Doe, SORB No. 209081 v. Sex Offender Registry Board, SJC 12282

Background

In 2008 Doe pleaded guilty to sexual offenses and the Sex Offender Registry Board (Board) preliminarily classified him as a level 3 offender; he requested a de novo hearing and checked a form box indicating he would represent himself.
At the October 2008 hearing Doe declined to sign the written waiver of counsel and told the hearing examiner he did not want to waive counsel and expected his criminal attorney to appear; the examiner denied a continuance and proceeded; Doe presented no evidence.
The Board issued a final level 3 classification in November 2008. Doe did not seek judicial review within the 30-day statutory period.
In June 2015, after completing his sentence and probation, Doe petitioned the Board to reopen the 2008 hearing, alleging a denial of his right to counsel and violations of Board regulations; the Board summarily denied the petition as untimely and because Doe had initially indicated he would self-represent.
Doe sought judicial review in Superior Court; the court granted the Board’s motion to dismiss. The SJC accepted transfer and reviewed whether the Board abused its discretion in refusing to reopen the proceeding.
The SJC majority affirmed: the Board did not abuse its discretion in denying reopening due to Doe’s six-year delay without adequate explanation and Doe’s failure to allege or proffer prejudice; the court emphasized the Board must ensure waivers of counsel are knowing and voluntary per its regulations.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Board abused its discretion in refusing to reopen the 2008 classification hearing	Doe argued the hearing was fundamentally unfair because he was compelled to proceed without counsel despite refusing to waive counsel; reopening is required to prevent a miscarriage of justice	Board argued it has broad discretion to deny reopening; Doe’s petition was untimely (six years) and he initially indicated self-representation; he failed to show prejudice	Held: No abuse of discretion. Denial affirmed because Doe did not adequately explain delay and did not allege prejudice
Whether the Board satisfied its regulation requiring a knowing and voluntary waiver of counsel	Doe argued the examiner failed to obtain a proper waiver and refused to continue when he expressed he wanted counsel	Board acknowledged examiner erred in this case but noted current practice includes colloquy and continuances when a detainee seeks counsel	Court declined to reach merits but cautioned Board must ensure waivers are knowingly and voluntarily made per its regulations
Whether finality/public interest in timely review outweighs claims of miscarriage of justice	Doe argued finality cannot trump correction of a structural denial of counsel and the burden of reopening is minimal in classification proceedings	Board relied on statutory deadlines and the importance of finality and stability; regulations provide reclassification procedures	Held: Finality and timeliness legitimately weighed; where petitioner fails to show prejudice or explain delay, denial of reopening is reasonable
Availability of remedy via reclassification process vs. reopening initial hearing	Doe argued reclassification shifts burden and is an inadequate remedy when initial hearing denied counsel	Board noted regulations permit reclassification proceedings and the burden shifts to offender on reclassification	Court noted reclassification availability is a factor favoring denial of reopening because it offers a future remedy, though different burdens may apply

Key Cases Cited

Soe v. Sex Offender Registry Bd., 466 Mass. 381 (recognizing Board's inherent authority to reopen proceedings; reviewable for abuse of discretion)
Poe v. Sex Offender Registry Bd., 456 Mass. 801 (holding sex offenders are entitled to effective assistance of counsel at classification hearings)
Saferian v. Commonwealth, 366 Mass. 89 (establishing civil ineffective-assistance standard applied in administrative settings)
Doe v. Sex Offender Registry Bd. (No. 972), 428 Mass. 90 (recognizing liberty interests implicated by sex-offender classification)
Zachs v. Department of Public Utilities, 406 Mass. 217 (agencies have broad discretion over procedural aspects; review is for reasonableness)
Commonwealth v. Rosario, 477 Mass. 69 (illustrating that finality yields where substantial miscarriage of justice is shown)