DOE 20421 v. SEX OFFENDER REGISTRY BOARD (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A Superior Court judge denied the plaintiff's motion for judgment on the pleadings and affirmed the Sex Offender Registry Board's (SORB's) final classification of him as a level 3 sex offender. On appeal, he contends that (1) his classification is not supported by substantial evidence; (2) the hearing examiner did not properly state the rationale for his decision; and (3) SORB exceeded its statutory authority when promulgating 803 Code Mass. Regs. § 1.33(12) (2016). We affirm.

Discussion. 1. Substantial evidence. The plaintiff first contends that his level 3 classification is not supported by substantial evidence because the hearing examiner misapplied numerous regulatory factors. We disagree.

To support a level 3 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 high and the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination” of the offender's information. G. L. c. 6, § 178K (2) (c). “[R]eview ․ ‘does not turn on whether, faced with the same set of facts, we would have drawn the same conclusion, ․ “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). Additionally, “[a] hearing examiner has discretion ․ to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor.'” Doe, Sex Offender Registry Bd. No. 68549, supra at 109-110.

Here, the plaintiff specifically contends that (1) factors 7 and 8 are static factors with little predictive quality; (2) factors 9 and 15 are not supported by the evidence; (3) factors 10, 11, 13, and 24 do not predict sexual recidivism; and (4) factor 29 should apply to him in mitigation of his risk to reoffend. See 803 Code Mass. Regs. § 1.33 (2016). We address each of these challenges to his classification infra.

First, we are not convinced that simply because factors 7 (relationship between offender and victim) and 8 (use of weapon, violence, or infliction of bodily injury) are static risk factors, the hearing examiner should, as a matter of law, give them low weight. The weight to ascribe the applicable risk factors is within the hearing examiner's discretion, see Doe, Sex Offender Registry Bd. No. 68549, 470 Mass. at 109-110, and even the research presented by the plaintiff supports the proposition that these factors are important for predicting risk of reoffense.

Second, we are similarly unconvinced that the hearing examiner improperly applied factor 9 (drug and alcohol abuse) and factor 15 (hostility to women). The hearing examiner was provided a documented history of substance abuse and supported his application of factor 9. Furthermore, the evidence of the five abuse prevention orders that various women had obtained against the plaintiff supported the hearing examiner's application of factor 15. To the extent that the plaintiff challenges the weight the hearing examiner ascribed to these reports, the challenge is misplaced -- again, the weight of the evidence is within the purview of the hearing examiner and not this panel. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011).

Third, the plaintiff's challenge to the application of factors 10 (contact with the criminal justice system), 11 (violence unrelated to sexual assaults), 13 (noncompliance with community supervision), and 24 (less than satisfactory participation in sex offender treatment) is also without merit and lacking in scholarly support. The research articles the plaintiff presented show, at most, that the predictive quality of factor 24 is uncertain. However, contrary to the plaintiff's assertion, they do not lend support to his claim that these factors have no predictive value. Moreover, where this research predates promulgation of the current SORB regulations, we give due weight to SORB's expert assessment of the research, see G. L. c. 30A, § 14 (7), and consider that the findings of the research were incorporated into the regulations.

Finally, we are not persuaded by the plaintiff's claim that because he had not committed any sexual offenses in more than ten years, the hearing examiner should have considered factor 29 (offense-free time in the community) in mitigation of his risk to reoffend. The scholarship the plaintiff points to does not support his position and, under SORB's regulations, the plaintiff's record of more recent violent offenses properly precluded application of mitigating factor 29 in his case. Accordingly, we discern no abuse of discretion in the hearing examiner's application or weighing of the regulatory factors in this case.

2. Statement of rationale. The plaintiff asserts next that the hearing examiner failed to properly state the rationale for his decision. We are not persuaded.

While the hearing examiner is required to give “a guide to [his] reasons” for a particular classification, NSTAR Elec. Co. v. Department of Pub. Utils., 462 Mass. 381, 387 (2012), quoting Hamilton v. Department of Pub. Utils., 346 Mass. 130, 137 (1963), he need not “consider[, as was the case with the research the plaintiff presented] irrelevant, unreliable, and repetitive evidence,” 803 Code Mass. Regs. § 1.18(1) (2016). Moreover, the hearing examiner here did not simply recite a laundry list of the applicable factors. Rather, he explained his reasons as to why the one mitigating factor in the plaintiff's favor paled in comparison to the several applicable aggravating factors. As such, while the hearing examiner's explanations could have been more detailed, they nevertheless provided ample guidance into his rationale. We see no abuse of discretion.

3. Authority to promulgate 803 Code Mass. Regs. § 1.33(12) (2016). Lastly, the plaintiff argues that SORB does not have the statutory authority to promulgate the current form of 803 Code Mass. Regs. § 1.33(12) (2016) because contrary to the statutory mandate to consider “recent behavior, including behavior while incarcerated,” G. L. c. 6, § 178K (1) (i), 803 Code Mass. Regs. § 1.33(12) (2016) also permits consideration of past disciplinary misconduct. We are not convinced.

SORB's establishing statute contains a list of factors SORB is required to consider when assessing an offender's risk of reoffense, including, as the plaintiff properly noted, “recent behavior, including behavior while incarcerated.” G. L. c. 6, § 178K (1) (i). However, “[t]his list is not exhaustive.” Doe, Sex Offender Registry Bd. No. 68549, 470 Mass. at 105. Therefore, the hearing examiner was not, as the plaintiff contends, without the statutory authority to consider, as he did here, the plaintiff's past disciplinary misconduct.

Judgment affirmed.