WOE 497341 v. SEX OFFENDER REGISTRY BOARD (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, B. Woe, Sex Offender Registry Board No. 497341, sought judicial review in the Superior Court of the decision of the defendant Sex Offender Registry Board (board) classifying him as a level two sex offender. The judge denied Woe's motion for judgment on the pleadings and directed the entry of judgment in favor of the board, affirming the classification decision. We affirm.

1. Hearing examiner's qualifications. Woe asserts that because the examiner who conducted his classification hearing lacked any relevant expertise in law or science, the classification decision is automatically arbitrary and capricious, unfair, and violates his due process rights. He reasons that the courts owe no deference to the hearing examiner's decision because the deference owed to administrative agency decision-making is premised on the agency's expertise. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 110 (2014). Such expertise, he claims, is lacking in this case.

Even accepting as true Woe's allegation that his hearing examiner had no relevant background, the examiner's qualifications, or lack thereof, do not provide a basis for challenging the classification decision. The statute establishing the board sets forth specific areas of subject matter expertise that board members must possess. See G. L. c. 6, § 178K (1). The board members are responsible for promulgating guidelines for determining sex offenders' risk of reoffense and degree of dangerousness. Id. Board members may, but need not, conduct classification hearings; the chair has the option to appoint “a hearing officer to conduct the hearing.” G. L. c. 6, § 178L (2). While the seven board members must possess specialized knowledge, “the evidentiary classification hearing may be conducted by an individual board member or hearing examiner who is not required to have any such expertise or even training.” Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 773-774 (2008).

Moreover, in reviewing an administrative decision under G. L. c. 30A, “[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” (emphasis added). G. L. c. 30A, § 14 (7). The board's expertise is reflected in its regulations and guidelines, which “are specific and detailed, and here, the examiner fully utilized these factors, imbued with the expertise of the board, and was guided by them in determining the plaintiff's final classification.” Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 786 (2006). Because the individual hearing examiner's qualifications are irrelevant, the judge did not abuse her discretion in denying Woe's motion to expand the administrative record to include evidence of the hearing examiner's qualifications.

Moreover, we have carefully reviewed the hearing examiner's decision, as we explain in more detail below. Nothing in his decision indicates anything other than a thoughtful, balanced, even-handed, and professional appraisal of the evidence and the relevant factors.

2. Review of classification decision. Woe contends that the record lacks substantial evidence to support the board's determination that he presents a moderate risk of reoffense, requiring registration as a level two sex offender, by clear and convincing evidence. “Substantial evidence” is “such evidence as a reasonable mind might accept as adequate to support a conclusion.” G. L. c. 30A, § 1 (6). Specifically, he argues that the evidence does not support the hearing examiner's application of two aggravating risk factors, that the examiner failed to apply a mitigating risk factor, and that the examiner failed to take into account the absence of other aggravating risk factors.

Woe first contends that the hearing examiner erroneously applied “Factor 36: Online Offending Behavior” because “[t]here was zero evidence that Mr. Woe uploaded the videotape onto his computer.” In addition to this claim being factually inaccurate,² the hearing examiner appropriately applied this factor.

Factor 36, which is classified as an “ADDITIONAL FACTOR,” states, “Sex offenders who limit their offending to possessing child pornography, in the absence of other factors, generally pose a lower risk of reoffense and degree of dangerousness than sex offenders who commit contact offenses.” 803 Code Mass. Regs. § 1.33(36)(a)(1) (2016). On the other hand, “[e]vidence of sexual deviance” may be an aggravating factor. Id. The hearing examiner determined that this factor was not a mitigating factor in Woe's case, and warranted “slightly more aggravating weight,” because “his sexually deviant behavior consisted of more than just possessing child pornography. As already detailed, [Woe] secretly video-taped a 14-year-old female child in the nude to create his own child pornography.” The hearing examiner correctly applied this factor. Significantly, the hearing examiner placed no reliance whatsoever on whether Woe uploaded the video to another device.

Woe next asserts that because the most recent evidence of substance abuse was his second conviction for operating under the influence, which occurred approximately eight years before the hearing,³ the hearing examiner erred by giving “ample weight” to “Factor 9: Alcohol and Substance Abuse.” Because substance abuse may decrease inhibitions and increase the risk of reoffense, “factor 9 applies when the sex offender has a history of substance abuse.” 803 Code Mass. Regs. § 1.33(9)(a) (2016). “An offender's history of drug and alcohol use and history of treatment, abstinence and relapse should be considered in determining the weight given to factor 9.” Id.

The hearing examiner accurately observed that Woe had a substantial history of drug and alcohol abuse, including two criminal convictions for drunk driving and several charges involving possession or distribution of marijuana, all of which were dismissed after being continued without a finding. The decision also notes that Woe “acknowledged during his clinical interview with Dr. Plaud that ‘his alcohol and drug use have been problematic for his adjustment in the past.’ ” These facts, together with “the fact that there is no evidence of substance abuse treatment,” caused the hearing examiner to give factor 9 “ample weight.” The hearing examiner's determination is supported by the language of the regulations and substantial evidence.

Woe also asserts error in the hearing examiner's failure to apply “Factor 7: Relationship between Offender and Victim” as a mitigating factor. Although not a member of Woe's family, the victim qualified as an “intrafamilial victim” because she lived in Woe's household for more than two years prior to the offense. See 803 Code Mass. Regs. § 1.33(7)(a)(1)(d) (2016). The regulations state, “Offenders who only target intrafamilial victims may be at a lower risk to reoffend as compared to offenders who target unrelated victims. However, having an intrafamilial victim is not a risk mitigating, nor a risk elevating, factor.” Id. As the victim's status was not a mitigating factor under the regulations, the hearing examiner did not err by failing to treat it as such.

Finally, Woe argues that fourteen aggravating risk factors did not apply to him, and that because the number of factors that do not apply exceed the number of factors that do apply, the inapplicable factors should be given mitigating weight. The regulations themselves provide a response to this claim: “The final classification level is not based on a cumulative analysis of the applicable factors, but rather a qualitative analysis of the individual sex offender's history and personal circumstances. Factors that are not specifically referenced in a final classification decision are deemed inapplicable.” 803 Code Mass. Regs. § 1.33 (2016) (introduction).

“A hearing examiner has discretion ․ to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor.” Doe No. 68549, 470 Mass. at 109-110. “Our review does not turn on whether, faced with the same set of facts, we would have drawn the same conclusion as [the board], but only whether a contrary conclusion is not merely a possible but a necessary inference” (quotation and citation omitted). Id. at 110. The hearing examiner carefully considered and applied the applicable factors. We discern no error or abuse of discretion. Accordingly, the classification decision is not punitive and does not violate Woe's liberty or privacy interests.

Judgment affirmed.

FOOTNOTES

2.   The hearing examiner noted that the police seized a shared computer from Woe's home “and the iPod used earlier which they located connected to each other (presumably to charge and/or download/upload data).” This finding accurately reflects the narrative of a police report that was admitted as an exhibit at the hearing.

3.   Woe was incarcerated during two of those eight years.