Whether a civil hearing for commitment of a person found not guilty by reason of mental illness should be closed to the public to protect the defendant’s privacy.

The defendant was found not guilty by reason of mental illness of murdering her four-year-old child, and committed to a state treatment facility. Three years later, the Department of Mental Health found that she was ready to be discharged into a community-based residential treatment program. The district attorney was notified, pursuant to G.L. c. 123, § 16(e), and petitioned for her ongoing commitment.

By standing order, commitment hearings are held at a courtroom in the hospital, for convenience of hospital staff. When a reporter for the Patriot Ledger attempted to attend the hearing, the hospital and defendant objected. The district attorney opposed closing the hearing, and the judge ruled that the hearing would be open to the public.

The defendant requested extraordinary relief from the SJC, and a single justice reserved and reported the question to the full bench.

The question is what standard a judge should use in determining whether to close a civil commitment hearing to the public. The defendant argues that she has a right to privacy in her mental health records and court-ordered mental health interviews, citing G.L. c. 123, § 36A (“All reports of [court-ordered] examinations … shall be private except in the discretion of the court”) and G.L. c. 214, § 1B (“a person shall have a right against unreasonable, substantial or serious interference with his privacy”).

The Commonwealth responds that neither provision requires closure of the courtroom in this case, but more importantly, that decisions to close a courtroom must meet a constitutional test under the First Amendment — the party seeking closure must advance an overriding interest, the closure may be no broader than necessary to protect that interest, the judge must consider reasonable alternatives to closure, and must make findings supporting closure. Presley v. Georgia, 130 S.Ct. 721, 724 (2010). The Patriot Ledger filed an amicus brief advancing similar arguments.

Overall, the arguments of the Commonwealth and Patriot Ledger are more persuasive—the defendant’s statutory support is weak, and particularly where the Commonwealth and judge both opposed closure, it is difficult to imagine the SJC reversing that decision.

The exact analytical path the Court should take is less clear, however. Does the public right to open trials in civil cases lie in the First Amendment, or in common law? The Commonwealth relies on Supreme Court cases under the First Amendment—but those cases seem to depend on the common law history of criminal trials, and are not explicitly applied to civil hearings in any case cited by the Commonwealth. In extended dicta (or at best, an advisory opinion) the SJC has suggested that the common law protects access to both civil and criminal cases. Boston Herald v. Superior Court Dep’t, 421 mass. 502, 506-507 & n.7 (1995). But does that mean a judge closing a civil hearing must follow all of the analytical steps laid out by the Supreme Court under the First Amendment?

Interesting policy questions remain open as well. In particular, the hospital apparently believes that closure would serve some compelling purpose—whether for treatment purposes, administration of justice, or otherwise. That perspective is not yet developed in the materials before the Court.