Doe v. Sex Offender Registry Board
460 Mass. 336
| Mass. | 2011Background
- Board regulation 803 Code Mass. Regs. § 1.13(2) purports to waive a sex offender's right to a classification hearing if the offender fails to appear without good cause.
- Statutory scheme (G. L. c. 6, § 178L(1)) provides waiver only when the offender does not timely request a hearing; the board has to prove the classification by a preponderance at an evidentiary hearing.
- Doe timely requested a hearing; hearing set for Jan. 5, 2009; his attorney was present but Doe did not appear.
- Hearing examiner concluded Doe waived the right by nonappearance and ordered final level-3 classification; no further findings.
- Doe sought judicial review; the Superior Court dismissed for lack of subject-matter jurisdiction under the board’s regulation; the matter was transferred to the Supreme Judicial Court for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the board's waiver regulation is ultra vires. | Doe argues the waiver rule exceeds the statute’s waiver only for non-request cases. | Board asserts regulation valid under its rulemaking authority to implement 178C–178P. | Ultra vires; regulation exceeds statutory mandate. |
| Whether a hearing can be denied solely because the offender fails to appear when a hearing is requested. | Doe should not be deprived of a hearing and due process protections. | Nonappearance can waive right to hearing under the regulation. | Waiver of right to a hearing cannot be imposed solely by nonappearance; due process requires a hearing with findings. |
| Whether due process requires detailed findings and board burden at a hearing when a defendant seeks review. | The board must justify its classification with written, individualized findings. | Board can proceed with evidence and cross-examination if present. | Board must provide specific, written findings; regulation bypasses this requirement. |
Key Cases Cited
- Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90 (1998) (due process in classification; burden on board to prove by preponderance)
- Doe v. Attorney Gen., 426 Mass. 136 (1997) (privilege of procedural due process in registration scheme)
- Roe v. Attorney Gen., 434 Mass. 418 (2001) (procedural protections for sex offender classifications)
- Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768 (2006) (legislative reforms and due process protections in 178L)
- Commonwealth v. Maker, 459 Mass. 46 (2011) (regulatory actions must align with statutory mandate)
- Robinson v. Commonwealth, 445 Mass. 280 (2005) (absence does not waive rights; may waive right to presence)
- Moot v. Department of Environmental Protection, 448 Mass. 340 (2007) (ultra vires regulation where statute authorizes different scope; subsequent SJC ruling 456 Mass. 309 (2010))
- S.C. Moot v. Department of Environmental Protection, 456 Mass. 309 (2010) (continued ultra vires considerations)
- Doe v. Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., ? (1998) (see 428 Mass. 90)