Survey of Media Access to Mass. Courts

The Judiciary/Media Committee of the Supreme Judicial Court is considering revisions to the Guidelines on the Public's Right of Access to Judicial Proceedings and Records. In order to evaluate whether the guidelines should be amended or expanded and what other initiatives the committee might wish to pursue, the committee is asking members of the news media to complete a survey on media access to the courts.

As a member of the Judiciary/Media Committee and in my capacity as executive director of the Massachusetts Newspaper Publishers Association, I am helping to disseminate the survey and compile its results. If you are a journalist who covers the Massachusetts courts, please take a moment to complete the survey and return it to me.

You can download the survey here, in Microsoft Word format: Survey of Media Access to Courts.

Scott Brown's Short-lived Bill for a Reporters' Shield

Although various groups have lobbied for a reporters' shield law in Massachusetts, the state remains without one. But in 2005, just a year after he was elected to the state Senate, U.S. Sen.-elect Scott Brown made an aborted attempt to change that.

As the Senate took up debate on the state budget on May 23, 2005, Brown  and former Sen. Brian P. Lees, then the Senate's Republican leader, proposed a reporters' shield law as a budget amendment. But by the end of the first day of budget debate, they had withdrawn the proposed law. No explanation was ever given for why they filed the bill so suddenly or why they withdrew it just as quickly.

Titled the "Free Flow of Information Act," the bill would have prevented the state from compelling a reporter to testify except in narrow circumstances. It would have absolutely prohibited the state from forcing reporters to disclose confidential sources.

Brown never refiled the bill, but he did sign on as a sponsor of a shield bill drafted by a coalition of media representatives and filed in 2007. That bill died in committee. Two Senate shield bills have been filed in the current session of the legislature, SB 1673 and SB 1574. Brown did not sign on as a cosponsor of either.

When last I counted, Massachusetts was one of 16 states without a shield law.

Implications of SJC's Open Meeting Ruling

Reporter Kendall Hatch has a piece in The Metrowest Daily News considering the long-term implications of the Supreme Judicial Court's recent ruling in the open meeting law case, District Attorney for the Northern District v. School Committee of Wayland, which I previously blogged about here. I am among the sources Hatch interviewed for his article.

Mass. High Court Affirms Fair Report Privilege

The Supreme Judicial Court today issued a major ruling for members of the news media, affirming a broad immunity from libel for journalists who report fairly and accurately on official government actions and statements. The opinion in Howell v. Enterprise dismisses a defamation suit brought by a former employee of the town of Abington against The Enterprise newspaper in Brockton after it reported that he had used town computers to access pornography.

In affirming the applicability of the fair report privilege, the opinion by Justice Robert J. Cordy said, "[I]t is important that the privilege be construed liberally and with an eye toward disposing of cases at an early stage of litigation," and that courts should take "an expansive but not unlimited view" of what qualifies as an official action covered by the privilege. Applying these principles, the SJC concluded that the actions at issue in this case qualified as official.

"[W]e conclude that the articles appearing in the Enterprise reported on official actions, proceedings, and statements. The May 11 article reported that Howell had been placed on administrative leave. This was official action. When the Enterprise published articles on the sewer commission hearing (July 20 article), Howell's termination after a sewer commission vote (August 3 article), and the board hearing (August 24 article, August 25 article, September 17 article, September 19 article), it reported on official actions and proceedings. The statements and actions reported plainly implicated official duties and powers, either in the context of the official hearings or in the exercise of official powers as a result of the evidence adduced at those hearings. The Enterprise's reliance on anonymous sources did not destroy the privilege because the sources described official action. Similarly, that some of the actions were not public is not problematic: the actions were 'governmental' and 'formal.'"

Having decided that the news reports covered official matters, the SJC next considered whether the reports were fair and accurate. In making this determination, Justice Cordy wrote, the 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. This is, for lack of a better formulation, best described as a fairness overlay to the fair and accurate inquiries: is the report sufficiently factually incorrect or sufficiently mischaracterized that the impression on the reader is so unfair to the plaintiff as to warrant placing it outside the privilege? We note this because our task in the present case involves a combination of errors of 'accuracy' and 'fairness.'"

The SJC goes on to conclude that the bulk of the reports met both prongs -- that they were both fair and substantially accurate. One statement in one article was inaccurate, the SJC found, but lacked the requisite element of malice that would be required to prove defamation against Howell as a public figure in his town.

In another notable aspect of today's opinion, the SJC reversed the Appeals Court and said that Howell could not sue for intentional infliction of emotional distress. The Appeals Court had said that he could sue for such damages, even if the news reports were true.

Justice Francis X. Spina dissented to one aspect of today's opinion, saying he would not apply the fair report privilege to a story that provided details of a closed-door town meeting. "The policy behind permitting a governmental body to consider the discipline of a public employee in executive session and to extend the secrecy of those proceedings until the process is concluded, or for other valid reasons, is good government. ... A newspaper that publishes such detail before the governmental body releases its records to the public cannot be said to be acting in its public supervision role."

SJC Rules in Key Open Meeting Case

The Massachusetts Supreme Judicial Court today issued its ruling in a key open meeting law case, District Attorney for the Northern District v. School Committee of Wayland. The SJC ruled that the School Committee violated the law when it met in a closed session to discuss the performance evaluation of Wayland's superintendent of schools and when it exchanged private e-mails regarding the evaluation in advance of the meeting.

In so ruling, the SJC sides with the position taken by the district attorney and by the Massachusetts Newspaper Publishers Association in an amicus brief which I co-authored together with Peter J. Caruso.

The ruling is significant for three reasons:

• It affirms that discussions of a government employee's "professional competence" must be conducted in public.

• It affirms that an exchange of e-mails among the members of a public body can constitute "deliberation" and therefore violate the open meeting law.

• It clarifies a seeming conflict between the open meeting law and the public records law. While the discussion of an employee's performance evaluation must take place in an open meeting, once the evaluation is reduced to a written evaluation document, that document need not be made public.

The School Committee had argued that the evaluation was a prelude to contract negotiations with the superintendent and therefore was exempt as a strategy session in preparation for negotiations. But the SJC said that there was no evidence that the committee discussed strategy.

This is an important ruling for affirming the right of the public to know how their local officials are performing in their jobs. The public has a right to know when a local official is performing well or performing poorly.

State Orders Release of Parking Scofflaws' Names

The Massachusetts Secretary of State's office has ruled that the public has a right to know the names, addresses and amounts owed of the top 10 parking scofflaws in the town of Watertown. In a Dec. 24 letter published by the Wicked Local Watertown Blog, state Supervisor of Public Records Alan N. Cote ordered the town to release the information, which the Watertown TAB had requested last May.

The town had refused to comply with the newspaper's public records request, citing both the federal Drivers Privacy Protection Act and the fact that the records are maintained for the town by an outside contractor. Cote ruled that the federal law does not apply to the records in question and that the town's use of an outside contractor does not relieve it of its obligation to comply with the public records law.

[Hat tip to Media Nation.]

SJC Gives Judges More Leeway to Explain Themselves

The Massachusetts Supreme Judicial Court announced a new judicial conduct rule today that slightly eases restrictions on state court judges' ability to explain their decisions to the public. Although the SJC did not adopt the more liberal rule changes recommended by an ad hoc study committee it appointed in 2008, it nevertheless clarified that judges may issue supplemental memoranda to explain their decisions without violating judicial ethics.

The changes to Section 3B(9) of the Code of Judicial Conduct, which take effect Jan. 1, 2010,  also allow judges to make public comment about issues relating to the judge's conduct, as opposed to substantive legal rulings, and to discuss pending appellate cases in educational settings.

Official commentary to the revised rule says that "restrictions on judicial speech are essential to the maintenance of the independence, impartiality, and integrity of the judiciary." A new appendix to the rule provides guidance for judges on when and under what circumstances they might issue explanatory memoranda.

"We encourage judges to explain the basis for their decisions on the record at the time the decisions are made, including decisions concerning bail and sentencing," the appendix says. When a judge decides at some point after issuing a ruling to write an explanatory memorandum, the appendix says, the judge should carefully consider four factors:

• The importance of avoiding or alleviating the parties' or the public's misunderstanding or confusion by supplementing the record to reflect in more detail the reasons in support of the judge’s earlier decision.
• The amount of time that has elapsed since the order was issued and the extent to which the judge's reasons for the decision remain fresh in his or her mind.
• The risk that an explanatory memorandum may unfairly affect the rights of a party or appellate review of the underlying order.
• The danger that the issuance of an explanatory memorandum would suggest that judicial decisions are influenced by public opinion or criticism voiced by third parties, and would not promote confidence in the courts and in the independence and impartiality of judges.

In no case should a judge issue an explanatory memorandum "solely to respond to public criticism of the decision." Nor should a judge issue such a memorandum "if the court no longer has the authority to alter or amend the underlying order."

Following are the texts of the new and old rules:

New Section 3B(9) (effective Jan. 1, 2010):

(9) Except as otherwise provided in this section, a judge shall abstain from public comment about a pending or impending proceeding in any Massachusetts court, and shall require similar abstention on the part of court personnel.

(a) This section does not apply to any oral or written statement made by a judge in the course of his or her adjudicative duties.

(b) A judge is permitted to explain for public information the procedures of the court, general legal principles, or what may be learned from the public record in a case.

(c) A judge is permitted to speak, write, or teach about cases and issues pending in appellate courts when such comments are made in legal education programs and materials, scholarly presentations and related materials, or learned treatises, academic journals and bar publications. This educational exemption does not apply, however, to comments or discussions that might interfere with a fair hearing of the case.

(d) A judge is permitted to make public comment concerning his or her conduct provided that such comments do not reasonably call into question the judge's impartiality and do not address the merits of any pending or impending judicial decision.

(e) This section does not apply to proceedings in which a judge is a litigant in a personal capacity.

Former Section 3B(9):

(9) Except as otherwise provided in this section, a judge shall abstain from public comment about a pending or impending Massachusetts proceeding in any court, and shall require similar abstention on the part of court personnel.

(a) A judge is permitted to make public statements in the course of his or her official duties or to explain for public information the procedures of the court, general legal principles, or what may be learned from the public record in a case.

(b) This Section does not prohibit judges from discussing, in legal education programs and materials, cases and issues pending in appellate courts. This education exemption does not apply, however, to comments or discussions that might interfere with a fair hearing of the case.

(c) This Section does not apply to proceedings in which the judge is a litigant in a personal capacity.