JOHN DOE vs. ATTORNEY GENERAL & others [Note 1]

MARSHALL, J. We consider once again a challenge to the registration and notification requirements of the Sex Offender Registration and Community Notification Act, G. L. c. 6, s. 178C-178O (act or sex offender act) [Note 2]. In 1993, the plaintiff, John Doe, then fifteen years old, entered into a negotiated plea agreement with the Commonwealth pursuant to which he was adjudicated delinquent by reason of the rape of a child, G. L. c. 265, s. 23. Doe admitted that he had twice forced a four year old girl to perform oral sex on him. He agreed to enter the plea in reliance on statutory provisions holding juvenile adjudications confidential [Note 3]. He was placed on probation, and has completed his probation and the required counseling. Doe has not been accused of committing any other offenses either prior to or since this delinquency adjudication.

Approximately three years after his delinquency adjudication, Doe was served with notice that an application for a complaint had been filed in the Wrentham Division of the District Court Department, seeking to commence prosecution against him for failing to register as a sex offender [Note 4]. Doe thereupon commenced this action in the Superior Court seeking declaratory and injunctive relief. He claimed that the act is unconstitutional under the

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Federal and Massachusetts Constitutions on its face and as applied to him [Note 5] and that confidentiality provisions governing juvenile adjudications prohibit the defendants (collectively, the Commonwealth) from requiring him to register and from disseminating any sex offender registry information about him.

The Commonwealth agreed to defer enforcement against Doe pending a ruling on his motion for a preliminary injunction. A judge in the Superior Court denied Doe's motion, but issued a temporary stay pending appeal. Doe filed a petition, pursuant to G.L. c. 231, s. 118, for review of that decision by a single justice of the Appeals Court. A single justice continued the stay preventing registration and dissemination of Doe's registration information until further order of the Appeals Court and ordered Doe to file his notice of appeal within two weeks. Doe thereafter took an appeal from the denial of his motion for a preliminary injunction. We transferred the case here on our own motion.

In response to our decision in Doe v. Attorney Gen., 426 Mass. 136 (1997) (Doe [No. 31), the Commonwealth filed a motion to remand the case to the Superior Court to allow it to submit additional evidence [Note 6]. The Commonwealth sought to introduce evidence demonstrating that the Legislature's decision to subject every person adjudicated delinquent or convicted under G. L. c. 265, s. 23, to the provisions of the act was justified, and that no individualized hearing is required in such cases. The motion was allowed by a single justice of this court. The parties thereafter filed in this court a joint supplemental appendix containing additional evidence introduced in the Superior Court [Note 7].

We conclude that an individualized hearing is required, as a

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condition of registration as a sex offender, for persons adjudicated delinquent or convicted under G. L. c. 265, s. 23, absent the promulgation of carefully tailored regulations we discuss more fully below. We remand the case to the Superior Court for further proceedings consistent with this opinion. We do not reach the question whether the act imposes constitutionally impermissible punishment on the plaintiff. Id. at 137 [Note 8].

1. Background. Because of the nature of Doe's delinquency adjudication in 1993, s. 178E (h) of the act requires him to register as a sex offender. Registration will continue for a minimum of fifteen years beyond the date of his adjudication as a sex offender. G. L. c. 6, s. 178G. Once a sex offender registers with the criminal history systems board (board), the sex offender registry board (sex offender board) must classify him as a level one, two, or three offender, based on the risk that he will reoffend. G. L. c. 6, s. 178K [Note 9]. Doe has not registered, and therefore has not been classified. If Doe registered prior to classification, he would nevertheless be subject to the public dissemination provisions of G. L. c. 6, s. 1781 and 178J [Note 10].

The act requires that the board transmit registry information on all offenders to the "police departments where the sex offender intends to live and work and where the offense was committed and to the Federal Bureau of Investigation." G. L. c. 6, s. 178K (2) (c). Section 1781 allows any person over the age of eighteen to receive registry information about a specific

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individual [Note 11]. Section 178J allows a person over the age of eighteen years, for his or her "own protection or for the protection of a child under the age of eighteen or another person for whom [he or she] has responsibility, care or custody," to inquire "whether any sex offenders live or work within a one mile radius of a specific address," or "whether any sex offenders live or work on a specific street [Note 12]." These public dissemination provisions apply to all levels of sex offenders; those classified as level two and level three offenders are subject to additional, more extensive community notification provisions. G. L. c. 6, s. 178K (2).

The judge, who treated Doe as a level one sex offender for purposes of her decision, ruled that Doe had not established a likelihood of success on the merits of his ex post facto, double jeopardy, or cruel and unusual punishment claims because, she concluded, the act is not penal as applied to level one juvenile sex offenders. The judge also ruled that Doe had not established a likelihood of success on the merits of his procedural due process claim because (1) he had no constitutionally protected liberty interest in the privacy of his juvenile adjudication and (2) he was not entitled to a hearing prior to being classified initially as a level one offender. Finally, the judge concluded that the registration and notification provisions did not violate Doe's negotiated plea agreement because the act is remedial and not punitive, and therefore its provisions are collateral to that agreement.

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The judge denied Doe's request for injunctive relief in April, 1997. Accordingly, she did not have the benefit of several of our recent decisions addressing various challenges to the act. See note 6, supra. We review briefly those developments relevant to Doe's claims. In Doe v. Attorney Gen. (No. 2), 425 Mass. 217, 219, 222 (1997) (Doe [No. 2]), we upheld the grant of a preliminary injunction on the ground that the notification provisions of s. 1781, as opposed to those in s. 178J, might impose constitutionally impermissible punishment on a person convicted before the act's effective date. We noted the "absence of any apparent remedial purpose to be served by the general availability of information pursuant to s. 1781." Id. at 222. In that case, the plaintiff twice had been convicted of open and gross lewdness, G. L. c. 272, s. 16, a crime we noted "ranks at or near the bottom in seriousness" in a ranking of the sex offenses defined in G. L. c. 6, s. 178C. Id. at 221 n.7, citing Commonwealth v. Fitta, 391 Mass. 394, 396 (1984).

Later in 1997, in Doe (No. 3), supra at 137, we concluded that the act denied the plaintiff procedural due process guaranteed by art. 12 of the Massachusetts Declaration of Rights by failing "to grant him a hearing and fail[ing] to require a finding, if a hearing is held, as to whether he presents a risk to children and other vulnerable persons for whose protection the Legislature adopted the registration and notification requirements of the act." In that case, the registrant, an adult, had been convicted of indecent assault and battery on a person fourteen years or older, G. L. c. 265, s. 13H, after an undercover police officer arrested him in a wooded area near a rest stop "reputed to be a locale for consensual sexual activity between males." Id. at 138. He challenged, on due process grounds, "the absence of any statutory procedure that would permit or require a determination that a low level sex offender should not be required to register at all." Id. at 139. We held that the plaintiff, whom we presumed to be a level one offender (id.), had "sufficient liberty and privacy interests constitutionally protected by art. 12 that he is entitled to procedural due process before he may be required to register and before information may properly be publicly disclosed about him" (emphasis added). Id. at 143. We said that the Commonwealth could not deprive him of those interests without "a hearing and a determination as to whether he must register under the act and, if so, whether sex offender information concerning him should be available on request." Id.

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at 146. The plaintiff, we held, had a right to show that he was not presently a threat to children and other vulnerable persons whom the act seeks to protect before he could be required to register. Id.

Finally, in Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 91 (1998) (Doe [No. 4]), we considered whether "an offender's constitutionally required evidentiary hearing" could be held before the sex offender registry board, and the appropriate level of proof of "the board's classification" of an offender. We concluded that such an evidentiary hearing

"should be held before the [sex offender registry] board pursuant to G. L. c. 30A, that the appropriateness of an offender's risk classification must be proved by a preponderance of the evidence, and that the board must make specific, written, detailed, and individualized findings to support the appropriateness of each offender's risk classification."

Id. Both registrants in that consolidated case had been convicted of rape of a child, G. L. c. 265, s. 23, and indecent assault and battery of a child under the age of fourteen, G. L. c. 265, s. 13B, and each had been classified by the sex offender registry board as a level three offender. Id. at 95-96. We also said in that case that "[w]hether a hearing is required as a condition of registration for those convicted of any, or only some, of the listed offenses is not a question that has been resolved by this court" (emphasis added). Id. at 97 n..8. We now address those of Doe's claims not resolved by our earlier decisions.

2. Procedural due process. Doe claims here that, because he has protected liberty and privacy interests implicated by the registration and attendant notification provisions of the act, he must have the opportunity to be heard on the issue whether he currently is a threat to children before the Commonwealth may require him to register as a sex offender or make available to the public any of his registration information. Our function on review of the denial of a preliminary injunction is to determine whether the judge abused her discretion. Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615 (1980). We "focus on whether the lower court applied the proper legal standard and whether the record reasonably supports the lower court's

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factual determinations." T & D Video, Inc. v. Revere, 423 Mass. 577, 580 (1996), citing Packaging Indus. Group, Inc. v. Cheney, supra. As we described above, the judge denied injunctive relief before we had issued several decisions addressing various and similar challenges to the act. In addition, while there was no testimony given in the Superior Court before the judge denied the request for injunctive relief, and therefore no credibility issue on which we would defer to her, Packaging Indus. Group, Inc. v. Cheney, supra at 616, the judge did not reconsider her order after she took additional evidence on remand of this case to her by a single justice of this court [Note 13]. We therefore deal with a question of law in light of an expanded factual record, but without the benefit of the judge's views concerning widely conflicting evidence.

Registration - the requirement that a citizen regularly report to the police for an extended term of years - engages serious liberty interests, and presents an "importantly distinct kind of constitutional danger." Doe (No. 3), supra at 149 (Fried, J., concurring). It is

"a continuing, intrusive, and humiliating regulation of the person himself. To require registration of persons not in connection with any particular activity asserts a relationship between government and the individual that is in principle quite alien to our traditions, a relationship which when generalized has been the hallmark of totalitarian government."

Id. at 149-150 (Fried, J., concurring) [Note 14]. See Doe (No. 4), supra at 100-101 (sex offenders "have a constitutionally protected

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liberty and privacy interest in avoiding registration and public dissemination of registration information").

In the case of a level one offender, the engagement of that liberty interest is heightened by the public access to his registration information that the statute permits [Note 15]. Contrary to the Commonwealth's claim, the public notification provisions of G. L. c. 6, s. 1781 and 178J, do burden the liberty and privacy interests of those whom the government seeks to regulate. Moreover, we have already concluded that a level one offender has a liberty and privacy interest protected by the Constitution of the Commonwealth implicated by the requirement that he register, the disclosure of his accumulated personal information on request, and the statutory branding of him as a public danger: a sex offender. Doe (No. 3), supra at 144. Those same concerns are applicable here. The burden of registration, combined with public dissemination provisions applicable to all registrants, triggers liberty and privacy interests protected by the Constitution of the Commonwealth that the Commonwealth may not impinge without procedural due process [Note 16]. We need not pass on Doe's Federal procedural due process claim. See Doe (No. 3), supra at 144 & n.9.

We now consider whether Doe, adjudicated delinquent by reason of G. L. c. 265, s. 23, must be afforded an individualized hearing as a condition of registration [Note 17]. We do so by balancing "the individual interest at stake and the risk of an erroneous deprivation of liberty or property under the procedures that the State seeks to use against the governmental interest in achieving its goals." Doe (No. 3), supra at 140, citing Aime v. Commonwealth, 414 Mass. 667, 675 (1993). The Commonwealth apparently concedes - as it must - that for persons convicted

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of certain offenses enumerated in the act (it does not specify or suggest which) an individualized hearing is required, notwithstanding the legislative decision to enact a general regulatory rule applicable to all offenders in those categories. See Doe (No. 4), supra at 97 n.8; Doe (No. 3), supra at 143, 146. But, it argues, the legislative decision to enact a general rule governing the entire class of persons adjudicated delinquent or convicted under G. L. c. 265, s. 23, affords all the process that is due in those cases.

The crime of rape of a child, G. L. c. 265, s. 23, encompasses a range of very different kinds of offenses. That crime includes any number of acts whose seriousness we well recognize, and for which general subcategories, without further particularization to the individual case, may justify regulation without an individualized hearing of the kind we described in Doe (No. 4), supra. But the statute also encompasses acts such as sexual experimentation among underage peers and consensual sexual activity between teenagers (commonly referred to as statutory rape). In either of these latter circumstances, the State's interest in protecting children from recidivist sex offenders might not he sufficiently urgent to warrant subjecting to registration every person convicted of those acts. Doe (No. 3), supra at 139 (premise underlying sex offender act is that disclosure will help protect minors and other persons vulnerable to becoming victims of sex crimes). Indeed, the expert evidence makes plain that the data concerning recidivism rates change significantly depending on circumstances just such as these. We glean from that evidence that uncertainties surround many aspects of the subject of sex offender recidivism. We cannot presume, and are not able to conclude on the basis of the record before us, that every person convicted under G.L. c. 265, s. 23, will present the same risk of reoffense or a significant threat to children. While the Commonwealth sought to demonstrate that there are high recidivism rates for "child rapists and molesters," it failed to establish that there are high recidivism rates for all of the subcategories of offenders who have engaged in one of the various conducts that supports conviction under G. L. c. 265, s. 23. It is not clear, for example, that the Commonwealth's use of the term "child molester" refers to an individual adjudicated delinquent by reason of G. L. c. 265, s. 23, based on sexual experimentation with an underage peer. Because we can envision situations, some of which we have suggested, where the

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risk of reoffense by one convicted under G. L. c. 265, s. 23, may be minimal and the present danger of that person to children not significant, the general legislative category does not adequately specify offenders by risk so as to warrant automatic registration of every person convicted under that statute.

The question remains whether an individualized hearing is required in every case. Where the State seeks to impinge.on a recognized liberty interest, triggering the right to procedural due process, we have held that the requirements of due process are notice and the opportunity to be heard. Matter of Kenney, 399 Mass. 431, 435 (1987), citing Goldberg v. Kelly, 397 U.S. 254, 267 (1980). See Mathews v. Eldridge, 424 U.S. 319, 332-335 (1976). Situations may exist, however, where the danger to be prevented is grave, and the risk of reoffense great, such that the promulgation of regulations narrowly tailored to allow for automatic registration may clarify and simplify the enforcement of the sex offender registration act in a manner that comports with procedural due process.

Such regulations may treat certain offenders - for example, those convicted of repeated crimes of violence against young children - as automatically presenting a threat to vulnerable populations. Those offenders may not be entitled to individualized hearings before being required to register. But because the deprivation of protected liberty interests in those cases will occur without an opportunity to be heard, the burden will be on the sex offender registry board to demonstrate, through appropriately promulgated regulations, that the offender is in a category that poses a grave threat to children and other vulnerable populations and that the risk of reoffense in those circumstances is compelling [Note 18]. Offenders who fall within this category will, in any event, be entitled to a hearing in connection with their classification, Doe (No. 4), supra at 91.

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Offenders who fall into other categories will be entitled, prior to registration, to an individualized hearing. See Doe (No. 4), supra at 91. The burden will be on the sex offender board to establish at the hearing that the offender poses a risk to vulnerable populations [Note 19]. We recognize that our holdings here and in Doe (No. 4), supra, and Doe (No. 3), supra, potentially mandate that the sex offender board hold two such hearings - one prior to requiring an offender to register and one prior to classifying that same offender. We leave to that board's discretion the determination whether to consolidate the two hearings [Note 20]. In the absence of such regulations, we express no view regarding which category would include Doe.

Those adjudicated delinquent or convicted under G. L. c. 265, s. 23, are entitled to an individualized hearing to determine whether they are required to register absent the sex offender board's promulgation of regulations that identify with particularity for each subcategory of offender and offense the fit between the remedial measure sought by the Commonwealth (registration and public dissemination of registry information) and the danger to be averted (protecting children from harm). See Opinion of the Justices, supra at 1224-1225. Registration is a stringent regulatory regime, permissible only "where the danger is great and the measures are carefully calibrated to the needs of the particular case." Doe (No. 3), supra at 148 (Fried, J., concurring). The burden is on the sex offender board to establish that certain conduct justifies automatic registration in each case.

3. Enforcement of the plea agreement. Independent of his constitutional claims, Doe contends that he is entitled to enforcement of his plea agreement. He argues that he agreed to waive his constitutional right to seek an acquittal in exchange for an

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agreement by the Commonwealth to treat him as a juvenile. Doe makes no claim that there was any express promise by any prosecutor that his records would be treated as confidential. Rather, he says, the confidentiality of his records was "an immediate, automatic and inescapable consequence" of that "exchange," and the confidentiality provisions mandated by various statutes governing juvenile adjudications, in effect at the time of his plea agreement [Note 21], constituted "an element" of his plea agreement that he is entitled to enforce. We conclude that the operation of the statutes did not create an enforceable term of Doe's plea agreement.

Our decision in Doe v. Attorney Gen. (No. 1), 425 Mass. 210 (1997) (Doe [No. 1]), informs our resolution of this issue. In that case we addressed the apparent conflict between G. L. c. 119, s. 60A, providing for the confidentiality of juvenile adjudications, and the notification provisions of the act [Note 22]. We concluded that "[t]he explicit legislative requirement that a discrete portion of juvenile court records be disclosed pursuant to the disclosure provisions of the sex offender act must prevail over the more general rule of confidentiality afforded to delinquent juveniles in G. L. c. 119, s. 60A." Doe (No. 1), supra at 216. We determined that the plaintiffs due process claim in that case "depended on the continued existence of a statutory right of confidentiality as to his delinquency conviction." Id. We rejected his claim that he had such a right. Id.

Although that case involved a statutory challenge to the notification provisions, rather than a contractual challenge based on a plea agreement, Doe's claim here is, in essence, the same. While he fashions his argument in contractual terms, he relies

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on nothing more than the content of the applicable statutes [Note 23]. The record gives no indication that the prosecutor made either an express or an implied promise of confidentiality. Because we have already concluded that there is no continuing statutory right to the confidentiality of a juvenile adjudication in the face of the act's dissemination provisions, Doe's contractual challenge also fails.

4. Conclusion. A judgment shall enter in the Superior Court declaring that the registration requirements and notification provisions of G. L. c. 6, s. 178C-178O, are unconstitutional as applied to Doe in the absence of either an individualized hearing to determine whether he is a present threat to children because of the likelihood that he will reoffend or the promulgation of regulations identifying with particularity as to offender and offense the fit between the remedial measure sought by the Commonwealth (registration) and the danger to be averted. An injunction shall be entered in the Superior Court enjoining the Commonwealth from requiring Doe to register under the sex offender act and from distributing or releasing any information concerning him pursuant to that act pending either a determination adverse to him following an individualized hearing before the sex offender board or that board's promulgation of such regulations and the application of those regulations to him.

So ordered.