Doe No. 356011 v. Sex Offender Registry Board (Lawyers Weekly No. 11-117-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 13-P-1842 Appeals Court JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 356011 vs. SEX OFFENDER REGISTRY BOARD. No. 13-P-1842. Suffolk. January 7, 2015. – August 18, 2015. Present: Kafker, Meade, & Maldonado, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Constitutional Law, Sex offender. Due Process of Law, Sex offender. Administrative Law, Hearing. Evidence, Expert opinion, Sex offender, Police report. Witness, Expert. Civil action commenced in the Superior Court Department on February 1, 2013. The case was heard by Jeffrey A. Locke, J., on a motion for judgment on the pleadings. Eric Tennen for the plaintiff. David L. Chenail for the defendant. MALDONADO, J. Following Doe’s 2011 conviction for indecent assault and battery on a person fourteen years of age or older,[1] the Sex Offender Registry Board (SORB) notified Doe that he would be required to register as a level three sex offender. Doe obtained de novo administrative review pursuant to G. L. c. 6, § 178L. Neither party called any witnesses, and the de novo hearing proceeded on the basis of documentary evidence, which included, among other things, classification records containing a summary of Doe’s disciplinary reports and a police report that described sexual assault allegations of which Doe was acquitted. The hearing examiner (examiner) found this hearsay evidence probative of Doe’s repetitive and compulsive sexual history, and he classified Doe as a level three sex offender. Doe appeals from a Superior Court judgment affirming this classification. He asserts the examiner erred by considering both the disciplinary history set forth in his classification records and the police report of acquitted conduct. Doe also challenges the denial of his request for expert funds relative to his age as a mitigating factor. We affirm. Background. The examiner based Doe’s level three classification on multiple statutory factors, see G. L. c. 6, § 178K(1), including his sexual history and compulsive sexual behavior (803 Code Mass. Regs. § 1.40[2] [2002]), his criminal history[2] — particularly as it related to a history of nonsexual violent offenses — (803 Code Mass. Regs. § 1.40[9][b], [c][6] [2002]), his poor incarceration behavior (803 Code Mass. Regs. § 1.40[19] [2002]),[3] and his noncompliance with conditions of probation (803 Code Mass. Regs. § 1.40[20] [2002]).[4] The examiner also explicitly rejected Doe’s claim that his age of forty-nine years was a mitigating factor. In assessing Doe’s […]