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Doe v. Sex Offender Registry Board

Supreme Judicial Court of Massachusetts, Suffolk

September 13, 2019

JOHN DOE, SEX OFFENDER REGISTRY BOARD No. 23656
v.
SEX OFFENDER REGISTRY BOARD.

          Heard: May 7, 2019.

          Civil action commenced in the Superior Court Department on October 26, 2016. The case was heard by Paul D. Wilson, J., on a motion for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Eric Tennen for the plaintiff.

          John P. Bosse for the defendant.

          Elizabeth Caddick, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

          Laurie Guidry & Ryan Panaro, pro se, amici curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          LENK, J.

         The plaintiff, John Doe No. 23656 (Doe), appeals from his classification as a level two sex offender. For the reasons that follow, we affirm the classification.[1]

         1. Background.

         In 1980, when he was thirty years old, Doe pleaded guilty to two counts of rape, G. L. c. 265, § 22, and one count of assault with intent to rape, G. L. c. 265, § 24, stemming from three separate incidents involving three different women. Each of the women was a stranger to Doe. He was sentenced to three concurrent terms of from sixteen to eighteen years in State prison, which he served until his release in 1996.

         Shortly thereafter, when Doe was forty-seven years old, he was convicted of one count of indecent assault and battery on a person over the age of fourteen, G. L. c. 265, § 13H, and one count of open and gross lewdness and lascivious behavior, G. L. c. 272, § 16. He was sentenced to from two and one-half to three years in State prison on the second charge, and from four and one-half to five years from and after on the first charge. He completed serving this sentence in 2005.

         In 2007, Doe was adjudicated a sexually dangerous person (SDP) and civilly committed to the Massachusetts Treatment Center. In 2012, he was found no longer sexually dangerous and was released.

         In July 2010, prior to his release from civil commitment, the Sex Offender Registry Board (SORB) notified Doe of its intent to classify him as a level three (high risk) sex offender. Doe requested an evidentiary hearing. Following that hearing, in March 2011, Doe was classified as a level three sex offender. He sought judicial review, and prevailed in his appeal; the matter was remanded for a new hearing. A second hearing was conducted in June 2015, with the same result. Doe again sought judicial review. While review was pending, we decided Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 298 (2015) (Doe No. 380316), a case in which we heightened the relevant standard of proof to "clear and convincing evidence." Accordingly, Doe was granted a third de novo hearing.

         In a written decision following the June 2016 hearing, Doe was classified as a level two (moderate risk) sex offender. Doe sought judicial review under G. L. c. 30A, § 14, and a judge of the Superior Court affirmed SORB's classification. Doe appealed to the Appeals Court, and we transferred the case to this court on our own motion.

         2. Sex offender registration law.

         In 1999, the Legislature enacted a set of statutes establishing a State-wide sex offender registry. See G. L. c. 6, §§ 178C-178Q, inserted by St. 1999, c. 74, as amended by St. 2003, c. 26, § 12. The registry 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 and citation omitted). See Noe, Sex Offender Registry Bd. No. 5340 v. Sex Offender Registry Bd., 480 Mass. 195, 196 (2018) (Noe). Individuals who have been convicted of sex offenses, as defined by G. L. c. 6, § 178C, are required to register upon release from custody, where applicable, or on notification of an obligation to register. See Noe, supra, citing G. L. c. 6, § 178E (a), (c).

         Upon initial registration, individuals are classified into one of three "levels of notification." Moe v. Sex Offender Registry Bd., 467 Mass. 598, 601 (2014). Classifications are made "on an individualized basis according to [each individual's] risk of reoffense and degree of dangerousness." St. 1999, c. 74, § 1. Under SORB's regulations, three determinations must be made: "(a) the offender's risk of reoffense; (b) the offender's dangerousness as a function of the severity and extent of harm the offender would present to the public in the event of reoffense; and (c) in consideration of the foregoing, whether and to what degree public access to the offender's personal and sex offender information ... is in the interest of public safety." Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Board, 482 Mass. 643, 650 (2019) (Doe No. 496501), quoting 803 Code Mass. Regs. § 1.20(2) (2016).

         Where SORB 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]," it assigns a sex offender a level one designation. See G. L. c. 6, § 178K (2) (a.). Where the risk of reoffense is "moderate" and the degree of dangerousness is "such that a public safety interest is served by public availability of registration information," SORB assigns a level two designation. G. L. c. 6, § 178K (2) (b). Where the risk of reoffense is "high" and the public safety interest merits "active dissemination" of registration information, SORB assigns an offender a level three designation. G. L. c. 6, § 178K (2) (c). Although neither the statute nor SORB's regulations specify the "degree of dangerousness" required for each classification, we have determined that a "moderate" degree of dangerousness is required for a level two classification. See Doe No. 496501, 482 Mass. at 651.

         In making a classification determination, SORB is guided by a nonexhaustive list of twelve statutory risk factors. See G. L. c. 6, § 178K (1) (a)-(1). SORB has promulgated specific guidelines for the application of each statutory factor, consisting of thirty-eight relevant aggravating and mitigating considerations. See 803 Code Mass. Regs. § 1.33 (2016) (guidelines). SORB prepares a recommended classification for every sex offender. See G. L. c. 6, § 178L (1). Before a classification is made final, an individual has the opportunity to request an evidentiary hearing before a hearing examiner. G. L. c. 6, § 178L. Thereafter, an individual is entitled seek judicial review in the Superior Court of a final classification. See G. L. c. 6, § 178M; G. L. c. 30A, § 14.

         A reviewing court may set aside or modify a classification decision if it is "in excess of SORB's statutory authority or jurisdiction, violates constitutional provisions, is based on an error of law, or is not supported by substantial evidence." See Doe No. 496501, 482 Mass. at 649, citing G. L. c. 30A, § 14 (7). The individual bears the burden of proving the error in the board's decision. See Doe No. 380316, 473 Mass. at 300.

         3. Discussion.

         On appeal, Doe raises three issues with respect to his final classification. Doe argues that the hearing examiner improperly disregarded the testimony of his expert witness in evaluating the evidence; that there was insufficient evidence to classify him as a level two sex offender; and that, even if he could be classified as a level two sex offender, his registration information should not be made available on the Internet.

         a. Expert testimony.

         Doe maintains that the hearing examiner improperly discredited the testimony of Doe's expert witness because the expert did not consider each of the risk factors relevant to SORB's determination.

         In 2015, Dr. Leonard Bard, a psychologist, evaluated Doe to assess his risk of reoffense. Bard testified at Doe's 2015 hearing, where he was qualified as an expert witness. During the 2016 hearing, before the same hearing examiner, Doe submitted Bard's earlier "Forensic Psychological Evaluation" and the transcript of his 2015 testimony. Bard opined that Doe posed a low risk of reoffending, primarily due to Doe's advanced age.[2]

         We have recognized that, as some of the SORB risk factors relate to an offender's mental or physical condition, "the accuracy of the classification decision may well be enhanced by the addition to the evidentiary record of additional expert evidence in the form of testimony or reports." See Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 773 (2008).[3] Where offered by the individual, a hearing examiner must consider testimony "from a licensed mental health professional that discuss psychological and psychiatric issues, including major mental illness, as they relate to the offender's risk of reoffense." See 803 Code Mass. Regs. § 1.33(35). See also 803 Code Mass. Regs. § 1.04(4).

         Bard's analysis deviated from a full application of all the risk factors delineated in SORB's guidelines. Whereas the guidelines assist SORB in determining both an offender's "risk of reoffense" as well as his or her "degree of dangerousness posed to the public," 803 Code Mass. Regs. § 1.33, Bard testified that his "focus tends to be more on the likelihood or the risk of somebody offending rather than the particular level of dangerousness." Accordingly, he did not examine certain factors that focused solely on the degree of dangerousness.[4]

         That Bard did not focus on "degree of dangerousness" factors is not disqualifying. An expert need not examine every factor relevant to a fact finder's determination in order to provide helpful testimony. Indeed, parties regularly employ expert witnesses to testify about some, but not all, elements of a claim, charge, or defense. See, e.g., Commonwealth v. Zeininger, 459 Mass. 775, 791, cert, denied, 565 U.S. 967 (2011) (expert testified only as to breathalyzer evidence); Renzi v. Paredes, 452 Mass. 38, 42-43 (2008) (experts called to testify variously regarding standard of care, causation, or amount of damages); Bernier v. Boston Edison Co., 380 Mass. 372, 384 (1980) (expert in negligence case testified ...


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