Roe v. Reilly

• Decision Date: 24 November 1999
• Docket Number: 995029A
• Citation: Roe v. Reilly, 1999 MBAR 424, 995029A (Mass. Super. Nov 24, 1999)
• Parties: Richard Roe and others1 v. Thomas Reilly2 and others3
• Court: Massachusetts Superior Court

1999-MBAR-424

Richard Roe and others1 v. Thomas Reilly2 and others3

No. 995029A

Superior Court of Massachusetts

November 24, 1999

Mass L. Rptr. Cite: 11 Mass. L. Rptr. 218

Venue Superior Court, Suffolk, SS

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): XIFARAS

Plaintiffs seek class certification under Mass.R.Civ.P. 23("Rule 23") in this action to permanently enjoin enforcement of the registration and notification provisions of G.L.c. 6 172C-172P(as amended September 10, 1999),4 An Act Improving the Sex Offender Registry and Establishing Civil Commitment and Community Parole Supervision For Life For Sex Offenders (the "Act").5 For the reasons stated below, plaintiffs' motion for class certification is ALLOWED.

BACKGROUND

The named plaintiffs are sex offenders, as defined by the Act.A sex offender is a person

who resides or works in the commonwealth and who has been convicted of a sex offense or who has been adjudicated as a youthful offender or as a delinquent juvenile by reason of a sex offense or a person released from incarceration or parole or probation supervision or custody with the department of youth services for such a conviction or adjudication or a person who has been adjudicated a sexually dangerous person under section 14 of chapter 123A, as in force at the time of adjudication, or a person released from civil commitment pursuant to section 9 of chapter 123A, whichever last occurs, on or after August 1, 1981.

G.L.c. 6, 178C.

PlaintiffRichard Roe was convicted of rape and abuse of a child in 1985.He is not currently confined, on probation or on parole.PlaintiffDavid Doe was convicted of assault with intent to rape in 1978.He is not in custody, on probation or parole.PlaintiffVincent Voe was convicted of rape of a child in 1996.He is currently on probation.PlaintiffPhillip Poe was convicted of aggravated rape in 1992 and is currently incarcerated.PlaintiffLarry Loe was convicted of rape and indecent assault and battery in March 1999, and is currently incarcerated.

At some point in the future, as required by the Act, the Sex Offender Registry Board(the "Board") will assign the plaintiffs a threat level classification number ranging from one to three.178K.Those classified as level one offenders are said to pose a low risk of reoffending.Level two offenders are considered at moderate risk to reoffend.And level three offenders are those who pose a high risk of reoffending.The Board must assign a threat level classification number to the commonwealth's 13,000 to 16,000 sex offenders, including plaintiffs.6

Prior to receiving a threat level classification number, sex offenders are required to provide their name, home address and work address to the Board.The Board publishes a mail-in registration card for this purpose.The Board will then use the registration data to communicate with the offender, to solicit information from offenders prior to assigning a threat level and to notify the offender of the threat level when assigned.See 178L.The Board will also provide the registration data to the Federal Bureau of Investigations (the "FBI") for national distribution in accordance with the Jacob Wetterling Crimes against Children and Sexually Violent Offender Registration Act, 42 U.S.C. section 14071.See 178E.

DISCUSSION

Plaintiffs assert that the Acts's registration and notification requirements impinge upon a protected liberty interest and trigger the due process protection guaranteed by the Fourteenth Amendment, andart. 12 of the Massachusetts Declaration of Rights.They argue that prior to registration the Commonwealth must provide offenders with a hearing to determine whether they pose a current threat to children or other vulnerable people.Plaintiffs contend that only those offenders shown to pose a threat must register.7

The Plaintiffs argue that class certification is appropriate because all those required to register have an identical constitutional challenge to registration.They argue that class action is an efficient and equitable means of addressing these thousands of comparable claims.

The defendants argue against class certification.Defendants contend that the issues raised by the class representatives are not sufficiently "typical" of the entire class, and the named plaintiffs cannot adequately represent the interests of the remaining class members as required by Mass.R.Civ.P. 23.

In Massachusetts, class certification occurs only when plaintiffs satisfy the statutory requirements.Mass.R.Civ.P. 23.Plaintiffs wishing class certification must show: (1) joinder is impracticable due to the large number of plaintiffs; (2) questions of law and fact common to all class members; (3) the claims and defenses of the class representatives are typical of those of the remaining class members; and (4) the representative parties fairly and adequately represent the interest of the class.Mass.R.Civ.P. 23(a).In addition, (1)the court must find that questions of law and fact common to the class predominate over any question affecting only individual members, and (2) the class action is superior to other available methods for the fair and efficient adjudication of the controversy.Mass.R.Civ.P. 23(b).

The first requirement of class certification, numerosity, is satisfied.There are between 13,000 and 16,000 people presently required to register as sex offenders.This class grows daily and is too large to make joinder a practical litigation option.The second requirement of class certification, commonality of facts and law, is satisfied as well.There are no facts in dispute.The entire matter is a question of law.The common legal question, whether offenders are entitled to a preregistration hearing, is properly raised by all under a present duty to register with the Board.

The third requirement of class certification, typicality, is satisfied also.The test for assessing typicality is deciding whether a named class representative's claim is similar enough to the absent class members' claim so that, in the process of adjudicating the former, the court will necessarily be presented with all the facts and legal arguments required to adjudicate the latter claims.The Reporter's Notes to the rule make it clear that the standard is not complete identity in all respects; some differences between the representative's claim and those of the class members is tolerated.SeeReporters' Notes toMass.R.Civ.P. 23.The class representatives' claims are typical of the class as a whole in that all class members are under a present duty to register, and each has a due process challenge to doing so.In this respect, there is a perfect fit between the named plaintiffs and the remaining members of the class.

Defendants argue lack of typicality as the primary reason weighing against class certification.Defendants argue that the plaintiffs were convicted of a variety of offenses, and none are eligible for relief from future annual registration under G.L.c. 6, 178E(e), 178E(f), 178G or 178K(2)(d) of the Act, the various means through which some sex offenders may one day petition or be deemed free from further registration.Defendant reasons that those individuals who can take advantage of the above referenced provisions do not share the class representatives' due process claim.Defendant contends that those class members who qualify for relief under the above referenced portions of 178 enjoy a higher level of due process protection than do the named class representatives, and therefore should not be included in the class, if one is certified.

Defendants' argument is unpersuasive.The entire class is under a present duty to register.It is that common issue, the claim for due process prior to registration, that defines the class.That some presently required to register have various means of avoiding subsequent annual registrations does not diminish that common issue.There is typicality between the named plaintiffs' claims and those of the remaining class members because the litigation of the named plaintiffs claims will necessarily address the facts and law necessary to litigate those of the class as a whole.In adjudicating the named plaintiffs' claims, the court will necessarily be presented with all the facts and legal arguments required to adjudicate the claims of those with recourse through future relief under 178.That the plaintiffs are...