Doe v. Sex Offender Registry Bd.

Decision Date12 December 2008
Docket NumberSJC-10086
Citation452 Mass. 764,897 N.E.2d 1001
PartiesJohn DOE, Sex Offender Registry Board NO. 89230 v. SEX OFFENDER REGISTRY BOARD.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Brandon L. Campbell for the plaintiff.

William H. Burke, Special Assistant Attorney General, for the defendant.

Larni S. Levy, Murray Kohn, Holden, Michael Nam-Krane, Boston, & Pasqua Scibelli, 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, & BOTSFORD, JJ.1

BOTSFORD, J.

The plaintiff, John Doe, who is indigent, appeals from his classification by the Sex Offender Registry Board (board) as a level two sex offender. Before the board, Doe filed a motion for funds to retain an expert witness under G.L. c. 6, § 178L (1), part of the sex offender registration law, G.L. c. 6, §§ 178C-178Q (registration law); the motion was denied. Doe challenges the board's classification decision on a number of grounds, but the principal issue we consider in this appeal is Doe's challenge to the board's denial of his motion for expert funds. We conclude that § 178L (1) gives the board discretion to grant a motion for funds filed by an indigent sex offender in a case such as the present one, even though the board itself does not intend to rely on the testimony or report of an expert witness. We remand the case to the board for consideration of Doe's motion for expert funds and further proceedings.2

1. Background. Doe was classified as a level two sex offender based on convictions of open and gross lewdness and lascivious behavior in violation of G.L. c. 272, § 16; the convictions occurred in 1992 and 2003.3 At the time of his final classification Doe was a forty-nine year old man who had suffered from bipolar disorder, manic type, for over twenty-five years. Doe, who lives with his mother, receives outpatient treatment for his mental illness through the Department of Mental Health, and takes medication under the supervision of a psychiatrist.

On April 28, 2005, the board recommended that Doe be classified as a level two sex offender on his convictions of open and gross lewdness. A level two classification is given to sex offenders whose risk of reoffense is moderate. See G.L. c. 6, § 178K (2) (b).4 On May 12, 2005, Doe made a timely request for a de novo hearing to challenge his classification. See G.L. c. 6, § 178L (1) (c); 803 Code Mass. Regs. § 1.07 (2004). Doe also requested that an attorney be appointed to represent him at the hearing. See G.L. c. 6, § 178L (2); 803 Code Mass. Regs. § 1.08 (2004). The board determined that Doe was indigent, granted his request that counsel be appointed, and scheduled a de novo hearing for November 16, 2005.

On November 1, 2005, through his attorney, Doe filed a motion for funds to retain an expert witness to assist him on specific issues related to his classification.5 Doe also filed a motion to exclude records related to allegations of sexual misconduct that did not result in convictions. On November 14, 2005, the hearing examiner denied Doe's motion for expert funds, stating that the "motion may be re-filed if the Board, in fact, introduces testimony and/or a report from its own expert witness which shall have been prepared specifically for the purposes of the classification hearing." See G.L. c. 6, § 178L (1); 803 Code Mass. Regs. § 1.09(2) (2002). The hearing examiner took Doe's motion to exclude certain records of alleged sexual misconduct under advisement.

The hearing examiner conducted the requested de novo hearing on November 16, 2005. See G.L. c. 6, § 178L; 803 Code Mass. Regs. §§ 1.10-1.21 (2002). The board presented no witnesses, expert or otherwise, but offered in evidence the board's April 28, 2005, classification report along with ten attachments.6

Doe did not testify at the hearing. He presented as evidence a letter from the director of an agency providing vocation rehabilitation services; a letter from the assistant director of clinical services at the Elliot Center, where Doe was receiving weekly therapy and medication for his mental illness; two letters from friends; and two studies on recidivism.7 Doe called his mother as a witness; she testified, inter alia, that he had been on medication since 1992 and that there were no incidents of sexual misconduct between 1992 and 2003.

On February 27, 2006, the hearing examiner issued a written decision in which he found that Doe "poses a moderate danger to the public and a moderate risk to re-offend" and ordered him to register as a level two sex offender. In his decision, the hearing examiner adopted his prehearing ruling denying Doe's motion for expert funds (because the board had not presented an expert witness or report prepared for the classification hearing), and also denied Doe's motion to exclude records related to allegations of sexual misconduct that had not resulted in convictions.

The hearing examiner stated in his decision that "[t]he record reflects that [Doe] has suffered from bipolar disorder manic type for over [twenty-five] years," and he took administrative notice of the fact that the Diagnostic and Statistic Manual of Mental Disorders (4th ed. 2000) (DSM-IV) defines "bipolar disorder" as a type of mood disorder characterized by manic episodes. Id. at 345. The hearing examiner also noted that "according to the DSM-IV discussion of Manic Episode ... `[t]he increase in goal-directed activity often involves excessive planning of ... multiple activities (e.g. sexual ...). Increased sexual drive, fantasies, and behavior are often present.'" He concluded his consideration of the DSM-IV with the following comment: "I do not reference the learned treatise text herein to ... infer that the presence of a Bipolar Disorder in and of itself creates a risk to criminally re-offend. In this case, however, taking the totality of the record evidence and factor analysis into account, I find that the condition serves to exacerbate the substantial level of risk of reoffense already present in this case."

On April 4, 2006, Doe filed a complaint for judicial review of the board's decision in the Superior Court. G.L. c. 6, § 178M; G.L. c. 30A, § 14. He later filed a motion for funds, pursuant to G.L. c. 261, §§ 27A-27G, to retain an expert. Cross motions for judgment on the pleadings were thereafter filed. On May 7, 2007, a Superior Court judge affirmed the board's decision after determining that the hearing examiner's denial of Doe's motion for expert witness funds was proper and that substantial evidence supported the level two classification. The judge also denied Doe's motion for funds under G.L. c. 261, §§ 27A-27G. Doe filed a timely notice of appeal, and we granted Doe's application for direct appellate review.

2. Discussion. a. Motion for expert witness funds. Doe's motion, which he filed with the hearing examiner before the de novo hearing, sought funds to retain an expert to provide, at least in part, information and possibly testimony on the relationship between his mental illness (bipolar condition) and his risk of recidivism. As has been noted, the hearing examiner denied the motion in substance because the board did not seek to introduce any expert witness testimony or report. Although not specifically stated in the denial, it is apparent that the hearing examiner based his decision on the provisions of G.L. c. 6, § 178L (1). We turn to that statute.

Section 178L (1) (c) provides in relevant part:

"In the case of any sex offender not in custody, ... the board shall promptly notify such sex offender of the board's recommended sex offender classification, his duty to register, if any, and his right to petition the board to request an evidentiary hearing to challenge such classification and duty, his right to retain counsel to represent him at such hearing and his right to have counsel appointed for him if he is found to be indigent as determined by the board using the standards under chapter 211D; provided, however, that such indigent offender may also apply for and the board may grant payment of fees for an expert witness in any case where the board in its classification proceeding intends to rely on the testimony or report of an expert witness prepared specifically for the purposes of the classification proceeding ..." (emphasis supplied).8

See 803 Code Mass. Regs. § 1.06 (2004).9

Doe reads § 178L (1) to mean that a hearing examiner may grant an indigent petitioner's motion for funds to retain an expert only if the board intends to rely on "the testimony or report of an expert witness prepared specifically for the purposes of the classification hearing." He points out, correctly, that the board did not intend to rely on such an expert witness in his case, and further contends that the board has never sought to rely on such expert evidence in a classification hearing. Doe argues that as a result, no indigent sex offender may obtain funds to retain an expert witness, and that § 178L (1), so read, violates his Federal and State constitutional rights to equal protection and due process.

In particular, Doe argues that his right to equal protection is violated because unlike indigent sex offenders, nonindigent sex offenders are permitted to present expert testimony and reports to challenge the board's recommended classification at the evidentiary hearing provided under § 178L (1), to meaningful effect, and there is no rational basis for this distinction between nonindigent and indigent offenders.10 With respect to due process, Doe contends that he has a liberty interest at stake in his classification proceedings; his liberty interest is violated by a procedure that does not ensure, to the extent possible, the accuracy of his classification; and his inability to use expert evidence fatally injures his chances of receiving an accurate classification.11

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