Roe v. Attorney General

• Decision Date: 11 September 2000
• Citation: 750 NE 2d 897,434 Mass. 418
• Parties: RICHARD ROE & others v. ATTORNEY GENERAL & others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

434 Mass. 418

750 NE 2d 897

RICHARD ROE & others¹ v. ATTORNEY GENERAL & others.²

Supreme Judicial Court of Massachusetts, Suffolk.

September 11, 2000.

March 8, 2001.

June 28, 2001.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Jane L. Willoughby, Assistant Attorney General (Peter Sacks, Assistant Attorney General, with her) for the defendants.

Carol A. Donovan, Committee for Public Counsel Services (Larni S. Levy, Committee for Public Counsel Services, with her) for the plaintiffs.

SOSMAN, J.

This is a direct appeal from an order of a Superior Court judge allowing a preliminary injunction in a class action suit challenging St. 1999, c. 74, § 2, "An Act improving the sex offender registry and establishing civil commitment and community parole supervision for life for sex offenders" (the 1999 statute). The judge determined that the 1999 statute did not provide "sufficient meaningful due process protection," and issued a preliminary injunction prohibiting the defendants from requiring sex offenders to register pursuant to the statute without first offering them an individualized, evidentiary hearing to determine whether they currently present a risk to children or other vulnerable persons.

We conclude that persons convicted of a sex offense may be required to provide the sex offender registry board (board) with their names and addresses prior to conducting individualized hearings, and that the board may transmit registration data³ to law enforcement authorities, as these two initial steps of the 1999 statute do not offend the due process requirements of art. 12 of the Massachusetts Declaration of Rights.⁴ Accordingly, we vacate the Superior Court's order allowing the preliminary injunction.

I

In October, 1999, the plaintiffs filed this action in Superior Court alleging that the due process clause of art. 12 and the Fourteenth Amendment to the United States Constitution entitle them to individualized hearings to determine whether they pose an immediate threat to children or other vulnerable persons before they can be required to register as sex offenders. The plaintiffs further contend that providing law enforcement agencies with a sex offender's registration data, prior to any hearing to determine the offender's current risk of reoffense, similarly violates their constitutional rights of due process.

The plaintiffs sought injunctive relief. The judge ruled that the 1999 statute's requirement of registration without a prior hearing impinges on a protected liberty interest triggering the procedural protection of due process. He concluded that, for all offenders convicted before December 12, 1999, due process required a preregistration hearing to determine the risk posed by the offender.⁵ The judge enjoined the defendants from requiring the plaintiffs to comply with the registration provisions of the 1999 statute without first affording them an individualized evidentiary hearing as to their present dangerousness. He denied the request for preliminary injunctive relief in all other respects.⁶ The defendants appealed, and we granted their application for direct appellate review.

We review the grant of a preliminary injunction to determine whether the judge abused his discretion, including whether he applied the proper legal standards. See Doe v. Attorney Gen. (No. 2), 425 Mass. 217, 219 (1997) (Doe [No. 2]), citing Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615 (1980). For the following reasons, we hold that the challenged portions of the 1999 statute do not offend due process, and that the judge's contrary legal conclusion was erroneous.

II

We have previously ruled on numerous challenges to the 1996 precursor of the present statute. The 1999 statute and the parties' contentions are best understood in the context of the prior statute and our earlier decisions. In 1996, the Senate asked the Justices of this court four specific questions regarding the constitutionality of the then pending sex offender registration bill. See Opinion of the Justices, 423 Mass. 1201, 1202-1203 (1996). While answering that certain provisions of the bill did not violate any provisions of the United States or Massachusetts Constitution, we were not asked to opine on the constitutionality of the registration requirements of the bill. See id. at 1229.

General Laws c. 6, § 178E, inserted by St. 1996, c. 239, § 1,⁷ required sex offenders to register in person at their local police station. Once registered, all registration data concerning a sex offender became available on request to persons age eighteen or older who verified their age and identity. §§ 1781, 178J. The board was to use a three-tier classification system to assess each offender's level of dangerousness and risk of reoffense: level one (low), two (moderate), and three (high). Law enforcement officials were to institute a community notification plan, which required police to notify organizations, such as schools and day care centers, about level two and level three offenders who lived or worked in the neighborhood, and to notify individual members of the public about level three offenders whom they were likely to encounter. § 178K. Offenders were not afforded an evidentiary hearing prior to registration or disclosure of registration information to the public.

Multiple lawsuits challenged the validity of certain provisions of the 1996 statute on constitutional and other grounds. Doe (No. 2) was the first to reach a constitutional issue.⁸ Because of the "absence of any apparent remedial purpose to ... the general availability of information," id. at 222, as to whether an identified person was a sex offender, we held that the notification provisions of § 1781 might impose punishment on a person convicted before the effective date of the statute, in violation of the prohibition against double jeopardy and ex post facto laws. Id. at 219-220. We thus upheld a preliminary injunction preventing the Commonwealth from making the disclosures called for in § 1781.⁹ Id. at 222.

Next, in Doe v. Attorney Gen., 426 Mass. 136 (1997) (Doe [No. 3]), this court held that a level one offender had a constitutionally protected liberty and privacy interest implicated by a registration scheme that resulted in the public disclosure of information about him. Id. at 143-144. The "combination" of various features of the registration scheme was what implicated the plaintiff's liberty and privacy interest, the "most important" factor being "the statutory branding of him as a public danger." Id. at 144.¹⁰ We concluded that the process due the plaintiff was an opportunity for a hearing to determine whether he must register, and, if so, whether his sex offender information should be available on request.

The following year, in Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90 (1998) (Doe [No. 4]), we answered two questions. First, we determined that a sex offender's constitutionally required evidentiary hearing should be held before the sex offender registry board. See id. at 91. Second, we held that "the appropriateness of an offender's risk classification must be proved by a preponderance of the evidence, and that the board must make specific, written, detailed, and individualized findings to support the appropriateness of each offender's risk classification." Id.

Most recently, in Doe v. Attorney Gen., 430 Mass. 155, 161 (1999) (Doe [No. 5]), we considered whether a hearing was required as a condition of registration for persons convicted of one of the enumerated sex offenses. We stated that "[t]he burden of registration, combined with public dissemination provisions applicable to all registrants, triggers liberty and privacy interests ..." (emphasis added). Id. at 163. However, we suggested that the board could, consistent with due process, promulgate narrowly tailored regulations to identify categories of offenders who posed a grave danger and high risk of reoffense, and that individual preregistration hearings might not be necessary for those categories of offenders. Id. at 165.

Following our opinion in Doe (No. 5), the Legislature repealed the 1996 statute and enacted the current 1999 statute, apparently in an effort to comply with our past requirements.

We briefly summarize the key provisions of the new statute. The 1999 statute provides that a person convicted of any of the enumerated sex offenses¹¹ on or after August 1, 1981, or released on or after August 1, 1981, from confinement, parole, or probation supervision following a conviction of one of these offenses, is a "[s]ex offender." G. L. c. 6, § 178C. The definition of "[s]ex offender" includes a juvenile adjudicated delinquent by reason of a sex offense or a youthful offender who has been convicted of a sex offense.¹²Id.

The 1999 statute provides for the appointment by the Governor of a seven-member sex offender registry board. G. L. c. 6, § 178K (1). A sex offender who lives or works in the Commonwealth must register with the board by mail, listing his name, home address, and (if applicable) work address, or his intended home and work addresses.¹³ § 178E (a)-(c), 178E (g)(h), 178E (l). He must verify this information annually and report any changes to the board.¹⁴ §§ 178F, 178F½. The penalty for a first offense of knowingly failing to register or failing to notify the board of any changes is from six months to two and one-half years in a house of correction, up to five years in State prison, a $1,000 fine, or both a fine and imprisonment.¹⁵ § 178H (a) (1).

The 1999 statute provides for postregistration hearings and mandates the order of priority in which offenders are to be reviewed.¹⁶ G. L. c. 6, §§ 178K (3), 178L. The board is to promulgate guidelines for classifying an offender's level of dangerousness and risk of reoffense and apply those guidelines to assess the risk level of particular offenders. § 178K (1). The board may determine that an...