COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss SUPREME JUDICIAL COURT

FOR SUFFOLK COUNTY
No. SJ-2024-0018
Cambridge District Court

TRUSTEES OF BOSTON UNIVERSITY AND

BOSTON GLOBE MEDIA PARTNERSHIP LLC

v.

CLERK-MAGISTRATE OF THE CAMBRIDGE DISTRICT COURT

JOHN DOE NOS. 1 THROUGH 13 MEMORANDUM OF LAW

IN SUPPORT OF THEIR REQUEST FOR RELIEF

I. Introduction

Intervenor Petitioners are 13 John Doe recipients of Notices to Appear at Clerk

Magistrate hearings in Cambridge District Court at which it will be determined whether probable

cause exists to support a charge that each has engaged in the misdemeanor crime of Sex for a

Fee, in violation of G.L.c.272 § 53A. As the Court is aware, if such a charge is issued after a

hearing, both the matter and the defendant’s identity would then presumptively become public.

None of the Intervenor Petitioners have been charged with any crime, none have been

permitted any opportunity to be heard in court to contest the matter noticed, none are the subject

of any finding that there exists probable cause to believe that they have committed a crime, and

none have had any opportunity to be heard on any issue related to their matter, whether

substantive or procedural, including the issue of whether their show cause hearing should be

public.

1 RECEIVED
1/22/2024 12:44 PM
MAURA S. DOYLE, CLERK
SUPREME JUDICIAL COURT
FOR THE COUNTY OF SUFFOLK
 Despite these facts, on December 21, 2023 the Clerk-Magistrate of the Cambridge

District Court (“the Clerk-Magistrate”) made the extraordinary finding that there exists a

“legitimate public interest” which “outweighs the individuals’ privacy rights,” such that it is

lawful and appropriate for the Clerk-Magistrate to take the rare step of opening up to the public

and the media each and every one of 28 separate show cause hearings noticed. A true and

accurate copy of the Clerk-Magistrate’s decision is attached hereto at Tab A. This means, of

course, that a notice recipient against whom no charge issues will nevertheless have their identity

made public.

The Clerk-Magistrate’s decision, on its face, is flawed and must be vacated for several

reasons. First, the Clerk-Magistrate made her decision without any notice to or participation of

the notice recipients. None of the Intervenor Petitioners (or any of the purported 28 people who

will receive notices to appear) had any opportunity to participate in whatever proceedings the

Clerk-Magistrate conducted prior to making her decision. By definition, this means that no party

was present who could advocate for any of the notice recipients’ “individual privacy interests” or

had any knowledge about what those particular interests might include as to each individual.

Notably, while the Clerk-Magistrate acknowledges in her decision that she must consider each

notice recipients’ “individual privacy interests” (emphasis supplied), the Clerk-Magistrate made

no findings as to any individual, whatsoever. Indeed, the Clerk-Magistrate barely made any

findings at all as to even what general privacy interests would be impacted by her decision. The

Clerk-Magistrate failed to consider, let alone weigh, any of the obvious and logical

countervailing life and family considerations which would dictate against a public show cause

hearing in each case such as marital, family, physical and emotional health issues.

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 As discussed below, the Clerk-Magistrate’s extraordinary decision violates the rules

governing show cause hearings, violates the notice recipients’ right to basic procedural due

process, and violates basic notions of fairness. It will turn ordinarily confidential show cause

hearings into public “walks of shame” and humiliation before there is even a probable cause

determination made as to each individual.

The Intervenor Petitioners respectfully request that this matter be presented to the full

Court which, after full briefing and argument, should vacate the Clerk-Magistrate’s decision and

put in place appropriate remedial and procedural safeguards applicable to the question of

whether any of the show cause hearings at issue should be public.1

II. Argument

A. The Clerk-Magistrate’s December 21, 2023 Decision Violates the Rules Governing
Show Cause Hearings.

M.G.L. c. 218 § 35A lays out an accused’s statutory right to a clerk magistrate’s hearing,

or show cause hearing, prior to issuance of a formal criminal complaint, in instances where the

accused has not been placed under arrest and there is no imminent threat of bodily injury. There

is no dispute that each Intervenor Petitioner is entitled to such a hearing in this case.

After this Court concluded in Eagle Tribune Publishing Company v. Clerk Magistrate of

the Lawrence Division of the District Court Department & Others, 448 Mass. 647 (2007) that

there is no right of public access to show cause hearings, the revised Standards of Judicial

Practice: The Complaint Procedure (“Standards”) were created and placed in effect on October 1,

2008. These standards address an accused’s privacy rights surrounding these hearings, and the

1
John Does 1 through 13 note that since they intervened several other John Does have asked to join their
petition. Clearly, the interests of all 28 notice recipients are implicated here.

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rare circumstance which may permit public access to such a hearing and its filings. See

Standards, 3:15, Public Access to Show Cause Hearings. “Presumptively, show cause hearings

are closed to the public.” Id. Standard 3:15 goes on to state that an organization such as the

petitioner here must show a “legitimate public reason for access that justifies an exception to the

rule” and that only when “the magistrate concludes that legitimate public interests outweigh the

accused’s right of privacy” may the hearing be opened to the public.

In this case, as further discussed below, there is no legitimate public interest. Moreover,

the Clerk-Magistrate did not even attempt to balance the public interest contained within any

specific complaint application against individual privacy rights. The Clerk-Magistrate relied on

Eagle Tribune Publishing Company for the order, quoting: “Where an incident has already

attracted public attention prior to a show cause hearing, the interest in shielding the participants

from publicity is necessarily diminished, while the public’s legitimate interest in access is

correspondingly stronger.” Eagle Tribune Publishing Company v. Clerk Magistrate of the

Lawrence Division of the District Court Department & Others, 448 Mass. at 656. However, the

stabbing incident at issue in Eagle Tribune Publishing Company, which took place on a specific

October 2005 date at a specific Lawrence nightclub location, was already well-publicized, and

the complaint was sought against the known owner of that nightclub, who was already readily

identifiable in public records. Id. at 648. In opposing the media’s further request for the

application materials in this case, the Clerk-Magistrate acknowledges this distinction, but did not

acknowledge or address that same distinction in the context of her order to make the hearings

themselves public. “Response of the Clerk- Magistrate of the Cambridge District Court to the

Petition for Relief Pursuant to G.L. 211, § 3, p. 9- 10 (noting that “in Eagle Tribune, it seems as

4
though the subject of the show- cause hearing—the owner of the nightclub where the woman

was stabbed—already was known”).

In this case, the public does not know the identities of any of the Petitioner Intervenors.

Thus, unlike in Eagle Tribune Publishing Company, Petitioner-Intervenors’ privacy interests are

at their height in this case – yet the Clerk-Magistrate never acknowledged this fact nor made any

findings as to why the purported public interest in this case outweighed their privacy at the show

cause stage. Put simply, while the decision is flawed because it is devoid of any reasoning or

purported balancing between the Intervenor Petitioners’ rights and any “legitimate” public

interest, the process was equally flawed because no individual balancing of the competing

interests took place prior to the issuance of the Clerk-Magistrate’s order.

Nor is there any urgency whatsoever to make the identity of those who received notices

public now. The media coverage surrounding the alleged matter to which the notices allegedly

relate stems from a Department of Justice press release publicized more than one month ago on

November 8, 2023. 2 Specifically, the statement includes one sentence that has fueled petitioner’s

appetite to gain access to the hearings: “Commercial sex buyers allegedly included elected

officials, high tech and pharmaceutical executives, doctors, military officers, government

contractors that possess security clearances, professors, attorneys, scientists and accountants,

among others.” Petitioners have simply leapt to the conclusion that somehow all of the

individuals who received notices fit into these categories and that simply being a lawyer, teacher

or accountant, for example, somehow renders a matter of public interest. WBUR specifically

requested access to hearings involving only “defendants seeking or holding political office or in

other key government positions.” However, the Clerk-Magistrate made no findings in this regard

2
https://www.justice.gov/usao-ma/pr/three-arrested-operating-high-end-brothel-network

5
in making all hearings public. The Petitioners likewise argued that “[t]he public should be able to

judge for itself how the applications for criminal complaints against the powerful and elite

customers of a high-end brothel are handled, to better enable it to discern whether justice is done

in these hearings.” Emergency Petition and Brief of Trustees of Boston University and Boston

Globe Media Partners LLC Seeking Relief Pursuant to G.L. c. 211 § 3, p. 18. Again, however,

the Clerk-Magistrate made no findings that any individual who received a notice is “powerful” or

a member of the so-called “elite.” Importantly, none of the Intervenor Petitioners is a person

“seeking or holding political office or in other key government positions,” or in any other

position as a public figure.

The Clerk-Magistrate herself most recently recognized in her filing in the Court that the

intense media coverage stemming from the federal investigation should weigh in favor of

keeping the Intervenor Petitioners’ identities private:

It is of course true that the federal investigation that gave rise to the complaint
applications has garnered significant media attention. But, in construing the
privacy exception to the public records law, which calls for a similar balancing of
private versus public interests, the full Court concluded that extensive publicity of
an investigation may sometimes actually weigh in favor of the non-disclosure of
names of suspects that have not already been disclosed. Globe Newspaper Co. v.
Police Comm’r of Boston, 419 Mass. 852, 867 (1995) (no clearer example of an
unwarranted invasion of privacy than to release to the public that another
individual was the subject of a criminal investigation. “We are not persuaded that
the public attention that the investigation into the Stuart murder has attracted
necessarily tips the scales in favor of disclosure. Indeed, this fact potentially
augments the intrusion on the privacy of those persons identified by hotline
callers.”)

Response of the Clerk- Magistrate of the Cambridge District Court to the Petition for Relief

Pursuant to G.L. 211, § 3, fn. 12.

The Court’s analysis in Globe Newspaper Co., now cited by the Clerk-Magistrate, should

be applied to her decision to make the show cause hearings public. Accord Commentary to

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Standards, 3:15, citing Matter of Doe Grand Jury Investigation, 415 Mass. 727 (1993), WBZ-

TV4 v. District Attorney for Suffolk Dist., 408 Mass. 595, 599- 600 (1990), Jones v. Robbins, 8

Gray 329, 344 (1857): “There is no tradition of public access to show cause hearings, which are

similar to grand jury proceedings. Secrecy protects individuals against whom complaints are

denied from undeserved notoriety, embarrassment and disgrace.” Moreover, unlike with the false

tips received from hotline calls in the Stuart investigation, Intervenor Petitioners have no libel

protection in civil law against accusations made in the criminal complaint applications, no matter

how scurrilous, and no realistic remedy to remove them from the Internet or other publicly-

available sources. Sibley v. Holyoke Transcript-Telegram Pub. Co., 391 Mass. 468 (1984);

Thompson v. Globe Newspaper Co., 279 Mass. 176, 186-187 (1932); Kipp v. Kueker, 7 Mass.

App. Ct. 206, 211-212 (1979).

B. The Clerk-Magistrate’s December 21, 2023 Decision Violated the Notice Recipients’
Rights to Procedural Due Process.

Intervenor Petitioners are fully entitled to the protections of procedural due process under

both the 14th Amendment to the United States Constitution and Article 10 of the Massachusetts

Declaration of Rights where they have profound interests in their good names and reputations.

For the last half-century, the case of Matthews v. Eldridge, 424 U.S. 319, 333 (1976) has been

the universally accepted touchstone as to what process must be adopted in a given situation in

order to protect an individual from the immediate and/or long-term consequences of a meritless

or ill-motivated accusation. In Matthews, the Court held that a person who is protected by due

process is entitled to a hearing “at a meaningful time and in a meaningful manner.” 424 U.S. at

333 (internal citations omitted). That standard was deliberately fashioned to be flexible because

there is no black letter rule defining which procedures are right for every situation:

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 [D]ue process,’ unlike some legal rules, is not a technical conception with
a fixed content unrelated to time, place and circumstances.” Cafeteria
Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d
1230 (1961). “(D)ue process is flexible and calls for such procedural
protections as the particular situation demands.” Morrissey v. Brewer, 408
U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).

Mathews, 424 U.S. at 334 (internal citations omitted).

Intervenor Petitioners enjoy the procedural protections of due process of law under both

the 14th Amendment to the United States Constitution and Article 10 of the Massachusetts

Declaration of Rights. Indeed, Massachusetts courts have long recognized that individuals are

entitled to basic due process before being reputationally stigmatized. In considering issues of

procedural due process in other contexts, courts have long recognized the “stigma-plus” that can

result from an unfair public finding before a fair process takes place. See Rodriguez de

Quinonez, 596 F.2d 486, 489 (1st Cir. 1979); See also Wojcik v. Massachusetts State Lottery

Com’n, 300 F.3d 92, 103 (1st Cir. 2002), citing Bd. of Regents, 408 U.S. at 573. Here, basic

procedural due process requires that individual notice recipients be given an opportunity to be

heard on the issue of whether there is any legitimate public interest in their particular show cause

hearing being made public and whether there are counter-vailing individual privacy concerns

which outweigh any such interest before suffering what will be irreparable reputational harm.

Again, as the United States Supreme Court has held, due process, unlike some legal rules,

is not a technical conception with a fixed content unrelated to time, place, and circumstances.

Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961). Rather, due process “is flexible and

calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer,

408 U.S. 471, 481 (1972); see also Mathews, 424 U.S. at 334 (internal citations omitted). Where

a person's good name, reputation, honor, or integrity is at stake because of what the government

is doing to [her], notice and an opportunity to be heard are essential… In such a case, due

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process would accord an opportunity to refute the charge[s][.]” Codd v. Velger, 429 U.S. 624,

627–28 (1977).

Throughout our history, both the state and federal courts have repeatedly established and

put in place notice and opportunity to be heard procedural safeguards for individuals facing a

wide variety of negative consequences which flow from discipline or prosecution. See, e.g.,

Anderson v. Recore, 446 F.3d 324, 328 (2d Cir. 2006) “Prisoners on work release have a liberty

interest in continued participation in such programs.” See also Vitek v. Jones, 445 U.S. 480, 494,

100 S. Ct. 1254, 1264, 63 L. Ed. 2d 552 (1980) (prisoners facing involuntary transfer to a mental

hospital are threatened with immediate deprivation of liberty interests and because of the risk of

mistaken transfer, the District Court properly determined that certain procedural protections,

including notice and an adversary hearing, were appropriate in the circumstances present in this

case); Stanley v. Illinois, 405 U.S. 645 (1972) (natural father, with visitation rights, must be

given notice and opportunity to be heard with respect to impending adoption proceedings).

Petitioner Intervenors note that, here, the potential harm which will be visited upon them

from the premature publication of their identities in a public show cause hearing also implicates

important collateral interests. For example, it has been publicly suggested by the United States

Attorney in a media release that the 28 notice recipients include people from specific professions

that carry with them separate licensing requirements.3 If true, then many of those individuals

could be subject to license revocation or disciplinary proceedings which could result in the loss

of their career regardless of whether they ever become the subject of a criminal charge simply

because unproven allegations against them have been allowed by the Court to be publicly

3
https://www.justice.gov/usao-ma/pr/three-arrested-operating-high-end-brothel-network.

9
disseminated. Other consequences could include the loss of scholarships, financial aid, exclusion

from daycare centers, youth sports, school events, charitable and leadership positions.

C. Unless Remedied Through Necessary Procedural Safeguards, the Clerk-

Magistrate’s December 21, 2023 Decision Will Result in the Unwarranted
Humiliation and Embarrassment of the Notice Recipients for No Public Interest
Purpose

Pre-charge humiliation and embarrassment of an individual are not legitimate interests or

purposes of our criminal justice system.

Although “legitimate public concern” is not defined in the clerk Procedure Manual or in

Massachusetts case law, the Restatement (Second) of Torts provides the following guidance:

"h. Private facts. . . . The extent of the authority to make public private facts is
not, however, unlimited. There may be some intimate details of her life, such as
sexual relations, which even [a famous] actress is entitled to keep to herself. In
determining what is a matter of legitimate public interest, account must be taken
of the customs and conventions of the community; and in the last analysis what is
proper becomes a matter of the community mores. The line is to be drawn when
the publicity ceases to be the giving of information to which the public is entitled,
and becomes a morbid and sensational prying into private lives for its own sake,
with which a reasonable member of the public, with decent standards, would say
that he had no concern. . . ."

Peckham v. Boston Herald, Inc. citing Prosser & Keeton, Torts § 117, at 860-861
(5th ed. 1984).

Importantly, the Supreme Court of the United States has warned against the public using

the court as a tool to promote public scandal or “reservoirs of libelous statements for press

consumption.” Nixon v. Warner Communications, Inc., et al. 435 U.S. 589, 598 (1978). In Nixon

v. Warner Communication, broadcast media petitioned for immediate access to public records and

documents. The Supreme Court held that right to inspect and copy public records is not absolute

and access should be denied where court files might become a vehicle for improper purposes. The

Supreme Court noted that it is the court’s responsibility to ensure that its records are not being

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"used to gratify private spite or promote public scandal" and that the court does not become a

partner in the use of the subpoenaed material "to gratify private spite or promote public scandal.”

Nixon v. Warner Communications, Inc., et al. 435 U.S. 589, 598 (1978).

III. Conclusion

Intervenor Petitioners have been afforded no process whatsoever, let alone due process. It

is undisputed that applications for criminal complaints were filed in the Cambridge District Court

on or about December 18, 2023 and that the Notices of Magistrate’s Hearings were sent out on

December 26, 2023 (at the earliest) 4. Many of the recipients did not receive the notice to them

until the middle of January. None were even aware of the notice when the Clerk-Magistrate made

her decision on December 21, 2023. Given this, John Doe Nos. 1 through 13 are requesting full

court review and oral argument. The accused are entitled to privacy at this early stage in the

proceedings, and public hearings should remain the exception rather than the rule. The Clerk-

Magistrate’s decision should be vacated, and this issue should be referred to the full Court to

establish the procedural safeguards, including notice and opportunity to be heard, for individuals

whose privacy rights at show cause hearings are challenged. 5

4
Intervenor Petitioners recognize the absence of an official record here. That is precisely the point; there
has been no process at all as to which a record could be made. They know only from their own notices
that the Notices of Clerk Magistrate’s Hearings are dated between December 26, 2023 and January 2,
2024, all after the issuance of the Clerk-Magistrate’s order.
5
Concerns about “best practices” for determining whether to open a hearing to the public or to make
records of a hearing available to the public were raised in the Report of the Trial Court Working Group on
Complaint Standards in 2018. https://www.mass.gov/doc/report-of-the-trial-court-working-group-on-
complaint-standards/download.

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On behalf of John Doe No. 13

/s/Howard Cooper
Howard Cooper
BBO # 543842
/s/Hannah Black
Hannah Black
BBO # 705484
Todd & Weld
One Federal St. 27th Floor
Boston, Ma. 02110-2012
T: (617) 720 2626
Hcooper@toddweld.com
Hblack@toddweld.com

John Doe No. 1

/s/ Janice Bassil

Janice Bassil
BBO # 033100
83 Atlantic Avenue
Boston, Ma. 02110
T: (617) 366 2200
JBassil@bassillaw.com

John Doe No. 2-5

/s/Stephen Neyman
Stephen Neyman
BBO # 551576
10 Tremont Street, Suite 602
Boston, Ma. 02108
T: (617) 263-6800
Steve@neymanlaw.com

John Doe No. 6-10

/s/Benjamin Urbelis
Benjamin Urbelis
BBO # 672895
Urbelis Law, LLC
44 School Street, 6th Floor
Boston, MA 02108

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 T: (617) 830- 2188
Ben@urbelislaw.com

John Doe No. 11

/s/Michael Callanan
Michael Callanan
BBO # 654724
44 School St. Suite 1000A
Boston, Ma. 02108
T: (617) 884 2130
Callananlaw@gmail.com

John Doe No. 12

/s/David Grimaldi
David Grimaldi
BBO # 669343
929 Massachusetts Avenue
Suite 200
Cambridge, Ma. 02139
T: (617) 661 1529
David@attorneygrimaldi.com

Certificate of Service

I, Howard Cooper, state I have filed the within Motion electronically and I have emailed
this Motion to Jeffrey Pyle, Attorney for Petitioners and Eric Haskell, Assistant Attorney
General this 22nd day of January, 2024.

/s/Howard Cooper

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TAB A

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15