JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 474362, & another
SEX OFFENDER REGISTRY BOARD & others.
Heard: April 10, 2018.
action commenced in the Supreme Judicial Court for the county
of Suffolk on September 10, 2015. After transfer to the
Superior Court Department, a motion to dismiss was heard by
Peter M. Lauriat, J.
Benedon, Assistant Attorney General, for the defendants.
A. Frame for the plaintiffs.
Present: Green, C.J., Desmond, & Englander, JJ.
plaintiffs filed this action in 2015 challenging a
now-discontinued practice of the Sex Offender Registry Board
(SORB or board), under which SORB published the criminal
history and identifying information of adjudicated sex
offenders who no longer lived in Massachusetts. Pursuant to
this practice the plaintiffs' information was displayed
on a page of SORB's official Web site, under the heading
"moved out of state." The plaintiffs' claims
are brought against SORB and two of its officers, alleging
violations of Federal and State constitutional due process
rights, as well as other violations of State law. This
interlocutory appeal comes before us from the denial of a
motion to dismiss that raised a variety of issues --
including, in particular, the propriety of claims for damages
brought against the two SORB officers in their individual
capacities. Because the Federal and State constitutional
claims for damages against the officers fail as a matter of
law, we reverse that portion of the Superior Court order
denying the motion to dismiss, and affirm the remainder.
As this is an appeal from a ruling under Mass. R. Civ. P. 12
(b) (6), 365 Mass. 754 (1974), we take the well-pleaded facts
from the plaintiffs' "amended complaint for
declaratory and injunctive relief and for damages"
(amended complaint). See Golchin v.
Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011) .
structure of the sex offender registration statute has been
frequently described. See, e.g., Moe v.
Sex Offender Registry Bd., 467 Mass. 598, 600-603
(2014). The statute requires a sex offender to provide
certain personal information, including name and current
address, to the board. G. L. c. 6, § 178E. The board
classifies sex offenders within a system of three different
levels based on risk of reoffense and degree of dangerousness
to the public. G. L. c. 6, § 178K. A sex offender's
registration level has consequences for public access to that
offender's information. Level one offenders are entitled
to greater information privacy. See G. L. c. 6, § 178D.
Level two and three sex offenders, by contrast, have their
information published in an online database available to the
public. See id. "Sex offender" is a
defined term, and for present purposes it is relevant that it
is defined to encompass persons who live, work, or attend
school in Massachusetts. See G. L. c. 6, § 178C.
around June of 2015, SORB began the practice of publishing
the sex offense history and other identifying information of
sex offenders who had previously been registered but who were
no longer living, working, or attending school in
Massachusetts. The information was posted on SORB's Web
site under the category entitled "moved out of
state." The practice was initiated without any
notification of the reposting to the affected individuals --
there were more than 600 such persons. The information
published included photographs and criminal histories. SORB
did not verify that the information was current or accurate
before posting it -- and some of the information allegedly
plaintiffs sued on their own behalf and on behalf of a
purported class. The allegations with respect to plaintiff
John Doe, Sex Offender Registry Board No. 106929 (Doe No.
106929), well-illustrate why the plaintiffs were
concerned: Doe No. 106929 came to Massachusetts in
2005 to attend school. He had previously been convicted in
California for engaging in sexual relations with a sixteen
year old when he was nineteen years old; California's age
of consent was eighteen. After learning that Massachusetts
had preliminarily classified him as a level three offender,
Doe No. 106929 immediately left Massachusetts, and SORB
ceased publishing his photograph and criminal history.
years later, in June of 2015, Doe No. 106929 learned through
an Internet conversation that SORB had resumed publishing his
name and photograph -- this time on its "moved out of
state" page. The sex offense listed on the page was
"rape of a child." Doe No. 106929 received no
notice from SORB regarding SORB's new practice, or that
his name was being republished on SORB's Web site.
Moreover, after Doe No. 106929 left Massachusetts, a court in
California had entered an order expunging the record of his
sex offense. Doe No. 106929 lost two jobs in California in
2015 once this information was made known at his workplaces.
original complaint was filed on September 10, 2015. After
some initial skirmishes, SORB took down the "moved out
of state" portion of its Web site on or about September
29, 2015. Sometime later the plaintiffs filed an amended
complaint which, for the first time, sought damages.
amended complaint contains nine counts. Described generally,
it includes counts for violations of both procedural and
substantive due process, under both the State and Federal
Constitutions. It also contains a separate count under 42
U.S.C. § 1983 (2012), the Federal statute that provides
remedies for deprivations of Federal constitutional rights by
State actors. The thrust of these due process claims is that
the publication of the plaintiffs' identifying and
criminal information constituted an impairment of their
fundamental liberty and privacy interests, and was done
without notice or an opportunity to be heard, and in clear
violation of the Massachusetts sex offender registration
laws. In addition, the amended complaint alleges violations
of various State laws, including the right to privacy.
defendants are SORB, the State entity, as well as two
officers of SORB, each of whom is sued in both their official
and individual capacities. Defendant Kevin Hayden was the
chair of SORB when the complaint was filed; defendant Laurie
Myers was its executive director.
defendants eventually countered the amended complaint with
the motion to dismiss at issue in this appeal. The thrust of
that motion is that the plaintiffs do not have a claim for
damages, both because (1) SORB's Web site
publication did not violate procedural or substantive due
process rights, and (2) even if such a violation occurred,
the individual defendants have immunity from a damages claim
because the constitutional rights the defendants allegedly
violated were not "clearly established."
Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). The motion to dismiss also argues that the
requests for declaratory and injunctive relief are moot,
because the allegedly offending portion of the Web site has
been taken down. Notably, the motion is a partial motion that
does not address several counts of the complaint -- for
example, it does not touch at all on the privacy claim under
Superior Court judge denied the motion. He reasoned, in
"The court is unpersuaded by the defendants'
argument that the individual defendants could not have known
that the dissemination of the plaintiffs' information
would amount to a violation of [F]ederal law. Given the
numerous recent cases where Massachusetts courts have
highlighted the due process, privacy, and liberty interests
implicated by the [I]nternet dissemination of sex
offenders' information to the public, the court is not
convinced by the defendants' assertion that it would not
have been clear to the individually named defendants that
disseminating information of sex ...