Doe v. Sex Offender Registry Bd., 12–P–1988.

• Decision Date: 23 December 2013
• Docket Number: No. 12–P–1988.,12–P–1988.
• Parties: John DOE, Sex Offender Registry Board No. 7424 v. SEX OFFENDER REGISTRY BOARD.
• Court: Appeals Court of Massachusetts

84 Mass.App.Ct. 1126
999 N.E.2d 503 (Table)

John DOE, Sex Offender Registry Board No. 7424
v.
SEX OFFENDER REGISTRY BOARD.

No. 12–P–1988.

Appeals Court of Massachusetts.

December 23, 2013.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff appeals from a judgment affirming the decision of the Sex Offender Registry Board (board) classifying him as a level 3 sex offender. The plaintiff is serving a life sentence as a result of his 1984 conviction of murder in the second degree. He committed that crime while released on parole after his conviction in 1980 of rape of a child with force (the underlying index sex offense). The plaintiff is fifty-five years old, and there is no anticipated date for his release from incarceration.

This appeal is governed in all materials respects by Doe, Sex Offender Registry Bd. No. 6904 v. Sex Offender Registry Bd., 82 Mass.App.Ct. 67 (2012) (Doe No. 6904 ). As in Doe No. 6904, the plaintiff argues that the hearing examiner's decision was unreasonable because the statute requires an assessment of “current” dangerousness, and here he is serving a life sentence with no release date. See id. at 76 (plaintiff argued “that holding the hearing four years before his release is unreasonable pursuant to the statute, G.L. c. 6, § 178L [1][a ], and that he was prejudiced by a hearing held so long before his eventual release date”).¹ The board's only response to this argument is that it has been waived. We disagree. First, the argument was fairly presented to the judge in the plaintiff's motion for judgment on the pleadings.² Second, although the record does not indicate that the plaintiff sought at the administrative level to postpone the hearing, he fairly raised the issue of speculativeness as a result of holding the hearing before any known release date. The hearing examiner himself, in fact, candidly acknowledged that because the plaintiff's release date was “uncertain,” he could not assess the plaintiff's evidence because he was not permitted to “speculate on [the plaintiff's] future lifestyle stability.” The record contains nothing to indicate that the plaintiff poses any risk of reoffense while he remains...