Opinion
10-P-1354
12-13-2011
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 8148 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
In March, 2008, the plaintiff (Doe) filed this action against the Sex Offender Registry Board (SORB), seeking the belated opportunity to contest his 2005 classification as a level 3 sex offender, on the ground that SORB failed to provide him with notice of the classification process and hearing. After granting Doe's motion on the pleadings and denying that of SORB, a judge of the Superior Court vacated Doe's level 3 classification and remanded the matter to SORB for purposes of conducting a classification hearing. Before us is SORB's appeal. We reverse.
Background. After the Massachusetts sex offender registration law, G. L. c. 6, §§ 178C-178P, took effect in 2002, Doe was identified as a person required to register. While he did not do so immediately, on August 19, 2004, Doe provided SORB with a completed, signed sex offender registration form, SOR Form 1-R, identifying his current address as 39 Kingston Street and his secondary address as 444 Harrison Avenue. He did not indicate that he was homeless; however, the addresses in question are those of two homeless shelters in Boston. At the bottom of the form, Doe signed an acknowledgment that he knew and understood that he was to notify SORB or the police department at least ten days prior to 'any change in residence.'
Doe was convicted of sex offenses in 1968, 1969, and 1973, and, for a time, was committed to the Bridgewater treatment center.
On October 22, 2004, SORB sent a letter to Doe at the Kingston Street address notifying him of the initiation of sex offender classification proceedings and of his right to submit documentary evidence within thirty days. R.A. 11-13. While Doe claims that he did not receive this mailing, he concedes that it was not returned to SORB as 'undeliverable.' A month later, on November 19, 2004, SORB sent the same letter to Doe at the Harrison Avenue address. This letter was returned to SORB as undeliverable, but not until June, 2005. On January 7, 2005, SORB sent a letter to Doe at the Kingston Street address informing him that he had been preliminarily classified as a level 3 sex offender, and that the classification would become final unless he contacted SORB within twenty days to request a hearing. This letter was returned as undeliverable, on January 26, 2005.
On February 14, 2005, Doe mailed to SORB a signed and completed registration form, SOR Form 2, checking off his status as a level 3 sex offender, listing the Kingston Street address as his mailing address, and also using it as the return address on his envelope. In March, 2008, Doe commenced this action.
Discussion. Doe's complaint should have been dismissed as untimely. Although Doe did not receive the January, 2005, notice of his final classification, he registered as a level 3 sex offender in February 2005, thereby indicating that he had knowledge of his status determination. Even assuming, without deciding, that the time for him to challenge his classification was tolled until then and that he could turn directly to the courts for relief, Doe's failure to do so for more than three years thereafter renders his complaint untimely and the Superior Court without jurisdiction.
In the usual course, a sex offender may request an evidentiary hearing to challenge his preliminary classification within twenty days of receiving notice of SORB's final decision. G. L. c. 6, § 178L(1)(a)-(c). If the offender does not request a hearing within twenty days, the classification becomes final and 'shall not be subject to judicial review.' G. L. c. 6, § 178L(2).
This is the case whether his complaint is viewed as a request for judicial review of an agency decision, see G. L. c. 30A, § 14(l), subject to a thirty-day appeal period, as an action in the nature of certiorari, see G. L. c. 249, § 4, subject to a sixty-day appeal period, or as an action for declaratory judgment.
We are unpersuaded by Doe's argument that, because he did not receive notice of how to challenge his classification, due process requires that his claims be considered. On August 19, 2004, when he filled out SOR Form 1-R, he knew that he needed to maintain a current address that would allow SORB to contact him and provided a primary and secondary address for this purpose. Later, on October 22, 2004, SORB mailed him a letter informing him that classification proceedings had begun, that he had a right to submit documentary evidence, and of the consequences of a determination under the three classification levels. The letter clearly stated, 'You will be contacted by mail of your recommended registration and classification determination. At that time, you will be notified of your right to request a hearing to challenge the recommendation. For this reason, it is extremely important that you maintain contact with the Board to ensure your mailing address is kept current in the Board's records.'
This notice, which was sent to the Kingston Street address designated by Doe as his primary address, and which he acknowledges was not returned, may be presumed to have been delivered there. In any event, the propriety of SORB's reliance upon the Kingston Street address to contact Doe, as well as his actual knowledge of the classification process, are demonstrated by his registration in February, 2005, when he checked off that he was a level 3 offender, again listed the Kingston Street address as his mailing address, and used the Kingston Street address as his return address on his envelope.
Doe nevertheless argues that SORB must have known he was homeless, knew that he was not reliably receiving his mail, and should have undertaken an investigation to locate him, citing to Roe v. Attorney General, 434 Mass. 418 (2001) (Roe). However, far from supporting Doe's argument, Roe emphasizes the importance of requiring offenders to provide accurate, up-to-date information, and expresses great concern about the consequences of a regime in which SORB would conduct an investigation to locate the offender. Id. at 429-430. During the time period prior to classification, it is the offender's obligation to inform the board as to 'where [he] may be reached' and 'where notices should be sent.' Id. at 429-430. See Commonwealth v. Scipione, 69 Mass. App. Ct. 906, 907 (2007) ('Where a sex offender lives does not control the requirement of registering under the statute').
Although we reach a different conclusion from that of the judge, we can understand her concern about the need for homeless sex offenders to receive notices from SORB in a reliable manner. It is within SORB's discretion, as the agency charged with implementing the sex offender registration law, to consider the feasibility of the judge's suggestion that homeless offenders be permitted to request notification by means of general delivery to a designated post office, in addition to whatever address or addresses they list on their registration forms.
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Conclusion. For the foregoing reasons, SORB's motion for judgment on the pleadings should have been allowed. The judgment for the plaintiff is reversed, and a new judgment shall enter for the defendant.
So ordered.
By the Court (Berry, Cohen & Sikora, JJ.),