JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 147721 vs. SEX OFFENDER REGISTRY BOARD.

MILKEY, J. The plaintiff appeals from a Superior Court judgment that affirmed a decision by the Sex Offender Registry Board (SORB) requiring him to register as a level three sex offender. The plaintiff's status as a sex offender rests on his having been adjudicated delinquent in 2005 by reason of one count of indecent assault and battery on a person fourteen years of age or older (G. L. c. 265, § 13H). The plaintiff was thirteen

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years old at the time of that index offense. Pursuant to G. L. c. 6, § 178E(f), [Note 1] the Juvenile Court judge who sentenced the plaintiff exempted him from the obligation to register as a sexual offender. Three years later, the judge reconsidered his exemption decision based on subsequent conduct that the Commonwealth alleged (but for which the plaintiff never has been charged). The judge ordered the plaintiff to begin the registration process, and after hearing, SORB required him to register as a level three sex offender. In the context of an appeal of SORB's decision, the plaintiff argues that SORB lacked the authority to require him to register based on an adjudication of delinquency for which he had been exempted from registration. The plaintiff further argues that the Juvenile Court judge had no authority to amend his exemption ruling based on subsequent uncharged conduct, and that SORB therefore remained precluded from invoking the registration requirements. We agree and therefore reverse.

Background. When he was in sixth grade, the plaintiff was reprimanded for "grab[bing the] butt" of a female student on the school bus. Two years later, he was charged with multiple sexual offenses involving two girls at his middle school. The girls alleged that over the course of eighteen months, the plaintiff on many occasions touched their breasts and vaginas, and forced them to touch his penis. In addition, one of the girls alleged that the plaintiff violently coerced her into fellating him on three occasions. The plaintiff was charged as a juvenile with twelve counts of indecent assault and battery, three counts of rape, and one count of assault with intent to rape.

In May of 2005, the plaintiff pleaded delinquent by reason of

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one charge of indecent assault and battery, and the other fifteen charges were dismissed. The Juvenile Court judge committed him to the Department of Youth Services (DYS) until he turned eighteen years old, but suspended the sentence and placed him on probation until April 15, 2008. The judge simultaneously issued an order pursuant to G. L. c. 6, § 178E(f), exempting the plaintiff from having to register as a sex offender. The judge issued his order within fourteen days of sentencing as required by the statute, specifically finding that the plaintiff "does not pose a risk of re-offense or a danger to the public." The judge also expressed his intent to revisit the issue later, stating, "This finding will be reviewed upon the juvenile's completion of his probationary period."

In December of 2005, when the plaintiff was fifteen years old, he was suspended from school for sexually harassing female students. For example, according to the school principal, the plaintiff put his arm around one student and made a lewd comment about what he would be doing to her if she were older. For such conduct, he was found in violation of his probation and committed to DYS custody, where he remained until January of 2008. [Note 2] By motion dated March 25, 2008, almost three years after sentencing on the index offense, the Commonwealth asked the same judge to "reconsider" his 2005 order that relieved the plaintiff from having to register as a sex offender. As grounds for its motion for reconsideration, the Commonwealth cited "significant changes in circumstances that show that the juvenile does pose a risk of re-offense and is a danger to the public." The record in the SORB hearing reflects that the Commonwealth was relying, at least primarily, on an alleged incident that had been reported to police the previous month. According to an affidavit from a Gloucester police detective (dated the same day

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as the Commonwealth's motion), a sixteen year old "special needs student" reported that the plaintiff kissed and digitally penetrated her at a party held on February 15, 2008. The context of the affidavit and the detective's reference to the incident as an "assault" suggests that the detective considered the plaintiff's actions to constitute a sexual offense. [Note 3] Without comment, the judge endorsed the Commonwealth's motion as "allowed" on May 8, 2008, [Note 4] and on that same date, an order was entered on the docket requiring the plaintiff to register with SORB. The plaintiff was never charged with any sexual offense relating to the incident at the February, 2008, party.

At the beginning of the SORB process, the plaintiff moved to dismiss the proceeding on the grounds that, through the 2005 order, the judge had exempted him from having to register. The hearing examiner tabled consideration of this matter so that the record could be developed. SORB counsel subsequently documented that the judge had allowed the motion for reconsideration and had ordered the plaintiff to register. On this basis, the hearing officer stated, without further discussion: "I therefore DENY the motion."

While in DYS custody, the plaintiff had participated in sex offender treatment at the Pilgrim Center in Plymouth, and he "graduated" from it on January 14, 2008. By the time of the SORB hearing, the plaintiff was nineteen years of age, he had undergone, and was continuing, psychoanalytic and other therapy, and he was on medication for his "working diagnosis" of bipolar disorder. He submitted various evidence to support his claim that he had left his past behind, [Note 5] including the report and testimony of Dr. Frederick Winsmann, an expert on juvenile sex

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offenders. Dr. Winsmann did not assert that the plaintiff presented no risk of reoffending, but instead testified in detail as to why, in his opinion, the risk was only low to moderate.

The hearing examiner discounted the plaintiff's evidence for various reasons, and she concluded that the seriousness of the plaintiff's past conduct warranted his classification as a level three sex offender. She did not credit SORB's allegations regarding the 2008 incident with the special needs student, and she noted that the plaintiff never was charged for any sexual offense related to that incident. [Note 6] Instead, she relied mainly on the sexual violence that the plaintiff had wreaked when he was twelve and thirteen years old. [Note 7] After the decision, the plaintiff appealed pursuant to G. L. c. 30A, § 14. On the plaintiff's motion for judgment on the pleadings, a Superior Court judge upheld SORB's ruling without comment.

Discussion. The plaintiff's lead argument is that SORB could not compel him to register as a sex offender based on the 2005 adjudication of delinquency because the Juvenile Court judge exempted him from registration for that offense through his 2005 order. [Note 8] See Commonwealth v. Ronald R., 450 Mass. 262 , 264 (2007) (recognizing that G. L. c. 6, § 178E[f], "allows a trial judge to relieve certain sex offenders, who have not been sentenced to immediate confinement, from the obligation to register with [SORB], including certain juveniles who are

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adjudicated delinquent by reason of a sex offense"). [Note 9] As discussed infra, the plaintiff argues that the plain language of G. L. c. 6, § 178E(f), requires a judge to make his exemption decision based on existing information within fourteen days of sentencing, and does not authorize the judge to keep the issue open for later resolution based on subsequent uncharged conduct. If the judge had no authority to rescind his 2005 order, then SORB could not require him to register, because SORB's classification authority is expressly limited to those sex offenders "listed in" the State sex offender registry, G. L. c. 6, § 178K(3), as appearing in St. 1999, c. 74, § 2, and only "sex offenders required to register" are to appear in that registry, G. L. c. 6, § 178D, as appearing in St. 1999, c. 74, § 2. Before resolving the question of the judge's authority, we must address SORB's contention that this issue is not properly before us.

1. Jurisdiction. Relying on Commonwealth v. Ronald R., 450 Mass. 262 , SORB argues that the only avenue through which a sex offender can obtain appellate review of a claim to exempted status under G. L. c. 6, § 178E(f), is through a petition to a single justice of the Supreme Judicial Court filed pursuant to G. L. c. 211, § 3. In Ronald R., a Juvenile Court judge had denied a sex offender's request to be exempted from registration. The sex offender sought to file a direct appeal of the judge's decision, arguing that there was insufficient evidence to support the judge's finding that the juvenile "pose[d] a risk of reoffense or danger to the public." 450 Mass. at 267. The Supreme Judicial Court held that no direct appeal is available but that, where appropriate, "either party may petition a single justice" for relief from the § 178E(f) decision, pursuant to G. L. c. 211, § 3. Id. at 266.

Ronald R. does not stand for the proposition that review of a judge's decision under § 178E(f) can be obtained only through a petition to a single justice of the Supreme Judicial Court. Rather, the court in that case held that a direct appeal from that

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decision was not available. The court declined to "read into G. L. c. 6, § 178E(f), a new route of appeal that was not expressed in the statutory text, where the Legislature has already created a separate process through which [SORB] determines whether a sex offender has a duty to register." Ibid. Ronald R. is consistent with the well-established rule that where administrative remedies exist, they must be exhausted before resort to the courts. See, e.g., Doe, Sex Offender Registry Bd. No. 3974 v. Sex Offender Registry Bd., 457 Mass. 53 , 57-58 (2010), citing East Chop Tennis Club v. Massachusetts Commn. Against Discrimination, 364 Mass. 444 , 448 (1973). The Supreme Judicial Court has been emphatic that a sex offender's route to plenary appellate review is to complete the administrative process and to take an appeal (like the one here) of SORB's ultimate classification decision, pursuant to G. L. c. 30A. Id. at 58 (one who is challenging SORB's authority even based on alleged absence of "predicate facts" that are " 'jurisdictional' in nature" still first must exhaust administrative remedies and raise issue before SORB).

In Ronald R., the court stressed that a judge's denial of an exemption from registration merely puts the SORB machinery in gear, and that it is this separate administrative process "that determines whether a sex offender must ultimately register." 450 Mass. at 266. In the ordinary case, where a judge makes a preliminary determination pursuant to § 178E(f) that a sex offender poses a risk of reoffense or a danger to the public, that determination will be superseded by SORB's decision on that issue. [Note 10] In such a case, review under c. 30A would be of the findings that SORB made at the conclusion of its administrative process, rather than those made by the trial judge in the earlier decision.

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The context of the current case is markedly different for two reasons. First, there is an asymmetry to the statute. A judge's decision to deny an exemption, even if erroneous, leaves a sex offender's statutory obligation to register in place, requiring him to go through the SORB process. By contrast, a decision that someone is exempted from registration has independent force and effect. If the judge's purported "reconsideration" of his 2005 order was without authority, then that order, which relieved the plaintiff of the obligation to register, remained in force, forestalling any registration requirement based on the index offense. Second, the plaintiff here is not arguing that the judge abused his discretion in deciding, as a factual matter, that the plaintiff posed a risk of reoffense. Instead, the plaintiff is arguing that, under the statute, the judge had no authority to revisit that issue. [Note 11] This is a pure question of law that was not superseded by SORB's subsequent determination that the plaintiff otherwise should be required to register.

SORB accurately points out that the hearing examiner did not make an independent assessment of the legal correctness of what the judge did. Moreover, SORB argues that it would not have been proper for the hearing examiner to engage in such review (after all, administrative agencies do not review whether trial judges committed an error of law; appellate courts do). [Note 12] Assuming, arguendo, that SORB properly deferred to the judge, SORB's decision still is subject to judicial review in a c. 30A appeal. If the judge had no authority to reverse the 2005 order, then SORB's decision that the plaintiff was required to register as a sex offender was "[b]ased upon an error of law," and the remainder of the adjudication was "[i]n excess of [SORB's] statutory authority." G. L. c. 30A, § 14(7)(b), (c), as appearing in St. 1973, c. 1114, § 3. This is true regardless of whether

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SORB affirmatively decided that the judge was correct or instead concluded that it had no power to question his ruling. [Note 13]

Notably, while SORB argues that the plaintiff is improperly pursuing a collateral attack on the judge's action, SORB has not suggested what the proper route for a direct plenary appeal would have been (suggesting only that, through G. L. c. 211, § 3, the plaintiff could have requested that a single justice of the Supreme Judicial Court allow such an appeal). [Note 14] Given the sui generis nature of the decision for which the plaintiff seeks review (a decision by a Juvenile Court judge to reconsider a stand-alone civil order issued years earlier collateral to sentencing in a delinquency proceeding), no obvious alternative avenue of plenary appellate review presents itself. In our view, a judicial determination that implicates significant rights merits such review. Especially where the case law so strongly disfavors judicial review until the SORB process has been exhausted, we see no merit in faulting the plaintiff for bringing this matter before SORB in the first instance rather than trying to pursue a direct appeal of the judge's ruling.

In sum, we conclude that in seeking judicial review of whether he was a "sex offender required to register," G. L. c. 6, § 178D, the plaintiff followed the course charted by the case law, and that the question whether the judge had authority to revisit his

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2005 exemption determination is properly before us in the current appeal.

2. Merits. As Ronald R. highlights, a determination whether a sex offender should be exempted from registration is not part of the sentencing decision, but collateral to it. 450 Mass. at 266. The statute requires a judge to make such a determination within fourteen days of sentencing, and it specifies the factors that the judge is to take into consideration in making his decision. Specifically, the statute states in pertinent part:

"[T]he court shall, within 14 days of sentencing, determine whether the circumstances of the offense in conjunction with the offender's criminal history indicate that the sex offender does not pose a risk of reoffense or a danger to the public. If the court so determines, the court shall relieve such sex offender of the obligation to register under sections 178C to 178P, inclusive."

G. L. c. 6, § 178E(f). Consistent with the language of G. L. c. 6, § 178E(f), the judge exempted the plaintiff from registration after having expressly found -- based on what was before him in 2005 -- that the plaintiff "does not pose a risk of re-offense or a danger to the public." Although the judge purported to reserve his ability to change his mind based on the plaintiff's future conduct, nothing in the statutory language suggests he can do so. Nor can a request that the judge change his mind based on conduct occurring many years later properly be characterized as a motion for "reconsideration" of the earlier ruling. [Note 15] In light of the plain language of the statute, we conclude that the judge had no authority to rescind his 2005 order based on the plaintiff's subsequent conduct (for which the plaintiff was not found delinquent and regarding which he was not even charged).

In so concluding, we acknowledge that there is some obvious commonsense appeal to the approach taken by the judge (allowing

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the plaintiff to retain his exemption status only if he stayed out of trouble). However, the question we face is not whether the judge's approach makes sense as a matter of public policy, but whether it is consistent with the statute. The Legislature remains free to enact a probationary approach to exemption by amending the current, unambiguous language of the statute. Such policy issues are for the Legislature to decide, not us. See DiGregorio v. Registrar of Motor Vehicles, 78 Mass. App. Ct. 775 , 782 (2011), quoting from Bulger v. Contributory Retirement Appeal Bd., 447 Mass. 651 , 661 (2006) ("[w]here . . . the language of the statute is clear, it is the function of the judiciary to apply it, not amend it").

We also emphasize the narrow scope of our holding. We do not agree with the plaintiff that once the fourteen-day period has run, a judge loses authority to reconsider his decision, even where the Commonwealth files a timely motion for reconsideration. The error here was not the judge's reconsideration of his decision, but his taking into consideration many years later the plaintiff's alleged subsequent conduct. [Note 16]

Our interpretation does nothing to shield a sex offender from being required to register if he is convicted of (or determined delinquent by reason of) any new sexual offense. The Commonwealth thus has options it can pursue in the event that a trial judge's initial prediction that a sex offender is unlikely to reoffend is belied by a sex offender's subsequent conduct. However, where a judge has determined, based on the conduct before him at the time, that a juvenile is entitled to an exemption from registration, the Commonwealth cannot years later employ the shortcut of asking the judge to reconsider his earlier ruling based on subsequent uncharged conduct.

Conclusion. Because the plaintiff had been exempted from having to register as a sex offender for the only sex offense by reason of which he ever was found delinquent, SORB was without authority to require the plaintiff to register. Accordingly, the

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judgment is reversed, and the case is remanded to the Superior Court for entry of a new judgment vacating SORB's decision.

So ordered.

GRAHAM, J. (dissenting) . A little more than one month after his release from the Department of Youth Services (DYS) commitment, the plaintiff allegedly sexually assaulted a sixteen year old female special needs student at a party. As a result of this incident, the Commonwealth filed a motion to reconsider Sex Offender Registry Board (SORB) registration and requested a hearing on the issue. The Juvenile Court judge, who conditionally had exempted the plaintiff from registration with SORB largely due to his age, reconsidered his decision and ordered the plaintiff to register as a sex offender. After a hearing, a SORB hearing examiner conducted a de novo final classification hearing and issued a detailed decision classifying the plaintiff as a level three (high risk) sex offender, which requires active dissemination of certain information concerning the plaintiff and his history of sex offenses via various means of community notification. [Note Dissent-1]

The majority has concluded that the plain language of G. L.

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c. 6, § 178E(f), did not permit the judge to alter his determination of relief from registration based on conduct that occurs after the fourteen-day statutory deadline. I disagree, and therefore, I respectfully dissent. I would conclude that the proper venue for the plaintiff to challenge the judge's reconsideration of his 2005 order of relief from registration is neither with SORB nor this court, but in the Juvenile Court through a motion for further consideration or, in the alternative, a single justice appeal to determine the judge's ability to revoke his 2005 order excusing Doe from registration. See Commonwealth v. Ronald R., 450 Mass. 262 , 266 (2007) ("Although a sex offender may not appeal from a judge's decision not to waive the registration requirement, we conclude that either party may petition a single justice of this court, pursuant to G. L. c. 211, § 3 . . ."). Here, by claiming that SORB has no jurisdiction to require him to register, the plaintiff improperly is mounting a collateral attack against the judge's decision.

In Ronald R., supra, the court determined that a juvenile does not have the right to a direct appeal of a denial of his petition to waive his sex offender registration obligation, pursuant to G. L. c. 6, § 178E(f), because "there is a separate system in place, i.e., [SORB's], that determines whether a sex offender must ultimately register." However, in this case, the plaintiff is not attacking the denial of a petition to waive sex offender registration, but the legality of the judge's ability to reconsider a prior order of relief from registration, which he claims violates G. L. c. 6, § 178E(f). Therefore, because the plaintiff was not exempted from registration by the judge, SORB properly followed its registration and classification procedures in determining that the plaintiff was required to register as a sex offender.

By raising the issue pursuant to a G. L. c. 30A, § 14, petition for judicial review of SORB's decision, the plaintiff's request amounts to an improper collateral attack against the legality of the judge's order. General Laws c. 30A, § 14, only gives the

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plaintiff a right to judicial review of the SORB decision in order to determine if that decision is supported by substantial evidence, constitutes an abuse of discretion, or reflects an error of fact or law by the hearing examiner.

Moreover, although G. L. c. 6, § 178E(f), requires the judge to make a determination within fourteen days of sentencing, there is no language precluding reconsideration by the judge. The statute neither authorizes nor prohibits the judge from revisiting a conditional finding exempting a plaintiff from registration.

Accordingly, I would conclude that the plaintiff waived his right to contest the legality of the judge's decision to revisit the issue when the plaintiff did not challenge the order when it entered. I would affirm the decision.