Doe v. Sex Offender Registry Bd.

457 Mass. 53

927 N.E.2d 455

John DOE, Sex Offender Registry Board No. 3974,v.SEX OFFENDER REGISTRY BOARD.

SJC-10488.

Supreme Judicial Court of Massachusetts Barnstable.

Argued Feb. 11, 2010.

Decided June 4, 2010.

Jason Benzaken, Brockton, for the plaintiff.

Beatriz E. Van Meek, Special Assistant Attorney General (Jennifer K. Zalnasky with her), for the defendant.

Brandon L. Campbell, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

CORDY, J.

In 1992, the plaintiff, then fifteen years of age, was adjudicated delinquent after committing an indecent assault and battery on a child under the age of fourteen. The next decade of his life yielded a marred, albeit nonsexual, criminal record that culminated, for purposes of this case, in a guilty plea in Federal court on one count of distributing a controlled substance. While in Federal custody pending sentencing on the latter charge, the plaintiff was incarcerated in several locations. He began his incarceration in a Federal detention facility in Rhode Island but was soon transferred to Massachusetts facilities. In 2004 and 2005, the plaintiff was being held in the Barnstable County house of correction.

During his stay there, but before he was sentenced on his Federal conviction, the Sex Offender Registry Board (board) classified him as a level two sex offender.^1,2 On de novo review, a hearing examiner affirmed the plaintiff's classification, as did the Superior Court judge who heard the plaintiff's appeal pursuant to G.L. c. 6, § 178M, and G.L. c. 30A, § 14. Before the board and in the Superior Court, the plaintiff argued only that his record and circumstances supported classification as a level one offender, as opposed to a level two offender.

In an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court affirmed the plaintiff's classification. Doe, Sex Offender Registry Bd. No. 3974 v. Sex Offender Registry Bd., 74 Mass.App.Ct. 1102, 903 N.E.2d 607 (2009). It also rejected his newly raised claims that the board lacked subject matter jurisdiction to classify him and that the board lacked the authority to classify him until his release was imminent. We granted the plaintiff's application for further appellate review.

The plaintiff raises three arguments on appeal, all of which, on review, have been waived. First, as a threshold matter, he challenges what he terms as the board's “subject matter jurisdiction” over his case. Simply put, the plaintiff asserts that the board's jurisdiction extends only to those sex offenders who “reside[ ]” in the Commonwealth, G.L. c. 6, § 178C, as amended through St.2003, c. 77, §§ 1-3, and that residence requires more than happenstance presence in a Massachusetts correctional facility.³ The Appeals Court held that this argument could not be waived and concluded that the board had subject matter jurisdiction over the plaintiff's case. Second, the plaintiff argues that an incarcerated sex offender poses no risk of reoffense or threat to the public, and therefore that such individuals cannot be classified as level two sex offenders. Third, he claims that his right to due process was infringed when the board acted without waiting to learn what sentence he would receive on his Federal drug charge, essentially depriving him of the opportunity to show how specific conditions of his release might mitigate his risk of reoffense and threat to the public. The Appeals Court held that these latter two arguments had been waived.

We take up each of the plaintiff's arguments in turn and affirm the plaintiff's classification.⁴

1. Claimed lack of subject matter jurisdiction. The plaintiff's primary challenge to his classification is that the board lacked subject matter jurisdiction over his case. At the time of his classification, G.L. c. 6, § 178C, defined a “[s]ex offender” as “a person who resides ... in the commonwealth and who has been convicted of a sex offense or who has been adjudicated as a youthful offender or as a delinquent juvenile by reason of a sex offense.” ⁵ In essence, the plaintiff argues that he was not a “sex offender” because, having been transferred to the Barnstable County house of correction involuntarily, he did not “reside” in Massachusetts. Therefore, he contends that the board acted beyond its authority when it classified him, and that an incarcerated person only “resides” in Massachusetts when there is evidence that the person intends to live in the State after release.

Given the fact that the plaintiff neglected to raise this issue until his case reached the Appeals Court, there is a strategic explanation for why he has couched his argument in terms of subject matter jurisdiction. As we have said, “questions of subject matter jurisdiction ‘may be raised at any time’ ... and are not waived even when not argued below.” Commonwealth v. DeJesus, 440 Mass. 147, 151, 795 N.E.2d 547 (2003), quoting Commonwealth v. Cantres, 405 Mass. 238, 240, 540 N.E.2d 149 (1989). Thus, provided that questions concerning a person's residence implicate the subject matter jurisdiction of the board, the plaintiff's failure to raise the issue before the board is excusable. However, if the plaintiff's argument does not implicate subject matter jurisdiction, then it is waived.

“Subject matter jurisdiction is ‘jurisdiction over the nature of the case and the type of relief sought’....” Middleborough v. Housing Appeals Comm., 449 Mass. 514, 520, 870 N.E.2d 67 (2007), quoting Black's Law Dictionary 870 (8th ed.2004). It is divided “among the various trial courts and administrative agencies [and] ‘is both conferred and limited by statute.’ ” Middleborough v. Housing Appeals Comm., supra, quoting Edgar v. Edgar, 403 Mass. 616, 619, 531 N.E.2d 590 (1988). The question at the heart of subject matter jurisdiction is, “Has the Legislature empowered the [agency] to hear cases of a certain genre?” Wachovia Bank, Nat'l Ass'n v. Schmidt, 546 U.S. 303, 316, 126 S.Ct. 941, 163 L.Ed.2d 797 (2006). See Konstantopoulos v. Whately, 384 Mass. 123, 127, 424 N.E.2d 210 (1981) ( “despite breadth of this jurisdictional grant [of general equity jurisdiction], the Probate Courts remain courts of limited jurisdiction”).

The Legislature has empowered the board to hear one particular “genre” of cases, the classification process. Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 92-93, 697 N.E.2d 512 (1998), quoting G.L. c. 6, § 178K (“general charge of the board is to: ‘promulgate guidelines for determining the level of risk of reoffense of sex offenders [and] apply the guidelines to assess the risk level of particular offenders' ”). There is no other “avenue” of classification; classification of sex offenders is exclusively the province of the board. See id.

The “nature of the case” assigned to the board is distinguishable from the elements of a prima facie case before the board. See Sperounes v. Farese, 449 Mass. 800, 806, 873 N.E.2d 239 (2007) ($25,000 limit for cases filed in District Court is “procedural,” not “jurisdictional,” and must be raised in answer or will be waived); Middleborough v. Housing Appeals Comm., supra at 520-521, 870 N.E.2d 67 (prerequisite that project be “fundable” in order to challenge comprehensive permit decision was “substantive,” not “jurisdictional”). Thus, the plaintiff is correct that a “sex offender” is a person who “resides” in Massachusetts, but he is incorrect that this predicate fact constitutes a subject matter jurisdiction threshold. The board was required to establish that the statutory definition of “sex offender” applied to the plaintiff, but that was a question of substance, not subject matter jurisdiction. See id.⁶

Once stripped of its subject matter jurisdiction label, it is clear that the plaintiff has waived his argument by failing to raise it until he reached the Appeals Court. In general, “[o]ur court has long followed the rule that ‘[i]n the absence of a statutory directive to the contrary, the administrative remedies should be exhausted before resort to the courts.’ ” East Chop Tennis Club v. Massachusetts Comm'n Against Discrimination, 364 Mass. 444, 448, 305 N.E.2d 507 (1973), quoting Gordon v. Hardware Mut. Cas. Co., 361 Mass. 582, 587, 281 N.E.2d 573 (1972). Even when arguments relate to predicate facts that are “jurisdictional” in nature (because they are predicate to agency action), the rule of exhaustion applies. See East Chop Tennis Club v. Massachusetts Comm'n Against Discrimination, supra at 451, 305 N.E.2d 507. This is reflected in the terms of G.L. c. 30A, § 14(7), which permits the Superior Court to overturn an agency action made “[i]n excess of the statutory authority or jurisdiction of the agency,” but only “upon consideration of the entire record.” Thus, when a party neglects to raise an issue during agency proceedings, the reviewing court lacks a record on which to evaluate questions of statutory authority or jurisdiction. Where the Legislature has selected an agency as the primary finder of facts, courts “must give effect to the orderly administrative process set up by the Legislature and permit the [agency] to make the decisions entrusted to it.” Id. at 452, 305 N.E.2d 507. This is one of those cases.

In this case, the plaintiff's argument concerning his residence is based entirely on what the board did not know when it classified him. He asserts that the board had no information about where he intended to reside after his release from prison, and he then proceeds to argue that this thus deprived the board of its authority to classify him. The notion that the board might claim the power to classify incarcerated individuals who have been transferred into Massachusetts on a temporary and involuntary basis does, indeed, raise concerns. However, because the plaintiff never raised this point to the board, we have no indication that the board...