'Eagle-Tribune' Spearheading Open Courts Battle

By: Miki Johnson In the ongoing battle to make more government information available to the press and public, The Eagle-Tribune in Lawrence, Mass., is working to overturn a 1975 judicial standard closing pre-complaint court hearings to the public.

The Eagle-Tribune, represented by Caruso & Caruso LLP, filed a petition in early November with the state's Supreme Judicial Court challenging a clerk-magistrate's refusal to open a pending case involving a stabbing outside a local nightclub. Massachusetts Attorney General Tom Reilly was expected to respond Thursday, after which the SJC will decide whether to hear the case in front of the full bench, probably in early January.

The Eagle-Tribune carried a column Dec. 11 by Editor in Chief William B. Ketter explaining the proceedings and outlining the paper's argument for opening this case specifically and, more generally, all such "probably cause hearings" in Massachusetts.

"My view of the press is we are an agent of the public," Ketter explained. "They are counting on us as their surrogate to represent them."

These preliminary hearings are conducted by the district court clerk-magistrate to determine if sufficient evidence exists to issue criminal charges, and under the 1975 standard they are presumptively closed, meaning the burden to open them lies with the public not the courts. This is essentially the opposite of precedents set in several cases since 1975, such as Press-Enterprise Co. vs. Superior Court, that have placed the burden of proof on the courts and established almost every kind of court proceeding as presumptively open.

"We just want the courts to be open to the public as the founding fathers intended and as the Constitution intended," Ketter said. "It's an opportunity for the public to have another closed aspect of government open." He added that family members, not just press, are excluded from the courts. The rules have stood for so long, few people challenge them anymore, Ketter said, but their response to the paper's initiative has been positive.

This is not the first time the Eagle-Tribune has clashed with the state court system over its closed-door policy. The paper first challenged the standard in 2003 when a clerk-magistrate closed proceedings to determine if reciprocal claims would be brought against a Yankees pitcher and a groundskeeper involved in a bullpen brawl. The Eagle-Tribune ended up suing the clerk, chief justice and head of courts, or Attorney General, who settled the case by opening the court proceedings but failed to establish a precedent of openness. The paper later got two other cases opened to the public by similar means before being stopped by the most recent clerk-magistrate.

"That's when we said, 'this is our test case,'" Ketter said. "I think we've got a pretty good shot."

So does Peter Caruso Sr., who will probably argue the case before the Supreme Judicial Court, and his son Peter, who wrote the original brief. The elder Caruso worked as the Eagle-Tribune's advertising manager before becoming a lawyer 30 years ago, and he has represented the paper ever since.

"The benefit of representing a company like the Eagle-Tribune is they have a publisher ? that allows you to pursue such cases," said the younger Caruso, who pointed out many newspapers would have recoiled from such a case. "It's important because it benefits everyone, it helps the press in general."

Both Ketter and the Carusos hope more press organizations will step forward to support this important case. Massachusetts is the only state where proceedings are presumptively closed and a ruling changing the standard would potentially apply to thousands of cases daily.

"This is the state where this great American experiment in democracy began," Ketter recalled. "This is the state where openness in government was one of the very reasons we created the Republic and was part of the early battle for freedom of expression."