Doe v. Sex Offender Registry Bd.
| Docket Number | 21-P-584. |
| Decision Date | 04 October 2022 |
| Parties | John DOE, Sex Offender Registry Board No. 22188 v. SEX OFFENDER REGISTRY BOARD. |
| Court | Appeals Court of Massachusetts |
Matthew J. Koes, for the plaintiff.
John P. Bossé, for the defendant.
Present: Ditkoff, Walsh, & Brennan, JJ.
The plaintiff, John Doe, appeals from a Superior Court judgment affirming his final classification by the Sex Offender Registry Board (SORB) as a level two sex offender. See G. L. c. 6, § 178K (2) (b ). The hearing examiner relied on a regulatory factor (repetitive and compulsive behavior) that SORB agrees is invalid as applied here, and the only questions before us are whether Doe's substantial rights may have been prejudiced by this error and how to make that determination. In considering how to determine whether Doe's substantial rights may have been prejudiced, we conclude that the proper question is whether the error may have affected the classification. As the error here may have affected the classification, we vacate the judgment and remand to SORB for further proceedings.
1. Background. a. Offenses. On July 30, 1989, at around 4:30 A.M. , Doe, then twenty-five years old, broke into the apartment of a thirty-two year old woman. He held her at knifepoint, threatened to kill her if she made noise, and robbed her of $900. He then pulled her shirt over her head and vaginally raped her at knifepoint. He fled on foot.
Eight days later, on August 7, 1989, Doe entered a second home at around 2:15 A.M. The second victim, a thirty-seven year old woman, was asleep on a couch in her in-laws’ house. Doe held a knife to her throat and told her to be quiet. He then robbed her of $400, led her downstairs to the kitchen, and forced her to stand at the countertop. He vaginally raped her from behind at knifepoint. The victim's son, husband, and in-laws were asleep in the home at the time. Doe made her kneel and then fled on foot. Doe was under the influence of "crack" cocaine during both attacks and had broken into the homes to steal money to buy drugs.
On June 7, 1990, Doe was convicted, after a jury trial, of, inter alia, aggravated rape and armed robbery based on the second attack. On March 12, 1991, Doe pleaded guilty to, inter alia, aggravated rape and armed robbery based on the first attack. He was released from custody on December 29, 2016.
b. First classification. On August 15, 2016, SORB issued a decision classifying Doe as a level three sex offender. In its decision, SORB gave factor 2, repetitive and compulsive behavior, "full aggravating weight." Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 740, 138 N.E.3d 459 (2019) ( Doe No. 22188 ). The regulation, as applied to adults, stated the following:
On appeal, we concluded that the hearing examiner erred by applying full aggravating weight to factor 2 because the defendant was not discovered, confronted, or investigated between the two rapes, much less charged or convicted. Doe No. 22188, 96 Mass. App. Ct. at 742-743, 138 N.E.3d 459.1 Accordingly, we vacated the judgment affirming SORB's classification decision and remanded the matter for further proceedings. Id. at 744-745, 138 N.E.3d 459.
c. Second classification. On April 28, 2020, after a hearing, a SORB hearing examiner issued an amended decision classifying Doe as a level two sex offender. In his decision, the examiner again applied factor 2, this time without "extra weight," stating that, because "[t]he offenses were eight days apart ..., the Petitioner had ample opportunity to reflect on the wrongfulness of his conduct." In the decision, the examiner expressly rejected Doe's argument that factor 2 should apply only where the offender was caught between offenses. The examiner also applied (to varying degrees) ten risk-elevating factors,2 four risk-mitigating factors,3 and three additional factors.4
Doe filed a timely complaint in Superior Court challenging the classification. Doe's complaint also sought a declaratory judgment that the factor 2 regulation, "or portions of that regulation, exceeds the scope of the Board's authority, is ultra vires, not supported by empirical research and otherwise invalid." Doe presented scientific evidence, in the form of research by preeminent sex offender recidivism expert Dr. R. Karl Hanson, that reoffense after being caught was predictive of recidivism but that the occurrence of multiple offenses without being caught was not. Specifically, Dr. Hanson opined "that individuals whose index sexual offense conviction involved more than one victim and/or more than one offense were no more likely to reoffend sexually than individuals who were convicted on only one sexual offense against only one victim," but "if an individual is charged with a sexual offense and then later commits a new sexual offense, the individual's risk for sexual recidivism is now increased by about 60%." SORB, for its part, conceded "that there is no support in the scientific literature or research for the proposition that repeated offenses, separated by a time for reflection, is predictive of increased risk of sexual re-offense."
After the Superior Court hearing on the parties’ motions for judgment on the pleadings, we decided Doe, Sex Offender Registry Bd. No. 356315 v. Sex Offender Registry Bd., 99 Mass. App. Ct. 292, 298, 164 N.E.3d 227 (2021) ( Doe No. 356315 ), in which we upheld the factor 2 regulation as consistent with G. L. c. 6, § 178K (1) (a ) (ii), against a facial challenge. We were not faced with, and did not consider, a challenge to the scientific basis for the factor 2 regulation. Applying our opinion, the judge took as a given that the regulation was proper under the statute and considered only its scientific grounding.
Based on the scientific evidence, the judge concluded that, "not only is SORB's approach unsupported, but the evidence actually contradicts it." Accordingly, the judge declared that "[t]he second and third sentences of 830 Code Mass. Regs. 1.33(2) unlawfully exceed the Sex Offender Registry Board's authority and violate due process by attributing a high risk of reoffense whenever an offender committed two or more episodes of sexual misconduct, whether or not the offender was discovered, confronted or investigated between episodes ... and without any substantial record evidence of compulsion." SORB has not appealed the declaratory judgment and is revising its regulations.
On the appeal of the classification, the judge concluded "that Factor 2 did not materially affect the outcome and that substantial evidence supports a level 2 classification." Accordingly, the judge affirmed the classification. This appeal, limited to the classification decision, followed.
2. Standard of review. Under G. L. c. 30A, § 14 (7), an agency decision may be set aside if a court determines "that the substantial rights of any party may have been prejudiced because the agency decision is -- (a) [i]n violation of constitutional provisions; or (b) [i]n excess of the statutory authority or jurisdiction of the agency; or (c) [b]ased upon an error of law; or (d) [m]ade upon unlawful procedure; or (e) [u]nsupported by substantial evidence; or (f) [u]nwarranted by facts found by the court on the record as submitted or as amplified ... in those instances where the court is constitutionally required to make independent findings of fact; or (g) [a]rbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law." Applying this statutory standard, we have held that a decision of SORB "may only be set aside if the court determines that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law." Doe, Sex Offender Registry Bd. No. 6969 v. Sex Offender Registry Bd., 99 Mass. App. Ct. 533, 537, 169 N.E.3d 534 (2021) ( Doe No. 6969 ), quoting Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76, 35 N.E.3d 788 (2015) ( Doe No. 356011 ). Our review "is confined to the administrative record," Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88, 120 N.E.3d 1263 (2019) ( Doe No. 523391 ), and we "give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it." Doe No. 356011, supra, quoting Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787, 857 N.E.2d 492 (2006). "We review a judge's consideration of an agency decision de novo." Doe No. 6969, supra, quoting Doe No. 523391, supra at 89, 120 N.E.3d 1263.
Usually, we decide whether the "substantial rights of any party may have been prejudiced," G. L. c. 30A, § 14 (7), by determining "whether the unlawfulness of the [agency]’s procedure may have affected the outcome." Sullivan v. Superintendent, Mass. Correctional Inst., Shirley, 101 Mass. App. Ct. 766, 773 (2022), quoting Rivas v. Chelsea Hous. Auth., 464 Mass. 329, 338, 982 N.E.2d 1147 (2013). Accord Police Dep't of Boston v. Kavaleski, 463 Mass. 680, 691, 978 N.E.2d 55 (2012) (...
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