Opinion
19-P-949
06-15-2020
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 9391 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
Following a 1999 conviction of aggravated rape, Doe was classified as a level three sex offender by the Sex Offender Registry Board (SORB) in 2004. More than ten years later, in 2018, Doe filed a motion with SORB requesting a de novo evidentiary classification hearing claiming that he never received notice of SORB's recommended classification or of his administrative rights. SORB denied the motion on the grounds that the notices were mailed to the address Doe provided and that Doe had never updated his address as required under G. L. c. 6, § 178E. Doe appealed from that denial to the Superior Court pursuant to G. L. c. 30A. Doe's motion for judgment on the pleadings was denied and judgment entered for SORB. He now appeals from that judgment to this court, arguing that "mailing coupled with non-receipt was not notice reasonably calculated to apprise Doe of his right to a classification hearing." We affirm.
Background. In May 2004, two days before his release, Doe signed an "Incarcerated Sex Offender Registration Form" in which Doe listed his intended home address as 6 Bowdoin Street in the Dorchester section of Boston. The form notified Doe of his obligation to report any change of address to SORB. He also signed a second document titled "Acknowledgment of Notification of Duty to Register as a Sex Offender." As its name suggests this form memorialized that Doe had been advised of his duty to register and his right to submit documentary evidence to SORB in connection with classification proceedings.
Between June and October 2004, SORB sent a series of notices to Doe at his listed 6 Bowdoin Street address: (i) a notice of Doe's right to submit documentary evidence and materials to SORB within thirty days; (ii) an offender registration form to be completed and returned to SORB; (iii) a notice informing Doe of SORB's recommendation that Doe be classified as a level three offender and of his right to an evidentiary hearing to challenge that recommendation and of his right to representation; and finally (iv) a notice informing Doe that, by failing to respond to the notices, Doe had waived his right to an evidentiary hearing and that the recommended level three classification had become final. All of these notices were returned to SORB as undelivered and unopened with an "NSN" notation handwritten on the envelope.
"No Such Number" (NSN) is the United States Postal Service's term for mail that is not deliverable as addressed.
In denying Doe's motion, the Superior Court judge found that SORB had no additional steps available to it to ensure that Doe received notice due to the privacy protections mandated in the preclassification portion of the Commonwealth's sex offender registry scheme. The judge reasoned "[e]ven if [SORB] were required to take reasonable, additional steps to notify Doe 9391 once it learned that the notices sent to Doe 9391 had been returned unopened, the [Supreme Judicial Court] had already considered and rejected as inappropriate all of the practicable, reasonable steps [SORB] might have undertaken [in Roe v. Attorney Gen., 434 Mass. 418 (2001)]." In the end, the judge found that SORB was permitted to rely on the address Doe provided to it.
Discussion. A reviewing court may modify or set aside an agency's decision only if it was "(a) [i]n violation of constitutional provisions; or (b) [i]n excess of the statutory authority or jurisdiction of the agency; or (c) [b]ased upon an error of law; or (d) [m]ade upon unlawful procedure; or (e) [u]nsupported by substantial evidence; or (f) [u]nwarranted by facts found by the court on the record . . . ; or (g) [a]rbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law." G. L. c. 30A, § 14 (7).
We are unpersuaded that SORB's notice was constitutionally deficient or that more practicable reasonable steps were available to provide Doe notice. Roe, 434 Mass. 418, places the burden on offenders to provide SORB with accurate, up-to-date information, and expresses great concern about the consequence of a regime in which SORB would conduct an investigation to locate the offender. Id. at 429-430. It is the offender's obligation to inform SORB as to "where [he] may be reached" and "where notices should be sent" prior to classification. Id. Indeed, Doe does not deny signing the incarcerated sex offender registration form where he agreed to notify SORB of any updated address within ten days before moving. See G. L. c. 6, § 178E (h). As articulated in Roe, supra at 428-431, the requirement to do so balances the offender's right to confidentiality with his nonfundamental right to receive notice under the due process clause. We further agree with the judge's observation that Doe's fourteen-year delay in commencing this action lends little support to the proposition that he was denied due process.
We give little credence to Doe's contention that SORB should have initiated a criminal proceeding against Doe upon his failure to respond to the mailed notices. We agree with the Superior Court judge that the initiation of those proceedings would only risk the premature public disclosure of the offender's confidential information. See Roe, 434 Mass. at 429.
"[The due process clause] requires only that the Government's effort be reasonably calculated to apprise a party of the pendency of the action" (citation omitted). Dusenbery v. United States, 534 U.S. 161, 170 (2002).
Doe is free to seek a review of his status via a reclassification hearing, where SORB will be required to prove his current dangerousness and risk of reoffense by "clear and convincing evidence." Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 298 (2015).
Judgment affirmed.
By the Court (Vuono, Milkey & Desmond, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 15, 2020.