Opinion
20-P-115
01-21-2022
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 524363 v. SEX OFFENDER REGISTRY BOARD.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0
The plaintiff, John Doe, appeals from a Superior Court judgment affirming his classification by the Sex Offender Registry Board (SORB) as a level three sex offender. The index offenses were trafficking of persons for sexual servitude in violation of G. L. c. 265, § 50 (a.), deriving support from prostitution, and kidnapping, to which the plaintiff pleaded guilty. The facts underlying those convictions are well known to the parties and need not be repeated here. The hearing examiner found that under the applicable regulations, the evidence supported the application of one high-risk factor, the repetitive and compulsive factor, factor 2, 803 Code Mass. Regs. § 1.33(2) (2016). She also concluded that eight risk-elevating factors applied to the plaintiff's case and considered various other mitigating and additional factors.
During the pendency of this appeal, a judge of the Superior Court declared the regulation implementing the repetitive and compulsive factor, 803 Code Mass. Regs. § 1.33(2), to be invalid. See Doe, Sex Offender Registry Bd. No. 22188 vs. Sex Offender Registry Bd., Mass. Super. Ct., No. 20-1130-B (Apr. 16, 2021). SORB has not appealed from that decision and has acknowledged to this court in other cases that the decision in Doe No. 22188 is binding on it and has represented that it no longer relies on factor 2.
Like other panels to have considered the issue, we treat that decision as binding on this case, such that Doe's classification should be reviewed without application of factor 2. See, e.g., Doe, Sex Offender Registry Bd. No. 526277 v. Sex Offender Registry Bd., 100 Mass.App.Ct. 1102 (2021); Doe, Sex Offender Registry Bd. No. 524065 v. Sex Offender Registry Bd., 100 Mass.App.Ct. 1102 (2021); Doe, Sex Offender Registry Bd. No. 2453 v. Sex Offender Registry Bd., 99 Mass.App.Ct. 1132 (2021). SORB argues that even without the application of factor 2, the hearing examiner would have reached the same conclusion. Given the hearing examiner's reliance on factor 2 and its heft as a high-risk factor, we cannot be confident that factor 2 did not materially influence the hearing examiner's level three classification. The statutory scheme contemplates that we defer to the agency's expertise in these matters. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109 (2014), quoting G. L. c. 30A, § 14 (7). We cannot say that the evidence supporting a level three designation was so overwhelming that application of factor 2 did not materially affect the outcome where SORB has the burden to establish a classification by clear and convincing evidence. See Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 657 n.4 (2019) (Doe No. 496501 ). Therefore, SORB should have the first opportunity to reassess Doe's classification in light of developments since the case was first heard. As a result, we remand to SORB to reclassify Doe without consideration of factor 2 under the regulation as it existed at the time of the classification hearing.
This obviates the need to address the other claims made by the plaintiff with respect to the hearing examiner's decision. We note that the hearing examiner's decision precedes Doe No. 496501 , 482 Mass. at 655-658, in which the Supreme Judicial Court held that, prospectively, SORB would be required to make an explicit finding as to Internet dissemination. Given that the case is being remanded for reconsideration, on remand, the hearing officer shall make explicit findings about whether Internet dissemination serves a public safety interest.
Conclusion.
The judgment is vacated, and the matter is remanded to SORB for further proceedings consistent with this memorandum and order.
So ordered.
The panelists are listed in order of seniority.