Doe v. Attorney General

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before WILKINS; WILKINS; FRIED
• Citation: 426 Mass. 136,686 N.E.2d 1007
• Decision Date: 17 November 1997
• Parties: John DOE 1 v. ATTORNEY GENERAL & another. 2

Page 1007

686 N.E.2d 1007 426 Mass. 136 John DOE ¹
v.
ATTORNEY GENERAL & another. ² Supreme Judicial Court of Massachusetts,
Suffolk. Argued Sept. 5, 1997.
Decided Nov. 17, 1997.

Page 1008

John P. Ward (Mary Lisa Bonauto, with him), Boston, for plaintiff.

Jane L. Willoughby, Assistant Attorney General (Peter Sacks, Assistant District Attorney, with her), for Attorney General & another.

Carol A. Donovan & John Reinstein, Boston, for Committee for Public Counsel Services & another, amici curiae, submitted a brief.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

WILKINS, Chief Justice.

Before us, on a report by a judge of the Superior Court on a statement of agreed facts, are challenges to the constitutionality of the registration and notification requirements [426 Mass. 137] of the sex offender act (G.L. c. 6, §§ 178C-178O) as applied to the plaintiff who has been convicted of indecent assault and battery.

The plaintiff contends that the act's automatic classification of him as a level one sex offender deprives him of procedural due process in violation of the State and Federal Constitutions. He also argues that the act as applied to him constitutes punishment in violation of State and Federal guarantees against ex post facto laws, double jeopardy, and cruel and unusual punishment. We agree with the plaintiff that the act denies him procedural due process guaranteed by the Constitution of the Commonwealth. The act fails to grant him a hearing and fails to require a finding, if a hearing is held, as to whether he presents a risk to children and other vulnerable persons for whose protection the Legislature adopted the registration and notification requirements of the act. We do not reach the question whether the act

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imposes constitutionally impermissible punishment on the plaintiff. ³

1. Facts. In 1990 Doe pleaded guilty in a District Court to [426 Mass. 138] one count of indecent assault and battery (G.L. c. 265, § 13H). The judge imposed a $62 fine and placed the defendant on probation for two years. The complainant in that case was a State police officer on undercover duty at a highway rest area. An adjacent wooded area was reputed to be a locale for consensual sexual activity between males. During the course of this undercover operation, the plaintiff stopped at the rest area and entered the woods. He approached the undercover officer who was standing in the woods. Following a brief, innocent conversation, the plaintiff placed his right hand in the area of the officer's right front trouser pocket and squeezed. The plaintiff then moved his hand to the officer's groin and moved his hand in a circular direction. The officer then identified himself and arrested the plaintiff. The plaintiff had been convicted in 1989 of one count of unnatural acts involving consensual sexual activity in woods near a highway rest area.

The plaintiff, a life-long resident of the Commonwealth, graduated from high school in 1954, served in the United States Marine Corps, and in recent years has been a self-employed carpenter. He is married and has two adult children who in turn have children. They all have lived in the rural community where the children were raised. His wife and children still live there, but, when his wife learned of the 1990 conviction, she asked the plaintiff to leave their home, and he did. The plaintiff asserts that his sexual interests are exclusively oriented to other consenting adults and that he considers himself primarily heterosexual. He would be embarrassed and humiliated if his children, friends, associates, and coworkers knew that he has had homosexual experiences. The plaintiff consistently states that he has seriously considered suicide rather than face the humiliation and disgrace of registering as a sex offender.

The plaintiff has certain beliefs. The defendants do not stipulate that these beliefs are reasonable. The plaintiff believes that (1) any disclosure of his sexual activity with other men will have a devastating effect on his wife, children, and grandchildren, and consequently on him for being the cause of their pain; [426 Mass. 139] 2) if the fact of his registration becomes known in the community where he lives, he will be subject to scorn, ridicule, and ostracism by his neighbors and will become a social pariah; (3) public dissemination

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of the fact of his homosexual experiences will cost him many, if not all, of his friendships; and (4) if his carpentry customers learn that his name is on a list of sex offenders, he will find it difficult, if not impossible, to continue in the employ of these customers and to find new work, regardless of how he attempts to explain the presence of his name on the list of sex offenders.

2. The due process issue. The major premise underlying the sex offender act is that disclosure of the presence of a sex offender in a particular community will help protect minors and other persons vulnerable to becoming victims of sex crimes. The extent of the disclosure varies in proportion to the risk that an offender will reoffend: the greater the risk, the greater the disclosure. The sex offender act prescribes procedures that must be followed if an offender is to be subjected to the broader disclosures applicable to persons in the moderate (level two) and high (level three) risk classifications. This case does not, however, involve a constitutional challenge to the procedures applicable to the two highest risk levels. This case is presented on the assumption that the plaintiff will be classified as a low level (level one) offender.

The plaintiff's due process challenge is to the absence of any statutory procedure that would permit or require a determination that a low level sex offender should not be required to register at all. Relying on assertions of State and Federal rights to procedural due process of law, the plaintiff contests the Legislature's determination that a level one offender must register and have the record of his convictions publicly available, without first having the right to a hearing to assess whether he is likely to harm the persons the sex offender act seeks to protect. The plaintiff argues that neither the manner in which he committed the crime of indecent assault and battery, nor any other circumstance, justifies the conclusion that he is a threat to anyone, and particularly to children or to any other nonconsenting potential victim of a sex crime. ⁴ He does not argue that, facially or as applied to him, there is no rational relation [426 Mass. 140] between the crime of indecent assault and battery and a registration requirement. Rather he asserts that he may be required to register only after he has had an opportunity for a hearing and, if a hearing is held, after a determination that he is a threat to the persons for whose protection the registration requirement has been imposed. This procedural due process issue, concerning the registration requirement of the sex offender act, was not addressed by the Justices in 1996, when they were asked certain questions about a bill concerning sex offender registration and notification that is different from the bill that was finally enacted. See Opinion of the Justices, 423 Mass. 1201, 1229, 668 N.E.2d 738 (1996).

3. The constitutionally protected interest. The plaintiff argues that both art. 12 of the Massachusetts Declaration of Rights and the Fourteenth Amendment to the Constitution of the United States require that the State accord him due process of law before it may subject him to registration pursuant to the act. The procedural due process principle on which the plaintiff relies requires that the government act in a fair manner when there is a deprivation of a constitutionally protected liberty or property interest. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976); Aime v. Commonwealth, 414 Mass. 667, 674, 611 N.E.2d 204 (1993); E.B. v. Verniero, 119 F.3d 1077, 1105, 1111 (3d Cir.1997) (deprivation of liberty interest entitles level two and level three registrants to due process of law). The due process test requires a balancing of the individual interest at stake and the risk of an erroneous deprivation of liberty or property under the procedures that the State seeks to use against the governmental interest in achieving its goals. Aime v. Commonwealth, supra at 675, 611 N.E.2d 204. Deprivation of greater individual liberty interests requires greater procedures and stronger countervailing State interests. See Mathews v. Eldridge, supra at

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334-335, 96 S.Ct. at 902-903; Opinion of the Justices, supra at 1231, 668 N.E.2d 738. The first issue for us is whether the plaintiff has a constitutionally protected liberty or property interest.

We find instructive the opinion of the Supreme Court of New Jersey in Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995), in which the court considered various challenges to a group of acts known as Megan's Law. The court rejected most challenges to the law but held that the State and Federal Constitutions required that any decision to provide community notification must be "subject to judicial review before such notification is given." Id. at 12, 662 A.2d 367. The case did not concern the classification of a person as a tier one [426 Mass. 141] low) risk. Id. at 26-27, 662 A.2d 367. Under the New Jersey law, no information is available to the public concerning a person classified as a low or tier one risk. Only law enforcement agencies likely to encounter the registrant receive notification. N.J. Stat. Ann. § 2C:7-8c (West 1995). ⁵ For a tier two (moderate risk of reoffense) offender, community organizations, including schools, religious and youth organizations also receive notification. Id. For a tier three (high risk of reoffense) offender, members of the public likely to encounter the person registered also receive notification.

The New...