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Doe v. Sex Offender Registry Board

Supreme Judicial Court of Massachusetts, Suffolk

August 1, 2018

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 76819 & others [1]
v.
SEX OFFENDER REGISTRY BOARD.

          Heard: April 3, 2018.

         Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 10, 2017.

         The case was reported by Gants, C.J.

          Christopher M. Bova (William H. Burke, Special Assistant Attorney General, also present) for the defendant.

          Eric B. Tennen (Kate A. Frame & Andrew S. Crouch also present) for the plaintiffs.

          John Reinstein, for the intervener, was present but did not argue.

          Nancy 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.

          KAFKER, J.

         In this companion case to Noe, Sex Offender Registry Bd. No. 5340 v. Sex Offender Registry Bd., 480 Mass. (2018) (Noe No. 5340), we consider the burden and quantum of proof in cases in which sex offenders seek termination of their duty to register under the State's sex offender registry law, G. L. c. 6, §§ 178C-178Q. We also address the requirement imposed on the Sex Offender Registry Board (board) to hold hearings in reclassification and termination proceedings requested by the sex offender within a reasonable amount of time. Finally, we address various other procedural and jurisdictional questions raised by the parties.

         The plaintiffs, sex offenders seeking reclassification or termination of their duty to register, sought relief from a single justice of this court, challenging both the board's allocation of the burden of proof in these proceedings and the board's failure to timely conduct offender-initiated reclassification and termination hearings. The board moved to dismiss the petition and complaint, arguing that the single justice did not have jurisdiction to hear the matter. The board further contended that its delay was justified by its duty to prioritize other cases, pursuant to G. L. c. 6, § 178K (3), and its interest in the resolution of the pending Noe No. 5340 litigation.

         The single justice reserved and reported to the full court so much of the case as involved the board's motion to dismiss. Additionally, the single justice reserved and reported the following question: "What is the quantum of proof required at a hearing where a sex offender requests reclassification or termination of his or her status as a registered sex offender?"

         For the reasons discussed below, the motion to dismiss is denied. Additionally, for substantially the reasons discussed in Noe No. 534 0, 480 Mass. at, we conclude that due process requires that the appropriate quantum of proof in termination proceedings, as in reclassification proceedings, is clear and convincing evidence, and that the burden is imposed on the board, not the sex offender. The sex offender does, however, retain an initial burden of production to introduce evidence of changed circumstances showing that he or she "does not pose a risk to reoffend or a danger to the public." See 803 Code Mass. Regs. § 1.30(1) (2016). We further conclude that such hearings on reclassifications and terminations must take place within a reasonable period of time after the issuance of the rescript in this case.[2]

         1. Background.

         a. Statutory scheme.

         Under the sex offender registry law, an individual convicted of an enumerated sex offense may be required to register as a sex offender in the Commonwealth. See G. L. c. 6, § 178E. Offenders are classified in one of three levels depending on their risk of reoffense and degree of dangerousness. See G. L. c. 6, § 178K (2). A sex offender is classified as level one where "the board determines that 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" of registration information. G. L. c. 6, § 178K (2) (a.) . A sex offender is classified as level two where "the board determines that 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." G. L. c. 6, § 178K (2) (b). A sex offender is classified as level three where "the board determines that 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 registration information. G. L. c. 6, § 178K (2) (c).

         Pursuant to the sex offender registry law, the board prepares a recommended classification for each sex offender. G. L. c. 6, § 178L (1). If an offender objects to the board's recommendation, he or she is entitled to request an evidentiary hearing for a final determination as to his or her registration and classification. See G. L. c. 6, § 178L (1) (a.), (2). The sex offender registry law requires that the hearing officer "determine by a preponderance of evidence such sex offender's duty to register and final classification." G. L. c. 6, § 178L (2) . In Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 311 (2015) (Doe No. 380316), this court concluded that the statutory provision requiring only a preponderance of the evidence to determine an offender's duty to register and classification level violated the offender's procedural due process rights. We held that the board was instead constitutionally required to prove the appropriateness of an offender's initial classification by clear and convincing evidence. Id.

         No sooner than three years after initial classification, an offender may seek to be reclassified at a lower level. See G. L. c. 6, § 178L (3); 803 Code Mass. Regs. § 1.31(2) (a) (2016). After our decision in Doe No. 380316, the board amended its regulations to require that offenders prove the appropriateness of downward reclassification by clear and convincing evidence, rather than a preponderance of the evidence. See 803 Code Mass. Regs. § 1.31(2)(c). Today, in Noe No. 534 0, 480 Mass. at, we held that the regulation placing the burden of proof on the offender in downward reclassification hearings violated the offender's procedural due process rights. We concluded that the burden of proof must remain with the board to prove the appropriateness of an offender's existing classification by clear and convincing evidence. See Id. The offender does, however, have an initial burden of production to provide "new information" of a decreased risk of reoffense or degree of dangerousness. See Id.; G. L. c. 6, § 178L (3) .

         At least ten years after initial classification, an offender may seek to have his or her duty to register terminated. See G. L. c. 6, § 178G. Here, we are confronted with the question of the appropriate quantum and burden of proof in the ...


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