Opinion
14-P-74
02-27-2015
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 2080 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a Superior Court judgment affirming the Sex Offender Registry Board's (board) classification of Doe as a level three sex offender. "In conducting our review, we 'give due weight to the experience, technical competence, and specialized knowledge' of the board." Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 615 (2010) (Doe No. 151564), quoting from G. L. c. 30A, § 14(7). "The burden is on the appealing party to demonstrate the invalidity of the board's decision." Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632 (2011) (Doe No. 10800). The plaintiff raised three arguments, each of which is discussed in turn below.
The plaintiff argued that the hearing examiner's decision was arbitrary and capricious and was unsupported by substantial evidence because she "g[a]ve very limited weight to [the plaintiff's] current age as a mitigating factor in his risk of sexual reoffense." See G. L. c. 30A, § 14(7)(e) & (g). Here, unlike in Doe No. 151564, supra at 622-623, the hearing examiner considered the scientific studies submitted concerning the effect of the plaintiff's age, fifty-two, on the likelihood that he will reoffend. The hearing examiner concluded that she would assign very little weight to the plaintiff's age as a mitigating factor based on information in one of the studies.
The hearing examiner explained that one of the studies submitted suggested that "the contributing factors in this reduction with age are a decrease in sexual drive and/or deviant sexual interests, increase in self-control, and decreased access to victims (opportunity)." The hearing examiner then justified applying little weight to this mitigating factor because there is no indication that the plaintiff's self-control has increased with age as the plaintiff has continued to engage in criminal behavior and use drugs, there is evidence that the plaintiff's sex drive was "intact as recently as 2006," and the risk of reoffense only begins to decline for child molesters after fifty. Given this analysis and the support for the idea that the reduction in recidivism may be connected to the factors considered by the hearing examiner in an article which was in evidence, we cannot reasonably conclude the weight the hearing examiner assigned to the mitigating factor of the plaintiff's age was arbitrary or capricious or an error of law. See Doe No. 10800, supra at 633, citing to Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 812-813 (2006) ("hearing examiner has discretion to consider which regulatory factors are applicable and how much weight to give each factor based on evidence at hearing").
We recognize that engaging in such an unguided interpretation of the studies when there was a request for expert funds has been held to be arbitrary and capricious. Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 85 Mass. App. Ct. 1, 11-12 (2014) (holding a hearing examiner's denial of expert funds to assist with the interpretation of these types of complex studies was an abuse of discretion and, under the circumstances of that case, "her own unguided interpretation, application, and ultimate dismissal of the complex scientific and statistical studies on the effect of age on recidivism rates was arbitrary and capricious"). However, we are not aware of any request that the plaintiff be allowed to explain how the studies applied to this plaintiff through an expert below and the plaintiff did not argue on appeal that an expert was necessary. Compare ibid. Cf. Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 810 (2006) (an issue not raised below is waived).
The plaintiff further argues that the hearing examiner failed to appropriately weigh the amount of time that had passed since the plaintiff had reoffended sexually and instead focused on nonsexual offenses. However, as the plaintiff concedes, the hearing examiner's consideration of the plaintiff's general history of nonsexual crimes under the factor set forth in 803 Code Mass. Regs. § 1.40(9)(a) (2002), which addresses the length of time the plaintiff has "had access to the community without committing any new offenses," is consistent with the plain language of the regulation. The hearing examiner is required to use these factors to guide her decision and is bound to apply the regulations as they are written. See 803 Code Mass. Regs. § 1.40 (2004) ("Similarly, at a hearing conducted pursuant to 803 CMR 1.07 through 1.26, the definitions, explanations, principles, and authorities contained in these Factors shall guide the Hearing Examiner in reaching a Final Classification decision"); Doe No. 10800, 459 Mass. at 629 ("A properly promulgated regulation has the force of law . . . and must be accorded all the deference due a statute [quotation and citation omitted]"). There was no error in considering the plaintiff's other nonsexual criminal offenses. Further, the hearing examiner acknowledged that there was no evidence of a sex offense for twenty-five years but found that in applying other factors the board had still demonstrated the plaintiff was at a high risk of reoffending.
The regulations provide that the hearing examiner should consider "the length of time the offender has had access to the community without committing any new offenses. . . . For purposes of this Factor, the SORB defines a new offense as a conviction or adjudication for any sex offense, or, a conviction or adjudication for any offense that results in the offender serving a period of confinement that exceeds 60 days." 803 Code Mass. Regs. § 1.40(9)(a) (2002).
Finally, the plaintiff argues that the hearing examiner impermissibly relied upon an uncorroborated and unreliable hearsay statement regarding an uncharged sexual offense against a male minor. "In the context of administrative proceedings, hearsay evidence bearing indicia of reliability constitutes admissible and substantial evidence. It is the duty of the hearing examiner to assess the reliability of exhibits introduced in evidence and draw therefrom all reasonable inferences." Doe No. 10800, supra at 638 (citations omitted). Here, the hearing examiner determined that the boy's statement bore the indicia of reliability because the boy's mother corroborated part of the statement and a social worker found that the boy's statement was substantiated due to the detail of the account. In addition, the hearing examiner noted that the plaintiff admitted to committing "a one time offense on [a] male and [a] female," which further corroborated the statement. We cannot reasonably conclude the hearing examiner erred in crediting this statement.
The social worker did express concerns that the date the boy indicated this uncharged offense occurred could not be accurate but nonetheless found the claim to be substantiated.
Judgment affirmed.
By the Court (Trainor, Brown & Vuono, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: February 27, 2015.