Doe v. Sex Offender Registry Bd.

• Decision Date: 24 July 1998
• Docket Number: No. 972,972
• Citation: 428 Mass. 90,697 N.E.2d 512
• Parties: John DOE, Sex Offender Registry Board, v. SEX OFFENDER REGISTRY BOARD (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 512

697 N.E.2d 512

428 Mass. 90

John DOE, Sex Offender Registry Board No. 972, v. SEX OFFENDER REGISTRY BOARD (and a companion case¹).

Supreme Judicial Court of Massachusetts Middlesex.

Argued Feb. 2, 1998.

Decided July 24, 1998.

Peter Sacks, Assistant Attorney General, for defendant.

Carol A. Donovan, Committee for Public Counsel Services, Boston, and Carol A. Fitzsimmons, Buffalo, NY (Marshall E. Johnson, Plymouth, with them), for plaintiffs.

Before WILKINS, C.J., ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

IRELAND, Justice.

These consolidated cases concern the process for classifying sex offenders under the sex offender registration and community notification act (act), G.L. c. 6, §§ 178C-178O. Two Superior Court judges ruled that those individuals classified as level three offenders have constitutionally protected liberty and privacy interests sufficient to require evidentiary hearings before a final classification and before they may be required to register and their registration information may be disseminated to the public. They also ruled that the sex offender registry board (board) has the burden of proving that any risk classification is appropriate by a preponderance of the evidence, and that § 178M unconstitutionally placed the burden of proof on offenders. One judge ruled that § 178M was unconstitutional in its entirety, and the other ruled that only the sixth sentence of that section, concerning the standard of judicial review, was unconstitutional. At the board's request, each judge reported the correctness of his or her rulings pursuant to Mass.R.Civ.P. 64(a), as amended, 423 Mass. 1403 (1996). The Appeals Court allowed the motion to consolidate the two appeals. We granted the board's application for direct appellate review on November 12, 1997.

The questions we are asked to answer are: (1) in order to satisfy due process requirements, should an offender's constitutionally required evidentiary hearing be held in the Superior Court or before the board pursuant to G.L. c. 30A; and (2) whether proof of the appropriateness of the board's classification by a preponderance of the evidence satisfies constitutional due process.

For the reasons stated below, we conclude that the statute can be construed to satisfy constitutional due process, that the evidentiary hearing should be held before the board pursuant to G.L. c. 30A, that the appropriateness of an offender's risk classification must be proved by a preponderance of the evidence, and that the board must make specific, written, detailed, and individualized findings to support the appropriateness of each offender's risk classification. Offenders may appeal to the Superior Court for review of the board's decision under the standards stated in § 178M.

I. The statutory scheme. General Laws c. 6, §§ 178C-178O, became effective on October 1, 1996. See St.1996, c. 239, § 4. The Legislature adopted the act "to protect the public from the 'danger of recidivism posed by sex offenders' and to aid law enforcement officials in the apprehension of sex offenders by providing them with 'additional information critical to preventing sexual victimization and to resolving incidents involving sexual abuse and exploitation.' " ² Opinion of the Justices, 423 Mass. 1201, 1204, 668 N.E.2d 738 (1996). See Doe v. Attorney Gen., 426 Mass. 136, 139, 686 N.E.2d 1007 (1997). It requires all sex offenders, as defined in G.L. c. 6, § 178C, ³ to register in person with the police department in the city or town where they reside. The police department must send the registration information to the criminal history systems board (CHSB). The CHSB maintains a central computerized registry containing updated files on each sex offender. ⁴ § 178D. The CHSB is then required to transmit the information to the police departments in the cities or towns where the sex offender works and where the offense was committed, as well as to the Federal Bureau of Investigation (FBI). § 178E. Section 178K of the act established the board, which consists of five members appointed by the Governor: The Secretary of the Executive Office of Public Safety or his designee; two licensed psychologists or psychiatrists with special expertise in the assessment and evaluation of sex offenders and knowledge of the forensic mental health system, one of whom has expertise with juvenile sex offenders; one person with at least five years of training and experience in probation, parole or corrections; and one person with expertise or experience with victims of sexual abuse.

The general charge of the board is to:

"promulgate guidelines for determining the level of risk of reoffense of sex offenders, apply the guidelines to assess the risk level of particular offenders, develop guidelines for use by city and town police departments in disseminating sex offender registry information, and make recommendations to the superior court regarding risk levels and community notification plans in the cases where the offender has a right to judicial review and has requested a hearing as provided in [178L]." ⁵ G.L. c. 6, § 178K.

Section 178K(1)(a)-(l ) lists non-inclusive factors said to be relevant to the risk of reoffense, including: whether the offender committed a sex offense on a child; whether the offender used a weapon; the offender's criminal history; conditions of release that minimize risk of reoffense; physical conditions that minimize risk of reoffense; whether the offender was a juvenile when he committed the offense; his response to treatment and subsequent criminal history; psychological or psychiatric profiles; history of alcohol or substance abuse; participation in treatment and counseling and response thereto; recent behavior, recent threats, or expressions of intent to commit additional offenses; review of any impact statement; and any materials submitted by the sex offender, his attorney, or others on his behalf.

Section 178K(2) states that the guidelines promulgated by the board, "shall provide for three levels of notification depending on the degree of risk of reoffense by the sex offender." A level one designation shall be given to offenders if their risk of reoffense is low. For level one offenders, the CHSB is required to transmit the offender's registration information to the police departments where the offender resides and works and where the offense was committed, as well as to the FBI. A level two designation shall be given to an offender if the risk of reoffense is moderate. In addition to the notification requirements of level one offenders, police departments are required to provide the registration information to "organizations in the community which are likely to encounter the offender including, but not limited to, schools, day care centers, religious and youth organizations, and sports leagues." G.L. c. 6, § 178K(2)(b). Finally, a level three designation shall be given to an offender if the risk of reoffense is high. In addition to the notification requirements for level one and level two offenders, the police departments are required to notify "individual members of the public which are likely to encounter the [level three] offender." G.L. c. 6, § 178K(2)(c).

Pursuant to § 178K, the board promulgated guidelines for classification of sex offenders (guidelines). To determine a sex offender's risk of reoffense, the board considers numerous factors as well as victim impact statements and any other materials submitted by the sex offender. Each factor is given a rating (i.e., low, moderate, high), and the risk level is assessed based on the category of risk with the highest number of ratings. 803 Code Mass. Regs. § 1.02(2) (1996). This risk level can be adjusted based on other materials. The guidelines also contain five "override" factors, which, where present, require a finding that the offender poses a high risk of reoffense and should be classified as a level three offender. See 803 Code Mass. Regs. § 1.02(5) (1996). A determination, based on an override factor, that an offender poses a high risk of reoffense, must stand "absent a finding of compelling justification to take other action." Id. The override factors are:

"[1.] The offender has a mental health disorder which includes a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his/her ability to control impulsive sexual behavior....

"[2.] The offender has been adjudicated and/or convicted of multiple instances of sexual abuse/assault and/or the offender has been convicted of one or more crimes, sexual in nature, against a child and/or a mentally retarded person....

"[3.] The offender has used some threats of violence in the commission of any of their [sic ] offense(s), which included the use of a weapon, and/or causing bodily harm, and/or participation in a gang type sexual assault....

"[4.] Offenders who are determined to be a moderate risk to re-offend as a result of this assessment and currently participate in a sex specific treatment program with unsatisfactory progress; or, has no participation in a sex offender specific treatment program; and/or participated in a sex offender specific treatment program in the past but is not currently involved in such a program....

"[5.] The offender has recent threats against a person and/or expressions of intent to commit additional sexual offenses." 803 Code Mass. Regs. § 1.02(5).

Section 178M provides for judicial review of the board's risk designation as follows:

"An offender who has been given a level two or level three designation may petition the superior court where the offender resides or intends to reside to challenge his risk designation. Such offender may request an opportunity to appear and be heard. At such hearing, the rules of evidence shall not apply and the court may review any materials described in the guidelines. The court shall, if requested, appoint counsel to represent the...