Noe v. Sex Offender Registry Board

Daniel Noe, Sex Offender Registry Number 53401 ^[1] v. Sex Offender Registry Board

No. 136375

No. SUCV2014-02071-A

Superior Court of Massachusetts, Suffolk

March 28, 2017

MEMORANDUM OF DECISION AND ORDER ON PETITIONER'S RENEWED MOTION FOR JUDGMENT ON THE PLEADINGS

Brian A. Davis, Associate Justice of the Superior Court.

Introduction

This is an action, filed pursuant to G.L.c. 30A, § 14, G.L.c. 6 § 178M, and G.L.c. 231A, § 1, in which petitioner Daniel Noe, Sex Offender Registry Board Number 5340 (" Petitioner"), a registered " Level 3" sex offender, challenges a May 2014 decision by respondent Sex Offender Registry Board (the " Board") denying his statutorily-authorized request for reclassification to a lower sex offender level. The Board's decision came after a hearing at which Petitioner represented himself because the Board's regulations do not provide for the appointment of legal counsel for indigent sex offenders who seek reclassification. In its decision, the Board concluded that Petitioner had not presented sufficient evidence to establish, by a preponderance of the evidence, that there had been a change in his circumstances which warranted a reduction in his level classification.

Petitioner commenced this action in June 2014. After several procedural delays, the case eventually came before the Court on Petitioner's renewed motion for judgment on the pleadings filed pursuant to Mass.R.Civ.P. 12(c) (Docket No. 24.0). See Superior Court Standing Order 1-96. It is Petitioner's renewed motion with which this decision and order is concerned. Petitioner argues, inter alia, that the Board's decision violates his constitutional rights and is otherwise not in accordance with law because the Board required him to bear the burden of proof at his reclassification hearing, and because he was denied the benefit of legal counsel at that hearing. The Board argues to the contrary. It also has requested that the Court remand Petitioner's case to the Board for a rehearing in light of the Supreme Judicial Court's recent decision in Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 41 N.E.3d 1058 (2015) (" Doe No. 380316 "), which the Board interprets as imposing on Petitioner the burden of establishing, by clear and convincing evidence, that his circumstances warrant a reduction in his sex offender level classification.

The Court conducted multiple hearings in this matter, most recently on November 22, 2016. Having now considered all of the parties' written submissions and the oral arguments of counsel, Petitioner's renewed motion for judgment on the pleadings is ALLOWED for the reasons, and to the extent discussed below.

Factual Legal, and Procedural Background ^[2]

This case and the Board regulations in question have a lengthy factual, legal, and procedural background that the Court does its best to succinctly summarize as follows.

I. The Massachusetts Sex Offender Registry Law.

The Massachusetts Legislature first enacted a sex offender registry law in 1996. See St. 1996, c. 239. Following a series of judicial decisions identifying certain " infirmities" in the original statute, the Legislature enacted the present, significantly revised version of the law, which appears at G.L.c. 6, § § 178C-178Q (the " Sex Offender Registry Law" or the " Registry Law"), in 1999. Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 755, 857 N.E.2d 473 (2006). As described by the Supreme Judicial Court (" SJC"), the Massachusetts Sex Offender Registry Law, as currently written,

provides that a person convicted of any of the enumerated sex offenses on or after August 1, 1981, or released on or after August 1, 1981, from confinement, parole, or probation supervision following a conviction of one of these offenses, is a " [s]ex offender" . . .

provides for the appointment by the Governor of a seven-member sex offender registry board. A sex offender who lives or works in the Commonwealth must register with the board by mail, listing his name, home address, and (if applicable) work address, or his intended home and work addresses . . . [and]

provides for post-registration hearings and mandates the order of priority in which offenders are to be reviewed. The board is to promulgate guidelines

for classifying an offender's level of dangerousness and risk of reoffense and apply those guidelines to assess the risk level of particular offenders . . . Once an offender receives notice from the board of its initial recommended classification, he can request an evidentiary hearing to determine his future duty to register and his final classification. The board then assigns a final risk classification level: level one (low); level two (moderate); or level three (high). Offenders may seek judicial review pursuant to G.L.c. 30A, § 14, of the board's final classification and registration requirements . . .

Id. at 756 (citations omitted).

While the origins of the Sex Offender Registry Law date back to 1996, the provisions of the law concerning reclassification hearings are of a much more recent vintage. Prior to 2013, the Registry Law contained no procedural mechanism for the Board to modify a previously-classified sex offender's level classification upward or downward based upon updated information. In 2013, the Legislature further amended Section 178L of the Registry Law (see St. 2013, c. 38) so as to authorize the Board, " on its own initiative or upon written request by a police department or district attorney, " to " reclassify any registered and finally classified sex offender in the event that new information, which is relevant to a determination of a risk of re-offense or degree of dangerousness, is received." G.L.c. 6, § 178L(3). The Registry Law, as amended, also empowers the Board to " promulgate regulations defining such new information and establishing the procedures relative to a reclassification hearing held for this purpose, " provided, however, that certain procedural safeguards are followed, including that,

(i) the hearing is conducted according to the standard rules of adjudicatory procedure or other rules which the board may promulgate, (ii) the hearing is conducted in a reasonable time, and (iii) the sex offender is provided prompt notice of the hearing, which includes: the new information that led the board to seek reclassification of the offender, the offender's right to challenge the reclassification, the offender's right to submit to the board documentary evidence relative to his risk of reoffense and the degree of dangerousness posed to the public, the offender's right to retain counsel for the hearing, and the offender's right to have counsel appointed if the offender is indigent, as determined by the board using the standards in chapter 211D.

Id.

Significantly, Section 178L(3), as currently written, does not distinguish between reclassification proceedings that may be conducted for the purpose of increasing a sex offender's classification level, and reclassification proceedings that may be conducted for the purpose of decreasing a sex offender's classification level. Id. Nor does Section 178L prescribe which party shall bear the burden of proof at any reclassification hearing the Board may hold. Id.

II. The Board's Reclassification Regulations and Procedures.

The Board responded to the 2013 legislative amendments to Section 178L by adopting regulations which establish two different procedural paths for sex offender reclassification hearings. The first path, titled " Board Seeks Reclassification of Sex Offender, " applies to cases in which the Board, " on its own initiative, seek[s] to reclassify any registered and finally classified sex offender upon Receipt of any information that indicates the offender may present an increased risk to reoffend or degree of dangerousness." 803 Code Mass. Regs. § 1.37C(10) (2013) (the " First Path Regulations").^[3] Reclassification hearings conducted pursuant to the First Path Regulations incorporate all of the procedural protections mandated by amended Section 178L, including the right to notice, the right to offer evidence relative to his or her risk of re-offense and degree of dangerousness posed to the public, the right to be represented by counsel at the reclassification hearing, and the right to have counsel appointed if indigent. Id., § 1.37C(10)(c) (incorporating, by reference, all of the procedures and protections pertaining to initial classification hearings). The First Path Regulations also provide that the Board bears the burden of proof at any reclassification hearing conducted pursuant to those regulations. Id., § 1.10(1) (incorporated, by reference, in the Board's First Path Regulations at § 1.37C(10)(c)). A reclassification decision issued pursuant to the First Path Regulations is deemed to be a " final decision" of the Board and is subject to judicial review in accordance with the provisions of G.L.c. 30A, § 14. 803 Code Mass. Regs. § 1.24 (incorporated, by reference, in the Board's current First Path Regulations at § 1.32(4)).

The second path, titled " Sex Offender's Request for Reclassification, " applies to cases in which a registered sex offender submits his or her own request for reclassification to the Board. 803 Code Mass. Regs. § 1.37C(1)-(9) (2013) (the " Second Path Regulations").^[4] The Board's Second Path Regulations permit a registered Level 2 or Level 3 sex offender who has not been convicted of a new sex offense to " file a written motion with the Board to re-examine his or her classification level" no sooner than " three years after the date of his [or her] final classification ." Id., § 1.37C(2). Any request for reclassification submitted by a registered sex offender is subject to a...