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New England Internet Cafe, L.L.C. v. Clerk of Superior Court for Criminal Bus. in Suffolk Cnty., 462 Mass. 76 (2012)

New England Internet Cafe, L.L.C. v. Clerk of Superior Court for Criminal Bus. in Suffolk Cnty., 462 Mass. 76 (2012)

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The plaintiffs, New England Internet Café, LLC; Ronald Sevigny; Leo
Pelletier; Linda Pelletier; and Donald Greenidge (“Plaintiffs”) sought access
to search warrant materials by filing a motion with the criminal session
judge who had authorized the warrants. On May 13, 2011, the judge dismissed the motion and instructed the plaintiffs to file a civil action in the Superior Court. On May 24, 2011, the plaintiffs filed a civil complaint and an emergency motion to modify or terminate the impoundment order on the warrant materials. On June 23, 2011, a civil session judge granted the
plaintiffs’ motion. The clerk of the Superior Court for Criminal Business and the Attorney General (“Defendants”) sought review of this order in the Appeals Court and the Supreme Judicial Court (“SJC”) transferred the appeal on its own motion.
The plaintiffs, New England Internet Café, LLC; Ronald Sevigny; Leo
Pelletier; Linda Pelletier; and Donald Greenidge (“Plaintiffs”) sought access
to search warrant materials by filing a motion with the criminal session
judge who had authorized the warrants. On May 13, 2011, the judge dismissed the motion and instructed the plaintiffs to file a civil action in the Superior Court. On May 24, 2011, the plaintiffs filed a civil complaint and an emergency motion to modify or terminate the impoundment order on the warrant materials. On June 23, 2011, a civil session judge granted the
plaintiffs’ motion. The clerk of the Superior Court for Criminal Business and the Attorney General (“Defendants”) sought review of this order in the Appeals Court and the Supreme Judicial Court (“SJC”) transferred the appeal on its own motion.

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Categories:Business/Law
Published by: New England Law Review on Jan 22, 2013
Copyright:Attribution Non-commercial

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N
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New England Internet Café, L.L.C. v.Clerk of Superior Court for Criminal Bus.in Suffolk Cnty.,462 Mass. 76 (2012)
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ONTRIBUTING
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I. Procedural History
The plaintiffs, New England Internet Café, LLC; Ronald Sevigny; LeoPelletier; Linda Pelletier; and Donald Greenidge (“Plaintiffs”) sought accessto search warrant materials by filing a motion with the criminal session judge who had authorized the warrants. On May 13, 2011, the judgedismissed the motion and instructed the plaintiffs to file a civil action in theSuperior Court. On May 24, 2011, the plaintiffs filed a civil complaint andan emergency motion to modify or terminate the impoundment order onthe warrant materials. On June 23, 2011, a civil session judge granted theplaintiffs’ motion. The clerk of the Superior Court for Criminal Businessand the Attorney General (“Defendants”) sought review of this order in theAppeals Court and the Supreme Judicial Court (“SJC”) transferred theappeal on its own motion.
1
 
II. Facts
As part of the Attorney General’s efforts to stop online gambling inInternet cafés, police obtained search warrants for the plaintiffs’ propertiesand bank accounts. In addition, they received permission to seal andimpound the warrants and their accompanying application and affidavits.
2
 After the search warrants were executed and no indictments wereissued, the plaintiffs filed a civil action and a motion to remove theimpoundment order on the warrant materials. The judge granted the
1
New England Internet Café, L.L.C. v. Clerk of the Superior Court for Criminal Bus. inSuffolk Cnty., 462 Mass. 76, 77-78 (2012).
2
Id. at 79.
 
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New Eng. L. Rev. Mass. Crim. Dig.
v. 47 | 13
plaintiffs’ motion to unseal the warrant documents and the defendantssought review by the Appeals Court. The SJC transferred the appeal on itsown motion.
III. Issues Presented
1. Did the criminal session judge’s acknowledgement of the existenceof “good cause” for maintaining the impoundment order in the May 13,2011 decision to dismiss prohibit the plaintiffs from being able to renewtheir challenge to the impoundment order?
3
 2. Was the June 23, 2011 order by the civil session judge procedurallydeficient because it was a preliminary injunction that granted the ultimaterelief sought without providing the defendants with adequate notice of oropportunity to respond?
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 3. As targets of the search warrant, do the plaintiffs have a FourthAmendment right to access the search warrant materials beforeindictment?
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IV. Holdings and Reasoning
1. No. The Court concluded that a plain reading of the May 13, 2011decision clearly shows the judge took no action on the merits of theplaintiffs’ motion. In the decision the judge states that “no action” wastaken and that the motion is dismissed “without prejudice.”
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Bothstatements support that the plaintiffs were free to re-file without anyconstraint.Additionally, the Court held that the Commonwealth’s assertion thatthe plaintiffs were required to show a change in circumstance or a passageof time before resubmission of the motion was incorrect. The onlyprocedural rule imposed on the plaintiffs was to present a non-frivolousclaim. The conclusion that the plaintiffs’ claims were not frivolous issupported by the May 13, 2011 decision that describes the claims as“persuasive” and having “important litigation of constitutionaldimension.”
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Furthermore, the judge—after hearing oral arguments andreviewing each party’s briefs—found sufficient support to grant theemergency motion to modify the impoundment in the June 23, 2011decision.
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 2. No. The decision to impound documents is the exception to the
3
Id. at 84.
4
Id. at 85.
5
Id. at 88.
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New England Internet Café, L.L.C., 462 Mass. at 84.
7
Id. at 85.
8
See Id. at 84-85.
 
2013
New England Internet Café v. Clerk of Superior Court
15
general rule of publicity. When considering a motion to modify orterminate impoundment, courts must consider the interests of each partyunder the specific facts presented. The review process is flexible and allows judges to create appropriate remedies—even if they grant the ultimaterelief sought—under the circumstances.Guided by the malleable nature of impoundment proceedings theCourt concluded the judge’s treatment of the plaintiffs’ emergency motionwas appropriate. The issue of impoundment had been fully briefed andargued only a few weeks earlier when the defendants sought the originalimpoundment order. Thus, the Court did not require extensive notice.Additionally, after hearing oral arguments the judge allowed thedefendants to provide additional information to support their need forimpoundment and stated that only after reviewing everything would the judge issue a decision. Finally, the judge’s removal of the impoundmentorder had limitations. The judge only unsealed the warrant affidavits andallowed the defendants to submit proposed redactions to them.
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 3. No. The plaintiffs asserted that the “good cause” standard isinadequate to protect the interests of the target of a search. Thus, theplaintiffs urged the Court to recognize that the Fourth Amendment’sprotection against “unreasonable intrusion” and its requirement ofprobable cause creates a “postexecution, preindictment right to challenge both the reasonableness of the search and the degree to which the warrantwas supported by probable cause.”
10
Further, the plaintiff contended thatto give meaning to this right, a person must be able to inspect and copy theaffidavit the warrant is based on.The Court disagreed for two reasons. First, while the plaintiff wascorrect that the “good cause” standard was created as a way to ensure thatmedia outlets had access to impounded court materials, this did not meanthat it is
 per se
insufficient to protect the rights of those subject to thesearch. There is a presumptive right of all—not only members of themedia—to access of court documents. “It is through this lens that judgesconsider all impoundment matters.”
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 Second, like the Fourth Amendment, the right of publicity is notabsolute. Courts must balance the rights of the parties and the relevantfacts when determining whether to grant (or modify or terminate) animpoundment order. The “good cause” balancing test essentially uses thesame factors found in a Fourth Amendment analysis. The plaintiff arguedthat in some situations the public’s interest in access to court documentsconflicts with, and must be balanced against, a criminal defendant’sinterest. While the Court agreed with this assertion, it holds that the “good
9
Id. at 85, 87.
10
Id. at 88.
11
Id. at 90.

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