Doe v. Sex Offender Registry Bd.

487 Mass. 568

168 N.E.3d 1100

DOE, Sex Offender Registry Board No. 7546

v.SEX OFFENDER REGISTRY BOARD.

SJC-13032

Supreme Judicial Court of Massachusetts, Plymouth.

Argued March 3, 2021.

Decided June 3, 2021.

Matthew J. Koes for the plaintiff.

Nicole Nixon for the defendant.

Nancy Dolberg, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

KAFKER, J.

In 2012, years before her potential release date from prison, Doe was classified as a level three sex offender.¹ At the time, she did not challenge the classification. In Doe, Sex Offender Registry Bd. No. 7083 v. Sex Offender Registry Bd., 472 Mass. 475, 484, 35 N.E.3d 698 (2015) ( Doe No. 7083 ), we held that "a final classification must be based on an evaluation of the offender's risk of reoffense at a time reasonably close to the actual date of discharge" in order to satisfy due process. In 2019, based on Doe No. 7083, Doe sought to vacate the final classification on the grounds that it was premature, despite her decision not to challenge the classification at the time it was finalized. The Sex Offender Registry Board (board) denied the motion. Applying the familiar Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), balancing test, we conclude that the premature classification here violates due process, as it serves little to no purpose, poses an unnecessary risk of harm and error, and is not justified by the board's limited interest in finality or administrative efficiency.²

Background. Doe was convicted of sex offenses in 1970 and 1977, and she was sentenced to life in prison in 1977. In December 2012, the board notified Doe of her responsibility to register as a sex offender and of her recommended classification as a level three, high-risk sex offender. Doe accepted the recommended classification and declined a hearing, and her classification was finalized.

On April 4, 2019, Doe filed a "motion to vacate final classification and for further evidentiary hearing" with the board. She argued, based on Doe No. 7083, 472 Mass. at 479, 35 N.E.3d 698, that her classification was finalized too far in advance of her release and should therefore be vacated. She also claimed the classification had become stale and materially inaccurate, contending that the passage of time, her completion of sex offender treatment, and her advanced age reduced her risk of recidivism. On April 8, 2019, a board hearing examiner denied the motion, concluding that the Supreme Judicial Court's holding in Doe No. 7083 did not apply because, unlike the offender in Doe No. 7083, Doe accepted her classification, thereby waiving her right to a hearing. In the denial, the hearing examiner noted that Doe would be eligible to request reclassification three years after her release from incarceration.³

Doe sought judicial review in Superior Court. The parties cross-moved for judgment on the pleadings. A Superior Court judge entered judgment in favor of the board on the grounds of waiver and finality.⁴ We allowed Doe's application for direct appellate review.

Discussion. 1. Standard of review. We review the board's denial of a motion to vacate a classification and hold a further evidentiary hearing for abuse of discretion. Doe, Sex Offender Registry Bd. No. 209081 v. Sex Offender Registry Bd., 478 Mass. 454, 457, 86 N.E.3d 474 (2017) ( Doe No. 209081 ). In reviewing a board decision for abuse of discretion, "we look to see whether the decision was reasonable" based on "the specific context of the circumstances presented and the statutory scheme involved." Id. at 457-458, 86 N.E.3d 474. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27, 20 N.E.3d 930 (2014) (abuse of discretion involves clear error of judgment "such that the decision falls outside the range of reasonable alternatives"). A "judge may not exercise her discretion in such a way that ... deprives the defendant of the right to ... due process of law." Commonwealth v. Cruz, 456 Mass. 741, 747, 926 N.E.2d 142 (2010). See Matthews v. Appeals Court, 444 Mass. 1007, 1008, 828 N.E.2d 527 (2005) (clear error of law is one form of abuse of discretion).

2. Exhaustion of administrative remedies. The board argues that we should not address the merits of Doe's claim because she did not properly exhaust all her administrative remedies. The board contends that Doe should have first requested a reclassification pursuant to 803 Code Mass. Regs. § 1.31(2) (2016), even though the board can summarily deny her application without a hearing if she seeks reclassification while incarcerated, and no appeal is allowed from the decision. 803 Code Mass. Regs. § 1.31(2)(e). Once Doe is released, the soonest she can request reclassification is three years after her release. 803 Code Mass. Regs. § 1.31(2).

As we discuss at greater length in our due process analysis, infra, this procedure is not a reasonably adequate remedy when challenging an obviously premature classification. See Noe, Sex Offender Registry Bd. No. 5340 v. Sex Offender Registry Bd., 480 Mass. 195, 202-206, 102 N.E.3d 409 (2018) ( Noe ) (addressing due process protections against inaccurate classifications); Doe No. 7083, 472 Mass. at 484-485, 35 N.E.3d 698 (interests implicated by premature classification). The solution to a premature final classification is not a premature reclassification. The correct remedy is vacating the premature final classification until such time as it is appropriate to classify the petitioner. Further, as explained infra, the board routinely denies all such reclassification requests by incarcerated offenders. Thus, Doe need not proceed with a reclassification request, but may proceed to seek to vacate the premature classification, as she did here.

3. Time of classification. The primary issue in this case is whether our holding in Doe No. 7083, 472 Mass. at 484, 35 N.E.3d 698, that "a final classification must be based on an evaluation of the offender's risk of reoffense at a time reasonably close to the actual date of discharge" applies to incarcerated offenders who, like Doe, accepted their classification.

a. Registration statute. "The purpose of the sex offender registration statute is to protect the vulnerable members of our communities from sexual offenders and from the danger of recidivism posed by sex offenders" (quotations and citations omitted). Doe No. 7083, 472 Mass. at 481, 35 N.E.3d 698. To this end, the board is responsible for developing guidelines to determine "each sex offender's level of risk of reoffense and degree of dangerousness posed to the public." 803 Code Mass. Regs. § 1.04(1) (2016). See G. L. c. 6, § 178K (1). "[A]n offender's recent behavior and current treatment [must] be considered as factors relevant to this determination." Doe No. 7083, supra at 481, 35 N.E.3d 698, citing G. L. c. 6, § 178K (1). Based on these guidelines, the board makes initial recommendations regarding classification level, which the sex offender may either accept or reject.⁵ 803 Code Mass. Regs. § 1.04(2). All sex offenders must register with the board, and the board may release their information to certain governmental agencies. See G. L. c. 6, § 178K (2) ; 803 Code Mass. Regs. § 1.05(1) (2016). Identifying information of sex offenders who receive a level two or level three classification (the highest classifications) is available to the public on the board's comprehensive registry, easily accessible through the Internet. G. L. c. 6, §§ 178D, 178K (2).

When an offender is incarcerated, the registration statute establishes deadlines for completion of steps in the classification process, but not a timeline for when the classification process may begin. See G. L. c. 6, § 178E ("shall classify such a sex offender at least [ten] days before the offender's earliest possible release date"), § 178L (1) (a ) (board must notify offender of right to submit evidence "not less than [sixty] days prior to" release or parole). The board is required to prioritize classification of certain offenders sentenced to less than ninety days incarceration, followed by offenders recently released from incarceration, then offenders currently on probation or parole or scheduled to be released from incarceration within six months. G. L. c. 6, § 178K (3). Indefinitely incarcerated offenders are not included in the prioritization. See id.

b. Due process implications. "A sex offender has sufficient liberty and privacy interests constitutionally protected by art. 12 [of the Massachusetts Declaration of Rights] that [s]he is entitled to procedural due process before [s]he may be required to register and before information may properly be publicly disclosed about h[er]" (quotation and citation omitted). Doe No. 7083, 472 Mass. at 482, 35 N.E.3d 698. To assess procedural due process, we apply the test from Mathews, 424 U.S. at 335, 96 S.Ct. 893, which balances the private interests affected by an agency decision; the risk of an erroneous deprivation of those interests and the probable value, if any, of additional or substitute procedural safeguards; and the governmental interests involved. Doe No. 7083, supra at 482, 35 N.E.3d 698. "In the context of sex offender classification, we examine the fit between a classification and the policy that the classification serves" (quotation and citation omitted). Id. at 483, 35 N.E.3d 698.

In Doe No. 7083, 472 Mass. at 476, 35 N.E.3d 698, we considered a substantially similar due process question in the context of an incarcerated and civilly committed offender whose classification hearing was scheduled ten months before his earliest parole eligibility date and eighteen months before the trial on his petition for discharge. There, we stated,

"our decisions recognize that the registration statute requires [the board] to base its classification determinations on a sex offender's ‘current’ risk to the community, in

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