Moe v. Sex Offender Registry Bd.

• Decision Date: 26 March 2014
• Docket Number: SJC–11520.
• Citation: 467 Mass. 598,6 N.E.3d 530
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Michael MOE & others v. SEX OFFENDER REGISTRY BOARD.

467 Mass. 598

6 N.E.3d 530

Michael MOE & others ¹

v.SEX OFFENDER REGISTRY BOARD.

SJC–11520.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Dec. 5, 2013.

Decided March 26, 2014.

Limited on Constitutional Grounds

M.G.L.A. c. 6, §§ 178D, 178K

Ryan M. Schiff, Committee for Public Counsel Services (Dana Golblatt, Committee for Public Counsel Services, with him) for the plaintiffs.

John M. Stephan, Assistant Attorney General, for the defendant.

Eric Tennen, Boston, for Massachusetts Association for Treatment of Sexual Abusers, amicus curiae, submitted a brief.

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

GANTS, J.

On July 12, 2013, the Governor signed into law various amendments to G.L. c. 6, §§ 178C–178Q, the sex offender registry law (SORL), including amendments that would require the Sex Offender Registry Board (SORB) to publish on the Internet information contained in the sex offender registry (registry information) regarding all individuals given a level two or level three classification by SORB. See St. 2013, c. 38, §§ 7, 9. Before these amendments were enacted, § 178D required SORB to publish on the Internet the registry information of sex offenders given a level three classification, but expressly prohibited SORB from publishing on the Internet the registry information of level two offenders. The issues presented are whether the amendments are retroactive in effect “for the purposes of further constitutional inquiry,” as applied to those who were classified as level two offenders on or before the date of the amendments' enactment, see Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 787, 882 N.E.2d 298 (2008)( Doe No. 8725 ); whether the Legislature intended that they apply retroactively; and, if so, whether their retroactive application would violate due process under the Massachusetts Declaration of Rights. We conclude that the amendments are retroactive in effect as applied to level two offenders who were classified on or before the date of the amendments' enactment and that the Legislature intended such retroactive application, but that such retroactive application would violate State constitutional due process.²

History of the case. On July 5, 2013, after the Legislature had passed the amendments but before the Governor had signed them into law, the named plaintiffs, as putative representatives of the class of all persons presently and prospectively classified as level two sex offenders, filed in the county court a complaint for declaratory and injunctive relief. The complaint sought a preliminary and permanent injunction barring SORB from publishing registry information on the Internet of the class of level two offenders, as well as a declaratory judgment, and was accompanied by a motion for a preliminary injunction. On July 25, 2013, the single justice allowed the motion of the plaintiff class ³ to the extent that he preliminarily enjoined SORB from publishing on the Internet the registry information of any individual who had been finally classified as a level two sex offender on or before July 12, 2013, pending final adjudication of this proceeding.⁴ The single justice denied the plaintiff class's motion to preliminarily enjoin SORB from publishing on the Internet the registry information of any individual who had been given a final classification as a level two sex offender after July 12, 2013. The single justice also reserved and reported the plaintiffs' complaint for declaratory and injunctive relief to a full panel of this court for final adjudication, provided the parties filed with the county clerk a statement of stipulated facts, which they did.

On September 9, the single justice allowed the plaintiffs' motion to file an amended complaint that narrowed the scope of the putative class to include only those who were classified as a level two sex offender on or before July 12, 2013 (the effective date of the amendments) and, as a consequence, narrowed the scope of the relief sought. With the filing of the amended complaint, the plaintiffs seek an injunction that effectively would make the preliminary injunctive relief permanent, and a judgment declaring that Internet publication of the registry information of level two sex offenders classified on or before July 12 would violate the United States and Massachusetts Constitutions.

Background. As amended in 1999, St. 1999, c. 74, § 2, the SORL established a sex offender registration system in the Commonwealth of those convicted of a sex offense, as defined in G.L. c. 6, § 178C. Unless otherwise ordered by a court pursuant to G.L. c. 6, § 178E ( e ) or ( f ), sex offenders are required to register with SORB within five days of receiving a sentence on a conviction or juvenile adjudication. G.L. c. 6, § 178E ( a ). “Upon review of any information useful in assessing the risk of reoffense and the degree of dangerousness posed to the public by the sex offender, including ... any materials submitted by the sex offender, [SORB prepares] a recommended classification of each offender.” G.L. c. 6, § 178L (1). If an offender contests SORB's recommended classification, after a hearing conducted pursuant to guidelines established by SORB, a panel of three SORB members or a hearing examiner designated by SORB must issue a decision that finally classifies a sex offender into one of three “levels of notification depending on the degree of risk of reoffense and the degree of dangerousness posed to the public by the sex offender.” G.L. c. 6, § 178K (2). See G.L. c. 6, § 178L (2). “Where [SORB] determines that the risk of reoffense is low and the degree of dangerousness posed to the public is not such that a public safety interest is served by public availability, it shall give a level [one] designation to the sex offender.” G.L. c. 6, § 178K (2) ( a ). “Where [SORB] determines that the risk of reoffense is moderate and the degree of dangerousness posed to the public is such that a public safety interest is served by public availability of registration information, it shall give a level [two] designation to the sex offender.” G.L. c. 6, § 178K (2) ( b ). “Where [SORB] determines that the risk of reoffense is high and the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination, it shall give a level [three] designation to the sex offender.” G.L. c. 6, § 178K (2) ( c ). Neither “public availability” nor “active dissemination” is a defined term in the SORL, but their meaning can be discerned from the extent of public access to information associated with each term.

Under the SORL, as amended in 1999, the “public availability of registration information” applicable to level two offenders under G.L. c. 6, § 178K (2) ( b ), was limited to two types of information requests, each of which could only be made by a person “who [was eighteen] years of age or older and who state[d] that he [was] requesting sex offender registry information for his own protection or for the protection of a child under the age of [eighteen] or another person for whom the requesting person has responsibility, care or custody.” G.L. c. 6, §§ 178I, 178J.⁵ See G.L. c. 6, § 178K (2) ( b ), as amended through St. 1999, c. 74, § 2 (“The public shall have access to the information regarding a level [two] offender in accordance with the provisions of [ §§ ] 178I and 178J”). Under the first type of information request, provided for in § 178I, an adult may identify an individual, by name or otherwise, and ask SORB to indicate whether the individual is a sex offender. Under the second type, that provided for in § 178J, an adult who appears in person at a police station may make a similar request regarding an identified individual or may ask whether any sex offender resides, works, or attends “an institution of higher learning” within that city or town and, if so, obtain, among other information, the name, home address, and work address of the sex offender and, if available, a photograph of the sex offender.⁶ Even after enactment of the contested amendments, such information is only available, on public inquiry, for offenders given a level two or a level three classification. See G.L. c. 6, §§ 178I, 178J.

In contrast, under the SORL, as amended in 1999, the “active dissemination” of sex offender information referenced in G.L. c. 6, § 178K (2) ( c ), involved a “community notification plan” in which police departments in the communities where a level three sex offender resided or worked were required to “notify organizations in the community which [were] likely to encounter such sex offender and individual members of the public who [were] likely to encounter such sex offender.” G.L. c. 6, § 178K (2) ( c ). In addition, “[n]eighboring police districts [were required to] share sex offender registration information of level [three] offenders and [could] inform the residents of their municipality of a sex offender they [were] likely to encounter who reside[d] in an adjacent city or town.” Id.

The SORL, as amended in 1999, did not provide for Internet publication of any information regarding any sex offender. Internet publication of registry information was first required through an amendment to G.L. c. 6, § 178D, in 2003, St. 2003, c. 140, § 5, but was limited to registry information regarding level three offenders. The 2003 amendment specifically prohibited Internet publication of registry information of level two offenders.⁷ Therefore, until July 12, 2013, the “public availability of registration information” regarding level two offenders did not include Internet publication of registry information. The contested amendments at issue in this case effectively revise the definition of “public availability of registration information” to include Internet publication, because they make the registry information of level two offenders publicly available on...