Doe v. Sex Offender Registry Bd.

• Decision Date: 05 December 2006
• Citation: 857 N.E.2d 485,447 Mass. 768
• Parties: John DOE, Sex Offender Registry Board No. 3844 v. SEX OFFENDER REGISTRY BOARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

857 N.E.2d 485

447 Mass. 768

John DOE, Sex Offender Registry Board No. 3844 v. SEX OFFENDER REGISTRY BOARD.

Supreme Judicial Court of Massachusetts, Bristol County.

Argued September 7, 2006.

Decided December 5, 2006.

Daniel A. Less, Special Assistant Attorney General, for the defendant.

William S. Smith, Northboro, for the plaintiff.

Carol A. Donovan, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

IRELAND, J.

We transferred this case on our own motion to decide a question reported by a Superior Court judge: whether G.L. c. 6, § 178K, and the regulations promulgated thereunder, 803 Code Mass. Regs. §§ 1.38-1.40 (2002), for determining the classification of a person as a level one, two, or three sex offender "vests untrammeled discretion in the [Sex Offender Registry] Board [(board)] over the classification level, thereby rendering the procedure one that is arbitrary and contrary to law." Because we conclude that the statute and regulations do not violate the plaintiff's constitutional due process rights, we vacate the order reversing the decision of the board and remand the case to the Superior Court for further proceedings consistent with this opinion.¹

The statutory scheme. General Laws c. 6, §§ 178C-178O, as appearing in St.1999, c. 74, § 2,² was adopted to protect the public from "the danger of recidivism posed by sex offenders, especially sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior . . . [and] to assist local law enforcement agencies' efforts to protect their communities by requiring sex offenders to register and to authorize the release of necessary and relevant information about certain sex offenders to the public." St.1999, c. 74, § 1. Under G.L. c. 6, § 178E, all convicted sex offenders³ must register with the board. The board consists of seven members appointed by the Governor, at least one of whom must be a licensed psychologist or psychiatrist with special expertise in the assessment and evaluation of sex offenders, including juvenile sex offenders, and who has knowledge of the forensic mental health system; and at least one individual who has expertise or experience with victims of sexual abuse. G.L. c. 6, § 178K(1). Under G.L. c. 6, § 178E(a), the board is authorized to transmit the registration information to the Federal Bureau of Investigation (FBI) and to the police departments where the sex offender intends to live and work and where the offense was committed. G.L. c. 6, § 178E(a).

General Laws c. 6, § 178K(1), specifically authorizes the board to develop and promulgate guidelines to assess the risk of reoffense and the degree of dangerousness sex offenders pose to the public.⁴ The Legislature listed noninclusive factors that are relevant in determining the risk of reoffense.⁵ Additionally, G.L. c. 6, § 178K(2), directs the board to "provide for three levels of notification depending on the degree of risk of reoffense and the degree of dangerousness posed to the public by the sex offender."

Level one offenders are considered low risk, and the board must transmit registration data only to the FBI and to the local police departments where the offender lives and works (or, if the offender is in custody, where he or she intends to live and work) and where the offense was committed. G.L. c. 6, § 178K(2)(a). Level two offenders are considered a moderate risk to reoffend and are subject to the same requirements as level one offenders. G.L. c. 6, § 178K(2)(b). Additionally, the public can obtain the information regarding level two offenders in accordance with G.L. c. 6, §§ 178I and 178J,⁶ and such offenders are obligated to comply with the registration requirements of G.L. c. 6, § 178F ½.⁷ Id. Level three offenders are considered high risk and, in addition to the notification process required for levels one and two, the police departments are required to notify organizations in the community and individual members of the public that are likely to encounter such offenders, and neighboring police districts may inform the residents of their municipality of such offenders they are likely to encounter who reside in an adjacent city or town. G.L. c. 6, § 178K(2)(c).

The board developed and promulgated guidelines pursuant to G.L. c. 6, § 178K. Registration and classification is a two-part process. First, the board makes a recommendation on the offender's duty to register and the appropriate classification level. In the initial classification process, the board uses various factors, incorporated from G.L. c. 6, § 178K(1)(a)-(l), see note 5, supra, to determine the appropriate classification level of an offender.⁸ 803 Code Mass. Regs. § 1.40. The board uses a classification worksheet, an assessment form comprised of calculations determined from documents obtained from other agencies and materials submitted by or on behalf of the offender. 803 Code Mass. Regs. § 1.03 (2002). The board also considers the victim impact statement. 803 Code Mass. Regs. § 1.39(3).

Once a decision has been reached, the board notifies the offender of the recommendation. The offender then has the option either to accept or to reject the recommendation. If the offender rejects the recommendation, the second stage of the process is triggered. During this second stage, the offender is provided an individualized evidentiary hearing before a hearing examiner.⁹ At the hearing, the offender has the opportunity to present relevant evidence bearing on the obligation to register and the recommended classification level. However, the board has the burden to prove by a preponderance of the evidence that the offender has the duty to register and the appropriate level. 803 Code Mass. Regs. § 1.10 (2002). The hearing examiner is not bound by either the recommendation of the board or the classification worksheet completed during the initial review. Instead, the hearing examiner conducts a de novo hearing and makes a final determination regarding the offender's duty to register and the appropriate classification level. The examiner is required to issue a written decision containing a statement of the issues involved in the hearing; a summary of evidence, including credibility determinations; specific findings of fact, if appropriate, on all relevant disputed factual matters; rulings of law on all relevant disputed legal issues; conclusions drawn from the findings of fact and rulings of law, if appropriate; and the final registration determination and classification level. 803 Code Mass. Regs. § 1.22(1) (2002).

Pursuant to G.L. c. 6, § 178M, an offender "may seek judicial review, in accordance with [G.L. c. 30A, § 14], of the board's final classification and registration requirements. The court shall, if requested, appoint counsel to represent the sex offender in the proceedings if such offender is deemed indigent in accordance with [G.L. c. 211D, § 2]."

Procedural and factual background. On October 21, 1992, the plaintiff was convicted of indecent assault and battery on a person over fourteen years in violation of G.L. c. 265, § 13H, a "sex offense" as defined in G.L. c. 6, § 178C, and of assault and battery. The victim, a twenty year old woman, reported to the police, on February 28, 1991, that the plaintiff had sexually abused and assaulted her while she was at a friend's residence. The plaintiff received a suspended sentence of one year in a house of correction with probation for one year. The plaintiff subsequently filed a notice of appeal but withdrew the appeal on December 9, 1992.

In April, 2003, the board notified the plaintiff of his obligation to register as a level two sex offender, pursuant to G.L. c. 6, § 178K(2). The initial decision was based on factors outlined in 803 Code Mass. Regs. § 1.40, including the plaintiff's conviction and sentence of indecent assault and battery, his probation performance, his criminal history, his substance abuse history, the lack of sex offender treatment, and allegations of sexually assaulting his three year old daughter. In response, the plaintiff requested a hearing to contest the recommended classification. A de novo hearing was conducted by a hearing examiner on October 14, 2003.¹⁰

The hearing examiner's decision considered the plaintiff's convictions of indecent assault and battery in 1991, operating a motor vehicle while under the influence of alcohol in 1992, and assault and battery and malicious destruction of property in 1995. The examiner also considered the plaintiff's juvenile record, including four arrests for crimes against property, and his adult criminal record consisting of three charges for crimes against property. The examiner weighed the plaintiff's admission of substance abuse and noncompliance with probation requirements to attend substance abuse counselling. The examiner also considered the plaintiff's refusal to accept responsibility for the indecent assault and battery conviction.¹¹ Last, the examiner considered the plaintiff's hope to attend college and its potential for exposure to numerous "extrafamilial females." Because the plaintiff conceded that alcohol was a factor in his indecent assault and battery conviction and there was no evidence to confirm the plaintiff's drug and alcohol abstinence, the hearing examiner emphasized his concern that the plaintiff could relapse into alcohol or drug use at any time and remained concerned about "the large pool of college females that would present as prospective victims upon contingency of reoffense." However, the examiner considered the plaintiff's matriculation in college as a mitigating factor, along with the plaintiff's self-reported ten years' sobriety, his sex offense free status in the community eleven years since the indecent assault and battery conviction, and evidence of family support. Consequently, the...