Opinion
No. 11–P–432.
2013-04-8
John DOE, Sex Offender Registry Board No. 34827 v. SEX OFFENDER REGISTRY BOARD.
By the Court (COHEN, RUBIN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from a Superior Court judgment affirming John Doe's classification as a level 3 sex offender. Doe alleges that the judge erred by considering his post-classification conduct in granting the Sex Offender Registry Board's (SORB) motion for judgment on the pleadings. We affirm.
Background. In 2008, SORB notified Doe of his obligation to register as a level 3 sex offender. Doe challenged his classification status on January 8, 2009, and SORB's decision was subsequently upheld by a hearing examiner who determined that Doe posed both a high risk to reoffend and a high degree of danger to the public. The hearing examiner ordered Doe to register as a level 3 sex offender.
In February, 2009, Doe sought judicial review of that decision. In July, 2009, Doe filed a motion for judgment on the pleadings. In September, 2009, Doe was arrested for two new offenses, including a sex offense. SORB filed a motion pursuant to G.L. c. 30A, § 14(6), to present additional evidence regarding the new charges. In its motion, SORB did not seek to reopen the hearing and present the new charges before the agency, as outlined by the statute. Rather, SORB sought to have this evidence considered by presenting a copy of the related police report to the Superior Court judge who was to rule on the motion for judgment on the pleadings. The motion was allowed over Doe's opposition and without comment, by a judge other than the judge who ultimately issued the decision affirming SORB'S classification (the reviewing judge). It was error to allow the motion to present new evidence to be presented in the Superior Court. Subsequently, the reviewing judge issued detailed findings affirming SORB's classification of Doe as a level 3 sex offender. In his findings the reviewing judge did not refer to the evidence of Doe's arrest subsequent to his classification as a level 3 sex offender. On September 21, 2012, we remanded the case to the Superior Court for clarification by the reviewing judge as to whether Doe's new arrest was considered in any way in his decision on the motion for judgment on the pleadings. As we indicated in the order for remand, it would have been error for the reviewing judge to consider new evidence in making his decision. The reviewing judge filed a memorandum of decision in response to our order.
In his memorandum, the reviewing judge unequivocally states that he did not consider Doe's new arrest, nor the dismissal of the charges, in his decision affirming Doe's classification.
The judge also included a transcript of the May 6, 2010, hearing.
Discussion.General Laws c. 30A, § 14(6), “does not authorize a reviewing judge to consider extra-record evidence and make findings. It authorizes a judge, upon a showing that evidence not offered before the agency is material to the issues in the case and that there was good reason for the failure to present it to the agency, to ‘ order that the additional evidence be taken before the agency,’ which ‘may modify its findings and decision by reason of such additional evidence’ “ (emphasis added). She Enterprises, Inc. v. State Bldg.Code Appeals Bd., 20 Mass.App.Ct. 271, 273 (1984). Because the reviewing judge did not consider any evidence outside of the administrative record in reaching his decision, Doe's argument to the contrary is without merit.
Judgment affirmed.