DOE 524065 v. SEX OFFENDER REGISTRY BOARD (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

At oral argument in this matter the parties informed the panel that there was a pending case in the Superior Court which posed a challenge to the application of factor 2, repetitive and compulsive behavior, on statutory and constitutional grounds. See Doe, Sex Offender Registry Bd. No. 22188 vs. Sex Offender Registry Bd., Middlesex Super. Ct., No. 20-1130B (April 16, 2021); 830 Code Mass. Regs. § 1.33(2). In the months since argument, this court has rebuffed a facial constitutional challenge to factor 2. See Doe, Sex Offender Registry Bd. No. 356315 v. Sex Offender Registry Bd., 99 Mass. App. Ct. 292 (2021). In addition, the Superior Court judge hearing the matter of Doe No. 22188 issued a final decision. Relying on our previous decision in that case, see Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738 (2019), the judge considered a fact-based constitutional challenge to factor 2. He declared that 830 Code Mass. Regs. § 1.33(2) was in excess of SORB's statutory authority and violated due process. See Doe No. 22188, supra.

We requested supplemental briefing in light of the Superior Court judge's decision, which SORB has not appealed. SORB acknowledges that the Superior Court memorandum and order in Doe No. 22188 is binding on it, and it no longer relies on factor 2. It remains for us to decide the proper disposition of the appeal of Doe No. 524065's level 2 classification. SORB urges us to affirm the classification on the basis of the remaining evidence. Doe asks that we either vacate the order and relieve him of any obligation to register or remand the case for a new hearing.

We conclude that a remand is required. “A reviewing court may set aside or modify SORB's classification decision where it determines that the decision is in excess of SORB's statutory authority or jurisdiction, violates constitutional provisions, is based on an error of law, or is not supported by substantial evidence.” Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019), citing G. L. c. 30A, § 14 (7). Factor 2 has been nullified. There was only one other high-risk factor at issue in the case, factor 3, Adult Offender with Child Victim. 830 Code Mass. Regs. § 1.33(3). The underlying offense involved a series of escalating sexual advances to a female student when Doe was a thirty-five year old martial arts instructor and the victim was fourteen years of age.² There were several risk elevating factors as well. However, there was no past or subsequent history of sexual offense. Doe has participated in treatment, retained familial and community support, has undergone sex offender treatment, and was compliant with the terms of probation. Complicating matters further, the hearing examiner discredited Doe's expert (who opined that Doe was at a low risk of reoffense) on the grounds that the expert was unfamiliar with two of Doe's convictions. This characterization, as SORB properly concedes, was incorrect.

The statutory scheme contemplates that we defer to the agency's expertise in these matters. Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109 (2014), quoting G. L. c. 30A, § 14 (7). We cannot say that the evidence of a level 2 designation was so overwhelming that we are confident that the hearing examiner would reach the same conclusion upon reconsideration on remand. Therefore, the agency should have the first opportunity to reassess Doe's classification in light of developments since the case was first heard. Accordingly, the judgment is vacated, and the matter is remanded to the Sex Offender Registry Board for further proceedings consistent with this memorandum and order.

So ordered.

Vacated and remanded.

FOOTNOTES

2.   In a plea agreement, Doe pleaded to three noncontact offenses. He was sentenced to two years in the House of Correction, six months to serve, and five years of supervised probation.