Doe, SORB No. 76819 v. Sex Offender Registry Board , 480 Mass. 212 ( 2018 )

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SJC-12462
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 76819 & others1 vs.
SEX OFFENDER REGISTRY BOARD.
Suffolk. April 3, 2018. - August 1, 2018.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Sex Offender. Sex Offender Registration and Community
Notification Act. Constitutional Law, Sex offender, Burden
of proof. Due Process of Law, Sex offender, Hearing,
Burden of proof, Standard of proof. Evidence, Sex
offender, Burden of going forward, Presumptions and burden
of proof. Practice, Civil, Sex offender, Motion to
dismiss, Presumptions and burden of proof, Standard of
proof. Supreme Judicial Court, Jurisdiction.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on October 10, 2017.
The case was reported by Gants, C.J.
Christopher M. Bova (William H. Burke, Special Assistant
Attorney General, also present) for the defendant.
1 John Does, Sex Offender Registry Board Nos. 293109, 22306,
21890, 1719, 208025, 3687l, 21916, 11751, 645, 22023, 5165,
34293, 20594, 37783, 54040, 6063, 96160, 7320, 11596, 151563,
276695, 35451, 31337, and 156025; and Alexander H., intervener.
2
Eric B. Tennen (Kate A. Frame & Andrew S. Crouch also
present) for the plaintiffs.
John Reinstein, for the intervener, was present but did not
argue.
Nancy A. Dolberg, Committee for Public Counsel Services,
for Committee for Public Counsel Services, amicus curiae,
submitted a brief.
KAFKER, J. In this companion case to Noe, Sex Offender
Registry Bd. No. 5340 v. Sex Offender Registry Bd., 480
Mass. (2018) (Noe No. 5340), we consider the burden and
quantum of proof in cases in which sex offenders seek
termination of their duty to register under the State's sex
offender registry law, G. L. c. 6, §§ 178C-178Q. We also
address the requirement imposed on the Sex Offender Registry
Board (board) to hold hearings in reclassification and
termination proceedings requested by the sex offender within a
reasonable amount of time. Finally, we address various other
procedural and jurisdictional questions raised by the parties.
The plaintiffs, sex offenders seeking reclassification or
termination of their duty to register, sought relief from a
single justice of this court, challenging both the board's
allocation of the burden of proof in these proceedings and the
board's failure to timely conduct offender-initiated
reclassification and termination hearings. The board moved to
dismiss the petition and complaint, arguing that the single
justice did not have jurisdiction to hear the matter. The board
3
further contended that its delay was justified by its duty to
prioritize other cases, pursuant to G. L. c. 6, § 178K (3), and
its interest in the resolution of the pending Noe No. 5340
litigation.
The single justice reserved and reported to the full court
so much of the case as involved the board's motion to dismiss.
Additionally, the single justice reserved and reported the
following question: "What is the quantum of proof required at a
hearing where a sex offender requests reclassification or
termination of his or her status as a registered sex offender?"
For the reasons discussed below, the motion to dismiss is
denied. Additionally, for substantially the reasons discussed
in Noe No. 5340, 480 Mass. at , we conclude that due process
requires that the appropriate quantum of proof in termination
proceedings, as in reclassification proceedings, is clear and
convincing evidence, and that the burden is imposed on the
board, not the sex offender. The sex offender does, however,
retain an initial burden of production to introduce evidence of
changed circumstances showing that he or she "does not pose a
risk to reoffend or a danger to the public." See 803 Code Mass.
Regs. § 1.30(1) (2016). We further conclude that such hearings
on reclassifications and terminations must take place within a
4
reasonable period of time after the issuance of the rescript in
this case.2
1. Background. a. Statutory scheme. Under the sex
offender registry law, an individual convicted of an enumerated
sex offense may be required to register as a sex offender in the
Commonwealth. See G. L. c. 6, § 178E. Offenders are classified
in one of three levels depending on their risk of reoffense and
degree of dangerousness. See G. L. c. 6, § 178K (2). A sex
offender is classified as level one where "the board 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. G. L. c. 6, § 178K (2) (a). A sex
offender is classified as level two where "the board determines
that the risk of reoffense is moderate and the degree of
dangerousness posed to the public is such that a public safety
interest is served by public availability of registration
information." G. L. c. 6, § 178K (2) (b). A sex offender is
classified as level three where "the board determines that the
risk of reoffense is high and the degree of dangerousness posed
to the public is such that a substantial public safety interest
2 We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services in support of the plaintiffs.
5
is served by active dissemination" of registration information.
G. L. c. 6, § 178K (2) (c).
Pursuant to the sex offender registry law, the board
prepares a recommended classification for each sex offender.
G. L. c. 6, § 178L (1). If an offender objects to the board's
recommendation, he or she is entitled to request an evidentiary
hearing for a final determination as to his or her registration
and classification. See G. L. c. 6, § 178L (1) (a), (2). The
sex offender registry law requires that the hearing officer
"determine by a preponderance of evidence such sex offender's
duty to register and final classification." G. L. c. 6,
§ 178L (2). In Doe, Sex Offender Registry Bd. No. 380316 v. Sex
Offender Registry Bd., 473 Mass. 297, 311 (2015) (Doe No.
380316), this court concluded that the statutory provision
requiring only a preponderance of the evidence to determine an
offender's duty to register and classification level violated
the offender's procedural due process rights. We held that the
board was instead constitutionally required to prove the
appropriateness of an offender's initial classification by clear
and convincing evidence. Id.
No sooner than three years after initial classification, an
offender may seek to be reclassified at a lower level. See
G. L. c. 6, § 178L (3); 803 Code Mass. Regs. § 1.31(2)(a)
(2016). After our decision in Doe No. 380316, the board amended
6
its regulations to require that offenders prove the
appropriateness of downward reclassification by clear and
convincing evidence, rather than a preponderance of the
evidence. See 803 Code Mass. Regs. § 1.31(2)(c). Today, in Noe
No. 5340, 480 Mass. at , we held that the regulation placing
the burden of proof on the offender in downward reclassification
hearings violated the offender's procedural due process rights.
We concluded that the burden of proof must remain with the board
to prove the appropriateness of an offender's existing
classification by clear and convincing evidence. See id. The
offender does, however, have an initial burden of production to
provide "new information" of a decreased risk of reoffense or
degree of dangerousness. See id.; G. L. c. 6, § 178L (3).
At least ten years after initial classification, an
offender may seek to have his or her duty to register
terminated. See G. L. c. 6, § 178G. Here, we are confronted
with the question of the appropriate quantum and burden of proof
in the context of such termination hearings. Pursuant to G. L.
c. 6, § 178G:
"A person required to register with the sex offender
registry board may make an application to said board to
terminate the obligation upon proof, by clear and
convincing evidence, that the person has not committed a
sex offense within ten years following conviction,
adjudication or release from all custody or supervision,
whichever is later, and is not likely to pose a danger to
the safety of others."
7
To answer the reported question from the single justice, we must
determine whether placing the burden of proof on an offender in
termination hearings, by clear and convincing evidence, is in
violation of procedural due process.
2. Discussion. a. Reported question. For substantially
the same reasons outlined in our decision in Noe No. 5340, we
now conclude that the appropriate quantum of proof in
termination proceedings is also clear and convincing evidence
and that the burden is imposed on the board. We further
conclude, as we did in Noe No. 5340, that the offender retains
an initial burden of production to provide new evidence. In so
doing, we balance "the private interests affected, the risk of
erroneous deprivation, the probable value of additional or
substitute safeguards, and the governmental interests involved."
Doe No. 380316, 473 Mass. at 311, quoting Doe, Sex Offender
Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90,
100 (1998) (Doe No. 972).
i. Private interests. As we stated in Doe No. 380316, 473
Mass. at 311, the private interests at stake in sex offender
registration and classification are significant. A sex offender
faces "increasingly stringent affirmative reporting
requirements" and is "likely to confront stigma and legal
restrictions that will make it harder for him to find stable
8
housing or employment, and may even face threats of physical
harm." Id.
Although an offender who is already registered is in a
different position from that of an individual who has not yet
registered, the private interests at stake remain significant.
See Noe No. 5340, 480 Mass. at . The sex offender registry
law requires sex offenders to register annually. See G. L.
c. 6, § 178F. Such registration information is transmitted to
local law enforcement where the offender lives and works, as
well as law enforcement where the offender attends an
institution of higher learning. See G. L. c. 6, § 178K (2); 803
Code Mass. Regs. § 1.05(9) (2016). The information is also
disseminated to the Federal Bureau of Investigation and may also
be provided to numerous State agencies. See G. L. c. 6,
§ 178K (2); 803 Code Mass. Regs. § 1.05(9)(c). In other words,
"the Commonwealth [is required] annually to inform local and
Federal law enforcement officers that, in its view, [the
offender] presents a risk of committing a sex offense," despite
any subsequent conduct to the contrary (emphasis in original).
Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry
Bd., 450 Mass. 780, 790-791 (2008). A sex offender's continued
duty to register thus remains "a continuing, intrusive, and
humiliating regulation of the person himself." Doe v. Attorney
Gen., 426 Mass. 136, 149 (1997) (Fried, J., concurring).
9
Accordingly, sex offenders seeking termination of their
continued duty to register, and the significant consequences
that follow from such registration, have substantial privacy and
liberty interests at stake.
ii. Risk of erroneous deprivation. As we stated in Noe
No. 5340, 480 Mass. at , "the risk of erroneous
classification and deprivation remains in reclassification
proceedings and . . . that risk must continue to be borne by the
government." Therefore, in reclassification proceedings the
ultimate burden of proof must remain with the board to prove by
clear and convincing evidence that the existing classification
is current and correct. Id. See Doe No. 380316, 473 Mass. at
313, quoting Addington v. Texas, 441 U.S. 418, 427 (1979)
(offenders "should not be asked to share equally with society
the risk of error" in initial classification proceedings). We
further concluded, however, that there is a burden of production
on the offender seeking reclassification to demonstrate some
change in his or her circumstances indicating a reduced risk of
reoffense or degree of dangerousness, as he or she is in the
best position to provide such evidence. Noe No. 5340, supra at
. The same essential reasoning applies to terminations as well.
Termination, like reclassification, is not "a mere
continuation of the original classification" proceedings,
designed to verify the board's initial determination. Id. at
10
. An offender may not apply for termination unless the offender
"has not committed a sex offense within ten years following
conviction, adjudication or release from all custody or
supervision, whichever is later." G. L. c. 6, § 178G.
Subsequent requests for termination may be made three years
after the board has denied the last motion for termination. See
803 Code Mass. Regs. § 1.30(9). Thus, at minimum, a sex
offender only becomes eligible to apply for termination ten
years after his or her initial offense.
By including a decade-long waiting period for initial
termination requests, the Legislature recognized that an
offender may no longer pose a danger to others after the passage
of such a significant period of time. See G. L. c. 6, § 178G.
See also 803 Code Mass. Regs. § 1.33(29), (30), (31) (2016)
(recognizing that likelihood of recidivism and dangerousness
decreases with additional offense-free time in community,
advanced age, and debilitating illness). This ten-year waiting
period is significantly longer than the three-year
reclassification waiting period that we concluded amounted to a
"significant passage of time and thus a meaningful waiting
period" in Noe No. 5340, 480 Mass. at . Over the course of
ten years, it is even more possible that an offender has
undergone a significant change in his or her degree of
dangerousness than over the course of three years. Thus, rather
11
than a continuation of the original classification hearing, a
termination hearing is an independent proceeding designed to
determine whether an offender currently poses a danger to the
safety of others, taking into account this significant passage
of time and the new evidence provided by the offender. See Doe,
Sex Offender Registry Bd. No. 7083 v. Sex Offender Registry Bd.,
472 Mass. 475, 483 (2015).
Given that passage of time, the production of new evidence
by the sex offender, and the difficulty of assessing an
offender's degree of dangerousness, there is a risk of erroneous
classification. See Noe No. 5340, 480 Mass. at . As we have
concluded in Doe No. 380316 and Noe No. 5340, that risk must be
borne by the government. Placing the burden of proof on the
board by clear and convincing evidence, as is necessary in
original classification and reclassification hearings,
appropriately reduces the risk of erroneous deprivation. See
Noe No. 5340, supra at ; Doe No. 380316, 473 Mass. at 311-
314.
Offenders do have a burden of production to show a change
in circumstances indicating that they do not pose a risk to
reoffend or a danger to the public. See 803 Code Mass. Regs.
§ 1.30(1). Placing the burden of proof on the board and the
burden of production on the offender seeking termination further
minimizes the risk of error. See Noe No. 5340, 480 Mass. at
12
. Offenders are in the best position to provide such
information and thus have a duty to do so if they want their
registration requirement terminated.
iii. Government interests. The State has a public safety
interest in protecting "children and other vulnerable people
from recidivistic sex offenders." Doe No. 380316, 473 Mass. at
313, quoting Doe No. 972, 428 Mass. at 103. In passing the sex
offender registry law, the Legislature found "the danger of
recidivism posed by sex offenders, especially sexually violent
offenders who commit predatory acts characterized by repetitive
and compulsive behavior, to be grave and that the protection of
the public from these sex offenders is of paramount interest to
the government." St. 1999, c. 74, § 1. That government
interest is best accomplished, however, by accurately
classifying each offender. See Soe, Sex Offender Registry Bd.
No. 252997 v. Sex Offender Registry Bd., 466 Mass. 381, 391
(2013).
In Noe No. 5340, 480 Mass. at , we stated that the
"government interest in accurate classifications applies equally
to reclassifications and to original classifications." So too
does that interest apply to termination hearings. A sex
offender's continued duty to register, despite no longer posing
a risk to reoffend or a danger to the public, "distracts the
public's attention from those offenders who pose a real risk of
13
reoffense, and strains law enforcement resources." Doe No.
380316, 473 Mass. at 313-314. See Doe No. 972, 428 Mass. at 107
(Marshall, J., concurring in part and dissenting in part) ("As
observed in an altogether different context but oddly apropos of
this classification system as well, 'when everything is
classified, then nothing is classified, and the system becomes
one to be disregarded by the cynical or the careless'" [citation
omitted]).
iv. Balancing. Balancing the factors specified above, we
conclude that the significant private interests at stake, the
need to avoid erroneous classification, and the government's own
overarching interest in accurate classification require that the
burden of proof remain with the board in termination hearings.
In balancing these factors in Doe No. 380316, 473 Mass. at 314-
315, we determined that procedural due process required that the
board have the burden of proving the appropriateness of an
offender's initial classification by clear and convincing
evidence. We reached this conclusion in Noe No. 5340, 480 Mass.
at , with regard to reclassification hearings, so long as the
offender satisfies his or her initial burden of production to
establish changed circumstances justifying reclassification, and
we reach the same conclusion here as to termination hearings.
An individual's ongoing duty to register as a sex offender
implicates significant liberty and privacy interests for as long
14
as the individual is required to register as a sex offender.
Applying a clear and convincing evidence standard, with the
burden on the board, throughout the classification,
reclassification, and termination process provides "greater
certainty that the burdens placed on [the offender] . . . are
warranted," by providing greater protection against erroneous
classification. Doe No. 380316, 473 Mass. at 314. The
government's public safety responsibilities are also best served
by accurate classification, not overclassification, which "both
distracts the public's attention from those offenders who pose a
real risk of reoffense, and strains law enforcement resources."
Id. at 313-314.
Accordingly, we conclude that G. L. c. 6, § 178G,
unconstitutionally places the burden of proof in termination
hearings on the sex offender. Procedural due process requires
that the burden of proof remain with the board to demonstrate
the continued appropriateness of the offender's duty to
register, by clear and convincing evidence. See Noe No. 5340,
480 Mass. at ; Doe No. 380316, 473 Mass. at 314-315. The
offender's burden is only one of production, to introduce
credible evidence of changed circumstances demonstrating that he
or she is no longer a risk to public safety.
For the reasons discussed above, and for the reasons stated
in our decision in Noe No. 5340, 480 Mass. at , we answer the
15
reported question as follows: the quantum of proof required at
a hearing where a sex offender requests reclassification or
termination of his or her status as a registered sex offender is
clear and convincing evidence, with the burden of proof on the
board. An offender seeking reclassification has a burden of
production to show a change in circumstances indicating that the
offender poses a decreased risk of reoffense or degree of
dangerousness. Id. An offender seeking termination has a
burden of production to show a change in circumstances
indicating that the offender no longer poses a risk to reoffend
or a danger to the public.
b. Motion to dismiss. In addition to the reported
question, the single justice also reported this case to the full
court on the motion to dismiss. "Factual allegations are
sufficient to survive a motion to dismiss if they plausibly
suggest that the plaintiff is entitled to relief." A.L. Prime
Energy Consultant, Inc. v. Massachusetts Bay Transp. Auth., 479
Mass. 419, 424 (2018). See Iannacchino v. Ford Motor Co., 451
Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 557 (2007) ("What is required at the pleading stage
are factual 'allegations plausibly suggesting [not merely
consistent with]' an entitlement to relief"). The board's
motion to dismiss asserts lack of subject matter jurisdiction
16
and failure to state a claim on which relief can be granted. We
address each argument in turn.
i. Subject matter jurisdiction. Although the parties
disagree over the grounds on which this court has subject matter
jurisdiction, there is no question that this case is properly
before us. Pursuant to G. L. c. 231A, § 1, this court "may on
appropriate proceedings make binding declarations of right,
duty, status and other legal relations sought thereby." See
generally Moe v. Sex Offender Registry Bd., 467 Mass. 598, 600
(2014) (single justice reserved and reported complaint seeking
declaratory and injunctive relief to full court). More
particularly, we have previously held that declaratory relief is
the proper mechanism for challenging the constitutionality of
the board's regulations. See Doe, Sex Offender Registry Bd. No.
10800 v. Sex Offender Registry Bd., 459 Mass. 603, 629 (2011)
("A challenge to the constitutionality of a regulation of
general application is appropriately presented as an action for
declaratory judgment"). Additionally, pursuant to G. L. c. 214,
§ 1, the Supreme Judicial Court has "original and concurrent
jurisdiction of all cases and matters of equity cognizable under
the general principles of equity jurisprudence." Thus, the
17
plaintiffs' claims for declaratory and injunctive relief are
properly before this court.3
ii. Failure to state a claim. Under the sex offender
registry law, reclassification hearings must be conducted "in a
reasonable time." G. L. c. 6, § 178L (3). The board's
regulations further require that sex offenders must be provided
with notification of the board's reclassification or termination
decision "as soon as practicable." See 803 Code Mass. Regs.
§§ 1.30(8)(a), 1.31(7)(a). General Laws c. 6, § 178K (3), also
3 While the amended complaint focuses largely on declaratory
and injunctive relief, the plaintiffs continue to argue for
relief under G. L. c. 211, § 3, as well as for mandamus under
G. L. c. 249, § 5, both in their opposition to the board's
motion to dismiss and in their brief to the full court. The
board argues on appeal that the plaintiffs are foreclosed from
seeking relief under G. L. c. 211, § 3, or G. L. c. 249, § 5.
We agree. Our superintendence authority under G. L. c. 211,
§ 3, "is to be used sparingly, and 'should be exercised only in
exceptional circumstances and where necessary to protect
substantive rights in the absence of an alternative, effective
remedy.'" MacDougall v. Commonwealth, 447 Mass. 505, 510
(2006), quoting Soja v. T.P. Sampson Co., 373 Mass. 630, 631
(1977). Similarly, a claim seeking mandamus under G. L. c. 249,
§ 5, "does not lie if any other effective remedy exists."
County Comm'rs of Middlesex County v. Sheriff of Middlesex
County, 361 Mass. 89, 90–91 (1972). Here, the plaintiffs have
other available remedies, namely declaratory and equitable
relief, and thus are not entitled to relief under G. L. c. 211,
§ 3, or G. L. c. 249, § 5. See Doe, Sex Offender Registry Bd.
No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 629
(2011) ("A challenge to the constitutionality of a regulation of
general application is appropriately presented as an action for
declaratory judgment"). Further, G. L. c. 211, § 3, only
empowers us to exercise superintendence over "courts of inferior
jurisdiction," not executive agencies.
18
creates a specific prioritization scheme for conducting initial
classifications that the board must follow.4
Subsequent to our decision in Doe No. 380316, 473 Mass. at
314 n.26, hundreds of initial classification proceedings then
pending before the board, the Superior Court, and the appellate
courts were remanded to the board to apply the appropriate
quantum of proof. In light of our ruling, and the board's
statutory duty to prioritize certain cases under G. L. c. 6,
§ 178K (3), the board "triaged" its caseload, prioritizing this
backlog of initial classifications. See G. L. c. 6, § 178K (3).
Less than two years later, when the Superior Court judge in the
case underlying Noe No. 5340 declared that placing the burden of
proof on offenders in reclassification hearings was
unconstitutional, the board elected not to resume
4 General Laws c. 6, § 178K (3), provides in relevant part:
"The sex offender registry board shall make a
determination regarding the level of risk of reoffense and
the degree of dangerousness posed to the public of each sex
offender listed in said sex offender registry and shall
give immediate priority to those offenders who have been
convicted of a sex offense involving a child or convicted
or adjudicated as a delinquent juvenile or as a youthful
offender by reason of a sexually violent offense or of a
sex offense of indecent assault and battery upon a mentally
retarded person pursuant to [G. L. c. 265, § 13F], and who
have not been sentenced to incarceration for at least
[ninety] days, followed, in order of priority, by those sex
offenders who (1) have been released from incarceration
within the past [twelve] months, (2) are currently on
parole or probation supervision, and (3) are scheduled to
be released from incarceration within six months."
19
reclassification hearings pending a definitive resolution of
that case by this court. As of February, 2018, approximately
1,115 sex offenders were waiting for a hearing on their request
for downward reclassification or termination.5
On appeal, the board argues that the plaintiffs' claims for
equitable relief must be dismissed because the board was
lawfully acting within its own discretion in prioritizing
initial classification hearings and awaiting the outcome of Noe
No. 5340 before resuming reclassification or termination
hearings.
We recognize the practical constraints placed on the board
by our decision in Doe No. 380316, as well as the board's
interest in awaiting the outcome of Noe No. 5340 before
reinitiating reclassification and termination hearings, which
may otherwise have to be remanded to the board to apply a
different quantum or burden of proof. Further, we recognize the
board's statutory mandate to prioritize particular hearings
under G. L. c. 6, § 178K (3). However, Noe No. 5340 has now
been decided and the board properly conceded at oral arguments
that it has worked through the backlog generated by Doe No.
380316, with only a "handful" of those cases left. Thus, the
5 Downward reclassification hearings constituted 12.8 per
cent of the total number of hearings conducted by the board in
2014; 23.7 per cent of the hearings conducted in 2015; and 1.8
per cent of the hearings conducted in 2016.
20
reasons cited by the board for failing to conduct offender-
initiated reclassification and termination hearings no longer
exist. More importantly, a significant backlog of such hearings
has been created with lengthy delays for individual offenders,
some of whom have waited over four years for a hearing. Given
this backlog, and the lengthy delays for individual offenders,
we conclude that the motion to dismiss is properly denied.
We do not consider the "reasonable time" standard to be a
rigid one; rather, it requires a "fair consideration of the
total circumstances of the case." School Comm. of Boston v.
Board of Educ., 363 Mass. 20, 28 (1973). However, it does not
provide the board with unfettered discretion to delay offender-
initiated reclassification and termination hearings,
particularly given that the Doe No. 380316 backlog no longer
exists and Noe No. 5340 has now been decided. The board must
promptly begin to confront this large backlog of offender-
initiated reclassification and termination hearings, and conduct
such hearings in a reasonable time after the issuance of this
rescript. The board shall report to the single justice on its
plan for addressing this backlog within thirty days from
issuance of this rescript. The single justice shall determine
whether the plan satisfies the reasonable time standard and, if
it does not, shall issue appropriate orders to ensure compliance
with that standard, consistent with this opinion.
21
3. Conclusion. The motion to dismiss the plaintiffs'
claims is denied. The case is remanded to the single justice
for further proceedings consistent with this opinion, as
appropriate.
So ordered.