BOSTON — A justice of the Massachusetts Supreme Judicial Court on Friday denied The New Bedford Light’s petition to open the show cause hearing for Southcoast Health CEO Keith A. Hovan on a potential felony charge for illegal firearm magazines.
As a result, the public and press will not be allowed to attend the hearing, which is presumptively closed to the public in Massachusetts. It is during this hearing that the Wareham District Court clerk magistrate will determine whether there is probable cause to charge Hovan with the felony.
Justice Scott L. Kafker, who reviewed the case, stated in his ruling, “Although a close question in the instant case, as it involves a public figure’s alleged possession of a number of illegal large-capacity magazines and feeding devices, and the charges have already received some publicity, including by media outlets other than the petitioners themselves, I nonetheless cannot conclude that the magistrate’s balancing of the public and private interests here was an error or abuse of discretion.”
“I therefore deny the petition and lift the stay I previously ordered,” Kafker concluded.
Read the decision:
The Light last Friday submitted a petition to Justice Kafker to appeal the denial by a Wareham clerk magistrate to permit public and media access to the hearing. It was scheduled to take place Jan. 10, but was halted after Kafker granted The Light’s motion to stay the proceedings pending a decision on the petition for public access.
In late December of 2021, The Light first filed a motion to access the hearing on a possible felony charge against Hovan for alleged possession of illegal firearm feeding devices or magazines. Wareham District Court Clerk Magistrate Daryl G. Manchester denied the request on Jan. 4, citing Hovan’s right to privacy.
“The issue involved in the show cause hearing has no connection to his position as CEO of Southcoast Health nor to the reason he was charged with assault and battery. The issue is a separate personal matter,” Manchester wrote in an email. “Therefore, I find that Mr. Hovan is entitled to the privacy of the show [cause] hearing process and that the interest of the public does not outweigh that right to privacy.”
Hovan’s attorney, Christopher M. Markey, filed an opposition to the stay and the motion for access, stating The Light in its petitions “failed to establish a special public significance and a legitimate public interest which (outweighs) the right to privacy.”
Markey also stated Hovan is not a public official and that the allegations do not involve behavior undertaken in his official capacity as Southcoast Health CEO and president (though currently on paid leave). He stated The Light’s petition, which was written and filed pro se (without legal representation), had “significant procedural deficiencies.”
Show cause hearings are in most cases held when a person has not been arrested, but is accused by law enforcement or another individual of committing a crime. Massachusetts is an outlier in closing these hearings to the public and press.
The reasoning is rooted, in part, in a person’s right to privacy, with an interest in protecting people from “undeserved notoriety, embarrassment and disgrace” if complaints against them are denied and no charges are issued, according to state district court standards.
A person or organization can request a show cause hearing be opened to the public (and thereby the press) by arguing that legitimate public interests outweigh the accused’s right of privacy, according to the court standards.
It is not sufficient that the accused is well known or a public official. A request should also show the incident has attracted public attention, thereby diminishing the interest in shielding the accused’s privacy, the court standards state.
However, a court opinion cited by the standards states that not every case that attracts public attention “necessarily requires” a public hearing.
Currently, Massachusetts is the only state in the country that conducts closed hearings for this type of proceeding, the Boston Globe reported, but State Rep. Antonio F. D. Cabral is seeking to change that.
He has filed a bill for the second time that would make show cause hearings presumptively public, thereby obviating the procedure The Light and other news outlets have needed to follow to try to access these hearings.
Cabral in an interview this week with The Light said he is hoping to see movement on the bill this session. It is currently before the Joint Committee on the Judiciary.
“I think the public’s right to know and transparency and accountability and public access are important,” he said, speaking generally about show cause hearings. “We can do better than this and we should do better, and I’m going to continue working with all the partners … to see if we can get some more partners in this area.”
State Reps. Christopher Hendricks and Michelle M. DuBois are listed sponsors of the bill.
Purpose of Hovan’s hearing
The Rochester Police Department in November of 2021 filed a summons for a felony charge against Hovan for alleged possession of illegal firearms magazines or feeding devices, according to a police report.
Police arrested and charged Hovan in early November with assault and battery, a charge that was dismissed in December in Wareham District Court after the alleged victim chose not to testify.
As part of their procedure following an arrest for assault, police removed more than 40 legal firearms that were securely stored in Hovan’s home. They also found ammunition magazines (just over 80 of which they allege are illegal) and about 19,500 rounds of ammunition (also stored securely), according to the police department and records.
According to state court standards, if there is probable cause for a felony that is being sought by a law enforcement officer, then the magistrate must authorize the charge. However, the magistrate may “decline to do so” if the district attorney’s office has communicated to the court its opposition to authorizing the complaint.
The Light asked Plymouth County District Attorney Timothy Cruz’s Office if Cruz or the office had communicated to the court opposition to the application for a felony charge against Hovan.
Beth Stone, director of communications for the office, said by email that it would be inappropriate for her to comment because it would potentially violate SJC rules.
The Light was unable to confirm on Friday when Hovan will appear for the show cause hearing. It is also possible the district court will not disclose the information, given the closed nature of this court proceeding.
Email Anastasia Lennon at firstname.lastname@example.org.
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