Opinion
11-P-1695
12-14-2012
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 30412 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 from a judgment of the Superior Court affirming a decision of the Sex Offender Registry Board (board) that classified the plaintiff as a level three sex offender. The question before us is whether the board violated the plaintiff's due process rights by holding the final classification hearing when the plaintiff was incompetent and unable to assist his attorney in preparation. ,
We assume, arguendo, that the plaintiff is incompetent.
The plaintiff does not challenge, on substantial evidence grounds, the sufficiency of the hearing examiner's determination.
--------
That question, however, is now settled. See Doe, Sex Offender Registry Bd. No. 27914 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 610, 613-616 (2012) (Doe No. 27914). In Doe No. 27914, we held that holding a reclassification hearing for a sex offender who had previously been adjudged incompetent in a New Hampshire court, and who we assumed to be incompetent at the time of the hearing, did not violate his due process rights. Id. at 615-616. We see no reason to depart from that conclusion here. The plaintiff was entitled to a 'de novo hearing before an impartial hearing examiner, appointed counsel, prehearing discovery, the ability to file motions prior to the hearing, and a written final decision,' as well as the opportunity to a review of the decision by the Superior Court and on appeal. Id. at 615. Although the plaintiff was not able to assist counsel in preparation, he still had 'the assistance of counsel to investigate the facts underlying the board's classification and to evaluate the propriety of the board's application of any of the twenty-four factors it must consider.' Ibid. Moreover, the Supreme Judicial Court has held that holding a civil commitment hearing while the sexually dangerous person is incompetent does not run afoul of due process. See Commonwealth v. Nieves, 446 Mass. 583, 591 (2006); Commonwealth v. Burgess, 450 Mass. 366, 372- 376 (2008). The liberty interest in civil commitment, potentially for life, is much greater than the liberty interest at stake here, that being registering as a level three sex offender. See Doe No. 27914, supra at 615. Thus, if civil commitment hearings can be held while the subject is incompetent without violating due process, there is no reason why a board classification hearing cannot be constitutionally held. Id. at 615-616. The plaintiff attempts to distinguish Doe No. 27914 because he is already committed to the Massachusetts Treatment Center as a sexually dangerous person under G. L. c. 123A, §§ 12-14. Therefore, according to the plaintiff, the 'compelling interest in protecting the public . . . from recidivism by sex offenders' is not present in this case. Doe No. 27914, 81 Mass. App. Ct. at 615. We find this argument unavailing. See Doe, Sex Offender Registry Bd. No. 1 v. Sex Offender Registry Bd., 79 Mass. App. Ct. 683, 688 (2011) ('The statutory purposes are also promoted by allowing final classifications of sex offenders while they are incarcerated'); Doe, Sex Offender Registry Bd. No. 22351 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 904, 904-905 (2012) ('The plaintiff has provided no convincing showing based on the language of the statute that the timing of the classification process for sex offenders confined as [sexually dangerous persons] was meant to be different than that for sex offenders who are incarcerated'). Our conclusion in Doe No. 27914 is still applicable. '[D]ue process does not entitle [incompetent] offenders to greater protection than that afforded their competent counterparts.' Doe No. 27914, supra at 616.
Judgment affirmed.
By the Court (Trainor, Agnes & Sullivan, JJ.),