Heard: January 8, 2019.
filed in the Superior Court Department on July 14, 2012, and
February 18, 2016.
consolidation, a motion for discharge, filed on July 31,
2018, was heard by Christopher K. Barry-Smith, J.
The Supreme Judicial Court granted an application for direct
P. Murray for the Commonwealth.
Tennen (Joseph N. Schneiderman also present) for the
Benjamin H. Keehn, Committee for Public Counsel Services, for
Committee for Public Counsel Services, amicus curiae,
submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, &
issue presented in this appeal is whether, under the
statutory scheme set forth in G. L. c. 123A, an individual
who seeks to be discharged from civil commitment as a
sexually dangerous person must remain civilly committed
awaiting trial, sometimes for years, after both qualified
examiners have concluded that he or she is no longer sexually
dangerous. In Johnstone, petitioner, 453 Mass. 544,
553 (2009), we held that G. L. c. 123A implicitly provides
that an individual may not be civilly committed as a sexually
dangerous person, or have his or her civil commitment
continued after petitioning for release from custody, unless
at least one of two qualified examiners offers the opinion
that the individual is sexually dangerous. We held that,
where neither of the two qualified examiners concludes that
the individual is a sexually dangerous person, the
Commonwealth "cannot rely upon other sources of
potential expert evidence ... to meet its burden of
proof," and the petitioner is entitled to release before
trial. Id. at 545, 553. In this case, the
Commonwealth asks us to revisit our holding in
Johnstone and to hold that the Commonwealth may
proceed to trial where it has expert opinion, other than the
expert opinion of a designated qualified examiner, that the
individual is or remains sexually dangerous.
Commonwealth has failed to persuade us that
Johnstone was incorrectly decided; nor has the
Commonwealth provided any evidence that the holding in
Johnstone has compromised public safety. We
therefore decline to reject a statutory interpretation that
has been applied in sexual dangerousness cases for
approximately ten years. Furthermore, we conclude that our
interpretation of G. L. c. 123A in Johnstone
obviates any need to address the due process concerns that
might arise if a civil commitment could be prolonged despite
the conclusion of both qualified examiners that an individual
is not sexually dangerous, and honors the presumption that
the Legislature intends its statutes to pass constitutional
muster. For these reasons, we affirm the Superior Court
judge's order allowing Wayne Chapman's petition for
release from civil commitment because neither of two
qualified examiners found him presently to be sexually
September 1977, Chapman was convicted of two counts of rape
of a child and sentenced to a prison term of not less than
fifteen and not more than thirty years. See Commonwealth
v. Chapman, 444 Mass. 15, 16 (2005). In November 1977,
Chapman was found to be a sexually dangerous person under the
predecessor statute to the current G. L. c. 123A.
Id. As a result, in March 1978, he was transferred
from prison to the Massachusetts Treatment Center (treatment
center), where he was committed for an indefinite term of
from one day to life.' Id. at 16 & n.1.
1991, Chapman petitioned for release from civil commitment.
Under G. L. c. 123A as it existed at the time of
Chapman's petition, "if, at any annual [discharge]
hearing to which [a sexually dangerous person was] entitled,
the Commonwealth fail[ed] in its burden of proving continued
sexual dangerousness, and part of the original sentence then
remain[ed], the person [was] returned to ordinary confinement
to serve the remainder of his [or her] term."
Commonwealth v. Rodriguez, 376 Mass. 632, 640
(1978). See Chapman, 444 Mass. at 18 n.5. Following
a hearing, the judge concluded that the Commonwealth had
failed to prove beyond a reasonable doubt that Chapman
continued to be sexually dangerous and ordered him to be
discharged from the treatment center and transferred back to
prison to serve the remaining years on his sentence.
Chapman, supra at 18 .
September 2004, when Chapman had approximately one month
remaining until his anticipated release from prison, the
Commonwealth filed a petition to commit Chapman as a sexually
dangerous person beyond the term of his criminal sentence,
this time under the current version of G. L. c. 123A.
Chapman, 44 Mass. at 18. Chapman moved to dismiss the
commitment petition on collateral estoppel grounds, arguing
that the 1991 adjudication that he was not sexually dangerous
precluded the Commonwealth from again petitioning for his
civil commitment. Id. at 20. A Superior Court judge
allowed this motion. Id. The Commonwealth appealed,
and we vacated the order of dismissal, concluding that the
Commonwealth's 2004 petition did not improperly
"seek to relitigate an issue previously
adjudicated" because it asserted that Chapman was
presently sexually dangerous, and not that he had
been sexually dangerous in 1991. Id. at 20-24. In
2007, after trial, Chapman was found to be sexually dangerous
and committed to the treatment center for an indeterminate
period of from one day to life. The Appeals Court affirmed
this judgment in an unpublished memorandum and order pursuant
to its rule 1:28. See Commonwealth v. Chapman, 75
Mass.App.Ct. 1113 (2009), cert, denied, 560 U.S. 946 (2010).
has since filed four petitions for discharge from civil
commitment under G. L. c. 123A, § 9 -- one in 2007, one
in 2009, one in 2012, and one in 2016. The 2012 and 2016
petitions, which have been consolidated, are at issue
here.Pursuant to G. L. c. 123A, § 9, the
petitioner was evaluated by two qualified examiners; both
concluded in written reports submitted to the court that
Chapman was no longer sexually dangerous. Dr. Gregg A. Belle,
one of the qualified examiners, stated that Chapman was no
longer a sexually dangerous person based on "the
combination of [his] age and his deteriorating physical
condition resulting in him no longer being able to manage
independently." Dr. Katrin Rouse Weir, the other
qualified examiner, stated that Chapman "would not be
reasonably expected to sexually assault children if released
into the community at this time," because "his age,
his present medical status and the degree of supervision
required and available at an appropriate placement in the
community would sufficiently mitigate his risk of sexual
was also evaluated by a five-member community access board
(CAB). Three CAB psychologists concluded that
Chapman remained sexually dangerous; two CAB psychologists
concluded that he was no longer sexually dangerous.
both qualified examiners had offered the opinion that Chapman
was no longer sexually dangerous, and because the
Commonwealth cannot prevail at trial without an opinion from
one of the qualified examiners that Chapman is sexually
dangerous, Chapman moved for discharge. See
Johnstone, 453 Mass. at 545. The Commonwealth
opposed the motion and moved for trial or, alternatively, to
stay Chapman's release. The Superior Court judge, relying
on Johnstone, allowed the petitioner's motion
and denied the Commonwealth's motion, but stayed
Chapman's discharge for twenty days to allow the
Commonwealth to seek a further stay from an appellate court.
Commonwealth filed a notice of appeal and a motion to stay
the petitioner's discharge until the resolution of that
appeal. A single justice of the Appeals Court continued the
stay pending further order of the court. We granted direct
appellate review, and a single justice of the county court
continued the stay of Chapman's discharge pending
resolution of this case.
1. Due process constraints on ...