DOE, SEX OFFENDER REGISTRY BOARD NO. 156545 vs. SEX OFFENDER REGISTRY BOARD (Lawyers Weekly No. 10-119-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11495 JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 156545 vs. SEX OFFENDER REGISTRY BOARD. July 9, 2014. Sex Offender. Mandamus. Practice, Civil, Sex offender, Action in nature of mandamus, Transcript of testimony. Administrative Law, Proceedings before agency, Adjudicatory proceeding, Record, Judicial review. The petitioner appeals from a judgment of a single justice of this court declining to compel the Sex Offender Registry Board (board) to produce a transcript of the petitioner’s classification hearing. We hold that, in the peculiar circumstances of this case, the petitioner is entitled to the transcript. Background. In September 2009, the board notified the petitioner that it had preliminarily classified him as a level three sex offender. The petitioner requested a hearing, pursuant to G. L. c. 6, § 178L, which was held on July 29, 2010. After the hearing had been completed but before the hearing examiner had rendered a decision, the examiner became unavailable, and a successor examiner was appointed pursuant to 803 Code Mass. Regs. § 1.22(4) (2002).[1] The successor examiner issued his decision on January 12, 2011, classifying the petitioner as a level three offender. The petitioner thereafter commenced an action for judicial review in the Superior Court pursuant to G. L. c. 30A; his counsel did not order a transcript of the classification hearing at that point, as he might have done, for inclusion in the administrative record. The board filed its answer, in the form of the administrative record, which did not include a copy of a transcript. A judge in the Superior Court denied the petitioner’s motion for judgment on the pleadings and affirmed the board’s decision classifying the petitioner as a level three offender. The petitioner appealed, and his appeal was entered in the Appeals Court on March 9, 2012. The Appeals Court stayed the appeal, at the petitioner’s request, to allow the petitioner time to file, and the Superior Court to consider, a motion to remand the matter to the board. The petitioner then filed in the Superior Court, pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), a motion seeking remand of the matter to the board so that it could reconsider his “motion for funds to retain an expert,” or, “[a]lternatively, [to hold] a new classification hearing because he was denied the effective assistance of counsel at the hearing.” He […]