DOE 496523 v. SEX OFFENDER REGISTRY BOARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Doe, challenges his classification as a level two sex offender by the Sex Offender Registry Board (SORB). Doe argues that the hearing examiner (examiner) failed to make specific findings regarding Doe's degree of dangerousness, risk of reoffense, and need for public dissemination of Doe's personal information. We affirm.

Background. The parties do not dispute the facts found by the examiner. In 2013, Doe, who was twenty-seven years old at the time, took his employer's fifteen year old daughter (the victim) for a ride in the woods on a “four-wheeler” outdoor vehicle. The victim was intoxicated from having consumed alcoholic beverages and two Benadryl pills. At some point, Doe sexually assaulted the victim. The victim initially denied that anything had happened, but later told police that she recalled seeing Doe's penis and that she “felt like something happened.” Evidence obtained through a sexual assault kit and DNA testing led police to believe that Doe had penetrated the victim's vagina with his penis. Doe pleaded guilty in 2016 to two counts of indecent assault and battery on a person fourteen years or older. In addition to the above-referenced “governing offense,” Doe had a conviction in 2010 of assault and battery on an eight month old infant, and a conviction in 2014 of procuring alcohol for a minor.²

In June of 2016, SORB notified Doe of his obligation to register as a level three sex offender. Doe challenged the recommended classification. Following a de novo hearing the examiner found, by clear and convincing evidence, that Doe “presents a moderate risk to reoffend sexually, and a degree of dangerousness to vulnerable girls such that a public safety interest is served by public access to his sex offender registry information.” Accordingly, the examiner ordered him to register as a level two sex offender.

Doe sought judicial review of the examiner's decision in the Superior Court pursuant to G. L. c. 6, § 178M, and G. L. c. 30A, § 14. On November 5, 2018, a Superior Court judge denied Doe's motion for judgment on the pleadings, issued an order affirming the examiner's decision, and judgment entered accordingly.

Discussion. There is no merit to Doe's claim that the examiner failed to make the required individualized findings regarding Doe's current risk to reoffend and level of dangerousness. The examiner's detailed subsidiary findings, none of which are disputed on appeal, supported Doe's level two classification by clear and convincing evidence. Indeed, the examiner properly addressed the statutorily mandated risk-elevating and risk-mitigating factors. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 105 (2014) (“SORB is required to consider a list of statutory factors in making its classification determinations”). The examiner's decision reflects a thoughtful and careful balancing of the relevant statutory and regulatory considerations, and we need not restate his findings herein. For the reasons detailed by the examiner and by the judge in his decision and order denying Doe's motion for judgment on the pleadings, we conclude that the examiner's decision was supported by substantial evidence and demonstrated the necessary link between the facts and the level two classification.³ This is particularly so in view of the aggravating factors detailed in the examiner's findings.

Finally, we disagree with Doe's argument that the examiner's failure to explain how public dissemination of Doe's registration information served a substantial public safety interest constituted a due process violation. In Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 656-657 (2019), the Supreme Judicial Court held that with respect to level two and three classifications in SORB cases, hearing examiners must make explicit findings as to all three elements, including a finding that “a public safety interest is served by Internet publication of the offender's registry information.” However, the court further held that the requirement is to be applied “prospectively only,” and that “where an appeal is pending before the Superior Court or an appellate court, the court, in its discretion, may order that the classification decision be remanded to the hearing examiner.” Id. at 657. This case does not merit the exercise of our discretion to order a remand. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 145 (2019), quoting Doe No. 496501, supra at 657 n.4 (“because ‘the underlying facts of the case ․ so clearly dictate the appropriate classification level,’ we do not exercise our discretion to remand for further findings on this element”).

Judgment affirmed.

FOOTNOTES

2.   Doe procured the alcohol for a minor while he was serving a sentence of probation following his release from incarceration on the assault and battery of a minor conviction.

3.   Throughout the classification hearing, Doe's counsel repeatedly requested and advocated for Doe to be classified as a level two offender. Doe's request before the examiner does not control our legal analysis, but, as Doe's counsel acknowledged at oral argument, it is an issue of fact that we may consider in reviewing the fairness of the administrative process. We acknowledge counsel's candor in this regard.