Noe v. Sex Offender Registry Bd., SJC-12447

• Citation: 480 Mass. 195,102 N.E.3d 409
• Decision Date: 01 August 2018
• Docket Number: SJC-12447
• Parties: Daniel NOE, Sex Offender Registry Board No. 5340 v. SEX OFFENDER REGISTRY BOARD.
• Court: United States State Supreme Judicial Court of Massachusetts

480 Mass. 195

102 N.E.3d 409

Daniel NOE, Sex Offender Registry Board No. 5340

v.SEX OFFENDER REGISTRY BOARD.

SJC-12447

Supreme Judicial Court of Massachusetts, Suffolk..

Argued April 3, 2018.

Decided August 1, 2018.

Christopher M. Bova for the defendant.

Kate A. Frame, Salem (Eric B. Tennen, Boston, also present) for the plaintiff.

William J. Kobuszewski, Danvers, & John C. Cratsley, Concord, pro se, amici curiae, submitted a brief.

Nancy A. Dolberg, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

KAFKER, J.

In Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 298, 41 N.E.3d 1058 (2015) ( Doe No.380316 ), we held that the Sex Offender Registry Board (board) is constitutionally required to prove the initial classification of a convicted sex offender under the sex offender registry law, G. L. c. 6, §§ 178C - 178Q, by clear and convincing evidence. We are now asked to consider whether reclassification hearings require the board to meet the same standard and burden of proof as initial classification hearings. We conclude that they do. We also conclude that, given the plain language of G. L. c. 6, § 178L (3), indigent sex offenders have a right to counsel in such reclassification hearings.^{1 ,2}

1. Background. The sex offender registry law is "an extensive statutory registration scheme for sex offenders" designed to "protect the public from the danger of recidivism posed by sex offenders and to aid law enforcement officials in protecting their communities" (quotations omitted). Commonwealth v. Kateley, 461 Mass. 575, 576, 962 N.E.2d 747 (2012), quoting Commonwealth v. Rosado, 450 Mass. 657, 659-660, 881 N.E.2d 112 (2008). An individual who has been convicted of a sex offense as defined under G. L. c. 6, § 178C, is required to register under the sex offender registry law on release from custody, if applicable, or on notification of his or her obligation to register. See G. L. c. 6, § 178E (a ), (c ).

a. Registration and classification. Sex offenders are subject to a two-step registration and classification process. First, the board assesses an individual's risk of reoffense and degree of dangerousness and prepares a recommendation as to the appropriate classification level for the offender. See G. L. c. 6, § 178L (1).

The board has identified thirty-eight factors to be considered in making this determination. See 803 Code Mass. Regs. § 1.33 (2016).³ The board's regulations recognize that "[t]hese factors may be present to varying degrees in any individual case. The final classification level is not based on a cumulative analysis of the applicable factors, but rather a qualitative analysis of the individual sex offender's history and personal circumstances." Id.

If the sex offender objects to the board's recommendation, he or she has the right to a de novo evidentiary hearing before an examiner who makes a final determination as to the offender's duty to register and the appropriate classification level. See G. L. c. 6, § 178L (1) ; 803 Code Mass. Regs. § 1.04(3) (2016). At the evidentiary hearing, the examiner must consider the criteria that the board has identified in its regulations when assessing an offender's risk of reoffense and degree of dangerousness. See 803 Code Mass. Regs. § 1.04(4). The examiner then issues a written decision and places the offender into one of three classification levels. See 803 Code Mass. Regs. § 1.20 (2016). The sex offender has the right to counsel at this initial classification hearing. See G. L. c. 6, § 178L (1).

Where "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," the sex offender is classified as level one. G. L. c. 6, § 178K (2) (a ). Where "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," the offender is classified as level two. G. L. c. 6, § 178K (2) (b ). Where "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" of the offender's information, the offender is classified as level three. G. L. c. 6, § 178K (2) (c ). "Registration information for level one sex offenders is not provided to the public, information for level two and level three offenders is available to the public by request or on the Internet, and information for level three offenders may be disseminated actively to the public" (footnote omitted). Doe v. Lynn, 472 Mass. 521, 529, 36 N.E.3d 18 (2015).

The standard of proof required to satisfy due process has been the subject of much litigation. The sex offender registry law calls for the board to prove the appropriateness of a sex offender's classification by a preponderance of the evidence. See G. L. c. 6, § 178L (2). In 1998, two years after the passage of the sex offender registry law, we held that this preponderance of the evidence standard satisfied due process under the State and Federal Constitutions. See Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 103-104, 697 N.E.2d 512 (1998) ( Doe No. 972 ). However, seventeen years later, in light of changes to the sex offender registry law that had significantly increased the burdens on registered offenders, and other factors such as greater Internet dissemination of sex offender information, we determined that the preponderance of the evidence standard no longer satisfied due process. See Doe No. 380316, 473 Mass. at 311-312, 314, 41 N.E.3d 1058. Rather, the "extensive private interests now affected by classification counsel in favor of requiring a higher standard of proof," namely clear and convincing evidence, for final classification hearings. Id. at 311-312, 41 N.E.3d 1058.

b. Reclassification. Under the statutory and regulatory scheme, a sex offender may be reclassified in one of two ways. See Doe, Sex Offender Registry Bd. No. 326573 v. Sex Offender Registry Bd., 477 Mass. 361, 364, 76 N.E.3d 241 (2017) ( Doe No. 326573 ). Pursuant to G. L. c. 6, § 178L (3),⁴ the board can initiate reclassification proceedings "on its own initiative or upon written request by a police department or district attorney." Although the language of the statute allows the board to seek higher or lower reclassification level where new information is received "relevant to a determination of a risk of re-offense or degree of dangerousness," G. L. c. 6, § 178L (3), the board has promulgated regulations restricting it to seeking upward reclassification. See 803 Code Mass. Regs. § 1.32(1) (2016). Pursuant to G. L. c. 6, § 178L (3), the board must provide the offender with the information that led the board to seek reclassification. The offender has the right to challenge the reclassification, may submit "documentary evidence relative to his risk of reoffense and the degree of dangerousness posed to the public," and has the right to counsel. Id. Board-initiated reclassifications must follow the same procedures used for original classifications. See 803 Code Mass. Regs. § 1.32(4).

The board's regulations specify a separate procedure for sex offenders seeking downward reclassification. See 803 Code Mass. Regs. § 1.31 (2016). An individual classified as a level two or level three sex offender may seek reclassification based on a decreased risk of reoffense or degree of dangerousness. See 803 Code Mass. Regs. § 1.31(1). Offenders are eligible to seek downward reclassification no sooner than three years after the date of their final classification. 803 Code Mass. Regs. § 1.31(2)(a). An offender who has committed a new sex offense since his or her original classification, however, must be offense free for at least ten years before he or she can seek reclassification. Id. Offenders who have experienced "a material change in circumstances related to a medical condition" may file a motion for reclassification less than three years after the date of their prior classification. 803 Code Mass. Regs. § 1.31(3).⁵

The procedure for offender-initiated downward reclassifications is as follows. The offender must file a motion detailing why reclassification is appropriate and include supporting documentation. 803 Code Mass. Regs. § 1.31(2)(b), (c). The offender must also supply "an affidavit that provides an overview of his or her behavior and lifestyle during the three years prior to the filing of his motion for reclassification." 803 Code Mass. Regs. § 1.31(2)(d). The board bases its decision on new and updated information but may also consider information the board used in prior classification decisions, including any prior written decisions by the board. 803 Code Mass. Regs. § 1.31(5)(e).

The sex offender registry law does not specify the standard and burden of proof for reclassification hearings. See G. L. c. 6, § 178L (3). However, the board's regulations dictate that for offender-initiated motions for reclassification, the burden is on the offender to prove why downward reclassification is appropriate by clear and convincing evidence. 803 Code Mass. Regs. § 1.31(2)(c).

c. Noe's reclassification. The plaintiff, Noe, was convicted of open and gross lewdness and lascivious behavior on five separate occasions between 1990 and 2004.⁶ In each incident, the plaintiff exposed himself and masturbated in public. None of these incidents involved physical contact with the plaintiff's victims. Noe was classified as a level three sex offender in January, 2007. In the six years following his final classification, Noe lived in the community without any further sexual reoffenses. In January, 2013, he filed a request for downward reclassification and was granted a hearing before the board. In his letter to the board,...