John Doe v. Sex Offender Registry Bd.

• Decision Date: 19 September 2018
• Docket Number: No. 17-P-985,17-P-985
• Citation: 112 N.E.3d 276,94 Mass.App.Ct. 52
• Parties: John DOE, Sex Offender Registry Board No. 474362, & another v. SEX OFFENDER REGISTRY BOARD & others.
• Court: Appeals Court of Massachusetts

94 Mass.App.Ct. 52

112 N.E.3d 276

John DOE, Sex Offender Registry Board No. 474362, & another¹

v.SEX OFFENDER REGISTRY BOARD & others.²

No. 17-P-985

Appeals Court of Massachusetts, Essex..

Argued April 10, 2018

Decided September 19, 2018

Carrie Benedon, Assistant Attorney General, for the defendants.

Kate A. Frame, Salem, for the plaintiffs.

Present: Green, C.J., Desmond, & Englander, JJ.

ENGLANDER, J.

The plaintiffs filed this action in 2015 challenging a now-discontinued practice of the Sex Offender Registry Board (SORB or board), under which SORB published the criminal history and identifying information of adjudicated sex offenders who no longer lived in Massachusetts. Pursuant to this practice the plaintiffs' information was displayed on a page of SORB's official Web site, under the heading "moved out of state." The plaintiffs' claims are brought against SORB and two of its officers, alleging violations of Federal and State constitutional due process rights, as well as other violations of State law. This interlocutory appeal comes before us from the denial of a motion to dismiss that raised a variety of issues -- including, in particular, the propriety of claims for damages brought against the two SORB officers in their individual capacities. Because the Federal and State constitutional claims for damages against the officers fail as a matter of law, we reverse that portion of the Superior Court order denying the motion to dismiss, and affirm the remainder.

Background. As this is an appeal from a ruling under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), we take the well-pleaded facts from the plaintiffs' "amended complaint for declaratory and injunctive relief and for damages" (amended complaint). See Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223, 950 N.E.2d 853 (2011).

The structure of the sex offender registration statute has been frequently described. See, e.g., Moe v. Sex Offender Registry Bd., 467 Mass. 598, 600-603, 6 N.E.3d 530 (2014). The statute requires a sex offender to provide certain personal information, including name and current address, to the board. G. L. c. 6, § 178E. The board classifies sex offenders within a system of three different levels based on risk of reoffense and degree of dangerousness to the public. G. L. c. 6, § 178K. A sex offender's registration level has consequences for public access to that offender's information. Level one offenders are entitled to greater information privacy. See G. L. c. 6, § 178D. Level two and three sex offenders, by contrast, have their information published in an online database available to the public. See id. "Sex offender" is a defined term, and for present purposes it is relevant that it is defined to encompass persons who live, work, or attend school in Massachusetts. See G. L. c. 6, § 178C.

On or around June of 2015, SORB began the practice of publishing the sex offense history and other identifying information of sex offenders who had previously been registered but who were no longer living, working, or attending school in Massachusetts. The information was posted on SORB's Web site under the category entitled "moved out of state." The practice was initiated without any notification of the reposting to the affected individuals -- there were more than 600 such persons. The information published included photographs and criminal histories. SORB did not verify that the information was current or accurate before posting it -- and some of the information allegedly was inaccurate.

The plaintiffs sued on their own behalf and on behalf of a purported class. The allegations with respect to plaintiff John Doe, Sex Offender Registry Board No. 106929 (Doe No. 106929), well-illustrate why the plaintiffs were concerned:³ Doe No. 106929 came to Massachusetts in 2005 to attend school. He had previously been convicted in California for engaging in sexual relations with a sixteen year old when he was nineteen years old; California's age of consent was eighteen. After learning that Massachusetts had preliminarily classified him as a level three offender, Doe No. 106929 immediately left Massachusetts, and SORB ceased publishing his photograph and criminal history.

Ten years later, in June of 2015, Doe No. 106929 learned through an Internet conversation that SORB had resumed publishing his name and photograph -- this time on its "moved out of state" page. The sex offense listed on the page was "rape of a child." Doe No. 106929 received no notice from SORB regarding SORB's new practice, or that his name was being republished on SORB's Web site. Moreover, after Doe No. 106929 left Massachusetts, a court in California had entered an order expunging the record of his sex offense. Doe No. 106929 lost two jobs in California in 2015 once this information was made known at his workplaces.

The original complaint was filed on September 10, 2015. After some initial skirmishes, SORB took down the "moved out of state" portion of its Web site on or about September 29, 2015. Sometime later the plaintiffs filed an amended complaint which, for the first time, sought damages.

The amended complaint contains nine counts. Described generally, it includes counts for violations of both procedural and substantive due process, under both the State and Federal Constitutions. It also contains a separate count under 42 U.S.C. § 1983 (2012), the Federal statute that provides remedies for deprivations of Federal constitutional rights by State actors. The thrust of these due process claims is that the publication of the plaintiffs' identifying and criminal information constituted an impairment of their fundamental liberty and privacy interests, and was done without notice or an opportunity to be heard, and in clear violation of the Massachusetts sex offender registration laws. In addition, the amended complaint alleges violations of various State laws, including the right to privacy.

The defendants are SORB, the State entity, as well as two officers of SORB, each of whom is sued in both their official and individual capacities. Defendant Kevin Hayden was the chair of SORB when the complaint was filed; defendant Laurie Myers was its executive director.

The defendants eventually countered the amended complaint with the motion to dismiss at issue in this appeal. The thrust of that motion is that the plaintiffs do not have a claim for damages, both because (1) SORB's Web site publication did not violate procedural or substantive due process rights, and (2) even if such a violation occurred, the individual defendants have immunity from a damages claim because the constitutional rights the defendants allegedly violated were not "clearly established." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The motion to dismiss also argues that the requests for declaratory and injunctive relief are moot, because the allegedly offending portion of the Web site has been taken down. Notably, the motion is a partial motion that does not address several counts of the complaint -- for example, it does not touch at all on the privacy claim under Massachusetts law.

The Superior Court judge denied the motion. He reasoned, in relevant part:

"The court is unpersuaded by the defendants' argument that the individual defendants could not have known that the dissemination of the plaintiffs' information would amount to a violation of [F]ederal law. Given the numerous recent cases where Massachusetts courts have highlighted the due process, privacy, and liberty interests implicated by the [I]nternet dissemination of sex offenders' information to the public, the court is not convinced by the defendants' assertion that it would not have been clear to the individually named defendants that disseminating information of sex offenders who no longer have a duty to register in Massachusetts could amount to a violation of those individuals' constitutional rights."

The defendants appeal from the Superior Court judge's order, invoking our jurisdiction under the doctrine of present execution.⁴ For the reasons discussed below, we reverse in part and affirm in part.

Discussion. 1. The claims at issue. Before diving into substance, we need to first clearly define what is before us. The motion to dismiss under appeal focused on those counts of the amended complaint that allege constitutional due process violations, but the motion did not distinguish between Federal and State constitutional rights.⁵ The amended complaint, however, contains separate counts under both the Federal and Massachusetts Constitutions, for deprivations of both procedural and substantive due process. The distinction between claims under the Federal and State Constitutions is important: first, because under the case law the due process rights secured by the two Constitutions are not identical, and second, because the remedies available for violations of the two Constitutions may not be the same. Deprivations of Federal constitutional rights are remedied under § 1983, which includes, in appropriate circumstances, a damages remedy. In contrast, it is unclear whether damages are available for deprivations of State constitutional rights where, as here, the plaintiffs have not alleged a "threats, intimidation or coercion" claim under the Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H, 11I.

The upshot of these differences between Federal and State law is that each of the plaintiffs' claims must be separately analyzed, paying attention not only to the substantive law but also to the remedies available, and to the applicable defenses and government immunities.⁶

2. Procedural due process -- Federal Constitution. The Fourteenth Amendment to the United States Constitution provides that no State shall "deprive any person of life, liberty, or property, without due process of law." The plaintiffs' procedural due process argument is that they were deprived of a "liberty" or "property" interest when SORB published their photographs and criminal...