Opinion
21-P-854
11-03-2022
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 302343 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 23.0
The plaintiff, John Doe No. 302343 (Doe), appeals from a Superior Court judgment which affirmed a decision of the Sex Offender Registry Board (board), to reclassify him as a level three sex offender. On appeal, Doe's sole claim is that the board failed to process his reclassification proceedings in a reasonable period of time and thereby deprived him of due process of law. We affirm.
On February 14, 2013, the board notified Doe, who had been previously classified as a level two offender in 2011, of its intent to reclassify him as a level three sex offender. Doe challenged the board's preliminary reclassification, a de novo hearing was held, and a decision issued on August 14, 2013, affirming his classification as a level three offender. Doe appealed the board's reclassification decision to the Superior Court pursuant to G. L. c. 30A, § 14. While the appeal was pending, the Supreme Judicial Court held in Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297 (2015), that all pending classifications and appeals thereof were to be reconsidered under the higher evidentiary standard of clear and convincing evidence.
Doe was not given a new hearing in the aftermath of Doe No. 380316 , but instead when the board discovered a "procedural error" in Doe's case, he was returned to a level two classification while the error was rectified.
In 2019, the board again notified Doe of his duty to register as a level three sex offender. He again challenged this preliminary reclassification determination. A hearing examiner conducted a de novo hearing, after which he determined that Doe was properly reclassified as a level three sex offender. In 2020, after review, a Superior Court judge affirmed the hearing examiner's decision to reclassify Doe as a level three sex offender.
On appeal, Doe claims that his reclassification proceedings were not conducted within a "reasonable" time, and that the information used was no longer "new" by the time of the 2019 reclassification hearing. Doe candidly admits that his counsel did not make this claim before the hearing officer or in Superior Court. In this posture, our court and the Supreme Judicial Court have routinely held that plaintiffs before the board cannot raise claims for the first time on appeal. See Doe, Sex Offender Registry Bd. No. 3974 v. Sex Offender Registry Bd., 457 Mass. 53, 56 (2010); Doe, Sex Offender Registry Bd. No. 203108 v. Sex Offender Registry Bd., 87 Mass.App.Ct. 313, 320321 (2015). Rather, such claims are treated as waived. See Springfield v. Civil Serv. Comm'n, 469 Mass. 370, 382 (2014).
Doe nonetheless claims that because the factual record of the delay is fully developed, we should review the claim to determine whether the delay resulted in a substantial risk of a miscarriage of justice. We disagree for two reasons. First, although the record discloses the timeline of the reclassification process itself, it discloses neither the necessary reasons for any delay, nor an administrative assessment of the reasonableness of the delay.
For example, there is nothing in the record before us regarding the procedural issue causing the 2017 delay.
Second, our ability to review unpreserved claims of error for a substantial risk of a miscarriage of justice is reserved for criminal cases, see Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967), and cases involving substantial deprivations of liberty, such as determinations of sexual dangerousness, which can potentially result in a one-day-to-life commitment. See R.B., petitioner, 479 Mass. 712, 717-718 (2018) (unpreserved arguments in sexually dangerous person cases are reviewed "for a substantial risk of a miscarriage of justice"). This case, which involves a civil administrative hearing to classify a previously-convicted sex offender, does not fall in either category. See Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass.App.Ct. 639, 646 (2012) (proceedings related to classification and registration under sex offender registry law are not criminal in nature).
To the extent Doe relies on Doe, Sex Offender Registry Bd. No. 16748 v. Sex Offender Registry Bd., 82 Mass.App.Ct. 152 (2012), that reliance is misplaced. In Doe No. 16748 , we held that the plaintiff's constitutional arguments were not waived despite his failure to raise them before the hearing examiner because the board did not have the inherent authority to strike down a regulation or declare it void on constitutional grounds. See id. at 155-156, citing Duarte v. Commissioner of Revenue, 451 Mass. 399, 413-414 (2008). Here, Doe does not seek to strike down a regulation or declare it unconstitutional. Instead, he claims that the board acted with unreasonable delay in the classification proceedings, and thus in violation of Doe's due process rights. Again, he did not raise this claim in his complaint for judicial review of the board's decision in the Superior Court, whereas the plaintiff in Doe No. 16748 properly raised the claim. See id. at 154-155. Doe No. 16748 does not excuse Doe's failure to raise this claim below.
Judgment affirmed.
The panelists are listed in order of seniority.