DANIEL NOE, SEX OFFENDER REGISTRY BOARD NO. 5340
SEX OFFENDER REGISTRY BOARD.
Heard: April 3, 2018.
action commenced in the Superior Court Department on June 27,
2014. The case was heard by Brian A. Davis, J., on a motion
for judgment on the pleadings.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
Christopher M. Bova for the defendant.
A. Frame (Eric B. Tennen also present) for the plaintiff.
William J. Kobuszewski & John C. Cratsley, pro se, amici
curiae, submitted a brief.
A. Dolberg, Committee for Public Counsel Services, for
Committee for Public Counsel Services, amicus curiae,
submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender
Registry Bd., 473 Mass. 297, 298 (2015) (Doe No.
380316), we held that the Sex Offender Registry Board
(board) is constitutionally required to prove the initial
classification of a convicted sex offender under the sex
offender registry law, G. L. c. 6, §§ 178C-178Q, by
clear and convincing evidence. We are now asked to consider
whether reclassification hearings require the board to meet
the same standard and burden of proof as initial
classification hearings. We conclude that they do. We also
conclude that, given the plain language of G. L. c. 6, §
178L (3), indigent sex offenders have a right to counsel in
such reclassification hearings.'
offender registry law is "an extensive statutory
registration scheme for sex offenders" designed to
"protect the public from the danger of recidivism posed
by sex offenders and to aid law enforcement officials in
protecting their communities" (quotations omitted).
Commonwealth v. Kateley, 461 Mass. 575, 576 (2012),
quoting Commonwealth v. Rosado, 450 Mass. 657,
659-660 (2008). An individual who has been convicted of a sex
offense as defined under G. L. c. 6, § 178C, is required
to register under the sex offender registry law on release
from custody, if applicable, or on notification of his or her
obligation to register. See G. L. c. 6, § 178E (a), (c).
Registration and classification.
offenders are subject to a two-step registration and
classification process. First, the board assesses an
individual's risk of reoffense and degree of
dangerousness and prepares a recommendation as to the
appropriate classification level for the offender. See G. L.
c. 6, § 178L (1). The board has identified thirty-eight
factors to be considered in making this determination. See
803 Code Mass. Regs. § 1.33 (2016) . The board's
regulations recognize that "[t]hese factors may be
present to varying degrees in any individual case. The final
classification level is not based on a cumulative analysis of
the applicable factors, but rather a qualitative analysis of
the individual sex offender's history and personal
sex offender objects to the board's recommendation, he or
she has the right to a de novo evidentiary hearing before an
examiner who makes a final determination as to the
offender's duty to register and the appropriate
classification level. See G. L. c. 6, § 178L (1); 803
Code Mass. Regs. § 1.04(3) (2016). At the evidentiary
hearing, the examiner must consider the criteria that the
board has identified in its regulations when assessing an
offender's risk of reoffense and degree of dangerousness.
See 803 Code Mass. Regs. § 1.04(4). The examiner then
issues a written decision and places the offender into one of
three classification levels. See 803 Code Mass. Regs. §
1.20 (2016). The sex offender has the right to counsel at
this initial classification hearing. See G. L. c. 6, §
"the risk of reoffense is low and the degree of
dangerousness posed to the public is not such that a public
safety interest is served by public availability," the
sex offender is classified as level one. G. L. c. 6, §
178K (2) (a.) . Where "the risk of reoffense is moderate
and the degree of dangerousness posed to the public is such
that a public safety interest is served by public
availability of registration information," the offender
is classified as level two. G. L. c. 6, § 178K (2) (b).
Where "the 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 information, the
offender is classified as level three. G. L. c. 6, §
178K (2) (c) . "Registration information for level one
sex offenders is not provided to the public, information for
level two and level three offenders is available to the
public by request or on the Internet, and information for
level three offenders may be disseminated actively to the
public" (footnote omitted). Doe v. Lynn, 472
Mass. 521, 529 (2015).
standard of proof required to satisfy due process has been
the subject of much litigation. The sex offender registry law
calls for the board to prove the appropriateness of a sex
offender's classification by a preponderance of the
evidence. See G. L. c. 6, § 178L (2). In 1998, two years
after the passage of the sex offender registry law, we held
that this preponderance of the evidence standard satisfied
due process under the State and Federal Constitutions. See
Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender
Registry Bd., 428 Mass. 90, 103-104 (1998) (Doe No.
972). However, seventeen years later, in light of
changes to the sex offender registry law that had
significantly increased the burdens on registered offenders,
and other factors such as greater Internet dissemination of
sex offender information, we determined that the
preponderance of the evidence standard no longer satisfied
due process. See Doe No. 380316, 473 Mass. at
311-312, 314. Rather, the "extensive private interests
now affected by classification counsel in favor of requiring
a higher standard of proof," namely clear and convincing
evidence, for final classification hearings. Id. at
the statutory and regulatory scheme, a sex offender may be
reclassified in one of two ways. See Doe, Sex Offender
Registry Bd. No. 326573 v. Sex Offender Registry Bd.,
477 Mass. 361, 364 (2017) (Doe No. 326573). Pursuant
to G. L. c. 6, § 178L (3),  the board can initiate
reclassification proceedings "on its own initiative or
upon written request by a police department or district
attorney." Although the language of the statute allows
the board to seek higher or lower reclassification level
where new information is received "relevant to a
determination of a risk of re-offense or degree of
dangerousness," G. L. c. 6, § 178L (3), the board
has promulgated regulations restricting it to seeking upward
reclassification. See 803 Code Mass. Regs. § 1.32(1)
(2016). Pursuant to G. L. c. 6, § 178L (3), the board
must provide the offender with the information that led the
board to seek reclassification. The offender has the right to
challenge the reclassification, may submit "documentary
evidence relative to his risk of reoffense and the degree of
dangerousness posed to the public," and has the right to
counsel. Id. Board-initiated reclassifications must
follow the same procedures used for original classifications.
See 803 Code Mass. Regs. § 1.32(4).
board's regulations specify a separate procedure for sex
offenders seeking downward reclassification. See 803 Code
Mass. Regs. § 1.31 (2016). An individual classified as a
level two or level three sex offender may seek
reclassification based on a decreased risk of reoffense or
degree of dangerousness. See 803 Code Mass. Regs. §
1.31(1). Offenders are eligible to seek downward
reclassification no sooner than three years after the date of
their final classification. 803 Code Mass. Regs. §
1.31(2)(a). An offender who has committed a new sex offense
since his or her original classification, however, must be
offense free for at least ten years before he or she can seek
reclassification. Id. Offenders who have experienced
"a material change in circumstances related to a medical
condition" may file a motion for reclassification less
than three years after the date of their prior
classification. 803 Code Mass. Regs. § 1.31(3)
procedure for offender-initiated downward reclassifications
is as follows. The offender must file a motion detailing why
reclassification is appropriate and include supporting
documentation. 803 Code Mass. Regs. § 1.31(2)(b), (c).
The offender must also supply "an affidavit that
provides an overview of his or her behavior and lifestyle
during the three years prior to the filing of his motion for
reclassification." 803 Code Mass. Regs. § 1.31(2)
(d). The board bases its decision on new and updated
information but may also consider information the board used
in prior classification decisions, including any prior
written decisions by the board. 8 03 Code Mass. Regs. §
offender registry law does not specify the standard and
burden of proof for reclassification hearings. See G. L. c.
6, § 178L (3). However, the board's regulations
dictate that for offender-initiated motions for
reclassification, the burden is on the offender to prove why
downward reclassification is appropriate by clear and
convincing evidence. 803 Code Mass. Regs. § 1.31 (2) (c)