MEMORANDUM OF DECISION AND ORDER ON PETITIONER'S
RENEWED MOTION FOR JUDGMENT ON THE PLEADINGS
A. Davis, Associate Justice of the Superior Court.
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.
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
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,
Legal, and Procedural Background 
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.
The Massachusetts Sex Offender Registry Law.
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).
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
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.
The Board's Reclassification Regulations and
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"). 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)).
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"). 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."  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.,
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.
Petitioner's Unsuccessful Request for
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.
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.
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. 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. 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.
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).
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
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 ...