Roe v. Farwell, Civ.A. 97-10715-WGY.
| Citation | 999 F.Supp. 174 |
| Decision Date | 31 March 1998 |
| Docket Number | No. Civ.A. 97-10715-WGY.,Civ.A. 97-10715-WGY. |
| Parties | John ROE, Plaintiff, v. Winthrop FARWELL, Commissioner, Department of Public Safety; Craig Burlingame, Executive Director, Criminal History Systems Board; Kathleen O'Toole, Secretary, Executive Office of Public Safety and Chairwoman, Sex Offender Registry Board; John F. Hollow, Chief of Police, Lynn, Defendants. |
| Court | United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts |
William B. VanLonkhuyzen, Zalkind, Sheketoff, Wilson, Homan, Rodriguez & Lunt, Boston, MA, for John Roe, plaintiff.
Loretta M. Smith, Attorney General's Office, Boston, MA, George S. Markopoulos, Lynn, MA, for Defendants.
This case presents to this Court questions faced in many jurisdictions across this country regarding the constitutionality of sex offender registration and notification statutes commonly referred to as "Megan's Laws" after seven year old Megan Kanka of New Jersey who was abducted, raped, and murdered on July 29, 1994 by a neighbor who lived across the street and was a released sex offender previously convicted of sex offenses against young girls. Neither Megan's parents, neighbors, nor the local police department knew about this sex offender's presence in their community. In response to this tragedy, the New Jersey legislature passed the Sex Offender Registration and Community Notification Acts on October 31, 1994. Spurred, in part, by the tragedy of Megan Kanka and other children at the hands of known sex offenders, the remaining states, including Massachusetts, soon enacted their own version of Megan's Law.1
The case presently before this Court seeks a declaratory judgment that the Massachusetts Megan's Law, Mass.Gen. Laws ch. 6 §§ 178C-178P, is unconstitutional on its face and as applied to the plaintiff John Roe2 ("Roe") in that it violates the terms of his plea agreement, as well as the Ex Post Facto, Double Jeopardy, Cruel and Unusual Punishment, Bill of Attainder, Equal Protection, and Due Process Clauses of the United States Constitution. Roe sought a preliminary injunction and this Court combined the hearing thereon with trial on the merits. Fed.R.Civ.P. 65(a)(2). Trial on a statement of agreed facts, see Continental Grain Co. v. Puerto Rico Maritime Shipping Auth., 972 F.2d 426, 430 n. 7 (1st Cir.1992), was held on July 2, 1997.
The Massachusetts legislature enacted the Massachusetts Sex Offender Registration and Community Notification Act ("the Act") on July 31, 1996. It became effective on October 1, 1996. The Act amended Mass. Gen. Laws ch. 6 by adding sections 178C to 1780.3 These new sections impose registration and notification requirements on "sex offenders." Under the statute, a sex offender is "a person convicted of a sex offense ... on or after August first, nineteen hundred and eighty-one." Mass.Gen. Laws ch. 6, § 178C. The Act defines eleven crimes as sex offenses, along with attempt to commit any of the listed sex offenses and violation of similar crimes in other states.
The Act requires that all sex offenders residing in Massachusetts register in person with their local police department. Mass. Gen. Laws. ch. 6, § 178E(h). The police department submits the registration data to the Criminal History Systems Board who sends such data to the police departments where the sex offender intends to live and work, to the police department where the offense was committed, and to the Federal Bureau of Investigation. Mass.Gen. Laws ch. 6, § 178(K)(2). A sex offender must notify the police department where he or she is registered of any change in his or her residential or work address five days prior to establishing a new residence. Mass.Gen. Laws ch. 6, § 178E(e) & (f). Failure to register is a misdemeanor punishable by two and one-half years in a house of correction or by a fine of not more than one thousand dollars or both. Mass.Gen. Laws ch. 6, § 178H.
The Act establishes an annual procedure for the verification of the registration data that includes an in-person appearance by the sex offender at his or her local police department. Mass.Gen. Laws ch. 6, § 178F. The annual registration requirement terminates "twenty years after the sex offender has been convicted or adjudicated or has been released from all custody or supervision, whichever last occurs, unless the sex offender was convicted of two or more sex offenses committed on different occasions, in which case the duty to register shall last for the offender's life." Mass.Gen. Laws ch. 6, § 178G. A sex offender may apply to have the registration obligation terminated upon a showing, by clear and convincing evidence, "that [he] has not committed a sex offense within fifteen years following conviction, adjudication, or release from all custody or supervision, whichever is later, and is not likely to pose a threat to the safety of others." Id.
Under the Act, the Criminal History Systems Board is responsible for establishing and maintaining a computerized sex offender registry. This registry is expected to contain a file on each sex offender including specified registration data.4
The Act establishes a Sex Offender Registry Board, a subdivision of the Criminal History Systems Board, responsible for 1) establishing guidelines for assessing the recidivism risk of sex offenders; 2) applying the guidelines to determining the risk level of a particular sex offender; 3) creating guidelines for police departments in distributing sex offender registry information; and 4) making recommendations to the Superior Court on a sex offender's recidivism level and community notification plan when an offender, who has a right to judicial review, has requested a hearing. Mass.Gen. Laws ch. 6, § 178K.5 Pursuant to its regulatory authority under the Act, the Sex Offender Registry Board has promulgated guidelines both for assessing a sex offender's risk of recidivism, 803 C.M.R. § 1.02, and for a police department's dissemination of sex offender registry information. 803 C.M.R. § 1.03.
The Act establishes a three-tiered notification system based on a sex-offender's risk of recidivism. The greater the risk of recidivism, the greater the level of notification. Broader community notification is required where the risk of recidivism is moderate (level two) or high (level three). Where the risk is moderate, community notification of organizations "likely to encounter" the sex offender (e.g., schools, day care centers, religious and youth organizations, and sports leagues) is required. Mass.Gen. Laws ch. 6, § 178K(2)(b); 803 C.M.R. § 1.03(5). Where the risk is high, community notification of organizations "likely to encounter" the sex offender and individuals "likely to encounter" the sex offender is required. Mass.Gen. Laws ch. 6, § 178K(2)(c); 803 C.M.R. § 1.03(6).
Under the level-two community notification requirement, the local police department, where the sex offender resides or works, is required to provide the relevant community organizations with the sex offender's 1) name; 2) home and work address; 3) information about the sexual offense or offenses committed and the date of the conviction or convictions; 4) his or her age, sex, race, height, weight, eye and hair color; and 5) a photograph (hereinafter "sex offender registry information"). Under the level-three community notification requirement, extensive community notification is required. In addition to notifying organizations in the community which are "likely to encounter" the sex offender, the local police department is required to notify individual members of the public who are "likely to encounter" the sex offender. Such notification is to occur by using local cable television stations, local newspapers, or the public posting of information. 803 C.M.R. § 1.03(6)(c). All notices to the community under the level-two or the level-three notification procedures are required to contain a criminal penalties warning against the use of sex offender registry information to commit a crime or to discriminate or harass a sex offender. Mass.Gen. Laws ch. 6, § 178K(2).
Another element of the public disclosure system established under the Act is public initiated access to sex offender registry information. Two provisions of the Act permit a person to request and obtain sex offender information. See Mass.Gen. Laws ch. 6, §§ 1781 & 178J. Under Section 1781, any person who is eighteen years of age or older may request verification of whether a person is a sex offender, his or her sex offenses, and the date of his or her convictions from the Criminal History Systems Board.
Under section 178J, any person may inquire at a local police department about whether a sex offender resides or works in a particular geographic area or whether a specific person is a sex offender. Such inquiry must be for the purposes of protecting the inquirer or a minor child or other person in the inquirer's care, custody, or control. If a sex offender is identified, the police department will provide the inquirer with the sex offender registry information for the sex offender, including the sex offender's home address or work address, if such address is within a one mile radius of a specified geographic area or on a specified street. Mass. Gen. Laws ch. 6, § 178J(c)(ii) and (iii). Like the community notification notices, any report issued contains a criminal penalties warning for the illegal use of sex offender registry information. Mass.Gen. Laws ch. 6, § 178I.
Roe is a resident of Lynn, Massachusetts. He owns a company which manufactures porcelain dental fittings. Plt.'s Aff. ¶ 2. One of his employees was a thirty-three year old female. From the beginning of her employment with Roe, she was subjected to Roe's inappropriate touching, hugging, and attempts to kiss her. Mercurio Aff., Initial Police Report Narrative. When she informed Roe that she intended to leave her position...
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