447 Mass. 768 | Mass. | 2006
We transferred this case on our own motion to decide a question reported by a Superior Court judge: whether G. L. c. 6, § 178K, and the regulations promulgated thereunder, 803 Code Mass. Regs. §§ 1.38-1.40 (2002), for determining the classification of a person as a level one, two, or three sex offender “vests untrammeled discretion in the [Sex Offender Registry] Board [(board)] over the classification level, thereby
The statutory scheme. General Laws c. 6, §§ 178C-178G, as appearing in St. 1999, c. 74, § 2,
General Laws c. 6, § 178K (1), specifically authorizes the board to develop and promulgate guidelines to assess the risk of reoffense and the degree of dangerousness sex offenders pose to
Level one offenders are considered low risk, and the board must transmit registration data only to the FBI and to the local police departments where the offender lives and works (or, if the offender is in custody, where he or she intends to live and work) and where the offense was committed. G. L. c. 6, § 178K (2) (a).
The board developed and promulgated guidelines pursuant to G. L. c. 6, § 178K. Registration and classification is a two-part process. First, the board makes a recommendation on the offender’s duty to register and the appropriate classification level. In the initial classification process, the board uses various factors, incorporated from G. L. c. 6, § 178K (1) (a)-(Z), see note 5, supra, to determine the appropriate classification level of an offender.
Once a decision has been reached, the board notifies the offender of the recommendation. The offender then has the option either to accept or to reject the recommendation. If the offender rejects the recommendation, the second stage of the process is triggered. During this second stage, the offender is provided an individualized evidentiary hearing before a hearing examiner.
Pursuant to G. L. c. 6, § 178M, an offender “may seek judicial review, in accordance with [G. L. c. 30A, § 14], of the board’s final classification and registration requirements. The court shall, if requested, appoint counsel to represent the sex offender in the proceedings if such offender is deemed indigent in accordance with [G. L. c. 211D, § 2].”
In April, 2003, the board notified the plaintiff of his obligation to register as a level two sex offender, pursuant to G. L. c. 6, § 178KX2). The initial decision was based on factors outlined in 803 Code Mass. Regs. § 1.40, including the plaintiff’s conviction and sentence of indecent assault and battery, his probation performance, his criminal history, his substance abuse history, the lack of sex offender treatment, and allegations of sexually assaulting his three year old daughter. In response, the plaintiff requested a hearing to contest the recommended classification. A de nova hearing was conducted by a hearing examiner on October 14, 2003.
The hearing examiner’s decision considered the plaintiff’s convictions of indecent assault and battery in 1991, operating a motor vehicle while under the influence of alcohol in 1992, and assault and battery and malicious destruction of property in 1995. The examiner also considered the plaintiff’s juvenile record, including four arrests for crimes against property, and his adult criminal record consisting of three charges for crimes against property. The examiner weighed the plaintiff’s admission of substance abuse and noncompliance with probation requirements to attend substance abuse counselling. The examiner also considered the plaintiff’s refusal to accept responsibility for the
The plaintiff filed a complaint for judicial review on February 5, 2004, arguing that the process the board used to determine his classification lacked objective standards and thus violated his constitutional right to due process. A Superior Court judge remanded the case to the board, requesting that it reconsider the plaintiff’s classification level using quantitative, objective standards. The board filed a motion to reconsider, arguing that the regulations did not violate constitutional due process and were developed based on a proper delegation of legislative authority pursuant to G. L. c. 6, § 178K. In response, the judge issued an amended order reversing the board’s decision, and he simultaneously submitted the reported question for appellate review.
Procedural due process. The reported question before us is “whether the [bjoard’s final classification procedure vests untrammeled discretion in the [bjoard over the classification level, thereby rendering the procedure one that is arbitrary and contrary to law.” The plaintiff claims that a combination of an
A court must not substitute its judgment for that of the agency because “a properly promulgated regulation has the force of law.” Borden, Inc. v. Commissioner of Pub. Health, 388 Mass. 707, 723, cert. denied sub nom. Formaldehyde Inst., Inc. v. Frechette, 464 U.S. 936 (1983). Deference is given to the agency unless the regulatory provisions are not in harmony with the legislative mandate. American Family Life Assur. Co. v. Commissioner of Ins., 388 Mass. 468, 477, cert. denied, 464 U.S. 850 (1983), quoting Consolidated Cigar Corp. v. Department of Pub. Health, 372 Mass. 844, 855 (1977). Deference is also necessary to ensure the proper separation of powers between the judiciary and the Legislature. American Family Life Assur. Co. v. Commissioner of Ins., supra at 480.
However, the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution require that individuals be accorded procedural due process when a governmental decision is made pertaining to deprivation of liberty or property interests. Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Three factors must be weighed in determining procedural due process: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including . . . the fiscal and administrative burdens [involved].” Id. at 335. In the context of sex offender registration, an offender’s liberty and privacy interests are constitutionally protected, and deprivation of these interests generally requires procedural due process.
Considering the first and second factors of the test, the plaintiff’s interest in this case is weighty, and the risks associ
Concerning the second and third factors, the plaintiff argues that the board should utilize a methodology such as that adopted in New Jersey
The plaintiff concedes that the regulations promulgated by the board are a proper delegation of power by the Legislature and have the force of law. The regulations ensure adequate procedural safeguards and do not violate constitutional due process. Thus, because both the initial and final classification conformed to the regulations and guidelines properly promulgated by the board pursuant to G. L. c. 6, § 178K, presumptive or quantitative analysis in the decision-making process to identify the appropriate classification was not required.
Conclusion. In sum, the plaintiff received notice of his initial level two classification along with the factors that were taken into consideration and was afforded several opportunities to be heard regarding his classification, including a de nova hearing at which he had the opportunity to present relevant evidence and testimony pertaining to his classification and obligation to
So ordered.
We acknowledge the amicus brief of the Committee for Public Counsel Services.
General Laws c. 6, §§ 178C-178K, has been amended frequently since 1999. See, e.g., St. 2006, c. 139, §§ 5-31, 132. These amendments are not relevant to this case.
A sex offender is “a person . . . who has been convicted of a sex offense . . . on or after August 1, 1981.” G. L. c. 6, § 178C.
The statute states that the board “shall promulgate guidelines for determining the level of risk of reoffense and the degree of dangerousness posed to the public or for relief from the obligation to register and shall provide for three levels of notification depending on such risk of reoffense and the degree of dangerousness posed to the public; apply the guidelines to assess the risk level of particular offenders; develop guidelines for use by city and town police departments in disseminating sex offender registry information; devise a plan, in cooperation with state and local law enforcement authorities and other appropriate agencies, to locate and verify the current addresses of sex offenders including, subject to appropriation, entering into contracts or interagency agreements for such purposes; and conduct hearings as provided in section 178L.” G. L. c. 6, § 178K (1).
The relevant factors specified in G. L. c. 6, § 178K (1) (b)-(l), include criminal history factors that are considered in determining the risk and degree of dangerousness, such as the relationship between the sex offender and the victim, whether the offense involved the use of a weapon, violence or infliction of bodily injury, and the number, date, and nature of prior offenses; conditions of release that minimize the risk of reoffense and the degree of dangerousness to the public; physical conditions that minimize the risk of re-offense; whether the offender was a juvenile when the offense was committed, his or her response to treatment, and his or her subsequent criminal history; psychological or psychiatric profiles indicating a risk of recidivism; history of alcohol or substance abuse; participation in sex offender treatment and counselling while incarcerated or while on probation or parole and response to such treatment; recent behavior, threats, or expressions of intent to commit additional offenses; review of any victim impact statement; and review of any materials submitted by the offender, his attorney, or others on behalf of the offender. Factors indicating a high risk of reoffense include mental abnormality; whether the offender’s conduct is characterized by repetitive and compulsive behavior; whether the offender was an adult who committed the offense on a child; the age of the offender at the time of the first sex offense; whether the sex offender has been adjudicated to be a sexually dangerous person pursuant to G. L. c. 123A, § 14, or released from civil commitment pursuant to G. L. c. 123A, § 9; and whether the offender served the maximum term of incarceration. G. L. c. 6, § 178K (1) (a).
Any person who is eighteen years or older requesting sex offender registry information for the protection of a child under 18, for another person in the care or custody of the requesting individual, or for his or her own protection “shall” receive a report indicating, inter alla, whether a particular individual is a sex offender classified as either level two or three and the offenses of which the offender was convicted. G. L. c. 6, §§ 1781, 178J.
A level two or three offender must appear in person annually (or, if determined to be a sexually violent predator under G. L. c. 6, § 178K [2] [c], every ninety days) at the local police department in the city or town where the offender lives or works to verify the accuracy of the registration information on file. The offender’s photograph and fingerprints will also be updated at this time. If an offender lists a homeless shelter as his residence, the offender is required to appear every ninety days to verify the accuracy of the information on file. G. L. c. 6, § 178F V2.
In addition to the factors specified in G. L. c. 6, § 178K (1) (a)-(l), the board considers whether the sex offender is progressing less than satisfactorily or successfully completed sex offender specific treatment. 803 Code Mass. Regs. § 1.40(24).
Pursuant to 803 Code Mass. Regs. § 1.21 (2002), an impartial hearing is required. If the offender is indigent, counsel may be appointed to represent him at the hearing. 803 Code Mass. Regs. § 1.08 (2004). The parties are also entitled to prehearing discovery, and they are permitted to file motions before or during the hearing. 803 Code Mass. Regs. §§ 1.11, 1.18 (2002).
At the hearing, the plaintiff submitted a motion in limine seeking to exclude documents relating to the plaintiff’s alleged sexual abuse of his daughter. Although the plaintiff’s motion was denied, the examiner did not consider the information in affirming the initial level two classification.
The plaintiff’s terms of supervision for the indecent assault and battery offense included counselling “as required.” Substance abuse treatment was required, and the New Bedford Center for Human Services, Inc., issued a “non-compliance report” indicating that the plaintiff had exceeded the number of excusable absences.
New Jersey’s sex offender classification system utilizes an empirically guided risk assessment scale, known as the Registrant Risk Assessment Scale (scale), to determine the appropriate classification level of a sex offender. By using this scale along with a detailed manual specifying what constitutes low, moderate, and high risk, prosecutors determine an offender’s classification based on a numerical calculation. This calculation is based on applicable factors that are assigned a particular numerical value and then added together to determine an offender’s risk level. Matter of Registrant G.B., 147 N.J. 62, 78-79 (1996).
The plaintiff also claims that the examiner’s final decision was not based on substantial evidence because the examiner failed to use quantitative analysis. We need not address this claim. See Casey v. Massachusetts Elec. Co., 392 Mass. 876, 882 n.11 (1984).