Doe, Sex Offender Registry Board No. 68549 v. Sex Offender Registry Board (Lawyers Weekly No. 10-183-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11562 JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 68549 vs. SEX OFFENDER REGISTRY BOARD. Suffolk. September 3, 2014. – November 5, 2014. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Administrative Law, Substantial evidence, Regulations. Evidence, Sex offender, Expert opinion. Practice, Civil, Sex offender. Witness, Expert. Regulation. Minor. Civil action commenced in the Superior Court Department on June 15, 2010. The case was heard by Robert C. Cosgrove, J., on a motion for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Francis J. DiMento (Dana Alan Curhan with him) for the plaintiff. Jennifer K. Zalnasky for the defendant. Eric Tennen, for Youth Advocacy Division of the Committee for Public Counsel Services & others, amici curiae, submitted a brief. Robert E. McDonnell, Jeff Goldman, Nathaniel P. Bruhn, & Saia M. Smith, for American Civil Liberties Union Foundation of Massachusetts & another, amici curiae, submitted a brief. LENK, J. Over a three-year period ending in 1988, when he was sixteen years old, John Doe No. 68549 repeatedly subjected two of his cousins to sexual assaults, including rape. His victims came forward many years after the fact and, in October, 2003, when Doe was thirty-one years old, he pleaded guilty to a number of sex offenses committed when he was a juvenile. In March, 2006, a hearing examiner of the Sex Offender Registry Board (SORB) determined that Doe posed a moderate risk of reoffense and a moderate degree of dangerousness, and classified Doe as a level two sex offender. A Superior Court judge, determining that this classification was not supported by substantial evidence, remanded for further proceedings. In May, 2010, a successor hearing examiner (successor examiner) concluded that Doe poses a low risk of reoffense and a low degree of dangerousness. Doe was therefore classified as a level one sex offender, a classification that was upheld by a different judge of the Superior Court. Doe appealed, and we granted his application for direct appellate review. Doe contends that he should not be required to register as a sex offender. See G. L. c. 6, § 178K (2) (a)-(d). He argues that, in light of scientific research showing that adolescent brains are different from adult brains, and in light of the […]
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 […]
Doe, Sex Offender Registry Board No. 346132 v. Sex Offender Registry Board (Lawyers Weekly No. 11-069-14)
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 13‑P‑548 Appeals Court JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 346132 vs. SEX OFFENDER REGISTRY BOARD. No. 13‑P‑548. Suffolk. March 5, 2014. ‑ June 18, 2014. Present: Kafker, Fecteau, & Agnes, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Jurisdiction, Sex offender. Kidnapping. Rape. Practice, Civil, Sex offender. Words, “Like violation.” Civil action commenced in the Superior Court Department on March 29, 2012. The case was heard by Elizabeth M. Fahey, J., on a motion for judgment on the pleadings. Eric Tennen for the plaintiff. David L. Chenail for the defendant. KAFKER, J. Based on a 1987 Federal kidnapping conviction, the Sex Offender Registry Board (SORB) notified John Doe of his duty to register and his preliminary classification as a level three sex offender. Doe unsuccessfully contested both the registration requirement and the level of classification at an evidentiary hearing and in Superior Court. On appeal, Doe argues that SORB lacks jurisdiction over him, obviating his need to register and rendering his classification void. As his conviction was not in a Massachusetts court, this argument depends on the proper interpretation and application of G. L. c. 6, § 178C, as amended by St. 1999, c. 74, § 2, which requires registration for individuals convicted in another jurisdiction of a “like violation” similar to a Massachusetts sex crime requiring registration. In Doe’s view, his Federal kidnapping conviction does not have an analogous “like violation” in Massachusetts that would compel registration. Conversely, SORB contends that in Doe’s particular case, “rape and assault” were proved to satisfy an element of his Federal kidnapping charge, and that this is sufficient to satisfy the elements of the Massachusetts offense of aggravated rape, which requires registration. It is SORB’s position that Doe was essentially convicted of a “like violation” and thus subject to SORB’s jurisdiction. Based on our understanding of the test set out in John Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 615-619 (2010) (Doe No. 151564), which requires that the elements of the two offenses be the same or nearly the same, and precludes registration based on the particular facts underlying a conviction, we must reject SORB’s conduct-based argument. Factual and procedural history. On February 2, 1987, a Federal jury found Doe guilty of kidnapping pursuant […]
Moe, et al. v. Sex Offender Registry Board (Lawyers Weekly No. 10-058-14)
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‑11520 MICHAEL MOE & others[1] vs. SEX OFFENDER REGISTRY BOARD. Suffolk. December 5, 2013. ‑ March 26, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Constitutional Law, Sex offender. Due Process of Law, Sex offender, Retroactive application of statute, Class action. Practice, Civil, Sex offender, Class action, Injunctive relief. Statute, Retroactive application. Injunction. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on July 5, 2013. The case was reported by Gants, J. Ryan M. Schiff, Committee for Public Counsel Services (Dana Golblatt, Committee for Public Counsel Services, with him) for the plaintiffs. John M. Stephan, Assistant Attorney General, for the defendant. Eric Tennen, for Massachusetts Association for Treatment of Sexual Abusers, amicus curiae, submitted a brief. GANTS, J. On July 12, 2013, the Governor signed into law various amendments to G. L. c. 6, §§ 178C-178Q, the sex offender registry law (SORL), including amendments that would require the Sex Offender Registry Board (SORB) to publish on the Internet information contained in the sex offender registry (registry information) regarding all individuals given a level two or level three classification by SORB. See St. 2013, c. 38, §§ 7, 9. Before these amendments were enacted, § 178D required SORB to publish on the Internet the registry information of sex offenders given a level three classification, but expressly prohibited SORB from publishing on the Internet the registry information of level two offenders. The issues presented are whether the amendments are retroactive in effect “for the purposes of further constitutional inquiry,” as applied to those who were classified as level two offenders on or before the date of the amendments’ enactment, see Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 787 (2008) (Doe No. 8725); whether the Legislature intended that they apply retroactively; and, if so, whether their retroactive application would violate due process under the Massachusetts Declaration of Rights. We conclude that the amendments are retroactive in effect as applied to level two offenders who were classified on or before the date of the amendments’ enactment and that the Legislature intended such retroactive application, but that such retroactive application would violate State constitutional due process.[2] History of the case. On […]
Doe, Sex Offender Registry Board No. 151564 v. Sex Offender Registry Board (Lawyers Weekly No. 11-015-14)
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 12‑P‑1981 Appeals Court JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 151564 vs. SEX OFFENDER REGISTRY BOARD. No. 12‑P‑1981. Suffolk. January 8, 2014. ‑ February 24, 2014. Present: Kafker, Grainger, & Meade, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Administrative Law, Hearing, Evidence. Evidence, Expert opinion. Witness, Expert. Civil action commenced in the Superior Court Department on August 24, 2010. The case was heard by Paul E. Troy, J., on a motion for judgment on the pleadings. Andrew S. Crouch for the plaintiff. Jennifer K. Zalnasky for the defendant. KAFKER, J. In Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612 (2010) (Doe No. 151564), the Supreme Judicial Court remanded this case to the Sex Offender Registry Board (SORB) to consider numerous scientific and statistical studies regarding the effect of the plaintiff’s (Doe) age on his dangerousness and likelihood to reoffend and whether Doe was entitled to expert witness funds. On remand, a SORB hearing examiner denied Doe’s request for funds for an expert and engaged in her own unguided review of the scientific and statistical studies. The hearing examiner reaffirmed SORB’s earlier decision to classify Doe as a level three sex offender, and on Doe’s appeal to the Superior Court pursuant to G. L. c. 30A, see G. L. c. 6, § 178M, a judge affirmed that decision. We conclude that Doe was entitled to funds for an expert to inform both his own presentation and the hearing examiner’s classification review. We therefore vacate the judgment of the Superior Court and remand the case to SORB for further proceedings consistent with this opinion. Background. Doe was born on March 26, 1946. In June, 2001, in Maine, he sexually abused a six year old child who was not a family member. Doe pleaded guilty in Maine to one count of unlawful sexual conduct in violation of Me. Rev. Stat. Ann. tit. 17A, § 255(1)(C). In Doe No. 151564, 456 Mass. at 613, the Supreme Judicial Court concluded this conviction was a “like violation” when compared to the Massachusetts crime of indecent assault and battery on a child under fourteen years of age, G. L. c. 265, § 13H, and therefore required Doe to register as a sex offender in Massachusetts, where he was then living. In the original classification […]
Doe, Sex Offender Registry Board No. 205614 v. Sex Offender Registry Board (Lawyers Weekly No. 10-195-13)
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 SJC‑11328 JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 205614 vs. SEX OFFENDER REGISTRY BOARD. Suffolk. October 7, 2013. ‑ December 11, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Administrative Law, Hearing, Judicial review, Standard of proof, Regulations. Witness, Expert. Evidence, Expert opinion. Civil action commenced in the Superior Court Department on September 1, 2010. The case was heard by Paul E. Troy, J., on a motion for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Catherine J. Hinton for the plaintiff. David L. Chenail, Assistant Attorney General, for the defendant. Andrew S. Crouch, Committee for Public Counsel Services, & Elizabeth A. Lunt, for Committee for Public Counsel Services & another, amici curiae, submitted a brief. LENK, J. John Doe, a female, pleaded guilty to several Federal charges arising from her prior management of an escort service, including one count of sex trafficking of children, 18 U.S.C. § 1591 (2006).[1] That conviction is a “like violation” to the Massachusetts offense of living off of or sharing earnings of a minor prostitute, G. L. c. 272, § 4B, an enumerated offense requiring registration as a sex offender. See G. L. c. 6, § 178C. A hearing examiner of the Sex Offender Registry Board (SORB) determined after a hearing that Doe presented a low risk of reoffense and attendant degree of dangerousness, and classified her as a level one sex offender. Doe appealed, claiming both that it was arbitrary and capricious for the hearing examiner not to have evaluated proffered authoritative evidence on recidivism in females, and that it was an abuse of discretion to have denied her motion for funds for an expert witness to testify on the subject. We conclude that it was arbitrary and capricious for SORB to classify Doe’s risk of reoffense and degree of dangerousness without considering the substantial evidence presented at the hearing concerning the effect of gender on recidivism, and that, in the circumstances, the hearing examiner abused his discretion by denying the motion for funds for an expert witness. Therefore, we remand the matter to SORB for further proceedings. 1. Statutory and regulatory framework. The requirement to register as a sex offender is governed by a set of […]
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 […]
Soe, Sex Offender Registry Board No. 252997 v. Sex Offender Registry Board (Lawyers Weekly No. 10-168-13)
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 SJC‑11290 JOHN SOE, SEX OFFENDER REGISTRY BOARD NO. 252997 vs. SEX OFFENDER REGISTRY BOARD. Plymouth. May 7, 2013. ‑ September 11, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Constitutional Law, Sex offender, Self‑incrimination. Due Process of Law, Sex offender, Continuance. Evidence, Sex offender, Acquittal in prior criminal trial. Practice, Civil, Sex offender, Continuance. Administrative Law, Agency’s authority. Civil action commenced in the Superior Court Department on April 22, 2010. The case was heard by Robert C. Cosgrove, J., on a motion for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Ethan C. Stiles for the plaintiff. William H. Burke for the defendant. Brandon L. Campbell, for Committee for Public Counsel Services, amicus curiae, submitted a brief. GANTS, J. The plaintiff appeals from the decision of a Superior Court judge affirming his classification as a level three sex offender by the Sex Offender Registry Board (board). The plaintiff is a “sex offender” as defined in G. L. c. 6, § 178C, as a result of his convictions on June 17, 2009, of indecent assault and battery on a person over fourteen, in violation of G. L. c. 265, § 13H, and therefore he is subject to classification by the board. At the time of his classification hearing, the plaintiff was awaiting trial on charges that he had repeatedly sexually assaulted his young stepdaughter. The police reports setting forth the stepdaughter’s allegations and the consequent police investigation were admitted in evidence at the classification hearing. On appeal, the plaintiff contends that the board committed an error of law and abused its discretion in denying his motion to continue the classification hearing until his pending criminal case was “resolved” without balancing “the plaintiff’s due process interest in preparing his defense” in the criminal case “against [the board’s] interest in protecting the public.” Alternatively, the plaintiff argues that because the hearing examiner relied on the untried allegations of sexual assault in classifying him as a level three sex offender, “public policy demands reconsideration” of his classification where he was later found not guilty of the sexual offenses at his criminal trial. We recognize that a sex offender who has […]