Opinion
20-P-457
07-06-2021
John DOE, Sex Offender Registry Board No. 2453 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court judgment affirming his final classification by the Sex Offender Registry Board (SORB) as a level two sex offender. See G. L. c. 6, § 178K (2) (b ). On appeal, Doe argues that (1) SORB exceeded its authority in promulgating 803 Code Mass. Regs. § 1.33(2) (2016) (repetitive and compulsive factor); (2) the hearing examiner's decision to classify him as a level two sex offender was not supported by substantial evidence; and (3) the evidence failed to establish that Internet dissemination serves a public safety interest. We vacate the judgment and remand for further proceedings.
Background. In 1993, Doe's eleven year old niece reported that Doe had assaulted and raped her on multiple occasions. On a night when Doe was babysitting for the victim and her siblings, and the two were watching a movie in the basement, Doe sexually assaulted her. Some days later, again in the basement of her house, he raped her. The victim reported that Doe raped her again on three other occasions. Doe was thirty-one years old and the victim was eleven years old when the offenses occurred.
Doe pleaded guilty to one count of indecent assault and battery of a child, G. L. c. 265, § 13B, and four counts of rape and abuse of a child, G. L. c. 265, § 23. He was sentenced to five concurrent State prison terms of three to five years, with nine months to serve, the balance suspended, and two years of probation. Doe's criminal history also contains nonsexual offenses, including convictions for assault and battery by means of a dangerous weapon, malicious destruction of property, and possession of a class B controlled substance.
Doe was first notified of his duty to register as a level two sex offender in 2014. After a hearing, the hearing examiner found, by a preponderance of the evidence, that Doe posed a moderate risk to reoffend and a moderate degree of dangerousness and ordered Doe to register as a level two sex offender. Doe sought judicial review, and after a Superior Court judge affirmed the classification decision, and while Doe's appeal was pending before this court, the Supreme Judicial Court decided Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297 (2015). Doe's case was remanded for a de novo hearing under the heightened "clear and convincing evidence" standard of proof, and a different hearing examiner classified Doe as a level two sex offender. A Superior Court judge affirmed the examiner's decision. Doe appealed.
Discussion. 1. Repetitive and compulsive factor. After oral argument in this case, we requested the parties to brief the issue of the impact of a Superior Court judgment declaring the repetitive and compulsive factor, 803 Code Mass. Regs. § 1.33(2) (factor two), to be invalid. See Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., Middlesex Superior Court, Docket No. 20-1130-B (April 16, 2021). Both parties indicated that the decision is binding on this case, such that the classification determination should be reviewed without application of factor two. Doe argues that, without factor two, the level two classification is not supported by substantial evidence. SORB argues that excision of factor two would likely result in the same conclusion. On this record, we cannot be confident that factor two did not materially affect the outcome. As a result, we remand to the hearing examiner to consider the issue anew, without consideration of factor two.
2. Substantial evidence. Because the hearing examiner will consider the issue anew, we need not determine the ultimate issue of whether the classification was supported by substantial evidence.
3. Internet dissemination. In Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 656-657 (2019), a case decided while this appeal was pending, the Supreme Judicial Court ruled that, prospectively, before ordering Internet dissemination of a sex offender's registry information, a hearing examiner must make explicit findings that a public safety interest is served by Internet publication. As in this case, where the examiner did not make findings, we have the "discretion to determine whether to remand the case for explicit findings," or instead to conclude that "the underlying facts of the case ... so clearly dictate the appropriate classification level ... that a remand for findings is not necessary." Id. at 657 n.4. Given that the case is being remanded for consideration without the application of factor two, we also remand for the hearing examiner to make explicit findings regarding the public safety interest in Internet dissemination.
The judgment is vacated, and a new judgment shall enter remanding the matter to the Sex Offender Registry Board for further proceedings consistent with this memorandum and order.
So ordered.
Vacated and remanded