Doe v. Sex Offender Registry Bd.

• Decision Date: 14 March 2008
• Docket Number: SJC-09927.
• Citation: 882 N.E.2d 298,450 Mass. 780
• Parties: John DOE, Sex Offender Registry Board No. 8725 v. SEX OFFENDER REGISTRY BOARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

882 N.E.2d 298

450 Mass. 780

John DOE, Sex Offender Registry Board No. 8725 v. SEX OFFENDER REGISTRY BOARD.

SJC-09927.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued November 8, 2007.

Decided March 14, 2008.

Lawrence P. Murray, Boston, for the plaintiff.

Daniel A. Less, Special Assistant Attorney General, for the defendant.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

CORDY, J.

On September 13, 1979, the plaintiff, John Doe, then twenty-two years of age, tendered an Alford plea, see North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to a charge of rape. G.L. c. 265, § 22.¹ He was sentenced to a two-year term of probation which he completed without incident on September 9, 1981. Twenty-two years later, on November 10, 2003, the Sex Offender Registry Board (board) notified Doe that pursuant to G.L. c. 6, §§ 178C-178Q, the sex offender registration law (registration law),² it was reviewing his case to make a recommendation regarding his duty to register with the board and his classification level. See G.L. c. 6, § 178L (1); 803 Code Mass. Regs. § 1.01 (2002). Doe was given thirty days to submit documentary evidence "relative to his risk of reoffense, the degree of dangerousness posed to the public and his duty to register." 803 Code Mass. Regs. § 1.05(1) (2002). Doe submitted documentary evidence to the board to the effect that he had established a stable life in the community, with a strong network of family and friends, and that he had been married for twenty-one years, had raised three accomplished children, and had maintained steady employment with increasing levels of responsibility over the years. Doe had not been convicted of any crime since his 1981 discharge from probation.

On December 31, 2003, the board recommended that Doe be required to register as a level one sex offender. A level one classification is the classification given to sex offenders whose risk of reoffense is low.³ Doe was informed of his right to request an evidentiary hearing to challenge his classification and registration obligation. See G.L. c. 6, § 178L (1); 803 Code Mass. Regs. §§ 1.06(1), 1.07(1) (2002). On January 11, 2004, Doe requested a hearing, and the matter was assigned to a hearing examiner.⁴ See G.L. c. 6, § 178L (1) (c); 803 Code Mass. Regs. § 1.07(2) (2002). The board then filed a motion for a required finding that Doe be classified as a level one offender (without a hearing) because as a matter of law, a person previously convicted of a sexually violent offense (such as rape)⁵ was required to register regardless of whether he posed any risk of reoffense or danger to the public, and a level one classification was the least intrusive designation that Doe could obtain under the registration law. The board acknowledged that, although in some circumstances, it could relieve a sex offender of the duty to register and could remove registration information from the registry,⁶ such relief could not be granted where, as here, the offender had been convicted of a sexually violent offense. See G.L. c. 6, § 178K (2) (d).

In response to the board's motion, the hearing examiner issued an order granting Doe leave to file a rebuttal statement addressing only whether the conviction information presented by the board was accurate, whether he was an adult at the time of his offense, and whether the facts otherwise suggested any exception to the registration requirement of G.L. c. 6, § 178K (2) (d). The order further stated that if, as an adult, Doe had committed a sexually violent offense, annual registration as a sex offender was mandatory pursuant to § 178K (2)(d).

On April 20, 2004, Doe submitted a rebuttal statement in which he claimed that his duty to register was not automatic by virtue of his conviction of a sexually violent offense. In particular, Doe took issue with Section D of the board's "Classification Worksheet," which stated that "[o]ffender currently presents some risk to reoffend and a degree of dangerousness."⁷ Doe asserted that there was no basis in the record for this conclusion and that he had a right to challenge it at a hearing. Doe further argued that if G.L. c. 6, § 178K, mandated that he register solely because of his prior conviction, then the application of the statute to him violated his due process rights under the Massachusetts Declaration of Rights.

Notwithstanding Doe's request for a hearing, none was held. By order dated April 22, 2004, the hearing examiner directed Doe to register with the board as a level one sex offender, in accordance with G.L. c. 6, § 178K (2) (a). At the time of the order, there was no evidence that Doe's behavior during the intervening decades since his plea indicated that he posed any risk of reoffense or danger "to the vulnerable members of our communities" that the registration law was intended to protect,⁸ a circumstance essentially acknowledged by the hearing examiner. The examiner concluded, however, that because the crime of rape was specified as a "[s]exually violent offense" under G.L. c. 6, § 178C, Doe could be granted no relief from his obligation to register, irrespective of any showing that he posed no such risk. See G.L. c. 6, §§ 178E (e), 178G, 178K (2) (d).

Doe filed a complaint for judicial review of the board's decision in the Superior Court, asserting that his substantive and procedural due process rights under the Massachusetts Declaration of Rights were violated because he was not afforded a hearing to challenge the board's classification recommendation, and there was no evidence to suggest that he posed a danger to anyone so as to necessitate registration. Doe's motion for judgment on the pleadings under Mass. R. Civ. P. 12(c), 365 Mass. 754 (1974), was denied and he was ordered to register as a level one sex offender. Doe filed a timely notice of appeal, and we transferred the case from the Appeals Court on our own motion. For the reasons that follow, we agree that the board's determination that Doe had a mandatory obligation to register annually, solely by virtue of his prior conviction, violates Doe's due process rights as protected by the Massachusetts Declaration of Rights.⁹ Consequently, we vacate and remand the case to the board to allow Doe to present evidence that he poses no risk to reoffend and thus should not be required to register.

Discussion. The genesis of the duty to register traces back to 1996, when the Legislature first enacted a registration law. G.L. c. 6, §§ 178C-178O. St.1996, c. 239, § 1. The registration requirements and notification provisions were subsequently held to be unconstitutional and its implementation enjoined in 1997. Doe v. Attorney Gen., 426 Mass. 136, 686 N.E.2d 1007 (1997). The registration law was rewritten in 1999, St.1999, c. 74, § 2, see note 2, supra, and now applies to all persons convicted of certain sex offenses, including persons convicted long before its enactment.¹⁰ Specifically, it applies to persons convicted of a designated sex offense whose "incarceration or parole or probation" had been completed "on or after August 1, 1981." G.L. c. 6, § 178C. Because Doe's probation ended on September 9, 1981, he is subject to the requirements of the 1999 law.

As the board acknowledges, it has authority to relieve some sex offenders of the obligation to register if they establish "that the circumstances of the[ir] offense [and] criminal history do not indicate a risk of reoffense or a danger to the public." G.L. c. 6, § 178K (2) (d). But the 1999 statute mandates that those who have committed a "[s]exually violent offense," which includes rape (G.L. c. 6, § 178C), may never be excused from registration; the obligation is lifetime in duration. G.L. c. 6, §§ 178G, 178K (2) (d). Thus, Doe was not permitted to challenge the board's determination that he posed a risk of reoffense to vulnerable offenders of our communities. This case presents the circumstance we noted, but did not need to decide, in Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 857 N.E.2d 473 (2006) (Doe No. 1211), where the record would establish "that Doe poses no risk at all [of reoffense]" and the application of the statutory provisions that permanently foreclose his being relieved of the duty to register may be "constitutionally vulnerable." Id. at 762, 857 N.E.2d 473.¹¹ 1. Retroactivity. In mentioning the registration law's constitutional vulnerability in Doe No. 1211, we did not distinguish between its retrospective and prospective application. However, retroactive statutes raise particular constitutional concerns. "The Legislature's unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals." Landgraf v. USI Film Prods., 511 U.S. 244, 266, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). This risk is acute in the context of people who have committed crimes that have a sexual component, and who are frequently the target of public ire and scorn.

Inquiry into whether the registration law has been unconstitutionally applied to Doe begins with an examination of whether the registration law is retroactive in its application. We confronted a similar challenge to the application of the sexually dangerous person act, G.L. c. 123A (SDP act), to persons convicted of sex offenses prior to the SDP act's amendment in 1999. See Commonwealth v. Bruno, 432 Mass. 489, 497-499, 735 N.E.2d 1222 (2000). We concluded that although a prerequisite for civil commitment under the SDP act was the commission of a sexual offense, and convictions occurring prior to the enactment of the SDP act could be used to satisfy that prerequisite, the statute's application was nonetheless not retroactive. Id. at 498, 735 N.E.2d 1222. In reaching...