Doe v. Sex Offender Registry Bd.

484 Mass. 666

144 N.E.3d 864

John DOE, Sex Offender Registry Board No. 234076

v.SEX OFFENDER REGISTRY BOARD.

SJC-12762

Supreme Judicial Court of Massachusetts, Essex..

Argued January 6, 2020.

Decided May 14, 2020.

Kate A. Frame for the plaintiff.

Christopher M. Bova for the defendant.

Matthew J. Koes, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: Gants, C.J., Gaziano, Lowy, Budd, & Kafker, JJ.

LOWY, J.

The plaintiff, John Doe, challenges his classification before the Sex Offender Registry Board (board) as a level three sex offender. In this case we decide whether a hearing examiner may restrict the scope of an expert's testimony at a sex offender classification hearing once the hearing examiner has exercised discretion to grant funds for that expert. We conclude that, once the hearing examiner has allowed a motion for expert funds to a sex offender seeking a review hearing on his classification, whether indigent or otherwise, expert testimony in a board hearing is admissible unless it is "irrelevant, unreliable, [or] repetitive." 803 Code Mass. Regs. § 1.18(1) (2016). Further, testimony in board hearings is reliable if it is "the kind of evidence on which reasonable persons are accustomed to rely on in the conduct of serious affairs." Id.

1. Background. On May 26, 2010, a jury in the Superior Court convicted Doe on three indictments charging rape and abuse of a child, in violation of G. L. c. 265, § 23, and on two indictments charging indecent assault and battery on a person fourteen or over, in violation of G. L. c. 265, § 13H.¹ Doe was a former girls' gymnastic coach who owned a training facility in Connecticut and who operated a summer camp for gymnasts, and Doe's victims were both his former trainees. Doe began preying on and abusing the first victim when she was thirteen years old and the second victim when she was sixteen years old. The abuse occurred repeatedly during the early 1990s in Massachusetts and Connecticut.

In September 2013, during Doe's incarceration, the board notified him of his duty to register as a level three sex offender pursuant to G. L. c. 6, § 178K (2) (c ).² Doe thereafter requested his statutory right to a de novo review of his classification by one of the board's hearing examiners. See G. L. c. 6, § 178L (2) ; 803 Code Mass. Regs. § 1.03 (2013).

The hearing examiner presided at a two-day evidentiary hearing,³ conducted via video conference, to assess Doe's assigned classification based on the board's enumerated risk factors, including the victims' ages and whether Doe repeatedly offended. See 803 Code Mass. Regs. § 1.40(2), (3) (2013). Doe and his attorney participated from prison while the board's counsel and the hearing examiner were at the board's Salem office. Before the hearing, Doe, who was indigent, moved for expert funds to hire Dr. Paul D. Zeizel, an expert in forensic psychology and assessing sex offenders' risk of reoffense. See G. L. c. 6, § 178L (1) (a ). In his motion, Doe requested funding so that Dr. Zeizel could provide expert testimony about Doe's risk of reoffense, specifically by focusing on several factors not considered by the board's regulations, including age and time spent in the community between Doe's last recorded incident in the mid-1990s⁴ and his 2007 arrest ("offense-free time prior to incarceration").⁵

During the first hearing day, the hearing examiner orally granted the motion. He "bas[ed his] decision on the age [factor]," but stated, "I [am] pretty sure [that the expert is] going to do some other inquiries about some other things." The hearing examiner's subsequent written order granting Doe's motion did not restrict the subject matter of the expert's report or testimony. Between the first and second hearing date, the expert prepared a risk assessment, which considered Doe's age, as well as his offense-free time prior to incarceration. Upon the board's objection during the second hearing day, the hearing examiner limited Dr. Zeizel's testimony to the effects of advanced age on reoffense rates generally and as applied to Doe.⁶ Notwithstanding Dr. Zeizel's protestation that he could not ethically provide a risk assessment based only on age sealed off from other variables, the hearing examiner affirmed Doe's level three classification.⁷

Doe challenged this classification in the Superior Court. The judge affirmed, concluding that the hearing examiner did not abuse his discretion either in limiting Dr. Zeizel's testimony or in finding the evidence sufficient to classify Doe as a level three sex offender. The judge also determined that the board's practice of conducting such hearings over video conference did not violate Doe's constitutional rights.

We allowed Doe's application for direct appellate review. On appeal, Doe claims that the hearing examiner's decision to limit the scope of the expert's testimony (1) violated G. L. c. 6, § 178L, and its implementing regulations; (2) violated Doe's due process rights; and (3) violated the equal protection clauses of the Fourteenth Amendment to the United States Constitution and art. 1 of the Massachusetts Declaration of Rights. Doe further contends that conducting the hearings via video conference violated his due process rights. Because we hold that the hearing examiner improperly limited the scope of Doe's expert's testimony, we remand to the board for a new hearing.⁸ We moreover conclude that the board did not violate Doe's due process rights by administering the hearing via video conference.⁹

2. Discussion. a. Standard of review. "A reviewing court may set aside or modify [the board's] classification decision where it determines that the decision is in excess of [the board's] statutory authority or jurisdiction, violates constitutional provisions, is based on an error of law, or is not supported by substantial evidence. See G. L. c. 30A, § 14 (7) (listing these and other reasons for vacating decision of agency). In reviewing [the board's] decisions, we ‘give due weight to the experience, technical competence, and specialized knowledge of the agency.’ " Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649, 126 N.E.3d 939 (2019), quoting Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602, 999 N.E.2d 478 (2013) ( Doe No. 205614 ).

b. Expert funds for indigent sex offenders. When moving for expert funds, indigent sex offenders must "identify and articulate the reason or reasons, connected to a condition or circumstance special to [them]," and, separately, "general motion[s] for funds to retain an expert to provide an opinion on the sex offender's risk of reoffense, without more, would ... be insufficient." Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775, 897 N.E.2d 1001 (2008) ( Doe No. 89230 ). See 803 Code Mass. Regs. § 1.16(4)(a) (2016).¹⁰ The hearing examiner accordingly has discretion to deny expert funds to indigent sex offenders who offer expert opinion on factors that the board's regulations already require the hearing examiner to consider. See Doe No. 89230, supra at 775 n.17, 897 N.E.2d 1001.

The record indicates that Doe precisely "identif[ied] and articulat[ed]" requested expert funds to present evidence that his age, as well as his offense-free time prior to incarceration, lowered his risk of reoffense. Doe No. 89230, 452 Mass. at 775, 897 N.E.2d 1001. Neither age¹¹ nor time spent in the community prior to incarceration are included in the board's promulgated risk factors. See 803 Code Mass. Regs. § 1.40 (2013) (factors 19 and 20 only discuss time in prison community and time in community following probation); 803 Code Mass. Regs. § 1.33 (2016) (factor 29 expressly ties offense-free time in community to time postconviction or postincarceration). Doe therefore identified and articulated particular issues that would help the hearing examiner beyond the enumerated risk factors -- something the hearing examiner recognized by granting the motion for expert funds and by acknowledging that the expert's testimony would address "some other inquiries about some other things" beyond age. In other words, the expert testimony would not have been repetitive. See 803 Code Mass. Regs. § 1.18 (2016).

c. Hearing examiners' power to limit scope of expert testimony. We start with the statute. Where the Legislature's intent is evident in a statute's plain language, that meaning controls. See Plymouth Retirement Bd. v. Contributory Retirement Appeal Bd., 483 Mass. 600, 604, 135 N.E.3d 702 (2019). The board argues that the statute provides the hearing examiner with the discretion to limit expert testimony, while Doe claims the opposite.

General Laws c. 6, § 178L (1) (a ), permits sex offenders to challenge their classification in a de novo hearing and, if indigent, to apply for funds to hire an expert witness for that hearing. The hearing examiner "may grant payment of fees for an expert witness in any case," but the statute does not expressly provide the hearing examiner with the authority to limit the scope of an indigent sex offender's expert's testimony once granting those expert funds. Id. The statute does empower a hearing examiner "to consider ‘any information useful’ " beyond the enumerated risk factors. Doe No. 205614, 466 Mass. at 604, 999 N.E.2d 478, quoting G. L. c. 6, § 178L (1). The regulations in effect at the time of the hearing also do not resolve the issue, although they grant the hearing examiner broad discretion to rule on evidentiary matters. See 803 Code Mass. Regs. §§ 1.09(2), 1.21(1)(e) (2013); 803 Code Mass. Regs. § 1.19(1)(f) (2016).¹² Specifically, the hearing examiner "may exclude irrelevant, unreliable, and repetitive evidence." 803 Code Mass. Regs. § 1.18(1) (2016). See 803 Code. Mass. Regs. § 1.19(1) (2013). Because, as noted supra, the hearing examiner granted expert funds to Doe, implicitly finding the proffered evidence not...