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Doe, Sex Offender Registry Board No. 29481 v. Sex Offender Registry Board (Lawyers Weekly No. 11-138-13)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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       11‑P‑1700                                       Appeals Court   JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 29481  vs.  SEX OFFENDER REGISTRY BOARD.     No. 11‑P‑1700. Suffolk.     September 12, 2013.  ‑  November 21, 2013. Present:  Green, Grainger, & Fecteau, JJ.   Sex Offender.  Sex Offender Registration and Community Notification Act.  Administrative Law, Hearing.  Evidence, Bias.  Due Process of Law, Administrative hearing.  Constitutional Law, Impartial tribunal.       Civil action commenced in the Superior Court Department on January 22, 2009.   The case was heard by Frank M. Gaziano, J., on a motion for judgment on the pleadings, and a motion to vacate the denial of the motion for judgment on the pleadings was heard by Peter M. Lauriat, J.     Xiomara M. Hernandez for the plaintiff. Thomas M. Doyle for the defendant.     FECTEAU, J.  The plaintiff appeals from a Superior Court judgment that affirmed the denial of his request for expert funds and affirmed the final decision of the Sex Offender Registry Board (board) which, after a de novo hearing, ordered the plaintiff to register as a level three (high risk) offender.  On appeal, the plaintiff essentially argues that (1) the hearing examiner’s decision is not supported by substantial evidence, (2) a remand for a new hearing is necessary due to the bias of the hearing examiner, and (3) a remand is also required because it was an abuse of discretion to deny his motion for funds to obtain expert evidence to explain that he poses a lower risk of recidivism because of mental illness and his age (fifty-eight at the time of the hearing).  Due to the bias of the hearing examiner, the decision of the board must be vacated and the plaintiff must be afforded a new classification hearing. 1.  Background.  On December 17, 1997, the plaintiff pleaded guilty to two counts of rape of a child, two counts of indecent assault and battery on a child under age fourteen, and two counts of incest, and was sentenced to a term of imprisonment of eight to twelve years in State prison.  In addition, he was placed on probation for a period of twelve years to be served concurrently with his direct sentence.  These offenses were all committed against his daughter over the course of several months, until she was thirteen years of age.  The plaintiff does not challenge […]

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Posted by Massachusetts Legal Resources - November 21, 2013 at 5:19 pm

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