Doe v. Sex Offender Registry Bd.

• Decision Date: 03 August 2021
• Docket Number: 20-P-1068
• Citation: 173 N.E.3d 52 (Table),100 Mass.App.Ct. 1104
• Court: Appeals Court of Massachusetts
• Parties: John DOE, Sex Offender Registry Board No. 524115 v. SEX OFFENDER REGISTRY BOARD.

100 Mass.App.Ct. 1104

173 N.E.3d 52 (Table)

John DOE, Sex Offender Registry Board No. 524115

v.SEX OFFENDER REGISTRY BOARD.

20-P-1068

Appeals Court of Massachusetts.

Entered: August 3, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe,² appeals from a Superior Court judgment affirming his final classification by the Sex Offender Registry Board (SORB) as a level three sex offender. See G. L. c. 6, § 178K (2) (c ). Concluding that the hearing examiner improperly applied factor 2, repetitive and compulsive behavior, and that the misapplication prejudiced Doe, we vacate the judgment and remand for further proceedings.

1. Standard of review. "In reviewing SORB's decisions, we ‘give due weight to the experience, technical competence, and specialized knowledge of the agency.’ " Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd. (Doe No. 205614 ), 466 Mass. 594, 602 (2013), quoting G. L. c. 30A, § 14 (7). "A reviewing court may set aside or modify SORB's classification decision where it determines that the decision is in excess of SORB's statutory authority or jurisdiction, violates constitutional provisions, is based on an error of law, or is not supported by substantial evidence." Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019).

2. Factor two, repetitive and compulsive behavior. After the classification and the Superior Court judgment, a Superior Court judge declared that the second and third sentences of 803 Code Mass. Regs. § 1.33(2) are invalid, and SORB has decided not to appeal this judgment. Nonetheless, SORB argues that "[t]he Hearing Examiner's consideration of Factor 2 resulted in harmless error." We disagree. See Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 744 (2019), quoting G. L. c. 30A, § 14 (7) (where hearing examiner gave "full aggravating weight to the risk factor of repetitive and compulsive behavior, Doe's ‘substantial rights ... may have been prejudiced’ on that basis").

Doe's sex offense and other circumstances are not so egregious that it is evident that the examiner would have classified him as a level three sex offender without finding that he was a repetitive and compulsive sex offender. His sexual offense, though heinous, involved only one victim who was not a stranger to Doe. His record otherwise is unremarkable, he was fifty years old at the time of classification, and he is subject to intensive probation supervision for a prolonged period of time. On this record, we cannot be confident that factor two, especially the finding that Doe's behavior is compulsive, did not materially affect the outcome of the hearing officer's decision. Accordingly, we remand to the hearing examiner to determine Doe's classification without considering factor two.³ We leave to the hearing examiner to determine in the first instance whether to conduct a de novo hearing or to consider additional evidence on remand.⁴

3. Conclusion. The judgment is vacated, and a new judgment shall enter remanding the matter to the Sex Offender Registry Board for further proceedings consistent with this decision.

So ordered.

vacated

2 A pseudonym.

3 Because we are remanding in any event, we need not consider Doe's...