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Noe v. Sex Offender Registry Board

Superior Court of Massachusetts, Suffolk

March 28, 2017

Daniel Noe, Sex Offender Registry Number 53401 [1]
v.
Sex Offender Registry Board No. 136375

          MEMORANDUM OF DECISION AND ORDER ON PETITIONER'S RENEWED MOTION FOR JUDGMENT ON THE PLEADINGS

          Brian A. Davis, Associate Justice of the Superior Court.

         Introduction

         This is an action, filed pursuant to G.L.c. 30A, § 14, G.L.c. 6, § 178M, and G.L.c. 231A, § 1, in which petitioner Daniel Noe, Sex Offender Registry Board Number 5340 (" Petitioner"), a registered " Level 3" sex offender, challenges a May 2014 decision by respondent Sex Offender Registry Board (the " Board") denying his statutorily-authorized request for reclassification to a lower sex offender level. The Board's decision came after a hearing at which Petitioner represented himself because the Board's regulations do not provide for the appointment of legal counsel for indigent sex offenders who seek reclassification. In its decision, the Board concluded that Petitioner had not presented sufficient evidence to establish, by a preponderance of the evidence, that there had been a change in his circumstances which warranted a reduction in his level classification.

         Petitioner commenced this action in June 2014. After several procedural delays, the case eventually came before the Court on Petitioner's renewed motion for judgment on the pleadings filed pursuant to Mass.R.Civ.P. 12(c) (Docket No. 24.0). See Superior Court Standing Order 1-96. It is Petitioner's renewed motion with which this decision and order is concerned. Petitioner argues, inter alia, that the Board's decision violates his constitutional rights and is otherwise not in accordance with law because the Board required him to bear the burden of proof at his reclassification hearing, and because he was denied the benefit of legal counsel at that hearing. The Board argues to the contrary. It also has requested that the Court remand Petitioner's case to the Board for a rehearing in light of the Supreme Judicial Court's recent decision in Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 41 N.E.3d 1058 (2015) (" Doe No. 380316 "), which the Board interprets as imposing on Petitioner the burden of establishing, by clear and convincing evidence, that his circumstances warrant a reduction in his sex offender level classification.

         The Court conducted multiple hearings in this matter, most recently on November 22, 2016. Having now considered all of the parties' written submissions and the oral arguments of counsel, Petitioner's renewed motion for judgment on the pleadings is ALLOWED for the reasons, and to the extent, discussed below.

         Factual, Legal, and Procedural Background [2]

         This case and the Board regulations in question have a lengthy factual, legal, and procedural background that the Court does its best to succinctly summarize as follows.

         I. The Massachusetts Sex Offender Registry Law.

         The Massachusetts Legislature first enacted a sex offender registry law in 1996. See St. 1996, c. 239. Following a series of judicial decisions identifying certain " infirmities" in the original statute, the Legislature enacted the present, significantly revised version of the law, which appears at G.L.c. 6, § § 178C-178Q (the " Sex Offender Registry Law" or the " Registry Law"), in 1999. Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 755, 857 N.E.2d 473 (2006). As described by the Supreme Judicial Court (" SJC"), the Massachusetts Sex Offender Registry Law, as currently written,

provides that a person convicted of any of the enumerated sex offenses on or after August 1, 1981, or released on or after August 1, 1981, from confinement, parole, or probation supervision following a conviction of one of these offenses, is a " [s]ex offender" . . .
provides for the appointment by the Governor of a seven-member sex offender registry board. A sex offender who lives or works in the Commonwealth must register with the board by mail, listing his name, home address, and (if applicable) work address, or his intended home and work addresses . . . [and]
provides for post-registration hearings and mandates the order of priority in which offenders are to be reviewed. The board is to promulgate guidelines
for classifying an offender's level of dangerousness and risk of reoffense and apply those guidelines to assess the risk level of particular offenders . . . Once an offender receives notice from the board of its initial recommended classification, he can request an evidentiary hearing to determine his future duty to register and his final classification. The board then assigns a final risk classification level: level one (low); level two (moderate); or level three (high). Offenders may seek judicial review pursuant to G.L.c. 30A, § 14, of the board's final classification and registration requirements . . .

Id. at 756 (citations omitted).

         While the origins of the Sex Offender Registry Law date back to 1996, the provisions of the law concerning reclassification hearings are of a much more recent vintage. Prior to 2013, the Registry Law contained no procedural mechanism for the Board to modify a previously-classified sex offender's level classification upward or downward based upon updated information. In 2013, the Legislature further amended Section 178L of the Registry Law (see St. 2013, c. 38) so as to authorize the Board, " on its own initiative or upon written request by a police department or district attorney, " to " reclassify any registered and finally classified sex offender in the event that new information, which is relevant to a determination of a risk of re-offense or degree of dangerousness, is received." G.L.c. 6, § 178L(3). The Registry Law, as amended, also empowers the Board to " promulgate regulations defining such new information and establishing the procedures relative to a reclassification hearing held for this purpose, " provided, however, that certain procedural safeguards are followed, including that,

(i) the hearing is conducted according to the standard rules of adjudicatory procedure or other rules which the board may promulgate, (ii) the hearing is conducted in a reasonable time, and (iii) the sex offender is provided prompt notice of the hearing, which includes: the new information that led the board to seek reclassification of the offender, the offender's right to challenge the reclassification, the offender's right to submit to the board documentary evidence relative to his risk of reoffense and the degree of dangerousness posed to the public, the offender's right to retain counsel for the hearing, and the offender's right to have counsel appointed if the offender is indigent, as determined by the board using the standards in chapter 211D.

Id.

         Significantly, Section 178L(3), as currently written, does not distinguish between reclassification proceedings that may be conducted for the purpose of increasing a sex offender's classification level, and reclassification proceedings that may be conducted for the purpose of decreasing a sex offender's classification level. Id. Nor does Section 178L prescribe which party shall bear the burden of proof at any reclassification hearing the Board may hold. Id.

         II. The Board's Reclassification Regulations and Procedures.

          The Board responded to the 2013 legislative amendments to Section 178L by adopting regulations which establish two different procedural paths for sex offender reclassification hearings. The first path, titled " Board Seeks Reclassification of Sex Offender, " applies to cases in which the Board, " on its own initiative, seek[s] to reclassify any registered and finally classified sex offender upon Receipt of any information that indicates the offender may present an increased risk to reoffend or degree of dangerousness." 803 Code Mass. Regs. § 1.37C(10) (2013) (the " First Path Regulations").[3] Reclassification hearings conducted pursuant to the First Path Regulations incorporate all of the procedural protections mandated by amended Section 178L, including the right to notice, the right to offer evidence relative to his or her risk of re-offense and degree of dangerousness posed to the public, the right to be represented by counsel at the reclassification hearing, and the right to have counsel appointed if indigent. Id., § 1.37C(10)(c) (incorporating, by reference, all of the procedures and protections pertaining to initial classification hearings). The First Path Regulations also provide that the Board bears the burden of proof at any reclassification hearing conducted pursuant to those regulations. Id., § 1.10(1) (incorporated, by reference, in the Board's First Path Regulations at § 1.37C(10)(c)). A reclassification decision issued pursuant to the First Path Regulations is deemed to be a " final decision" of the Board and is subject to judicial review in accordance with the provisions of G.L.c. 30A, § 14. 803 Code Mass. Regs. § 1.24 (incorporated, by reference, in the Board's current First Path Regulations at § 1.32(4)).

          The second path, titled " Sex Offender's Request for Reclassification, " applies to cases in which a registered sex offender submits his or her own request for reclassification to the Board. 803 Code Mass. Regs. § 1.37C(1)-(9) (2013) (the " Second Path Regulations").[4] The Board's Second Path Regulations permit a registered Level 2 or Level 3 sex offender who has not been convicted of a new sex offense to " file a written motion with the Board to re-examine his or her classification level" no sooner than " three years after the date of his [or her] final classification . . ." Id., § 1.37C(2). Any request for reclassification submitted by a registered sex offender is subject to a mandatory hearing before " a panel of hearing examiners or a single hearing examiner" appointed by the Board's Chair. Id., § 1.37C(5). Reclassification hearings conducted pursuant to Second Path Regulations, however, do not incorporate all of the procedural protections mandated by amended Section 178L. For example, while the Board's Second Path Regulations permit a sex offender to be " represented at the [reclassification] hearing by privately retained counsel or an authorized representative, " they do not provide for the appointment of counsel for indigent sex offenders. Id., § 1.37C(5)(d). Of equal importance for purposes of this proceeding, the Board's Second Path Regulations place on the sex offender the burden of proving at the reclassification hearing that " his or her risk of reoffense and the degree of dangerousness he or she poses to the public has decreased since his or her final classification." [5] Id., § 1.37C(2)(c). And as with the Board's First Path Regulations, any reclassification decision issued pursuant to the Second Path Regulations is deemed to be a " final decision" of the Board and is subject to judicial review in accordance with the provisions of G.L.c. 30A, § 14. Id., § 1.37C(6).

         The Board explains and justifies its bifurcated regulatory scheme for sex offender reclassification proceedings on the ground that " the Legislature, in creating the Sex Offender Registry Law . . . did not provide for sex offender initiated reclassifications . . ." Defendant Sex Offender Registry Board's Opposition to Plaintiff's Motion for Judgment on the Pleadings and Action for Declaratory Judgment, dated July 27, 2016 (" Board Memo."), at 7. According to the Board, reclassification proceedings conducted in response to a registered sex offender's request for reclassification have no statutory basis and are permitted by the Board, in its administrative discretion, solely in recognition of the fact that " the risk to reoffend and degree of dangerousness posed by offenders may decrease over time . . ." Id. at 8. Thus, it is the Board's position that its Second Path Regulations were not promulgated pursuant to Section 178L(3), and that they need not incorporate the procedural protections for offenders mandated by that statute, including the " statutory right to counsel while seeking reclassification . . ." Id. at 7.

         III. Petitioner's Unsuccessful Request for Reclassification.

         Petitioner is a 55-year-old man who was convicted of " open and gross lewdness and lascivious behavior" (see G.L.c. 272, § 16) on five occasions between 1990 and 2004. Administrative Record (" AR") at 117. All of Petitioner's convictions involved instances in which he exposed himself and masturbated in public. Id. at 118-22. None of Petitioner's convictions arose from any sexually violent offense as defined in G.L.c. 6, § 178C, or involved any actual physical contact with his victims. Id.

         In January 2007, the Board, citing Petitioner's convictions for " open and gross lewdness and lascivious behavior, " issued a decision classifying Petitioner as a " Level 3" sex offender. Id. at 109-32. Level 3 represents the highest classification level possible under the Sex Offender Registry Law. G.L.c. 6, § 178K(2)(c). In theory, it is reserved for those persons whose " risk of reoffense is high and the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination" of the offender's identity and offense history to the public. Id.

         Following his classification as a sex offender, Petitioner lived in the community without any sexual re-offense for over six years. Decision on Petitioner's Motion for Reclassification, dated May 28, 2014 (" Reclassification Decision"), at 12.[6] Like many other sex offenders, however, Petitioner found over time that his Level 3 classification made it " extremely difficult to put [his] life back together." AR at 107. Believing that his clean sexual offense record over the preceding six plus years had demonstrated a low risk of re-offense and a lack of dangerousness, Petitioner submitted an unadorned, one-paragraph request to the Board in January 2013, requesting a " reduction" in his sex offender classification level.[7] Id. Petitioner, who is indigent, prepared and submitted his request without the assistance of counsel. No supporting documentation or other evidence accompanied the request. Id.

         At the time Petitioner submitted his reduction or reclassification request, the Board had not yet adopted its Second Path Regulations. Approximately six months after those regulations became effective, the Board notified Petitioner that it would conduct a hearing on his request, in accordance with the Second Path Regulations, in February 2014. Id. at 139-44. The Board's notice of hearing informed Petitioner that " [t]he burden [will be] on you to show that your risk to reoffend and your degree of dangerousness has decreased since your previous classification." Id. at 140. The Board's notice of hearing also informed Petitioner that he could have legal counsel represent him at the hearing " at his own expense" if he wished to do so, but cautioned that " there [would] not be counsel appointed" for him. Id. at 142 (emphasis in original).

         A panel of three hearing examiners heard Petitioner's request for reclassification on February 24, 2014. Reclassification Decision at 3. Petitioner appeared pro se. Id. He called no independent witnesses, offered no exhibits, and filed no motions on his own behalf. Id. at 2. The Board, in turn, offered only a copy of Petitioner's request for reclassification, an updated Board of Probation record (which confirmed that Petitioner had not been accused or convicted of any sexual offenses since his original classification in 2007), and some correspondence to the Boston Police notifying them that Petitioner was seeking reclassification. Id.

         The Board issued its decision on Petitioner's request for reclassification in May 2014. See Reclassification Decision. The Board acknowledged that, " [s]ince his January 2007 Level 3 decision, [Petitioner] has remained offense free to the community for approximately seven years" and " has maintained sobriety for approximately five and one half years." Id. at 12. Two of the three panelists nonetheless concluded, " by a preponderance of the evidence, " that Petitioner " remains a high risk of reoffense and a high degree of dangerousness." Id. at 14. As a result, the Board denied Petitioner's request for reclassification ...


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