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19-P-1063 Appeals Court
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 6969 vs. SEX
OFFENDER REGISTRY BOARD.
No. 19-P-1063.
Plymouth. December 23, 2020. – May 10, 2021.
Present: Rubin, Neyman, & Ditkoff, JJ.
Sex Offender. Sex Offender Registration and Community
Notification Act. Administrative Law, Hearing, Rehearing,
Proceedings before agency, Adjudicatory proceeding,
Judicial review, Agency's authority. Due Process of Law,
Sex offender, Hearing, Administrative hearing, Assistance
of counsel. Practice, Civil, Sex offender, Assistance of
counsel, Self-representation. Jurisdiction, Sex offender,
Administrative matter. Waiver.
Civil action commenced in the Superior Court Department on
June 26, 2018.
A motion to dismiss was heard by Elaine M. Buckley, J.
Xiomara M. Hernandez for the plaintiff.
David L. Chenail for the defendant.
2
DITKOFF, J. The plaintiff, John Doe,1 appeals from the
judgment of a Superior Court judge dismissing Doe's appeal from
the decision denying his motion to vacate his classification as
a level three sex offender and to afford him a new hearing
because he was improperly denied counsel. Concluding that Doe
properly challenged this denial under G. L. c. 30A, § 14, we
vacate the judgment of dismissal. Agreeing with the Superior
Court judge's alternative holding that the Sex Offender Registry
Board (SORB) did not abuse its discretion in denying the motion
to vacate, we remand for the entry of a judgment affirming
SORB's decision.
1. Background. In May 1983, when Doe was approximately
fourteen years old, he was adjudicated delinquent by reason of
indecent assault and battery, G. L. c. 265, § 13B, for a sexual
assault on a three year old girl. In June 2000, he admitted to
sufficient facts of assault and battery, G. L. c. 265, § 13A,
arising from an incident in which he tried to make an adult
woman masturbate him. In June 2003, he pleaded guilty to open
and gross lewdness, G. L. c. 272, § 16, for entering the bedroom
of a ten year old girl and masturbating in front of her.
In September 2004, after SORB notified Doe that he had been
preliminarily classified as a level three sex offender, Doe
1 A pseudonym.
3
requested a hearing to challenge the classification, checking
the box on the form he sent to SORB indicating that he was
indigent and requesting the appointment of an attorney. Doe
also filled out the affidavit of indigency in support of his
request for an attorney. In October 2004, SORB sent a request
to Doe to provide a "copy of [his] most recent pay stub" to
substantiate his eligibility for an appointed attorney. The
form indicated, in bold text, that "[f]ailure to provide
appropriate documentation (as checked off above) will result in
denial of your request for a free appointed attorney." In
November 2004, SORB mailed Doe a second notice to provide a
"copy of [his] most recent pay stub." This form indicated, in
capital, bold, and underlined text, "failure to respond to this
notice within ten (10) days will result in a denial of your
indigency request and your case will be scheduled for hearing."
In December 2004, SORB mailed Doe a notice stating that he was
"found ineligible for appointment of counsel" because "[n]o
documentation [was] received," and informing him that a
classification hearing would be scheduled.
On April 1, 2005, Doe's classification hearing was held.
At the start of the hearing, the hearing examiner stated to Doe,
"You're here without an attorney today," to which Doe responded
in the affirmative. Recognizing that Doe, in his hearing
4
request form, "indicated [he was] indigent and . . . requested
the appointment of an attorney," the hearing examiner stated:
"[F]or whatever [sic], you went back and forth with the Sex
Offender Registry Board and you [were] determined either
not to be indigent or a lawyer was not appointed to
represent you. I don't know the circumstances why. I'm
sure it's in the file here at some point but you're here
today without an attorney. And I'm now going to give you
this waiver of counsel and authorization representative
form indicating that you read it, please, and then sign it
where it says signature, if you so wish. You don't have
to, that you had the right to have an attorney appointed to
represent you if you were indigent. You could have
retained your own attorney. You could have had an
authorized representative, friend, brother, sister,
whatever, to represent and act as an attorney on your
behalf.
"Without that being done beforehand, you're appearing
today, knowing you had a right to have a lawyer and are
going to proceed without an attorney."
Doe signed the waiver of counsel form and proceeded without the
representation of an attorney throughout the hearing. At the
conclusion of the hearing, the examiner told Doe that he had a
right to seek judicial review of the decision in the Superior
Court, and that "[a]t the back of the decision, there will also
be information about that hearing process, because that will be
another process, brand new process if you so wish."
In a decision dated May 16, 2005, SORB notified Doe that he
had been classified as a level three sex offender.2 In support
2 The decision contained a notice informing Doe, "If you are
aggrieved by this decision, you may seek judicial review
pursuant to G. L. c. 30A, s. 14 and 803 CMR 1.26 by filing a
civil action in Superior Court within thirty (30) calendar days
5
of his decision, the hearing examiner considered the nature of
Doe's sex offense as a juvenile against a vulnerable three year
old victim, the fact that that offense took place in public, his
failure to benefit from meaningful sex offender treatment as a
juvenile, his reoffenses as an adult against both an adult and a
child extrafamilial victim while on community supervision, his
lengthy criminal history, and his substance use history. He
also considered the mitigating factors that Doe was in sex
offender treatment and performing well, that his sex offense
adjudication was dated, that he was on strict community
supervision, and that he presently had a stable living
environment.
On May 23, 2018, about thirteen years later, Doe filed a
motion to vacate his final classification with an attached
affidavit. In his affidavit, Doe stated he was "under the
impression that [an attorney] would be present at the hearing to
represent [him]."3 Doe explained, "Up until now I haven't
requested a new hearing because I didn't know how to go about
of your receipt of this decision." The notice gave the details
of where to file an application for judicial review and how to
serve the application on SORB.
3 Doe stated, "The person at the hearing slid a paper in
front of me and told me to 'sign this' and we can get
started. . . . I wasn't informed it was a waiver of counsel."
He further explained that, if he had known he was not eligible
for an attorney through SORB, he would have retained one
himself.
6
doing it. I overheard someone talking about them getting their
level lowered.[4] I asked them how they did it and they said to
contact C.P.C.S. [the Committee for Public Counsel Services] and
request an attorney be appointed to represent me."
If he had an attorney present at the hearing, Doe stated,
he would have made sure the attorney called attention to the
fact that his juvenile "case [was] over twenty years old at the
time and the closest case to the hearing date is an [o]pen and
[g]ross which is a no-hands-on charge." He also alleged that
his aunt was present at the hearing to testify, but that the
"board representative" said, "[S]he can't come into the
meeting." Doe stated that, if he had had an attorney present,
the attorney could have ensured that the aunt would be allowed
to testify on his behalf, which could have lowered his
classification level. Doe did not describe the nature of the
aunt's testimony or explain why that testimony would have been
helpful to him.
A SORB hearing examiner denied Doe's motion. Doe filed a
timely complaint for judicial review in Superior Court under
G. L. c. 30A, § 14, of SORB's decision denying his motion to
vacate his final classification. In response, SORB filed a
4 Apparently, he overheard this at the Massachusetts
Treatment Center. Subsequent to the hearing, Doe pleaded guilty
to two counts of indecent assault and battery on a child, and he
was adjudicated a sexually dangerous person, G. L. c. 123A, § 1.
7
motion to dismiss for want of subject matter jurisdiction. In
the alternative, SORB requested judgment on the pleadings. A
Superior Court judge allowed SORB's motion to dismiss. In the
alternative, the judge stated that Doe did not state a valid
reason for his delay in filing the motion and that Doe was not
prejudiced by the lack of counsel at the hearing. This appeal
followed.
2. Standard of review. "To determine the validity of an
agency's decision, the reviewing court must determine whether
the decision is supported by substantial evidence." Doe, Sex
Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd.,
95 Mass. App. Ct. 85, 88 (2019) (Doe No. 523391), quoting Doe,
Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry
Bd., 88 Mass. App. Ct. 73, 76 (2015) (Doe No. 356011). "The
decision may only be set aside if the court determines that the
decision is unsupported by substantial evidence or is arbitrary
or capricious, an abuse of discretion, or not in accordance with
law." Doe No. 356011, supra, quoting Doe, Sex Offender Registry
Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787
(2006) (Doe No. 10216). In our review of an agency's decision
for an abuse of discretion, we consider "whether the decision
was reasonable." Doe, Sex Offender Registry Bd. No. 209081 v.
Sex Offender Registry Bd., 478 Mass. 454, 457 (2017) (Doe No.
209081). "An appeal from a SORB classification decision is
8
confined to the administrative record." Doe No. 523391, supra.
"We 'give due weight to the experience, technical competence,
and specialized knowledge of the agency, as well as to the
discretionary authority conferred upon it.'" Doe No. 356011,
supra, quoting Doe No. 10216, supra. "We review a judge's
consideration of an agency decision de novo." Doe No. 523391,
supra at 89.
3. Subject matter jurisdiction. Under G. L. c. 30A, § 14,
a petitioner may request judicial review of a final decision of
an agency, so long as the decision resulted from an adjudicatory
proceeding. See School Comm. of Hudson v. Board of Educ., 448
Mass. 565, 577 (2007). Accord Desrosiers v. Governor, 486 Mass.
369, 387 (2020). General Laws c. 30A, § 1, defines an
adjudicatory proceeding as "a proceeding before an agency in
which the legal rights, duties or privileges of specifically
named persons are required by constitutional right or by any
provision of the General Laws to be determined after opportunity
for an agency hearing."
SORB argues that we lack subject matter jurisdiction
because "neither the Sex Offender Registry Law nor [SORB]'s
regulations provide an offender with a mechanism to vacate a
final classification." We reject this proposition. It has long
been established that an administrative agency has the authority
to reopen an adjudicatory proceeding. "In the absence of
9
express or perceived statutory limitations, administrative
agencies possess an inherent power to reconsider their
decisions." Stowe v. Bologna, 32 Mass. App. Ct. 612, 615
(1992), S.C., 415 Mass. 20 (1993). Accord Aronson v. Brookline
Rent Control Bd., 19 Mass. App. Ct. 700, 703-706 (1985). SORB
"has inherent authority to reopen a classification proceeding
and reconsider its decision at any time, by motion of the sex
offender or by [SORB]'s own motion." Doe No. 209081, 478 Mass.
at 457. Accord Soe, Sex Offender Registry Bd. No. 252997 v. Sex
Offender Registry Bd., 466 Mass. 381, 395-396 (2013) (Soe).
Among the possible reasons that SORB may decide to reconsider an
offender's classification level, it may do so "to prevent or
mitigate a miscarriage of justice." Doe No. 209081, supra.
In Doe No. 209081, the Supreme Judicial Court reviewed
SORB's denial of a request to reopen a classification hearing
under c. 30A after six years, acknowledging that it had
jurisdiction to decide whether SORB abused its discretion in
declining to reopen the hearing, but not "to review the
classification decision itself." Doe No. 209081, 478 Mass. at
455 n.1. Similarly, in Soe, 466 Mass. at 394-396, the Supreme
Judicial Court held that SORB had the inherent authority,
despite the absence of a statute or regulation permitting
consideration of such a motion, to reopen a classification
proceeding to prevent or mitigate a miscarriage of justice.
10
Accordingly, SORB had the legal authority to reopen Doe's
classification proceeding to mitigate a miscarriage of justice,
which could in proper circumstances arise from the mishandling
of the appointment of counsel.
SORB's denial of Doe's motion to vacate his final
classification was a decision in an adjudicatory proceeding
within the meaning of G. L. c. 30A, § 14. The gravamen of Doe's
motion was that his classification was improper and that SORB
was required, as a matter of due process, to provide him with an
agency hearing at which he would be represented by counsel to
determine his proper classification. It would be a strange
reading of G. L. c. 30A, § 14, to conclude that it allows an
agency, merely by wrongly denying a person an agency hearing, to
immunize its decision from judicial review. Like the Supreme
Judicial Court in Doe No. 209081, 478 Mass. at 457 & n.6, we do
not read the statute that way. Accordingly, review of the
denial of Doe's motion to reopen the classification hearing is
proper under G. L. c. 30A, § 14.
The case relied upon by SORB, Hoffer v. Board of
Registration in Med., 461 Mass. 451, 454-456 (2012), is not to
the contrary. There, id. at 451, the Supreme Judicial Court
considered whether the denial of a physician's petition to
reinstate her medical license was an adjudicatory proceeding for
the purposes of judicial review under G. L. c. 30A, § 14. The
11
court noted that there is "no statute that would have required
the board to grant [the plaintiff] a hearing on her petition for
reinstatement," and that she did not have a "sufficiently
certain expectancy in the reinstatement of her medical license
that the denial of her petition constituted a deprivation of a
constitutionally protected property interest." Hoffer, supra at
454, 455-456. Accordingly, because she had "neither a statutory
nor a constitutional right to a hearing on her petition for
reinstatement, the board's order was not the result of an
'adjudicatory proceeding.'" Id. at 456.5 Nothing in Hoffer
suggested that the denial of a motion to reopen the decision to
indefinitely suspend the physician's license would not have been
reviewable.
We repeat what the Supreme Judicial Court stated three
years ago -- review of a decision denying a motion to reopen a
sex offender's classification "should be resolved through a
motion for judgment on the pleadings rather than a motion to
dismiss the plaintiff's claim." Doe No. 209081, 478 Mass. at
457 n.6. Accordingly, the judge erred in allowing SORB's motion
to dismiss.
4. Denial of the motion to vacate. "[I]n general,
administrative agencies have broad discretion over procedural
5 The court nonetheless held that review was possible by
certiorari. Hoffer, 461 Mass. at 456-458.
12
aspects of matters before them." Doe No. 209081, 478 Mass. at
457, quoting Zachs v. Department of Pub. Utils., 406 Mass. 217,
227 (1989). "An agency's inherent power to reopen proceedings
'must be sparingly used if administrative decisions are to have
resolving force on which persons can rely.'" Doe No. 209081,
supra at 457-458, quoting Soe, 466 Mass. at 395. SORB should
weigh several factors in consideration of a motion to reopen a
classification hearing, including "the advantages of preserving
finality, the desire for stability, the degree of haste or care
in making the first decision, timeliness, and the specific
equities involved." Doe No. 209081, supra at 458. The agency
must also consider "the specific context of the circumstances
presented and statutory scheme involved." Id.
In Doe 209081, 478 Mass. at 458, the Supreme Judicial Court
determined that SORB did not abuse its discretion in denying the
offender's petition to reopen his classification hearing. The
court there explained that, "although it [was] apparent that
[SORB] failed to ensure that the [offender] knowingly and
voluntarily waived his right to be represented by counsel at his
classification hearing, the [offender] failed to articulate in
any manner how he was prejudiced by the error." Id.
Here, Doe's affidavit fails to articulate how he was
prejudiced. Doe stated that, if an attorney were present, he or
she could have brought to the examiner's attention the facts
13
that Doe's juvenile case was more than twenty years old and that
his latest offense, open and gross lewdness, was a no-contact
offense. In his written decision, however, the hearing examiner
explicitly considered the fact that Doe's juvenile case was
dated and described the open and gross lewdness charge in a
manner that makes it evident that the examiner was aware that it
was a no-contact offense.
Doe also stated that, if he had had an attorney, his aunt
would have testified on his behalf if she were allowed to
participate at the hearing. At the hearing, however, the
hearing examiner asked Doe if he had any witnesses that he
wanted to call. Doe responded, "No, I have a family member that
brought me up here." Doe further stated, "The person that I had
as a witness in the open and gross lewdness case, I couldn't get
ahold of him . . . . He's a counselor." Doe also mentioned in
the hearing that he "had a hard enough time getting [his] aunt
to come up here, to take a day off from work to pick [him] up
here." From the record, it appears that Doe had an opportunity
to call his aunt as a witness if he chose to do so.6
Furthermore, Doe presented no indication what his aunt's
6 In his affidavit, Doe stated that he was told by the
"board representative," after he stated that his aunt was there
to testify, that she could not come into the hearing.
Nonetheless, he did not ask for his aunt to testify on the
record during the hearing when presented with the opportunity to
call a witness.
14
testimony would have been and why it may have been helpful to
him. See Commonwealth v. Ortega, 441 Mass. 170, 178 (2004)
(ineffective assistance of counsel claim for failure to call
witnesses unsuccessful as "defendant failed to show that the
prospective witnesses' testimony would have contributed
materially to his defense"); Commonwealth v. Collins, 36 Mass.
App. Ct. 25, 30 (1994) (without affidavits from prospective
witnesses, motion judge unable to determine "whether their
testimony would likely have made a material difference").
Notwithstanding the fact that Doe filed an affidavit in support
of his motion, he failed to "mention . . . specific facts or
mitigating circumstances that, if represented by counsel, he
would place before [SORB] at a reopened hearing that could lead
it to reconsider its decision" (emphasis added). Doe No.
209081, 478 Mass. at 459.7
We also observe, as did the Supreme Judicial Court in Doe
7
No. 209081, 478 Mass. at 459, that Doe can petition for
reclassification under 803 Code Mass. Regs. § 1.31(2)(a) (2016).
Indeed, this alternative remedy provides more heft than it did
in Doe No. 209081 because now the burden of proof in a
reclassification hearing lies with SORB, not the offender. See
Noe, Sex Offender Registry Bd. No. 5340 v. Sex Offender Registry
Bd., 480 Mass. 195, 207 (2018). Although Doe must show changed
circumstances to obtain a reclassification hearing, we are
informed by SORB that the bar for showing changed circumstances
is "very low" and that the mere passage of time generally
qualifies. Indeed, SORB in its brief concedes that Doe is now
entitled to such a hearing.
15
Finally, it bears mentioning that our decision in no way
approves of the lax procedures utilized in 2005. "[T]he board
is expected to follow its own regulations," Doe No. 209081, 478
Mass. at 460, and 803 Code Mass. Regs. § 1.09(5) (2016) provides
that, if the offender decides to represent himself or herself at
the classification hearing, the examiner must ensure "that he or
she has been informed of his or her right to have representation
and that he or she has knowingly and voluntarily waived that
right." In 2017, the Supreme Judicial Court recommended that
SORB continue its "current practice" of conducting a colloquy
with the offender to ensure that his or her waiver is knowing,
intelligent, free, and voluntary. Doe No. 209081, supra at 461.
"[U]nder current practice, the board's hearing examiners must
continue an offender's classification hearing if at any point
during the hearing the offender determines that he or she would
like to be represented by counsel, providing the offender with
the opportunity to obtain counsel." Id.8
8 At oral argument, counsel for SORB confirmed that this
remains the current practice. He indicated that, when he (as
hearing examiner) conducts these hearings, he personally
explains the seriousness of the case, that the offender has the
right to an attorney at any time, that if during the hearing the
offender changes his or her mind and decides that he or she
would like an attorney he (as hearing examiner) will stop the
hearing, that if the offender cannot afford an attorney the
offender will be given time to apply for one, and that he (as
hearing examiner) would postpone the hearing for the offender to
file that application. Counsel further noted that he goes
through the colloquy as if it were a criminal case, asking the
16
Here, counsel for SORB rightfully conceded that such a
colloquy did not happen. Although Doe signed the waiver of
counsel form, it is evident that the hearing examiner did not
explain to Doe that he had the opportunity to continue his
hearing to retain an attorney. See Commonwealth v. Cote, 74
Mass. App. Ct. 709, 712-713 (2009) (waiver of counsel not
knowing and intelligent where judge did not conduct colloquy
with defendant nor did judge sign defendant's signed waiver of
counsel form indicating that defendant was properly informed of
right to counsel). On the contrary, the hearing examiner told
Doe that he "could have retained [his] own attorney," but,
"[w]ithout that being done beforehand, you're appearing today,
knowing you had a right to have a lawyer and are going to
proceed without an attorney." We expect we will not see such
unmeticulous procedures in recent hearings. See Doe No. 209081,
478 Mass. at 455, 460.
5. Conclusion. The judgment is vacated, and the matter is
remanded to the Superior Court for entry of a judgment affirming
SORB's decision denying Doe's petition to reopen the
classification hearing.
offender if the offender has consumed any drugs or alcohol, if
there is anything that would cause the offender not to
understand what the offender is doing, and if it is the
offender's intent to go forward without an attorney. These all
seem like exemplary practices.
17
So ordered.