DOE 110261 v. SEX OFFENDER REGISTRY BOARD (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A Superior Court judge allowed the plaintiff, John Doe No. 110261's, motion for judgment on the pleadings, vacated his Level 2 classification, and remanded to the Sex Offender Registry Board (SORB) for a final classification at Level 1. On appeal, SORB contends that the judge overreached because SORB's classification was supported by substantial evidence and the hearing examiner's weighing of the applicable regulatory factors was not an abuse of discretion. We agree and reinstate SORB's Level 2 classification.

Discussion. We review a judge's grant of judgment on the pleadings de novo, Noe, Sex Offender Registry Bd. No. 5340 v. Sex Offender Registry Bd., 480 Mass. 195, 202 (2018), but will not disturb SORB's classification decision unless “the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law.” Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006).

1. Substantial evidence. SORB contends that there is substantial evidence to support its decision to classify the plaintiff as a Level 2 sex offender. We agree.

To support a Level 2 classification, SORB must show, by clear and convincing evidence, see Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 300 (2015), that “the risk of reoffense is moderate and the degree of dangerousness posed to the public is such that a public safety interest is served by public availability of registration information.” G. L. c. 6, § 178K (2) (b). Review “does not turn on whether, faced with the same set of facts, we would have drawn the same conclusion [as an agency], ․ but only ‘whether a contrary conclusion is not merely a possible but a necessary inference.’ ” Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass. 492, 500-501 (2015), quoting Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 110 (2014).

Here, the parties do not dispute the applicable regulatory factors. The hearing examiner found that the following factors aggravated the plaintiff's risk of reoffense: the repetitive and compulsive nature of the governing offenses; his victims were children and he was an adult at the time of the offenses; all victims were extrafamilial but not strangers; one victim was extravulnerable due to alcohol intoxication when he assaulted her; the level of contact with another victim rose to penetration; he assaulted three victims in total; and he did not participate in sex offender treatment while incarcerated.² See 803 Code Mass. Regs. § 1.33(2), (3), (7), (18), (19), (22), (24) (2016). The hearing examiner also found that the following factors mitigated the plaintiff's risk of reoffense: his supervision by probation; his advanced age; his community support system; and his stability in the community. See 803 Code Mass. Regs. § 1.33(28), (30), (33), (34) (2016). All of the plaintiff's victims were neighbors, indicating that public safety would benefit from public availability of his registration information. See G. L. c. 6, § 178K (2) (b). As such, we cannot say that the evidence before the hearing examiner and the resulting applicable regulatory factors necessitate a different classification.

2. Abuse of discretion. SORB also contends that the hearing examiner did not abuse her discretion when balancing the applicable regulatory factors, simply because she failed to explicitly describe how she balanced these factors against each other. We agree.

“A hearing examiner has discretion ․ to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor, and ․ a reviewing court is required to ‘give due weight to [the examiner's] experience, technical competence, and specialized knowledge.’ ” Doe, Sex Offender Registry Bd. No. 68549, 470 Mass. at 109-110, quoting G. L. c. 30A, § 14 (7).

Here, the hearing examiner explained how much weight she ascribed to each applicable aggravating and mitigating factor. Although she did not sum up her rationale when balancing the factors, her “path may reasonably be discerned,” NSTAR Elec. Co. v. Department of Pub. Utils., 462 Mass. 381, 387 (2012), quoting Costello v. Department of Pub. Utils., 391 Mass. 527, 536 (1984), and it is clear that “the classification is based on a sound exercise of informed discretion rather than the mechanical application of a checklist or some other reflex.” Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 651 (2012). We discern no abuse of discretion.

Conclusion. The judgment is vacated, and a new judgment shall enter affirming the decision of the Sex Offender Registry Board classifying the plaintiff as a Level 2 sex offender.

So ordered.

Vacated.

FOOTNOTES

2.   On appeal, the plaintiff contends that current scholarship does not support the regulatory presumption that failure to complete sex offender treatment elevates a sex offender's risk to reoffend. Assuming, without deciding, that the plaintiff preserved this issue for review, we are not persuaded. Title 803 Code Mass. Regs. § 1.33(24) allows a hearing examiner to view failure to satisfactorily complete sex offender treatment as a risk-elevating factor, citing three studies in support of this policy. Not only do we review such technical matters by giving due weight to SORB's expertise, G. L. c. 30A, § 14 (7), but the study the plaintiff cites in support of his contention merely states that scholarship on this issue is mixed.