Opinion
13-P-1187
12-19-2014
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 21849 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals the Sex Offender Registry Board's decision classifying him as a level three sex offender and the Superior Court's Order affirming the decision of the board. We also affirm.
The plaintiff argues that the decision of the board was not supported by substantial evidence and was arbitrary and capricious. On appeal, however, the plaintiff "has the 'heavy' burden of showing that the agency decision . . . is not supported by substantial evidence." Zoning Bd. of Appeals of Canton v. Housing Appeals Comm., 76 Mass. App. Ct. 467, 472-473 (2010), quoting from DSCI Corp. v. Department of Telecommunication & Energy, 449 Mass. 597, 603 (2007). "Substantial evidence is 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006) (Doe, No. 10216), quoting from G. L. c. 30A, § 1 (6). "This standard is highly deferential to an agency . . . ." Ten Local Citizen Group v. New England Wind, LLC, 457 Mass. 222, 228 (2010).
The Legislature has enacted statutory factors that the board is required to consider in determining an offender's risk of reoffense and degree of dangerousness to the public. G. L. c. 6, § 178K(1)(a)-(l).
The board has promulgated regulations to guide it in applying each of these statutory factors. See Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 809-813 (2006). The hearing examiner has discretion to consider which regulatory factors apply and the weight given to those factors based on the evidence at the hearing. Id. at 812-813. The detailed guidelines have "the force of law and must be accorded all the deference due to the statute." Id. at 811, quoting from Massachusetts Fedn. of Teachers v. Board of Educ., 436 Mass. 763, 771 (2002).
It is not necessary to rehearse the plaintiff's criminal history nor is it necessary to restate the regulatory factors found by the hearing examiner and affirmed by the Superior Court in classifying the plaintiff as a level three offender. We have reviewed the record and these determinations are supported by substantial evidence and are certainly not arbitrary and capricious.
In addition, we emphasize that the hearing examiner determined that two of the six factors identified by the Legislature as "indicative of a high risk of reoffense and degree of dangerousness posed to the public" applied to the plaintiff. G. L. c. 6, § 178K(1)(a)(i)-(vi). The presence of any one or more of these factors demonstrates the potentially high risk and dangerousness that the plaintiff may pose to the public and lends support to the board's classification determination. Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 763-764 (2006). Doe, No. 10216, supra at 788. Additional aggravating factors were also found by the hearing examiner and were adequately supported by the evidence.
The plaintiff has waived any argument that the hearing examiner did not consider the effect of his age at the time of his hearing by neither raising the issue then nor in his appeal to the Superior Court. See Albert v. Municipal Court of the City of Boston, 388 Mass. 491, 493-494 (1983). See also Wynn & Wynn, P.C. v. Massachusetts Commn. Against Discrimination, 431 Mass. 655, 674-675 (2000). Even if we were to consider the argument, the plaintiff has provided no evidence in any of these forums regarding the effect of his age on recidivism.
To the extent that we have not discussed any of the plaintiff's arguments, we have not overlooked them but have determined that they are without merit and do not require discussion. The judgment of the Superior Court upholding the Board's classification of the plaintiff is affirmed.
So ordered.
By the Court (Trainor, Grainger & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 19, 2014.