Doe v. Sex Offender Registry Bd.

99 Mass.App.Ct. 292

164 N.E.3d 227

John DOE, Sex Offender Registry Board No. 356315

v.SEX OFFENDER REGISTRY BOARD.

No. 19-P-1306

Appeals Court of Massachusetts, Essex..

Argued October 15, 2020.

Decided March 12, 2021.

Fred J. Burkholder, Boston,for the plaintiff.

Nicole M. Nixon, for the defendant.

Present: Milkey, Blake, & Henry, JJ.

HENRY, J.

The plaintiff, John Doe, appeals from a Superior Court judgment affirming his final classification by the Sex Offender Registry Board (SORB or board) as a level three sex offender. Doe's primary argument is that the board exceeded its authority in promulgating 803 Code Mass. Regs. § 1.33(2) (2016) by substituting temporal distance between episodes of repetitive sexual conduct for the statutory prerequisite of compulsive behavior. Doe contends that SORB has thereby functionally eliminated the compulsiveness factor contained in G. L. c. 6, § 178K (1) (a ) (ii). He also argues that the hearing examiner committed an abuse of discretion by failing to consider a scholarly article and in applying the required factors as well as failing to make separate findings about whether Internet publication of Doe's information will "effectively serve to protect the public." We affirm.

Background. After an evidentiary hearing, a SORB hearing examiner found the following: On or about August 12, 2007, Doe invited a friend to his apartment. When the friend arrived, Doe pushed her into the bathroom, got on top of her, covered her mouth, and attempted to rape her. When the victim screamed, Doe let her leave. During this incident, Doe's brother was present at the apartment, though not in the same room. Doe was charged with assault with intent to rape, G. L. c. 265, § 24 ; indecent assault and battery on a person age fourteen or over, G. L. c. 265, § 13H ; and assault and battery, G. L. c. 265, § 13A (a ). While these charges ultimately were nol prossed, the hearing examiner found "that the police report and the statements made by [the victim] were detailed and specific enough to be considered."

On November 26, 2010, Doe sexually assaulted a stranger in the computer lab at a college in Boston. Doe "strangle[d] [the victim] with a piece of blue fabric. [The victim] lost consciousness briefly, and as she regained her senses, [Doe] was attempting to take her jeans off." Doe punched the victim in the face and head "several times" but the victim continued to scream and Doe fled. Doe pleaded guilty to assault with intent to rape, G. L. c. 265, § 24 ; assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (c ) ; and assault and battery, G. L. c. 265, § 13A (a ). Doe was sentenced to from four years to four years and one day in State prison on the assault with intent to rape charge and five-year probation terms from and after the prison sentence for the other two convictions, to be served concurrently. In 2013, prior to his release from prison, SORB classified Doe as a level three sex offender, a classification that Doe challenged.

The SORB hearing was held on June 8, 2017, at which time Doe was twenty-eight years old. In his decision, the hearing examiner applied one high-risk factor, factor 2, repetitive and compulsive behavior, with "increased aggravating weight," because Doe was criminally charged for sexually assaulting the first victim in 2007 and was convicted of sexually assaulting the second victim in 2010. See G. L. c. 6, § 178K (1) (a ) (ii). See also 803 Code Mass. Regs. § 1.33(2).

The hearing examiner applied five risk-elevating factors. He gave "full aggravating weight" to two factors: factor 7, relationship between offender and victim, because the first victim was extra-familial and the second victim was a stranger; and factor 8, weapons, violence, or infliction of bodily injury, because Doe used a "serious display of force" in assaulting the second victim. See G. L. c. 6, § 178K (1) (b ) (i), (ii). See also 803 Code Mass. Regs. § 1.33(7), (8) (2016). The hearing examiner gave "aggravating consideration" to the factors that Doe committed his assault of the second victim in a public place (factor 16); that Doe assaulted two types of victims, extra-familial and stranger (factor 21); and that Doe committed sexual assaults against two victims (factor 22). See G. L. c. 6, § 178K (1) (b ). See also 803 Code Mass. Regs. § 1.33(16), (21), (22) (2016). The hearing examiner further found "applicable" that Doe had prior contact with the criminal justice system (factor 10) and had been convicted of multiple violent crimes (factor 11). See G. L. c. 6, § 178K (1) (b ). See also 803 Code Mass. Regs. § 1.33(10), (11) (2016). The hearing examiner gave "minimal aggravating weight" to the fact that Doe had received disciplinary reports while incarcerated (factor 12) and gave "increased aggravating weight" to the fact that Doe had a history of noncompliance with probation (factor 13). See G. L. c. 6, § 178K (1) (c ), (i ). See also 803 Code Mass. Regs. § 1.33(12), (13) (2016).

The hearing examiner considered mitigating factors and assigned "moderate mitigating weight" to the fact that Doe was on probation (factor 28) and "minimal mitigating weight" to the existence of a support system for Doe (factor 33), given the fact that Doe did not submit any letters of support. See G. L. c. 6, § 178K (1) (c ). See also 803 Code Mass. Regs. § 1.33(28), (33) (2016). The hearing examiner found that "the nature and extent of the risk aggravating factors in this matter outweigh the few mitigating considerations" and "that [Doe] presents a high risk of re-offense and high degree of dangerousness" and therefore classified Doe as a level three sex offender. A judge of the Superior Court upheld the hearing examiner's classification, and judgment entered on June 6, 2019. Doe timely appealed that decision.

Discussion. 1. Compulsiveness. SORB is statutorily required to consider as a factor "relative to the risk of reoffense ... whether the sex offender's conduct is characterized by repetitive and compulsive behavior." G. L. c. 6, § 178K (1), (1) (a ) (ii) (factor 2). SORB regulations apply factor 2 when

"a sex offender engages in two or more separate episodes of sexual misconduct. To be considered separate episodes there must be time or opportunity, between the episodes, for the offender to reflect on the wrongfulness of his conduct. The Board may give increased weight to offenders who have been discovered and confronted (by someone other than the victim) or investigated by an authority for sexual misconduct and, nonetheless, commit a subsequent act of sexual misconduct. The most weight shall be given to an offender who engages in sexual misconduct after having been charged with or convicted of a sex offense."

803 Code Mass. Regs. § 1.33(2)(a) (2016). Doe contends that SORB exceeded its authority, or acted ultra vires, in promulgating § 1.33(2)(a), claiming that the regulation "substitut[es] temporal distance between episodes of repetitive sexual conduct for the statutory prerequisite [of] compulsive behavior."¹ Rather than challenging § 1.33(2)(a) as applied to him, Doe challenges the regulation on its face, relying on the concurrence in Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 745-747, 138 N.E.3d 459 (2019) ( Doe No. 22188 ) (Milkey, J., concurring).²

Doe bears a heavy burden, as "[a] highly deferential standard of review governs a facial challenge to regulations promulgated by a government agency."

Massachusetts Fed'n of Teachers, AFT, AFL-CIO v. Board of Educ., 436 Mass. 763, 771, 767 N.E.2d 549 (2002).

To assess the facial legality of a regulation,

"[a court] employ[s] sequentially two well-defined principles. First, [it] determine[s], using conventional tools of statutory interpretation, whether the Legislature has spoken with certainty on the topic in question, and if [it] conclude[s] that the statute is unambiguous, [the court] give[s] effect to the Legislature's intent.... Second, if the Legislature has not addressed directly the pertinent issue, [the court] determine[s] whether the agency's resolution of that issue may be reconciled with the governing legislation" (quotations and citations omitted).

Goldberg v. Board of Health of Granby, 444 Mass. 627, 632-633, 830 N.E.2d 207 (2005). See New England Power Generators Ass'n Inc. v. Department of Envtl. Protection, 480 Mass. 398, 405, 105 N.E.3d 1156 (2018) ("At the second stage, we afford substantial deference to agency expertise, and will uphold a challenged regulation unless a statute unambiguously bars the agency's approach" [quotations and citations omitted]).

A person challenging the validity of a regulation must "establish ‘the absence of any conceivable grounds upon which [the rule] may be upheld.’ " Massachusetts Fed'n of Teachers, 436 Mass. at 771, 767 N.E.2d 549, quoting Purity Supreme, Inc. v. Attorney Gen., 380 Mass. 762, 776, 407 N.E.2d 297 (1980). See Student No. 9 v. Board of Educ., 440 Mass. 752, 762-763, 802 N.E.2d 105 (2004), and cases cited ("An administrative agency ... has considerable leeway in interpreting a statute it is charged with enforcing"). A reviewing court "must apply all rational presumptions in favor of the validity of the administrative action" (citations omitted). NextEra Energy Resources, LLC v. Department of Pub. Utils., 485 Mass. 595, 603-604, 152 N.E.3d 48 (2020).

Furthermore, when reviewing a regulation, "a court cannot substitute [its] judgment as to the need for a regulation, or the propriety of the means chosen to implement the statutory goals, for that of the agency, so long as the regulation is rationally related to those goals" (quotations and citations omitted). Massachusetts Fed'n of Teachers, 436 Mass. at 772, 767 N.E.2d 549. "A court will not declare a regulation void unless its provisions cannot, in any appropriate way, be interpreted in harmony with the legislative mandate." Student No. 9, 440 Mass. at 763, 802 N.E.2d 105. Regulations must only be "within...