Opinion
10-P-1378
12-22-2011
JOHN KOE, SEX OFFENDER REGISTRY BOARD NO. 141010 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On May 25, 2006, the plaintiff, John Koe, pleaded guilty to three counts of rape and abuse of a child, G. L. c. 265, § 23, and one count each of indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B, and indecent assault and battery on a person age fourteen or older, G. L. c. 265, § 13H.
The Sex Offender Registry Board (SORB or the Board) classified the plaintiff as a level three sex offender, a determination the plaintiff subsequently challenged. After de novo review, a hearing examiner upheld the decision of the Board noting, inter alia, that upon his release the plaintiff would be at the highest risk to reoffend, and that at the time of the hearing the plaintiff had completed only the 'pre-treatment' stage of his sex offender treatment and had not begun the 'most meaningful' second stage of that treatment.
The plaintiff appealed to the Superior Court under G. L. c. 30A, and a Superior Court Judge denied the plaintiff's motion for judgment on the pleadings and affirmed the Board's decision. The plaintiff filed a timely notice of appeal. We affirm.
Discussion. 'To determine the validity of an agency's decision, the reviewing court must determine whether the decision is supported by substantial evidence.' Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006), citing to Flint v. Commissioner of Pub. Welfare, 412 Mass. 416, 420 (1992). 'Substantial evidence is 'such evidence as a reasonable mind might accept as adequate to support a conclusion." Doe, Sex Offender Registry Bd. No. 10216, supra at 787, quoting from G. L. c. 30A, § 1(6). In reviewing the agency's decision, '[t]he court shall give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.' G. L. c. 30A, § 14(7)(g), as appearing in St. 1973, c. 1114, § 3. SORB's decision may 'only be set aside if the court determines that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law. G. L. c. 30A, § 14(7)(e),(g).' Doe, Sex Offender Registry Bd. No. 10216, supra.
Sex offender treatment. Among Koe's myriad arguments challenging the validity of the examiner's decision, he claims that the examiner conducted an impermissible 'ex parte independent fact-based investigation' into the plaintiff's sex offender treatment. On the contrary, there is nothing in the examiner's decision or in the record to indicate that he examined any evidence by way of an 'ex parte, independent fact-based investigation.' Koe also claims that there is insufficient evidence to support the examiner's finding that Koe had completed only the early stages of treatment. In fact, there was ample evidence in the record suggesting that the plaintiff was 'participating in the pre-treatment stage' of sex offender treatment at MTC, but was 'not eligible for CORE treatment.' SORB regulations direct the hearing examiner to consider such evidence under Factor 11. 803 Code Mass. Regs. § 1.40(11) (2002).
Koe also contends that 803 Code Mass. Regs. § 1.40(2) (2002), is ultra vires because it impermissibly authorizes SORB to diagnose 'compulsive behavior' without independent expert testimony. Koe maintains, therefore, that it was improper for the hearing examiner to conclude that Koe had engaged in compulsive behavior without the aid of expert testimony.
The plaintiff's argument is without merit. To begin with, 'the regulations promulgated by [SORB] are a proper delegation of power by the Legislature and have the force of law.' Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 777 (2006). Thus, contrary to the plaintiff's contention, neither the regulation in question nor the examiner's decision are 'ultra vires.' Furthermore, an examiner has the discretion to assess the factors enumerated in 803 Code Mass. Regs. § 1.40 (2002) without the aid of any expert opinion. See Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. at 784-786. Considering that the plaintiff raped or sexually assaulted a minor female on at least five separate occasions over a two and one-half year period, the examiner was justified in finding that Koe's conduct was 'compulsive' as defined by § 1.40(2).
Expert testimony may be required where classification is based on any of three specific regulatory factors relating to the 'offender's mental or physical condition.' Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd. 452 Mass. 764, 772 (2008). The three factors are mental abnormality (§ 1.40[1]), physical condition (§ 1.40[13]), and psychological or psychiatric profiles indicating risk to reoffend (§ 1.40[15]). Id. at 772 n.15. None of these factors is at issue in this case.
The plaintiff also argues that (1) there was not substantial evidence for the Board to find that the plaintiff posed a high risk to reoffend and a high degree of danger to the community, (2) the hearing examiner applied incorrect factors to his consideration of the plaintiff's treatment, (3) Koe's age was not properly considered by the hearing examiner, (4) the hearing examiner improperly considered victim impact statements, and (5) a level three classification is an unconstitutional punishment that deprives the plaintiff of liberty or privacy interests without due process. For substantially the reasons given in
SORB's brief, these arguments are without merit.
Judgment affirmed.
By the Court (Trainor, Milkey & Agnes, JJ.),