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SJC-12447
DANIEL NOE, SEX OFFENDER REGISTRY BOARD NO. 5340 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,
Standard of proof, Burden of proof. Evidence, Sex
offender. Practice, Civil, Sex offender, Standard of
proof, Presumptions and burden of proof, Assistance of
counsel. Regulation.
Civil action commenced in the Superior Court Department on
June 27, 2014.
The case was heard by Brian A. Davis, J., on a motion for
judgment on the pleadings.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Christopher M. Bova for the defendant.
Kate A. Frame (Eric B. Tennen also present) for the
plaintiff.
William J. Kobuszewski & John C. Cratsley, pro se, amici
curiae, submitted a brief.
2
Nancy A. Dolberg, Committee for Public Counsel Services,
for Committee for Public Counsel Services, amicus curiae,
submitted a brief.
KAFKER, J. In Doe, Sex Offender Registry Bd. No. 380316 v.
Sex Offender Registry Bd., 473 Mass. 297, 298 (2015) (Doe No.
380316), we held that the Sex Offender Registry Board (board) is
constitutionally required to prove the initial classification of
a convicted sex offender under the sex offender registry law,
G. L. c. 6, §§ 178C-178Q, by clear and convincing evidence. We
are now asked to consider whether reclassification hearings
require the board to meet the same standard and burden of proof
as initial classification hearings. We conclude that they do.
We also conclude that, given the plain language of G. L. c. 6,
§ 178L (3), indigent sex offenders have a right to counsel in
such reclassification hearings.1,2
1 Months after a judge in the Superior Court heard oral
arguments in this case, the plaintiff's counsel learned that the
plaintiff had died in August, 2016, of natural causes. The Sex
Offender Registry Board (board) argued in its appellate brief
that the plaintiff's death renders this case moot. At oral
arguments before this court, however, the board eventually
conceded that it makes little sense to decline to address the
merits of this case on the basis of mootness, given the
importance of the issues involved. Further, the board has
temporarily ceased holding reclassification hearings pending the
outcome of its appeal in this case and our resolution of these
issues. Thus, "[w]e exercise our discretion to reach the merits
of [this] appeal regardless of whether the matter may currently
be moot, because the issues are significant and have been fully
briefed and it is in the public interest to do so." Doe v.
Police Comm'r of Boston, 460 Mass. 342, 343 n.3 (2011).
3
1. Background. The sex offender registry law is "an
extensive statutory registration scheme for sex offenders"
designed to "protect the public from the danger of recidivism
posed by sex offenders and to aid law enforcement officials in
protecting their communities" (quotations omitted).
Commonwealth v. Kateley, 461 Mass. 575, 576 (2012), quoting
Commonwealth v. Rosado, 450 Mass. 657, 659-660 (2008). An
individual who has been convicted of a sex offense as defined
under G. L. c. 6, § 178C, is required to register under the sex
offender registry law on release from custody, if applicable, or
on notification of his or her obligation to register. See G. L.
c. 6, § 178E (a), (c).
a. Registration and classification. Sex offenders are
subject to a two-step registration and classification process.
First, the board assesses an individual's risk of reoffense and
degree of dangerousness and prepares a recommendation as to the
appropriate classification level for the offender. See G. L.
c. 6, § 178L (1). The board has identified thirty-eight factors
to be considered in making this determination. See 803 Code
2 We acknowledge the amicus briefs submitted by volunteer
pro bono attorneys providing legal services for veterans and by
the Committee for Public Counsel Services.
4
Mass. Regs. § 1.33 (2016).3 The board's regulations recognize
that "[t]hese factors may be present to varying degrees in any
individual case. The final classification level is not based on
a cumulative analysis of the applicable factors, but rather a
qualitative analysis of the individual sex offender's history
and personal circumstances." Id.
If the sex offender objects to the board's recommendation,
he or she has the right to a de novo evidentiary hearing before
an examiner who makes a final determination as to the offender's
duty to register and the appropriate classification level. See
G. L. c. 6, § 178L (1); 803 Code Mass. Regs. § 1.04(3) (2016).
At the evidentiary hearing, the examiner must consider the
criteria that the board has identified in its regulations when
assessing an offender's risk of reoffense and degree of
dangerousness. See 803 Code Mass. Regs. § 1.04(4). The
examiner then issues a written decision and places the offender
into one of three classification levels. See 803 Code Mass.
Regs. § 1.20 (2016). The sex offender has the right to counsel
at this initial classification hearing. See G. L. c. 6,
§ 178L (1).
3 After the plaintiff moved for reclassification, the board
changed its regulatory scheme. The new regulations are numbered
differently from the ones in effect at the time of the
plaintiff's motion. To avoid confusion, we refer to the new
regulations except where noted.
5
Where "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," the sex
offender is classified as level one. G. L. c. 6,
§ 178K (2) (a). Where "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," the offender is classified as level
two. G. L. c. 6, § 178K (2) (b). Where "the risk of reoffense
is high and the degree of dangerousness posed to the public is
such that a substantial public safety interest is served by
active dissemination" of the offender's information, the
offender is classified as level three. G. L. c. 6,
§ 178K (2) (c). "Registration information for level one sex
offenders is not provided to the public, information for level
two and level three offenders is available to the public by
request or on the Internet, and information for level three
offenders may be disseminated actively to the public" (footnote
omitted). Doe v. Lynn, 472 Mass. 521, 529 (2015).
The standard of proof required to satisfy due process has
been the subject of much litigation. The sex offender registry
law calls for the board to prove the appropriateness of a sex
offender's classification by a preponderance of the evidence.
See G. L. c. 6, § 178L (2). In 1998, two years after the
6
passage of the sex offender registry law, we held that this
preponderance of the evidence standard satisfied due process
under the State and Federal Constitutions. See Doe, Sex
Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428
Mass. 90, 103-104 (1998) (Doe No. 972). However, seventeen
years later, in light of changes to the sex offender registry
law that had significantly increased the burdens on registered
offenders, and other factors such as greater Internet
dissemination of sex offender information, we determined that
the preponderance of the evidence standard no longer satisfied
due process. See Doe No. 380316, 473 Mass. at 311-312, 314.
Rather, the "extensive private interests now affected by
classification counsel in favor of requiring a higher standard
of proof," namely clear and convincing evidence, for final
classification hearings. Id. at 311-312.
b. Reclassification. Under the statutory and regulatory
scheme, a sex offender may be reclassified in one of two ways.
See Doe, Sex Offender Registry Bd. No. 326573 v. Sex Offender
Registry Bd., 477 Mass. 361, 364 (2017) (Doe No. 326573).
Pursuant to G. L. c. 6, § 178L (3),4 the board can initiate
4 General Laws c. 6, § 178L (3), provides:
"The board may, on its own initiative or upon written
request by a police department or district attorney, seek
to reclassify any registered and finally classified sex
7
reclassification proceedings "on its own initiative or upon
written request by a police department or district attorney."
Although the language of the statute allows the board to seek
higher or lower reclassification level where new information is
received "relevant to a determination of a risk of re-offense or
degree of dangerousness," G. L. c. 6, § 178L (3), the board has
promulgated regulations restricting it to seeking upward
reclassification. See 803 Code Mass. Regs. § 1.32(1) (2016).
Pursuant to G. L. c. 6, § 178L (3), the board must provide the
offender in the event that new information, which is
relevant to a determination of a risk of re-offense or
degree of dangerousness, is received. The board shall
promulgate regulations defining such new information and
establishing the procedures relative to a reclassification
hearing held for this purpose; provided that (i) the
hearing is conducted according to the standard rules of
adjudicatory procedure or other rules which the board may
promulgate, (ii) the hearing is conducted in a reasonable
time, and (iii) the sex offender is provided prompt notice
of the hearing, which includes: the new information that
led the board to seek reclassification of the offender, the
offender's right to challenge the reclassification, the
offender's right to submit to the board documentary
evidence relative to his risk of reoffense and the degree
of dangerousness posed to the public, the offender's right
to retain counsel for the hearing, and the offender's right
to have counsel appointed if the offender is indigent, as
determined by the board using the standards in [G. L.
c. 211D]. An indigent offender may also apply for and the
board may grant payment of fees for an expert witness in
any case in which the board intends to rely on the
testimony or report of an expert witness prepared
specifically for the purposes of the reclassification
proceeding. The failure of the offender to attend the
hearing may result in a waiver of the offender's rights and
the board's recommended reclassification becoming final."
8
offender with the information that led the board to seek
reclassification. The offender has the right to challenge the
reclassification, may submit "documentary evidence relative to
his risk of reoffense and the degree of dangerousness posed to
the public," and has the right to counsel. Id. Board-initiated
reclassifications must follow the same procedures used for
original classifications. See 803 Code Mass. Regs. § 1.32(4).
The board's regulations specify a separate procedure for
sex offenders seeking downward reclassification. See 803 Code
Mass. Regs. § 1.31 (2016). An individual classified as a level
two or level three sex offender may seek reclassification based
on a decreased risk of reoffense or degree of dangerousness.
See 803 Code Mass. Regs. § 1.31(1). Offenders are eligible to
seek downward reclassification no sooner than three years after
the date of their final classification. 803 Code Mass. Regs.
§ 1.31(2)(a). An offender who has committed a new sex offense
since his or her original classification, however, must be
offense free for at least ten years before he or she can seek
reclassification. Id. Offenders who have experienced "a
material change in circumstances related to a medical condition"
may file a motion for reclassification less than three years
9
after the date of their prior classification. 803 Code Mass.
Regs. § 1.31(3).5
The procedure for offender-initiated downward
reclassifications is as follows. The offender must file a
motion detailing why reclassification is appropriate and include
supporting documentation. 803 Code Mass. Regs. § 1.31(2)(b),
(c). The offender must also supply "an affidavit that provides
an overview of his or her behavior and lifestyle during the
three years prior to the filing of his motion for
reclassification." 803 Code Mass. Regs. § 1.31(2)(d). The
board bases its decision on new and updated information but may
also consider information the board used in prior classification
decisions, including any prior written decisions by the board.
803 Code Mass. Regs. § 1.31(5)(e).
The sex offender registry law does not specify the standard
and burden of proof for reclassification hearings. See G. L.
c. 6, § 178L (3). However, the board's regulations dictate that
for offender-initiated motions for reclassification, the burden
Under the 2013 regulations, offenders were required to
5
demonstrate that they had remained offense free for more than
five continuous years. 803 Code Mass. Regs. § 1.37C(2)(d)
(2013). The current regulations do not contain this
requirement, but permit the board to summarily deny the
offender's reclassification request if he or she has not
remained offense free for more than three continuous years since
his or her last classification. See 803 Code Mass. Regs.
§ 1.31(2)(e) (2016).
10
is on the offender to prove why downward reclassification is
appropriate by clear and convincing evidence. 803 Code Mass.
Regs. § 1.31(2)(c).
c. Noe's reclassification. The plaintiff, Noe, was
convicted of open and gross lewdness and lascivious behavior on
five separate occasions between 1990 and 2004.6 In each
incident, the plaintiff exposed himself and masturbated in
public. None of these incidents involved physical contact with
the plaintiff's victims. Noe was classified as a level three
sex offender in January, 2007. In the six years following his
final classification, Noe lived in the community without any
further sexual reoffenses. In January, 2013, he filed a request
for downward reclassification and was granted a hearing before
the board. In his letter to the board, Noe indicated:
"I am writing this letter to request a reduction in my
current status as level [three] sex offender. First, I
would like to accept full responsibility for my poor
choices and behavior. I have a long history of criminal
activity which has had an impact on innocent people. I
express sincere regret for affecting others in a negative
way and have made major changes in my life. I admit to
having a history of alcoholism and drug addiction. I
believe that my past behavior is directly related to my
substance abuse issues. I am currently sober and have not
engaged in any such conduct in [seven] years. I am
currently homeless and am finding it extremely difficult to
put my life back together. There are many people who are
aware of my history and status as a level [three] sex
offender which make it hard to move on in my life. This
6 Apart from these sex offenses, Noe also had an extensive
criminal record.
11
public information creates a barrier for me to gain
employment and become a productive member of society. I am
truly a changed man and would like an opportunity to start
my life over again. Please take this request into
consideration."
Noe appeared, pro se, before a panel of three examiners.
Noe did not offer new evidence or call any witnesses. The board
introduced only an updated copy of Noe's board of probation
record and correspondences to the Boston police indicating that
he was seeking reclassification. During the hearing, Noe
expressed confusion about the kind of documentation he needed to
provide to the examiners.7 In May, 2014, the board issued a
decision denying Noe's request for reclassification. Although
the board acknowledged that Noe "has remained offense free to
the community for approximately seven years" and "has maintained
sobriety for approximately five and one half years," the
majority of the board concluded by a preponderance of the
evidence8 that Noe "remains a high risk of reoffense and a high
7 At the hearing, Noe explained that he had been unable to
work since 2006 or 2007, due to medical issues. When the
hearing examiners indicated that Noe needed to provide the board
with medical documentation, he responded that he "didn't know
[he] needed medicals." Although he indicated a willingness at
the hearing to provide medical documentation, the board was
never furnished with those records.
8 At the time of Noe's reclassification hearing, the board's
regulations articulated a preponderance of the evidence standard
for reclassification hearings. See 803 Code Mass. Regs.
§ 1.37C(2)(c) (2013). The regulations were amended in 2016 to
12
degree of dangerousness." Accordingly, Noe's request for
reclassification was denied and he was ordered to continue to
register as a level three sex offender.
Noe sought judicial review of the board's decision in the
Superior Court, pursuant to G. L. c. 30A, § 14, and G. L. c. 6,
§ 178M. He moved for judgment on the pleadings under Mass. R.
Civ. P. 12 (c), 365 Mass. 754 (1974). While that motion was
pending, Noe amended his complaint to include claims for
declaratory relief under G. L. c. 231A, § 1, challenging the
board's procedures for failing to provide a right to counsel in
the reclassification hearing and placing the burden of proof in
reclassification on the offender by clear and convincing
evidence. The Superior Court judge declared that the board's
regulations, which place the burden of proof on the offender
seeking reclassification, violate the offender's right to due
process under the Fourteenth Amendment to the Federal
Constitution and art. 12 of the Massachusetts Declaration of
Rights. The judge further declared that the board's failure,
through its regulations and procedures, to provide counsel for
indigent offenders who seek reclassification violates G. L.
c. 6, § 178L (3). The board appealed, and we transferred the
case to this court on our own motion.
increase the quantum of proof to clear and convincing evidence.
See 803 Code Mass. Regs. § 1.31(2)(c) (2016).
13
2. Discussion. "We review de novo a judge's order
allowing a motion for judgment on the pleadings under Mass. R.
Civ. P. 12 (c)." Merriam v. Demoulas Super Mkts., Inc., 464
Mass. 721, 726 (2013). A court may rule on a motion for
judgment on the pleadings seeking declarations of the parties'
rights if there are no material issues of fact left to be
determined. See id.
a. Standard and burden of proof in reclassification
proceedings. The board's regulations place the burden of proof
on the offender to prove by clear and convincing evidence that
downward reclassification is appropriate. 803 Code Mass. Regs.
§ 1.31(2)(c). To determine whether this standard and burden of
proof violate due process, we apply the familiar test outlined
in Mathews v. Eldridge, 424 U.S. 319 (1976), which requires that
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 No. 972, 428 Mass.
at 100.
i. Private interests. The private interests at stake in
sex offender registration and classification are significant.
The "liberty and privacy interests" implicated include
"stringent affirmative reporting requirements," "stigma and
legal restrictions that will make it harder . . . to find stable
14
housing or employment," and possible threats of physical harm.
Doe No. 380316, 473 Mass. at 311. The effects of registration
and classification are "continuing, intrusive, and humiliating."
Doe v. Attorney Gen., 426 Mass. 136, 149 (1997) (Fried, J.,
concurring). Dissemination of a sex offender's registry
information and photograph on the Internet also widely
publicizes the offender's registration and classification
status, magnifying their effects. See Doe, Sex Offender
Registry Bd. No. 7083 v. Sex Offender Registry Bd., 472 Mass.
475, 485 (2015) (Doe No. 7083).
The board asserts nonetheless that reclassification
implicates lesser private interests because the offender has
already been classified and registered, and dissemination of the
offender's information has occurred and is likely to remain on
the Internet even after the offender's reclassification. See,
e.g., Moe v. Sex Offender Registry Bd., 467 Mass. 598, 604, 606
(2014) ("Once [level two9 and level three sex offenders']
registry information is published on [the board's] Web site,
there is a substantial likelihood that they would soon be
identified on private Web sites listing sex offenders, and that
the subsequent removal of their names from [the board's] Web
9 Only level two sex offenders who were classified as such
after July 12, 2013, may have their information published on the
board's Web site. See Moe v. Sex Offender Registry Bd., 467
Mass. 598, 616 (2014).
15
site would not result in the removal of their names from these
private Web sites").
We recognize that an offender who has previously been
registered is not in the same position as someone who has never
offended or never been registered. The decision to reclassify
an offender is not "written on a clean slate." Doe No. 326573,
477 Mass. at 367. That being said, the different classification
levels have different consequences and entail different public
perceptions. These consequences include, but are not limited
to, the required public Internet dissemination for level two and
three offenders. See G. L. c. 6, 178D; Doe No. 380316, 473
Mass. at 307. The difference between level three and level two
classifications can also be particularly significant, especially
for aging offenders. For example, a level three sex offender
may not reside in a nursing home. G. L. c. 6, § 178K (2) (e).
After an offender's initial classification, as he or she grows
older this particular consequence has an even more significant
impact on the offender's interests. In sum, the private
interests at stake in reclassification remain significant.
ii. Risk of erroneous deprivation. Under Mathews, 424
U.S. at 334-335, we must also examine "the risk of an erroneous
deprivation of [these private interests] through the procedures
used, and the probable value, if any, of additional or
substitute procedural safeguards." In Doe No. 380316, 473 Mass.
16
at 312, we concluded that imposing a clear and convincing burden
of proof on the government was necessary to address "the actual
risk of an erroneous deprivation of a registered sex offender's
privacy or liberty" in an original classification decision. We
emphasized the difficulty in determining such risk and stated
that offenders "should not be asked to share equally with
society the risk of error." Id. at 313, quoting Addington v.
Texas, 441 U.S. 418, 427 (1979).
The board contends, however, that reclassifications are
different. The offender has already been properly classified.
The board argues, therefore, that it is up to offenders to prove
by clear and convincing evidence changed circumstances in their
lives that indicate a diminished risk of reoffense or degree of
dangerousness. We conclude that the risk of erroneous
classification and deprivation remains in reclassification
proceedings and that that risk must continue to be borne by the
government. Therefore, the ultimate burden of proof should
remain with the board to prove by clear and convincing evidence
that the classification is current and correct. We further
conclude, however, that there is a burden of production on the
offender seeking reclassification to demonstrate some change in
his or her circumstances, as he or she is in the best position
to provide such evidence.
17
The board's regulations require a significant passage of
time and thus a meaningful waiting period before an offender can
request a reclassification. Such requests cannot be made less
than three years after the initial classification, or less than
ten years afterward if another offense has occurred since the
initial classification. See 803 Code Mass. Regs. § 1.31(2)(a).
The reclassification regulations "recognize[] that the risk to
reoffend and the degree of dangerousness posed by a sex offender
may decrease over time." 803 Code Mass. Regs. § 1.31(1). See
803 Code Mass. Regs. § 1.33(29), (30), (31) (recognizing that
likelihood of recidivism and dangerousness decreases with
additional offense-free time in community, advanced age, and
debilitating illness). Accordingly, the purpose of holding
reclassification hearings is to assess an offender's current
risk of reoffense and degree of dangerousness, taking into
account the significant passage of time and the new information
provided by the offender. Doe No. 7083, 472 Mass. at 483.
Reclassification is therefore not, as the board would seem
to suggest, a mere continuation of the original classification
wherein the board's determination of the proper level is
reviewed or verified. Procedural safeguards for
reclassification must protect against the risk that an offender
will be erroneously denied a downward reclassification, despite
posing a decreased risk of reoffense or degree of dangerousness.
18
Placing the burden of proof on the board by clear and convincing
evidence, as is necessary in original classification hearings,
would appropriately reduce the risk of erroneous deprivation.
See Doe No. 380316, 473 Mass. at 311-314. Importantly, it would
make very little sense to flip the burden of proof from clear
and convincing evidence on the board in original classification
proceedings to clear and convincing evidence on the offender in
reclassification proceedings.10
Although the ultimate burden of proof by clear and
convincing evidence remains on the board, offenders do have a
burden of production to show a change in circumstances
10The board's reliance on Commonwealth v. Ronald R., 450
Mass. 262, 268-269 (2007), in support of placing the burden on
the offender is misplaced. As we stated in Ronald R., supra at
268, "[G. L. c. 6, § 178E (f)], benefits a limited class of sex
offenders by granting them the opportunity to avoid
registration." This is the exception and not the rule, as
"there is a presumption that sex offenders must register." Id.
at 264. Section 178E (f) also requires the unusual
determination that the offender does not pose a risk. We held
that the "Legislature's use of the word 'not' suggests that the
burden is on the sex offender because as a practical matter he
is in the best position to bring forth evidence demonstrating
that he does not pose a risk of reoffense." Id. at 269.
Finally, if the exception is found not to apply and the offender
is required to register, the burden of proof is thereafter
imposed on the government to establish the appropriate
classification level. See id. at 264-265. In these
circumstances, where an offender seeks to avoid registration
altogether, we held: "'A person who seeks relief under [this]
statute bears the burden of proving that his case falls within
its terms,' especially where [the] statute already protects due
process rights." Id. at 268, quoting Andrews, petitioner, 449
Mass. 587, 590 (2007).
19
indicating a decreased risk of reoffense or degree of
dangerousness. See G. L. c. 6, § 178L (3). Combining the
burden of proof on the board with the burden of production on
the offender seeking reclassification further minimizes the risk
of error. Offenders are in the best position to provide such
information and thus have a duty to do so if they seek a
downward reclassification.
"The 'burden of production' refers to 'a party's obligation
to come forward with evidence to support its claim.'" Bulwer v.
Mount Auburn Hosp., 473 Mass. 672, 681 n.7 (2016), quoting
Director, Office of Workers' Compensation Programs, Dep't of
Labor v. Greenwich Collieries, 512 U.S. 267, 272 (1994). To
satisfy the burden of production, an offender "must present some
credible evidence that circumstances have changed," such that
his or her risk of reoffense or degree of dangerousness has
decreased. Care & Protection of Erin, 443 Mass. 567, 572
(2005). Once the offender has satisfied this burden of
production, the board has the ultimate burden to prove, by clear
and convincing evidence, the appropriateness of the offender's
existing classification. Imposing this burden of production and
burden of proof is constitutionally necessary to prevent an
undue risk of erroneous classification. See Doe No. 380316, 473
Mass. at 311-314.
20
iii. Government interests. Finally, we assess the
government interests involved. Mathews, 424 U.S. at 335.
Registration requirements provide law enforcement with important
information about potentially dangerous individuals. See Doe,
Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd.,
450 Mass. 780, 789-790 (2008), quoting St. 1999, c. 74, § 1
("the registration of sex offenders is a proper exercise of
police powers 'regulating present and ongoing conduct, which
will provide law enforcement with additional information
critical to preventing sexual victimization'"). As the
Legislature explained in passing the 1999 iteration of the sex
offender registry law, "the danger of recidivism posed by sex
offenders, especially sexually violent offenders who commit
predatory acts characterized by repetitive and compulsive
behavior, [is] grave and . . . the protection of the public from
these sex offenders is of paramount interest to the government."
St. 1999, c. 74, § 1. That interest is best served, however, by
ensuring that the classification of each individual offender is
accurate. See Soe, Sex Offender Registry Bd. No. 252997 v. Sex
Offender Registry Bd., 466 Mass. 381, 391 (2013) (Soe No.
252997).
The government interest in accurate classifications applies
equally to reclassifications and to original classifications.
Indeed, all of the interests at stake in the classification and
21
reclassifications of sex offenders depend on accuracy in the
classification process. We have repeatedly recognized the
importance of ensuring such accurate classifications. See Doe
No. 380316, 473 Mass. at 314 (interest in ensuring notification
and classification system is fair and accurate); Soe No. 252997,
466 Mass. at 391 ("both the public and a sex offender have a
substantial interest in assuring the accuracy of the offender's
classification"); Roe v. Attorney Gen., 434 Mass. 418, 430
(2001) ("It is in everyone's best interests -- including the
best interests of sex offenders themselves -- that the board
work from accurate, up to date, and thorough information"). See
also Doe No. 972, 428 Mass. at 107 (Marshall, J., concurring in
part and dissenting in part) ("The State has no interest in
making erroneous classifications and implementing overbroad
registration and notifications"). The overclassification of sex
offenders frustrates the governmental interests in registration
because it "both distracts the public's attention from those
offenders who pose a real risk of reoffense, and strains law
enforcement resources." Doe No. 380316, supra at 313-314.
iv. Balancing. In balancing the Mathews factors, we
therefore recognize that reclassifications are different from
original classifications, but there remain important private
interests at stake in reclassifications, as the different levels
impose significantly different consequences for offenders. We
22
also note that in downward reclassification proceedings the
offender is in the best position to know whether changed
circumstances exist that justify reclassification and is also in
the best position to bring such evidence forward, and thus has a
burden of production to do so if he or she wants to be
reclassified downward.
We further recognize that in reclassifications, as in
original classifications, there remains an actual risk of
misclassification due to the passage of time and changed
circumstances. Given the difficulties of accurate
classification, such classification is best achieved through
imposing a clear and convincing evidence standard. See Doe No.
380316, 473 Mass. at 314. We also conclude that the risk of
misclassification must be borne by the government, not the
offender. See id. at 313. Consequently, once the offender has
met his or her burden of production in downward reclassification
proceedings, due process requires that the board be required to
prove the appropriateness of the offender's current
classification by clear and convincing evidence. If the board
fails to satisfy this burden of proof, the offender must be
reclassified to a lower level.11
11We note, however, that if a level three offender seeks
reclassification to level one and the board fails to prove by
clear and convincing evidence that the offender should remain
23
Our balancing also recognizes that the government has
important public protection interests at stake in
reclassifications as well as original classifications, as many
of these offenders remain public safety concerns, but those
interests are best served by an accurate classification.
Overclassification, as explained above, strains public safety
resources.
Our balancing of the Mathews factors therefore results in
a burden of production being imposed on the offender in downward
reclassification proceedings to provide some evidence of changed
circumstances, but requires the board to prove by clear and
convincing evidence that the offender is properly classified
once such evidence is provided. We conclude that such process,
and the accompanying burdens of production and proof, properly
balance the Mathews factors.
b. Right to counsel in reclassification proceedings. We
must next determine whether the board's regulations violate
G. L. c. 6, § 178L (3), insofar as they fail to provide the
right to counsel for indigent offenders seeking
reclassification. We review the validity of regulations
classified at level three, the offender will not necessarily be
reclassified at level one. Rather, if the board has presented
evidence sufficient to show by clear and convincing evidence
that the offender should at least be classified as level two,
the offender's classification will only be reclassified downward
to level two, not level one.
24
promulgated by the board "guided by the established principle
that '[r]egulations are not to be declared void unless their
provisions cannot by any reasonable construction be interpreted
in harmony with the legislative mandate.'" Smith v.
Commissioner of Transitional Assistance, 431 Mass. 638, 646
(2000), quoting Dowell v. Commissioner of Transitional
Assistance, 424 Mass. 610, 613 (1997). We may reject, however,
an "agency regulation that is contrary to the plain language of
the statute and its underlying purpose." Massachusetts
Teachers' Retirement Sys. v. Contributory Retirement Appeal Bd.,
466 Mass. 292, 301 (2013), quoting Duarte v. Commissioner of
Revenue, 451 Mass. 399, 408 (2008).
The board urges us to interpret G. L. c. 6, § 178L (3), as
providing the right to counsel in "board-initiated"
reclassifications but not in "offender-initiated"
reclassifications. This proposed distinction has no basis in
the text of the statute. Section 178L does not distinguish
between board-initiated reclassifications and offender-initiated
reclassifications. Rather, it refers only to "reclassification
hearing[s]" held for the purpose of reclassifying offenders "in
the event that new information, which is relevant to a
determination of a risk of re-offense or degree of
dangerousness, is received." G. L. c. 6, § 178L (3). The
statute also makes no distinction between upward
25
reclassifications and downward reclassifications. It simply
provides that the board may seek to reclassify "any registered
and finally classified sex offender" when it receives new
information. Id. In all such hearings, the offender is
guaranteed the right to counsel. Id.
This understanding of § 178L (3) is also in accord with the
over-all statutory scheme. As discussed above, the board's
interests depend greatly on the classification being accurate
and current. Therefore, a key purpose of the reclassification
process is ensuring that the offender is accurately classified,
based on current information. Indeed, reclassification is an
essential component of the registration scheme because it is the
only means through which an offender can obtain a lower
classification level where the circumstances warrant it.
Without such a provision, an offender could face indefinite
registration and classification at his or her original
classification level, regardless of any subsequent changes in
circumstance or rehabilitation.
Even under the board's own interpretation of the statute,
the sex offender registry law provides sex offenders with the
right to counsel at the initial classification hearing, at
board-initiated upward reclassification hearings, and at a
termination hearing. Given that the sex offender registry law
provides the right to counsel at each of these other hearings,
26
it makes little sense to interpret § 178L (3) as depriving
indigent offenders of the right to counsel exclusively in the
context of offender-initiated reclassification hearings,
particularly in the absence of any statutory language to that
effect.
By contrast, providing indigent offenders with a right to
counsel in offender-initiated reclassification hearings
logically comports with the complex nature of the
reclassification process. The regulations require that the
offender provide the board with an affidavit, a detailed motion,
and documentation that addresses specific topics. See 803 Code
Mass. Regs. § 1.31(2)(b),(c),(d). The board determines the
offender's risk of reoffense and degree of dangerousness using
risk factors derived from sophisticated scientific research.
See 803 Code Mass. Regs. § 1.33. Doe, Sex Offender Registry Bd.
No. 151564 v. Sex Offender Registry Bd., 85 Mass. App. Ct. 1, 9-
10 (2014) (scientific and statistical studies on risk factors
are "technical and complex," and expert testimony is important
for proper interpretation and understanding). The offender is
expected to present evidence to the board, whether through
witness testimony or documentary evidence, that is probative of
these factors.
Noe's hearing before the board illustrates how difficult it
can be for indigent offenders to navigate the reclassification
27
process without counsel. At his hearing, Noe introduced no
evidence and called no witnesses, other than himself. He
appeared confused at times and wanted to address topics beyond
the scope of the hearing. He spoke at length about his guilty
pleas and the underlying facts that led to his duty to register
and his classification as a level three sex offender. Noe also
testified that he had injuries to his back and shoulders that
were significant enough to keep him from working but failed to
provide any documentation of the injury even after the hearing
examiners requested it. This may have been significant in the
board's determination. See G. L. c. 6, § 178K (1) (d) (evidence
of physical condition that would minimize risk of reoffense is
factor to be considered in risk of reoffense); 803 Code Mass.
Regs. § 1.33(31) ("the [b]oard shall give consideration to the
offender who has a physical condition that is documented by a
treating medical provider" [emphasis added]). As Noe's case
demonstrates, many, if not most, offenders are simply not
capable of adequately representing themselves when appearing
before the board. This only inhibits the ability of
reclassification proceedings to accurately classify the
offender.
Recognizing the importance and complexity of this process,
the Legislature has provided a statutory right to counsel
throughout the registration and classification process.
28
Juvenile offenders must be represented by counsel at initial
classifications as well as any subsequent reclassifications.
See G. L. c. 6, § 178L (2) ("All offenders who are juveniles at
the time of notification shall be represented by counsel at the
hearing"); G. L. c. 6, § 178L (3) (same for reclassification
hearing). Adult offenders have the right to retain counsel or
have counsel appointed if they are indigent at the original
classification hearing. G. L. c. 6, § 178L (1). General Laws
c. 6, § 178L (3), gives offenders the same right to counsel for
reclassification hearings, and G. L. c. 6, § 178M, extends that
right to offenders who seek judicial review in the Superior
Court of a classification or reclassification decision by the
board. The board does not contest the fact that the Legislature
gave offenders the right to counsel at each of these points, but
nevertheless argues that the right to counsel is neither
provided for nor necessary at offender-initiated
reclassification hearings. We conclude that such an
interpretation frustrates the underlying purpose of the
reclassification proceeding and is not supported by the text of
the statute.
Thus, the board's regulations, insofar as they fail to
provide offenders with the right to counsel at reclassification
hearings, are in clear conflict with both the text and the
purpose of G. L. c. 6, § 178L. See Duarte, 451 Mass. at 411.
29
We therefore hold that the board's regulations violate G. L.
c. 6, § 178L (3), insofar as they fail to provide the right to
counsel for indigent offenders seeking reclassification.12
3. Conclusion. The decision of the Superior Court judge
vacating the board's reclassification of Noe as a level three
sex offender is affirmed.
Judgment affirmed.
12Because we conclude that indigent offenders have a
statutory right to counsel at reclassification hearings, we need
not address whether there is also a constitutional right to
counsel at such hearings.