Koe v. Commissioner of Probation, et al. (Lawyers Weekly No. 10-153-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12160 KRISTI KOE[1] vs. COMMISSIONER OF PROBATION & another.[2] Suffolk. May 1, 2017. – September 27, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.[3] Sex Offender. Practice, Criminal, Record. Due Process of Law, Sex offender, Retroactive application of statute. Statute, Retroactive application. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on March 18, 2016. The case was reported by Hines, J. Beth Eisenberg (Catherine J. Hinton also present) for the plaintiff. Susanne G. Reardon, Assistant Attorney General, for the defendants. CYPHER, J. In this case, we confront part of a statute that retroactively prohibits the plaintiff from ever sealing the record of her sex offenses because she was once classified as a level two sex offender, even though the Sex Offender Registry Board (SORB) has determined that the plaintiff no longer poses any cognizable degree of dangerousness or risk of reoffending, no longer believes that she should be classified as a level two sex offender, and has relieved her of the obligation to register as a sex offender. The plaintiff argues that, as a applied to her, the retroactive statutory prohibition on sealing sex offenses violates her due process rights under the Massachusetts Declaration of Rights. Because we agree with the plaintiff that the challenged portion of this statute, as applied to her, is retroactive and unreasonable, we conclude that it cannot be enforced against her. Background. We summarize the following facts from findings made by a Superior Court judge and by a SORB hearing panel, as well as from other record materials. Underlying offense and classification. In 1995, Kristi Koe was found guilty by a Superior Court jury of one count of rape and abuse of a child, G. L. c. 265, § 23, and one count of indecent assault and battery on a child under age fourteen, G. L. c. 265, § 13B. The offenses occurred in 1990, when Koe was twenty-two years old. The victim was a twelve year old girl who was then living with Koe and Koe’s sister. Over a ten-day period, Koe engaged in various sexual acts with the victim. As a result of her convictions, SORB recommended, and Koe accepted, a classification as a level two sex offender, pursuant to […]