Doe v. Sex Offender Registry Board , 452 Mass. 764 ( 2008 )

Spina, J.

(concurring, with whom Greaney and Ireland, JJ., join). I agree with the opinion of the court, but write to discuss a different aspect of this case that may well reflect a pervasive impropriety in the way these cases are decided. In notes 18, 20, and 21, ante at 776, the court states that the hearing officer improperly relied on the Diagnostic and Statistic Manual of Mental Disorders (4th ed. 2000) (DSM-IV) in the assessment of Doe’s risk to reoffend, and that in doing so he appears to have assumed the role of expert. When a hearing examiner acts both as expert and as fact finder it is doubtful that his impartiality as fact finder can remain uncompromised.

This court has admonished administrative entities that “[a] board of experts, sitting in a quasi-judicial capacity, cannot be silent witnesses as well as judges.” Arthurs v. Board of Registratian in Med., 383 Mass. 299, 310 (1981), quoting New Jersey State Bd. of Optometrists v. Nemitz, 21 N.J. Super. 18, 28 (1952). This principle is rooted in principles of due process, see New Jersey State Bd. of Optometrists v. Nemitz, supra, particularly the need to create a record to permit appellate review. See, e.g., Arthurs v. Board of Registration in Med., supra, quoting Baltimore & Ohio R.R. v. Aberdeen & Rockfish R.R., 393 U.S. 87, 92 (1968). Whatever expertise an agency may possess, the record of an adjudicatory hearing must reflect the evidence on which the agency relies. Technical or specialized facts must be supported by expert testimony, or taking official notice of facts under G. L. c. 30A, § 11 (5).¹ Agency expertise is no substitute for necessary evidence. See D’Amour v. Board of Registration in Dentistry, 409 Mass. 572, 585 (1991) (board’s decision not supported by substantial evidence where board substituted its expertise for evidence without putting in record basis for its expertise); Morris v. Board of Registration in Med., 405 Mass. 103, 113, cert. denied, 493 U.S. 977 (1989) (agency could not discount magistrate’s negative credibility findings by merely professing expertise in dynamics of psychiatrist-patient relationship). Although an agency may not use its expertise to build the case for or against a litigant, it may apply its expertise to evaluate the evidence. See Arthurs v. Board of Registration in Med., supra; Langlitz v. Board of Registration of Chiropractors, 396 Mass. 374, 381 (1985).

The hearing examiner’s recourse to the DSM-IV in this case poses certain additional problems. First, the hearing examiner’s familiarity with cases involving sex offender registration and classification does not qualify him to provide expert opinions in such cases. Where he lacked psychiatric or psychological expertise, the hearing examiner was not qualified to opine how Doe’s bipolar disorder might bear on his risk of reoffense. See Ross v. Gardner, 365 F.2d 554, 558 (6th Cir. 1966) (error for social security hearing examiner to disregard uncontradicted expert medical opinion evidence, undertake scientific research of his own, and decide case on what he thought medical text meant). Cf. Morris v. Board of Registration in Med., supra at 113 (board’s professed expertise in dynamics of psychiatrist-patient relationship insufficient to discount credibility findings of administrative magistrate). But see McDaniel v. Celebrezze, 331 F.2d 426, 428-429 (4th Cir. 1964) (social security appeals council may use medical publications to explain or refute expert medical opinions as long as claimant is given opportunity to challenge and contradict such publications).

A second problem is the hearing examiner’s apparent failure to provide notice to Doe of his intention to use the DSM-IV or to give Doe an opportunity to present evidence to refute the hearing examiner’s determination that his bipolar condition “exacerbate[d] the substantial level of risk to reoffense already present in this case,” as required by G. L. c. 30A, § 11 (5). In the absence of Doe’s opportunity to respond, the hearing examiner’s reliance on the DSM-IV was error. See New York Cent. R.R. v. Department of Pub. Works, 354 Mass. 332, 336 (1968) (facts not properly before department where petitioner did not have opportunity to contest facts). The significance of this error is magnified because the hearing examiner’s consideration of Doe’s bipolar disorder on his risk of reoffense raises a disputable and critical factual question, which requires that Doe be afforded greater procedural protection. See 2 R.J. Pierce, Jr., Administrative Law § 10.6, at 754 (4th ed. 2002) (suggesting that when facts are specific to parties, “adjudicative, disputed and critical, nothing less than the opportunity to present evidence at a hearing will normally suffice”); 2 C.H. Koch, Administrative Law and Practice § 5.55, at 207 (2d ed. 1997) (“where an adjudicative fact is crucial to the central factual controversy in an adjudication, it must, of course, be proven through traditional methods”). Because the hearing examiner introduced facts from the DSM-IV that bore on the ultimate issue, the hearing examiner’s use of the DSM-IV and the conclusion he drew therefrom amounted to reli-anee “on the testimony or report of an expert witness prepared specifically for the purposes of the classification proceeding.” G. L. c. 6, § 178L (1) (c). Accordingly, Doe’s application for funds to retain an expert witness should have been considered.

1 General Laws c. 30A, § 11 (5), states:

“Agencies may take notice of any fact which may be judicially noticed by the courts, and in addition, may take notice of general, technical or scientific facts within their specialized knowledge. Parties shall be notified of the material so noticed, and they shall be afforded an opportunity to contest the facts so noticed. Agencies may utilize their experience, technical competence, and specialized knowledge in the evaluation of the evidence presented to them.”

This section applies to sex offender proceedings. See G. L. c. 30A, § 1 (2) (enumerating State entities to which G. L. c. 30A does not apply).