Opinion
No. 05-01384.
February 16, 2007.
MEMORANDUM AND ORDER ON THE PARTIES' CROSS MOTIONS FOR JUDGMENT ON THE PLEADINGS
Before the Court is the motion for judgment on the pleadings of Plaintiff Nicholas Loveday ("Plaintiff" or "Loveday"). The complaint was filed pursuant to G.L. c. 6 § 178M, G.L. c. 30A, § 14 and Mass. R. Civ. P. 12(c). Loveday challenges his classification as a Level II Sex Offender by the Defendant Sex Offender Registry Board ("the Board"). The Board moved for cross judgment.
While the Court finds much merit in the Plaintiff's petition, Loveday's motion is DENIED and the Board's cross motion is ALLOWED because of the limited scope of the Court's review and the substantial evidence upon which the Board based its decision.
Administrative Record
Following the Board's initial determination pursuant to G.L. c. § 178K(1) of the Statute that Loveday should be classified as a Level II Sex Offender, Loveday requested an administrative hearing pursuant to G.L. c. 6, § 178L(1)(c). A de novo hearing was held at which Loveday was represented by counsel and presented evidence. Thereafter, the Hearing Examiner issued a decision affirming the Board's determination that the Plaintiff register as a Level II Sex Offender. It is the evidence before the Hearing Examiner and his decision that is now before the Court.
Pertinent Facts
The Plaintiff is currently 19 years old. He was found delinquent in 2001 and 2002 for three counts of indecent assault and battery on a child under 14 in two separate incidents. At the time the Plaintiff was 13 and 14 years old, respectively. One of the victims was his 8 year old sister, who was assaulted along with her 7 year old friend. Approximately a year prior to the assault involving his sister and her friend the Plaintiff had assaulted a 7 year old girl. The nature of the offending conduct was his touching of the girls' vaginal areas with his hand and, in one instance, his penis. There was no penetration in any of the assaults.
Although occurring later in time, the assault on the sister and her friend came to the attention of the authorities first through a report to the police by the Plaintiff's mother. After Loveday was found delinquent for those assaults, the police became aware of the earlier assault involving the 7 year old, and additional charges were brought in a new proceeding. With the Plaintiff having been sentenced to a 2 year probationary term upon the initial delinquency finding, he was sentenced to 2 years probation, to run concurrently, on the second delinquency determination.
The Plaintiff thereafter complied with all terms of his probation, which was terminated on November 10, 2005. He successfully completed sex offender treatment, with his therapist attesting to his regular attendance, the absence of any relapse and the satisfactory development by Loveday of a relapse prevention plan. The Plaintiff was enrolled in high school at the time of the hearing before the Hearing Examiner, with no behavioral issues identified. While in high school, the Plaintiff was gainfully employed part time at Friendly's.
Loveday is currently enrolled in a community college and majors in English and Math.
His foster father testified at the hearing in positive terms about the Plaintiff's progress. The Hearing Examiner noted the Plaintiff's stable living environment as a factor reducing the risk posed by the Plaintiff.
Finally, Loveday's foster care clinician concluded that he had "no concerns regarding any issues" posed by him.
The Hearing Officer in his findings "applauded [Loveday's] outstanding positive conduct." Nevertheless, the Hearing Officer in applying the multiple risk factors prescribed by G.L. c. 6, § 178K(1) (a)-(k) and 803 CMR 1.40 concluded that he had the "clear impression?that the [Plaintiff] presents a moderate risk of reoffense and degree of dangerousness." In concluding that a Level II classification was required, the Hearing Examiner noted that Loveday's "positive recent track record is not extensive enough to thoughtfully gauge future risk. Further, I am concerned that [Plaintiff] was discharged from juvenile court probation supervision only several weeks ago and has yet to be tested in an unstructured setting."
In this context the Hearing Examiner cited the provision at 803 CMR 1.37C permitting the Plaintiff after three years to petition for reclassification. At such time, the Hearing Examiner observed, "[a]fter the benefit of more offense-free time in the community, Mr. Loveday may well be a candidate for an administrative review by the Board to determine the appropriateness of reclassifying his level."
The Hearing Examiner's decision became the decision of the Board. G.L. c. 6, § 178L.
Discussion Standard of Review
In the Court's review pursuant to G.L. c. 30A, § 14, it is required to give "due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it." Id., § 14(7). Tri-County Youth Programs, Inc. v. Acting Deputy Dir. of the Div. of Employment and Training, 54 Mass. App. Ct. 405, 408 (2002). The agency's decision, however, must be supported by substantial evidence. G.L. c. 30A, § 14(7). "Substantial evidence" means such evidence as a reasonable mind might accept as adequate to support a conclusion. Id., § 1(6). When applying the substantial evidence standard, the Court considers the record as a whole. The Black Rose, Inc. v. City of Boston, 433 Mass. 501, 503 (2001). As long as the findings are properly supported, "[the decision] will not be disturbed by a reviewing court." Tri-County Youth Programs, Inc., 54 Mass. App. Ct. 405, 408 (2002). The court reviews agencies' evidentiary rulings only to the extent that the admission or exclusion of particular evidence resulted in a denial of substantial justice. Massachusetts Auto. Rating Accident Prevention Bureau v. Comm'r of Ins., 401 Mass. 282, 285 (1987).
Merits
The Court has carefully reviewed the Hearing Examiner's decision and The complete administrative record. The Court also closely considered the impressive brief filed by Plaintiff's counsel urging that the Court vacate the Hearing Examiner's decision as unsupported by substantial evidence in consideration to the combined circumstances of the Plaintiff's young age at the time of the index offenses and his exemplary conduct thereafter. Counsel also challenged the Board's decision on various state and federal constitutional grounds.
Unfortunately for the Plaintiff, however, the SJC has recently addressed the constitutional and related issues of the Board's statutory and regulatory authority and found the Commonwealth's sex offender registration scheme to present no infirmities of a substantive or procedural due process nature. Doe v. Sex Offender Registry Board, 447 Mass. 750, 759-762 (2006).
Further, in its 2006 Doe decision, the SJC found on a record where the petitioner was challenging his Level I classification on the basis of his "'total rehabilitation'", id. at 762, that the hearing examiner's consideration of the pertinent statute and regulation-based risk factors provided substantial evidence to support his determination.
The SJC's 2006 decision in Doe served to reaffirm the earlier imprimatur given to the Commonwealth's sex offender registration regime in the Court's 1998 holding in Doe v. Sex Offender Registry Board, 428 Mass. 90 (1998).
Nevertheless, there remains the issue before this Court whether there was substantial evidence to support the Hearing Examiner's decision here. "The substantial evidence standard is?fairly characterized as a test of rational probability: an agency's conclusion will fail judicial scrutiny if 'the evidence points to no felt or appreciable probability of the conclusion or points to an overwhelming probability of the contrary.' Thus conceived, the substantial evidence test accords an appropriate degree of judicial deference to administrative decisions, ensuring that an agency's judgment on questions of fact will enjoy the benefit of the doubt in close cases, but requiring reversal by a reviewing court if the cumulative weight of the evidence tends substantially toward opposite inferences." Cobble v. Comm'r of the Dept. of Social Services, 430 Mass. 385, 391 (1999) (citations omitted).
The Court is faced here with a close case. If the matter were before the Court on a de novo basis, in all likelihood the Court would have found for the Plaintiff. That is because the combination of the circumstances of the Plaintiff's youth at the time of the offenses, the facts of the particular offenses and the exemplary conduct of the Plaintiff thereafter as attested to by professional and credible lay figures alike do not tend support a conclusion by a preponderance of the evidence that Loveday presents a moderate risk of reoffending and dangerousness.
However, it is not for the Court to substitute its judgment for that of the Hearing Examiner. Tri-County Youth Programs, Inc., 54 Mass. App. Ct. at 408. The Hearing Examiner's decision here was carefully crafted and articulately reasoned according to the prescribed risk factors of the governing statute and regulations. The Court cannot say that "'the evidence points to no felt or appreciable probability of the conclusion [reached by the Hearing Examiner] or points to an overwhelming probability of the contrary.'" Cobble, 430 Mass. at 391. Accordingly, the Plaintiff's motion fails.
ORDER
The Plainiff's motion for judgment on the pleadings isDENIED. The Defendant's cross motion for judgment on the pleadings is ALLOWED. Judgment shall so enter.