Doe v. Sex Offender Registry Bd. & Others.2

• Decision Date: 03 May 2011
• Docket Number: SJC–10695.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: John DOE, Sex Offender Registry Board No. 10800, & another 1v.SEX OFFENDER REGISTRY BOARD & others.2

459 Mass. 603

947 N.E.2d 9

John DOE, Sex Offender Registry Board No. 10800, & another 1

v.SEX OFFENDER REGISTRY BOARD & others.2

SJC–10695.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Jan. 3, 2011.Decided May 3, 2011.

John G. Swomley, Boston, for the plaintiffs.Randall E. Ravitz, Assistant Attorney General, for Commissioner of Probation & another.David L. Chenail for Sex Offender Registry Board.Ryan M. Schiff & Beth L. Eisenberg, Boston, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.Gary D. Buseck, Boston, for Gay & Lesbian Advocates & Defenders, amicus curiae, submitted a brief.Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, & GANTS, JJ.SPINA, J.

On August 2, 2006, a hearing examiner of the Sex Offender Registry Board (board) found that the plaintiff (Doe) posed a high risk of reoffense and a high degree of dangerousness, and ordered that he register as a level three sex offender. Doe sought judicial review of the decision by filing a six-count complaint in the Superior Court pursuant to G.L. c. 6, § 178M, and G.L. c. 30A, § 14.³ Counts I through IV, presenting claims against the board, challenge the validity of the sex offender registry fee, the lack of public access to a classification hearing, the validity of the classification scheme based on enumerated “factors” set forth in 803 Code Mass. Regs. § 1.40 (2002), the sufficiency of the evidence, the allowance of alleged hearsay evidence, the adequacy of the hearing notice, and the admission of purportedly privileged treatment records. Counts V and VI, presenting claims against the director of the State police crime laboratory (director) and the Commissioner of Probation (commissioner), respectively, challenge the validity of the deoxyribonucleic acid (DNA) collection assessment and a statutory increase in the probation fees. As to Counts I through IV, Doe and the board filed cross motions for judgment on the pleadings. A judge in the Superior Court denied Doe's motion and allowed the board's motion, affirming its classification decision. As to Counts V and VI, the director and the commissioner filed a motion to dismiss the claims against them, which the judge allowed. Doe appealed, and we transferred the case to this court on our own motion. For the reasons that follow, we now affirm.⁴

1. Background. We summarize the facts found by the hearing examiner after an evidentiary hearing held over four dates in May and June, 2006, supplemented by undisputed facts from the record. We reserve other details for our discussion of particular issues.

Between 1988 and 1998, when Doe was in his late thirties and forties, he sexually assaulted four teenage boys whom he knew. Doe became acquainted with his victims, who were from troubled families, when he hired them to do chores around his house and another property that he owned. The sexual assaults occurred on multiple occasions after extended periods of “grooming” each victim. During the time that these events were happening, Doe was an attorney licensed to practice law in Massachusetts.⁵ On July 17, 2000, he pleaded guilty to five charges of rape of a child (no force) in violation of G.L. c. 265, § 23. On four of the charges, Doe was sentenced to concurrent terms of from three to four years in the State prison. On the fifth charge, he received a sentence of lifetime probation with numerous conditions, to be served concurrently with his committed sentences. Doe's period of incarceration lasted from July 31, 2000, until January 8, 2004, and, apart from two minor disciplinary reports, he was deemed to have made a successful adjustment to prison life.

On December 9, 2003, prior to Doe's scheduled release from State prison, the Commonwealth filed a petition for his civil commitment as a sexually dangerous person pursuant to G.L. c. 123A. Doe was temporarily committed to the Massachusetts Treatment Center (treatment center) for evaluation. Subsequently, two qualified examiners, Drs. William Hazelett and Frederick Kelso, concluded that he was a sexually dangerous person. Following a jury trial on July 19, 2004, Doe was so adjudicated and committed to the treatment center for an indeterminate period of from one day to life. During his stay, Doe refused to participate in the sex offender treatment program offered by the facility. Instead, he opted to receive individual treatment through the sex offender program run by the Justice Resource Institute for the Department of Correction.

After approximately one year, Doe filed a petition for examination and discharge from the treatment center pursuant to G.L. c. 123A, § 9. Two different qualified examiners, Drs. Barbara Quinones and Robert Joss, evaluated him and determined that he no longer was a sexually dangerous person; two experts retained by Doe, Drs. Frederick Berlin and Barbara Schwartz, reached the same conclusion. In contrast, the community access board voted unanimously that Doe remained a sexually dangerous person. In January, 2006, a jury found him no longer sexually dangerous, and he was released from confinement. Doe continued individual sex offender treatment with Dr. Robert Prentky of the Justice Resource Institute.

On February 28, 2006, the board notified Doe of his obligation to register as a level three sex offender pursuant to G.L. c. 6, § 178K (2) ( c ).⁶ He then filed a request for an evidentiary hearing to challenge his duty to register and his classification. Doe testified at the hearing. In addition, Dr. Schwartz, a licensed clinical psychologist specializing in the assessment and treatment of sex offenders, testified as an expert witness on his behalf. Dr. Schwartz adopted and expanded on her earlier evaluation of Doe conducted pursuant to his G.L. c. 123A, § 9, petition. She challenged the scientific validity of the board's regulations for determining a sex offender's risk of reoffense and degree of dangerousness as set forth in 803 Code Mass. Regs. § 1.40, and she reaffirmed her opinion that Doe posed a low risk to reoffend. The hearing examiner also considered a variety of documentary evidence, including reports prepared by the qualified examiners with respect to Doe's § 9 petition, medical records submitted by Doe pertaining to his treatment for bladder cancer, and several journal articles about sex offender recidivism. He concluded that the board had proved by a preponderance of the evidence that Doe posed a high risk to reoffend and a high degree of dangerousness such that he should be classified as a level three offender.⁷ We now turn to the issues raised in Doe's complaint for judicial review.

2. Sex offender registry fee. General Laws c. 6, § 178Q, provides that the board “shall assess upon every sex offender a sex offender registration fee of [seventy-five dollars]” (registry fee). Once it has been determined with finality that a sex offender must register with the board, the offender “shall pay said sex offender registry fee upon his initial registration as a sex offender and annually thereafter on the anniversary of said registration.” Id. A sex offender's duty to pay the registry fee “shall only terminate upon the termination of said offender's duty to register as a sex offender as set forth in [G.L. c. 6, § 178G].” Id. The board may waive payment of the registry fee “if it determines that such payment would constitute an undue hardship on said person or his family due to limited income, employment status, or any other relevant factor.” Id. The registry fee shall be collected by the board and “transmitted to the treasurer for deposit into the General Fund.” ⁸ Id. Further, the board “shall account for all such fees received and report said fees annually to the secretary of administration and finance and the house and senate committees on ways and means.” Id.

In Count IV of his complaint, Doe challenges the validity of the registry fee assessed pursuant to § 178Q. He contends that it is not a lawful fee but, instead, is a disproportionate tax on sex offenders and, as such, does not pass constitutional muster. We conclude that the registry fee is a valid regulatory fee.⁹

When reviewing a statute to determine whether an exaction constitutes a fee or a tax, we accord deference to the Legislature's classification of the exaction. See Emerson College v. Boston, 391 Mass. 415, 424, 462 N.E.2d 1098 (1984) ( Emerson College ), and cases cited (holding that monetary charge for augmented fire protection by city of Boston constituted tax to defray cost of public services, not fee for benefit of particular building owners). See also German v. Commonwealth, 410 Mass. 445, 448–449, 574 N.E.2d 336 (1991). Here, the Legislature has designated the exaction imposed on sex offenders as a “registry fee.” G.L. c. 6, § 178Q. We view this classification with deference, recognizing that, ultimately, “the nature of a monetary exaction ‘must be determined by its operation rather than its specially descriptive phrase.’ ” Emerson College, supra, quoting Thomson Elec. Welding Co. v. Commonwealth, 275 Mass. 426, 429, 176 N.E. 203 (1931). See P. Nichols, Taxation in Massachusetts 4 (3d ed. 1938) (declaration of Legislature as to nature of exaction “will be accepted as true, unless incompatible with the meaning and effect of the statute as a whole”). Doe, as the party challenging the exaction, has the burden of proving its invalidity. See Nuclear Metals, Inc. v. Low–Level Radioactive Waste Mgt. Bd., 421 Mass. 196, 201, 656 N.E.2d 563 (1995).

The analytical factors for determining whether an exaction is a tax or a fee were enunciated in Emerson College, supra at 424–425, 462 N.E.2d 1098, and subsequently refined in Silva v. Attleboro, 454 Mass. 165, 170–173, 908 N.E.2d 722 (2009) ( Silva ) (holding that monetary charge assessed by certain municipalities for issuance of burial permit was valid regulatory fee, not unlawful tax). Broadly speaking, a tax has been...