JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 8725 vs. SEX OFFENDER REGISTRY BOARD.

CORDY, J. On September 13, 1979, the plaintiff, John Doe, then twenty-two years of age, tendered an Alford plea, see North Carolina v. Alford, 400 U.S. 25 (1970), to a charge of rape. G. L. c. 265, § 22. [Note 1] He was sentenced to a two-year term of probation which he completed without incident on September 9, 1981. Twenty-two years later, on November 10, 2003, the Sex Offender Registry Board (board) notified Doe that pursuant to G. L. c. 6, §§ 178C-178Q, the sex offender registration law (registration law), [Note 2] it was reviewing his case to make a recommendation regarding his duty to register with the board and his classification level. See G. L. c. 6, § 178L (1); 803 Code Mass. Regs. § 1.01 (2002). Doe was given thirty days to submit documentary evidence "relative to his risk of reoffense, the degree of dangerousness posed to the public and his duty to register." 803 Code Mass. Regs. § 1.05(1) (2002). Doe submitted documentary evidence to the board to the effect that he had established a stable life in the community, with a strong network of family and friends, and that he had been married for twenty-one years, had raised three accomplished children, and had maintained steady employment with increasing levels of responsibility over the years. Doe had not been convicted of any crime since his 1981 discharge from probation.

On December 31, 2003, the board recommended that Doe be required to register as a level one sex offender. A level one classification is the classification given to sex offenders whose risk

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of reoffense is low. [Note 3] Doe was informed of his right to request an evidentiary hearing to challenge his classification and registration obligation. See G. L. c. 6, § 178L (1); 803 Code Mass. Regs. §§ 1.06(1), 1.07(1) (2002). On January 11, 2004, Doe requested a hearing, and the matter was assigned to a hearing examiner. [Note 4] See G. L. c. 6, § 178L (1) (c); 803 Code Mass. Regs. § 1.07(2) (2002). The board then filed a motion for a required finding that Doe be classified as a level one offender (without a hearing) because as a matter of law, a person previously convicted of a sexually violent offense (such as rape) [Note 5] was required to register regardless of whether he posed any risk of reoffense or danger to the public, and a level one classification was the least intrusive designation that Doe could obtain under the registration law. The board acknowledged that, although in some circumstances, it could relieve a sex offender of the duty to register and could remove registration information from

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the registry, [Note 6] such relief could not be granted where, as here, the offender had been convicted of a sexually violent offense. See G. L. c. 6, § 178K (2) (d).

In response to the board's motion, the hearing examiner issued an order granting Doe leave to file a rebuttal statement addressing only whether the conviction information presented by the board was accurate, whether he was an adult at the time of his offense, and whether the facts otherwise suggested any exception to the registration requirement of G. L. c. 6, § 178K (2) (d). The order further stated that if, as an adult, Doe had committed a sexually violent offense, annual registration as a sex offender was mandatory pursuant to § 178K (2) (d).

On April 20, 2004, Doe submitted a rebuttal statement in which he claimed that his duty to register was not automatic by virtue of his conviction of a sexually violent offense. In particular, Doe took issue with Section D of the board's "Classification Worksheet," which stated that "[o]ffender currently presents some risk to reoffend and a degree of dangerousness." [Note 7] Doe asserted that there was no basis in the record for this conclusion,

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and that he had a right to challenge it at a hearing. Doe further argued that if G. L. c. 6, § 178K, mandated that he register solely because of his prior conviction, then the application of the statute to him violated his due process rights under the Massachusetts Declaration of Rights.

Notwithstanding Doe's request for a hearing, none was held. By order dated April 22, 2004, the hearing examiner directed Doe to register with the board as a level one sex offender, in accordance with G. L. c. 6, § 178K (2) (a). At the time of the order, there was no evidence that Doe's behavior during the intervening decades since his plea indicated that he posed any risk of reoffense or danger "to the vulnerable members of our communities" that the registration law was intended to protect, [Note 8] a circumstance essentially acknowledged by the hearing examiner. The examiner concluded, however, that because the crime of rape was specified as a "[s]exually violent offense" under G. L. c. 6, § 178C, Doe could be granted no relief from his obligation to register, irrespective of any showing that he posed no such risk. See G. L. c. 6, §§ 178E (e), 178G, 178K (2) (d).

Doe filed a complaint for judicial review of the board's decision in the Superior Court, asserting that his substantive and procedural due process rights under the Massachusetts Declaration of Rights were violated because he was not afforded a hearing to challenge the board's classification recommendation, and there was no evidence to suggest that he posed a danger to anyone so as to necessitate registration. Doe's motion for judgment on the pleadings under Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974), was denied and he was ordered to register as a level one sex offender. Doe filed a timely notice of appeal, and we transferred the case from the Appeals Court on our own motion. For the reasons that follow, we agree that the board's determination that Doe had a mandatory obligation to register annually, solely by virtue of his prior conviction, violates Doe's due process rights as protected by the Massachusetts Declaration

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of Rights. [Note 9] Consequently, we vacate and remand the case to the board to allow Doe to present evidence that he poses no risk to reoffend and thus should not be required to register.

Discussion. The genesis of the duty to register traces back to 1996, when the Legislature first enacted a registration law. G. L. c. 6, §§ 178C-178O. St. 1996, c. 239, § 1. The registration requirements and notification provisions were subsequently held to be unconstitutional and its implementation enjoined in 1997. Doe v. Attorney Gen., 426 Mass. 136 (1997). The registration law was rewritten in 1999, St. 1999, c. 74, § 2, see note 2, supra, and now applies to all persons convicted of certain sex offenses, including persons convicted long before its enactment. [Note 10] Specifically, it applies to persons convicted of a designated sex offense whose "incarceration or parole or probation" had been completed "on or after August 1, 1981." G. L. c. 6, § 178C. Because Doe's probation ended on September 9, 1981, he is subject to the requirements of the 1999 law.

As the board acknowledges, it has authority to relieve some sex offenders of the obligation to register if they establish "that the circumstances of the[ir] offense [and] criminal history do not indicate a risk of reoffense or a danger to the public." G. L. c. 6, § 178K (2) (d). But the 1999 statute mandates that those who have committed a "[s]exually violent offense," which includes rape (G. L. c. 6, § 178C), may never be excused from registration; the obligation is lifetime in duration. G. L. c. 6, §§ 178G, 178K (2) (d). Thus, Doe was not permitted to challenge the board's determination that he posed a risk of reoffense to vulnerable offenders of our communities. This case presents the circumstance we noted, but did not need to decide, in Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750 (2006) (Doe No. 1211), where the record would establish "that Doe poses no risk at all [of reoffense]" and the application of the statutory provisions that

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permanently foreclose his being relieved of the duty to register may be "constitutionally vulnerable." Id. at 762. [Note 11]

1. Retroactivity. In mentioning the registration law's constitutional vulnerability in Doe No. 1211, we did not distinguish between its retrospective and prospective application. However, retroactive statutes raise particular constitutional concerns. "The Legislature's unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals." Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994). This risk is acute in the context of people who have committed crimes that have a sexual component, and who are frequently the target of public ire and scorn.

Inquiry into whether the registration law has been unconstitutionally applied to Doe begins with an examination of whether the registration law is retroactive in its application. We confronted a similar challenge to the application of the sexually dangerous person act, G. L. c. 123A (SDP act), to persons convicted of sex offenses prior to the SDP act's amendment in 1999. See Commonwealth v. Bruno, 432 Mass. 489, 497-499 (2000). We concluded that although a prerequisite for civil commitment under the SDP act was the commission of a sexual offense, and convictions occurring prior to the enactment of the SDP act could be used to satisfy that prerequisite, the statute's application was nonetheless not retroactive. Id. at 498. In reaching this conclusion, we held that the "requisite sexual offense convictions determine only the persons eligible for potential civil commitment, and [are] not the basis for commitment." Id. The basis

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of the commitment or, as we stated, "the conduct triggering the statute's application" was the person's "current mental condition" and consequent present sexual dangerousness, thereby making the application of the SDP act prospective. Id. [Note 12] In other words, the enactment of G. L. c. 123A did not attach "new legal consequences to events completed before its enactment." Id., quoting Landgraf v. USI Film Prods., supra at 270.

The same could be said of the registration law if a conviction for sexual offenses predating its enactment subjected a person only to potential registration and classification, or even a presumption of registration, with the ultimate registration requirement tied to an assessment (by the board) of the person's current level of dangerousness and risk of reoffense. With respect to some sex offenders, that is how the law operates. See G. L. c. 6, § 178K (2) (d). See also G. L. c. 6, § 178E (c), (f). However, with respect to Doe, his conviction of rape, a "[s]exually violent offense" as defined by G. L. c. 6, § 178C, makes the statutory presumption of risk conclusive. G. L. c. 6, §§ 178C, 178G, 178K (2) (d). The sole basis for the requirement that Doe register, therefore, is the fact that he pleaded guilty to rape in 1979. Thus, in Doe's case, the registration law attaches new legal consequences to events that occurred before its enactment, and must be considered retroactive for the purposes of further constitutional inquiry. See Commonwealth v. Bruno, supra at 498-499 (discussing "new consequence" formulation of retroactivity).

A retroactive statute that imposes an additional punishment on past, and already punished, criminal behavior undoubtedly runs afoul of double jeopardy prohibitions. [Note 13] We have said, however, that the registration law is generally regulatory rather

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than punitive. See Commonwealth v. Bruno, supra at 499-502; Opinion of the Justices, 423 Mass. 1201, 1224-1227 (1996). See also Powers v. Commonwealth, 426 Mass. 534, 538-539 (1998), quoting Hudson v. United States, 522 U.S. 93, 99 (1997) (in determining whether civil sanctions constitute punishment, we must consider whether law was intended to be civil and, if so, whether statutory scheme was "so punitive either in purpose or effect" as to "transfor[m] what was clearly intended as a civil remedy into a criminal penalty"). [Note 14] While nonpunitive retroactive regulation is not unconstitutional per se, it nonetheless raises due process concerns. American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., 374 Mass. 181, 189-190 (1978).

Retroactive laws must meet the test of "reasonableness" to comport with State constitutional due process requirements. Id. at 190. "[O]nly those retroactive statutes 'which, on a balancing of opposing considerations, are deemed to be unreasonable, are held to be unconstitutional.' " St. Germaine v. Pendergast, 416 Mass. 698, 702 (1993), quoting Leibovich v. Antonellis, 410 Mass. 568, 577 (1991). The burden is on the challenger to make a factual showing that the statute is irrational in its application. Ultimately, the "principal inquiry -- as to reasonableness -- is essentially a review of whether it is equitable to apply the retroactive statute against the plaintiffs." American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., supra at 191.

In determining whether the application is equitable -- and thus whether the regulation is reasonable -- we examine the statute from three perspectives: "the nature of the public interest which motivated the Legislature to enact the retroactive statute; the nature of the rights . . . affected retroactively; and the extent or scope of the statutory effect or impact." Id. [Note 15]

2. The nature of the public interest. In contrast to American

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Mfrs. Mut. Ins. Co. v. Commissioner of Ins., supra at 192-193, and Leibovich v. Antonellis, supra at 577-578, where the court was required to consider what could or may have been the motivating reasons for the Legislature to enact the statutes that were at issue, in the case of the registration law, the Legislature was explicit regarding the public interest it was seeking to protect and advance. The purpose behind the registration law, as stated in the emergency preamble to its revision in 1999, is to protect "the vulnerable members of our communities from sexual offenders." See note 8, supra. In particular, the Legislature found "the danger of recidivism posed by sex offenders, especially sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior, to be grave and that the protection of the public from these sex offenders is of paramount interest" (emphasis added). St. 1999, c. 74, § 1. It also found that "law enforcement agencies' efforts to protect their communities" from sex offenders are "impaired by the existing lack of information known about sex offenders who live within their jurisdictions"; that the registration of sex

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offenders is a proper exercise of police powers "regulating present and ongoing conduct, which will provide law enforcement with additional information critical to preventing sexual victimization"; and that the "registration by sex offenders is necessary in order to permit classification of such offenders on an individualized basis according to their risk of reoffense and degree of dangerousness" (emphasis added). Id.

There is no dispute that "[s]ex offenders are a serious threat in this Nation," Connecticut Dep't of Pub. Safety v. Doe, 538 U.S. 1, 4 (2003), quoting McKune v. Lile, 536 U.S. 24, 32 (2002) (plurality opinion), and that the public interest in protecting vulnerable members of the community from sexual predators is a compelling one. But it is nearly impossible to conclude that this interest and the statute's defined purposes are served by imposing, without any opportunity for classification "on an individualized basis," a registration requirement on a person who committed a single sexual offense more than twenty-four years before the board's imposition of the requirement, and whose demonstrable record since that time contains no evidence whatsoever of "predatory [sexual] acts characterized by repetitive and compulsive behavior." [Note 16]

3. The nature of the rights affected. The rights affected by the registration requirement, while not fundamental, are nevertheless substantial. [Note 17] As applied, the registration law requires Doe to register annually and requires the Commonwealth annually

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to inform local and Federal law enforcement officers that, in its view, Doe presents a risk of committing a sex offense, despite his conduct between 1979 and the present that demonstrates otherwise. Doe v. Attorney Gen., 426 Mass. 136, 144 (1997). See Roe v. Attorney Gen., 434 Mass. 418, 453 (2001) (Marshall, C.J., concurring in part and dissenting in part). If Doe is forced to register, even though his information would not be released publicly, he would nevertheless be "singled out and brought to the attention of the law enforcement agencies in the municipalities in which [Doe] live[s] and work[s]." Id. at 450 (Marshall, C.J., concurring in part and dissenting in part). Thus, in the eyes of those entrusted with enforcing the law, he would be forever viewed as a threat to the most vulnerable members of the Commonwealth, left to suffer the consequences of such an unsavory designation. [Note 18]

Although Doe was not afforded "any opportunity to show

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what he likely could: that he is not a danger to children or other vulnerable persons," he would now be obligated to register or face criminal penalties. Id. at 449 (Marshall, C.J., concurring in part and dissenting in part). We have noted that such registration presents an "importantly distinct kind of constitutional danger," because it "forces an action on the person required to register. It is a continuing, intrusive, and humiliating regulation of the person himself." Doe v. Attorney Gen., supra at 149 (Fried, J., concurring). Ultimately, Doe would be required to acquiesce to the State's determination that he poses a continuing threat of reoffense, and regularly provide the board with his home and work addresses. He would be forced to say annually, and without regard for the past one-quarter century, "I am a sex offender, and here is where to find me." Such a requirement would fundamentally change the nature of the relationship between Doe and State, and would be "in principal quite alien to our traditions." Doe v. Attorney Gen., 430 Mass. 155, 162 (1999), quoting Doe v. Attorney Gen., 426 Mass. 136, 150 (1997) (Fried, J., concurring). [Note 19]

4. The extent of the abrogation of the asserted rights. The burden imposed by the retroactive statute must be reasonable in scope and extent. In making that determination, we have asked whether the imposition is short-term, or of infinite duration. American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., 374 Mass. 181, 196 (1978). We have also considered whether the scope of the statute is narrowly drawn to treat the problem perceived by the legislature. Leibovich v. Antonellis, 410 Mass. 568,

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579-580 (1991). American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., supra. Here, the registration requirement is properly viewed as a "continuing, intrusive, and humiliating regulation of the person himself." Doe v. Attorney Gen., supra at 149 (Fried, J., concurring). It is imposed yearly, without exception, and in Doe's case, it "shall never be terminated." G. L. c. 6, § 178G. "Offenders cannot shorten their registration or notification period, even on the clearest demonstration of rehabilitation . . . . However plain it may be that a former sex offender currently poses no threat of recidivism, he will remain subject to long-term monitoring and inescapable humiliation." Smith v. Doe, 538 U.S. 84, 117 (2003) (Ginsburg, J., dissenting).

Conclusion. When considering the retroactive application of civil statutes, we balance "opposing considerations." Leibovich v. Antonellis, supra at 577, quoting American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., supra at 189-190. Here, the requirements the registration law would impose on Doe are extensive and permanent. Moreover, if Doe can establish that he poses neither a risk of reoffense nor a danger to the communities the law was intended to protect, the imposition of the registration law's requirements on him would not further the law's substantial and important purposes. Consequently, the retroactive imposition of the registration requirement without an opportunity to overcome the conclusive presumption of dangerousness that flows solely from Doe's conviction, violates his right to due process under the Massachusetts Constitution.

Doe must be granted the hearing he has requested, in accordance with the procedure set forth in G. L. c. 6, § 178L, where he will have the opportunity to demonstrate that he neither poses a risk of reoffense nor is a current danger to vulnerable members of our communities.

The Superior Court decision is vacated. The case is remanded to the board for an evidentiary hearing.

So ordered.