion has not yet been acted upon. Neither has SMITH had an opportunity to put on his case and argue his OPPOSITION TO PLAINTIFF'S EMERGENCY MOTION TO TERMINATE VISITATION. [Appendix at 20].
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 XXXXXX, XXXX 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-discrimination against the male party: had the wife's father been the husband's father, the court would have immediately pulled the children out from under the father if he had been living under his father's roof;
9. the judicial order that SMITH sign on April 26th a stipulation for supervised visits if he wanted visits to take place at all [Appendix at 67]; and 13,14
13 "`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). 14 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, SMITH 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.
10. apparent retaliation on April 26 for having the public prepared to watch and listen, by allowing POCAHONTAS's motion to stop spousal support without allowing either SMITH's request for an evidentiary hearing or even argument on the motion.15
The rules of procedure and evidence and common law have been shunted aside throughout the proceedings. Only public scrutiny can stop the charade of justice occurring in courtroom 5 on the 4th floor of Suffolk Probate & Family Court.
15 For legal arguments, see JOHN SMITH'S MOTION AND MEMORANDUM TO INCREASE SUPPORT and OPPOSITION TO PLAINTIFF'S MOTION FOR MODIFICATION OF SUPPORT ORDER. [Appendix at 33]. SMITH was not allowed to argue or give evidence on either motion prior to Judge Gould surprising him and his counsel a week later by a written order stating that his support would stop by the end of May. (Because of his five years as house-husband and primary caregiver to the twins, he needs to become current in his profession and to get ASE re-certification, making rehabilitative alimony appropriate if the children are not returned to his custody, making the cessation of alimony without due process and without equal protection unlawful.)The bogus reason was that he had been given the exclusive use and possession of the couple's property in Boston. 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 as SMITH's counsel requested. See SMITH's OPPOSITION TO PLAINTIFF'S MOTION FOR MODIFICATION OF SUPPORT ORDER [Appendix at 24] and DEFENDANT'S MOTION AND MEMORANDUM TO INCREASE SUPPORT [Appendix at 33].
ARGUMENT
Although, as the single justice (Dreben, J.) emphasized, the "Probate Judge is well aware . . . of the importance that trials be public," and the Probate judge properly called the allegations "explosive," the Probate judge appears to be unaware of the need not only for due process in her courtroom but also for caution regarding the children's welfare. The former implies a lack of respect for the law. The latter, an unwillingness to listen to both sides fairly, to wit, without bias against the male, as evidenced by her foreclosing SMITH from presenting his evidence, regarding the care of the children, the bloody stool, the taping, or his observations of the dysfunctionality of his wife's biological family. And most egregiously, the Probate judge failed to address the issue of potential future harm to the children.
It is these issues, these transgressions, which brought fathers from the public to observe the the proceedings in Judge Gould's court. Which is more important, protecting a man who is in all likelihood not a pillar of goodness in the community, as the judge concluded on very slim evidence, or having the public scrutinize a court flaunting the rules of evidence and civil procedure and fleeing from its judicial obligation to protect the children from harm?
The public, particularly the males of the public, are interested in protecting the children and they see, all too often, the children left with the mother simply because she is a woman. This the Probate court did not want the men to witness.
Clearly, both judges, the Probate and the Appeals Court judges, understood the desirability of public scrutiny. SMITH's fear is, however, that without a blanket ruling commanding that Judge Gould's courtroom be kept open during the proceedings and hearings in his case, Judge Gould will always find a reason to close it.
"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 hearings16 have not comported with traditional notions of how hearings are conducted.
16 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 XXXX during the past year had claimed she feared her husband because he had accessed the marital home in Boston where her step-brother was. That imaginary fear was, to boot, unreasonable.
And here, too, there was an explosive sexual abuse allegation. And that, too, is insufficient to close a courtroom. A compelling state interest is needed. There was none here. Given that SMITH's 6-year-old son, the victim who was not believed, 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 Gould'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. See Ottaway 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, POCAHONTAS 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.
PRAYERS
WHEREFORE, your Petitioner JOHN 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 and hearings in the SMITH divorce action in the Probate & Family Court shall remain open to the public.
Respectfully submitted,
PLAINTIFF,
By his attorney,Barbara C. Johnson
13 June 2001 Barbara C. Johnson, Esq.
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
See Drano Series #58 for Writ of Mandamus Click
drano-footer
Barbara C. Johnson, Attorney at Law
6 Appletree Lane, Andover, Massachusetts 01810-4102 Phone 978-474-0833
