author: GAZIANO, J.

text:
    F.K. v. S.C. (and a consolidated case ).
    SJC-12452
    Supreme Judicial Court of Massachusetts, Essex..
    Argued October 4, 2018 Decided January 31, 2019
    Lisa S. Core, Newton, for S.C.
    Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.

      M.D. v. S.C.

   GAZIANO, J.

The plaintiffs and the defendant were seniors at the same high school when the defendant created a rap song in which he improvised lyrics pertaining to the plaintiffs. Some of the lyrics referenced violence that the defendant stated that he wanted to inflict on M.D., whose name was mentioned in the song. Other lyrics described acts of sexual violence that the defendant stated he wanted to inflict on an unnamed woman; in context, F.K. understood that the lyrics referred to her. The defendant posted the song on a public Internet website, and then posted a link to the song on a social media website. The plaintiffs ultimately sought harassment prevention orders, pursuant to G. L. c. 258E, § 3 (a ), against the defendant, and a District Court judge issued the requested orders.

A harassment prevention order may issue under G. L. c. 258E, when a defendant has committed "[three] or more acts" of "[h]arassment." See, e.g., G. L. c. 258E, § 1. The judge found that, in posting the song, the defendant had committed at least three individual acts of harassment against M.D. and F.K. Because we conclude that the defendant's conduct amounted to only one act of harassment, the harassment prevention orders must be vacated and set aside.

We note, however, that a single act of harassment may be sufficient for the Superior Court to issue a civil injunctive order issued pursuant to a its equity jurisdiction. The plaintiffs here did not seek such relief.

1. Background. a. Facts. The facts are essentially undisputed, and were described in detail in the District Court judge's memorandum of decision.

Although the parties were seniors at the same high school, the defendant "barely" knew the plaintiffs. During their junior year, the defendant and M.D. were in one class together, but rarely spoke to each other and had no contact outside of class. Thereafter, until the defendant posted the song almost a year later, M.D. and the defendant had not interacted with one another. They had no friends in common, and they moved in different social circles. Indeed, M.D. asserted that the defendant had no reason to harbor any ill will against him. During their sophomore year, the defendant had been in one class with F.K. According to F.K., she had had no other contact, or history of conflict, with the defendant over the almost two years before the defendant posted the song at issue here.

On an evening in March 2017, the defendant posted a song to "SoundCloud." SoundCloud is a public Internet website on which members can post songs and albums; the postings then become accessible to other SoundCloud members. The song at issue consisted of an instrumental track overlaid by the defendant's "freestyle" rap, i.e., unwritten lyrics that the defendant improvised as he sang. Also that evening, the defendant "linked" the song from SoundCloud to his "Snapchat" account. Snapchat is a social media website on which a member may share information with a network of "friends." The defendant shared the song with at least six other high school classmates, who were members of the defendant's Snapchat "friend" network. He did not share the song directly with M.D. or F.K.

The defendant's song was titled "Callin' Out Pussies in the School." It contained many innocuous lyrics, such as, "I'm happy now and all you can do is frown, ya"; "I'm gonna soar like a bird, I'm go high it's time for me to roar, ya"; "Maybe go fly, pack my bag and set up into the world, ya"; and " 'bout to go to college and explore the world, ya." The song also contained negative references to M.D. by name: "You're a pussy just like [M.D.], ya, ya." Although not explicitly naming M.D., other sections of the song also appeared to reference M.D. Rather than simply insulting remarks, some of those lyrics appeared to contain direct threats. For example, the defendant sang, "I don't know what you are talkin' about, talking shit in ... class"; "I'm gonna fuck you up soon"; "I'm gonna blow your fuckin' brains out soon"; and "I'm takin' your family down one by one, boom." The song also contained references to an unnamed woman described as "your girlfriend" and "your bitch." These lyrics appear to have been references to M.D.'s girl friend, F.K., and both of the plaintiffs understood them as such. The lyrics also contained profane and violent language that appeared to suggest rape or sexual assault. In particular, several stanzas included the following: "Makin' your bitch sittin' and stayin' on her knees, ya I like bitches on her knees"; "Then she gonna suck my D until she bleeds, ya"; and "Soon to be I'm gonna sit your bitch down in the fuckin' lobby."

On the same evening that the song was posted to Snapchat, a number of M.D.'s friends, all students at the same high school, informed him about the existence of the song. They sent M.D.

electronic text messages that instructed him to listen to the song on SoundCloud. M.D. did so. Shortly thereafter, his father listened to the song, as did F.K.

After receiving threats of physical violence from members of the high school hockey team (of which M.D. was a member), the defendant removed the song from the Internet approximately two hours after initially posting it.

The following morning, M.D. and his parents met with the high school's principal, an assistant principal, and a resource officer. On the same day, F.K. also met with the resource officer and an assistant principal.

Also that day, the defendant met with the resource officer and an assistant principal. The defendant said that M.D. had made derogatory comments about him (had "shaded" him) during the junior year class. The defendant could not recall, however, specifically what M.D. had said. As to the song, the defendant explained that he had been freestyling, and had wanted to sound like a rapper. The defendant remembered while rapping that M.D. previously had said negative things about him in the junior year class, and then got "caught up" in the moment. The defendant acknowledged that he had "messed up," and said that he had had no intention of hurting M.D. or M.D.'s family. The defendant asserted that he had not realized that the song would be "seriously received."

The defendant was suspended for three days and was removed from his position as captain of the school's tennis team. Based on testimony provided by an assistant principal, the judge allowed the defendant to return to school, so long as he did not initiate contact with and stayed away from the plaintiffs. The school allowed the defendant to leave class five minutes early to help him avoid contact with the plaintiffs between classes. Ultimately, however, after an "incidental" encounter in which the defendant and F.K. passed each other, without any conversation, in a stairwell of the school, the defendant stopped going to school for the remainder of his senior year; he opted to complete his coursework from home in order to avoid any possible contact with the plaintiffs.

b. Prior proceedings. On Friday, March 17, 2017, M.D. and his father sought and obtained temporary civil harassment prevention orders from the District Court, pursuant to G. L. c. 258E, § 5. The defendant was not present at the hearing. Among other things, the order as to M.D. required the defendant to stay away from the school. The defendant complied with the terms of M.D.'s order, which was to expire on March 28, 2017. On March 18, 2017, F.K. went to a police station with her mother and obtained an emergency harassment prevention order, pursuant to G. L. c. 258E, § 6, from an on-call judge.

On March 20, 2017, the defendant filed a motion to vacate the harassment prevention orders. The plaintiffs were present at the hearing on the motion to vacate, and they opposed the motion; the motion was denied. In addition, the judge issued F.K. a temporary harassment prevention order, pursuant to G. L. c. 258E, § 5. The order required, among other things, that the defendant "remain away" from the school. This order also was set to expire on March 28, 2017. The defendant complied with the orders.

On March 28, 2017, a hearing on a motion to extend the temporary harassment prevention orders of F.K., M.D., and M.D.'s father, pursuant to G. L. c. 258E, § 3 (a ), was held before a different District Court judge. All parties were present. The parties submitted exhibits, and several witnesses testified.

The judge concluded that "the individual statements within the song" constituted "separate acts" of harassment within the meaning of G. L. c. 258E, § 1, and that those lyrics were directed at M.D. and F.K. In addition, she found that the defendant's posting of the song on two Internet websites and the fact that "at least six separate individuals" had heard the song each constituted separate acts of harassment. Accordingly, the judge extended the harassment prevention orders until March 27, 2018. She modified the orders, however, to allow the defendant to attend school, so long as he remained fifty yards away from M.D. and F.K. Because the song did not contain three or more lyrics concerning M.D.'s father, the judge declined to extend the order pertaining to him.

The defendant filed a timely notice of appeal. Thereafter, he filed a motion for reconsideration or for a stay pending appeal. The defendant argued that, because he had not committed three or more acts of harassment, the temporary harassment prevention orders had been improperly extended under G. L. c. 258E, § 1. In May 2017, a hearing was held on the defendant's motion for reconsideration; the plaintiffs each opposed the motion.

Following the hearing on the motion for reconsideration, the judge again concluded that the defendant had committed three or more separate acts of harassment against F.K. and M.D. She again parsed the "one song" into "individual lyrics," and found that those individual lyrics constituted at least three separate acts of harassment against F.K. and M.D. The judge also found that the defendant "engaged in a series of separate acts necessary to create," "post," and "distribute the song." In addition, she found that the song reached "more than three recipients" when the defendant posted it on the Internet and that M.D. received "notice of the song from at least six separate individuals." On these bases, the judge denied the defendant's motion. The defendant then sought an emergency motion for a stay under Mass. R. A. P. 6 (a), as appearing in 454 Mass. 1601 (2009); he requested that a single justice of the Appeals Court briefly stay the harassment prevention orders so that he would be able to attend his high school graduation ceremony. Neither M.D. nor F.K. filed an opposition.

Following a hearing at which all parties were present, the single justice determined that the plaintiffs had not demonstrated a likelihood of success that they would be able to prove three or more acts of harassment at trial, as required under G. L. c. 258E, § 1. The single justice was "of the view that the defendant [had] demonstrated a substantial likelihood of success on the merits of his appeal, as the record [did] not suggest that the statutory requirement of 'three acts' [had] been met." Accordingly, the single justice concluded that the defendant had demonstrated a substantial likelihood of success on the merits.

The defendant ultimately filed his appeal in the Appeals Court, and we transferred the matter to this court on our own motion.

2. Discussion. The defendant contends that performing the song and posting it on the Internet constituted "[o]ne continuous act," which "cannot be parsed into individual acts in order to satisfy" the requirements of G. L. c. 258E, §§ 1 and 3 (a ). Neither plaintiff has filed a brief or otherwise appeared for the purpose of this appeal. Having carefully reviewed the record, we conclude that the facts of this case do not support the issuance of civil harassment prevention orders, pursuant to G. L. c. 258E, §§ 1 and 3 (a ).

a. Statutory framework. In 2010, the Legislature enacted St. 2010, c. 23, entitled, "An Act relative to harassment prevention orders," see G. L. c. 258E, "to allow individuals to obtain civil restraining orders against persons who are not family or household members, and to make the violation of those orders punishable as a crime" (citation omitted). O'Brien v. Borowski, 461 Mass. 415, 419, 961 N.E.2d 547 (2012), abrogated on another ground by Seney v. Morhy, 467 Mass. 58, 60, 3 N.E.3d 577 (2014).

Under certain circumstances, a plaintiff may obtain an emergency harassment prevention order pursuant to G. L. c. 258E, § 6, without first filing a complaint. When "the court is closed for business or the plaintiff is unable to appear in court because of severe hardship due to the plaintiff's physical condition," a plaintiff may obtain a temporary emergency order if the plaintiff "demonstrates a substantial likelihood of immediate danger of harassment." If physically able, the plaintiff "appear[s] in court on the next available business day to file a complaint." G. L. c. 258E, § 6. Notice then must be provided to the defendant. G. L. c. 258E, § 9.

A plaintiff also may file a complaint under G. L. c. 258E to seek one of two types of orders. See, e.g., G. L. c. 258E, §§ 3 (a ), 5. First, when "the plaintiff demonstrates a substantial likelihood of immediate danger of harassment," the court may issue a temporary harassment prevention order without giving prior notice to the defendant. See G. L. c. 258E, § 5. The "appropriate law enforcement agency" then must serve the defendant with two certified copies of the temporary harassment prevention order, a copy of the complaint, and a copy of the summons. See G. L. c. 258E, § 9. No later than "[ten] court business days after such orders are entered," a defendant must have an "opportunity to be heard on the question of continuing the temporary order" and a plaintiff shall have an opportunity to seek "other relief," including an extension of the temporary harassment prevention order. See G. L. c. 258E, § 5. Second, under G. L. c. 258E, § 3 (a ), a plaintiff may file a complaint seeking a harassment prevention order that "shall not extend for a period exceeding [one] year." See G. L. c. 258E, § 3 (d ).

To obtain a civil harassment prevention order under G. L. c. 258E, § 3 (a ), a plaintiff must demonstrate, by a preponderance of the evidence, that the defendant committed "[three] or more acts" of "[h]arassment" within the meaning of G. L. c. 258E, § 1. See Van Liew v. Stansfield, 474 Mass. 31, 36-37, 47 N.E.3d 411 (2016).

In relevant part, an act constitutes "[h]arassment" under G. L. c. 258E, § 1, when it is "aimed at a specific person"; consists of "willful and malicious conduct" that is "committed with the intent to cause fear, intimidation, abuse or damage to property," and "does in fact cause fear, intimidation, abuse or damage to property." See G. L. c. 258E, § 1.

b. At least three acts "aimed at a specific person." As a threshold matter, a plaintiff must demonstrate that a defendant engaged in "[three] or more acts," each "aimed at a specific person." See, e.g., O'Brien, 461 Mass. at 426, 961 N.E.2d 547. One continuous act cannot be parsed into its constituent parts so as to satisfy G. L. c. 258E, § 1. See, e.g., Smith v. Mastalerz, 467 Mass. 1001, 1001-1002, 3 N.E.3d 576 (2014). In Smith, supra at 1001, 3 N.E.3d 576, the defendant drove his vehicle past the plaintiff, who was standing outside her house, turned around and drove by the plaintiff again, and, only a few moments later, drove past the plaintiff a third time. The plaintiff obtained a civil harassment prevention order under G. L. c. 258E, § 3 (a ), which was extended approximately one year later, pursuant to G. L. c. 258E, § 3 (d ). See Smith, supra at 1001 & n.1, 3 N.E.3d 576. Without deciding whether the defendant's conduct rose to the level of "[h]arassment" under G. L. c. 258E, § 1, this court determined that "where there was no evidence refuting the defendant's claim that he lived down the street from the plaintiff, ... driving by the plaintiff's home within a very short period of time was one continuous act." Smith, supra at 1001, 3 N.E.3d 576. We therefore concluded that the plaintiff in Smith had presented insufficient evidence to warrant a harassment prevention order under G. L. c. 258E, §§ 1 and 3 (a ).

Of course, even where the record demonstrates three or more acts aimed at a specific person, see O'Brien, 461 Mass. at 426, 961 N.E.2d 547, those acts also must constitute "[h]arassment." See G. L. c. 258E, § 1. See, e.g., Seney, 467 Mass. at 63, 3 N.E.3d 577 (defendant "must willfully commit[ ] three or more acts aimed at a specific person, each with the intent to cause fear, intimidation, abuse, or damage to property" [emphasis in original; quotation omitted] ).

c. Analysis. The defendant apparently concedes that posting the song on the Internet constituted harassment. We therefore assume without deciding that posting the song on the Internet rose to the level of "[h]arassment" within the meaning of G. L. c. 258E, § 1. The question before us, then, is whether the defendant committed three or more separate acts of harassment. The defendant argues that he did not, and that the judge erred in issuing the civil harassment prevention orders against him, pursuant to G. L. c. 258E, §§ 1 and 3 (a ). We agree.

i. Individual lyrics. To begin, we conclude, as the single justice of the Appeals Court suggested, that dividing the defendant's "one song" into many "individual lyrics" for the purpose of finding separate acts of harassment is impermissible under G. L. c. 258E, § 1. As stated, in Smith, 467 Mass. 1001, 3 N.E.3d 576, we held that one continuous act cannot be divided into multiple discrete acts in order to satisfy the requirements of G. L. c. 258E, § 1. We reiterate that a harassment prevention order may issue under G. L. c. 258E, § 3 (a ), only on a finding of three or more separate acts of harassment. See G. L. c. 258E, § 1. See also Seney, 467 Mass. at 63, 3 N.E.3d 577.

ii. Distribution. Because a song recorded in private, without more, cannot "in fact cause" intimidation, abuse, damage to property, or fear of physical harm or damage to property, G. L. c. 258E, § 1, the defendant did not perform a separate act of harassment merely by singing or recording the song. A recorded song may constitute an act of harassment, for the purposes of G. L. c. 258E, § 1, only when it is distributed to others.

Here, the defendant posted a single song to SoundCloud, then linked the same song from SoundCloud to Snapchat. He did not post different songs on the Internet.

By posting the song to SoundCloud, the defendant made it available to SoundCloud members. When he linked the song to his Snapchat account, he merely reshared it with SoundCloud members who were also members of the defendant's specific Snapchat network of "friends." He accomplished the two acts in close succession, and removed the song from the Internet within two hours of initially posting it. We are satisfied that when the defendant posted the song to Soundcloud and linked it to his Snapchat account, he engaged in one continuous act. See Smith, 467 Mass. at 1001, 3 N.E.3d 576.

iii. Witnesses to the song. The fact that several people accessed the song on the Internet does not transform that single song into more than one act of harassment. Of course, the number of witnesses to an act properly may be considered in the context of determining the extent to which a defendant's actions were "aimed at a specific person" or did "in fact cause fear, intimidation, abuse or damage to property." G. L. c. 258E, § 1. In the context of G. L. c. 258E, however, a single act is not multiplied by the number of witnesses to that act. Cf. Commonwealth v. Quinn, 439 Mass. 492, 501, 789 N.E.2d 138 (2003) (in context of G. L. c. 272, § 16, act of openly and intentionally exposing oneself to multiple people constitutes single act of open and gross lewdness).

Nor did the fact that M.D. received notice of the song from multiple people constitute additional acts of harassment perpetrated by the defendant. The record contains no indication that the defendant directed anyone to notify M.D. of the song. Rather, M.D. was informed about the song by his friends, acting of their own volition. Indeed, the defendant removed the song from the Internet two hours after posting it because M.D.'s friends were threatening "to beat him up." The actions of the individuals who notified M.D. about the song are not attributable to the defendant.

The defendant's conduct, troubling and offensive as it was, failed to satisfy the threshold requirement of G. L. c. 258E, § 1, that a defendant commit at least three acts of harassment, without which a civil harassment prevention order cannot issue under G. L. c. 258E, § 3 (a ). Vacatur of the orders in this case therefore is required. Moreover, "if a judge vacates a harassment prevention order, law enforcement officials shall destroy 'all record' concerning such order." Seney, 467 Mass. at 60-61, 3 N.E.3d 577, quoting G. L. c. 258E, § 9.

We therefore remand the case to the District Court for entry of an order vacating and setting aside the harassment prevention orders, and for further actions required by G. L. c. 258E, § 9.

So ordered.

      See https://soundcloud.com.

      See https://www.snapchat.com.

      The motion judge heard testimony from M.D. and F.K. that a high school resource officer informed F.K. that the defendant previously had told that officer that the song's lyrics pertained to F.K. The defendant did not object to the introduction of this testimony. See Frizado v. Frizado, 420 Mass. 592, 597-598, 651 N.E.2d 1206 (1995), abrogated on another ground by Zullo v. Goguen, 423 Mass. 679, 681, 672 N.E.2d 502 (1996) (in context of abuse prevention order sought under G. L. c. 209A, "[the] rules of evidence need not be followed, provided that there is fairness in what evidence is admitted and relied on"). Nor has the defendant contested that F.K. was one of the subjects of the song.

      Although the defendant did not share the song with M.D. directly, the judge found that listening to the song placed M.D. "in fear of imminent serious physical harm." The judge also found that the song caused both F.K. and M.D.'s father to fear for their physical safety.

      The judge credited F.K.'s testimony that the song remained accessible on the Internet. F.K. stated, however, that the song remained accessible only to a small group of SoundCloud members, as the result of an apparent flaw in the SoundCloud application or website, not because of any act or omission by the defendant.

      In the alternative, the defendant requested that the harassment prevention orders be modified to allow him to attend his high school graduation ceremony. The judge denied this request.

      Pursuant to O'Brien v. Borowski, 461 Mass. 415, 418, 961 N.E.2d 547 (2012), appeals from harassment prevention orders obtained under G. L. c. 258E, § 1, must be filed in the Appeals Court.

      Although harassment prevention orders are civil in nature, violation of a harassment prevention order is a criminal offense. See, e.g., G. L. c. 258E, § 4 ; Seney v. Morhy, 467 Mass. 58, 60, 3 N.E.3d 577 (2014). Criminal sanctions imposed under G. L. c. 258E may include "a fine of not more than $5,000"; "imprisonment for not more than [two and one-half] years in a house of correction"; payment of additional fees and assessments; or completion of "an appropriate treatment program based on the offense." See G. L. c. 258E, § 9. A judge also may order that a defendant pay certain damages to the plaintiff, including attorney's fees. Id.

      A court may later extend a harassment prevention order upon motion of the plaintiff, consistent with the requirements of G. L. c. 258E, § 3 (d ).

      Although not expressly stated in G. L. c. 258E, our prior jurisprudence indicates that a plaintiff who seeks a harassment prevention order under G. L. c. 258E, § 3 (a ), must demonstrate by a preponderance of the evidence that the order is warranted. See, e.g., Frizado, 420 Mass. at 597, 651 N.E.2d 1206 (plaintiff seeking civil abuse prevention order under G. L. c. 209A, "must make a case for relief by a preponderance of the evidence"). See also MacDonald v. Caruso, 467 Mass. 382, 386-387, 5 N.E.3d 831 (2014).

      General Laws c. 258E, § 1, provides another definition of "harassment," not applicable to this case: "an act that ... (A) by force, threat or duress causes another to involuntarily engage in sexual relations; or (B) constitutes a violation of [G. L. c. 265, § 13B, 13F, 13H, 22, 22A, 23, 24, 24B, 26C, 43 or 43A,] or [G. L. c. 272, § 3 ]."


source: Caselaw Access Project

license: Public Domain

text:
    In the MATTER OF M.C.
    SJC-12481
    Supreme Judicial Court of Massachusetts, Suffolk..
    Argued October 1, 2018 Decided February 5, 2019
    The following submitted briefs for amici curiae:
    Debra Kornbluh (Anne Kealy also present) for M.C.
    Suleyken D. Walker, Assistant Attorney General, for Department of Mental Health.
    Susan Stefan for Aaron Needle & others.
    Brian Almeida, Michael Boyne, Jessica Deratzian, James T. Hilliard, & Michael Porter for Massachusetts Psychiatric Society, Inc., & others.
    Elizabeth B. McCallum, of the District of Columbia, & Mark I. Bailen for Judge David L. Bazelon Center for Mental Health Law & others.
    Karen Owen Talley, Committee for Public Counsel Services, & Robert D. Fleischner, Jennifer Honig, & Stanley J. Eichner for Committee for Public Counsel Services & others.
    Wayne Ramsay, pro se.
    Thomas F. Schiavoni, pro se.
    Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
   GAZIANO, J.

After being charged with misdemeanor breaking and entering and wanton destruction of property, M.C. was found incompetent to stand trial. He was committed temporarily to a psychiatric facility pending a civil commitment hearing, to be held pursuant to G. L. c. 123, § 5 ; during that time, M.C. was diagnosed as having schizophrenia. Although he sought to have it conducted at a court house, the hearing on M.C.'s civil commitment was held in a hearing room at the facility. Toward the beginning of the proceeding, the court-owned recording equipment malfunctioned. Two different alternate recording devices were used to record the remainder of the hearing, with the result that the transcript of the proceedings is in places incomplete. At the end of the hearing, M.C. was civilly committed for a period of two months. Ultimately, after an unsuccessful motion to vacate and a recommitment for an additional period of three months, he was released.

We are asked to determine whether conducting the hearing at the hospital rather than at a court house violated M.C.'s right to due process, particularly in light of the malfunctioning recording equipment. In addition, we must decide whether his right to due process was violated when the Appellate Division of the Boston Municipal Court denied M.C.'s motion to vacate the commitment order, in particular given the irregular recording procedures and the absence of a complete, verbatim transcript.

We conclude that the available transcript provides an adequate basis for appellate review and contains evidence sufficient to support M.C.'s involuntary commitment. On this record, we conclude that M.C. was not denied due process of law. At the same time, however, we emphasize that a judge presiding over a civil commitment hearing pursuant to G. L. c. 123, § 5, retains the discretion to determine the location of the hearing on a case-by-case basis. All civil commitment hearings, wherever conducted, must be recorded and must operate as open, public proceedings. These protections are critical to ensuring that civil commitment hearings safeguard individuals' rights to due process and equal access to the courts.

1. Background. The following facts are not disputed. In May 2016, M.C. was arraigned in the District Court on charges of breaking and entering and misdemeanor wanton destruction of property. He was released on personal recognizance. When M.C. appeared in court in August 2016, a competency hearing pursuant to G. L. c. 123, § 15 (a ), was ordered to determine whether M.C. was able to stand trial. That same day, the court ordered that M.C. be temporarily committed without bail and sent to the Worcester Recovery Center and Hospital for evaluation, pursuant to G. L. c. 123, § 15 (b ). Ultimately, M.C. was released with the condition that he abstain from drugs and alcohol and report to the probation department in person twice a week. In late August 2016, he failed to report to the probation department, as was required under the terms of his release. When M.C. appeared in court in December 2016, on a default warrant, the court again ordered that he be evaluated pursuant to G. L. c. 123, § 15 (a ), for competency to stand trial. The defendant was found incompetent and was hospitalized at the Solomon Carter Fuller Mental Health Center (Solomon Carter), pursuant to G. L. c. 123, § 16 (a ).

In January 2017, M.C. again was found incompetent to stand trial. That same day, the Commonwealth filed a petition under G. L. c. 123, § 16 (b ), to extend the prior order of commitment. Later that month, a District Court judge yet again found M.C. incompetent to stand trial, further extended the order of commitment, and granted a request to change venue to the Boston Municipal Court. Solomon Carter also filed a petition for authorization to treat M.C. medically (administer antipsychotics) pursuant to G. L. c. 123, § 8B, based on the prior diagnosis of schizophrenia. A commitment hearing was scheduled for later that month, within the statutorily mandated fourteen-day window. See G. L. c. 123, § 7 (c ) ; Hashimi v. Kalil, 388 Mass. 607, 609-610, 446 N.E.2d 1387 (1983) (language of G. L. c. 123, § 7 [c ], is mandatory and jurisdictional). Two days before the hearing was to take place, M.C. filed a motion for a continuance. The motion was allowed, and the commitment hearing was rescheduled, to a date two days before the statutory deadline.

The day before the rescheduled hearing, M.C. filed a motion to conduct the hearing at the Boston Municipal Court rather than at Solomon Carter. See G. L. c. 123, § 5 ("The court may hold the hearing [at a court house or] at the facility or said hospital"). As grounds for the motion, M.C. asserted that civil commitment hearings implicate an important liberty interest; that he was aware of no other class of litigants for whom adjudicatory court hearings were "routinely held in a non-neutral, segregated court setting such as a psychiatric hospital"; that a respondent who seeks to have a hearing conducted at a court house "is merely asserting his right to stand on an equal footing with all other non-disabled litigants"; that "[e]qual access to the courts is guaranteed as a matter of both equal protection and the non-discrimination provisions of Title II of the Americans with Disabilities Act (ADA)"; and that "the recordings in most hospital hearings are not sufficiently complete or accurate to be transcribed." He did not file a request for an additional continuance and did not request to be heard on the motion. The Department of Mental Health (DMH) opposed M.C.'s motion on a number of grounds. It argued that holding the commitment hearing outside the facility would require special transportation for M.C. "at considerable time and expense" and that he "would pose a safety risk to himself and others" in transit to the court or in a holding cell at the court house. DMH also asserted that functioning digital recorders were available at the Solomon Carter facility and that "there would be no barrier or hindrance to the Court being able to provide a full and accurate copy of the recording if it were requested." In addition, DMC asserted that the ADA would not apply, and that, even if the ADA did apply, the safety requirements that were asserted with respect to the other claims were equally applicable to the ADA claim to prevent "harmful behavior [by M.C.] to himself or others." Noting that the "motion [was], inter alia, untimely," a judge of the Boston Municipal Court denied the motion.

The Boston Municipal Court judge conducted the hearing on civil commitment in a "hearing room" on the seventh floor of the Solomon Carter facility. In an affidavit, M.C.'s hearing counsel described the room as follows:

"The room provided for the mental health proceeding contains two long rectangular tables for counsel, the respondent and the attending doctor which faced one long rectangular table where the judge sits. "There are 4-5 chairs lined up behind 'counsel tables,' a chair at the end of the judge's table for the clerk, and a chair approximately diagonal from counsel table where the court officer sits. There is an American flag behind the judge's table."

Initially, the hearing was recorded using a recording device whose batteries had not been replaced in some time. The recorder stopped functioning after the hearing began. When he learned of the equipment failure, M.C. moved orally that the remainder of the hearing be conducted at a court house. The motion was denied. Alternate devices then were used to record the majority of the hearing. These devices included an assistant clerk-magistrate's personal iPhone cellular telephone and a cassette tape recorder.

In combination, the substitute recording devices enabled production of a transcript detailing most, but not all, of the hearing, punctuated by some breaks and inaudible sections. The recorded portions of the hearing include the testimony of the sole witness (an inpatient psychiatrist on the inpatient unit at Solomon Carter);

the parties' closing statements; and the judge's issuance of his ruling.

The inpatient psychiatrist testified that she had observed M.C. at Solomon Carter approximately five days per week. During this period, she saw him exhibit disorganized behavior, paranoia, and hallucinations. On four occasions, M.C. engaged in violent behavior that required physical and chemical restraints. M.C. was restrained on four different occasions after throwing a metal laundry hamper; punching a glass window; punching a glass window and kicking a door; and throwing a tray, spitting at staff, and attempting to assault a female patient. The psychiatrist testified that, on one occasion during his temporary commitment for evaluation, she noticed that M.C. had a black eye. When asked about the injury, M.C. explained that he had punched himself.

The psychiatrist testified also that, on one occasion, M.C. defecated on himself and then refused to shower. At other times, M.C. had "been throwing coffee and food on the walls of his room," and had "thrown coffee at the ceiling." The psychiatrist testified further that M.C. clogged his toilet with socks and towels; had "been spitting on the kitchen tables, where he knows other patients eat;" and "also [had]

been spitting into his hand and rubbing the spigot that the water comes out of in our water fountain with the spit." At times, M.C. struggled with food and liquid intake. There was one thirty-eight-day period during which he did not shower. When repeatedly told to shower, M.C. informed staff members that he did not have a change of clothes. When staff members brought M.C. a change of clothes, M.C. "said that the pants were laughing at him."

Overall, the psychiatrist testified that, in her opinion, if M.C. were to be discharged on the day of the hearing, he would pose a substantial risk of harm to himself as a result of his mental illness. She based this opinion on M.C.'s demonstrated limited ability to care for himself, as evidenced by hygiene issues and poor oral intake. The psychiatrist testified further that M.C.'s attempts to assault a female patient and demonstrated history of throwing large objects would place other people in fear of serious physical harm. The psychiatrist did not believe that there was any less restrictive setting than inpatient hospitalization in which M.C. would not pose a substantial risk of serious harm to himself or others as a result of his mental illness.

At the close of the evidence, the judge found beyond a reasonable doubt that M.C. suffered from schizophrenia and that, if not committed, he would pose a significant, imminent risk of harm to himself or to others. The judge ordered that M.C. be involuntarily committed to Solomon Carter for a period of two months, pursuant to G. L. c. 123, § 8. The judge noted that M.C. was "fearful" of taking medication because of a prior history of substance abuse, and accordingly, the judge took no action on the petition to treat M.C. with medication. M.C. filed a timely notice of appeal to the Appellate Division, under G. L. c. 231, § 108, and Rule 8C(b) of the District/Municipal Courts Rules of the Appellate Division of the District Court.

2. Postcommitment proceedings. After M.C.'s period of commitment expired, he filed a motion pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), for relief from the order of commitment. That motion was denied without a written opinion. The following day, a judge of the District Court dismissed the criminal charges against M.C. Thereafter, a Boston Municipal Court judge ordered that M.C. be civilly committed pursuant to G. L. c. 123, § 16 (c ), for a period not to exceed three months. Subsequently, M.C. filed a timely notice of appeal and an amended notice of appeal from the initial order of commitment and the denial of his rule 60 (b) motion.

M.C. was discharged in August 2017, before his appeal was heard. Asserting improper service of process and arguing that M.C.'s appeal was moot following his release, Solomon Carter moved to dismiss the appeal pursuant to G. L. c. 123, § 9A. After a hearing in September 2017, the Appellate Division of the Boston Municipal Court allowed Solomon Carter's motion to dismiss, on the ground that M.C.'s appeal was moot because the order of commitment had expired. In November 2017, M.C. filed a notice of appeal to the Appeals Court from the Appellate Division judgment. We granted direct appellate review.

3. Discussion. a. Mootness. Solomon Carter argues that M.C.'s claims should be dismissed as moot because the initial commitment resulting from the February 2017, order expired after two months, and M.C. was recommitted in May 2017, and discharged three months later.

"[L]itigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome." Seney v. Morhy, 467 Mass. 58, 61, 3 N.E.3d 577 (2014), quoting Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703, 341 N.E.2d 902 (1976). Here, notwithstanding that he was discharged from Solomon Carter before his appeal was filed, and that he was recommitted to Solomon Carter on a subsequent occasion, M.C. retains a surviving interest in establishing that the February 2017, order of civil commitment was not lawfully issued. In the context of involuntary hospitalization, "[a]lthough an expired or terminated [commitment] order may no longer have operative effect, [an] appeal should not be dismissed without considering the merits of the underlying [commitment] order." Matter ofF.C., 479 Mass. 1029, 1030, 97 N.E.3d 333 (2018). This is because, "[a]t the very least, a person who has been wrongfully committed or treated involuntarily has 'a surviving interest in establishing that the orders were not lawfully issued, thereby, to a limited extent, removing a stigma from his name and record.'" Id. at 1029-1030, 97 N.E.3d 333, quoting Seney, supra at 62, 3 N.E.3d 577. The length of time for which an individual is committed is relevant to the stigma arising from that commitment. See Matter of E.A.L., 179 Or. App. 553, 556, 41 P.3d 440 (2002) ("the stigma that arises from commitment is a function not only of the fact of commitment but, also, of its duration"). Accordingly, the stigma occasioned by one involuntary commitment is not erased by a subsequent recommitment. Therefore, M.C.'s case is not moot, and we decide his claims on the merits.

b. Due process. M.C. asserts that his rights to a fair trial and appeal were violated when the Boston Municipal Court judge allowed the civil commitment hearing to proceed after learning of the malfunction of the recording device, thereby resulting in the use of irregular recording equipment and the consequent production of an incomplete transcript.

We review the denial of a motion under Mass. R. Civ. P. 60 (b) for abuse of discretion. See Murphy v. Administrator of the Div. of Personnel Admin., 377 Mass. 217, 227, 386 N.E.2d 211 (1979) ("It is well established that denial of a motion under Rule 60 [b] will be set aside only on a clear showing of an abuse of discretion"). We conclude that the existing transcript demonstrates a sufficient basis for involuntary commitment, and that M.C.'s due process rights were not violated in this case. Accordingly, we affirm the denial of the motion to vacate the order of commitment, on different grounds.

As we have observed, "commitment hearings have been increasingly clothed with the procedural protections and formality typical of other civil (and criminal) trials." Kirk v. Commonwealth, 459 Mass. 67, 72, 944 N.E.2d 135 (2011). "The provisions of G. L. c. 123 balance the rights of and protections for incompetent persons with the Commonwealth's interest in 'protecting the public from potentially dangerous persons' who may be unable to control their actions because of their mental condition." Matter of E.C., 479 Mass. 113, 119, 92 N.E.3d 724 (2018), citing Commonwealth v. Calvaire, 476 Mass. 242, 246, 66 N.E.3d 1028 (2017). Accordingly, where the prescribed procedures are followed, "an individual's due process rights ... are protected at a hearing under G. L. c. 123, §§ 7 and 8." Matter of E.C., supra at 121, 92 N.E.3d 724. The liberty interest at stake in a civil commitment proceeding is "massive." See, e.g., Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972) (confinement "for compulsory psychiatric treatment" entails "a massive curtailment of liberty").

An individual facing involuntary commitment under G. L. c. 123, §§ 7 and 8, has the right to notice and a hearing, the right to an attorney, the right to introduce evidence, the right to an independent medical evaluation, and the right to cross-examine witnesses. See G. L. c. 123, § 5 ; Matter of E.C., 479 Mass. at 121, 92 N.E.3d 724. Individuals do not, however, have a due process right to select the location of a judicial proceeding. See, e.g., Foley v. Commonwealth, 429 Mass. 496, 500, 709 N.E.2d 794 (1999) (where motion judge was authorized by statute "to adjourn the court, whenever the public convenience makes it expedient, to the Massachusetts Correctional Institution at Bridgewater," judge lawfully could hold arraignment sessions outside secured housing area of correctional facility without making formal findings of fact that public convenience requires such action); Commonwealth v. DeBrosky, 363 Mass. 718, 721, 297 N.E.2d 496 (1973) (to enable hospitalized witness to complete cross-examination, "[t]he judge had the authority to transfer the trial to the auditorium of the hospital in the reasonable exercise of his discretion," over defendant's objection).

An individual subject to civil commitment proceedings under G. L. c. 123, § 16, "is entitled to a 'record of sufficient completeness to permit proper consideration of his claims [on appeal].' " Commonwealth v. Imbert, 479 Mass. 575, 577-578, 97 N.E.3d 335 (2018), quoting Mayer v. Chicago, 404 U.S. 189, 194, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971). See Standard 4:02 of the Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness (rev. Dec. 2011) (Standards of Judicial Practice) (commitment hearings must be recorded electronically on appropriate recording device, with recording made available to parties). Transcripts of civil commitment proceedings are useful for appellate review of questions related to the sufficiency of evidence, and to protections of due process rights. At the same time, it is well established that the right to a record of sufficient completeness "does not 'translate automatically into a complete verbatim transcript.' " Imbert, supra at 578, 97 N.E.3d 335, quoting Mayer, supra.

When portions of a transcript are unavailable or otherwise incomplete "through no fault of the parties," then "'rough accommodations' in the method in which an appeal is presented are constitutionally permissible." Commonwealth v. Harris, 376 Mass. 74, 77, 379 N.E.2d 1073 (1978). Alternatives to a complete verbatim transcript are "constitutionally adequate if they bring before the appellate court an account of the events sufficient to allow it to evaluate the defendant's contentions." Id., citing Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971). Furthermore, "[e]ven if a [party] asserts an appellate claim which requires recourse to a transcript, he is not necessarily entitled to the full transcript." Bundy v. Wilson, 815 F.2d 125, 135 (1st Cir. 1987).

We consider the existing record in this case as sufficient to permit appellate review and to enable proper disposition of M.C.'s appeal. There is "enough in the record pertinent to the point to enable us to decide [this appeal] without resort to speculation." Commonwealth v. Bottiglio, 357 Mass. 593, 597, 259 N.E.2d 570 (1970). The existing record supports the motion judge's finding of proof beyond a reasonable doubt that M.C. was mentally ill and that, as a result of his mental illness, "the discharge of such person from a facility would create a likelihood of serious harm." See Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 780 n.8, 889 N.E.2d 929 (2008), quoting G. L. c. 123, § 8 (a ). See also Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 276, 372 N.E.2d 242 (1978) (standard of proof beyond reasonable doubt of likelihood of serious harm is required in cases of civil commitment for mental illness under G. L. c. 123, § 16 [b ] ).

The record also contains sufficient evidence to support the psychiatrist's conclusion that M.C.'s release could pose an imminent risk of danger, based on his repeatedly demonstrated use of physical force against others and himself. See Commonwealth v. Nassar, 380 Mass. 908, 917, 406 N.E.2d 1286 (1980) (" 'Immediacy' is linked to the requirement of an enhanced standard of proof in the sense that the forecast of events tends to diminish in reliability as the events are projected ahead of time"). See also Matter of G.P., 473 Mass. 112, 128, 40 N.E.3d 989 (2015) (in context of G. L. c. 123, § 35, "what must be shown is a substantial risk that the harm will materialize in the reasonably short term -- in days or weeks rather than in months").

Finally, the evidence at the hearing also was sufficient to support the judge's determination that "no less restrictive alternative to hospitalization is appropriate." Newton-Wellesley Hosp., 451 Mass. at 780 n.8, 889 N.E.2d 929, citing Nassar, 380 Mass. at 917-918, 406 N.E.2d 1286. See Nassar, supra (in context of civil commitment proceedings, all parties should aim "to find the least burdensome or oppressive controls over the individual that are compatible with the fulfilment of the dual purposes of our statute, namely, protection of the person and others from physical harm and rehabilitation of the person").

Overall, the available record demonstrates the existence of sufficient evidence to commit M.C. involuntarily pursuant to G. L. c. 123, § 16 (b ).

We do not agree with M.C.'s assertion that the motion judge committed legal error in denying M.C.'s motion under Mass. R. Civ. P. 60 (b) for relief from judgment after the judge learned that M.C. had not received a verbatim transcript of the civil commitment hearing.

Here, the incomplete transcript resulted from an equipment malfunction that was not the fault of either party. As the motion judge noted, even court houses equipped with new recording systems occasionally experience recording equipment malfunctions. Generally, a party seeking to reconstruct proceedings must seek relief in the court where the proceeding took place, and "where [the party] may try to reconstruct the trial proceedings in a manner that will be sufficient for [the party] to present his [or her] claims on appeal." See Drayton v. Commonwealth, 450 Mass. 1028, 1029, 879 N.E.2d 1240 (2008), citing Harris, 376 Mass. at 79, 379 N.E.2d 1073. Here, M.C. did not file any pleading under Mass. R. A. P. 8 (e), as amended, 378 Mass. 932 (1979), in order to correct the record before the motion judge. See Commonwealth v. Woody, 429 Mass. 95, 98, 706 N.E.2d 643 (1999) ("Gaps or inaudible portions of a tape recording are most closely governed by Mass. R. A. P. 8 [e] .... [T]he appellant may determine if the omissions are material, in which event the appellant has the burden to settle the record as provided in Mass R. A. P. 8 [c] and [e]"). This clearly is not a case in which the "proceedings cannot be reconstructed sufficiently to present the [petitioner's] claims." See Imbert, 479 Mass. at 578, 97 N.E.3d 335, quoting Harris, supra at 78, 379 N.E.2d 1073. Indeed, the motion judge underscored that he "know[s] how easy it is to get responsible lawyers and a judge to reconstruct a three- to four-week trial, let alone an hour-long hearing."

Here, the record is adequate to determine the merits of the underlying issue, in other words, to provide the defendant and his counsel a sufficient record upon which to challenge the findings and rulings. Neither party disputes the validity of the transcription of the testimony that actually was recorded, and M.C. does not assert an effort at deliberate concealment of a portion of the proceedings. Beyond pointing out the existence of gaps in the recording, M.C. does not establish how the unrecorded content prejudiced him in the context of these proceedings. There is no dispute as to the existence of a twenty-minute unrecorded segment of the hearing. With respect to this unrecorded segment, however, Solomon Carter agrees that "there is no controversy over the items M.C. identifies as missing." Solomon Carter also "agrees that M.C.'s objection to continuing the hearing [is] preserved." The existence of other gaps and pauses noted on the transcript do not outweigh the strength of the testimony that was recorded, or the validity of the result to be drawn from it.

We discern no error in the Appellate Division's conclusion that the steps taken by the motion judge to initiate backup recording of the hearing were "appropriate and reasonable." The judge acted within his discretion to continue the hearing using alternate recording devices, which he believed in good faith were "effective" and "adequate," and therefore would produce an accurate recording. We defer to the motion judge's finding that all recording devices were used with his knowledge and authority. Accordingly, we reject M.C.'s argument that the recording devices were "unofficial" within the meaning of Special Rule 308(B) of the Boston Municipal Court Department Sitting for Civil Business (1989). As the judge explained at the hearing on M.C.'s motion:

"When it was discovered by the clerk, who alerted me, that the new digital recording recorder was not operating, the supplementation of that device, first by the iPhone and then by the cassette recorder, both were done openly and with the sole intent to see to it that the proceeding was substantially recorded as best as possible under the circumstances."

The judge further explained that the clerk-magistrate had used his iPhone at the initial commitment hearing "with [the judge's] authority, in an attempt to keep the hearing progressing," and only "because the primary device to record the proceedings had failed."

c. Open proceedings. There is no evidence in the record to indicate that members of the public were prevented, or would have been prevented, from attending the civil commitment hearing. There is, however, some suggestion of a misconception that civil commitment proceedings are by nature closed and hidden from public view. Because the liberty interests at stake in civil commitment proceedings are great, we exercise our discretion to address questions related to the open nature of civil commitment proceedings under G. L. c. 123, § 16. We affirm today that civil commitment proceedings under G. L. c. 123, § 16 (b ), are presumptively open to the public.

In Kirk, 459 Mass. at 68, 944 N.E.2d 135, this court held that "recommitment proceedings pursuant to G. L. c. 123, § 16 (c ), are presumptively open to the public." We noted the "likely beneficial effects of public access to such proceedings." Id. at 73, 944 N.E.2d 135. We also noted that " G. L. c. 123, §§ 5 and 16, the provisions governing commitment hearings and the commitment of those not guilty by reason of mental illness, with which we are concerned, do not speak of closure." Id. at 75, 944 N.E.2d 135. While our holding in Kirk, supra at 73 n.9, 944 N.E.2d 135, was "limited to the question of closure as it regards G. L. c. 123, § 16 (c )," both parties read that case to indicate that civil commitment proceedings more broadly are presumptively open to the public. Indeed, after our decision in Kirk, the District Court issued revised standards of judicial practice interpreting Kirk to suggest that the rule of presumptive openness "should be applied in all civil commitment proceedings for mentally ill persons." See Standard 4:01 & commentary of the Standards of Judicial Practice. We clarify our endorsement of the District Court's interpretation. "Openness ... enhances both the basic fairness of the [proceeding] and the appearance of fairness so essential to public confidence in the system." Foley, 429 Mass. at 499, 709 N.E.2d 794, quoting Press-Enter. Co. v. Superior Court, 478 U.S. 1, 13, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986). "The physical layout of the place in which the [proceedings] are held and its accessibility to the public are important considerations in deciding whether the proceedings conducted there are properly public." Foley, supra.

d. Superintendence authority. At present, the Boston Municipal Court and District Court standards of judicial practice imply a preference for holding civil commitment proceedings in health care facilities rather than at court houses. Those courts' Standards of Judicial Practice for Civil Commitment and Authorization of Medical Treatment for Mental Illness provide that

"[h]earings may be conducted away from the courthouse and at the petitioning mental health facility or Bridgewater State Hospital. G. L. c. 123, § 5. Normally it is desirable to do so if appropriate decorum, security, recordation and public access are available."

Standard 4:00 of the Standards of Judicial Practice. Notwithstanding this section of the guidelines, G. L. c. 123, § 5, requires no such baseline preference for holding hearings at mental health facilities over court houses.

General Laws c. 123, § 5, authorizes, but does not require, a motion judge to conduct civil commitment hearings under G. L. c. 123, §§ 7 and 8, at a mental health facility rather than at a court house. General Laws c. 123, § 5, provides a judge with flexibility to determine the location of a civil commitment hearing under G. L. c. 123, §§ 7 and 8. The statute obligates the court to provide "[n]otice of the time and place of [the] hearing ... to the department, the person, his counsel, and his nearest relative or guardian," G. L. c. 123, § 5, and states that "[t]he court may hold the hearing at the facility or said hospital," id. "The use of the word 'may' in a statute is generally permissive, reflecting the Legislature's intent to grant discretion or permission to make a finding or authorize an act." Commonwealth v. Dalton, 467 Mass. 555, 558, 5 N.E.3d 1206 (2014). "It is axiomatic in statutory construction that the word 'shall' is an imperative and that the word 'may' does not impose a mandate but simply authorizes an act." School Comm. of Greenfield v. Greenfield Educ. Ass'n, 385 Mass. 70, 81, 431 N.E.2d 180 (1982). Accordingly, we emphasize that, under G. L. c. 123, § 5, a judge presiding over a civil commitment hearing retains discretion to determine the location of the hearing on a case-by-case basis. The language of G. L. c. 123, § 5, does not express a preference for any particular location. Irrespective of the location where a hearing may be held, as the Standards of Judicial Practice rightfully note, "appropriate decorum, security, recordation and public access" are required for such hearings, wherever they occur. See Standard 4:00 of the Standards of Judicial Practice.

Ensuring adequate protection of due process rights of all individuals subject to civil commitment hearings is necessary to "the furtherance of justice, the regular execution of the laws, the improvement of the administration of such courts, and the securing of their proper and efficient administration." See G. L. c. 211, § 3. In order to safeguard the due process rights of individuals subject to possible civil commitment, civil commitment proceedings pursuant to G. L. c. 123, § 16, must be recorded adequately. It also must be made clear to judges presiding over civil commitment hearings that G. L. c. 123, § 5, expresses no preference with respect to the location where civil commitment hearings are held, but, rather, accords the judge discretion.

We expect that the Chief Justice of the Boston Municipal Court and Chief Justice of the District Court will modify, as appropriate, the Boston Municipal Court and District Court Standards of Judicial Practice for Civil Commitment and Authorization of Medical Treatment for Mental Illness in accordance with this decision, paying special attention to ensuring that civil commitment hearings are open to the public and are adequately recorded.

Judgment affirmed.

      We acknowledge the amicus briefs of Aaron Needle, Benjamin Levy, the Western Massachusetts Recovery Learning Community, and the National Association for Rights Protection and Advocacy; the Massachusetts Psychiatric Society, Inc., Massachusetts Association of Behavioral Health Systems, Massachusetts Hospital Association, and Massachusetts Ambulance Association; Wayne Ramsay on behalf of the Law Project for Psychiatric Rights, Inc.; Thomas F. Schiavoni; the Judge David L. Bazelon Center for Mental Health Law, the American Association of People with Disabilities, the Association of University Centers on Disabilities, and the National Council on Independent Living; and the Committee for Public Counsel Services, Center for Public Representation, Mental Health Legal Advisors Committee, and Disability Law Center.

      General Laws c. 123, § 7 (c ), provides in part: "The hearing on a petition brought for commitment pursuant to [§ 15 (e ) ] and [§§] 16 and 18 ... shall be commenced within [fourteen] days of the filing of the petition, unless a delay is requested by the person or his counsel."

      It is not disputed that the Solomon Carter Health Center is a "facility" within the meaning of G. L. c. 123, §§ 1 and 15 (b ).

      In his brief, M.C. argues that the hearing room environment was "inadequate," but does not specify his concerns with respect to the room itself. We note that, to the extent described in an affidavit by a mental health attorney, the layout described appears to conform largely to standards propagated by the District Court. See Standard 4:00 & commentary of the Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness (rev. Dec. 2011).

      M.C. contends, without reference to any supporting authority, that holding his civil commitment hearing at Solomon Carter rather than a court house denied him the equal protection of the laws under the United States and Massachusetts Constitutions. We are unaware of any authority that suggests that an individual has an equal protection right to select the physical location of a commitment hearing, and we note that the statute explicitly contemplates hearings in a hospital. See G. L. c. 123, § 5. In any event, the record does not contain sufficient factual information to enable us to address an equal protection argument. "Where constitutional questions and matters of asserted public policy are raised, it is preferable to pass on the issues in light of a fully developed trial record rather than, as here, in the abstract." Doe v. Doe, 378 Mass. 202, 203, 390 N.E.2d 730 (1979). See McSweeney v. Cambridge, 422 Mass. 648, 655, 665 N.E.2d 11 (1996) (not deciding equal protection claim due to insufficient record). Although we do not agree with Solomon Carter's contention that the issue is waived because it was not raised in the trial court, we also do not address M.C.'s Federal claim that the decision to hold the civil commitment hearing at Solomon Carter's facility rather than at a court house violated his rights under the Federal Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., owing to an incomplete record with respect to this issue.

      The standard of proof under the Massachusetts Constitution is higher than the minimum standard of "clear and convincing" evidence under the United States Constitution. See Addington v. Texas, 441 U.S. 418, 433, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979).

      M.C. also argues that the four cassette tapes he received containing audio recordings of the hearing do not qualify as "a cassette copy of an original recording, or any portion thereof," of the hearing on the petition for civil commitment, as provided by Special Rule 308(A)(5)(a) of the Boston Municipal Court Department Sitting for Civil Business (1989). This distinction, however, is immaterial.

      During the April 2017 hearing on M.C.'s motion under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), months after the civil commitment hearing, the motion judge communicated his understanding as follows:
      "These proceedings are not open to the public. They are held here in a hearing[ ] room in the hospital where the public generally cannot walk into. They are conducted generally with the patient, attorneys, family members and needed security and medical personnel present."
      As noted supra, civil commitment proceedings under to G. L. c. 123, § 16 (b ), are presumptively open to the public.

      At the same time, "[a]s is the case in criminal trials, the right of the public to attend the hearings is not absolute. See Kirk v. Commonwealth, 459 Mass. 67, 73, 944 N.E.2d 135 (2011), citing Commonwealth v. Cohen (No. 1), 456 Mass. 94, 107, 921 N.E.2d 906 (2010).

      General Laws c. 123, § 5, provides, in relevant part:
      "Whenever the provisions of this chapter require that a hearing be conducted in any court for the commitment or further retention of a person to a facility or to the Bridgewater state hospital or for medical treatment including treatment with antipsychotic medication, it shall be held as hereinafter provided.... Notice of the time and place of hearing shall be furnished by the court to the department, the person, his counsel, and his nearest relative or guardian. The court may hold the hearing at the facility or said hospital."