NEWS GROUP BOSTON, INC. vs. COMMONWEALTH & others. [Note 1]

WILKINS, J. We deal with the question of the right of the public, including representatives of the press, to attend juvenile court sessions involving a juvenile charged with murder. The issue arises because, by St. 1990, c. 267, Section 4, approved on December 4, 1990, and effective forthwith by declaration of the Governor, the Legislature changed the long-standing requirement in G. L. c. 119, Section 65 (1988 ed.) (see St. 1931, c. 217) that a judge sitting in a juvenile session "shall exclude the general public from the room, admitting only such persons as may have a direct interest in the case." By the 1990 amendment, the Legislature inserted in Section 65, immediately before the language just quoted, the phrase: "except when the child is charged with murder in the first or second degree." Although there is a plausible argument that the amendment leaves Section 65 saying nothing about what a judge must or may do about admitting the public to a hearing when a juvenile is charged with delinquency by reason of murder, we conclude that it is reasonably clear that the Legislature intended generally that a judge not exclude the public from such a hearing.

The case is before us because the plaintiff, which publishes the Boston Herald newspaper, relying on the statutory change and not on any constitutional claim, sought and obtained relief under G. L. c. 211, Section 3 (1988 ed.), from a single justice of this court. The single justice overruled a determination of a judge sitting in the juvenile session of the Dorchester Division of the District Court Department that the December 4, 1990, statutory amendment to G. L. c. 119, Section 65, did not apply to these juveniles who were arraigned on November 20, 1990, with respect to a murder that occurred

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on October 31, 1990. The five juveniles who are charged with delinquency by reason of murder have appealed from the single justice's judgment that allowed the public, and hence the plaintiff's representatives, access to the proceedings involving the five juveniles. We affirm the judgment.

The facts are not in controversy. The five juveniles are charged with delinquency by reason of murder, aggravated rape, and armed robbery alleged to have been committed on October 31, 1990. The Commonwealth, wishing to try the juveniles as adults, moved for a transfer hearing pursuant to G. L. c. 119, Section 61. Hearings on nonevidentiary motions were held on December 5 and 20, 1990, and January 9, 1991. On December 20, without objection from the Commonwealth or the juveniles, the judge ruled that changes made by St. 1990, c. 267, concerning juvenile proceedings would not apply to the offenses charged against the five juveniles. The judge excluded the public from the courtroom. A hearing on the motion of one juvenile to suppress a postarrest statement was held on January 25, 1991.

The probable cause portion of the transfer proceeding (often called Part A) was scheduled to commence on February 1. On that date, the plaintiff moved to obtain access to the court proceedings. The judge rejected the plaintiff's argument that the December 4, 1990, amendment to Section 65 applied to the proceedings. The plaintiff immediately sought relief from the single justice, who heard the matter forthwith and on that day entered a judgment that granted the plaintiff relief "without prejudice to any party seeking impoundment pursuant to the Uniform Rules on Impoundment Procedure Rules 7 and 8 of the Trial Court Rules." The transfer hearing resumed that afternoon with representatives of the media present. All the juveniles moved for impoundment of the proceedings. The judge suspended the proceedings and, on February 8, held a hearing on the impoundment question. At that time, he noted correctly that the impoundment rules apply to papers, documents, transcripts, and the like and not to in-court testimony. He then entered an order of impoundment of all papers and records in the proceedings. He suspended

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the transfer hearing until this court has ruled on the juveniles' appeals. [Note 2]

The juveniles argue that the 1990 amendment to G. L. c. 119, Section 65, should not be construed to apply to juvenile proceedings based on events that occurred before the amendment became effective. The 1990 act is silent on the question whether the amendment to Section 65 applies to future court hearings in juvenile proceedings that are based on alleged preamendment offenses. The general rule is that statutory procedural changes properly apply to pending cases and to trials that concern events occurring before the enactment of the change. See Commonwealth v. Greenberg, 339 Mass. 557, 578-579 (1959) ("[s]tatutes relating merely to the remedy or procedure which do not affect substantive rights are generally held to operate retroactively"); Commonwealth v. Edgerly, 13 Mass. App. Ct. 562, 566-567 (1982) (rape shield statute applies to crimes committed before its enactment). Admission of the public to the juvenile proceedings in this case is a procedural change and not a change in the juveniles' substantive rights existing at the time of the alleged offenses. [Note 3] It is certainly arguable that the change in G. L. c. 119, Section 61, as appearing in Section 3 of St. 1990, c. 267, could not constitutionally be applied to juvenile charges based on preamendment events, because to do so would violate the ban on ex post facto laws. [Note 4] That fact, however, does

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not warrant a parallel view of the consequences of the amendment of Section 65 unless the same or some other constitutional provision bars the application of Section 65, as amended, to a juvenile hearing on a charge based on preamendment events.

The juveniles argue that, as applied to them, the amendment to Section 65 is unconstitutional as an ex post facto law in violation of the Constitution of the Commonwealth (Part I, art. 24) and of the Constitution of the United States (art. 1, Section 9). If this amendment purported to increase the punishment that would be imposed on the juveniles beyond that which could have been imposed at the time of the alleged offenses, it would be an ex post facto law. See Miller v. Florida, 482 U.S. 423, 431-433 (1987); Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798); Commonwealth v. Phelps, 210 Mass. 78, 79-81 (1911). The opening of a Juvenile Court proceeding to the public, thereby possibly stigmatizing the juvenile, is not, however, a punishment in a constitutional sense. See Dobbert v. Florida, 432 U.S. 282, 293-294 (1977) (change in role of jury and judge in determining whether to impose death penalty not ex post facto law), and cases cited; Commonwealth v. Bargeron, 402 Mass. 589, 591 (1988) (extending statute of limitations for crime already committed not ex post facto law); Commonwealth v. Benjamin, 358 Mass. 672, 680 (1971) (statutory change not altering substance of crime or permissible punishment not ex post facto law); Commonwealth v. Bellino, 320 Mass. 635, 641-642, cert. denied, 330 U.S. 832 (1947) (statute providing for use of alternate jurors not ex post facto law). Cf. Commonwealth v. Greenberg, 339 Mass. 557, 579 (1959) (statute changing rules of evidence not ex post facto law, at least where change was not to defendant's detriment).

The juveniles raise other constitutional challenges to the amendment to Section 65 that have nothing to do with the time of

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the amendment in relation to the time of the alleged offense and thus would apply to any juvenile proceeding charging delinquency by reason of murder. These claims are that, under State and Federal constitutional provisions concerning due process of law and equal protection of the laws, it is a violation of the constitutional rights of a juvenile charged with delinquency by reason of murder to single him out for treatment different from that applicable to juveniles who are charged with delinquency by reason of some crime other than murder. A juvenile does not have a fundamental, due process right to have the public excluded from his transfer hearing. Juveniles charged with murder are not a suspect class for whom a heightened test of the constitutionality of legislation is to be applied, and, therefore, equal protection principles require only that the amendment be "a rational means to serve a legitimate end." See Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 442 (1985); Commonwealth v. Brasher, 359 Mass. 550, 558 n.2 (1971).

The Legislature could rationally conclude that the public interest in the proper disposition of a murder charge against a juvenile, the most serious of crimes (perhaps barring treason), warrants opening the courtroom to all proceedings. It is for the Legislature to balance the interests of juveniles and the juvenile justice system against the public's interest in being able to determine, for example, whether a decision to transfer or not to transfer a juvenile to adult jurisdiction was lawfully and soundly made. We grant that publicity might have an adverse effect on the prospects of rehabilitation of a particular juvenile and that the public disclosure of certain information about a juvenile, particularly during the second phase of the transfer proceeding (often called Part B), could have adverse consequences. But that is a question for legislative judgment and is not controlled by due process or equal protection principles. The line drawn between charges of delinquency by reason of murder and delinquency by reason of

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other crimes is rational and consistent with apparent and legitimate legislative objectives. [Note 5]

This case does not involve the public's right of access to records of those earlier hearings in these juvenile proceedings that were not open to the public. Nor does this case involve a judge's right to close a courtroom to the public during the consideration of the admissibility of evidence that is claimed to be subject to some statutory or common law privilege. See, e.g., G. L. c. 112, Section 135 (1988 ed.) (social worker-client); G. L. c. 233, Section 20B (1988 ed.) (psychotherapist-patient). Moreover, certain information presented in a Part B proceeding may involve facts and opinions about others, such as the juvenile's relatives, that, in fairness or in the interests of the juvenile, should be kept confidential. It is difficult in the abstract to decide what a Juvenile Court judge may or may not do in such situations. The presumption is, however, that the

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courtroom will be open. Globe Newspaper Co. v. Commonwealth, 407 Mass. 879, 883-884 (1990). To the extent that information is presented in written form and the procedures of the trial court's impoundment rule are followed and result in an order of impoundment, we would expect that the statutory requirement of opening juvenile courtrooms to the public when murder charges are involved would not override the exercise of a well-articulated judicial judgment to impound particular records, reports, or documents. Nor would we deny to a judge sitting in a juvenile session the right, on proper findings, to close the courtroom at least in circumstances when it would be closed in a proceeding involving an adult.

Judgment affirmed.