Doe v. Sex Offender Registry Bd.

• Decision Date: 27 April 2012
• Docket Number: No. 10–P–435.,10–P–435.
• Parties: John DOE, Sex Offender Registry Board No. 136652 v. SEX OFFENDER REGISTRY BOARD.
• Court: Appeals Court of Massachusetts

966 N.E.2d 826

John DOE, Sex Offender Registry Board No. 136652

v.SEX OFFENDER REGISTRY BOARD.

No. 10–P–435.

Appeals Court of Massachusetts, Essex.

Argued Feb. 9, 2011.

Decided April 27, 2012.

Laura Chrismer Edmonds, Springfield, for the plaintiff.

Paul Tuttle for the defendant.

Present: GRASSO, McHUGH, & WOLOHOJIAN, JJ.¹

McHUGH, J.

The plaintiff, who was at the moment of interest a ten year old boy, appeals from a Superior Court judgment affirming his classification as a level two sex offender. That publicly available classification required the youngster to register annually with the Sex Offender Registry Board (SORB) and with the police department in the city or town where he lived. See G.L. c. 6, § 178K(2)(b ).² The classification also required him to appear each year at a police station so that police could update his photograph and fingerprints. See G.L. c. 6, § 178F1/2.

In the Superior Court, the plaintiff challenged the classification by arguing that (1) the SORB improperly obtained and used a Juvenile Court clinic evaluation report prepared pursuant to G.L. c. 119, § 68A ; (2) the SORB hearing examiner impermissibly used the report's multilayered hearsay as a basis for determining the plaintiff's level two classification; and (3) the examiner's use of certain SORB risk factors was arbitrary and capricious because they were not designed for application to prepubescent children.³ On the present record, we see no error with the way in which the SORB obtained the evaluation report but we do agree that the examiner improperly used multilevel hearsay and that, on this record, the use of certain risk factors was arbitrary and capricious. We therefore reverse.

A. Facts and procedural background. The record shows that the incident leading to the plaintiff's registration order occurred on June 5, 2004, at the home of one of his neighbors. After playing basketball in a neighbor's backyard with two of the neighbor's male children, one of whom was seven years old, the other ten, and both of whom had special needs, the plaintiff, who also was in therapy for special needs and was a classmate of the ten year old at a special needs school, asked the seven year old if he "wanted him to suck his private." The boy "said, ‘No,’ then said ‘Yes,’ and stuck his private out." The plaintiff placed the boy's penis in his mouth. At that point, the boy's father, who was walking by a window in the nearby house, saw what was happening and banged on the window. The plaintiff fled, pursued by the younger boy's ten year old brother, who shouted at him that he should stop because their father simply wanted to talk to him, a fact the father later confirmed to police. At some point the pursuing brother tripped and fell, then the plaintiff grabbed his neck and briefly attempted to strangle him before running off to his own home.

The father reported the incident to police the next day. A SAIN interview⁴ promptly followed, during the course of which the older brother gave the interviewer the details recited above. The younger brother, however, declined to say anything and left the interview room promptly after the interviewer began to raise what for him were evidently difficult issues.

In late May, 2005, almost a year later, the plaintiff and his mother were summoned to the local police station to discuss the 2004 incident. There, they were met by an officer who gave them a Miranda warning, allowed them some private time to discuss its implications, and then told them that he wanted to discuss the incident of a year earlier. The officer told the plaintiff and his mother that it would be "alright to be honest with" police and, in response to the plaintiff's statement that "I'm really scared that you're going to arrest me," "calmly assured [the boy] that he was not going to be arrested." The plaintiff then said that he had asked the young boy if he could see his penis and had put it in his mouth when the boy displayed it. When the officer asked him why he had done that, the plaintiff responded, "Because Junior [a fourteen year old who lived nearby] sexually assaulted me, I thought it was OK."⁵

Over the next few months, the plaintiff, who had had a troubled school history that included numerous fights with male peers, began to engage in a series of low value shopliftings and other larcenies. At one point during the period, he lay down in the middle of Route 138 after telling bystanders that he wanted to kill himself. When police arrived, however, he denied any self-destructive impulses and said that he just wanted to see what kind of reaction his behavior would provoke in the police and fire department.⁶

In August, 2005, complaints issued charging the plaintiff with juvenile delinquency by reason of rape of a child (no force) in violation of G.L. c. 265, § 23 ; indecent assault and battery on a child under the age of fourteen in violation of G.L. c. 265, § 13B ; and the larcenies in which he had engaged over the summer. Thereafter, a judge of the Juvenile Court ordered an evaluation by the court clinic pursuant to G.L. c. 119, § 68A.⁷ The resulting nineteen-page report was completed on September 22, 2005, and included information from the plaintiff, certain family members, and various social workers, case workers, and clinicians who had treated him over the years. Based on her findings that he posed an ongoing risk of delinquency, including acts "possibly of an aggressive and sexually assaultive nature," the clinician recommended that the plaintiff be placed "in an extremely structured and contained residential treatment program designed to address the treatment needs of boys who are at risk for sexual perpetration."

Care and protection proceedings, see G.L. c. 119, § 24, followed and resulted in an order placing the plaintiff in the custody of the Department of Children and Families (DCF) until he reached the age of eighteen. On November 14, 2005, DCF placed him in a facility operated by the Robert F. Kennedy Children's Action Corps, Inc. (RFK Center), designed to provide intensive care, treatment, and schooling to troubled children at high risk.

The following March, while at the RFK Center, he pleaded delinquent to the two charges arising out of the June, 2004, incident with the seven year old boy and several of the charges he had accumulated during the summer months after his conversation with police. The remaining larceny and shoplifting charges were dismissed. On all of the charges to which he pleaded delinquent, he received concurrent terms of probation until March 31, 2011.⁸ When he offered his plea, the plaintiff was twelve and one-half years old.

The SORB then initiated classification proceedings pursuant to the sex offender registration law (SORL), G.L. c. 6, §§ 178C – 178Q, which requires registration by certain individuals who have been convicted or found delinquent because of specified unlawful sexual activity. The statute also prescribes a two-step process for determining an offender's classification and resulting registration requirements.⁹

Here, during the first step, the SORB asked the probation department to provide it with the report the Juvenile Court clinic had prepared with respect to the plaintiff. On a Juvenile Court form entitled, "Recommendation for Release of [Juvenile] Court Clinic Report," a probation officer filed with the court an ex parte petition for the report's release to the SORB.¹⁰ A judge of the Juvenile Court allowed the petition and the report was delivered to the SORB. Thereafter, on July 11, 2006, the SORB notified the plaintiff that he had been classified as a level two (moderate risk) sex offender and was required to register in that category. See G.L. c. 6, § 178K(2)(b ).

Through counsel,¹¹ the plaintiff then requested an evidentiary hearing to challenge the SORB's decision, and a hearing was scheduled for March 20, 2007. Before the hearing began, counsel filed a motion in limine seeking to exclude the clinic report and a motion of a type envisioned by G.L. c. 6, § 178K(2)(d ), for relief from the obligation to register. The hearing examiner denied both motions.¹² After the ensuing hearing, a brief affair solely concerned with placing documents on the record, the examiner found that the plaintiff was at a moderate risk to reoffend and posed a moderate level of danger to the community. As a result the examiner imposed the level two classification. He made that classification notwithstanding his findings that the plaintiff's probation supervision, his placement in the custody of DCF, and his participation in sex offender therapy at the RFK Center were "fact[s] that minimize[d] his risk to reoffend and degree of dangerousness."

The plaintiff then sought judicial review of the decision in Superior Court. See G.L. c. 6, § 178M ; G.L. c. 30A, § 14. He challenged the hearing examiner's use of the clinic report, arguing first that its ex parte release violated the confidentiality protections conferred by Juvenile Court Standing Order I–84 (1984) and the right to counsel guaranteed both by the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. He further argued that the examiner misapplied SORL's "aggravating factors" in making the classification decision. Finally, the plaintiff urged that the classification and registration scheme as a whole is unconstitutional as applied to prepubescent offenders.

In a decision and order dated January 8, 2009, a judge of the Superior Court affirmed the SORB's decision. In doing so, the judge stated that his affirmance did not mean he was

"unmoved by the unique factual circumstances presented by this case. In fact, the court expresses concern that much was made of the fact that the plaintiff assaulted an ‘extravulnerable’ victim, a seven year old boy, while the plaintiff's own status as a ten year old boy appears to have been, to some extent, overlooked. Nevertheless, the court must be guided by appellate precedent and affirm

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