NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1062
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 526599
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this G. L. c. 30A appeal from a Sex Offender Registry
Board (SORB or the board) classification proceeding, the
petitioner, John Doe No. 526599, argues that the board erred in
classifying him as a Level 1 sex offender. Before the hearing
examiner, the petitioner argued that his index offense -- a
conviction in United States District Court for the District of
Rhode Island for violation of 18 U.S.C. § 2421 (transportation
of a person for purposes of illegal sexual activity) -- did not
qualify as a "sex offense" for the purposes of the Massachusetts
sex offender registry statute, G. L. c. 6, § 178C. On appeal to
this court, the petitioner's argument has shifted somewhat: he
contends that in the hearing examiner's decision, the hearing
examiner failed to identify a Massachusetts sex offense that was
a "like violation," Doe, Sex Offender Registry Bd. No. 151564 v.
Sex Offender Registry Bd., 456 Mass. 612, 615-616 (2010) (Doe
No. 151564), to the petitioner's Federal conviction, and thus
that the board lacks "jurisdiction" over the petitioner.
We are not persuaded. General Laws c. 6, § 178C, defines
"sex offense" in detail; a "sex offense" is any one of a long
list of Massachusetts crimes, but also includes "a like
violation of the laws of . . . the United States." Id. There
is no question that the petitioner's Federal offense is a "like
violation" to the Massachusetts crime of "human trafficking,"
G. L. c. 265, § 50, which is listed as a "sex offense" in
§ 178C. 18 U.S.C. § 2421 punishes (1) knowingly,
(2) transporting any individual, (3) in interstate or foreign
commerce, (4) with intent that such individual engage in
prostitution, or in any sexual activity for which any person can
be charged with a criminal offense. Similarly, the elements of
c. 265, § 50, include (1) knowingly, (2) transporting (among
other statutorily enumerated means), (3) another person, (4) to
engage in commercial sexual activity. See Commonwealth v. Fan,
490 Mass. 433, 448 (2022). The offenses are thus "like
violations," and on this record we can decide the "like
violation" question as a matter of law. See Doe No. 151564, 456
Mass. at 615-616 ("A 'like violation' is a conviction in another
jurisdiction of an offense of which the elements are the same or
nearly the same as an offense requiring registration in
2
Massachusetts. The elements of the offense in another
jurisdiction need not be precisely the same as the elements of a
Massachusetts sex offense in order for it to constitute a 'like
violation'"); Doe, Sex Offender Registry Bd. No. 36870 v. Sex
Offender Registry Bd., 96 Mass. App. Ct. 246, 251-252 (2019).
Indeed, the petitioner concedes that his crime is a "like
violation" to the Massachusetts human trafficking crime.
The petitioner argues, however, that in deciding that the
petitioner had committed a "like violation," the hearing
examiner did not cite c. 265, § 50, and accordingly, that we may
not rely upon c. 265, § 50 as the "like violation" to affirm the
board's classification. And, the petitioner urges, the statute
that the hearing examiner did rely upon as a "like violation,"
G. L. c. 272, § 2, does not qualify as a like violation because
the elements of c. 272, § 2 are materially different than those
of 18 U.S.C. § 2421. The petitioner accordingly argues that the
board failed to establish its "jurisdiction," and that the
proceedings must be dismissed.
We disagree. As indicated, there is no question that, as a
result of his Federal conviction, the petitioner committed a
like violation to G. L. c. 265, § 50, and is therefore a "sex
offender" under § 178C. The petitioner works in Massachusetts
and because he meets the definition of a sex offender, is
required to register with the board. 803 Code Mass. Regs.
3
§ 1.05(1) (2016). The board thus has "jurisdiction" -- that is,
the power to act -- with respect to the petitioner. Under the
circumstances, this court is not obliged to dismiss these
proceedings even assuming the hearing examiner, in his decision,
identified an inapt Massachusetts statute as the "like
violation." 1 The "law cares not for trifles," Wisconsin Dep't of
Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 231 (1992)
(quotation omitted), nor do we rest decisions on grounds that
lack in substance. See A. Doykos & T. Pappas, Inc. v.
Leventhal, 290 Mass. 375, 376 (1935) ("the law does not deal
1 The petitioner invokes the general principle that a reviewing
court may not affirm an agency's action based upon a ground that
was not advanced by the agency. We do not question the general
principle, but we deem it inapplicable in the particular
circumstances, where we can decide the question as a matter of
law (indeed, it is conceded), and where a remand would serve no
practical purpose. United Food Corp. v. Alcoholic Beverages
Control Comm'n, 375 Mass. 238, 245 (1978) (where "there is no
real doubt that the [agency] upon a remand would [reach same
result]" such "that remand would be merely a waste of time," the
court may affirm the agency).
4
with trivialities when no substantial right is involved. De
minimis non curat lex").
Judgment affirmed.
By the Court (Englander,
Hand & Brennan, JJ. 2),
Assistant Clerk
Entered: March 6, 2024.
2 The panelists are listed in order of seniority.
5