DOE 308290 v. SEX OFFENDER REGISTRY BOARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court judgment affirming his reclassification by the Sex Offender Registry Board (SORB) as a level three sex offender. He appeals, contending that SORB reclassified him based on information that was not new, in excess of SORB's statutory authority to reclassify sex offenders based on “new information,” and that SORB did so without first promulgating regulations that defined “new information” and established procedures for reclassification.² We agree with SORB that because Doe failed to raise these issues before either the hearing examiner or the Superior Court judge, they are waived. Accordingly, we affirm.

1. Background. Doe received a final classification as a level two sex offender in November 2011 stemming from a conviction of child enticement involving two young girls in 2010. In February 2015, SORB notified Doe that it was seeking to reclassify him as a level three sex offender. SORB considered three distinct events when reclassifying Doe. First, in November 2011, shortly after he was formally classified as a level two sex offender, Doe's roommate alleged that he entered her bedroom, placed his hands inside her pants, and rubbed her vagina; Doe denied the allegations. He was charged with indecent assault and battery on a person fourteen years of age or older and later pleaded guilty to a reduced charge of assault and battery.

Next, in August 2013, Doe was arrested after his ex-girlfriend alleged that during an argument, Doe placed his arm around her neck and applied pressure to it. Finally, in December 2017, during an argument with his neighbors, Doe threatened them with a BB gun. He was arrested and charged with assault by means of a dangerous weapon.

2. Prior proceedings. On April 4, 2018, the hearing examiner reclassified Doe as a level three sex offender after consideration of the evidence presented, including scientific studies presented by Doe on recidivism rates and the collateral consequences of sex offender registration. Before the Superior Court judge, Doe challenged the sufficiency of the evidence presented to the hearing examiner and claimed that the hearing examiner misapplied certain regulatory factors. At no time in either proceeding did Doe argue that SORB lacked the authority to reclassify him or that SORB reclassified him on information that was not “new,” as that term is used in to G. L. c. 6, § 178L (3).

3. Discussion. For the first time on appeal, Doe argues that SORB violated its statutory and regulatory authority, and thus violated Doe's due process rights, but he failed to do so at the reclassification hearing or in the Superior Court proceedings. The claims are waived. “Failure to raise an issue before an appointing authority, an administrative agency, and a reviewing court precludes a party from raising it on appeal.” Springfield v. Civil Serv. Comm'n, 469 Mass. 370, 382 (2014). See Rhea R. v. Department of Children & Families, 96 Mass. App. Ct. 820, 823 n.7 (2020).

Doe argues that the issues that he raises here for the first time are jurisdictional and therefore cannot be waived. We disagree. “[W]hen arguments relate to predicate facts that are ‘jurisdictional’ in nature (because they are predicate to agency action), the rule of exhaustion applies.” Doe, Sex Offender Registry Bd. No. 3974 v. Sex Offender Registry Bd., 457 Mass. 53, 58 (2010). Because Doe failed to raise these issues during the prior proceedings, we “lack[ ] a record on which to evaluate questions of statutory authority or jurisdiction.” Id. (plaintiff waived claim he did not meet statutory definition of “sex offender” by failing to raise it during agency proceedings).

Doe, Sex Offender Registry Bd. No. 16748 v. Sex Offender Registry Bd., 82 Mass. App. Ct. 152 (2012), cited by Doe, is not to the contrary. In Doe No. 16748, we held that the plaintiff's constitutional arguments were not waived despite his failure to raise them before the hearing examiner because SORB did not have the inherent authority to strike down a regulation or declare it void on constitutional grounds. See id. at 155-156, citing Duarte v. Commissioner of Revenue, 451 Mass. 399, 413-414 (2008). Here, Doe does not seek to strike down a regulation or declare it unconstitutional. Instead, he claims that SORB acted without statutory or regulatory authority, and thus in violation of Doe's due process rights. Moreover, he did not raise this claim in his complaint for judicial review of SORB's decision in the Superior Court, whereas the plaintiff in Doe No. 16748 did. Doe No. 16748 does not provide Doe with a safe harbor for his failure to raise these claims below.

Judgment affirmed.

FOOTNOTES

2.   Doe further argues that he was deprived of due process because SORB reclassified him without first promulgating these regulations.