Doe v. Walsh, No

Full title: JOHN DOE others, on behalf of themselves and all others similarly situated…

Court: Commonwealth of Massachusetts Superior Court. SUFFOLK, SS

Date published: Sep 20, 2007

No. 07-2052A (Mass. Cmmw. Sep. 20, 2007)

Opinion

No. 07-2052A.

September 20, 2007.

PAUL E. TROY, Justice of the Superior Court.

MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFS' APPLICATION FOR INJUNCTIVE RELIEF

The plaintiffs, four convicted sex offenders on parole (collectively, "Plaintiffs"), commenced this action against the Defendants seeking declaratory and injunctive relief. The Plaintiffs' action arises out of the application of G.L. c. 127, 133D½, which requires them, as sex offenders on parole, to wear a Global Positioning System ("GPS") device at all times and to stay out of certain geographic zones the Parole Board has designated for them.⁴ The action is before this court on the Plaintiffs' application for a preliminary injunction enjoining the enforcement of G.L. c. 127, § 133D½ . After a hearing and for the reasons set forth below, the Plaintiffs' application for injunctive relief is DENIED .

4 The Plaintiffs have not yet sought class certification, but they contend they are part of a class of sex offender parolees to whom the statute allegedly applies.

BACKGROUND

According to the papers, the Plaintiffs are two indigent sex offender parolees, John Doe and Charles Coe, and two non-indigent sex offender parolees, Frank Foe and George Goe. John Doe, age sixty-six, was convicted in another state of armed robbery, assault with intent to rape, and false imprisonment. He alleges that he was sentenced to life for the armed robbery; that sentence was to run concurrently with the two concurrent five-year terms he received for the latter two charges. He further alleges that he served the two five-year sentences in full and that he was paroled on the armed robbery conviction in 1990;⁵ his parole supervision was transferred to Massachusetts in 1991. John Doe registered more than once with the Sex Offender Registry Board ("SORB"), and each time, SORB concluded that John Doe was not required to register as a sex offender. John Doe did not request a hearing nor did the Parole Board give John Doe a hearing or any other opportunity to be heard before installing the GPS devise on him.

5 John Doe claims that his parole papers contain a clerical error because he is not on parole for a sex offense. The court makes no finding on this issue.

Plaintiff Charles Coe, age sixty-six, was convicted in 1988 of rape of a child. He was sentenced to a twenty-year reformatory term and has been on parole for seventeen years.⁶ In 1997, SORB classified Charles Coe as a Level 2 sex offender. Plaintiff Frank Foe, age fifty-one, was convicted of rape in 1990. He was sentenced to a twenty-year reformatory term, and he has been on parole for fourteen years.⁷ SORB classified Frank Foe as a Level 1 sex offender. Plaintiff George Goe, age thirty-eight, was convicted in 1993 of rape of a child and indecent assault and battery of a child under fourteen. He was sentenced to a twenty-year reformatory term, and he has been on parole for ten years.⁸ In 2003, SORB classified him as a Level 1 sex offender.

6 Charles Coe will complete parole in 2007.

7 Frank Foe will complete parole in 2010.

8 George Goe will complete parole in 2013.

In mid-December 2006, the Plaintiffs, along with other sex offender parolees, received a letter from the Massachusetts Parole Board titled "Changes to Parole Conditions." This letter stated:

"This letter is to inform you that, pursuant to a recently passed law, effective Thursday, December 21, 2006, your parole conditions are required to change. This law affects you due to your status on parole for a sex offense(s) and/or community parole supervision for life. Pursuant to the law, you will be required to wear a global positioning system ("GPS") device at all times for the length of your parole. To comply with this condition, you MUST have a telephone line dedicated solely to the GPS device. You must also conform to any other requirements for the implementation of the GPS device. In addition to the GPS condition, the law requires the establishment of Exclusion Zones which will prohibit you from entering certain locations. You will be required to adhere to any Exclusion Zones as determined by the law and remain out of these restricted zones at all times. Entering any of these Exclusion Zones, as described to you by your parole officer, will constitute a violation of the terms of your parole and the law requires us to immediately return you to custody.

"As you know, the new law increases your parole supervision fee from $55 to $80 per month. In addition to the increase in your parole supervision fee, by law you will be required to pay for the cost of 'installing, maintaining, and operating the global positioning system device, or comparable device. . . .' We anticipate the monthly cost of GPS will be approximately $300. We will, however, provide you with a definitive cost in the near future. Pursuant to statute, you may apply for a waiver of the costs and fees. Waiver forms will be available at the parole office."

The letter further informed the Plaintiffs that if they were unwilling to comply with the law's requirements, they were to inform their parole officer.⁹ The Plaintiffs had to demonstrate that they understood and agreed to the terms and conditions set forth in the letter by having their signature on the letter witnessed; the Plaintiffs' parole officers had to sign the letter also.

9 This letter provided as an exhibit to attorney Beth L. Eisenberg's affidavit has portions missing — possibly redacted — from the final two paragraphs. The letter quoted in the Plaintiffs' complaint shows the same missing portions.

The Plaintiffs also received a document titled "Massachusetts Parole Board Global Positioning System Device and Stay Away Zones Acknowledgement Form" which stated:

"I understand that I will be required, as part of my parole, to wear a global positioning system ("GPS") device and to not enter Stay Away Zones as defined by the Parole Board.

"The geographic boundaries of those Stay Away Zones will be explained to me by a Field Parole Officer. I also understand that if I enter a Stay Away Zone, I may be found in violation of parole and subject to sanctions, up to and including being taken into temporary custody and having my parole revoked.

"I also understand that, as part of my parole conditions, I will be required to pay the costs associated with installing, maintaining and operating the required GPS device. The costs will be approximately $300.00 per month for every month that I am on parole supervision, unless waived by the Massachusetts Parole Board.

"I also understand that payment of the GPS costs is due on the last day of the month for that month of supervision. All payments shall be made in the form of a money order or bank check made payable to the 'Commonwealth of Massachusetts'. Payments must be mailed and postmarked no later than the last day of the month to [the Massachusetts Parole Board]. . . .

"I understand that I may pursue a temporary or permanent waiver of the GPS costs if such a waiver is warranted. I further understand that the granting of any waiver of this obligation may only be authorized by parole personnel. I understand that pursuing a waiver is my responsibility, and that if I believe I cannot make the required payments, I must bring this fact to the attention of my Parole Officer, complete the required forms and supply documents supporting my inability to meet this obligation. I understand that I am obligated to pay the GPS costs unless and until Parole personnel grant my request for a waiver.

"I understand the failure to pay the GPS costs may result in sanctions up to and including parole revocation.

"I have read the above information and understand my obligation concerning the payment of GPS costs in accordance with MGL Chapter 127, Section 133D½ ."

The Plaintiffs' signatures on this document also had to be witnessed.

Additionally, the Plaintiffs had to sign a document titled "GPS Equipment Liability Acceptance Form" which stated:

"I, _________, HEREBY ACCEPT FULL FINANCIAL AND LEGAL RESPONSIBILITY FOR THE MONITORING EQUIPMENT THAT IS BEING ISSUED TO ME. I UNDERSTAND THAT THE EQUIPMENT IS THE SOLE PROPERTY OF SENTINEL OFFENDER SERVICES, LLC, AND THAT I WILL BE HELD ACCOUNTABLE FOR ITS STATUS. IN THE EVENT THAT ANY PORTION OF THE MONITORING EQUIPMENT IS DAMAGED, LOST OR STOLEN FROM ME, I UNDERSTAND THAT I WILL BE HELD RESPONSIBLE, BOTH LEGALLY AND FINANCIALLY, IF I REFUSE TO OR FAIL TO MEET THE MONETARY REIMBURSEMENT ARRANGEMENTS.

"I AGREE AND UNDERSTAND THAT THE HOME MONITORING UNIT ATTACHED TO MAY TELEPHONE LINE, THE TRANSMITTER ATTACHED TO MY LEG AND THE TRAKMATE CELLULAR PHONE GIVEN TO ME BY PROBATION/PAROLE PERSONNEL IS MY RESPONSIBILITY. IF THEY ARE DAMAGED, LOST, STOLEN OR DESTROYED, I WILL BE REQUIRED TO REIMBURSE SENTINEL OFFENDER SERVICES, LLC, FOR THE LOSS IN THE FOLLOWING AMOUNTS:

— HOME MONITORING UNIT (HMU) $850.00 — ANKLE TRANSMITTER $250.00 — TRAKMATE $850.00

"I FURTHER UNDERSTAND THAT FAILURE TO MEET MY OBLIGATION TO REIMBURSE SENTINEL OFFENDER SERVICES, LLC, FOR ANY LOSS OR DAMAGE TO THE MONITORING EQUIPMENT WILL RESULT IN LEGAL ACTION BEING FILED AGAINST ME. THESE CHARGES, SUCH AS LARCENY OVER OR MALICIOUS DESTRUCTION, MAY BE FILED WITH THE LOCAL COURT AND THE LOCAL LAW ENFORCEMENT AGENCY.

"I HAVE READ, UNDERSTOOD AND ACCEPT THE ABOVE POLICIES."

(Capitalization and underlining in original). Again, the Plaintiffs' signatures on this document had to be witnessed.

Finally, the Plaintiffs received a document titled "GPS HOME REQUIREMENTS FOR HOME INSTALLATION" which set forth the following list:

"- The Phone Line must be a Dedicated Phone Line

— Must Have Touchtone Service on the Phone Line

— Do Not Connect an Answering Machine/Answering Service to the Phone Line

— Waterbeds Are Not Allowed

— A Person Using a Pacemaker Should Not Be in Range of a Bracelet

— The Telephone must Remain Operational

— Call Waiting Is Not Allowed

— Caller ID Is Not Allowed

— DSL is Not Allowed

— Home Alarms are Not Allowed

— Internet is Not Allowed

— Call Forwarding Is Not Allowed

— 3 Way Calling is Not Allowed

— Do Not Connect a Fax Machine to the Phone Line

— Modems Are Not Allowed

— Satellite Dishes Connected to the Phone Line Are Not Allowed

— Use a Standard R-j 11 Phone Jack (Clip Type) Only

— Phone Jack Extension Cords must Not Exceed 20 Feet

— Do Not Move the HMD Box

— Do Not Disconnect the Electrical Power to the HMD

— Do Not Disconnect the Phone Line to the HMD

— Phone Line, Use Major Carrier Only (Verizon, At t, Etc.)

— Adhere to the Progressive Phone Line Annoyance Function[.]"

This document also informed the Plaintiffs that the " Telephone must Not Be in Jeopardy of Being Disconnected by the Telephone Company for Lack of Payment!!!" (Bold in original). The Plaintiffs' signature on this document had to be witnessed as well.

Plaintiffs Charles Coe, Frank Foe, and George Goe wrote to the Parole Board requesting a hearing concerning the application of G.L. c. 127, § 133D½ . The Parole Board did not respond. The Parole Board has waived the costs associated with the installation, maintenance, and operation of the GPS device for Plaintiffs Charles Coe and George Goe; according to Plaintiffs John Doe and Frank Foe, the Parole Board has not demanded payment from them, although it has not issued a waiver.¹⁰

10 As of the time the complaint was filed, Plaintiffs John Doe, Charles Coe, and George Goe had submitted to the Parole Board written requests for waiver of costs associated with the installation, maintenance, and operation of the GPS device. According to the papers, the Parole Board has not yet responded to these requests.

DISCUSSION

In their complaint, the Plaintiffs seek, in part, preliminary and permanent injunctions enjoining the Defendants from enforcing G.L. c. 127, § 133D½, against the Plaintiffs and from monitoring the Plaintiffs through the use of GPS devices, and requiring the Defendants to remove the GPS devices from the Plaintiffs' persons and their homes.¹¹ "[A] preliminary injunction must be granted or denied after an abbreviated presentation of the facts and the law." Packaging Indus. Group v. Cheney, 380 Mass. 609, 616 (1980). "Since the judge's assessment of the parties' lawful rights at the preliminary stage of the proceedings may not correspond to the final judgment, the judge should seek to minimize the 'harm that final relief cannot redress,' . . . by creating or preserving, in so far as possible, a state of affairs such that after the full trial, a meaningful decision may be rendered for either party."Id. (internal citation omitted).

11 The Plaintiffs also seek these injunctions for "all others similarly situated" to them, i.e., all sex offender parolees within the scope of G.L. c. 127, § 133D½ The Plaintiffs have not yet sought class certification, therefore this court will only consider the Plaintiffs' request for injunctive relief as it applies to them. Even if this court were to consider the requests on behalf of the putative class as well, however, the outcome would be the same.

To succeed in an action for a preliminary injunction, the burden is on the moving party to "show (1) a likelihood of success on the merits; (2) that irreparable harm will result from denial of the injunction; and (3) that, in light of the plaintiff's likelihood of success on the merits, the risk of irreparable harm to the plaintiff outweighs the potential harm to the defendant in granting the injunction." Tri-Nel Mgmt., Inc. v. Board of Health of Barnstable, 433 Mass. 217, 219 (2001), citingPackaging Indus. Group, 380 Mass. at 617; see Packaging Indus. Group, 380 Mass. at 617 n. 12 ("Since the goal is to minimize the risk of irreparable harm, if the moving party can demonstrate both that the requested relief is necessary to prevent irreparable harm to it and that granting the injunction poses no substantial risk of such harm to the opposing party, a substantial possibility of success on the merits warrants issuing the injunction."). "When, as here, a party seeks to enjoin governmental action, the court also considers whether the relief sought will adversely affect the public." Tri-Nel Mgmt., Inc., 433 Mass. at 219, citing Commonwealth v. Massachusetts CRINC, 392 Mass. 79, 89 (1984).

I. G.L. c. 127, § 133D½

On September 21, 2006, the Legislature approved St. 2006, c. 303, which consisted of ten sections, and which was titled "An Act Increasing the Statute of Limitations for Sexual Crimes Against Children." The act consisted of ten sections, only one of which increased the statute of limitations for sexual crimes against children. St. 2006, c. 303, § 9 (amending G.L. c. 277, § 63). The act also made various amendments and additions to G.L. c. 6, concerning sex offender registration. For example, the Legislature shortened the amount of time certain sex offenders have to verify their residences with the Parole Board from ninety days to forty-five days, St. 2006, c. 303, § 2 (amending G.L. c. 6, § 178F), and id. § 3 (amending G.L. c. 6, § 178F½); and the Legislature made Level 2 and Level 3 sex offenders who are convicted under G.L. c. 6, § 178H, for, e.g., failing to register, subject to community parole supervision for life. St. 2006, c. 303, § 4 (adding paragraph (3) to G.L. c. 6, § 178H(a)). Additionally, with St. 2006, c. 303, § 7, the Legislature added section 133D½ to G.L. c. 127; this addition took effect on December 20, 2006.

Chapter 127 of the General Laws is titled "Officers and Inmates of Penal and Reformatory Institutions. Paroles and Pardons[,]" and section 133D½ appears under the subheading "Permits to be at Liberty and Discharge." Section 133D½ to G.L. c. 127 expressly applies to "[a]ny person under court ordered parole supervision or under community parole supervision for life for any offense listed within the definition of 'sex offense', a 'sex offense involving a child' or a 'sexually violent offense' as defined in section 178C of chapter 6. . . ."¹² For each of these sex offender parolees, the statute requires the Parole Board to "establish defined exclusion zones including, but not limited to, the areas in and around the victim's place of employment and school and other areas defined to minimize the parolee's contact with children, if applicable." G.L. c. 127, § 133D½ . In order for the Parole Board to monitor these exclusion zones, sex offender parolees "shall, as a requirement of such parole, wear a global positioning system device, or any comparable device, administered by the [Parole] [B]oard at all times for the length of his parole for any such offense." id. "The fees incurred by installing, maintaining and operating the global positioning system device, or comparable device, shall be paid by the parolee. If the parolee establishes his inability to pay such fees, the [Parole] [B]oard may waive them." Id.

12 As the Plaintiffs point out, the monitoring of certain sex offender parolees with GPS devices began in spring 2005. According to the November 2006 edition of Massachusetts Parole Board News, attached to Attorney Beth Eisenberg's affidavit, the Parole Board designated those parolees who were to be subject to this electronic monitoring requirement by making it a special condition of the parolee's release "if warranted by the nature of his or her crime [e.g., if the parolee was a sex offender]. In such cases, the Parole Board may judge that an offender is ready for the rehabilitative potential of living in the community so long as he or she is prevented from entering certain locations." With G.L. c. 127, § 133D½, then, the Legislature limited the electronic monitoring to sex offender parolees and removed the Parole Board's discretion concerning to whom the monitoring requirement would apply.
It does not appear that the Department of Corrections has promulgated regulations with respect to G.L. c. 127, § 133D½, although in November 2006, the Parole Board promulgated polices that refer to G.L. c. 127, § 133D½,, and that list among the conditions for sex offender parolees the requirement that they

"be placed on electronic monitoring, which may include global positioning satellite (GPS). If the parole officer requests a change in the current monitoring structure of a parolee, the parole officer shall submit to the [Parole] Board a report detailing the proposed changes and the supporting reasons. The parameters of the monitoring [i.e., the geographic exclusion zones] are determined by the supervising parole officer. . . ."

120 PAR 360.03 (Exhibit A to Affidavit of George Valentgas).

"If the parolee enters an excluded zone, . . . the parolee's location data shall be immediately transmitted to the police department in the municipality wherein the violation occurred and the [Parole] [B]oard, by telephone, electronic beeper, paging device or other appropriate means. If the [Parole] [B]oard or the parolee's parole officer believes that the parolee has violated his terms of parole by entering an excluded zone as prescribed in this section, the [Parole] [B]oard or parole officer shall cause the parolee to be taken into temporary custody in accordance with section 149A of chapter 127."

Id.

II. Likelihood of Success on the Merits

In their complaint, the Plaintiffs have alleged a number of constitutional claims. They contend they are likely to succeed on the merits of each of these claims, thereby supporting their request for a preliminary injunction. See Packaging Indus. Group, 380 Mass. at 617. For the following reasons, the Plaintiffs have not demonstrated a likelihood of success on any of their eleven claims.

A. Count I — "Court ordered parole supervision" Status

As noted above, G.L. c. 127, § 133D½, applies to "[a]ny person under court ordered parole supervision or under community parole supervision for life" for certain sex offenses. (Emphasis added). In Count I, the Plaintiffs argue that the statute is void for vagueness because the term "court ordered parole supervision" refers to a status that, according to the Plaintiffs, does not exist in Massachusetts. The Plaintiffs have not established a likelihood of success on this claim.

"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

"To satisfy constitutional requirements, laws must be susceptible to ready understanding by 'men of common intelligence.'" Commonwealth v.Abramms, 66 Mass. App. Ct. 576, 580 (2006), rev. denied 447 Mass. 1110 (2006), quoting Commonwealth v. Gallant, 373 Mass. 577, 580 (1977); seeGrayned, 408 U.S. at 108 ("Vague laws may trap the innocent by not providing fair warning.").¹³ Where the terms of the statute "do not themselves provide clear guidelines, [the statute] may nonetheless be sufficiently definite because of 'judicial construction, common law meaning, or the statutory history of particular terms[.]'" Commonwealth v. Quinn, 439 Mass. 492, 499-500 (2003), quoting Gallant, 373 Mass. at 581. Therefore, "a statute may be rendered 'constitutionally definite by giving it a reasonable construction.'" Id. at 500, quoting Commonwealth v. Sefranka, 382 Mass. 108, 111 (1980).

13 In Grayned, 408 U.S. at 108-109, "the Supreme Court set forth three factors to consider in determining whether . . . [statutes] survive the vagueness challenge." Todd v. Commissioner of Corr., 54 Mass. App. Ct. 31, 35 (2002). The second consideration in determining whether a statute is unconstitutionally vague is the notion that, "'if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.'" Gallant, 373 Mass. at 580, quoting Grayned, 408 U.S. at 108-109. Section 133D½ of G.L. c. 127 clearly sets forth the duties of the Parole Board with respect to the enforcement of the requirements, and the Plaintiffs have not contended that the alleged vagueness of the statute will lead to arbitrary and discriminatory enforcement. See Todd, 54 Mass. App. Ct. at 35-36 (applying second factor to determine whether regulations "set forth sufficient standards to prevent their arbitrary and capricious application by prison officials" and concluding that "regulatory scheme contains adequate specificity to rebut [plaintiff's] vagueness challenge"). The third factor the Court set forth in Grayned is whether the statute's "'literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment. . . .'" Gallant, 373 Mass. at 580, quoting Smith v. Goguen, 415 U.S. 566, 573 (1974); see Grayned, 408 U.S. at 109 ("Uncertain meanings inevitably lead citizens to '"steer far wider of the unlawful zone" than if the boundaries of the forbidden areas were clearly marked'" (ellipses in original) (quotations omitted)). "The third part of the vagueness test also is not applicable in this case because the [Plaintiffs'] claim in no way implicates First Amendment freedoms." Todd, 54 Mass. App. Ct. at 35 n. 7.

Although the Plaintiffs are correct in their argument that it is the Parole Board, and not the courts, that grants parole,¹⁴ see G.L. c. 27, § 5, application of common intelligence demonstrates that the challenged phrase is not so vague as to render G.L. c. 127, § 133D½, void. Section 133D of G.L. c. 127, is titled "Community parole supervision for life." With the addition of § 133D½ immediately after the definition and description of community parole supervision for life, an exercise of common intelligence indicates that the Legislature's use of the phrase "court ordered parole supervision" intended to expand the application of the § 133D½ requirements beyond community parole supervision for life. This reasonable construction of the phrase not only precludes a finding of vagueness, but also gives effect "'"to all [the statute's] provisions, so that no part will be inoperative or superfluous."'" Wolfe v. Gormally, 440 Mass. 699, 704 (2004), quotingBankers Life Cas. Co. v. Commissioner of Ins., 427 Mass. 136, 140 (1998); see Commonwealth v. Great Atl. Pac. Tea Co., 404 Mass. 476, 482 (1989) (noting that statute is not vague even if "Legislature might 'have chosen "[c]learer and more precise language" equally capable of achieving the end which it sought'" (alteration in original) (quoting United States v. Powell, 423 U.S. 87, 94 (1975))).

14 Indeed, the phrase "court ordered parole supervision" appears nowhere in Massachusetts case or statutory law. Interestingly, the Parole Board's regulations define "probation" as "[t]hat portion of a sentence which the court orders served in the community under the supervision of its Department of Probation. . . ." 120 Code Mass. Regs. § 100 (emphases added); see also id. (defining "split sentence" as "sentence of imprisonment, a portion of which is served in custody and the remainder of which is suspended while the defendant serves a period of probation for such time and on such terms and conditions as the court orders" (emphasis added)). It cannot be hypothesized, however, that the Legislature meant to use the phrase "court ordered probation supervision" rather than "court ordered parole supervision" because with St. 2006, c. 303, § 8, enacted at the same time as St. 2006, c. 303, § 7, the Legislature amended G.L. c. 265, § 47, to impose on probationers the same requirements as it imposed on parolees with its addition of G.L. c. 127, § 133D½.

Accordingly, the Plaintiffs have not demonstrated a likelihood of success on Count I.

B. Count II — Separation of Powers

Pursuant to Article 30 of the Massachusetts Declaration of Rights, "the legislative department shall never exercise the executive and judicial powers, or either or them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men." The Parole Board is part of the Department of Correction¹⁵ which, in turn, is part of the executive branch of government. See G.L. c. 27, § 4; see, e.g., Commonwealth v. Amirault, 415 Mass. 112, 117 (1993) ("The granting of parole is a discretionary act of the [P]arole [B]oard. . . . It is a function of the executive branch of government." (internal citation omitted)); Commonwealth v. Pelletier, 62 Mass. App. Ct. 145, 147 (2004) (holding that judiciary did not "interfere with the executive function of the parole board"). In Count II, the Plaintiffs claim that by enacting G.L. c. 127, § 133D½, the Legislature has infringed upon the Parole Board's exclusive powers of setting the terms and conditions of parole, thereby violating the doctrine of separation of powers set forth in article 30. For the following reasons, the Plaintiffs have failed to establish a likelihood of success on the merits of this claim.

15 Although the Parole Board is part of the Department of Correction, it is "not subject to its jurisdiction. . . ." G.L. c. 27, § 4. The Parole Board "consist[s] of seven members, to be appointed by the governor, with the advice and consent of the council for terms of five years."

"It is undisputed that the lawmaking power is within the prerogative of the Legislature." Opinion of the Justices to the Governor, 384 Mass. 840, 844 (1981) (citation omitted). "[T]he power to order social priorities and to focus the energies of society into the accomplishment of designated objectives or programs is entrusted to the Legislature through the enactment of laws according to prescribed procedures." Id. (citations omitted). The "'Constitution provides that the Governor may veto any bill or resolve presented to him for his signature, and return it to the Legislature with his written objections or with recommended amendments. . . . [A] vote of two-thirds of both houses of the [Legislature] will be required to enact the bill notwithstanding the Governor's objections.'" Id., quoting Opinion of the Justices to the Senate, 375 Mass. 827, 832 (1978). Therefore, "[o]ur system contemplates action by both the legislative and executive branches before a bill may be enacted into law. Amendments to existing legislation also follow this procedure." Id. at 844-845, citing Opinion of the Justices to the Senate, 375 Mass. at 837-838.

In exercising this power, the Legislature enacted G.L. c. 127, § 128,¹⁶ which provides that "parole permits . . . also referred to as permits to be at liberty, may be granted by the [P]arole [B]oard to prisoners in state and county correctional institutions. . . ." SeeGreenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979) ("A state may . . . establish a parole system, but it has no duty to do so."). In delegating this power to the Parole Board, which the Legislature created through G.L. c. 27, § 5,¹⁷ the Legislature set forth the standard the Parole Board must apply when determining whether it should grant parole: the Parole Board should not grant parole "merely as a reward for good conduct but only if the [P]arole [B]oard is of the opinion that there is a reasonable probability that, if such prisoner is released, he will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society." G.L. c. 127, § 130. The Legislature also set forth certain general terms and conditions with which all parolees must comply, acknowledging that the Parole Board has the authority to set the terms and conditions specific to each parolee:

16 One of the Legislature's earliest provisions for parole was St. 1880, c. 218, § 1, in which it instructed,

"[e]very officer in charge of a prison . . . [to] keep a record of the conduct of each prisoner in his custody whose term of imprisonment is not less than four months. Every such prisoner whose record of conduct as aforesaid shall show that he has faithfully observed all the rules of the prison, . . . and has not been subjected to punishment, shall be entitled to a deduction from the term of imprisonment. . . ."

17 The duties of the Parole Board, as set forth in G.L. c. 27, § 5, include determining which prisoners

"may be released on parole, and when and under what conditions. . . . [T]he power . . . to grant a parole permit to any prisoner, and to revoke, revise, alter or amend the same, and the terms and conditions on which it was granted shall remain in the [P]arole [B]oard until the expiration of the maximum term of the sentence or sentences for the service of which such prisoner was committed, or until the date which has been determined by deductions from the maximum term of his sentence or sentences for good conduct, or unless otherwise terminated. . . ."

G.L. c. 27, § 5(a); see 120 Code Mass. Regs. § 101.03(3) ("Parole Board Members determine under what conditions inmates may be released from incarceration to the community under parole supervision.").
It appears that the Legislature first created a "board of parole" with St. 1913, c. 829, titled "An Act to Create Boards of Parole and an Advisory Board of Pardons." With this act, the Legislature provided that "[t]he chairman of the board of prison commissioners, the deputy commissioner whose appointment is authorized by this act and three persons appointed by the governor, with the advice and consent of the council, shall constitute the board of parole for the state prison and the Massachusetts reformatory." St. 1913, c. 829, § 1. Later, with St. 1915, c. 206, the Legislature provided that

"[a]ll the duties and powers of the board of prison commissioners relating to the granting of permits to be at liberty from the state prison, the Massachusetts reformatory, the reformatory for women and the prison camp and hospital and in relation to the revocation of such permits and to the revocation of paroles from the said institutions are hereby transferred to and vested in the several boards of parole for said institutions. All provisions of law relative to the granting of permits to be at liberty by the prison commissioners, so far as they are applicable, shall govern the granting of such permits under this act. The board of prison commissioners shall furnish to the various boards of parole all information in its possession relating to any prisoner whose case is under consideration. No permit to be at liberty . . . shall be granted until the prisoner has been seen by the parole board of the institution in which he is held. When a board of parole has granted or revoked any such permit or has revoked any parole, it shall notify the board of prison commissioners, who shall thereupon issue such permit, or, in the case of a revocation of a permit or parole, shall issue an order for the arrest and return of the person whose permit or parole has been revoked."

(Emphasis added).

"A prisoner to whom a parole permit is granted shall be allowed to go upon parole outside prison walls and inclosure upon such terms and conditions as the parole board shall prescribe. . . . In every case, such terms and conditions shall include payment of any child support due under a support order, . . . provided that the [Parole] [B]oard shall not revise, alter, amend or revoke any term or condition related to payment of child support unless the parole permit itself is revoked."

Id.; see Greenholtz, 442 U.S. at 8 ("[T]o insure that the state-created parole system serves the public-interest purposes of rehabilitation and deterrence, the state may be specific or general in defining the conditions for release and the factors that should be considered by the parole authority." (footnote omitted)).

Consistent with its setting general terms and conditions to be applied to all parolees, the Legislature recently enacted G.L. c. 127, § 133D½, in which it instructs the Parole Board to "establish defined geographic exclusion zones" for certain parolees and to take into temporary custody any parolee who "has violated his terms of parole by entering an excluded zone as prescribed in this section. . . ." G.L. c. 127, § 133D½ . To assist in the Parole Board in monitoring these zones, the Legislature requires that these parolees, "as a requirement of such parole, wear a global positioning system device, or any comparable device, administered by the [P]arole [B]oard at all times for the length of his parole. . . ." Finally, the Legislature requires these parolees to pay "[t]he fees incurred by installing, maintaining and operating the global positioning system device, or comparable device" and authorizes the Parole Board to waive these fees "[i]f a parolee establishes his inability to pay. . . ." Id.

"[A] legislative directive to the executive branch does not result in a per se violation of the constitutional requirement of separation of powers." Opinion of the Justices to the Senate, 375 Mass. at 841. If the Legislature "'attempts to interfere with action taken by the executive department, . . . under existing laws, and thus to project itself into a field of action which belongs to another department,'" then it violates the separation of powers doctrine. Id., quoting Opinion of the Justices to the Senate, 302 Mass. 605, 617 (1939). The Legislature has not acted in violation of this doctrine, where, as here with G.L. c. 127, § 133D½, it has passed a law "'calling for action by the executive department. . . .'" Id., quoting Opinion of the Justices to the Senate, 302 Mass. at 617; cf. Commonwealth v. McQuoid, 369 Mass. 925, 927 n. 1 (1976) ("[T]he power to grant parole or good conduct deductions derives from statute, and, thus, may be limited by the Legislature pursuant to its power to fix penalties [without violating separation of powers doctrine].").

Furthermore, the Parole Board's function is focused on the parolees during their pre-parole imprisonment (i.e., upon which the Parole Board bases its determination of parole eligibility) and during parole (i.e., upon which the Parole Board bases its determination of parole revocation). With G.L. c. 127, § 133D½, however, the Legislature is concerned only with the offenses for which the parolees were originally convicted, and the statute applies only to those individuals on parole "for any offense listed within the definition of 'sex offense', a 'sex offense involving a child' or a 'sexually violent offense' as defined in section 178C of chapter 6. . . ." The Legislature has therefore not "project[ed] itself into a field of action which belongs to another department. . . .'" Opinion of the Justices to the Senate, 375 Mass. at 841, quoting Opinion of the Justices to the Senate, 302 Mass. at 617; cf. Clark, Petitioner, 34 Mass. App. Ct. 191, 195 (1993) (holding that judge's basing allowance of motion to revise and revoke on "information concerning the conduct of the defendant during his incarceration, following the sentence originally imposed by the judge. . . .would 'effectively usurp the decision-making authority constitutionally allocated to the executive branch'" as consideration of such conduct was within exclusive scope of Parole Board).

Consequently, given that the Legislature has a history of setting general conditions for parolees and that G.L. c. 127, § 133D½, is consistent with those other statutes, see Greenholtz, 442 U.S. at 8, and given that G.L. c. 127, § 133D½, does not infringe upon the execution of a sentence, an area with which the Parole Board is concerned, the Plaintiffs have not established a likelihood of success on the merits of Count II of their complaint.

C. Count III — Substantive Due Process

"Substantive due process 'prevents the government from engaging in conduct that "shocks the conscience,". . . or interferes with rights "implicit in the concept of ordered liberty."'" Dutil, Petitioner, 437 Mass. 9, 13 (2002) (ellipses in original), quoting Aime v.Commonwealth, 414 Mass. 667, 673 (1993). "In substantive due process analysis, the nature of the individual interest at stake determines the standard of review that the courts apply when deciding whether a challenged statute meets the requirements of the due process clause."Aime, 414 Mass. at 673; see Commonwealth v. Ellis, 429 Mass. 362, 371 (1999) (holding that Massachusetts courts' "treatment of due process challenges to legislation has adhered to the same standards as those applied in Federal due process analysis"); Blue Hills Cemetery, Inc. v.Board of Registration in Embalming Funeral Directing, 379 Mass. 368, 373 n. 8 (1979) (noting that "[w]hile the State and Federal standards are phrased in virtually identical terms,. . . . [Massachusetts courts] have occasionally been less willing than the Federal courts to ascribe to the Legislature speculative and implausible ends, or to find rational the nexus said to exist between and plausible end and the chosen statutory means"). If the individual interest, or right, at stake is "deemed to be 'fundamental[,]' . . . courts . . . '"typically will uphold only those statutes that are narrowly tailored to further a legitimate and compelling governmental interest.'" Aime, 414 Mass. at 673 (citations omitted). If, however, the "statute does not infringe on a fundamental right, courts will apply a less exacting standard of review whereby a challenged statute will pass constitutional muster . . . if 'it bears a reasonable relationship to a permissible legislative objective.'" Id., quoting Rushworth v. Registrar of Motor Vehicles, 413 Mass. 265, 268 (1992).

1. Fundamental Right

Fundamental rights either explicitly or implicitly arise from the United States Constitution. See LaCava v. Lucander, 58 Mass. App. Ct. 527, 533 (2003). Here, the Plaintiffs allege that G.L. c. 127, § 133D½, infringes on the fundamental right to be free from physical restraint.¹⁸ Specifically, the Plaintiffs characterize the GPS device section 133D½ requires them to wear as a physical restraint.

18 The Plaintiffs also assert that G.L. c. 127, § 133D½, infringes on the fundamental right to be free from unwarranted physical punishment. As discussed below, however, G.L. c. 127, § 133D½, is not a punitive statute, and it does not impose any punishment. This court will therefore not address this argument.

This court agrees that freedom from physical restraint is a fundamental right. Dutil, 437 Mass. at 13. "Freedom from governmental restraint lies at the heart of our system of government. . . ." Aime, 414 Mass. at 677;id. at 674 n. 10 (noting that "right to freedom from physical restraint has been held to be a 'core' right in substantive due process analysis"). Neither the GPS device itself, however, nor the exclusion of the Plaintiffs from certain geographic zones, is the type of restraint within the scope of this fundamental right. Rather, to qualify as a fundamental right, the restraint must be "'detention prior to trial or without trial. . . .'"Id., quoting Foucha v. Louisiana, 112 S. Ct. 1780, 1785 (1992). For example, Massachusetts courts have considered the fundamental right of freedom from physical restraint in the context of detention in a secure facility prior to and during trial under G.L. c. 123A where a judge has already found probable cause to believe the person is sexually dangerous, see Commonwealth v. Knapp, 441 Mass. 157, 157-158, 164 (2004); civil commitment as a sexually dangerous person under the 1990 version of G.L. c. 123A, see Dutil, 437 Mass. at 13; and amendments raising the standard pursuant to which a judge decided whether to release an arrestee on bail, see Aime, 414 Mass. at 671, 675-676. The GPS device requirement is a condition of parole for sex offenders and therefore does not infringe upon the fundamental right of freedom from restraint.

The Defendants characterize the right at issue as a parolee's freedom from having his location monitored. This right, they contend, is not fundamental. This court agrees.

2. Analysis

The court assumes that a parolee's right to be free from having his location monitored, although not fundamental, is still subject to the protection of "the substantive reach of the due process clause of the Fourteenth Amendment to the United States Constitution and the analogous provisions of [Massachusetts'] State Constitution." Blue Hills Cemetery, Inc., 379 Mass. at 372. "Those who challenge the constitutionality of such legislation [that does not infringe upon a fundamental right] 'carry a heavy burden in seeking to overcome the statute's presumption of constitutionality.'" Id. at 371, quoting American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., 374 Mass. 181, 190 (1978). To determine the constitutionality of such a statute, the court must apply the rational basis test which considers "'whether the statute bears a reasonable relation to a permissible legislative objective,' . . . and, under the analogous provisions of the State Constitution . . . whether the statute 'bears real and substantial relation to public health, safety, morals, or some other phase of the general welfare.'" English v. New England Med. Ctr., Inc., 405 Mass. 423, 430 (1989) (internal citation omitted), quoting Blue Hills Cemetery, Inc., 379 Mass. at 373.

As discussed further, below, the purpose of G.L. c. 127, § 133D½, is to protect the victims of sex offender parolees and, where applicable, to protect children from sex offender parolees from coming in close proximity to them. In Knapp, the statute at issue, G.L. c. 123A, infringed upon a fundamental right, therefore the Supreme Judicial Court ("SJC") applied a higher standard of review, considering, in part, whether the governmental interest the statute served was "legitimate and compelling. . . ." 441 Mass. at 164. The SJC concluded that the legislative interest in "the protection of the public from harm by persons likely to be sexually dangerous. . . . [was] both legitimate and compelling." Id., citingCommonwealth v. Bruno, 432 Mass. 489, 504 (2001). Here, the legislative objective is analogous to that interest the SJC approved under a higher standard. See id. Seeking to ensure the protection of victims and children from sex offenders who are serving out their sentences on parole is a permissible legislative objective that relates to the safety of certain members of the public.

The issue, then, is whether the statute bears a reasonable, real, and substantial relation to that legitimate interest concerning the safety of children and of the victims of sex offender parolees. The creation of geographic zones around the areas where victims of sex offender parolees and where children will likely be is a reasonable way to effectuate the legislative objective of protecting those individuals. Requiring the sex offender parolees to wear GPS devices enables the Parole Board to ascertain the safety of the victims and children because the GPS device transmits to the local police department and to the Parole Board the sex offender parolee's location inside an exclusion zone. The GPS device requirement therefore also bears a reasonable, real, and substantial relation to the legislative objective of maintaining the safety of victims of sex offenses and of children.¹⁹

19 The Plaintiffs' arguments are consistent with the arguments of other sex offenders who "have challenged the rationality of residency restrictions by pointing to a lack of evidence that the exclusion zones enhance children's safety." Bret R. Hobson, "Banishing Acts: How Far May States Go to Keep Convicted Sex Offenders Away from Children?" 40 Ga. L. Rev. 961, 977 (2005-2006). On September 13, 2007, the Plaintiffs submitted to this court a letter in which they relied on "No Easy Answers: Sex Offender Laws in the US' to reiterate their argument that G.L. c. 127, § 133D½, is unconstitutional. Susan Tofte, "No Easy Answers: Sex Offender Laws in the US,' Vol. 19, No. 4(G), Sept. 2007. In this article, Human Rights Watch indicates that its research has revealed "that sex offender registration, community notification, and residency restriction laws. . . . cause great harm to the people subject to them. . . . [and] proponents of these laws are not able to point to convincing evidence of public safety gains from them.' Id. at 3. "Courts have conceded [the latter point,] that the efficacy of the restrictions is unproven but have responded that the legislature deserves broad discretion to deal with potentially dangerous situations. Hobson,supra; see Human Rights Watch, supra, at 128-129 (using substantially similar language as Hobson article).
Indeed, Human Rights Watch itself acknowledged that while "the laws can be reformed to reduce their adverse effects without compromising that benefit[,]' Human Rights Watch, supra, "[r]eforming sex offender laws will not be easy. At a time when national polls indicate that Americans fear sex offenders more than terrorists, legislators will have to show they have the intelligence and courage to create a society that is safe yet still protects the human rights of everyone.' Id. at 12 (footnote omitted). The article even sets forth "recommendations for changes in federal and state legislation.' Id. at 15-20. One such recommendation is that "[l]egislators should replace one-size — fits — all registration with a system that limits registration to those who have been individually determined to pose a high or medium risk to the community. In determining that risk, states should take into consideration the offender's prior record, the specific offense committed, the period of time he or she has lived in the community offense — free, and other factors that are statistically correlated with the likelihood of reoffending.' Id. at 46. In its conclusion, Human Rights Watch

"urges legislators and the public to expand their efforts to prevent sexual violence beyond punitive monitoring and information dissemination measures targeting former offenders. . . . Broad-based community notification and residence restriction laws are not the panacea to stopping sexual violence. Those who care about ending sex crimes must demand that policymakers reject one — size — fits — all laws to address sex abuse and begin to invest the political and financial resources in policies that actually work."

Human Rights Watch, supra, at 131.
Thus, although this court understands the Plaintiffs' arguments, an adjudication on these grounds would require an analysis of social policy and social responsibility, inquiries that are beyond the scope of the judiciary's authority. Cf. In the Matter of a Grand Jury Subpoena, 430 Mass. 590, 598 n. 13 (2000) (noting, in context of declining to create new testimonial privilege, that it is not courts' "primary function to promote policies aimed at broader social goals . . . distantly related to the judiciary. This is primarily the responsibility of the legislature. . . . [T]he balance that courts draw might not reflect the choice the legislature would make'" (quoting Babets v.Secretary of Human Servs., 403 Mass. 230, 235 n. 6 (1988))); New England Legal Found. v. Boston, 423 Mass. 602, 611 (1996) ("Courts interpret and apply law already enacted or made part of a constitution by appropriate means."). The Plaintiffs' attempt to insert these considerations into its challenge of G.L. c. 127, § 133D½, while well intentioned, does not alter the underlying presumption that the statute is constitutional. See, e.g., St. Germaine v. Pendergast, 416 Mass. 698, 703 (1993) ("A statute is presumed to be constitutional, and the challenging party must demonstrate beyond a reasonable doubt that there are no conceivable grounds supporting its validity[,]. . . . a heavy burden . . . [in the context of which] every rational presumption in favor of the statute's validity is made." (internal citation omitted)).

Consequently, the Plaintiffs have failed to establish a likelihood of success on their substantive due process claim.²⁰

20 This court notes that even if G.L. c. 127, § 133D½, infringes upon a fundamental right, the Plaintiffs have also failed to demonstrate a likelihood of success under the higher standard. See Knapp, 441 Mass. at 164.

D. Count IV — Procedural Due Process

Procedural due process "'requires that a statute or governmental action that has survived substantive due process scrutiny be implemented in a fair manner.'" Knapp, 441 Mass. at 164, quoting Aime, 414 Mass. at 673. "The definition of the interest involved is also a threshold inquiry for procedural due process analysis because the 'requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property.'" Aime, 414 Mass. at 675, quoting Regents of State Colls. v. Roth, 408 U.S. 564, 569 (1972); see Roe v. Attorney Gen., 434 Mass. 418, 427 (2001) ("Procedural due process protection is triggered when governmental action interferes with liberty interests."); Todd v. Commissioner of Corr., 54 Mass. App. Ct. 31, 34 (2002) (same). "Absent some infringement of a protected liberty interest, there is no deprivation that would trigger procedural due process concerns." Roe, 434 Mass. at 431.²¹

21 In the context of probation conditions, the SJC has held that

"[d]ue process requires that a probationer receive fair warning of conduct that may result in revocation of probation; thus, probation conditions must provide reasonable guidance with respect to what activities are prohibited. . . . [but they] need not provide the fullest warning imaginable[;]. . . . [rather,] [t]he notice requirement can be satisfied by 'an imprecise but comprehensible normative standard so that [people] of common intelligence will know its meaning.'"

Commonwealth v. Kendrick, 446 Mass. 72, 75 (2005) (internal citations omitted) (final alteration in original), quoting Commonwealth v.Orlando, 371 Mass. 732, 734 (1977). Sex offender parolees are on notice that their entrance into a geographic exclusion zone will result in the transmission of their location to the local police department and the Parole Board and could ultimately result in revocation of their parole. G.L. c. 127, § 133D½. The validity of this notice, however, rests upon not only the Parole Board's creation of geographic exclusion zones, but also the Parole Board's communication to the sex offender parolees of these zones.
Within their argument that G.L. c. 127, § 133D½, results in an unreasonable search in violation of article 14 of the Massachusetts Declaration of Rights, the Plaintiffs contend that "where no 'exclusion zones' have been developed in tandem with the monitoring, [the GPS devices are] utterly devoid of any ostensible purpose other than to purely stigmatize the wearer.' Plaintiffs' Memorandum, at 105. Additionally, at the July 12, 2007, hearing, the Plaintiffs stated that half of the parolees subject to G.L. c. 127, § 133D½ — but not the Plaintiffs — have not been notified of any exclusion zones. The Parole Board's failure to delineate exclusion zones would defeat the purpose of G.L. c. 127, § 133D½, which is to protect the victims of sex offender parolees and children by keeping sex offender parolees a certain distance away from them. Failure to inform the parolees of the exclusion zones, while requiring the Plaintiffs to wear GPS devices, would deprive the Plaintiffs of the notice procedural due process requires. See Kendrick, 446 Mass. at 75.
Other than the Plaintiffs' statement at the July hearing and their statement in their memorandum, although not in the context of their procedural due process argument, the Plaintiffs have not alleged that the Parole Board has failed to establish exclusion zones for the Plaintiffs. Rather, the Plaintiffs provided an example of an exclusion zone with a document titled "View Warning Ticket" and dated December 22, 2006, in which the sex offender parolee (parolee affiant Nicholas Noe) is informed "that effective immediately you are ordered to stay away from the following location(s): South side of Worcester. Point of reference = Route 9. You must stay away from all points of Worcester South of Route 9. You may travel Route 9." Exhibit J to Affidavit of George Valentgas. If the Parole Board has failed to create exclusion zones for the Plaintiffs and/or failed to notify the Plaintiffs of the applicable exclusion zones, the Plaintiffs should so advise the court. It may then be appropriate for the court to order the Parole Board to suspend GPS monitoring of the Plaintiffs until the Parole Board creates those zones and informs the Plaintiffs of them.

Section 133D½ directs the Parole Board to create geographic exclusion zones for each sex offender parolee based on the locations of victims and, where applicable, children. It is the nature of their status as sex offender parolees that triggers the Parole Board's duty to create the exclusion zones and the location of their victims and of children that helps the Parole Board define those exclusion zones. In order to ascertain whether the sex offender parolees have entered the exclusion zones, the sex offender parolees must wear GPS devices. The exclusion zones and the GPS device, therefore, are conditions of parole for all sex offender parolees; again, it is the nature of their status as sex offender parolees that triggers these conditions.

"The individual characteristics of the Massachusetts statutory parole scheme do not give rise to a liberty interest. . . ." Greenman v.Massachusetts Parole Bd., 405 Mass. 384, 398 n. 3 (1989). Therefore, in implementing conditions such as exclusion zones and GPS devices, the Parole Board does not infringe upon any liberty interest. Furthermore, a parolee does not possess "the absolute liberty to which every citizen is entitled, but only the conditional liberty dependent on observance of special parole restrictions." Morrissey v. Brewer, 408 U.S. 471, 480 (1972). This liberty, whether it is a right or a privilege, "is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal."Id. at 482. Massachusetts statutes and regulations provide this process.

If a sex offender parolee's GPS device transmits that he has entered an exclusion zone, "the [Parole] [B]oard or the parole officer shall cause the parolee to be taken into temporary custody in accordance with section 149A of chapter 127." G.L. c. 127, § 133D½ . Section 149A of G.L. c. 127 provides, in pertinent part, that,

"[i]f a parole officer believes that a parolee . . . has violated the conditions of his parole, the parole officer may, with the consent of a parole supervisor or other superior officer, issue a warrant for the temporary custody of said parolee for a period not longer than fifteen days, during which period he shall notify the director of parole service of a parole supervisor of his action and submit a complete report for final decision by the [P]arole [B]oard."

See 120 Code Mass. Regs. § 303.04 (restating G.L. c. 127, § 149A); see also 120 Code Mass. Regs. § 303.02 (concerning parole violation report parole officer "may submit in accordance with Massachusetts Parole Board policies, . . . to the Members of the Parole Board when a parolee is alleged to have violated one or more conditions of parole").

"Within 15 days of service of a warrant for temporary custody . . . the Massachusetts Parole Board shall afford the parolee a preliminary revocation hearing. . . ." 120 Code Mass. Regs. § 303.06(1). The Parole Board has promulgated comprehensive regulations governing the preliminary revocation hearing, including the evidentiary process, 120 Code Mass. Regs. § 303.11, and the procedure, 120 Code Mass. Regs. § 303.12; and the preliminary revocation hearing's aftermath, including the requirements for the hearing examiner's report to the Parole Board members, 120 Code Mass. Regs. § 303.13(1), (2); and the duties of the Parole Board based on the hearing examiner's recommendation, 120 Code Mass. Regs. § 303.13(3)-(7). Additionally, the Parole Board has promulgated similar regulations regarding the final revocation hearing. See 120 Code Mass. Regs. §§ 303.17-303.24; see also 120 Code Mass. Regs. § 303.25(1), (2) (providing that "preponderance of the evidence" is standard of review for final revocation hearing where violation of parole conditions is alleged). The Parole Board has also set forth regulations for the appeal of an adverse parole decision. See 120 Code Mass. Regs. § 304.00.

Therefore, the conditions imposed on sex offender parolees of staying out of certain geographic exclusion zones and of wearing a GPS device to enable the Parole Board to monitor compliance do not infringe upon any liberty interests and do not trigger procedural due process protection. See Roe, 434 Mass. at 427; Aime, 414 Mass. at 675. Revocation of parole, however, does infringe upon a parolee's conditional liberty interest in his continuing parole. Thus, if a sex offender parolee violates G.L. c. 127, § 133D½, procedural due process is triggered. As set forth above, Massachusetts' comprehensive statutory and regulatory scheme governing parole revocations satisfies the due process requirements.²² SeeMorrissey, 408 U.S. at 485-490.

22 The Plaintiffs have not challenged the parole revocation process as violating procedural due process.

Accordingly, the Plaintiffs have failed to demonstrate a likelihood of success on the merits as to this claim.

E. Counts V, VI, VII, and VIII — Ex Post Facto, Double Jeopardy, Bill of Attainder, and Cruel and Unusual Punishment

In Counts V, VI, VII, and VIII the Plaintiffs allege that G.L. c. 127, § 133D½, violates a number of federal and state constitutional provisions.

"In deciding whether the . . . constitutional protections in issue here . . . are applicable, [Massachusetts] cases and those of the Supreme Court of the United States have designated the distinction as that between laws that are 'criminal and punitive [and therefore within the scope of the constitutional protections], or civil and remedial [and therefore outside the scope of the constitutional protections].'"

Opinion of the Justices to the Senate, 423 Mass. 1201, 1221 (1996), quoting United States v. One Assortment of 89 Firearms, 465 U.S. 354, 362 (1984), citing Luk v. Commonwealth, 421 Mass. 415, 419-430 (1995). The Plaintiffs have failed to establish a likelihood of success on the merits of these four claims.

1. Constitutional Claims

First, in Count V, the Plaintiffs allege that G.L. c. 127, § 133D½, violates the state and federal prohibitions against ex post facto laws. "Both the Federal and State Constitutions forbid ex post facto laws. . . . [and Massachusetts courts] have interpreted Federal and State ex post facto clauses identically." Commonwealth v. Maloney, 447 Mass. 577, 585-586 (2006) (internal citations omitted). The United States Constitution precludes any state from "pass[ing] any . . . ex post facto Law. . . ." U.S. Const. art. 1, § 10.²³ Consistent with this prohibition, the Massachusetts Declaration of Rights provides, "[l]aws made to punish for actions done before the existence of such laws, and which have not been declared crimes by preceding laws, are unjust, oppressive, and inconsistent with the fundamental principles of a free government." Art. 24 of the Massachusetts Declaration of Rights. These constitutional prohibitions against ex post facto laws, however, "'only apply to statutes which are penal in nature.'" Commonwealth v. Fourteen Thousand Two Hundred Dollars, 421 Mass. 1, 6 (1995), quoting Department of Revenue v. Roe, 31 Mass. App. Ct. 924, 926 (1991).²⁴

23 The Supreme Court identified four kinds of criminal laws as ex post facto:

"'1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender.'"

Santiago v. Commonwealth, 428 Mass. 39, 41 (1998), quoting Calder v.Bull, 3 U.S. 386, 390 (1798). The circumstances of this case trigger only the third type of law Calder identified.

24 The Plaintiffs submitted to this court a copy of Doe v.Schwarzenegger, in which the District Court for the Eastern District of California held, in part, that Cal. Penal Code § 3000.07 that requires GPS monitoring of registered sex offender on parole is prospective and that retroactive application "would raise serious ex post facto concerns. . . ." 476 F. Supp. 2d 1178, 1179, 1181 (E.D. Cal. 2007). This case is not persuasive. First, the California statute at issue is part of the California Penal Code that expressly provides that no part of the Penal Code "is retroactive, unless expressly so declared." Cal. Penal Code § 3. Conversely, G.L. c. 127, § 133D½, is not within Part IV of the General Laws titled "Crimes, Punishments and Proceedings in Criminal Cases[,]" but, rather, Part I, titled "Administration of Government[.]" Furthermore, under Massachusetts case law, "[w]hen the conduct triggering the statute's application occurs on or after its effective date, the statute's application is deemed prospective. . . ."Bruno, 432 Mass. at 497-498. Section 133D½ is triggered based on the individual's status as a sex offender parolee; this status of the Plaintiffs results from conduct that occurred prior to the statute's effective date. Retroactive application is therefore proper.

Second, in Count VII, the Plaintiffs claim that G.L. c. 127, § 133D½, is an unconstitutional bill of attainder. Like the prohibition against ex post facto laws, the United States Constitution's prohibition against bills of attainder is in Act. 1, § 10, which provides that "[n]o State shall . . . pass any Bill of Attainder. . . ." The Plaintiffs also allege the statute violates the protections in article 24²⁵ of the Massachusetts Declaration of Rights, quoted above. While "'the mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts[,]'" "'[t]he distinguishing feature of a bill of attainder is the substitution of a legislative for a judicial determination of guilt.'" Sheridan v. Gardner, 347 Mass. 8, 14 (1964) (emphasis in original), quoting DeVeau v. Braisted, 363 U.S. 144, 160 (1960). As with ex post facto analysis, however, a statute can only be a bill of attainder if it is punitive.²⁶ See, e.g., Opinions of the Justices to the House of Representatives, 332 Mass. 785, 789 (1955) (finding statute was not bill of attainder because "[t]here [was] no legislative conviction or punishment for conduct [that occurred] before the passage of the act");Faxon v. School Comm. of Boston, 331 Mass. 531, 538 (1954) (holding that statute was not bill of attainder because statute's "dismissal of a teacher for the good of the schools [is not] . . . a punishment of the teacher").

25 A bill of attainder is "[a] special legislative act prescribing capital punishment, without a trial, for a person guilty of a high offense such as treason or a felony." Black's Law Dictionary 159 (7th ed. 1999). Article 25 of the Massachusetts Declaration of Rights provides that "[n]o subject ought, in any case, or in any time, to be declared guilty of treason or felony by the legislature." Therefore, article 25 also prohibits bills of attainder. See Sheridan v. Gardner, 347 Mass. 8, 14 (1964) (noting plaintiff's allegation that statute was "a bill of attainder and an ex post facto law in violation of art. 24 or art. 25 of the Declaration of Rights").

26 Besides inflicting punishment, the other "key feature of a bill of attainder . . . [is that it applies to] an identifiable individual without provision of the protections of a judicial trial." Nixon v.Administrator of Gen. Servs., 433 U.S. 425, 471 (1977). This "specificity element is met where persons or groups are designated based on irreversible past conduct." Roe v. Farwell, 999 F. Supp. 174, 193 (D. Mass. 1998). As this court concludes, below, that G.L. c. 127, § 133D½, is not a bill of attainder because it is not punitive, it need not decide if the statute meets the specificity requirement.

Third, in Count VI, the Plaintiffs claim that G.L. c. 127, § 133D½, violates their right to be free from double jeopardy. The Fifth Amendment to the United States Constitution protects "any person [from] be[ing] subject for the same offense to be twice put in jeopardy of life or limb. . . ." "'Although not expressly included in the Massachusetts Declaration of Rights, the prohibition against double jeopardy has long been recognized as part of [Massachusetts'] common and statutory law.'"Commonwealth v. Carlino, 449 Mass. 71, 79 n. 20 (2007), quoting Luk, 421 Mass. at 416 n. 3; see Opinion of the Justices to the Senate, 423 Mass. at 1218 n. 13 ("The Constitution of the Commonwealth has no explicit double jeopardy protection, although [Massachusetts courts] have always afforded such protection as a matter of . . . common law.").²⁷ The Fifth Amendment's double jeopardy clause has been interpreted as "protect[ing] against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." Luk, 421 Mass. at 419 (citation omitted). "It is the third protection that is at issue here. In order to show multiple punishments for double jeopardy purposes, [the Plaintiffs] must show[,]" in part, that the statute at issue imposes a punishment. Id.; see Commonwealth v. Tate, 424 Mass. 236, 239 n. 4 (1997) (rejecting defendant's double jeopardy claim because he failed to show effect of statute was penal); Hill, Petitioner, 422 Mass. 147, 152 (1996) (noting that protection against double jeopardy is "historically based safeguard against the misuse of government power in the particular context of proceedings leading to specifically criminal sanctions. . . . [therefore it does] not apply except where criminal punishment may be imposed, even if the consequence for the subject of the proceeding may be as, or more severe, than some criminal sanctions" (emphasis added)).

27 Additionally, the double jeopardy provision "contained in the Fifth Amendment to the United States Constitution applies to the States through the Fourteenth Amendment." Opinion of the Justices to the Senate, 423 Mass. at 1239 n. 28.

Finally, in Count VIII, the Plaintiffs allege that G.L. c. 127, § 133D½, violates the state and federal prohibition against cruel and unusual punishments. The Eighth Amendment to the United States Constitution prohibits the infliction of "cruel and unusual punishments. . . ." Article 26 of the Massachusetts Declaration of Rights provides that "[n]o magistrate or court of law, shall . . . inflict cruel or unusual punishments." "[T]he Supreme Court's precedents make clear that the prohibition against cruel and unusual punishment applies only to punishments. . . . In other words, the Eighth Amendment is not a general font of prohibition of all harsh and oppressive measures, but only of those that are penal in nature." Opinion of the Justices to the Senate, 423 Mass. at 1238-1239. As "the rights guaranteed under art. 26 are at least equally broad as those guaranteed under the Eighth Amendment[,]"Michaud v. Sheriff of Essex County, 390 Mass. 523, 534 (1983), article 26, too, only applies to punishments. See Opinion of the Justices to the Senate, 423 Mass. at 1238.

2. Punitive vs. Remedial

The Plaintiffs' likelihood of success on the merits of Counts V, VI, VII, and VIII depends on whether G.L. c. 127, § 133D½, is a penal statute. See Doe v. Weld, 954 F. Supp. 425, 431, 437 (D. Mass. 1996) (holding that "threshold issue in an assessment of plaintiff Doe's likelihood of success on [ex post facto, bill of attainder, and double jeopardy] . . . claims is whether the [statute at issue] 'punishes'" and, after determining that statute was not punishment, concluding that plaintiff had "no likelihood of prevailing on his claims that such an application violates the Eighth Amendment prohibition against cruel and unusual punishment"). "Whether a consequence visited upon an individual constitutes criminal punishment . . . must depend on an analysis of the nature, purposes, and context of that imposition." Hill, Petitioner, 422 Mass. at 153. It is undisputed that "parole constitutes a variation on imprisonments," Massachusetts Parole Bd. v. Brusgulis, 403 Mass. 1010, 1011 (1989), and "that parole is a form of punishment."Commonwealth v. Pagan, 445 Mass. 161, 169 (2005). Moreover, that the consequences of G.L. c. 127, § 133D½, "constitute a burden or detriment to the offender can hardly be doubted." Opinion of the Justices to the Senate, 423 Mass. at 1226. The issue before this court, then, is whether the imposition of those burdens in the form of conditions imposed on certain parolees constitutes criminal punishment such that G.L. c. 127, § 133D½, is a punitive statute.²⁸

28 The court notes that "the double jeopardy clause does not generally forbid both prison discipline and criminal punishment for the same inmate misconduct. . . . [because] [t]he imposition of prison discipline is a civil proceeding. . . ." Commonwealth v. Forte, 423 Mass. 672, 676 (1996). As this case does not necessitate a separate double jeopardy analysis given that G.L. c. 127, § 133D½, does not meet the threshold requirement that would trigger double jeopardy, this court need not consider whether the conditions in G.L. c. 127, § 133D½, are analogous to conditions placed on a prisoner's confinement.

Whether a statute is punitive or remedial "depends on the Legislature's intent, which is a matter of statutory construction." Bruno, 432 Mass. at 500. If the Legislature intended the statute to be remedial, it can still be "penal 'only where a party challenging the statute provides "the clearest proof" that the "statutory scheme [is] so punitive either in purpose or effect as to negate [the State's] intention" to deem it "civil."'" Id. (alterations in original), quoting Kansas v.Hendricks, 521 U.S. 346, 361 (1997); Luk, 421 Mass. at 420.

a. Legislative Intent

"'[T]he statutory language is itself the principal source of insight into the legislative purpose.'" McNeil v. Commissioner of Corr., 417 Mass. 818, 822 (1994). "Where the language of the statute is inconclusive, courts must look to extrinsic sources for assistance in determining the correct interpretation of the statute, including legislative history, analogous statutory material, and relevant case law." Commonwealth v. McLeod, 437 Mass. 286, 290 (2002). This court need not look beyond the statute itself.²⁹

29 The Plaintiffs have provided the court with extensive research detailing their understanding that the Legislature's intent in enacting G.L. c. 127, § 133D½, was to impose a punishment. The terms of G.L. c. 127, § 133D½, however, are sufficiently unambiguous to enable this court to conduct its analysis into the legislative intent.

Although the legislature did not expressly state its intent in enacting G.L. c. 127, § 133D½, the language of the statute indicates that the statute serves a regulatory rather than punitive purpose. Section 133D½ requires sex offender parolees to wear GPS devices so that if they travel into areas a specified distance from their victim(s) and, where applicable, from children — i.e., within the geographic exclusion zones — the local police department and the Parole Board are notified. The exclusion zones requirement protects the certain members of the public from being in close proximity to sex offenders who are still serving their sentences, and the GPS device requirement assists the Parole Board in performing its duty of supervising parolees. See G.L. c. 27, § 5 (requiring Parole Board to "supervise all prisoners released on parole permits granted by it, make such investigations as may be necessary in connection therewith, determine whether violation of parole terms and conditions exist in specific cases, decide the action to be taken with reference thereto"); 120 Code Mass. Regs. § 101.03(4) ("The Massachusetts Parole Board supervises all offenders released on parole from a Massachusetts sentence and all offenders paroled by other states and accepted by Massachusetts. . . .").

In Luk, the SJC concluded that G.L. c. 90, § 24(1)(f)(1), which suspends a driver's license if the driver refuses to submit to a breathalyzer test, is regulatory. 421 Mass. at 423. First, "one's right to operate a motor vehicle is a privilege" rather than a right. Id. "Continued possession of this privilege is conditioned on obedience to the . . . comprehensive regulatory scheme aimed at regulating the motorways and keeping them safe." Id. Revocation of that privilege, then, "has long reflected public safety concerns." Id. "'The suspension [of one's driver's license pursuant to G.L. c. 90, § 24(1)(f)(1),] serves to deter persons from driving while intoxicated; it effectuates the Commonwealth's interest in obtaining reliable and relevant evidence by inducing suspended drivers to take the drug test; and it promotes safety on the highways by summary removal of dangerous drivers.'" Id. at 425, quoting Mackay v. Montrym, 443 U.S. 1, 15 (1979). Thus, "[b]ecause its main purpose is public safety rather than punishment, revocation of a driver's license is properly characterized as nonpunitive." Id. at 427; see id. at 428 (citing to non-Massachusetts state and federal cases for proposition that "[o]ther losses of privileges have similarly been recognized as regulatory rather than punitive").

While G.L. c. 127, § 133D½, itself is not analogous to G.L. c. 90, § 24(1)(f)(1), the court's analysis in considering the Legislature's intent is instructive. A prisoner has no right to parole. Quegan v.Massachusetts Parole Bd., 423 Mass. 834, 836 (1996). Parolees must comply with the conditions of their parole or face revocation. See, e.g., G.L. c. 127, § 131 ("The [P]arole [B]oard shall, in releasing a prisoner on parole, specify in writing the terms and conditions of his parole, and a copy of such terms and conditions shall be given to the parolee. A violation of such terms and conditions shall render the parole liable to arrest and re-imprisonment."); G.L. c. 127, 133A ("The violation by the holder of such permit [for liberty] of any of its terms or conditions, or of any law of the commonwealth, may render such permit void, and thereupon, or if such permit has been revoked, the [P]arole [B]oard may order his arrest and his return to prison. . . ."); G.L. c. 127, § 133D½ ("If the [Parole] [B]oard or the parolee's parole officer believes that the parolee has violated his terms of parole by entering an excluded zone . . ., the [B]oard or parole officer shall cause the parolee to be taken into temporary custody. . . .").

Violation of G.L. c. 127, § 133D½, occurs if the parolee "enters an excluded zone, as defined by the terms of his parole. . . . [and] the [Parole] [B]oard or the parolee's parole officer believes the parolee has violated the terms of parole by entering an excluded zone. . . ."³⁰ (Emphasis added). The statute therefore gives the Parole Board or the parolee's parole officer the opportunity to investigate why the parolee came in close proximity to his victim(s) and/or children by entering an exclusion zone. Thus, the terms of the statute are impliedly focused on the safety of certain members of the public. Just as with G.L. c. 90, § 24(1)(f)(1), then, the GPS device serves to deter sex offenders from coming in contact with their victim(s) and/or with children; it effectuates the Parole Board's ability to monitor the actions of sex offender parolees who are still servicing their sentences, albeit in the community; and it promotes the safety of certain members of the public by providing for the immediate notification of the local police department and the Parole Board when a sex offender parolee has entered an exclusion zone. See Luk, 421 Mass. at 425, quoting Mackey, 443 U.S. at 15; cf. Lyman v.Commissioner of Corr., 46 Mass. App. Ct. 202, 207 (1999) (holding that "changes in conditions occasioned by [Department of Correction] policy are a permissible alteration to the prevailing 'legal regime' rather than an 'increased penalty'").

30 The Plaintiffs also argue that various other events can be deemed a violation, such as failing to charge the battery on the cell phone they must carry around with them. This inquiry, however, is focused on the terms of the statute itself, and violation of section 133D½ only occurs when a parolee enters an exclusion zone. Notwithstanding the fact that the statute itself only defines a violation in terms of entering an exclusion zone, it is logical to assume that, to satisfy the requirement that sex offender parolees wear a GPS device, the GPS device and all of its components must be operational. It is also logical to assume that violation of this requirement would lead to the same procedures detailed above concerning the potential revocation of parole. The violation possibilities do not affect this analysis.

The Plaintiffs have not demonstrated a likelihood of success in proving the Legislature's intent was to make G.L. c. 127, § 133D½, punitive.

b. Statute's Purpose and Effect

Even where the Legislature did not intend for the statute to be penal, it can still be considered penal if the Plaintiffs establish with "'"the clearest proof"'" that the statute's scheme is "so punitive in purpose or effect as to negate the Legislature's remedial intention." Bruno, 432 Mass. at 500-501. Providing the clearest proof is a "high burden" that the Plaintiffs have not shown a likelihood of meeting. Id. ³¹

31 The Plaintiffs rely, in part, on their own affidavits and affidavits from other sex offender parolees to demonstrate that G.L. c. 127, § 133D½'s effect on them is so punitive as to render the statute penal. Courts, however, base their analysis of the effects of the statute on the general effects rather than how it specifically affects the Plaintiffs. See Opinion of the Justices to the Senate, 423 Mass. at 1226 (acknowledging that consequences of statute constitute "a burden or detriment to the offender" but not considering that factor as weighing in favor of finding statute is or is not punitive). In fact, in Dutil, Petitioner, the SJC rejected the petitioner's argument that G.L. c. 123A, although nonpunitive, was punitive as applied to him. 437 Mass. at 20. Relying on a United States Supreme Court decision, the SJC held that "the specific conditions of [petitioner's] confinement do not convert the statute from civil to punitive." Id. "[A]n 'as-applied' challenge would 'prove unworkable' because it would 'never conclusively resolve whether a particular scheme is punitive and would thereby prevent a final determination of the scheme's validity.'" Id., quoting Seling v. Young, 531 U.S. 250, 263 (2001).

In determining a statute's purpose, the court can consider if it is retributive or if it functions as a deterrent. See Bruno, 432 Mass. at 501. A statute is retributive if it "'affix[es] culpability for prior criminal conduct.'" Id., quoting Hendricks, 521 U.S. at 362; see Black's Law Dictionary 1248 (7th ed. 1999) (defining "retributive punishment" as "[p]unishment the purpose of which is to satisfy the community's retaliatory sense of indignation that is provoked by injustice"). Section 133D½ has a retributive element to it in terms of its application only to parolees who have previously been convicted of criminal acts, but retribution is not the purpose of the legislation. In Opinion of the Justices to the Senate, for example, the SJC held that while some community members could use sex offender information they obtain through the notification requirements of G.L. c. 6, § 174B, to "visit retributive consequences on the offender, . . . it is not the purpose of the legislation to produce that effect." 423 Mass. at 1227. Here, too, the purpose of G.L. c. 127, § 133D½, is to protect the victims of sex offenders on parole and, where applicable, children. The creation of exclusion zones serves that purpose and the GPS device requirement protects those members of the public by enabling the Parole Board to learn when the parolees have entered the exclusion zones.

Additionally, G.L. c. 127, § 133D½, has a deterrent quality, but, again, that deterrence is not the purpose of the statute. See Opinion of the Justices to the Senate, 423 Mass. at 1223 n. 15 ("The test must refer to general, not specific deterrence, since any successful regulatory measure . . . will specifically prevent the person to whom the measure is applied from doing harm in the regime the measure regulates."); Black's Law Dictionary 460 (7th ed. 1999) (defining "general deterrence" as "goal of criminal law generally, or of a specific conviction and sentence, to discourage people from committing crimes"). As discussed above, the creation of exclusion zones provides victims of sex offenses and children with protection from sex offender parolees who are serving their sentences in the community. Requiring the sex offender parolees to wear the GPS devices serves to inform the Parole Board when the safety of the victims and children is compromised by a sex offender parolee's attempt to enter the zone created to protect the victims and children. The main purpose of G.L. c. 127, § 133D½, is therefore the safety of certain members of the public. See Luk, 421 Mass. at 421 n. 11 (holding that license suspension under G.L. c. 90, § 24(1)(f)(1), "does promote deterrence, a traditional aim of punishment, but the main purpose [of the statute] is promoting public safety.").

Accordingly, the Plaintiffs have not established a likelihood of providing the clearest proof that the effect of G.L. c. 127, § 133D½, is so punitive as to negate the Legislature's nonpunitive intent.

c. Kennedy v. Mendoza-Martinez

The Plaintiffs also rely on the factors set forth in Kennedy v.Mendoza-Martinez, 372 U.S. 144, 168-169 (1963), as support for their argument that G.L. c. 127, § 133D½, is punitive. Notwithstanding the applicability of Mendoza-Martinez, these factors do not weigh in favor of finding that G.L. c. 127, § 133D½, is punitive.³² The seven factors set forth in Mendoza-Martinez, 372 U.S. at 168-169, are

32 The SJC has deemed the Mendoza-Martinez factors "useful, although neither exhaustive nor dispositive in double jeopardy analysis." Luk, 421 Mass. at 421; see Doe, 954 F. Supp. at 432-433, 433-436 (applying a "totality of the circumstances" test to determine whether statute was punitive, although not expressly rejecting Mendoza-Martinez factors);Opinion of the Justices to the Senate, 423 Mass. at 1221-1222 ("[T]he Supreme Court. . . . has . . . declined to import into the double jeopardy area the seven-part test of Mendoza-Martinez . . . which aids the determination whether the full panoply of due process rights accorded in criminal procedures is required." (footnote omitted)). But see Bruno, 432 Mass. at 501-502 (determining whether G.L. c. 123A is punitive by considering certain factors that are similar to those listed inMendoza-Martinez).

"(1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment [i.e.,] retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may be rationally connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned."

Luk, 421 Mass. at 421.

First, a "restraint" is a "[c]onfinement, abridgement, or limitation[.]" Black's Law Dictionary 1315 (7th ed. 1999). Precluding sex offender parolees from entering areas created based on the locations of their victims' residences, workplaces, and schools and, where applicable, on the proximity to children, is, essentially, a restraint. See Id. Arguably, however, this restraint is not "affirmative," which means that which "involves or requires effort[.]" Id. at 60. The restraint the Parole Board creates through the exclusion zones and monitors through the use of GPS devices requires no effort on its part until the sex offender parolee enters one of the exclusion zones. Thus, unlike imprisonment, the restraint resulting from G.L. c. 127, § 133D½, is not affirmative.³³

33 As noted, this point is arguable. Even if excluding sex offender parolees from certain geographic areas is an affirmative restraint, however, thereby weighing in favor of a finding that the statute is punitive, the non-punitive factors far outweigh it, as discussed below. Cf. Bret R. Hobson, "Banishing Acts: How Far May States Go to Keep Convicted Sex Offenders Away from Children?" 40 Ga. L.Rev. 961, 983 (2005-2006) ("[S]ex offenders precluded from residing in certain areas by residency restrictions do face physical restraint. . . . [T]his factor weighs more on the side of finding a punitive effect with residency restrictions than it does with registration-notification statutes, because . . . the residency restrictions impose some affirmative restraint.").

Further, protecting the public from sex offenders has been regarded as remedial, thereby satisfying the second factor. See Id.; cf. Bruno, 432 Mass. at 500 (holding that G.L. c. 123A, statute governing civil commitment of sexually dangerous persons, is non-punitive). Third, the statute comes into play based on the individual's status as a sex offender parolee; a finding of scienter is not required to fit the parolee with a GPS device and exclude him from certain geographic zones. See Luk, 421 Mass. at 421 n. 11; see, e.g., Bruno, 432 Mass. at 498, 501 (holding that conduct triggering application of G.L. c. 123A "is not the prior conviction of a sexual offense, but the current mental condition of the defendant. . . . [therefore,] no finding of scienter is required to commit the person"). Fourth, and as discussed above, while G.L. c. 127, § 133D½, has retributive and deterrent attributes, the main purpose of the statute is promoting the safety of certain members of the public. See Luk, 421 Mass. at 421 n. 11.

Fifth, it is undisputed that sex offenses are crimes, but the entrance of sex offender parolees into geographic exclusion zones is not a crime. With G.L. c. 127, § 133D½, this behavior becomes a violation of parole, but not a crime requiring "the application of the full panoply of due process rights accorded in criminal procedures. . . ." Opinion of the Justices to the Senate, 423 Mass. at 1221-1222. Sixth, the protection of children and victims from sex offenders who are serving out their sentences on parole "completely explains" the exclusion of sex offenders from defined areas around the children and the victims; no "alternative purpose" need be considered. See Luk, 421 Mass. at 421 n. 11. Finally, in light of this purpose of protecting children and victims from sex offenders who have not yet completed their sentences, requiring the sex offender parolees to wear GPS devices so that the Parole Board can ascertain the safety of the victims and children "is not excessive. . . ." See id. ³⁴

34 Cf. Bret R. Hobson, "Banishing Acts: How Far May States Go to Keep Convicted Sex Offenders Away from Children?" 40 Ga. L.Rev. 961, 986-987 (2005-2006) (noting that, in context of statutes placing residency restrictions on sex offenders, "[g]iven the importance of child safety, . . . courts have been unwilling to overturn legislatures' difficult policy judgments without the 'clearest proof' that the provisions are excessive").

Consequently, the Plaintiffs have failed to demonstrate a likelihood of success on these grounds.

3. Conclusion

To trigger the constitutional protections the Plaintiffs seek in Counts V, VI, VII, and VIII, G.L. c. 127, § 133D½, must be punitive. The Plaintiffs have failed to demonstrate a likelihood of establishing that G.L. c. 127, § 133D½, is a punitive statute, or that the GPS device requirement and the creation of geographic exclusion zones are criminal punishments.

I. Count IX — Equal Protection

"The equal protection clauses do not protect against burdens and disabilities as such but against their unequal imposition. But the law cannot avoid making distinctions and therefore the gravamen of an equal protection challenge is that the distinction the law makes cannot be justified." Opinion of the Justices to the Senate, 423 Mass. at 1232; seeBrackett v. Civil Serv. Comm'n, 447 Mass. 233, 243 (2006) ("The equal protection clause of the Fourteenth Amendment does not require that every citizen be treated identically but, rather, that an adequate explanation be given for treating citizens differently."). The court's "standard of review under the cognate provisions of the Massachusetts Declaration of Rights is the same as under the Fourteenth Amendment to the Federal Constitution." Dickerson v. Attorney Gen., 396 Mass. 740, 743 (1986); seeBrackett, 447 Mass. at 243. "Absent a showing that a statute burdens a suspect group or fundamental interest, it will be upheld as long as it is rationally related to the furtherance of a legitimate State interest."Dickerson, 396 Mass. at 743. As concluded above, G.L. c. 127, § 133D½, does not infringe upon a fundamental interest, therefore the rational basis test applies. See Murphy v. Department of Corr., 429 Mass. 736, 739-740 (1999) (applying rational basis test where statute "neither burden[ed] a fundamental right nor target[ed] a suspect class").³⁵

35 The Plaintiffs have not alleged that G.L. c. 127, § 133D½, burdens a suspect group. If they had, their argument would have failed because sex offenders are not considered a suspect class. See Weld, 954 F. Supp. at 436 (holding that "juvenile sex offenders are not in a suspect or quasi-suspect class . . . [thus] the legislature need only have a rational basis for distinguishing them from other juveniles in order to survive the equal protection challenges"); Lyman, 46 Mass. App. Ct. at 207 ("The distinction between sex offender inmates and other inmates, in terms of classification, is subject to the rational relationship test in which the inquiry is limited to whether the 'challenged distinction rationally furthers [a] legitimate, articulated state purpose.'" (alteration in original)).

Where, as here, the statute does not infringe upon a fundamental right or target a suspect class, the statute is presumed to be constitutional "and will not be invalidated where any state of facts reasonably may be conceived to justify it." Dickerson, 396 Mass. at 743. Therefore, "[t]he Legislature has wide discretion to create statutory classifications that do not burden a fundamental interest or discriminate against a suspect class[,] [a]s long as the classification 'rationally furthers some legitimate, articulated state purpose[.]'" Murphy, 429 Mass. at 741, quoting McGinnis v. Royster, 410 U.S. 263, 270 (1973). Within the exercise of this discretion, "the Legislature is not required to tailor the classification precisely to further the state interest. . . ."Id. at 742.

The purpose of G.L. c. 127, § 133D½, as established above, is to protect the victims of sex offender parolees and, where applicable, to protect children from sex offenders who are serving out their sentences in the community. This purpose is legitimate. Cf. Knapp, 441 Mass. at 164 (holding that legislative interest in "the protection of the public from harm by persons likely to be sexually dangerous . . . [was] both legitimate and compelling"). Creating geographic zones based on the locations of these victims and children and excluding sex offender parolees from those zones serves this purpose of protecting those individuals. The "means of accomplishing the legislative objective" is rational, and requiring the sex offender parolees to wear GPS devices to facilitate the Parole Board's monitoring of sex offender parolees is similarly rationally related to the legitimate legislative objective. See English, 405 Mass. at 429.

Accordingly, the Plaintiffs have failed to demonstrate a likelihood of success on this count.

J. Count X — Unreasonable Searches

The Plaintiffs characterize the GPS device that G.L. c. 127, § 133D½, requires sex offender parolees to wear as an unreasonable search because it transmits the sex offender parolees' locations to the Parole Board at all times. Acknowledging that the United States Supreme Court has already held that a suspicionless search of parolees, conducted pursuant to a California statute, does not violate the Fourth Amendment of the United States Constitution, Samson v. California, 126 S. Ct. 2193, 2196 (2006), the Plaintiffs base their argument on article 14 of the Massachusetts Declaration of Rights.³⁶

36 Article 14 of the Massachusetts Declaration of Rights states,

"Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws."

For the following reasons, the Plaintiffs have failed to demonstrate a likelihood of success on the merits of this claim.

1. Search

As an initial matter, the GPS monitoring of the Plaintiffs is not a search within the scope of article 14 of the Declaration of Rights. "Determining whether a 'search in the constitutional sense' has taken place 'turns on whether the [government's] conduct has intruded on a constitutionally protected reasonable expectation of privacy.'"Commonwealth v. Alvarez, 422 Mass. 198, 209 (1996), quoting Commonwealth v. Welch, 420 Mass. 646, 653 (1995); see Commonwealth v. Colon, 449 Mass. 207, 213 (2007) ("A search in the constitutional sense occurs only when [government] conduct has intruded on a constitutionally protected reasonable expectation of privacy."). This burden of proving a search has occurred is on the Plaintiffs. Colon, 449 Mass. at 213. "The privacy interests protected under art. 14 . . . exist when it is shown 'that a person [has] exhibited an actual (subjective) expectation of privacy,' and when that 'expectation [is] one that society is prepared to recognize as "reasonable."'" Commonwealth v. Blood, 400 Mass. 61, 68 (1987) (alterations in original), quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

The Plaintiffs argue that they have an actual expectation in the privacy of their locations that society is prepared to recognize as reasonable. This court disagrees. It is undisputed that, in general, the Plaintiffs, as parolees, have a lower expectation of privacy than non-parolees. See Samson, 126 S. Ct. at 2198 ("[P]arolees have fewer expectations of privacy than probationers because parole is more akin to imprisonment than probation is to imprisonment."); Morrissey, 408 U.S. at 478 ("To accomplish the purpose of parole, those who are allowed to leave prison early are subjected to specified conditions . . . . [that] restrict their activities substantially beyond the ordinary restrictions imposed by law on an individual citizen.");United States v. Cardona, 903 F.2d 60, 64 (1st Cir. 1990) ("On the Court's 'continuum of possible punishments,' . . . parole is the stronger medicine; ergo, parolees enjoy even less of the average citizen's absolute liberty than do probationers." (internal citation omitted)). Additionally, the Plaintiffs, as parolees, are subject to Parole Board supervision pursuant to G.L. c. 27, § 5, and 120 Code Mass. Regs. § 101.03(4), thus they are aware that their actions, including their movements, are being monitored to some extent. Therefore, their actual expectation of privacy is already diminished by nature of their status as parolees.³⁷

37 This court also points out, while acknowledging the circularity of the logic, that the Plaintiffs were made aware of the new condition G.L. c. 127, § 133D½, imposed on them prior to its implementation. This factor, too, contributes to the conclusion that the Plaintiffs do not have an expectation of privacy entitled to constitutional protection. SeeSamson, 126 S. Ct. at 2199 (holding that petitioner's "acceptance of a clear and unambiguous search condition' by signing order submitting to parole condition weighed in favor of finding that "petitioner did not have an expectation of privacy that society would recognize as legitimate").

This element of the expectation of privacy analysis that considers the reasonableness of the expectation of privacy "is highly dependent on the particular facts involved and is determined by examining the circumstances of the case in light of several factors. . . . [including] the nature of the intrusion, whether the government agents had a lawful right to be where they were, and the character of the location searched."Commonwealth v. Krisco Corp., 421 Mass. 37, 42 (1995); Commonwealth v. Pina, 406 Mass. 540, 545(1990). Other considerations include "a determination whether the defendants owned the place or controlled access to it as well as whether the place was freely accessible to others. . . . [and] whether the defendant took normal precautions to protect his privacy." Id.

Application of these factors supports a finding that the Plaintiffs also do not have an expectation of privacy that society would recognize as reasonable, especially those members of society G.L. c. 127, § 133D½, is intended to protect, i.e., victims of sex offender parolees and, where applicable, children. G.L. c. 127, § 133D½ . The geographic exclusion zones that section 133D½ requires the Parole Board to establish are areas "including, but not limited to, . . . in and around the victim's residence, place of employment and school and other areas defined to minimize the parolee's contact with children, if applicable." Based on these criteria, these zones are public areas, including streets and buildings which are freely accessible to others, or private residences. The Plaintiffs cannot claim to own or have controlled access to areas within the exclusion zones.³⁸ Additionally, the nature of the intrusion involves monitoring of the Plaintiffs' movements solely for the purpose of determining whether the Plaintiffs have entered an exclusion zone; the Parole Board only acts if the GPS device transmits that a parolee has entered an exclusion zone which, as noted above, can include private residences and buildings and streets accessible to others. Krisco Corp., 421 Mass. at 42-43 ("It is well established that, in general, government agents may make a warrantless search of areas in which the public has free access. . . .").³⁹ This intrusion is not significant enough to contribute to a finding that the Plaintiffs have an expectation of privacy that society would view as reasonable.

38 The Plaintiffs have not claimed that they live or work within the geographic exclusion zones.

39 This court also notes that the Plaintiffs' entrance into an exclusion zone would likely require them to travel on public streets and that "'persons cannot reasonably maintain an expectation of privacy in that which they display openly.'" Nelson v. Salem State Coll., 446 Mass. 525, 534 (2006) (quotation omitted). Additionally, the Supreme Court has held that, for purposes of the Fourth Amendment, "[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another."United States v. Knotts, 460 U.S. 276, 281 (1983). This court is not convinced that analysis under article 14 would result in a different outcome.
In "GPS Tracking Technology: The Case for Revising Knotts and Shifting the Supreme Court's Theory of the Public Space under the Fourth Amendment,' the author, April A. Otterberg, writes that "simply claiming that one has no expectation of privacy in one's travels on public roads misses the point. . . . GPS tracking also offers a significant amount of detail about one's life. It is the accumulation of those personal details that the Fourth Amendment should protect, despite the fact that they are not shielded from public view by physical boundaries." 46 B.C. L.Rev. 661, 698 (2004-2005) (footnotes omitted). She "offers an argument for why GPS tracking should be considered a search under the Fourth Amendment[,]"Id. at 663, 701-702, and advocates for a Fourth Amendment analysis that "would focus less on physical boundaries and more on whether allowing the law enforcement practice at issue [e.g., GPS tracking] would alter the degree of privacy experienced by society before technology existed." Id. at 669. The author also suggests as an alternative to a change in Supreme Court Fourth Amendment analysis "a statutory framework [that] could fulfill some of the same privacy-protecting goals through provisions that would guide the circumstances in which federal and state law enforcement agencies can employ GPS devices." Id. at 702.
This article predates the Supreme Court's Samson decision in which it held that a statute permitting a warrantless, suspicionless search of a parolee did not violate the Fourth Amendment. 126 S. Ct. at 2196. Although the California statute at issue in Samson does not concern GPS tracking specifically, it is perhaps the type of statute the author contemplated when suggesting an alternative to a shift in Fourth Amendment analysis. See Otterberg, supra, at 702. Similarly, G.L. c. 127, § 133D½, is consistent with her alternative as its "provisions . . . guide the circumstances in which . . . law enforcement agencies can employ GPS tracking devices." Id. Moreover, given the sex offender parolee's already diminished expectation of privacy with respect to his movements, the GPS device requirement does not "alter the degree of privacy experienced . . . before technology existed" to any meaningful degree. Id. at 699.

The Plaintiffs therefore have not proven that they have a likelihood of success in establishing a subjective or a reasonable expectation of privacy in their movements. The GPS monitoring of sex offender parolees under G.L. c. 127, § 133D½, is accordingly not a search. Cf.Commonwealth v. Feyenord, 445 Mass. 72, 82 (2005) (concluding that defendant's subjective expectation of privacy in the odor of cocaine emanating from his car was not reasonable and[, therefore,] that "'the dog's sniff and resulting "alert" [did not] constitute a search'" because "society is wholly unprepared and unwilling to take that step'").

2. Reasonableness of Search

Even assuming that the Plaintiffs have an expectation of privacy in their movements and locations, albeit diminished as a result of their status as parolees, article 14 does "not prohibit all searches — only those that are unreasonable." Alvarez, 422 Mass. at 209. "There is no ready test for reasonableness except by balancing the need to search or seize against the invasion that the search or seizure entails."Commonwealth v. Catanzaro, 441 Mass. 46, 56 (2004); see Landry v.Attorney Gen., 429 Mass. 336, 348 (1999) ("The State must produce a particularized reason for the need for such searches and seizures, . . . which outweighs the degree of invasiveness occasioned by the its action." (internal citation omitted)). The Parole Board's ability to monitor the movements of sex offender parolees assists them in their supervisory duties. See G.L. c. 27, § 5; 120 Code Mass. Regs. § 101.03(4). This monitoring also serves the purpose of protecting the victims of sex offender parolees and, where applicable, protecting children from sex offender parolees. As noted above, the invasion of this monitoring is minimal, and it is outweighed by the significant governmental interest in keeping sex offender parolees away from certain members of society. Consequently, even assuming that G.L. c. 127, § 133D½, constitutes a search, the Plaintiffs have not established a likelihood of success in proving that the search is unreasonable and in violation of article 14 of the Massachusetts Declaration of Rights.

K. Count XI — Excise Tax vs. Fee

Finally, in its last paragraph, G.L. c. 127, § 133D½, provides that "[t]he fees incurred by installing, maintaining and operating the global positioning system device, or comparable device, shall be paid by the parolee. If a parolee establishes his inability to pay such fees, the [Parole] [B]oard may waive them." The Plaintiffs argue that this provision imposes an unreasonable excise tax on them, in violation of Part II, c. 1, § 1, art. 4⁴⁰ of the Massachusetts Constitution.⁴¹ The Defendants dispute the Plaintiffs' contention and claim that the amount section 133D½ requires the sex offender parolees to pay is a fee.

40 This provision of the Massachusetts Constitution authorizes the Legislature to "to impose and levy, reasonable duties and excises, upon any produce, goods, wares, merchandise, and commodities, whatsoever, brought into, produced, manufactured, or being within the same. . . ." Mass. Const. Part II, c. 1, § 1, art. 4.

41 As the Defendants point out, the Parole Board has waived this "fee' for two of the four Plaintiffs, namely Charles Coe and George Goe; according to the other two Plaintiffs, John Doe and Frank Foe, the Parole Board has not demanded payment from them, although it has not issued a waiver. According to the Plaintiffs' complaint, Frank Foe did not request a waiver. Issues of standing and mootness notwithstanding, this court will address this argument, assuming for purposes of this discussion that the Plaintiffs must pay this charge.

Fees that a government entity imposes "tend to fall into one of two principal categories: user fees, based on the rights of the entity as proprietor of the instrumentalities used, . . . or regulatory fees . . ., founded on the police power to regulate particular businesses or activities. . . ." Emerson Coll. v. City of Boston, 391 Mass. 415, 424 (1984) (internal citations omitted). Conversely, a tax is "'a revenue-raising exaction imposed through generally applicable rates to defray public expense.'" German v. Commonwealth, 410 Mass. 445, 448 (1991), quoting Opinion of the Justices to the House of Representatives, 393 Mass. 1209, 1216 (1984). "'[T]he obligation to pay an excise tax "is based upon the voluntary act of the person taxed in . . . enjoying the privilege . . . which is the subject of the excise."'"Route One Liquors, Inc. v. Secretary of Admin. Justice, 439 Mass. 111, 117 (2003) (ellipses in original), quoting Emerson Coll., 391 Mass. at 428. The only constitutional limitation on the Legislature's power to impose excise taxes is "'that the excise levied be "reasonable."'" Id., quotingOpinion of the Justices to the House of Representatives, 393 Mass. at 1217.

"[T]he nature of a monetary exaction [i.e., whether it is a fee or a tax] 'must be determined by its operation rather than its specially descriptive phrase.'" Emerson Coll., 391 Mass. at 424 (emphasis added), quoting Thomson Elec. Welding Co. v. Commonwealth, 275 Mass. 426, 429 (1931). Therefore, the fact that the statute itself refers to the required payments as "fees" is not dispositive. Section 133D½, however, expressly states that the payment is exacted for the installation, maintenance, and operation of the GPS devices. The Plaintiffs have not presented evidence that the Parole Board uses the payments for any other purpose, and not only does "'the intention of the Legislature, as it may be expressed in part through its characterization [of the charge] . . . deserve judicial respect, . . . especially so where the constitutionality of the exaction depends on its proper characterization[,]" id. (first alteration and first ellipses in original), quoting Associated Indus. of Mass., Inc. v. Commissioner of Revenue, 378 Mass. 657, 667-668 (1979), but it also "will be given deference when the actual operation of the monetary action is consistent with that [legislative] characterization." German, 410 Mass. at 449.

Fees are distinguishable from taxes in three ways that the Court set out in Emerson Coll. 391 Mass. at 424-425. Application of those three factors to the charge exacted pursuant to G.L. c. 127, § 133D½, demonstrates that the Plaintiffs do not have a likelihood of succeeding on the merits of this claim.

1. First Emerson Coll. Factor

The first factor distinguishing fees from taxes is that fees "are charged in exchange for a particular governmental service which benefits the party paying the fee in a manner 'not shared by other members of society[.]'" id. at 424, quoting National Cable Television Ass'n v.United States, 415 U.S. 336, 341 (1974); Aiello v. Commissioners of the County of Dukes County, 35 Mass. App. Ct. 151, 152 (1993) ("[Fees] charge for a particular service that citizens as a whole do not necessary receive."). Thus, pursuant to this first factor, the Parole Board must provide the sex offender parolees, i.e., those paying the change, with a service, and, in turn, that service must "provide a 'sufficiently particularized' benefit to the" sex offender parolees. Nuclear Metals, Inc. v. Low-Level Radioactive Waste Mgmt. Bd., 421 Mass. 196, 204 (1995). The Defendants define the service as the operation and maintenance of the GPS equipment. This court agrees, and the fee is in the nature of a user fee. Black's Law Dictionary 1542 (7th ed. 1999) (defining "user fee" as "charge assessed for the use of a particular item or facility"). Although throughout this decision this court has noted that the purpose of the statute's creation of exclusion zones and GPS monitoring of those zones is the protection of the victims of sex offender parolees and, where applicable, of children, the focus of this inquiry into the charge that the statute exacts is separate from a consideration of that purpose.

In Nuclear Metals, Inc., the plaintiff claimed a statutory assessment was an unconstitutional tax, arguing, in part, that the defendant board that collected the assessment "provide[d] no service for which it [might] legitimately exact a fee." 421 Mass. at 202. The challenged exaction appeared in G.L. c. 111H, a statute requiring the defendant board to select "a site for the disposal of low-level radioactive waste generated in the Commonwealth.'id. at 200; see id. at 198, 199 (noting statute was in response to federal statute, 42 U.S.C. § 2021c(a)(1)(A), requiring each state to be responsible for disposal of low-level radioactive waste generated within state). The plaintiff produced low-level radioactive waste "[a]s a byproduct of its manufacturing processes," id. at 198; therefore, the plaintiff "[had to] rely on a service . . . provided by the board, in the form of planning for disposal of low-level radioactive waste generated in the Commonwealth in compliance with Federal law and standards." Id. at 203.

Providing, operating, and maintaining GPS devices for sex offender parolees is therefore a service, as it is even less abstract than the activity the Court held was a service in Nuclear Metals, Inc. The service the Parole Board provides is more like "[t]he use of the common sewers" that the Appeals Court held weighed in favor of finding a fee inTown of Winthrop v. Winthrop Hous. Auth., 27 Mass. App. Ct. 645, 647 (1989). The Plaintiffs here are using GPS devises with which the Parole Board provides them. "[I]n exchange for . . . [this] governmental service[,]" Emerson Coll., 391 Mass. at 424, the Plaintiffs must pay the Parole Board.

"As to the remaining aspect of the first factor, the [Parole] [B]oard's service provide[s] a 'sufficiently particularized' benefit to the [P]laintiff[s] to qualify as a valid fee." Nuclear Metals, Inc., 421 Mass. at 204. The Parole Board does not provide this service to all of the parolees it monitors, but only to those parolees who are serving out their sentences "for any offense listed within the definition of 'sex offense', a 'sex offense involving a child' or a 'sexually violent offense', as defined in section 178C of chapter 6. . . ." G.L. c. 127, § 133D½ . Only those parolees are within the scope of G.L. c. 127, § 133D½, and, consequently, only those parolees need GPS devices under the statute.

As noted above, that the purpose of the statute is to protect certain members of the public does not enter into this narrow inquiry. The focus is on the service — the provision of the GPS devices — and the parties who pay for that service — the Plaintiffs. See Aiello, 35 Mass. App. Ct. at 154 (holding plaintiff "had a particular need for services [defendant provided] . . . not required by the island population as a whole"); Commonwealth v. Caldwell, 25 Mass. App. Ct. 91, 96 (1987) ("The relevant distinction is between . . . [those] served, as opposed to members of the public generally."). Compare Silva v. City of Fall River, 59 Mass. App. Ct. 798, 802 (2003) (holding, in part, that, as party seeking burial permit and thus paying charge "is not the generator of the human remains requiring disposal[,]" service of issuing burial permit is not particularized but shared by general public), withNuclear Metals, Inc., 421 Mass. at 204 (acknowledging service's effect on public but focusing analysis and rendering conclusion based on producer of low-level radioactive waste who had to pay defendant for its disposal). Thus, the Plaintiffs have not shown a likelihood of success in establishing insufficient particularity in this case.

The service must also benefit the party paying the charge. Characterizing the "service" as the Parole Board's GPS monitoring activities, the Plaintiffs argue that they derive no benefit from this service that has had a "corrosive effect" on their lives. Plaintiff's Memorandum, at 105. The courts, however, appear to interpret "benefit" as "access" to a service the agency requiring payment controls. In Aiello, the plaintiff alarm system company "had a particular need for services of an investigatory nature" from the defendant dispatch center which charged the plaintiff for having to follow up on electronic signals of trouble that the plaintiff's alarm system communicated to the defendant. 35 Mass. App. Ct. at 153-154. In Town of Winthrop, paying the fee to the plaintiff town granted the defendant housing authority access to the town's common sewers. 27 Mass. App. Ct. at 647 ("[T]he benefits of the common sewers are conferred only on those who connect their particular sewers to them."). In Caldwell, the defendant boat owners had to pay the harbormaster in order to dock their boats in the city's harbor. 25 Mass. App. Ct. at 95-96. In Nuclear Metals, Inc., "the plaintiff . . . require[d] access to disposal facilities" for which the defendant board provided a plan. 421 Mass. at 204 (emphasis added). The Court also characterized the defendant board's planning activities as granting the plaintiffs the "tangible benefit" of "continued access to facilities for the disposal of its radioactive waste." Id. at 204 n. 10.

In this case, the Plaintiffs have a particularized need for GPS devices because their status as sex offender parolees triggers the applicability to them of G.L. c. 127, § 133D½ . The Plaintiffs can only gain access to the required GPS devices through the Parole Board. The Parole Board, in turn, charges the Plaintiffs for the use of the GPS devices. The Plaintiffs have accordingly failed to establish a likelihood of demonstrating that this factor weighs against finding the charge is a fee.⁴²

42 "The Legislature is constitutionally authorized to levy excises 'upon any produce, goods, wares, merchandise and commodities.'" Emerson Coll., 391 Mass. at 427, quoting Part II, c. 1, § 1, art 4 of Massachusetts Constitution. "The term 'commodities' encompasses 'convenience, privilege, profit, and gains.'" Id.; see Black's Law Dictionary 267 (defining "commodity" as "[a]n article of trade or commerce" and stating that "[t]he term embraces only tangible goods, such as products or merchandise, as distinguished from services"). The Plaintiffs claim that the services associated with GPS monitoring is a commodity. This court disagrees.
Although, arguably, the GPS device is itself a commodity, the Plaintiffs are not purchasing the GPS devices from the Parole Board. As discussed above, the Plaintiffs have a particularized need that results from their status as sex offender parolees within the scope of G.L. c. 127, § 133D½. The Parole Board provides the Plaintiffs with a service, i.e., the means necessary for them to comply with G.L. c. 127, § 133D½. That the service happens to be a tangible good does not transfer the fee into a tax.

2. Second Emerson Coll. Factor

Second, fees, as contrasted with taxes, "are paid by choice, in that the party paying the fee has the option of not utilizing the governmental service and thereby avoiding the charge[.]" Emerson Coll., 391 Mass. at 424-425 (citation omitted). Arguably, of the three factors set out in Emerson Coll., "the second factor . . . is not necessarily determinative of whether a charge is a fee or a tax. . . . [but is, instead,] "'only subsidiary to, and an additional manifestation of, the analytically more comprehensive first factor, particularized private rather than general public benefit.'" Silva, 59 Mass. App. Ct. at 302 n. 8, quoting Berry v. Danvers, 34 Mass. App. Ct. 507, 512 n. 6 (1993). In that respect, the consideration of "choice" does not rest on voluntariness but, rather, "whether the service in connection with which the charge is levied benefits the regulated entities in a way distinguishable from any benefit provided to the public at large." Nuclear Metals, Inc., 421 Mass. at 206;Baker v. Department of Envtl. Prot., 39 Mass. App. Ct. 444, 446 (1995).

In Nuclear Metals, Inc., the plaintiff was not "'compelled' to pay the fee, even though it [had to] pay the fee so long as it engage[d] in manufacturing activities in the Commonwealth that produce[d] as a byproduct low-level radioactive waste." 421 Mass. at 205. Thus, "the 'choice' presented to the plaintiff [was] to cease engaging in activities that produce[d] low-level radioactive waste." Id. at 206. That this choice could not "realistically be considered a free choice" was "not a compelling consideration" weighing against finding the charge was a fee.Id. at 205, 206.

Here, the Plaintiffs' choice not to pay the Parole Board pursuant to G.L. c. 127, § 133D½, could ultimately result in revocation of their parole. Just as in Nuclear Metals, Inc., the choice to forgo the privilege for which the charge is assessed "cannot realistically be considered a free choice." Id. at 205; cf. Bertone v. Department of Pub. Utils., 411 Mass. 536, 549 (1992) (rejecting plaintiffs' argument "that the only way to avoid the charge was to relinquish their right to develop the land" because "[f]ees are not taxes 'even though they must be paid in order that a right may be enjoyed'"); Gargano v. Lee County, 921 So. 2d 661, 668 (Fla.Dist.Ct.App. 2006) (holding that bridge toll is not tax even though anyone who lives on islands must pay toll to reach their homes from mainland because "plaintiff can live elsewhere[,]. . . . [s]he can choose to stay on the island and not visit the mainland[, and]. . . . [t]he County cannot compel her to use the bridge or pay the fee[;] and holding that "concept of 'choice' for defining user fees is designed to distinguish a tax whose payment can be compelled from charges for services one can avoid"). Also as in Nuclear Metals, Inc., however, and as discussed above, the Plaintiffs do not share with the general public their need for the service for which the charge is assessed. Compare Shea v. Boston Edison Co., 431 Mass. 251, 260 (2000) (holding charge was tax because "electricity is a commodity 'essential to the health and well-being of all residents'" and because "customers [did] not pay the charges in exchange for a specific, requested benefit"), andEmerson Coll., 391 Mass. at 426 n. 17 (holding charge was not fee because, in part, augmented fire services that defendant city provided for certain buildings were compelled because of public safety and based "on factors (such as building size, materials, and exposure) that [were] beyond the [charge paying] owner's control"), with Aiello, 35 Mass. App. Ct. at 154 (holding plaintiff alarm company could have used own personnel to follow up on alarm's electronic signals rather than pay fee to defendant county for providing that service), Town of Winthrop, 27 Mass. App. Ct. at 647 (holding that defendant housing authority could have avoided paying fee to plaintiff town by opting not to connect to plaintiff's common sewer), and Caldwell, 25 Mass. App. Ct. at 96 (holding defendant boat owners had "meaningful choice . . . to pay the fee and take advantage of [docking] service offered . . . [because] boats are movable and the owners . . . [could] keep them someplace [else]").

The Plaintiffs have therefore failed to establish a likelihood of success with respect to demonstrating that this second Emerson Coll. factor weighs against finding the charge is a fee.

3. Third Emerson Coll. Factor

Third, fees "are charges collected not to raise revenues but to compensate the governmental entity providing the services for its expenses." Emerson Coll., 391 Mass. at 425. "[F]or a monetary exaction to be a fee, . . . the equivalence between the cost of providing the services and the revenue collected need not be exact." Caldwell, 25 Mass. App. Ct. at 97. The "Massachusetts Parole Board Global Positioning System Device and Stay Away Zones Acknowledgement Form" that the Plaintiffs received concerning the section 133D½ requirements directs them to make their check payable to the Commonwealth of Massachusetts and to mail it to the Parole Board. Thus, sex offender parolees mail their payments directly to the Parole Board, and the language of G.L. c. 127, § 133D½, expressly allocates the payments to the installation, maintenance, and operation of the GPS devices.

Other than the fact that checks are to be made payable to the Commonwealth of Massachusetts, the Plaintiffs have not established a likelihood of providing evidence that the Parole Board uses the payments collected pursuant to section 133D½ "for a broader range of services or for the general fund. . . ." Id. at 427; see Nuclear Metals, Inc., 421 Mass. at 207 (relying on terms of statute to hold that "revenue derived from the assessment obviously is used to fund the particularized services provided by the board"). The Plaintiffs have therefore failed to demonstrate a likelihood of success as to this factor.

4. Conclusion

Application of the three factors the Court set out in Emerson Coll. establishes that the Plaintiffs are not likely to succeed on the merits of their claim that the monetary exaction in G.L. c. 127, § 133D½, is an unreasonable excise tax rather than a fee.

II. Irreparable Harm

When considering irreparable harm in the context of a request for a preliminary injunction, "[w]hat matters as to each party is not the raw amount of irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of the party's chance of success on the merits." Packaging Indus. Group, 380 Mass. at 617. "[T]he only rights which may be irreparably lost are those not capable of vindication by a final judgment, rendered either at law or in equity." Id. at 617 n. 11. Here, the Plaintiffs have obviously shown potential harm from the GPS requirement, but they have not shown harm that is so great as to outweigh their failure to demonstrate a likelihood of success.⁴³ See, e.g.,Packaging Indus. Group, 380 Mass. at 617 n. 12 (noting that if movant "can demonstrate both that the requested relief is necessary to prevent irreparable harm to it and that granting the injunction poses no substantial risk of such harm to the opposing party" injunction may be granted even if merely "substantial possibility of success on the merits" exists). Thus, "[t]hat the plaintiffs failed to establish a likelihood of success on the merits is sufficient to deny injunctive relief." Tri-Nel Mgmt., Inc., 433 Mass. at 227; see Cote-Whitacre v. Department of Pub. Health, 446 Mass. 350, 382 n. 19 (2006) (Spina, J., concurring) (noting that as plaintiffs failed to demonstrate likelihood of success on merits, court "need not address the issue of irreparable harm"); Wilson v. Commissioner of Transitional Assistance, 441 Mass. 846, 858 (2004) (sympathizing with plaintiff "who would bear a significant hardship" without injunction, but not addressing question of irreparable harm because plaintiff failed to show likelihood of success on merits).

43 In fact, the risk of harm to the victims of sex offender parolees and, where applicable, to children if this court were to enjoin the Parole Board from enforcing G.L. c. 127, § 133D½, outweighs any harm the Plaintiffs may suffer without the injunction because the Legislature has decided that, without the exclusion zones and GPS devices, the Parole Board would have difficulty protecting those members of the public. SeeTri-Nel Mgmt., Inc., 433 Mass. at 219 ("When, as here, a party seeks to enjoin governmental action, the court also considers whether the relief sought [i.e., enjoining enforcement of G.L. c. 127, § 133D½] will adversely affect the public."); cf. In the Matter of a Grand Jury Subpoena, 430 Mass. at 598 n. 13 (noting that Legislature's responsibilities include promoting social policies); New England Legal Found., 423 Mass. at 611 (noting that court's responsibilities include interpreting and applying law already enacted).

ORDER

For the foregoing reasons, the Plaintiffs' motion for a preliminary injunction is DENIED .