Doe v. Sex Offender Registry Bd.

• Citation: 35 N.E.3d 698,472 Mass. 475
• Decision Date: 21 August 2015
• Docket Number: SJC–11806.
• Parties: John DOE, Sex Offender Registry Board No. 7083 v. SEX OFFENDER REGISTRY BOARD.
• Court: United States State Supreme Judicial Court of Massachusetts

472 Mass. 475
35 N.E.3d 698

John DOE, Sex Offender Registry Board No. 7083
v.
SEX OFFENDER REGISTRY BOARD.

SJC–11806.

Supreme Judicial Court of Massachusetts, Plymouth.

Submitted March 5, 2015.
Decided Aug. 21, 2015.

35 N.E.3d 699

Ethan C. Stiles, Pembroke, for the plaintiff.

David L. Chenail for the defendant.

Matthew J. Koes for John Doe, Sex Offender Registry Board No. 3839, amicus curiae, submitted a brief.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

DUFFLY, J.

The plaintiff, John Doe, Sex Offender Registry Board No. 7083 (Doe), was serving a criminal sentence at the Massachusetts Treatment Center (treatment center), and also had been civilly committed to the treatment center as a sexually dangerous person (SDP), when the defendant Sex Offender Registry Board (SORB) notified him in September, 2009, of its recommendation that he be classified as a level three sex offender, pursuant to the sex offender registration statute, G.L. c. 6, §§ 178C –178Q.¹ Doe requested a hearing to challenge SORB's recommendation. When that classification hearing took place, in February, 2012, Doe's earliest parole eligibility date was ten months away, and a trial on Doe's petition for discharge, pursuant to G.L. c. 123A, § 9, had been scheduled for a date eighteen months away.²

Because each date was not only distant in time, but also only a potential date on which he might have become eligible for release, rather than a known release date, Doe requested that the classification hearing

35 N.E.3d 700

be continued to a date after, or shortly before, trial on his petition for discharge. In the alternative, Doe sought to have the classification proceeding left open after the hearing, so that his classification would not become final, and current evidence of his risk of reoffense would be available for the hearing officer to consider when his discharge was imminent. The hearing examiner denied the requests and classified Doe as a level three sex offender. Doe sought review in the Superior Court pursuant to G.L. c. 30A, §§ 7, and 14(7), and G.L. c. 6, § 178M, arguing that his risk of reoffense was zero while he was confined at the treatment center, and that the denial of his request to continue or to leave open the classification hearing violated his right to due process. A Superior Court judge affirmed the hearing examiner's decision, and Doe appealed. A panel of the Appeals Court also affirmed, in an unpublished memorandum and order issued pursuant to its rule 1:28. Doe, Sex Offender Registry Bd. No. 7083 v. Sex Offender Registry Bd., 86 Mass.App.Ct. 1113, 2014 WL 4799606 (2014). We granted Doe's application for further appellate review.

³

Doe argues that, by scheduling the classification hearing based on his earliest possible parole eligibility date, the information relied on by the hearing examiner in reaching a classification decision inevitably will have become stale, and therefore potentially unreliable, by the time he is released from confinement, even if the determination of his level of risk was based on appropriate factors when it was made. Doe contends that 803 Code Mass. Regs. § 1.37C(2) (2013), which permits a sex offender to seek reclassification three years after a final classification, does not address adequately his due process concerns.⁴

SORB contends that the early classification was required here because there was a possibility that Doe could have been released prior to a trial on his petition for discharge. SORB maintains that an individual who has been committed as an SDP may be released prior to the date of a trial on his or her petition for discharge pursuant to G.L. c. 123A, § 9, through one of two mechanisms. First, the community access board (CAB) may file a petition for discharge under G.L. c. 123A, § 9, if it determines, in its annual review, that an individual committed as an SDP no longer is sexually dangerous. Had the CAB determined at Doe's next annual review (which likely would have taken place a few months after the February, 2012, classification hearing) that Doe was no longer sexually dangerous, it could have filed its own petition for discharge, accompanied by a motion for an expedited trial.⁵ Second,

35 N.E.3d 701

Doe could have filed a motion for an expedited trial on his petition for discharge if two qualified examiners

opined, following their examination of Doe in conjunction with his petition, that he was no longer sexually dangerous. See Matter of Johnstone, 453 Mass. 544, 545, 553, 903 N.E.2d 1074 (2009). SORB maintains that any error in a premature classification may be remedied by its reclassification procedures. See 803 Code Mass. Regs. § 1.37C(2).

We conclude that the hearing examiner's 2009 recommendation that Doe be classified as a level three sex offender, based on evidence presented at a time when a trial on his petition for discharge under G.L. c. 123A, § 9, was at least eighteen months away, risked classifying Doe based on factors that would be stale at the time of his discharge, in violation of due process protections. The hearing examiner's 2012 final classification of Doe as a level three sex offender embodies this result, and reflects an evaluation of Doe's risk that will be stale when Doe ultimately is discharged. Nor are these procedural due process concerns adequately addressed by Doe's ability to request reclassification pursuant to 803 Code Mass. Regs. § 1.37C(1)-(9).

We note first that a final classification as a level three sex offender would permit SORB to require Doe to register as such while he is committed to the treatment center, albeit that the final classification occurs long before even his potential release date. See G.L. c. 6, § 178I (information about level three sex offenders “shall be made available”); 803 Code Mass. Regs. § 1.32(2) (2013) (SORB “may actively disseminate” information pertaining to level three sex offender, “in such time, place, manner or means, as it, in its sole discretion, deems reasonable and proper”). Thus, Doe's information and photograph would be actively and publicly disseminated on SORB's Web site, while he remains confined; the bell cannot thereafter be unrung by reclassification, and dissemination, which can result in a wide variety of harms, see Moe v. Sex Offender Registry Bd., 467 Mass. 598, 604, 6 N.E.3d 530 (2014), cannot be revoked. See Note, The Right to Be Forgotten, 64 Hastings L.J. 257, 259 (2012) (“information posted on the Internet is never truly forgotten”).

Moreover, at a reclassification hearing, the regulations shift to Doe the burden of establishing that his risk of reoffense and degree of dangerousness have been reduced, do not entitle him to

appointed counsel if he is indigent, and provide that reclassification may not be requested for three years after the date of the final classification order. See 803 Code Mass. Regs. § 1.37C(2). In addition, most of the factors which SORB is to consider in determining whether a sex offender has demonstrated a reduced risk of reoffense contemplate that an offender already is living in the community. See id.

Accordingly, Doe's final classification as a level three sex offender must be vacated; the 2012 classification is only preliminary, and the evidentiary hearing held in February, 2012, must be left open. At a reasonable time prior to his actual release date, Doe may request a continuation of the evidentiary hearing, at which he may submit new evidence relevant to a final classification determination,⁶ and SORB will bear the burden of establishing Doe's then-current risk of reoffense and degree

35 N.E.3d 702

of dangerousness. See G.L. c. 6, § 178L ; 803 Code Mass. Regs. §§ 1.01, 1.10 (2013). If Doe does not seek a continuation of the hearing at a reasonable time prior to his actual release date,⁷ the findings from the initial hearing will become final, and SORB may issue a final classification determination based on the preliminary classification.

1. Background. a. Governing offenses. The hearing examiner found the following. At the time of the February, 2012, classification hearing, Doe was forty-six years old. He had been convicted of two separate sex offenses in 1987, and one sex offense in 2009. In 1987, when he was twenty-one, Doe was convicted of indecent assault and battery on a nineteen year old female acquaintance of his girl friend and sentenced to a one-year term of probation. Later that year, while on probation for the first sexual assault, Doe broke into his former girl friend's house, raped her three times, and then stabbed her, and himself, with a knife. He pleaded guilty to three counts of aggravated rape, assault with intent to commit murder, assault and battery by means of a dangerous weapon, and breaking and entering in the nighttime; he was sentenced to concurrent terms of incarceration of from ten to twelve years for all but one of these convictions, and a term of probation on the other conviction.⁸

In 2003, Doe met a twenty-two year old woman at a bus station in Fall River; after he missed his bus to Boston, she invited him to spend the night at her apartment, where her brother was also visiting. The...