Doe v. Bd. of Registration in Med.
| Decision Date | 01 September 2020 |
| Docket Number | SJC-12817 |
| Citation | 151 N.E.3d 829,485 Mass. 554 |
| Parties | John DOE v. BOARD OF REGISTRATION IN MEDICINE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Michael David Tauer (Andrew L. Hyams, Wellesley, also present) for the petitioner.
Julie E. Green, Assistant Attorney General, for the respondent.
Pauline Quirion & Christopher Westfall, Boston, for Greater Boston Legal Services & another, amici curiae, submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.
The petitioner, John Doe, is a physician licensed by the board of registration in medicine (board). This case requires us to determine what effect, if any, sealing a criminal record under G. L. c. 276, § 100C, has on the board's statutory obligations to discipline licensed physicians under G. L. c. 112, § 5, including (1) whether the board may use a record sealed under § 100C as the basis for discipline, and (2) if so, to what extent the board may make that record's contents available to the public. We conclude that the board may use such a record in its disciplinary proceedings. We also conclude, however, that where a record sealed under § 100C forms the basis for the board's final disciplinary decision, the board is statutorily prohibited from making the contents of that record available to the public. However, should the board possess independent evidence of the criminal case or the criminal conduct underlying a record sealed under § 100C, separate and distinct from the record itself, and that independent evidence forms the basis for a final disciplinary decision, the board is not prohibited from making such evidence publicly available.
Background. 1. Facts. The relevant facts are undisputed. On March 9, 2017, Doe was arrested and charged with a single misdemeanor count of engaging in sexual conduct for a fee, in violation of G. L. c. 272, § 52A. The following month, Doe informed his employer of the misdemeanor charge. In June 2017, Doe admitted to sufficient facts, and the court continued his case without a finding. Approximately two months later, Doe self-reported his arrest, charge, and disposition to the board, and thereafter, the board notified Doe that he was under investigation.
In September 2017, the court dismissed Doe's criminal case following his completion of the court-imposed conditions. Two days later, Doe filed an application to renew his medical license, which was set to expire in November 2017.1 As required, Doe disclosed the criminal charge and its disposition in his application and included a copy of the criminal docket and police reports. See 243 Code Mass. Regs. § 2.04(10), (14)(b) (2020).
In May 2018, as he cooperated with the board's investigation, but without the board's knowledge, Doe petitioned the Cambridge Division of the District Court Department to seal his criminal case under § 100C. The following month, the board's complaint committee recommended that the board issue a statement of allegations,2 but also expressed interest in the possibility of a consent order to eliminate the need for adjudicatory proceedings, so long as the consent order met certain requirements, including a reprimand. The board then sent Doe a draft consent order based on Doe's engagement in "conduct that undermines the public confidence in the integrity of the medical profession." See Raymond v. Board of Registration in Med., 387 Mass. 708, 713, 443 N.E.2d 391 (1982) ; Levy v. Board of Registration & Discipline in Med., 378 Mass. 519, 527-528, 392 N.E.2d 1036 (1979). The draft consent order also included the information contained in Doe's criminal record.
In July 2018, a judge in the District Court ordered Doe's criminal record sealed under G. L. c. 276, § 100C, and Commonwealth v. Pon, 469 Mass. 296, 316-319, 14 N.E.3d 182 (2014) (sealing order).3 Doe notified the board of the sealing order a couple of weeks later and requested that the board close his disciplinary matter without further action, contending that any further action would violate the sealing order. The board declined Doe's request. In April 2019, Doe requested that, if the board elected to discipline him, it refrain from making that discipline public until Doe had the opportunity to seek judicial review of the question whether the board's use or disclosure of the basis for the discipline violated the sealing order. On May 3, 2019, the board responded that it intended to hear the matter later that month, and that it would 4 Doe filed an emergency petition for writ of certiorari with a single justice of the county court on May 14, 2019. The single justice, in turn, reserved and reported the case to the full court.
2. Statutory background. This case requires us to analyze the interplay between the board's statutory disciplinary obligations, see G. L. c. 112, § 5, and the legislative mandate to shield certain criminal records from public view pursuant to both the sealing statutes, G. L. c. 276, §§ 100A - 100C, and the criminal offender record information act (CORI act), see G. L. c. 6, §§ 167 - 178, which incorporates the sealing statutes. See St. 2010, c. 256, §§ 3, 131, 132.
a. The sealing statutes. The sealing statutes, G. L. c. 276, §§ 100A - 100C, enacted in the early 1970s, govern the procedure by which former criminal defendants may seek to seal certain criminal records, as well as the effect of such sealing. See G. L. c. 276, § 100A, inserted by St. 1971, c. 686; G. L. c. 276, § 100B, inserted by St. 1972, c. 404; G. L. c. 276, § 100C, inserted by St. 1973, c. 322. The sealing statutes sought to promote rehabilitation and reintegration by protecting former criminal defendants "from unnecessary and overbroad dissemination of criminal record information." Commonwealth v. Vickey, 381 Mass. 762, 765, 412 N.E.2d 877 (1980). See Attorney Gen. v. District Attorney for the Plymouth Dist., 484 Mass. 260, 270, 141 N.E.3d 429 (2020), quoting Pon, 469 Mass. at 307, 14 N.E.3d 182 ().
Sections 100A and 100B provide for automatic sealing of certain criminal records, upon request, after a requisite period of time has passed without any additional criminal conduct. See G. L. c. 276, §§ 100A (), 100B (delinquency court appearances).5
Section 100C, however, does not contain a temporal requirement, but rather permits a former criminal defendant, whose criminal case resulted in a nolle prosequi or a dismissal, to seal his or her criminal record upon a judge's discretionary determination that "substantial justice would best be served" by such sealing.6
See G. L. c. 276, § 100C. To meet that standard, a defendant must establish that good cause exists for sealing his or her record, thus "overriding ... the general principle of publicity." Pon, 469 Mass. at 313, 14 N.E.3d 182.7
Moreover, §§ 100A and 100C permit an employment applicant with a sealed record pursuant to either statute to answer " ‘no record’ with respect to an inquiry [t]herein relative to prior arrests or criminal court appearances." G. L. c. 276, §§ 100A, 100C.8
b. The CORI act.9 In 1972, the Legislature enacted the CORI act to centralize both the collection and the dissemination of criminal offender record information. See St. 1972, c. 805, § 1; Boston Globe Media Partners LLC v. Department of Criminal Justice Info. Servs., 484 Mass. 279, 282, 140 N.E.3d 923 (2020) ( Boston Globe ). Criminal offender record information is defined, in relevant part, as "records and data in any communicable form compiled by a Massachusetts criminal justice agency," concerning an identifiable individual and relating to a criminal matter, including an arrest, criminal charge, and pre- and posttrial proceedings. G. L. c. 6, § 167. The CORI act established the criminal history systems board, which later became the Department of Criminal Justice Information Services (DCJIS), and tasked it with overseeing the State's first unified criminal offender record information management system. See St. 1972, c. 805, § 1; St. 2010, c. 256, §§ 1, 135. The CORI act also strictly limited access to criminal offender record information to only criminal justice agencies and other entities with statutorily-authorized access. See Boston Globe, supra at 282, 140 N.E.3d 923, citing St. 1972, c. 805, § 1.
In 2010, the Legislature amended the CORI act, creating a tiered system of access based on the requestor's identity (2010 amendments). See Boston Globe, 484 Mass. at 285, 140 N.E.3d 923, citing St. 2010, c. 256, § 21, and 803 Code Mass. Regs. § 2.05(2) (2017) ; G. L. c. 6, § 172 (a ). Notably here, the Legislature incorporated the sealing statutes into the CORI act's statutory scheme, thereby (1) excluding sealed records from certain categories of criminal record offender information; (2) specifying that only those entities entitled to the highest level of access were permitted to access sealed records; (3) shortening the waiting periods to seal a record under § 100A ; and (4) expanding § 100C to permit judges to seal all dismissed cases, even after an order of probation has been terminated. See St. 2010, c. 256, §§ 3, 21; G. L. c. 276, § 100A, St. 2010, c. 256, § 128; G. L. c. 276, § 100C, St. 2010, c. 256, § 131. Overall, although the 2010 amendments expanded access to certain requestors, including employers and landlords, "for limited use," they also "broaden[ed] the scope of the sealing provisions to enable more individuals to shield their records from public view." Pon, 469 Mass. at 297, 14 N.E.3d 182.
In 2018, the Legislature again amended the CORI act (2018 amendments), as well as the sealing statutes, in an effort to enhance...
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