Doe, Sex Offender Registry Board No. 3839 v. Sex Offender Registry Board

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SJC-11604

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 3839 vs. SEX
OFFENDER REGISTRY BOARD.

Plymouth. September 3, 2014. - August 21, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk,
JJ.

Sex Offender. Sex Offender Registration and Community
Notification Act. Delinquent Child. Constitutional Law,
Sex offender. Due Process of Law, Sex offender,
Retroactive application of statute. Statute, Retroactive
application. Practice, Civil, Sex offender.
Administrative Law, Findings.

Civil action commenced in the Superior Court Department on
February 18, 2011.

The case was heard by Christopher J. Muse, J., on a motion
for judgment on the pleadings, and a motion for relief from
judgment and for reconsideration was also heard by him.

The Supreme Judicial Court granted an application for
direct appellate review.

Matthew J. Koes for the plaintiff.
William H. Burke for the defendant.

DUFFLY, J. In 1990 and 1991, the plaintiff, John Doe, Sex
 2

Offender Registry Board No. 3839 (Doe), was adjudicated a

delinquent juvenile by reason of sex offenses he committed in

1989 and 1990, when he was fourteen and fifteen years old.

Following his adjudications, Doe was committed to the Department

of Youth Services (DYS), where he remained for over nine years,

pursuant to orders extending his commitment beyond his

eighteenth birthday. In April, 2000, Doe was committed

temporarily to the Massachusetts Treatment Center (treatment

center) for evaluation on the Commonwealth's petition that Doe

be civilly committed as a sexually dangerous person (SDP);

thereafter, he was found to be sexually dangerous and was

civilly committed to the treatment center for a period of from

one day to life. In January, 2011, twenty years after Doe

committed the offenses, the defendant Sex Offender Registry

Board (SORB) classified him as a level three sex offender. In

September, 2013, Doe was determined to be no longer sexually

dangerous, and was discharged from the treatment center.

Doe contends that the sex offender registration statute,

G. L. c. 6, §§ 178C-178Q (registration statute), as applied to

him, constitutes an ex post facto punishment, and violates his

rights to due process and protection against double jeopardy,

because the requirement that he register as a sex offender was

triggered by juvenile adjudications that preceded the statute's

enactment. See St. 1996, c. 239, § 1. He maintains also that,
 3

even if the registration statute does not operate impermissibly

as applied to him, the hearing examiner's determination that he

is a level three sex offender was unsupported by substantial

evidence. Doe argues that the hearing examiner did not properly

consider his youth at the time of his offenses, and that the

decision was based on factual errors and unreliable evidence.

Doe argues further that the evidence underlying the

classification was stale, because the hearing resulting in the

final classification took place more than three years before his

discharge from the treatment center.

We conclude that the registration statute was not applied

retroactively as to Doe; the hearing examiner considered Doe's

youth in accordance with the regulatory factors in effect; and

the factual errors complained of either were de minimis or were

determinations adequately supported by evidence in the record,

and were not erroneous. Doe's contention regarding staleness,

however, is valid. A final classification by SORB must be based

on current evidence of a sex offender's risk of reoffense and

dangerousness to the community, see G. L. c. 6, §§ 178C-178Q,

and a final classification made over three years prior to an

offender's release from confinement is presumptively stale. See

Doe, Sex Offender Registry Bd. No. 7083 v. Sex Offender Registry

Bd., 472 Mass. (2015) (Doe No. 7083). Because Doe's

classification determination was not based on current evidence
 4

of the relevant risk factors, he is entitled to new evidentiary

hearing at which SORB will bear the burden of establishing his

risk of reoffense and his level of danger to the community. See

id. at .

Background and prior proceedings. In 1990, Doe admitted to

sufficient facts to support a finding of delinquency on a charge

that in 1989, when he was fourteen years old, he raped a six

year old girl. He was placed on probation for that offense.

While on probation, Doe sexually assaulted two nine year old

girls, and in 1991, he was adjudicated delinquent on two counts

of indecent assault and battery of a child under the age of

fourteen. He was committed to DYS, where he was confined until

he reached the age of twenty-five.

In April, 2000, in anticipation of Doe's discharge from

confinement, the Commonwealth filed a petition in the Superior

Court pursuant to G. L. c. 123A, § 12 (e), seeking to have Doe

temporarily committed to the treatment center pending a probable

cause hearing on its petition that Doe be civilly committed as

an SDP. In September, 2002, a Superior Court judge determined

that there was probable cause to believe that Doe was an SDP,

and ordered that Doe undergo examination and diagnosis at the

treatment center. See G. L. c. 123A, § 13. In January, 2003, a

Superior Court jury found that Doe was an SDP, see G. L.

c. 123A, § 14, and Doe was committed to the treatment center for
 5

an indeterminate period of one day to life.

In May, 2007, Doe filed a petition under G. L. c. 123A,

§ 9, seeking discharge from the treatment center. After a trial

in July, 2010, a jury found that Doe remained an SDP. Doe filed

a second petition for discharge in August, 2010, and in

September, 2013, after two qualified examiners 1 submitted reports

opining that Doe was no longer sexually dangerous, a Superior

Court judge issued an order discharging Doe from the treatment

center. See Johnstone, petitioner, 453 Mass. 544, 553 (2009)

(if two qualified examiners opine that petitioner is not

currently sexually dangerous, Commonwealth cannot meet its

burden in proceeding under G. L. c. 123A, § 9, to establish that

petitioner remains sexually dangerous).

While these proceedings were taking place, SORB separately

considered whether Doe should be required to register as a sex

offender pursuant to G. L. c. 6, §§ 178C-178Q, and, if so, at

what level. In May, 2010, two months before the trial on Doe's

first petition for discharge, SORB notified Doe of its

recommendation that he be classified as a level three sex

offender. See G. L. c. 6, § 178L. Doe sought administrative

review of SORB's recommended classification and, in July, 2010,

1
A qualified examiner is a licensed psychiatrist or
psychologist who "has had two years of experience with diagnosis
or treatment of sexually aggressive offenders and is designated
by the commissioner of correction." G. L. c. 123A, § 1.
 6

two weeks before trial on his petition for discharge, but more

than three years prior to his eventual discharge, an evidentiary

hearing was conducted by a SORB hearing examiner. See G. L.

c. 6, § 178L (2). In January, 2011, the hearing examiner issued

a decision finally classifying Doe and ordering that he register

as a level three sex offender. Doe sought review of the final

classification order in the Superior Court, pursuant to G. L.

c. 30A, § 14 (7), and G. L. c. 6, § 178M. A Superior Court

judge affirmed, and Doe appealed. We granted Doe's application

for direct appellate review.

Discussion. 1. Retroactive application. Unless relieved

of the obligation to do so, 2 every sex offender in the

Commonwealth must register with SORB. See G. L. c. 6, § 178E

(a)-(c), (g)-(h), (l); Roe v. Attorney Gen., 434 Mass. 418, 424

(2001). Doe falls within the statutory definition of "sex

offender," which includes a person "who has been adjudicated as

a youthful offender or as a delinquent juvenile by reason of a

sex offense . . . on or after August 1, 1981." See G. L. c. 6,

§ 178C. General Laws c. 6, § 178K (2) (d), prohibits SORB from

exercising its power to relieve an offender from registration in

specified circumstances, including "if a sex offender has been

2
As discussed infra, in limited circumstances, certain sex
offenders may be relieved of the obligation to register, either
by the sentencing judge or by the Sex Offender Registry Board
(SORB). See G. L. c. 6, §§ 178E (e), (f), 178K (2) (d).
 7

determined to be a sexually violent predator," or "has been

convicted of a sex offense involving a child or a sexually

violent offense, and such offender has not already registered

pursuant to this chapter for at least ten years."

Doe contends that the order to register as a level three

sex offender, pursuant to G. L. c. 6, §§ 178C-178Q, was based

solely on his juvenile adjudications in 1990 and 1991, which

predated the enactment of the registration statute in 1996. 3 As

such, Doe maintains, the sex offender registration statute

operates retroactively in effect, and is unconstitutional as

applied to him. 4 In considering Doe's retroactivity claim, we

apply the "new legal consequences" test. See Moe v. Sex

Offender Registry Bd., 467 Mass. 598, 607 (2014). A "statute is

3
The sex offender registration statute, G. L. c. 6,
§§ 178C-178Q, inserted by St. 1996, c. 239, § 1, was rewritten
in 1999, see St. 1999, c. 74, § 2, and amended several times
thereafter. The version of the statute applicable here appears
in St. 1999, c. 74, § 2, as amended through St. 2010, c. 267.
4
Doe also argues, relying in part on Doe, Sex Offender
Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass.
780, 786 (2008), that the requirement that he register as a
level three offender for offenses committed while he was a
juvenile, despite its stated regulatory purpose, is punitive as
to him, and therefore in violation of constitutional
prohibitions against ex post facto punishments and double
jeopardy. This argument is unavailing. Even if the
registration statute did have a retroactive effect as to Doe,
that statute "is generally regulatory rather than punitive."
See id. at 787-788, citing Commonwealth v. Bruno, 432 Mass. 489,
499-502 (2000); Opinion of the Justices, 423 Mass. 1201, 1224-
1227 (1996). Accordingly, the prohibitions against ex post
facto punishments and double jeopardy do not apply.
 8

retroactive in effect where 'the new provision attaches new

legal consequences to events completed before its enactment.'"

Id., quoting Landgraf v. USI Film Prods., 511 U.S. 244, 269

(1994). Under this test, we examine "the degree of connection

between the operation of the new rule" (Doe's obligation to

register) "and a relevant past event" (Doe's juvenile

adjudications). See Landgraf v. USI Film Prods., supra at 268-

270.

We have concluded previously that new legal consequences

had attached, and therefore that the registration statute

applied retroactively in effect, in a case where SORB

"determin[ed] that [a sex offender] had a mandatory obligation

to register annually, solely by virtue of his prior conviction."

See Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender

Registry Bd., 450 Mass. 780, 784-785 (2008) (Doe No. 8725). In

that case, the version of the statute then in effect, see

St. 1999, c. 74, § 2, mandated that the offender register

because he had been convicted of a sexually violent offense, and

provided that, due to the nature of his conviction, the offender

could "never be excused from registration." Id. at 785, citing

G. L. c. 6, § 178K (2) (d). Because the sole basis for

requiring that the offender register was his conviction of rape

in 1979, we concluded that "the registration law attached new

legal consequences to events that occurred before its
 9

enactment," and "must be considered retroactive." Id. at 787.

We noted, however, that the registration statute would operate

prospectively if "a conviction for sexual offenses . . .

subject[s] a person only to potential registration and

classification, or even a presumption of registration, with the

ultimate registration requirement tied to an assessment (by

[SORB]) of the person's current level of dangerousness and risk

of reoffense." Id.

Here, SORB asserts that Doe's obligation to register is not

automatic, because he is eligible for relief from registration

under G. L. c. 6, § 178K (2) (d). 5 Doe's juvenile adjudications,

therefore, only made him eligible for potential classification

and registration. Moreover, the obligation to register requires

evaluation of an offender's current risk of reoffense and danger

to the community. See Doe No. 7083, 472 Mass. at . The

5
SORB states in its brief that "the [h]earing [e]xaminer
could have relieved [Doe] of his duty to register," under G. L.
c. 6, § 178K (2) (d), and Doe does not suggest that such is not
the case. We note that no provision in the registration statute
explicitly states that an offender who has been "adjudicated" of
the offenses listed in G. L. c. 6, § 178K (2) (d), is ineligible
for relief from registration. See Commonwealth v. Connor C.,
432 Mass. 635, 646 (2000) (under our long-standing jurisprudence
"an 'adjudication' that a child has violated a law generally is
not a 'conviction' of a crime"). Doe's juvenile
"adjudications," therefore, would not appear to qualify as
"convictions" precluding relief under G. L. c. 6, § 178K (2)
(d). Doe also has not been determined to be a sexually violent
predator pursuant to G. L. c. 6, § 178K (2) (c), and 803 Code
Mass. Regs. § 1.31 (2013).
 10

basis for the requirement that Doe register was not only his

1990 and 1991 juvenile adjudications; Doe's obligation to

register was based also on an evaluation of his risk to reoffend

and his danger to the community as of the date of the

evidentiary hearing in 2010. See Doe No. 8725, supra at 793

(offender entitled to hearing to determine whether he "is a

current danger to vulnerable members of our communities"). Cf.

Commonwealth v. Bruno, 432 Mass. 489, 491-492, 497-499 (2000)

(concluding that SDP act, G. L. c. 123A, did not apply

retroactively to offenders convicted of sex offenses predating

1999 amendments to act, where convictions determined only

eligibility for potential civil commitment and basis for

commitment was "current mental condition"). Accordingly, no new

legal consequences attached to Doe's juvenile adjudications, and

the registration statute applied prospectively as to him.

2. Whether the classification determination was

unsupported by substantial evidence. Review of a hearing

examiner's decision, pursuant to G. L. c. 30A, § 14, is

"confined to the record." G. L. c. 30A, § 14 (5). A reviewing

court may set aside or modify a hearing examiner's decision for

any one of the reasons listed in G. L. c. 30A, § 14 (7),

including that the decision was unsupported by substantial

evidence. "Substantial evidence" is "such evidence as a

reasonable mind might accept as adequate to support a
 11

conclusion." G. L. c. 30A, § 1 (6).

a. Effect of youth. Doe claims that his classification as

a level three sex offender is unsupported by substantial

evidence because the hearing examiner did not consider properly

the recidivism rates of juvenile offenders. 6 He asserts that

SORB's regulations reflect outdated science. In particular, Doe

points to 803 Code Mass. Regs. § 1.40(4) (2013), known as factor

4, which, when applied to a juvenile sex offender who is an

adult at the time of classification, treats a sex offense

committed by a juvenile as an aggravating factor. 7 Doe contends

6
Doe contends that, as to sex offenders who committed their
offenses while they were juveniles, the registration requirement
takes on a retributive nature where, according to Doe,
scientific studies indicate that juvenile sex offenders have
lower rates of recidivism. Doe argues that, in light of the
lower recidivism rates of juvenile sex offenders, a level three
classification undermines the rehabilitative purpose of the
juvenile justice system. Doe claims also that there is no need
to protect the public from what he asserts is his minimal risk
of reoffense. To the extent that Doe is arguing that SORB
failed to make an individualized assessment of his risk of
reoffense based on the fact that he was a juvenile when he
committed the offenses, we conclude that he did have an
individualized assessment.
7
Factor 4, "Offender's Age at First Sex Offense," a factor
indicative of an increased risk of reoffense and degree of
dangerousness, applies to Doe because he was under twenty-one
years old at the time he committed his offenses. See 803 Code
Mass. Regs. § 1.40(4) (2013). A related risk factor, however,
Factor 14, "Sex Offender was a Juvenile when He Committed the
Offense, His Response to Treatment and Subsequent Criminal
History," is not applicable as indicative of a decreased risk of
reoffense and degree of dangerousness, because Doe was more than
seventeen years old at the time of the classification hearing.
See 803 Code Mass. Regs. § 1.40(14) (2013).
 12

that viewing a juvenile offense solely as an aggravating factor

conflicts with more recent research regarding juvenile

recidivism rates that indicates that juvenile sex offenders pose

a decreased risk of reoffending.

In specific circumstances, we have concluded that a hearing

examiner erred in not considering proffered recent scientific

evidence. Where a sixty-one year old offender "presented

evidence of numerous scientific and statistical studies,

published during the last decade, that conclude that age is an

important factor in determining the risk of recidivism and that

such risk diminishes significantly as an offender ages," Doe,

Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry

Bd., 456 Mass. 612, 621 (2010), we determined that the hearing

examiner erred by not considering the proffered scientific

evidence. Id. at 622-623. Similarly, in Doe, Sex Offender

Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass.

594, 595 (2013), we held that "it was arbitrary and capricious

for the hearing examiner to classify Doe's risk of reoffense and

degree of dangerousness without considering the substantial

evidence presented at the hearing [in the form of scientific

studies] concerning the effect of gender on recidivism." Here,

however, because Doe did not raise any claim regarding recent

research on juvenile recidivism rates before the hearing
 13

examiner, and proffered no scientific studies or expert

testimony at the classification hearing, the administrative

record provides no basis on which we can conclude that the

hearing examiner's decision was unsupported by substantial

evidence. 8

Doe's argument that SORB's regulations do not reflect

current scientific knowledge concerning the recidivism rates of

juvenile offenders may be construed also as a challenge to the

general validity of SORB's regulations. 9 On this record, Doe

8
Doe will have the opportunity to present new evidence,
including scientific studies, at a new evidentiary hearing.
9
We have emphasized repeatedly that, "[w]here, as here,
scientific knowledge in a field is rapidly evolving, . . . the
applicable standards may require more frequent modification in
order to reflect accurately the current state of
knowledge" (citation omitted). Doe, Sex Offender Registry Bd.
No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 623 n.6
(2010). See Doe, Sex Offender Registry Bd. No. 68549 v. Sex
Offender Registry Bd., 470 Mass. 102, 115-116 (2014); Doe, Sex
Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd.,
466 Mass. 594, 608 (2013).

The studies on which SORB relied when promulgating factors
4 and 14, the two factors most directly addressing juvenile
offenders, are dated 1987, 1989, 1990, 1992, 1995, and 2001.
See 803 Code Mass. Regs. §§ 1.40(4), (14) (2013). SORB's
regulations, therefore, do not exhibit consideration of an
emerging consensus regarding the "mitigating qualities of
youth," which is reflected in decisions of both the United
States Supreme Court and this court. See, e.g., Diatchenko v.
District Attorney for the Suffolk Dist., 466 Mass. 655, 661
(2013), S.C., 471 Mass. 12 (2015), quoting Miller v. Alabama,
132 S. Ct. 2455, 2467 (2012). See generally J.D.B. v. North
Carolina, 131 S. Ct. 2394 (2011); Graham v. Florida, 560 U.S. 48
(2010); Roper v. Simmons, 543 U.S. 551 (2005). For a sex
offender such as Doe, SORB's regulations direct a hearing
 14

fares no better under such an analysis. "A challenge to the

validity of a general regulation 'cannot be resolved by

requesting declaratory relief in an appeal from an

administrative agency decision because judicial review is

confined to the administrative record.'" Doe, Sex Offender

Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass.

102, 114 (2014) (Doe No. 68549), quoting Doe, Sex Offender

Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass.

603, 630 (2011).

b. Hearing examiner's findings. Doe argues that two of

the hearing examiner's findings are unsupported by substantial

evidence and therefore erroneous.

Doe points first to the hearing examiner's statement that

Doe "admitted to sufficient facts to warrant a finding of

delinquency . . . to two counts of forcible rape of a child."

As Doe indicates, his admission to sufficient facts was only to

one count of forcible rape of a child, and the statement thus is

inaccurate. But the hearing examiner made only a single,

examiner to treat as an aggravating factor the fact that he
committed his offenses as a juvenile, and do not prompt the
hearing examiner to evaluate whether the "distinctive attributes
of youth" such as "immaturity, impetuosity, and failure to
appreciate risks and consequences" that contributed to his
decision to offend might no longer be present because he has
matured. See Diatchenko v. District Attorney for the Suffolk
Dist., supra at 675 (Lenk, J., concurring), quoting Miller v.
Alabama, supra at 2465.
 15

passing reference to a second count, and, when assessing Doe's

level of risk, properly considered that Doe had admitted to

sufficient facts as to only one count of forcible rape. The

hearing examiner accurately detailed the facts of Doe's prior

offenses and appropriately applied the regulatory risk factors

to the facts; the erroneous reference to a second count of rape

did not affect the hearing examiner's analysis.

Doe claims also that the hearing examiner based his finding

that Doe had a history of substance or alcohol abuse on

unreliable evidence. SORB's regulations direct a hearing

examiner to evaluate whether an offender "has a history of

substance or alcohol abuse," 803 Code Mass. Regs. § 1.40(16)

(2013). The hearing examiner considered evidence that from 1988

until 1990, as an adolescent, Doe drank six to twelve beers per

week; that from 1997 until 1999, he received substance abuse

treatment; and that, near the time of the offenses, he had used

alcohol and marijuana. Our review of a hearing examiner's

decision "does not turn on whether, faced with the same set of

facts, we would have drawn the same conclusion, . . . but only

'whether a contrary conclusion is not merely a possible but a

necessary inference.'" Doe No. 68549, 470 Mass. at 110, quoting

Goldberg v. Board of Health of Granby, 444 Mass. 627, 638

(2005). On this record, we cannot say that the hearing

examiner's determination that Doe had a history of alcohol or
 16

substance abuse was unsupported by substantial evidence.

c. Premature classification. Doe argues that his

classification was based on the hearing examiner's evaluation of

circumstances or conditions at the July, 2010, hearing that were

subject to change, and that, by the time of his release from the

treatment center in September, 2013, the classification had

become stale and materially inaccurate. We agree.

As noted, the registration statute requires that SORB base

its classification decision on an offender's risk to reoffend

and danger to the public based on information that is current

when an incarcerated or civilly committed offender reenters the

community. See Doe No. 7083, 472 Mass. at . The

circumstances supporting Doe's level three classification that

were before the hearing examiner in July, 2010, however, had

changed substantially by the time Doe was discharged in

September, 2013. For instance, in July, 2010, the hearing

examiner considered evidence that Doe had been responding well

to treatment, but determined that "it is too soon to tell

whether or not [Doe] has genuinely internalized treatment

concepts such [as] to sufficiently avoid reoffense." By 2013,

after three additional years of treatment, two qualified

examiners opined that Doe was no longer sexually dangerous, and

he was released into the community. See Doe No. 7083, supra at

("final classification must be based on an evaluation of the
 17

offender's risk of reoffense at a time reasonably close to the

actual date of discharge"); Doe, Sex Offender Registry Bd. No.

6904 v. Sex Offender Registry Bd., 82 Mass. App. Ct. 67, 78

(2012) (classification stale when based on evidence

approximately four years old at time of offender's release from

incarceration). As discussed in Doe No. 7083, supra at ,

Doe's ability to seek reclassification every three years, see

803 Code Mass. Regs. § 1.37C(1), (2) (2013), does not afford an

adequate remedy for a final classification that was stale at the

time he was released and was required to register as a level

three offender.

Conclusion. Because Doe's final classification was based

on an evaluation of his risk several years before his release

into the community, Doe is entitled to a new evidentiary hearing

at which SORB will bear the burden of establishing Doe's current

risk of reoffense and degree of dangerousness, consistent with

the procedures set forth in 803 Code Mass. Regs. §§ 1.07-1.26

(2013). See Doe No. 7083, 472 Mass. at . That hearing, at

which SORB may introduce all the evidence introduced at Doe's

first hearing, must be conducted within a reasonable time. The

matter is remanded to the Superior Court for entry of an order

of remand to SORB for further proceedings consistent with this

opinion.

So ordered.