Recent decisions support a conclusion that there are, indeed, other avenues to review regulations promulgated by the board. In Commonwealth v. Maker, 459 Mass. 46, 47, 944 N.E.2d 110 (2011), the Supreme Judicial Court transferred a case from the Appeals Court on its own motion in which the trial judge had reported two questions concerning whether a regulation exceeded the statutory authority of the board. The court concluded that the regulation was outside the board's authority and invalidated it.
Regulations are invalid “when the agency utilizes powers ‘neither expressly nor impliedly granted by statute.’ ” Commonwealth v. Maker, 459 Mass. 46, 49–50, 944 N.E.2d 110 (2011), quoting Morey v. Martha's Vineyard Comm'n, 409 Mass. 813, 818, 569 N.E.2d 826 (1991). Nor may regulations validly be promulgated where they “are in conflict with the statutes or exceed the authority conferred by the statutes by which such [agency] was created.”
At all three levels, offenders “must register with the board, provide home and work addresses, notify the board of any changes, and verify their information at regular intervals.” Commonwealth v. Maker, 459 Mass. 46, 48–49, 944 N.E.2d 110 (2011), citing G.L. c. 6, §§ 178E–178F1/2. Those at the lowest risk of recidivism are designated level 1 sex offenders, see G.L. c. 6, § 178K (2) ( a ), and must verify registration information with the board annually by mail.
Because we have recognized and the Legislature has acted to protect the constitutional rights of sex offenders who face classification determinations, and the Legislature provided for waiver of these due process rights only where a sex offender did not request a hearing, we conclude that 803 Code Mass. Regs. § 1.13(2) is not in harmony with the legislative mandate and is ultra vires. See Commonwealth v. Maker, 459 Mass. 46, 50, 944 N.E.2d 110 (2011) (finding regulation requiring level two or three sex offenders who were incarcerated during classification to report in person to local police department within two days of being released from custody was ultra vires, where nothing in statute authorized board to create new registration requirements); Moot v. Department of Envtl. Protection, 448 Mass. 340, 352–353, 861 N.E.2d 410 (2007), S.C., 456 Mass. 309, 923 N.E.2d 81 (2010) (regulation exempting landlocked tidelands from licensing requirements that applied to uses or structures on tidelands was ultra vires because it relinquished Department of Environmental Protection's obligation under applicable statute to protect public's rights in tidelands). We have held that a criminal defendant who has moved to suppress evidence but voluntarily fails to appear at the suppression hearing does not waive the right to suppress evidence or to have a hearing, but may waive the right to be present at that hearing.
See G.L. c. 30A, § 14(7)(a )-(d ). Although an agency may only exercise “the powers and duties expressly conferred upon it by statute and such as are reasonably necessary to carry out its mission,” Commonwealth v. Maker, 459 Mass. 46, 50, 944 N.E.2d 110 (2011) (citation omitted), a plaintiff “challenging the validity of an agency's regulations has a formidable burden.” Biogen IDEC MA, Inc. v. Treasurer & Receiver Gen., 454 Mass. at 187, 908 N.E.2d 740.