Opinion
10-P-576
11-22-2011
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 2714 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 final classification by the Sex Offender Registry Board (SORB) requiring him to register as a level two (moderate risk) sex offender. On appeal, the plaintiff asserts that the hearing examiner's decision was arbitrary and capricious and unsupported by substantial evidence. We affirm.
1. Background. In 1995, the plaintiff pleaded guilty to three counts of indecent assault and battery on a child under the age of fourteen, in violation of G. L. c. 265, § 13B. The charges were based on the plaintiff's sexual misconduct towards his niece over the course of two years, beginning when his niece was approximately four years old. In June, 2005, SORB notified the plaintiff that it had preliminarily classified him as a level two sex offender. The plaintiff requested an evidentiary hearing to challenge SORB's determination, and one was held in November, 2007. The hearing examiner upheld the level two classification.
2. Discussion. The reviewing court must determine whether the examiner's decision was supported by substantial evidence, defined as 'such evidence as a reasonable mind might accept as adequate to support a conclusion.' G. L. c. 30A, § 1(6), inserted by St. 1954, c. 681, § 1. The court 'shall give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.' Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006), quoting from G. L. c. 30A, § 14(7). A hearing examiner has discretion to consider the applicability of the regulatory factors in each case, see Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 809-813 (2006), and the decision may be set aside only if it is unsupported by substantial evidence, is arbitrary or capricious, or is not in accordance with the law. G. L. c. 30A, § 14(7).
Here, the hearing examiner provided a detailed and thorough analysis, applying the relevant regulatory criteria to the facts at hand. She noted that the plaintiff 'exhibited repetitive and compulsive behavior when he committed multiple acts upon an extravulnerable four to six year old child over a period of two years' (footnotes omitted) and that he violated his probation in 1997 by moving into a home with children present. Additionally, she found that the plaintiff's conduct 'satisfie[d] two of the high risk criteria identified by the [L]egislature . . . the exhibition of repetitive and compulsive behavior and victimizing a child.'
Contrary to the plaintiff's contention, the hearing examiner properly considered mitigating factors in making her determination. She specifically commended the plaintiff for remaining offense-free since 1995, taking responsibility for his actions, and achieving stability in his life, but concluded that although 'these considerations temper [his] risk and degree of dangerousness' they 'do not eliminate it such that the public should not at least be entitled to his information upon request.' Accordingly, like the trial court judge, we conclude that the examiner's decision was supported by substantial evidence, was not arbitrary or capricious, and was in accordance with the law.
Judgment affirmed.
By the Court (Berry, Cohen & Sikora, JJ.),