Doe v. Sex Offender Registry Bd..

Decision Date05 August 2011
Docket NumberSJC–10803.
Citation460 Mass. 336,951 N.E.2d 344
PartiesJohn DOE, Sex Offender Registry Board No. 941v.SEX OFFENDER REGISTRY BOARD.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Michael A. Nam–Krane, Boston, for the plaintiff.Jennifer K. Zalnasky (Beatriz E. Van Meek, Special Assistant Attorney General, with her) for the defendant.Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.GANTS, J.

This case raises the question whether the Sex Offender Registry Board (board) had the authority to promulgate a regulation declaring that a sex offender waives the right to a classification hearing by failing to appear at that hearing without good cause. Because the Legislature specified only that the classification hearing is waived where the sex offender does not timely request a hearing, we conclude that the board lacked the authority to declare the hearing waived where a sex offender requests a hearing and the sex offender's attorney is present at that hearing.

Background. Under G.L. c. 6, § 178L (1), the board shall notify a sex offender of its recommended sex offender classification, his right to petition the board to request an evidentiary hearing to challenge the classification, his right to retain counsel to represent him at the hearing, and his right to have counsel appointed for him if he is indigent. Where a sex offender requests such a hearing within twenty days of receiving notice, the board must conduct a hearing within a reasonable time. Id. Where a sex offender fails timely to request such a hearing, the sex offender waives his right to a hearing and the board's recommended classification becomes final. Id.

John Doe is a sex offender who was notified by the board on July 3, 2008, that he had been recommended for reclassification as a level three sex offender; Doe had been classified a level two sex offender since 2004.1 Doe timely requested a hearing to challenge the recommendation under G.L. c. 6, § 178L (1), and was notified that the hearing would take place on January 5, 2009. Doe's attorney was present for Doe's scheduled classification hearing, but Doe did not appear. The hearing examiner continued the hearing to give Doe an opportunity to provide evidence of good cause for his absence, and on January 7, 2009, Doe moved to reschedule the hearing. Doe declared that he had been injured on December 24, 2008, and provided a hospital record showing that he had been treated in the emergency room on that date and had been prescribed medication for pain. He later submitted a medical record showing that he had been treated at an orthopedic clinic on January 7, 2009, for an injury to his right leg.2

The hearing examiner found that Doe had failed to appear at his January 5, 2009, hearing without good cause after having been informed of the consequences of nonappearance. Under 803 Code Mass. Regs. § 1.13(2) (2002), a [f]ailure of the sex offender to appear at the scheduled [classification] hearing without good cause shown shall result in the waiver of the right to a hearing....” The recommended classification then becomes the final board classification, and this classification “shall not be subject to judicial review.” Id. As a result, the hearing examiner concluded that Doe waived his right to a classification hearing and ordered his registration as a level three sex offender without making further findings of fact.

Doe sought judicial review of this classification, but a Superior Court judge dismissed Doe's action, concluding that the court lacked subject matter jurisdiction pursuant to 803 Code Mass. Regs. § 1.13(2). The judge noted that she was “deeply troubled” by this result, because the board did not consider any of the enumerated factors in making its final classification and may have acted contrary to governing law. We transferred the defendant's appeal to this court on our own motion.

Discussion. “Sex offenders have a constitutionally protected liberty and privacy interest in avoiding registration and public dissemination of registration information” that arises from their classification, and therefore, they are entitled to procedural due process in establishing their classification. Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 100, 697 N.E.2d 512 (1998). See Doe v. Attorney Gen., 426 Mass. 136, 149, 686 N.E.2d 1007 (1997) (Fried, J., concurring) (registration “is a continuing, intrusive, and humiliating regulation of the person himself”). Due process requires that, where a sex offender challenges his classification, the board bears the burden of justifying that classification by a preponderance of the evidence at an evidentiary hearing at which an offender has the right to present evidence and cross-examine witnesses, and after which the hearing examiner must make “specific, written, detailed, and individualized findings” supporting the board's final classification. Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., supra at 91, 98, 102–104, 697 N.E.2d 512.

In 1999, the Legislature repealed the existing statute and enacted the present sex offender registry statute to provide more adequate protection of procedural rights. See St.1999, c. 74, § 2. See also Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 775–776, 857 N.E.2d 485 (2006); Roe v. Attorney Gen., 434 Mass. 418, 419, 423, 750 N.E.2d 897 (2001). As a result, a sex offender is now entitled by statute to request an evidentiary hearing to challenge the board's recommended classification, to be represented by counsel at that hearing and to have counsel appointed if he is indigent, and to put the board to its burden to prove the appropriateness of its recommended classification by a preponderance of the evidence. G.L. c. 6, § 178L.

Under G.L. c. 6, § 178L (1), a sex offender waives these due process rights by failing timely to request a classification hearing; the statute provides no other way in which a sex offender can waive the right to a hearing. The board, however, has promulgated a regulation, 803 Code Mass. Regs. § 1.13(2), providing that a sex offender who has invoked his due process rights by requesting a hearing waives his right to that hearing by failing to appear without good cause.

The board claims that this regulation is a valid exercise of its rule making authority pursuant to G.L. c. 6, § 178D, which provides that [t]he board shall promulgate rules and regulations to implement the provisions of sections 178C to 178P, inclusive.” We disagree. Because we have recognized and the Legislature has acted to protect the constitutional rights of sex offenders who face classification determinations, and the Legislature provided for waiver of these due process rights only where a sex offender did not request a hearing, we conclude that 803 Code Mass. Regs. § 1.13(2) is not in harmony with the legislative mandate and is ultra vires. See Commonwealth v. Maker, 459 Mass. 46, 50, 944 N.E.2d 110 (2011) (finding regulation requiring level two or three sex offenders who were incarcerated during classification to report in person to local police department within two days of being released from custody was ultra vires, where nothing in statute authorized board to create new registration requirements); Moot v. Department of Envtl. Protection, 448 Mass. 340, 352–353, 861 N.E.2d...

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  • Doe v. Sex Offender Registry Bd.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • September 13, 2019
    ...but a constitutionally protected liberty interest is at issue in both proceedings." Doe, Sex Offender Registry Bd. No. 914 v. Sex Offender Registry Bd., 460 Mass. 336, 340, 951 N.E.2d 344 (2011). See Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 596,......
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    • Appeals Court of Massachusetts
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    ...of Rights finds considerable support in the case law. See Doe, Sex Offender Registry Bd. No. 941 v. Sex Offender Registry Bd., 460 Mass. 336, 338, 951 N.E.2d 344 (2011), citing Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 100, 697 N.E.2d 512 (1998) ; Co......
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    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • December 6, 2017
    ...by counsel at that hearing and to have counsel appointed if he is indigent." Doe, Sex Offender Registry Bd. No 941 v. Sex Offender Registry Bd., 460 Mass. 336, 339, 951 N.E.2d 344 (2011). See G. L. c. 6, § 178L.10 The Legislature has granted the board broad authority to promulgate rules and......
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    ...that followed the appellate route expressed in the statutory text. Doe, Sex Offender Registry Bd. No. 941 v. Sex Offender Registry Bd., 460 Mass. 336, 341, 951 N.E.2d 344 (2011) ( Doe, No. 941 ). See G.L. c. 6, § 178M; G.L. c. 30A, § 14. Despite the preference for presenting a challenge to ......
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