Supreme Judicial Court of Massachusetts, Middlesex
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 209081
SEX OFFENDER REGISTRY BOARD.
Heard: September 5, 2017.
motion to dismiss was heard by Peter B. Krupp, J.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
Rebecca Rose for the plaintiff.
L. Chenail for the defendant.
Elizabeth Caddick, for Committee for Public Counsel Services,
amicus curiae, submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
2008, the Sex Offender Registry Board (board), after a
hearing, classified the plaintiff, John Doe, as a level three
sex offender. Doe did not appeal from that decision. Over six
years later, he sought to reopen his classification hearing,
contending that the board violated his procedural due process
rights when it went forward with his hearing without ensuring
that his waiver of counsel was knowing and voluntary. When
the board summarily denied his petition for rehearing as
untimely, he filed a complaint in the Superior Court seeking
review. A Superior Court judge granted the board's motion
to dismiss the petition, and the plaintiff appealed. We
transferred the case to this court on our own motion.
conclude that the board did not abuse its discretion in
denying the plaintiff's petition to reopen his
classification hearing where the petition, which was filed
six years after the board's final decision, did not
adequately explain the delay and did not allege
prejudice. Although we do not reach the
plaintiff's due process claim, we caution that pursuant
to the board's own regulations, the board must ensure
that sex offenders who choose to represent themselves at
classification hearings "knowingly and voluntarily"
waive their statutory right to counsel. See 803 Code
Mass. Regs. § 1.09(5) (2016).
different dates in 2008, the plaintiff pleaded guilty to one
count of indecent assault and battery on a person over
fourteen, and to two counts of rape and abuse of a
child. In June, 2008, while the plaintiff was
incarcerated for the first conviction, the board notified him
of his duty to register with the board as a sex offender and
preliminarily classified him at level three. The plaintiff
requested a hearing to challenge the board's
classification recommendation by filling out a form provided
by the board. On that form, he checked a box indicating that
he would represent himself at the hearing.
October, 2008, hearing, however, the plaintiff refused to
sign a waiver of counsel form and told the hearing examiner
that, in fact, he did not wish to appear without
counsel. The plaintiff indicated that he had expected that
his criminal defense attorney would be present, and that
there had been a misunderstanding regarding his
representation. The hearing examiner treated the
plaintiff's statements as a motion to continue the
hearing so that the plaintiff could obtain an attorney, but
denied the motion based on the plaintiff's initial
indication, on the written board form, that he would
represent himself. The plaintiff did not offer any evidence
during the hearing. In a decision issued on November 18,
2008, the hearing examiner ordered the plaintiff to register
as a level three sex offender based on the evidence
introduced by the board.
plaintiff waited more than six years, until after he had
completed his criminal sentence, including five years of
probation, to file in June, 2015, a petition to reopen the
initial classification hearing with the board. In the
petition, plaintiff claimed that the hearing examiner's
actions during the 2008 proceeding deprived him of his due
process rights and violated the board's regulations.
Specifically, the plaintiff contended that he had had
insufficient time to prepare for the hearing, and that the
hearing examiner failed to telephone the plaintiff's
criminal defense attorney or postpone the hearing after
becoming aware that the plaintiff was confused without his
attorney. Further, the plaintiff claimed that it was error
for the hearing examiner to proceed with the hearing and
issue a decision despite his refusal to sign a statement
acknowledging that he knowingly and voluntarily waived his
right to counsel.
board summarily denied the plaintiff's petition to reopen
on the grounds that it was untimely and the plaintiff had
(initially) indicated that he would represent himself. The
plaintiff timely filed in the Superior Court a complaint for
judicial review of the board's denial of his petition.
See G. L. c. 30A, § 14 (1). In response, the board filed
a motion to dismiss the complaint, which a Superior Court
judge allowed.The plaintiff appealed, and we transferred
his appeal to this court on our own motion.
The board's denial of the plaintiff's request to
reopen the classification hearing. The board has
inherent authority to reopen a classification proceeding and
reconsider its decision at any time, by motion of the sex
offender or by the board's own motion. Soe, Sex
Offender Registry Bd. No. 252997 v. Sex Offender Registry
Bd., 466 Mass. 381, 395-396 (2013) (Soe). One
reason the board may decide to reconsider a sex
offender's classification level after it has become final
is to prevent or mitigate a miscarriage of
justice. Id. at 394-395. The board's
broad inherent authority in this area is "reviewable
only for an abuse of discretion." Id. at 396.
We note that "[i]n general, administrative agencies have
broad discretion over procedural aspects of matters before
them." Zachs v. Department of Pub. Utils., 406
Mass. 217, 227 (1989). When reviewing an agency's
decision for abuse of discretion, we look to see whether the
decision was reasonable. See Soe,
supra at 392-393; Zachs, supra at
228; Massachusetts Elec. Co. v. Department of
Pub. Utils., 376 Mass. 294, 307-308 (1978) .
agency's inherent power to reopen proceedings "must
be sparingly used if administrative decisions are to have
resolving force on which persons can rely."
Soe, 466 Mass. at 395, quoting Stowe v.
Bologna, 32 Mass.App.Ct. 612, 616 (1992). See
Alliance to Protect Nantucket Sound, Inc. v.
Department of Pub. Utils. (No. 2), 461 Mass. 190, 195
(2011) (noting that party seeking to reopen proceedings
"must demonstrate compelling circumstances"). While
each agency's decision to reopen a proceeding must be
considered in the specific context of the circumstances
presented and statutory scheme involved, factors generally to
be weighed by the agency include the advantages of preserving
finality, the desire for stability, the degree of haste or
care in making the first decision, timeliness, ...