Doe, SORB No. 474362 v. Sex Offender Registry Board , 94 Mass. App. Ct. 52 ( 2018 )

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17-P-985 Appeals Court
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 474362, & another1 vs.
SEX OFFENDER REGISTRY BOARD & others.2
No. 17-P-985.
Essex. April 10, 2018. - September 19, 2018.
Present: Green, C.J., Desmond, & Englander, JJ.
Sex Offender Registration and Community Notification Act.
Constitutional Law, Sex offender, Privacy. Due Process of
Law, Sex offender, Substantive rights, Class action.
Internet. Immunity from Suit. Declaratory Relief.
Damages, Privacy. Practice, Civil, Sex offender, Class
action, Declaratory proceeding, Injunctive relief, Motion
to dismiss, Moot case. Moot Question.
Civil 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.
1 John Doe, Sex Offender Registry Board No. 106929,
individually and on behalf of all others similarly situated.
2 Kevin Hayden, individually and in his capacity as chair of
the Sex Offender Registry Board, and Laurie Myers, individually
and in her capacity as executive director of the Sex Offender
Registry Board.
2
Carrie Benedon, Assistant Attorney General, for the
defendants.
Kate A. Frame for the plaintiffs.
ENGLANDER, J. The 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.
Background. 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
3
declaratory and injunctive relief and for damages" (amended
complaint). See Golchin v. Liberty Mut. Ins. Co., 460 Mass.
222, 223 (2011).
The 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.
On or 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
4
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 was inaccurate.
The 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:3 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.
Ten 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
3 The amended complaint contains allegations regarding
another plaintiff (and proposed class representative) as well.
5
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.
The 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.
The 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
6
Massachusetts sex offender registration laws. In addition, the
amended complaint alleges violations of various State laws,
including the right to privacy.
The 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.
The 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 Massachusetts law.
7
The Superior Court judge denied the motion. He reasoned,
in relevant part:
"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 offenders who no longer have a duty to
register in Massachusetts could amount to a violation of
those individuals' constitutional rights."
The defendants appeal from the Superior Court judge's
order, invoking our jurisdiction under the doctrine of present
execution.4 For the reasons discussed below, we reverse in part
and affirm in part.
4 The plaintiffs challenge the application of the doctrine
of present execution. Under one aspect of that doctrine, the
government may immediately appeal an order denying a motion to
dismiss where the motion was based on immunity from suit claimed
by a State officer. Brum v. Dartmouth, 428 Mass. 684, 688
(1999). The plaintiffs claim, however, that the doctrine does
not apply here because the defendants did not move to dismiss
all the counts against them, and thus the case will go forward
against the individual defendants regardless of the result on
this appeal.
The plaintiffs' argument is at odds with Kent v.
Commonwealth, 437 Mass. 312, 316-317 (2002). Kent held that the
doctrine of present execution allowed for an immediate right of
appeal where, as here, the defendants have asserted immunity,
even if the claimed immunity would not have disposed of the
entire case. Id. ("[T]he Commonwealth's right to interlocutory
review of the denial of its motion to dismiss based on immunity
is not dependent on whether allowance of the motion would
8
Discussion. 1. The claims at issue. Before diving into
substance, we need to first clearly define what is before us.
The motion to dismiss under appeal focused on those counts of
the amended complaint that allege constitutional due process
violations, but the motion did not distinguish between Federal
and State constitutional rights.5 The amended complaint,
however, contains separate counts under both the Federal and
Massachusetts Constitutions, for deprivations of both procedural
and substantive due process. The distinction between claims
under the Federal and State Constitutions is important: first,
because under the case law the due process rights secured by the
two Constitutions are not identical, and second, because the
remedies available for violations of the two Constitutions may
not be the same. Deprivations of Federal constitutional rights
are remedied under § 1983, which includes, in appropriate
circumstances, a damages remedy. In contrast, it is unclear
whether damages are available for deprivations of State
completely end the litigation"). The appeal, thus, is properly
before us.
5 The motion relied only on Federal law, but requested the
dismissal of all constitutional claims. Moreover, the briefing
in the Superior Court, as well as the judge's decision,
sometimes mix the Federal and State case law together. At oral
argument we asked for, and subsequently received, supplemental
briefing on two issues: (1) whether there are differences
between the Federal and State constitutional rights asserted,
and (2) whether there is a damages remedy available for
deprivations of the State constitutional rights asserted.
9
constitutional rights where, as here, the plaintiffs have not
alleged a "threats, intimidation or coercion" claim under the
Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H, 11I.
The upshot of these differences between Federal and State
law is that each of the plaintiffs' claims must be separately
analyzed, paying attention not only to the substantive law but
also to the remedies available, and to the applicable defenses
and government immunities.6
2. Procedural due process -- Federal Constitution. The
Fourteenth Amendment to the United States Constitution provides
that no State shall "deprive any person of life, liberty, or
property, without due process of law." The plaintiffs'
procedural due process argument is that they were deprived of a
"liberty" or "property" interest when SORB published their
photographs and criminal histories, and that SORB did so without
providing the fundamentals of due process -- notice and an
opportunity to be heard. See Mathews v. Eldridge, 424 U.S. 319,
333 (1976) ("The fundamental requirement of due process is the
opportunity to be heard 'at a meaningful time and in a
meaningful manner'" [citation omitted]). The defendants counter
that the plaintiffs did receive due process, because the
plaintiffs received notice and an opportunity to be heard when
6 The defendants' argument that the claims for declaratory
and injunctive relief are moot is addressed at the end of this
opinion.
10
they first were classified and registered, at a time when they
were present in Massachusetts. The defendants contend that
because the plaintiffs received due process at the time of
registration and classification, no further process was due
before the plaintiffs' names and information were republished as
"moved out of state."
The difficulty with the plaintiffs' Federal due process
argument, however, comes at the threshold; the plaintiffs must
first demonstrate a deprivation of a constitutionally protected
liberty or property interest. See González-Fuentes v. Molina,
607 F.3d 864, 886 (1st Cir. 2010), cert. denied sub nom.
Feliciano v. Molina, 562 U.S. 1257 (2011) (first step in
procedural due process analysis "asks whether there exists a
liberty or property interest which has been interfered with by
the State"); LaChance v. Commissioner of Correction, 463 Mass.
767, 773 (2012) (similar proposition). Here the plaintiffs
argue that the interests at stake are their reputations and
their privacy -- they assert a right not to have their
identifying information published, along with their criminal
histories, by the Commonwealth. The United States Supreme Court
addressed a similar allegation in Paul v. Davis, 424 U.S. 693,
697 (1976), where police chiefs in Kentucky had published the
plaintiff's name and photograph on a flyer, under the heading
"Active Shoplifters." The Supreme Court rejected the
11
plaintiff's procedural due process claim in Paul, ruling as a
matter of law that the State-imposed injury to reputation at
issue could not qualify as a deprivation of "liberty" or
"property" unless the plaintiff could also show loss of "a right
or status previously recognized by [S]tate law" -- such as, for
example, loss of government employment. Id. at 711. The Court
held that absent such an additional injury the plaintiff might
have a claim under State defamation law, but he did not have a §
1983 claim for deprivation of his constitutional rights. See
id. at 710-712.
The reasoning in Paul is the touchstone for analyzing the
plaintiffs' Federal claims here, as it has been in other cases,
discussed infra, that have addressed Federal procedural due
process issues in connection with State sex offender
notification laws. The plaintiffs complain of harms to their
reputation and their privacy resulting from the publication of
(in some instances false) information about their criminal
histories. While the alleged harms, if proved, are no doubt
very serious, under Paul they would not by themselves rise to
the level of liberty or property interests protected by the
Federal due process clause.7,8 See Doe v. Attorney Gen., 426
7 Under Paul the loss of a government job might qualify as a
sufficient property interest, but the loss of private employment
would not. See Paul, 424 U.S. at 706, 711; Cutshall v.
12
Mass. 136, 143 (1997) ("Under the Fourteenth Amendment a
person's reputation is not a protected liberty or property
interest unless the circumstances involve something more, such
as a change in the person's rights or status protected by State
law").
Given the posture of the appeal before us, we do not today
decide whether the plaintiffs have stated a Federal due process
claim. Whether or not the plaintiffs have stated such a claim,
we are satisfied that the individual defendants, Hayden and
Myers, have immunity from the § 1983 damages claim against them.
This is because as employees of a State executive agency, Hayden
and Myers are immune from suit under § 1983 unless their actions
violated clearly established constitutional rights. See Harlow,
457 U.S. at 818-819; LaChance, 463 Mass. at 777.
There was no clearly established Federal due process right
applicable to the plaintiffs' circumstances at the time of the
posting in 2015. As the court stated in LaChance, "A right is
only clearly established if, at the time of the alleged
violation, 'the contours of the right allegedly violated [were]
Sundquist, 193 F.3d 466, 479 (6th Cir. 1999), cert. denied, 529
U.S. 1053 (2000).
8 The word "liberty" in the due process clause also
encompasses certain rights generally described as "privacy"
rights. See Paul, 424 U.S. at 712-713. The Court in Paul
separately rejected the argument that the reputational interests
at stake qualified as fundamental "privacy" interests protected
by the Federal due process clause. Id.
13
sufficiently definite so that a reasonable official would
appreciate that the conduct in question was unlawful'" (citation
omitted). LaChance, 463 Mass. at 777. See Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011). The plaintiffs can point to no case
establishing such sufficiently definite contours to the Federal
procedural due process right they assert, particularly in light
of the long-standing interpretation of § 1983 in Paul.
Our conclusion is bolstered by several more recent
decisions of Federal Courts of Appeals, which have refused to
find violations of Federal due process in the specific context
of State sex offender registry laws. In Cutshall v. Sundquist,
193 F.3d 466, 478-482 (6th Cir. 1999), cert. denied, 529 U.S.
1053 (2000), for example, the United States Court of Appeals for
the Sixth Circuit rejected an argument that the public
notification provisions of Tennessee's sex offender registry law
violated procedural due process. The court relied on Paul to
conclude that no fundamental liberty or privacy rights were
violated by the notification provisions. Id. at 479-480, 482.
See Doe v. Tandeske, 361 F.3d 594, 597 (9th Cir.), cert. denied,
543 U.S. 817 (2004) (no right "to be free from the registration
and notification requirements" of Alaska's sex offender registry
statute); A.A. v. New Jersey, 341 F.3d 206, 211-214 (3d Cir.
2003) (New Jersey's law providing for notification, including on
Internet, of sex offender's home address does not violate
14
fundamental privacy rights). But cf. E.B. v. Verniero, 119 F.3d
1077, 1105-1111 (3d Cir. 1997) (notification provisions of New
Jersey's "Megan's Law" implicated liberty interests protected by
Federal due process).
We do not find a contrary construction of Federal law in
the decisions of the Supreme Judicial Court or this court.
While many Massachusetts appellate decisions have addressed what
procedural due process rights exist in connection with the
Massachusetts sex offender registration and public notification
laws, the cases that have found violations of procedural due
process have been based on the Massachusetts Declaration of
Rights, not on the Federal Constitution. See the following
representative chronology: Doe, 426 Mass. at 144 (finding
violation of procedural due process under Massachusetts
Declaration of Rights; court "need not pass on the plaintiff's
Federal procedural due process claim"); Doe v. Attorney Gen.,
430 Mass. 155, 163 (1999) (finding violation of State procedural
due process; stating, "We need not pass on Doe's Federal
procedural due process claim"); Doe, Sex Offender Registry Bd.
No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 784-785 &
n.9, 793 (2008) (finding violation of due process rights under
Massachusetts Declaration of Rights without addressing Federal
due process); Moe, 467 Mass. at 599, 615-616 (finding violation
of due process rights under Massachusetts Declaration of Rights
15
without addressing Federal due process); Doe, Sex Offender
Registry Bd. No. 29481 v. Sex Offender Registry Bd., 84 Mass.
App. Ct. 537, 539-543 (2013) (finding due process violation
based on Massachusetts Declaration of Rights without addressing
Federal due process).9 Indeed, the decisions of our appellate
courts that discuss Paul in the context of the sex offender
registration law acknowledge that procedural due process rights
are more limited under Federal law. See Doe, 426 Mass. at 143-
144; Opinion of the Justices, 423 Mass. 1201, 1229-1231 (1996).10
In sum, given the state of the Federal case law, set forth
above, we conclude that the Federal procedural due process
violation asserted by the plaintiffs was not clearly established
as of June, 2015.
9 Recently, the Supreme Judicial Court decided two
additional procedural due process cases in this area, Doe, Sex
Offender Registry Bd. No. 76819 v. Sex Offender Registry Bd.,
480 Mass. 212 (2018), and Noe, Sex Offender Registry Bd. No.
5340 v. Sex Offender Registry Bd., 480 Mass. 195 (2018). As
with the cases cited supra, we understand the holdings in these
cases also to be based upon the Massachusetts Declaration of
Rights. In any event, these cases, as well as the case they
principally rely upon, Doe, Sex Offender Registry Bd. No. 380316
v. Sex Offender Registry Bd., 473 Mass. 297 (2015), all were
decided after the Web site section at issue was taken down in
September of 2015.
10As the Supreme Judicial Court noted in Doe, 426 Mass. at
144 n.8, there have been inconsistent statements in the case law
as to whether the due process protections of the Massachusetts
Constitution are identical to Federal protections. As discussed
herein, however, it is clear that in connection with the
Massachusetts sex offender registration statute, the Federal and
State provisions have not been construed identically.
16
3. Substantive due process -- Federal Constitution. The
plaintiffs' Federal substantive due process claim also fails to
provide a basis for relief. As discussed above, there is an
initial question whether the plaintiffs can meet the threshold
requirement to show a deprivation of a Federal liberty or
property interest here. But perhaps more saliently, Federal
substantive due process claims of this type require a showing of
government conduct that is so "egregious" that it "shocks the
conscience." Sacramento v. Lewis, 523 U.S. 833, 846 (1998). In
Lewis, for example, the United States Supreme Court rejected a
substantive due process claim against a police officer who had
engaged in a high speed chase of a suspect, where the chase was
allegedly conducted with deliberate indifference to life, and
where the chase resulted in the death of the plaintiff's
decedent. Id. at 836-838, 854-855. The Court held as a matter
of law that such conduct did not meet the "shocks the
conscience" requirement for a substantive due process claim.
Id. at 854. See González-Fuentes, 607 F.3d at 880-886
(reimprisonment of participants released on electronic
supervision program does not rise to level of substantive due
process violation); J.R. v. Gloria, 593 F.3d 73, 76, 79-80 (1st
Cir. 2010) (finding physical and sexual abuse of foster children
resulting from defendants' failure to act does not rise to level
17
of substantive due process violation, noting that deliberate
indifference does not per se shock the conscience).
Lewis and the other Federal cases establish that there is
no substantive due process claim here. It is true that the
allegations, if proved, arguably show a clear violation of
Massachusetts law. The Massachusetts statute defines a "sex
offender" subject to registration and notification as a person
who resides, works, or goes to school "in the [C]ommonwealth"
(emphasis supplied) -- yet the plaintiffs here did not live,
work, or go to school in Massachusetts when SORB republished
their photographs and criminal histories. G. L. c. 6, § 178C.
Even assuming, however, that this was a clear violation of State
law, the actions complained of do not approach the conduct that
previously has been found to qualify as a Federal substantive
due process violation. Contrast Rochin v. California, 342 U.S.
165, 172 (1952) ("Illegally breaking into the privacy of the
petitioner, [struggling] to open his mouth and remove what was
there, [and forcing] extraction of his stomach's contents"
violated due process clause of Fourteenth Amendment to the
United States Constitution); McIntyre v. United States, 336 F.
Supp. 2d 87, 109 (D. Mass. 2004) (finding purposeful disclosure
of confidential informant, knowing that revealing information
could result in informant's death, to be "conscience-shocking").
Certainly it was not clearly established, in 2015, that SORB's
18
decision to publish the plaintiffs' sex offender information
violates Federal substantive due process.
Because as a matter of law the individual defendants did
not violate any "clearly established" Federal due process
rights, the damages claims against them under the Federal
Constitution and § 1983 must be dismissed.11
4. Procedural due process -- Massachusetts Constitution.
As discussed above, unlike their Federal claim, the plaintiffs'
procedural due process claim under the Massachusetts Declaration
11This conclusion leaves the status of the Federal claims
as follows:
(1) The § 1983 claims for damages against the State
officers in their individual capacities are dismissed, based
upon their qualified immunity.
(2) The § 1983 claims against the State officers in their
official capacities also must be dismissed, as State officers
may not be sued for damages in their official capacities under
§ 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71
(1989). See O'Malley v. Sheriff of Worcester County, 415 Mass.
132, 141 (1993) ("Monetary damages against State officials are
available only if they are sued in their individual or personal
capacities under color of State law").
(3) The claims for declaratory and injunctive relief
against the State officers, in both their official and
individual capacities, remain. See O'Malley, 415 Mass. at 141
("If a State official is sued in his [or her] official capacity,
then the plaintiffs' recovery is limited to equitable relief
only"). See infra.
(4) The § 1983 claims against SORB must be dismissed. SORB
is not a proper defendant under § 1983, as it is a State entity,
see G. L. c. 6, § 178K, and State entities may not be sued under
§ 1983. See Will, 491 U.S. at 67, 70; Laubinger v. Department
of Revenue, 41 Mass. App. Ct. 598, 601-602 (1996).
19
of Rights finds considerable support in the case law. See Doe,
Sex Offender Registry Bd. No. 941 v. Sex Offender Registry Bd.,
460 Mass. 336, 338 (2011), citing Doe, Sex Offender Registry Bd.
No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 100 (1998);
Coe v. Sex Offender Registry Bd., 442 Mass. 250, 257-258 (2004).
These Massachusetts cases make clear that under Massachusetts
law the notification provisions of the sex offender registry
statute do implicate fundamental liberty and privacy rights,
thereby triggering due process protections. See Doe, Sex
Offender Registry Bd. No. 941, 460 Mass. at 338 ("'Sex offenders
have a constitutionally protected liberty and privacy interest
in avoiding registration and public dissemination of
registration information' that arises from their classification,
and therefore, they are entitled to procedural due process
. . ." [citation omitted]); Doe, 426 Mass. at 143 ("The
plaintiff [sex offender] has sufficient liberty and privacy
interests constitutionally protected by art. 12 that he is
entitled to procedural due process before he may be required to
register and before information may properly be publicly
disclosed about him"). See also Poe v. Sex Offender Registry
Bd., 456 Mass. 801, 813 (2010); Doe, Sex Offender Registry Bd.
No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 775
(2006); Doe, Sex Offender Registry Bd. No. 972, supra; Doe, Sex
Offender Registry Bd. No. 27914 v. Sex Offender Registry Bd., 81
20
Mass. App. Ct. 610, 614 (2012). Furthermore, the plaintiffs'
State law due process allegations are sufficient to survive the
motion to dismiss, inasmuch as they allege that the plaintiffs
did not receive notice or an opportunity to be heard before SORB
republished their information. We leave the final resolution of
this claim to further factual development.12
As to the remedies for any such State constitutional
violations, declaratory and injunctive relief are potentially
available. The Supreme Judicial Court has long held that a
person may sue the responsible State officer, in his or her
official capacity, to enjoin deprivations of one's State
constitutional rights, and that no immunity prevents such a
suit. See Lane v. Commonwealth, 401 Mass. 549, 552 (1988),
citing Ex parte Young, 209 U.S. 123, 159-160 (1908) ("We can
think of no basis for recognizing some form of governmental
immunity that would prevent issuance of an injunction against an
ongoing wrong committed systematically and intentionally by a
governmental agency for the continuing benefit of the
Commonwealth"); Commonwealth v. Norman, 249 Mass. 123, 130-131
(1924) ("A suit in equity to restrain a State officer from
12In their amended complaint, the plaintiffs also assert a
substantive due process violation under the Massachusetts
Declaration of Rights. However, the plaintiffs did not brief
the Massachusetts law of substantive due process, and given our
rulings on the State law claims we need not address the State
substantive due process claim at this time.
21
executing an unconstitutional statute to the irreparable damage
of the plaintiff's rights is not a suit against the State but
against individuals acting outside the zone of their lawful
authority and hence not protected by any immunity").
Accordingly, the individual defendants are properly sued in
their official capacities for declaratory or injunctive relief
under State law.
The plaintiffs' claim for damages for the alleged State
constitutional due process violations stands on a different
footing. One basis for a damages claim could be the
Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H, 11I, but
that statute requires a plaintiff to allege and show a
deprivation by "threats, intimidation or coercion." The amended
complaint, however, does not contain such a claim.13
Instead, the amended complaint purports to assert its State
constitutional claims directly under the Massachusetts
Declaration of Rights, without reference to any statutory cause
of action. No case, however, has yet recognized a claim for
money damages, brought directly under the State Constitution
against State officers for actions taken as State officers. We
13In response to our request for supplemental briefing, the
plaintiffs argued that the defendants' alleged actions could
qualify as threats, intimidation, or coercion under the
Massachusetts Civil Rights Act. However, the plaintiffs have
not alleged a cause of action under the Massachusetts Civil
Rights Act, and thus this argument is unavailing.
22
decline to recognize one here. The reason for this is soundly
rooted in long-standing sovereign immunity law, which holds that
the Commonwealth and its officers are generally immune from
suits for damages for actions taken as State officers, unless
the Legislature has acted expressly to abrogate that immunity.
See Irwin v. Commonwealth, 465 Mass. 834, 840-841 (2013) ("Where
the Commonwealth does choose to waive its sovereign immunity, it
can be sued 'only in the manner and to the extent expressed [by
the] statute'" [citation omitted]); Sullivan v. Chief Justice
for Admin. & Mgt. of the Trial Court, 448 Mass. 15, 31 (2006)
("the Commonwealth cannot be sued unless there has been a waiver
of its sovereign immunity");. Here the Legislature has acted to
abrogate sovereign immunity in suits for deprivations of
constitutional rights, but only in part; as noted above, the
damages remedy under the Massachusetts Civil Rights Act is only
available upon proof of threats, intimidation, or coercion. See
Lecrenski Bros. v. Johnson, 312 F. Supp. 2d 117, 122 (D. Mass.
2004); Breault v. Chairman of the Bd. of Fire Comm'rs of
Springfield, 401 Mass. 26, 36 (1987), cert. denied sub nom.
Forastiere v. Breault, 485 U.S. 906 (1988).
In short, the Legislature has acted directly in this area,
and has provided a damages remedy for some constitutional
deprivations but not others. The amended complaint attempts to
circumvent this legislative scheme by stating claims directly
23
under the Massachusetts Declaration of Rights, but we are not
willing to abrogate sovereign immunity by fashioning a judicial
remedy where the Legislature did not. As we said in Martino v.
Hogan, 37 Mass. App. Ct. 710, 720 (1994), we believe that the
Civil Rights Act "occup[ies] the field" in this area. The
plaintiffs cannot recover damages on their claims for
deprivation of due process brought directly under the State
Constitution.14
5. Mootness. Finally, while the defendants have asserted
that the plaintiffs' claims are moot, that is incorrect.
Plainly, there is a live controversy here. Indeed, the motion
to dismiss did not even address four counts of the amended
complaint.
What the defendants apparently mean to contend is that
there is no longer a basis for declaratory or injunctive relief,
because SORB took down the "moved out of state" page more than
two years ago. The Superior Court judge rejected this argument.
Among other things, he noted that the plaintiffs have an
interest in pursuing a declaration that the defendants violated
the law in posting the plaintiffs' information, as such a
declaration might provide a remedy to address the collateral
14But cf. Layne v. Superintendent, Mass. Correctional
Inst., Cedar Junction, 406 Mass. 156, 159-161 (1989) (discussing
possible availability of damages relief under art. 114 of
Amendments to Massachusetts Constitution).
24
consequences stemming from the defendants' conduct. We discern
no error or abuse of discretion in that determination. The case
is not moot, and the judge may take up the question of the
appropriate declaratory or injunctive remedies, if any, as the
case moves forward. See LightLab Imaging, Inc. v. Axsun Techs.,
Inc., 469 Mass. 181, 194 (2014) ("Trial judges have broad
discretion to grant or deny injunctive relief"); Boston Safe
Deposit & Trust Co. v. Dean, 361 Mass. 244, 248 (1972) (trial
judge has discretion to fashion appropriate declaratory
relief);.
In sum, the plaintiffs' § 1983 claims for damages must be
dismissed as to defendants Hayden and Lewis. The damages claims
brought directly under the Massachusetts Constitution also must
be dismissed. That part of the order denying the motion to
dismiss the damages claims is accordingly reversed. In all
other respects, the order is affirmed.
So ordered.