Doe v. Sex Offender Registry Bd., SJC–12282

• Decision Date: 06 December 2017
• Docket Number: SJC–12282
• Citation: 478 Mass. 454,86 N.E.3d 474
• Parties: John DOE, SEX OFFENDER REGISTRY BOARD NO. 209081 v. SEX OFFENDER REGISTRY BOARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

478 Mass. 454

86 N.E.3d 474

John DOE, SEX OFFENDER REGISTRY BOARD NO. 209081

v.SEX OFFENDER REGISTRY BOARD.

SJC–12282

Supreme Judicial Court of Massachusetts, Middlesex..

Argued September 5, 2017

Decided December 6, 2017

Rebecca Rose for the plaintiff.

David L. Chenail for the defendant.

Elizabeth Caddick, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

BUDD, J.

In 2008, the Sex Offender Registry Board (board), after a hearing, classified the plaintiff, John Doe, as a level three sex offender. Doe did not appeal from that decision. Over six years later, he sought to reopen his classification hearing, contending that the board violated his procedural due process rights when it went forward with his hearing without ensuring that his waiver of counsel was knowing and voluntary. When the board summarily denied his petition for rehearing as untimely, he filed a complaint in the Superior Court seeking review. A Superior Court judge granted the board's motion to dismiss the petition, and the plaintiff appealed. We transferred the case to this court on our own motion.

We conclude that the board did not abuse its discretion in denying the plaintiff's petition to reopen his classification hearing where the petition, which was filed six years after the board's final decision, did not adequately explain the delay and did not allege prejudice.¹ Although we do not reach the plaintiff's due process claim, we caution that pursuant to the board's own regulations, the board must ensure that sex offenders who choose to represent themselves at classification hearings "knowingly and voluntarily" waive their statutory right to counsel.² See 803 Code Mass. Regs. § 1.09(5) (2016).

Background. On two different dates in 2008, the plaintiff pleaded guilty to one count of indecent assault and battery on a person over fourteen, and to two counts of rape and abuse of a child.³ In June, 2008, while the plaintiff was incarcerated for the first conviction, the board notified him of his duty to register with the board as a sex offender and preliminarily classified him at level three.⁴ The plaintiff requested a hearing to challenge the board's classification recommendation by filling out a form provided by the board. On that form, he checked a box indicating that he would represent himself at the hearing.

At the October, 2008, hearing, however, the plaintiff refused to sign a waiver of counsel form and told the hearing examiner that, in fact, he did not wish to appear without counsel. The plaintiff indicated that he had expected that his criminal defense attorney would be present, and that there had been a misunderstanding regarding his representation. The hearing examiner treated the plaintiff's statements as a motion to continue the hearing so that the plaintiff could obtain an attorney, but denied the motion based on the plaintiff's initial indication, on the written board form, that he would represent himself.⁵ The plaintiff did not offer any evidence during the hearing. In a decision issued on November 18, 2008, the hearing examiner ordered the plaintiff to register as a level three sex offender based on the evidence introduced by the board.

The plaintiff waited more than six years, until after he had completed his criminal sentence, including five years of probation, to file in June, 2015, a petition to reopen the initial classification hearing with the board. In the petition, plaintiff claimed that the hearing examiner's actions during the 2008 proceeding deprived him of his due process rights and violated the board's regulations. Specifically, the plaintiff contended that he had had insufficient time to prepare for the hearing, and that the hearing examiner failed to telephone the plaintiff's criminal defense attorney or postpone the hearing after becoming aware that the plaintiff was confused without his attorney. Further, the plaintiff claimed that it was error for the hearing examiner to proceed with the hearing and issue a decision despite his refusal to sign a statement acknowledging that he knowingly and voluntarily waived his right to counsel.

The board summarily denied the plaintiff's petition to reopen on the grounds that it was untimely and the plaintiff had (initially) indicated that he would represent himself. The plaintiff timely filed in the Superior Court a complaint for judicial review of the board's denial of his petition. See G. L. c. 30A, § 14 (1). In response, the board filed a motion to dismiss the complaint, which a Superior Court judge allowed.⁶ The plaintiff appealed, and we transferred his appeal to this court on our own motion.

Discussion. 1. The board's denial of the plaintiff's request to reopen the classification hearing. The board has inherent authority to reopen a classification proceeding and reconsider its decision at any time, by motion of the sex offender or by the board's own motion. Soe, Sex Offender Registry Bd. No. 252997 v. Sex Offender Registry Bd., 466 Mass. 381, 395–396, 995 N.E.2d 73 (2013) ( Soe ). One reason the board may decide to reconsider a sex offender's classification level after it has become final is to prevent or mitigate a miscarriage of justice.⁷ Id. at 394–395, 995 N.E.2d 73. The board's broad inherent authority in this area is "reviewable only for an abuse of discretion." Id. at 396, 995 N.E.2d 73. We note that "[i]n general, administrative agencies have broad discretion over procedural aspects of matters before them." Zachs v. Department of Pub. Utils., 406 Mass. 217, 227, 547 N.E.2d 28 (1989). When reviewing an agency's decision for abuse of discretion, we look to see whether the decision was reasonable. See Soe, supra at 392–393, 995 N.E.2d 73 ; Zachs, supra at 228, 547 N.E.2d 28 ; Massachusetts Elec. Co. v. Department of Pub. Utils., 376 Mass. 294, 307–308, 381 N.E.2d 325 (1978).

An agency's inherent power to reopen proceedings "must be sparingly used if administrative decisions are to have resolving force on which persons can rely." Soe, 466 Mass. at 395, 995 N.E.2d 73, quoting Stowe v. Bologna, 32 Mass. App. Ct. 612, 616, 592 N.E.2d 764 (1992). See Alliance to Protect Nantucket Sound, Inc. v. Department of Pub. Utils. (No. 2), 461 Mass. 190, 195, 959 N.E.2d 408 (2011) (noting that party seeking to reopen proceedings "must demonstrate compelling circumstances"). While each agency's decision to reopen a proceeding must be considered in the specific context of the circumstances presented and statutory scheme involved, factors generally to be weighed by the agency include the advantages of preserving finality, the desire for stability, the degree of haste or care in making the first decision, timeliness, and the specific equities involved. See 2 K.C. Davis, Administrative Law Treatise § 18.09, at 607 (1958), cited in Aronson v. Brookline Rent Control Bd., 19 Mass. App. Ct. 700, 706, 477 N.E.2d 182 (1985).

Here, we agree with the Superior Court judge that the board did not abuse its discretion in denying the plaintiff's petition to reopen the hearing.⁸ First, the plaintiff has failed to explain adequately his six-year delay in responding to the board's classification decision. The hearing examiner informed the plaintiff that he had thirty days from the receipt of the board's decision to seek judicial review of that decision. The hearing examiner further suggested that the plaintiff should consult an attorney regarding his appellate rights. In addition, the board's final classification decision included notice in three places, in bold and all capitalized print, that he had thirty days to appeal that decision to the Superior Court. Despite the plaintiff's claim that he mistakenly believed that he could not pursue an appeal of the board's classification decision until after he completed his sentence, the repeated references to the thirty-day deadline for filing an appeal provided more than adequate notice that, at the very least, he needed to explore his appeal options in a more timely way.

Second, although it is apparent that the board failed to ensure that the plaintiff knowingly and voluntarily waived his right to be represented by counsel at his classification hearing, the plaintiff failed to articulate in any manner how he was prejudiced by the error. The plaintiff's petition does not include an affidavit or, indeed, any mention of specific facts or mitigating circumstances that, if represented by counsel, he would place before the board at a reopened hearing that could lead it to reconsider its decision.⁹ See Matter of Powers, 465 Mass. 63, 81, 987 N.E.2d 569 (2013) (concluding that respondent was not prejudiced because of denied request to appear before regulatory body where he "provided no proffer of what he or his attorney would have said to the [body] had his request for an appearance been honored"); Martorano v. Department of Pub. Utils., 401 Mass. 257, 262, 516 N.E.2d 131 (1987) ("There must be some showing of prejudice before an agency's disregard of its own rules may constitute reversible error").

Finally, the sex offender registration system administered by the board provides a plaintiff with the right to a new reclassification proceeding. 803 Code Mass. Regs. § 1.31 (2016). The plaintiff notes correctly that, under the board's regulations, the burden to prove a sex offender's classification level shifts from the board in an initial classification hearing to the sex offender in a reclassification hearing. See 803 Code Mass. Regs. §§ 1.10, 1.37C(2) (2004); 803 Code Mass. Regs. §§ 1.14(1), 1.31(1) (2016). However, the existence of this reclassification mechanism is an additional factor specific to the board's regulatory scheme weighing in favor of the agency's decision to reject his request to reopen his initial classification proceeding six years after it had concluded.

That judicial review of both the board's final classification and its reclassification decisions is subject to...