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Doe v. Sex Offender Registry Board

Superior Court of Massachusetts, Essex

August 16, 2016

John Doe, SORB No. 496501
v.
Sex Offender Registry Board No. 134655

          MEMORANDUM AND DECISION ON PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION PROHIBITING INTERNET PUBLICATION OF REGISTRY INFORMATION

          Timothy Q. Feeley, Associate Justice

         This is a Chapter 30A appeal of the July 15, 2016 final decision of the Sex Offender Registry Board (" SORB" or the " Board") classifying plaintiff John Doe (" Doe") as a level two sex offender. Immediately upon receipt of an e-mail copy of the decision at about 9:30 a.m. on July 15th, and knowing of SORB's policy of same-day publication of a newly classified sex offenders' (level two and three) registry information on its website, counsel for Doe contacted SORB, informed SORB that she was going to prepare and submit to the court later that day a complaint and a motion to prohibit/stay Internet publication of Doe's registry information. Doe's counsel requested that SORB delay posting Doe's registry information on its website until Doe's intended motion for an injunction could be considered by the court. Just before 4:00 p.m., Doe's complaint and motion for a TRO/preliminary injunction was filed with the court However, no later than 12:00 noon, SORB had posted Doe's registry information on its website. In response to Doe's request for a TRO, and given that Doe's registry information was already on SORB's website, the court issued a short order of notice and the parties appeared in court on July 18, 2016. The above facts were confirmed by SORB, but other facts remained unclear. It was unclear to the court (Feeley, J.) whether any member of SORB's legal department refused Doe's request to delay posting to its website, or whether Doe's information, despite notice of Doe's intention to seek immediate judicial intervention, was posted to the website as part of SORB's standard practice and policy to post registry information the same day a final classification decision is issued. SORB was previously warned by this court in an earlier classification matter that it should not prevent sex offenders from a meaningful opportunity to seek judicial intervention prior to Internet publication of a sex offender's registry information. Doe, SORB No. 298384 v. Sex Offender Registry Board, Essex Superior Court No. 2015-01848-A, Memorandum Dated November 23, 2015 (Feeley, J.). By its actions, despite a request to delay Internet publication, SORB prevented Doe from seeking meaningfut judicial intervention in a legitimate effort to prevent irreparable harm if Doe is successful in his Chapter 30A appeal to have his classification level reduced to level one. See Moe v. Sex Offender Registry Board, 467 Mass. 598, 606, 6 N.E.3d 530 (2014) (injury to sex offenders " that could arise from Internet publication would likely be irreparable, even if SORB were later to reduce their classification to level one or release them from the obligation to register"); Doe v. Attorney Gen. (No. 2), 425 Mass. 217, 222, 680 N.E.2d 97 (1997) (once sex offender information is obtained and distributed with no remedial motive, " at best it will not easily be remediable").

         The court (Feeley, J.) issued an order that SORB withdraw Doe's registry information from its website, withdraw Doe's registry information from public availability, and otherwise treat Doe's registry information as if Doe were classified as a level one sex offender, pending further order of the court. In addition, a hearing was scheduled in order to complete the factual record and to address the constitutionality of SORB's practice/policy to post sex offender registry information on its website the same day the final classification decision issues, and whether such a practice interferes with the fair administration of justice by preventing the court from considering judicial intervention (in the form of a stay of Internet publication) before a sex offender's registry information is published on the Internet.

         An evidentiary hearing was held on August 5, 2016. SORB was represented by an Assistant Attorney General (" AAG"). Before taking evidence, the court marked eighteen exhibits, consisting of the written order scheduling the hearing [Ex. 1], and written decisions/orders by the undersigned associate justice in prior Chapter 30A appeals of classification decisions. Exhibits 2-8 are orders staying Internet publication of registry information sought by sex offenders. Exhibits 9-18 are decisions vacating final classification decisions, or in two cases, granting a new hearing before SORB. Exhibit 19 is the affidavit of William Burke, SORB's General Counsel (" Attorney Burke"), which was submitted the day before the hearing, along with a written memorandum signed by the AAG. Exhibits 20-23 were submitted by Doe at the hearing. Three of the exhibits are affidavits from other counsel who represent sex offenders in Chapter 30A appeals of their final classification levels. Exhibits 24 and 25 were submitted by Doe later in the day of the hearing. Exhibit 24 is another affidavit from an attorney who represents sex offenders in Chapter 30A appeals of their final classification levels. Exhibit 25 is a printout from a private website unrelated to SORB that reflects that Doe is posted as a registered sex offender on the private website.

         At the hearing, Attorney Burke answered questions from the court to clarify and expand upon his submitted affidavit. Robert DePardo, a registration specialist for SORB (" DePardo"), and the person who sends classification decisions to counsel of record, was sworn and testified. He responded to questions from the court and Doe's counsel. SORB passed on further questioning. Now that the factual record is complete and the parties have been provided a meaningful opportunity to address the constitutional and administration of justice issues raised by SORB's same-day Internet publication policy, the court makes the following findings and rulings.

         FACTUAL BACKGROUND

         On Friday morning July 15, 2016, sometime before 9:30 a.m., DePardo received the written decision of the hearing examiner classifying Doe as a level two sex offender. He made no database entry of the decision or of Doe's registry information into SORB's website, as that was apparently routinely done by hearings unit personnel before he received the decision. DePardo is, perhaps among others, responsible for notifying counsel of record of the hearing examiner's classification decision. That notification in all instances prior to July 15, 2016, was made by DePardo by placing the written decision in SORB's mail system, for delivery to the United States Postal Service. He has historically received classification decisions throughout the day, and would send them out upon his receipt, even if not received until the afternoon, or the late afternoon.[1] In accordance with a recently instituted practice, and if requested by counsel for sex offenders, SORB will notify counsel of classification decisions by fax or e-mail, to a provided fax number or e-mail address.

         In this case, on July 15, 2016, DePardo for the first time in his experience at SORB used e-mail to notify a sex offender's counsel of the issuance of the hearing examiner's classification decision.[2] He did so at 9:36 a.m. Consistent with SORB's practice, no notice was provided in DePardo's e-mail as to the anticipated timing of the public availability of Doe's registry information on SORB's website. Immediately thereafter, he received a reply from Doe's counsel informing him that she was in the process of seeking a court order to stay Internet publication. She requested that SORB not publish Doe's registry information on its website before day's end. At 10:00 a.m., DePardo responded to Doe's counsel and informed her that she needed to direct any questions or concerns to SORB Attorney John Bosse (" Attorney Bosse"), who had represented SORB at the classification hearing. Doe's counsel sent an e-mail to Attorney Bosse at 10:16 a.m. repeating her earlier request to delay Internet publication of Doe's registry information until day's end, so that she could seek a judicial order staying such publication. No response/reply from Attorney Bosse or SORB was received by Doe's counsel. Attorney Bosse never received the e-mail, as he was out of the office on a pre-scheduled leave day and had apparently not used a widely-available e-mail tool to reply automatically to received e-mails informing senders that he was out of his office for the day. Doe's counsel checked SORB's website sometime around 10:00 a.m., and Doe's registry information was not included. She checked again at 12:00 noon, at which time Doe's registry information was on SORB's website.

         Attorney Burke did receive notice of or a copy of Doe's counsel's request to delay Internet publication to day's end, sometime between 10:00-11:00 a.m. He did not reach out to or contact Doe's counsel to acknowledge her request, or to inform her that SORB would comply with the request. He also did not contact her to set up a process whereby a court order, if issued late in the day, could be complied with before Doe's registry information was posted on SORB's public website. At the time Attorney Burke learned of Doe's request for delay, he was under the impression, that he has since learned was wrong, that Doe's registry information, although already inputted into SORB's website, would not be visible/available to the public on the website until the database was automatically " refreshed" at 5:30 p.m. Relying on his incorrect understanding of SORB's website procedures, he took no action on Doe's request for delay, as he concluded that SORB's same-day posting policy would delay Internet publication, as requested by Doe's counsel, until 5:30 p.m.[3] As already noted, he did not give Doe's counsel the professional courtesy of informing her that SORB, following its standard policy, would honor her request for delay to day's end.

         Attorney Burke was wrong, whether through his own neglect and inattention to detail, or through incomplete training on SORB's website procedures, the court cannot say. Attorney Burke is one of several managers at SORB trained and authorized to make non-routine changes to SORB's website. SORB more than occasionally needs to correct website information or remove registry information from the website in order to comply with court orders to that effect. [See Exhibits 3-8.] On two occasions on July 15th Attorney Burke accessed SORB's website and removed offender information pursuant to court orders. In so doing, he manually " refreshed" the website. That is, by manually " refreshing" the website (database), he also advanced the public availability of sex offender registry information placed in the database earlier in the day, and that would not otherwise have become publicly available on the website until 5:30 p.m. He manually refreshed the database at 9:15 a.m., which did not add Doe's registry information to the website. He manually refreshed the database at about 10:00 a.m., which did add Doe's registry information to the public website. The court accepts Attorney Burke's assertion that he was unaware of the consequences of a manual " refresh" and that he did not intentionally disregard Doe's counsel's request to delay Internet publication to day's end.[4] Because SORB contends that the morning publication of Doe's registry information was unintentional, and that in ignoring Doe's request for delay, it relied on its " end of same day (5:30 p.m.) Internet publication policy, " it is necessary for this court to consider and rule on the lawfulness of SORB's same-day publication policy.

         Classification decisions are issued by hearing examiners in accordance with no set schedule. Although SORB would like to see issued decisions within sixty days of the conclusion of the hearing, no such policy is in place. As there is no set policy regarding the timing of the issuance of classification decisions, counsel for sex offenders have no advance knowledge of when classification decisions will issue. Requests to hearing examiners for a stay of Internet publication (where applicable) upon issuance of the final classification decision are routinely denied. [Ex. 24.] Hearing examiners claim, erroneously in this court's view, that they have no statutory authority to stay classification decisions. See G.L.c. 30A, § 14(3). SORB admits that it has never, although statutorily authorized to do so, stayed Internet publication or other dissemination of a sex offender's registry information upon issuance of a final classification decision, except upon receipt of a court order requiring them to do so.

         DISCUSSION

          Upon original enactment, the Sex Offender Registry Act (the " Act") did not provide for Internet publication of any information regarding any sex offender. See St. 1996, c. 239, § 1. Internet publication of registry information was first required through an amendment in 2003, but was limited to registry information regarding level three sex offenders. G.L.c. 6, § 178D, as amended through St. 2003, c. 140, § 5. Since July 12, 2013, the Act has required that Internet publication, that is, through SORB's publicly available website, include the registry information of level two sex offenders. Id., as amended through St. 2013, c. 38, § § 7, 9. More specifically, the Act now requires SORB to make available for inspection by the general public on its comprehensive data base published on the Internet the registry information of level two and three sex offenders. Id. The words immediately or forthwith are not included in the legislative directive to include sex offender registry information for level two and three offenders on SORB's website. The Act is silent as to when, in relation to issuance of its classification decisions, registry information must be published on the Internet. The Act, by its silence, leaves the timing of Internet publication to the sound discretion of SORB, subject of course to the constitutional procedural due process rights of sex offenders. SORB reads the statute as if it mandated immediate Internet publication. It does not, although mis-reading the Act is not SORB's only or even most egregious failing. SORB has ignored the constitutional mandate that its classification proceedings, including its Internet publication policy, must comport with the procedural due process rights of sex offenders.

         SORB contends that under the Act and under Chapter 30A, " the Board may immediately publish on the Internet the registration information of a sex offender who is finally classified as a Level Two or Level Three offender." The court disagrees. Even if the Act mandated immediate Internet publication (which it does not), such a requirement cannot stand in opposition to the due process rights of sex offenders. The United States Constitution is the supreme law of the land, and unconstitutional laws, regulations, and state policies/actions must give way. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-80, 2 L.Ed. 60 ...


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