Doe v. Sex Offender Registry Bd.

82 Mass.App.Ct. 152

971 N.E.2d 800

JOHN DOE, Sex Offender Registry Board No. 16748

v.SEX OFFENDER REGISTRY BOARD.

No. 11–P–308.

Appeals Court of Massachusetts, Essex.

Argued Feb. 2, 2012.

Decided July 16, 2012.

Brandon L. Campbell for the plaintiff.

Paul Tuttle for the defendant.

Present: Cypher, Green, & Trainor, JJ.

CYPHER, J.

We are presented with the question whether a regulation promulgated by the Sex Offender Registry Board (board) that permits the board to increase a “registered and finally classified sex offender['s]” level of classification, absent conviction of a new sex offense, exceeds the board's authority. See 803 Code Mass. Regs. § 1.37C(1), (3) (2004). We conclude that it does.

Background. In September, 2003, the plaintiff was classified by a hearing examiner of the board as a level two sex offender after his second offense in 2002, for open and gross lewdness, in accordance with G.L. c. 6, § 178K(2)( b ). The examiner's decision became the decision of the board, and the plaintiff accepted this final classification without challenge. See G.L. c. 6, §§ 178K(2)( b ), 178L(1)( c ) & (2). In August, 2009, the plaintiff was charged in District Court with three counts of rape and “breaking and entering.” On or about September 26, 2009, the board notified the plaintiff of its intent to reclassify him as a level three sex offender based on this new information pursuant to 803 Code Mass. Regs. § 1.37C(3) (2004).¹ The plaintiff challenged this classification and requested an evidentiary hearing. G.L. c. 6, § 178L. Before the hearing was held, on or about December 2, 2009, the Commonwealth entered a nolle prosequi on all of the August, 2009, charges.

The board, however, continued to seek the plaintiff's upward reclassification, and an evidentiary hearing was held on December 21, 2009. A police report containing the statements of the alleged rape victim was admitted over objection at the hearing as evidence of the new crimes. The hearing examiner rejected the plaintiff's contention that the new information was based on unreliable hearsay and entered a written decision finding that the plaintiff “now poses a high risk to reoffend and a high degree of dangerousness.” ² The examiner ordered the plaintiff to register as a level three sex offender in accordance with G.L. c. 6, § 178K(2)( c ). The examiner's decision became the final decision of the board. G.L. c. 6, § 178L(2). Doe, Sex Offender Registry Bd. No. 3974 v. Sex Offender Registry Bd., 457 Mass. 53, 60, 927 N.E.2d 455 (2010) ( Doe, No. 3974 ).

The plaintiff filed a complaint for judicial review of the board's decision in the Superior Court pursuant to G.L. c. 6, § 178M, and G.L. c. 30A, § 14. He argued that (1) absent a conviction for a new sex offense, the board lacked subject matter jurisdiction over his case; ³ (2) the regulation that permitted an upward reclassification without a new predicate sex offense exceeded the board's authority; (3) counsel was ineffective for failing to challenge the board's authority under the regulation to increase his classification level absent a new sex offense; (4) the board's decision was improperly based on unreliable hearsay; and (5) the decision was not supported by substantial evidence. The Superior Court judge affirmed the board's decision. The plaintiff appealed and reiterates the claims he presented in Superior Court, adding that “fairness” demands we address his challenge to the regulation.

Resolution of the challenge to the validity of the regulation that permitted the board to increase an offender's classification in the absence of a new sex offense is dispositive of the remaining issues; therefore, we consider it first.

Basis for appellate review. The Commonwealth argues that the plaintiff has waived his right to challenge the validity of the regulation because he failed to raise the issue before the hearing examiner.⁴

Generally speaking, an administrative agency such as the board has only those powers, duties, and obligations expressly conferred on it by statute or reasonably necessary to carry out the purposes for which it was established. Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 628, 947 N.E.2d 9 (2011) ( Doe, No. 10800 ). The power delegated by the Legislature to an agency does not include the inherent authority to strike down a regulation or declare it void on constitutional grounds such as due process. Duarte v. Commissioner of Rev., 451 Mass. 399, 413–414, 886 N.E.2d 656 (2008). Doe, No. 10800, supra. See Borden, Inc. v. Commissioner of Pub. Health, 388 Mass. 707, 722–723, 448 N.E.2d 367, cert. denied sub nom. Formaldehyde Inst., Inc. v. Frechette, 464 U.S. 936, 104 S.Ct. 345, 78 L.Ed.2d 312 (1983) (a party challenging the validity of a regulation must prove in a judicial proceeding “that the regulation is illegal, arbitrary, or capricious”). Therefore, we conclude that the plaintiff did not waive his claim that the regulation exceeded the scope of the board's authority by failing to present the claim to the board, where the board did not have the inherent authority to strike down the regulation or declare it void.⁵

Decisional law has suggested that such challenges be brought by way of declaratory action. The Massachusetts Administrative Procedure Act (codified in G.L. c. 30A) provides that “unless an exclusive mode of review is provided by law, judicial review of any regulation ... may be had through an action for declaratory relief” in the Superior Court (emphasis added). ⁶G.L. c. 30A, § 7. See G.L. c. 231A. In Doe, No. 10800, supra, the plaintiff directly challenged the constitutionality of regulations that the board must employ to reach a final classification decision and argued that the classification scheme based on those regulations violated his due process rights under both the State and Federal Constitutions. The court reasoned that the board does not have the authority to determine the constitutionality of its regulations and ruled that the plaintiff could only obtain relief through a declaratory action. Id. at 630, 947 N.E.2d 9. According to the court, such action would have afforded both parties a plenary hearing on the legal and factual basis for upholding or striking down the regulations. Ibid.

The statutory language that judicial review “ may be had ” by declaratory action signals, however, that declaratory relief is permissive, not required. Decisional law further suggests that the phrase is intended to negate any inference that might otherwise be drawn from a different section of the statute (G.L. c. 30A, § 14) that only a “final decision of an agency in an adjudicatory proceeding” may be judicially reviewed.Westland Hous. Corp. v. Commissioner of Ins., 352 Mass. 374, 381, 225 N.E.2d 782 (1967). See generally Cella, Administrative Law and Practice § 771 (1986 & Supp.2011).

Recent decisions support a conclusion that there are, indeed, other avenues to review regulations promulgated by the board. In Commonwealth v. Maker, 459 Mass. 46, 47, 944 N.E.2d 110 (2011), the Supreme Judicial Court transferred a case from the Appeals Court on its own motion in which the trial judge had reported two questions concerning whether a regulation exceeded the statutory authority of the board. The court concluded that the regulation was outside the board's authority and invalidated it. More recently, the Supreme Judicial Court invalidated a regulation challenged in an appeal from a final order of classification that followed the appellate route expressed in the statutory text. Doe, Sex Offender Registry Bd. No. 941 v. Sex Offender Registry Bd., 460 Mass. 336, 341, 951 N.E.2d 344 (2011) ( Doe, No. 941 ). See G.L. c. 6, § 178M; G.L. c. 30A, § 14.

Despite the preference for presenting a challenge to a regulation in a declaratory action, we consider the issue raised in this appeal from a final order of classification. The Commonwealth raised no claim below, or on appeal, that the challenge to the regulation must be presented in a declaratory action. Unlike the situation presented in Doe, No. 10800, supra, where the plaintiff challenged the constitutionality of the regulations underlying the entire classification scheme and the resolution of the issue may well have required a plenary hearing, here, the issue is purely one of statutory interpretation, a quintessential judicial responsibility. See Souza v. Registrar of Motor Vehicles, 462 Mass. 227, 229–230, 967 N.E.2d 1095 (2012) ( “Because the interpretive question here is purely a legal one, and because ‘the duty of statutory interpretation rests ultimately with the courts,’ we review the board's interpretation de novo”). The Commonwealth does not contend that any procedural characteristic of a c. 30A administrative appeal makes it a less suitable vehicle than a declaratory judgment action for assessment of the board's authority to adopt the regulation at issue here. We are bolstered in our conclusion that appellate review is appropriate where the parties have fully briefed the issue and resolution of the claim will promote judicial economy. See, e.g., Commonwealth v. White, 429 Mass. 258, 265, 707 N.E.2d 823 (1999).

Statutory scheme. In assessing the regulation at issue, an overview of the statute under which it was promulgated will be useful.

“In 1999, the Legislature passed an emergency law, St.1999, c. 74, formally entitled, ‘An Act improving the sex offender registry and establishing civil commitment and community parole supervision for life for sex offenders' (Act). Based on the premise that sex offenders generally pose a high risk of recidivism and, therefore, greatly threaten the safety of the community, see St.1999, [c. 74,] § 1, the Act sets forth three mechanisms to protect the public from sex offenders.” Commonwealth v. Renderos, 440 Mass. 422, 428, 799 N.E.2d 97 (2003). It is the first of those mechanisms with which we are concerned here, namely, the establishment of a...