89 Mass. App. Ct. 901

January 29, 2016

Sex Offender. Sex Offender Registration and Community Notification Act. Constitutional Law, Sex offender. Due Process of Law, Sex offender, Hearing, Standard of proof. Practice, Civil, Sex offender, Standard of proof. Administrative Law, Hearing, Standard of proof. Internet.

In our decision dated May 5, 2015, we affirmed a judgment of the Superior Court issued under G. L. c. 30A, § 14, affirming the administrative decision of the Sex Offender Registry Board (board) designating Doe No. 203108 (Doe) as a level three sex offender. See Doe, Sex Offender Registry Bd. No. 203108 v. Sex Offender Registry Bd., 87 Mass. App. Ct. 313 (2015) (Doe No. 203108). Doe timely filed a petition for further appellate review on May 18, 2015.

On December 22, 2015, the Supreme Judicial Court denied Doe's application without prejudice and remanded the case to this court for further consideration in light of two recent decisions, Doe, Sex Offender Registry Bd. No. 7083 v. Sex Offender Registry Bd., 472 Mass. 475 (2015) (Doe No. 7083), and Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass. 492 (2015) (Doe No. 3839). 473 Mass. 1106 (2015). Although we conclude that neither of those decisions requires us to alter our decision in Doe No. 203108, Doe is nonetheless entitled to a new classification hearing in light of Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297 (2015) (Doe No. 380316).

In this case, Doe's classification hearing was held twenty months before his eventual release date, but just seven months before his earliest possible release date. (He had recently been denied parole, but the parole board offered him an opportunity to request reconsideration ninety days after the denial.) Unlike the plaintiff in Doe No. 7083, at the time of his classification hearing Doe was not also civilly committed as a sexually dangerous person (SDP), making release on parole unlikely because of the need to obtain a Superior Court order of discharge. See Doe No. 7083, supra at 487 & n.11. Moreover, unlike the plaintiff in Doe No. 7083, Doe did not request a further continuance of his classification hearing date or ask the board to keep his classification proceeding open until immediately prior to his actual release. See id. at 480-481.

In Doe No. 3839, the board held the classification hearing more than three years before the plaintiff's eventual discharge date. Doe No. 3839, supra at 494-495, 501. At the time of the hearing, the plaintiff was civilly committed as an SDP, but after three additional years of treatment, he was found to be no longer sexually dangerous and was discharged into the community. Ibid. In this case, Doe's

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hearing was held twenty months prior to his eventual release, in contrast to being held thirty-eight months prematurely in Doe No. 3839, and the record does not disclose any changed circumstances comparable to those present in Doe No. 3839. Accordingly, we adhere to our decision in Doe No. 203108, supra at 319-320, that Doe's hearing was not so unreasonably premature as to violate due process or amount to an abuse of the board's discretion, especially in the absence of any request for a continuance.

Nonetheless, in Doe No. 380316, supra at 300, the Supreme Judicial Court held that the board is required to make its classification decisions based on clear and convincing evidence as opposed to a preponderance of the evidence. “Because our decision is a new constitutional rule,” the court noted, “the higher standard should be applied retroactively only to classification proceedings pending before [the board], the Superior Court, or the appellate courts on the date of the issuance of the rescript in this case.” Id. at 314 n.26. In the case before us, Doe's application for further appellate review was pending on December 11, 2015, when Doe No. 380316 was decided. Therefore, Doe is entitled to a new classification hearing. Moreover, his reclassification must be based on his current circumstances at the time of the new hearing. See Doe No. 7083, supra at 481-482. Both Doe and the board may present new evidence relevant to his then-current risk of reoffense. See id. at 490.

Accordingly, the Superior Court's judgment affirming the board's designation of Doe as a level three sex offender is vacated. We remand the matter to the Superior Court for entry of an order requiring the board to conduct a new evidentiary hearing and to cease disseminating Doe's registry information on the Internet during the pendency of the proceedings. See Doe No. 380316, supra at 315-316.

So ordered.

Inna Landsman for the plaintiff.

Patrick M. Grogan for the defendant.