Supreme Judicial Court of Massachusetts, Middlesex
John Doe, Sex Offender Registry Board No. 380316
Sex Offender Registry Board
Argued: September 9, 2015.
Civil action commenced in the Superior Court Department on November 21, 2013.
The case was heard by Dennis J. Curran, J., on a motion for judgment on the pleadings.
The Supreme Judicial Court granted an application for direct appellate review.
Brandon L. Campbell for the plaintiff.
David L. Chenail for the defendant.
Beth L. Eisenberg & Larni S. Levy, Committee for Public Counsel Services, & Eric B. Tennen, for Committee for Public Counsel Services & another, amici curiae, submitted a brief.
Andrew S. Crouch, for Youth Advocacy Division of the Committee for Public Counsel Services & another, amici curiae, submitted a brief.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
We are asked in this case to consider anew the standard of proof that the Sex Offender Registry Board (SORB) must satisfy in order to classify a convicted sex offender under the provisions of the sex offender registry law, G. L. c. 6, § § 178C-178Q. The plaintiff, John Doe No. 380316 (Doe), is a convicted sex offender who was classified by a preponderance of the evidence as having a moderate risk of reoffense. In Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 91, 697 N.E.2d 512 (1998) ( Doe No. 972 ), we held that SORB need only prove the appropriateness of a sex offender's risk classification by a preponderance of the evidence. In light of amendments to the sex offender registry law and other developments since our decision in that case, however, Doe contends that the preponderance standard no longer adequately protects his due process rights. We agree. For the reasons stated below, we hold that SORB is constitutionally required to prove the appropriateness of an offender's risk classification by clear and convincing evidence.
When Doe was thirty-five years old, he reportedly " twisted" the penis of his six year old nephew through the child's underwear while both were in the bathroom. Doe apologized to the boy immediately after the incident, and they hugged each other. After several incidents of incontinence over the following weeks, however, the boy told his mother what had happened, and she thereafter reported the incident to the police. Following a jury trial, Doe was found guilty of indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B, a sex offense requiring SORB registration under G. L. c. 6, § § 178C-178D. Doe had not previously been convicted of a sex offense. On or about June 14, 2013, while Doe was still incarcerated, SORB preliminarily recommended that Doe be classified as a
level three sex offender, the level assigned to convicted sex offenders posing the highest risk of reoffense. After Doe challenged that recommendation, however, a SORB hearing examiner determined by a preponderance of the evidence that he was more appropriately classified as a level two sex offender, the level assigned to convicted sex offenders posing only a moderate risk of reoffense. That determination was made on October 23, 2013.
The hearing examiner relied on the regulatory factors promulgated by SORB, 803 Code Mass. Regs. § 1.40(1)-(24) (2013), to determine Doe's degree of dangerousness and risk of reoffense. The examiner particularly noted that Doe had sexually abused his " extra-vulnerable" nephew, that he appeared to be unwilling to admit to the offense despite his conviction, and that the victim suffered continuing emotional trauma as a result of the incident. The examiner recognized that some " favorable facts" diminished Doe's risk of reoffense, including that Doe had not been reported for disciplinary violations and had attended Alcoholics Anonymous meetings during his incarceration, and that he would likely have a stable home environment living with his sister upon his release. Nevertheless, the examiner found that these mitigating factors only somewhat offset the aggravating factors present in Doe's case, and determined that Doe was appropriately classified as a level two offender.
Doe sought judicial review in the Superior Court, pursuant to G. L. c. 30A, § 14, and G. L. c. 6, § 178M. His level two classification was affirmed. We granted Doe's application for direct appellate review. On appeal, Doe argues that due process under both the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights requires SORB to prove its classification determinations by clear and convincing evidence. Additionally, he argues that this court should reverse his classification because SORB failed to prove that he poses a level two degree of risk and dangerousness to the public even under a preponderance of the evidence standard. Finally, Doe asks this court to order SORB to stop disseminating his registry data on the Internet, on the grounds that the 2013
amendment to the sex offender registry law that required the Internet publication of level two offenders' registry information, St. 2013, c. 38, § § 7, 9, was not retroactive as applied to him.
We conclude that due process requires that a sex offender's risk level be proved by clear and convincing evidence. The risk classifications that SORB must make now have consequences for those who are classified that are far greater than was the case when we decided Doe No. 972. The preponderance standard no longer adequately protects against the possibility that those consequences might be visited upon individuals who do not pose the requisite degree of risk and dangerousness. Accordingly, we vacate the decision of the Superior Court affirming SORB's classification of Doe as a level two sex offender. We remand the matter to the Superior Court for entry of an order to SORB to conduct an evidentiary hearing de novo under the heightened standard, and to cease disseminating Doe's registry information on the Internet while that hearing is pending. At the hearing, both Doe and SORB may introduce new evidence relevant to a final classification determination. The hearing examiner may also consider evidence, but not findings of fact, from Doe's original hearing. Contrast Doe, Sex Offender Registry Bd. No. 7083 v. Sex Offender Registry Bd., 472 Mass. 475, 489-490, 35 N.E.3d 698 (2015) ( Doe No. 7083 ).
2. Standard of review and stare decisis.
A reviewing court may set aside or modify a hearing examiner's decision if it was:
" (a) In violation of constitutional provisions; or
" (b) In excess of statutory authority or jurisdiction of the agency; or
" (c) Based upon an error of law; or
" (d) Made upon unlawful procedure; or
" (e) Unsupported by substantial evidence; or
" (f) Unwarranted by facts found by the court on the record ... ; or
" (g) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law."
G. L. c. 30A, § 14 (7). The appellant bears the burden of showing that one of these conditions has been met. See Coe v. Sex Offender Registry Bd., 442 ...