Opinion
20-P-1068
08-03-2021
John DOE, Sex Offender Registry Board No. 524115 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court judgment affirming his final classification by the Sex Offender Registry Board (SORB) as a level three sex offender. See G. L. c. 6, § 178K (2) (c ). Concluding that the hearing examiner improperly applied factor 2, repetitive and compulsive behavior, and that the misapplication prejudiced Doe, we vacate the judgment and remand for further proceedings.
A pseudonym.
1. Standard of review. "In reviewing SORB's decisions, we ‘give due weight to the experience, technical competence, and specialized knowledge of the agency.’ " Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd. (Doe No. 205614 ), 466 Mass. 594, 602 (2013), quoting G. L. c. 30A, § 14 (7). "A reviewing court may set aside or modify SORB's classification decision where it determines that the decision 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." Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019).
2. Factor two, repetitive and compulsive behavior. After the classification and the Superior Court judgment, a Superior Court judge declared that the second and third sentences of 803 Code Mass. Regs. § 1.33(2) are invalid, and SORB has decided not to appeal this judgment. Nonetheless, SORB argues that "[t]he Hearing Examiner's consideration of Factor 2 resulted in harmless error." We disagree. See Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 744 (2019), quoting G. L. c. 30A, § 14 (7) (where hearing examiner gave "full aggravating weight to the risk factor of repetitive and compulsive behavior, Doe's ‘substantial rights ... may have been prejudiced’ on that basis").
Doe's sex offense and other circumstances are not so egregious that it is evident that the examiner would have classified him as a level three sex offender without finding that he was a repetitive and compulsive sex offender. His sexual offense, though heinous, involved only one victim who was not a stranger to Doe. His record otherwise is unremarkable, he was fifty years old at the time of classification, and he is subject to intensive probation supervision for a prolonged period of time. On this record, we cannot be confident that factor two, especially the finding that Doe's behavior is compulsive, did not materially affect the outcome of the hearing officer's decision. Accordingly, we remand to the hearing examiner to determine Doe's classification without considering factor two. We leave to the hearing examiner to determine in the first instance whether to conduct a de novo hearing or to consider additional evidence on remand.
Because we are remanding in any event, we need not consider Doe's other arguments. See Doe No. 205614 , 466 Mass. at 595 (vacating decision of board on one basis without addressing plaintiff's other arguments); Doe, Sex Offender Registry Bd. No. 29481 v. Sex Offender Registry Bd., 84 Mass. App. Ct. 537, 538, 543-544 (2013) (same).
We were informed at oral argument that, even if the hearing examiner does not consider new evidence and thus the classification is based upon Doe's circumstances in December 2018, SORB takes the position that Doe will not be eligible to file a motion for reclassification under 803 Code Mass. Regs. § 1.31(2) until three years after the date of the decision on remand. Contrast 803 Code Mass. Regs. § 1.31(2)(e)(4) (offender may move for reclassification even if last classification is on appeal, though SORB has discretion to summarily deny motion). Whether this is a rational construction of the regulation is not before us. In any event, we note that the hearing examiner has the discretion to obviate the question entirely by conducting a full evidentiary hearing on remand, and thereby to consider the effect of any developments since the earlier classification.
3. Conclusion. The judgment is vacated, and a new judgment shall enter remanding the matter to the Sex Offender Registry Board for further proceedings consistent with this decision.
So ordered.
vacated