On July 12, 2013, the Governor signed into law various amendments to G. L. c. 6, §§ 178C-178Q, the sex offender registry law (SORL), including amendments that would
History of the case. On July 5, 2013, after the Legislature had passed the amendments but before the Governor had signed them into law, the named plaintiffs, as putative representatives of the class of all persons presently and prospectively classified as level two sex offenders, filed in the county court a complaint for declaratory and injunctive relief. The complaint sought a preliminary and permanent injunction barring SORB from publishing registry information on the Internet of the class of level two offenders, as well as a declaratory judgment, and was accompanied by a motion for a preliminary injunction. On July 25, 2013, the single justice allowed the motion of the plaintiff class
On September 9, the single justice allowed the plaintiffs’ motion to file an amended complaint that narrowed the scope of the putative class to include only those who were classified as a level two sex offender on or before July 12, 2013 (the effective date of the amendments) and, as a consequence, narrowed, the scope of the relief sought. With the filing of the amended complaint, the plaintiffs seek an injunction that effectively would make the preliminary injunctive relief permanent, and a judgment declaring that Internet publication of the registry information of level two sex offenders classified on or before July 12 would violate the United States and Massachusetts Constitutions.
Background. As amended in 1999, St. 1999, c. 74, § 2, the SORT established a sex offender registration system in the Commonwealth of those convicted of a sex offense, as defined in G. L. c. 6, § 178C. Unless otherwise ordered by a court pursuant to G. L. c. 6, § 178E (e) or (f), sex offenders are required to register with SORB within five days of receiving a sentence on a conviction or juvenile adjudication. G. L. c. 6, § 178E (a). “Upon review of any information useful in assessing the risk of reoffense and the degree of dangerousness posed to the public by the sex offender, including . . . any materials submitted by the sex offender, [SORB prepares] a recommended classification of each offender.” G. L. c. 6, § 178L (1). If an
Under the SORL, as amended in 1999, the “public availability of registration information” applicable to level two offenders under G. L. c. 6, § 178K (2) (b), was limited to two types of information requests, each of which could only be made by a person “who [was eighteen] years of age or older and who state[d] that he [was] requesting sex offender registry information for his own protection or for the protection of a child under the age of [eighteen] or another person for whom the requesting person has responsibility, care or custody.” G. L. c. 6, §§ 1781, 178J.
In contrast, under the SORE, as amended in 1999, the “active dissemination” of sex offender information referenced in G. L. c. 6, § 178K (2) (c), involved a “community notification plan” in which police departments in the communities where a level three sex offender resided or worked were required to “notify organizations in the community which [were] likely to encounter such sex offender and individual members of the public who [were] likely to encounter such sex offender.” G. L. c. 6, § 178K (2) (c). In addition, “[neighboring police districts
The SORL, as amended in 1999, did not provide for Internet publication of any information regarding any sex offender. Internet publication of registry information was first required through an amendment to G. L. c. 6, § 178D, in 2003, St. 2003, c. 140, § 5, but was limited to registry information regarding level three offenders. The 2003 amendment specifically prohibited Internet publication of registry information of level two offenders.
Of the 11,171 sex offenders registered with SORB as of July
Implicit in the earlier prohibition against Internet publication of the registry information of level two offenders and the existing prohibition against the publication of the registry information of level one offenders is the recognition by the Legislature that public identification of a sex offender poses a risk of serious adverse consequences to that offender, including the risk that the sex offender will suffer discrimination in employment and housing, and will otherwise suffer from the stigma of being identified as a sex offender, which sometimes means the additional risk of being harassed or assaulted. See Doe v. Attorney Gen. (No. 2), 425 Mass. 217, 221-222 (1997) (Doe [No. 2]) (without safeguards as to who can access sex offender information, “[t]he possibility exists . . . that a person with no remedial motive will obtain sex offender registry information and reveal it to the plaintiff’s detriment. The potential harm to the plaintiff in his employment or in his community, or both, from the use of such information for other than personal protection is substantial”). Cf. Poe v. Sex Offender Registry Bd., 456 Mass. 801, 813 (2010), quoting Doe v. Attorney Gen., 426 Mass. 136, 144 (1997) (“Classification and registration entail possible harm to a sex offender’s earning capacity, damage to his reputation, and, ‘most important, ... the statutory branding of him as a public danger’ ”).
The best evidence that the Legislature recognized this risk is its enactment of G. L. c. 6, § 178N, which provides that “[information contained in the sex offender registry shall not be used to commit a crime against a sex offender or to engage
Publication of registry information on SORB’s Web site substantially increases the risk of public identification for at least three reasons. First, to obtain registry information under either G. L. c. 6, §§ 1781 or 178J, a person must identify himself or herself and make a specific request for information about a particular person or about level two or three sex offenders in a particular city or town. In contrast, to obtain registry information from SORB’s Web site, persons may remain anonymous, seek information regarding every level two and level three sex offender in the Commonwealth, and conduct this search from the comfort of their home, at any time of day or night. Second, once a sex offender’s registry information is published on SORB’s Web site, it is likely to be republished on other Web sites that are not controlled by SORB that publicly identify sex offenders, and that do not include the same warnings or certifications provided on SORB’s Web site as required by statute or SORB regulation. Third, because a sex offender’s name is published on SORB’s Web site and on such unrelated private Web sites, a person searching for that individual on the Internet through one of the usual search engines, such as Google, may learn that the individual is a sex offender, even if that was not the reason for the Web search, because the search results may include “hits” to private Web sites listing sex offenders. See D.J. Solove, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet 78 (2007) (“When one puts information on the Internet, it can easily become like Frankenstein’s monster, escaping the dominion of its master”).
Discussion. Where a party argues, as the plaintiffs do here, that a statute is impermissibly retroactive, we must resolve three distinct but related questions. Preliminarily, we must determine whether the law, as amended, has a retroactive effect. If not, and assuming the law is otherwise constitutional, no further inquiry is necessary. If the statute is retroactive, we look to see whether the Legislature clearly intended it to be retroactive. Where it so intended, we determine whether retroactive application is constitutional.
1. Do the amendments operate retroactively? We first examine whether G. L. c. 6, § 178D, as amended on July 12, 2013, is retroactive in operation insofar as it requires SORB to publish the registry information of level two offenders on its Web site, whereas before July 12, 2013, under § 178D, it was expressly
We have adopted the Supreme Court’s “new legal consequences” test in deciding whether Massachusetts statutes operate retroactively. See Doe No. 8725, 450 Mass. at 787 (registration law “must be considered retroactive” because it “attaches new legal consequences to events that occurred before its enactment”); Commonwealth v. Bruno, 432 Mass. 489, 498 (2000) (applying “ ‘new consequence’ formulation of retroactivity”). See also Nunez, 460 Mass. at 522 (citing Landgraf “new legal consequences” test).
The Commonwealth argues that the appropriate test of retro-activity is the test we applied in McCarthy v. Sheriff of Suffolk County, 366 Mass. 779, 781 (1975), where we stated:
“In order to determine whether a statute is retroactive, it is necessary to look at the rights and obligations of the parties as they existed immediately before and after the effec-*608 live date thereof. It is only where vested substantive rights of the parties have been adversely affected that we can say a statute operates retroactively, and it is only then that we need analyze the nature of the governmental interest involved in order to determine whether the statute, as applied, violates due process.”
The McCarthy “vested substantive rights” test was formulated nineteen years before Landgraf s new legal consequences test, and we have gradually abandoned the McCarthy test in favor of the Landgraf test. The last time we cited McCarthy with respect to its retroactivity analysis was fourteen years ago, and that was in Bruno, 432 Mass. at 498, where we applied the new legal consequences test.
The impairment of a vested substantive right certainly qualifies as a new legal consequence that would render a statute retroactive, but it is not the only new legal consequence that would do so. In Doe No. 8725, 450 Mass. at 787, we concluded that G. L. c. 6, § 178K (2) (d), operated retroactively to the extent that it provided that persons who were convicted of a “[s]exually violent offense,” as defined in G. L. c. 6, § 178C, before the enactment of § 178K (2) (d), could not be relieved by SORB of the obligation to register, regardless of their risk of reoffense or degree of dangerousness. A sex offender convicted of a “[s]exually violent offense” had no vested substantive right to SORB’s exercise of discretion regarding the obligation to register as a sex offender, but we nonetheless concluded that the conclusive statutory presumption of risk to reoffend implicit in § 178K (2) (d) was a new legal consequence of the earlier conviction that rendered the statute retroactive in effect. Id. Similarly, in Anderson v. BNY Mellon, N.A., 463 Mass. 299, 306 (2012), we concluded that the 2009 amendment to G. L. c. 210, § 8, was retroactive in effect even though we determined that “the plaintiff ha[d] no vested right in the operation of this statute.”
Apart from the narrowness of its scope, the problem with the vested substantive rights test is that it conflates the question whether a retroactive statute is unreasonable in its application, and therefore unconstitutional, with the more appropriate question whether the statute is retroactive in operation and therefore
Under the new legal consequences test, the contested amendments are retroactive in operation, because they mandate a substantial new legal consequence (Internet publication of offender’s registry information) to events completed on or before the date of their enactment (SORB’s final determination that offender should be given level two classification) that previously had been expressly prohibited under G. L. c. 6, § 178D. In practice, the newly enacted amendments in this case transformed level two offenders into something akin to level “two and one-half” offenders, because what before was limited to level three offenders (Internet publication of their registry information) is now required for level two offenders.
2. Did the Legislature intend retroactive operation of the amendments? Having determined that the amendments are retroactive in operation, the next question we must address is whether the Legislature intended them to be retroactive. “As a general matter, ‘all statutes are prospective in their operation, unless an intention that they shall be retrospective appears by necessary implication from their words, context or objects when considered in the light of the subject matter, the pre-existing state of the law and the effect upon existent rights, remedies and obligations.’ ” Nunez, 460 Mass. at 516, quoting Fleet Nat’l Bank v. Commissioner of Revenue, 448 Mass. 441, 448-449 (2007). “Such implication must be ‘unequivocally clear. ’ ” Smith v. Massachusetts Bay Transp. Auth., 462 Mass. 370, 377 (2012), quoting Sentry Fed. Sav. Bank v. Cooperative Cent. Bank, 406 Mass. 412, 414 (1990). In the context of this case, the question is whether the Legislature intended Internet publication of registry information to apply retroactively to all level two offenders,
General Laws c. 6, § 178D, as amended, defines the sex offender registry as “a central computerized registry of all sex offenders required to register.” By amending § 178D to provide that “[SORB] shall make the sex offender information contained in the sex offender registry” of level two offenders “available for inspection by the general public” on SORB’s Web site, the Legislature must have recognized that it was authorizing Internet publication of sex offender information regarding those who were classified as level two offenders on or prior to the date of the enactment of these amendments. Moreover, when the Legislature in 2003 amended the SORL to authorize Internet publication of registry information of level three offenders, it was applied retroactively to those who had been previously classified as level three offenders. There is no reason to believe that the Legislature intended that the recent amendments would be applied any differently.
3. Does the retroactive operation of the amendments comport with due process? Having determined that the amendments operate retroactively and that the Legislature intended them to be retroactive, we must address the question whether their retroactive operation is constitutional.
In Doe No. 8725, 450 Mass. at 786, quoting Landgraf 511 U.S. at 266, we declared:
“[Retroactive statutes raise particular constitutional concerns. ‘The Legislature’s unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals.’ . . . This risk is acute in the context of people who have committed crimes that have a*611 sexual component, and who are frequently the target of public ire and scorn.”
The constitutional entitlement to due process “protects the interests in fair notice and repose that may be compromised by retroactive legislation.” Landgraf, supra. “While nonpunitive retroactive regulation is not unconstitutional per se, it nonetheless raises due process concerns.” Doe No. 8725, supra at 788. Therefore, under our jurisprudence, “[r]etroactive laws must meet the test of ‘reasonableness’ to comport with State constitutional due process requirements.” Id., citing American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., 374 Mass. 181, 190 (1978). “Ultimately, the ‘principal inquiry — as to reasonableness — is essentially a review of whether it is equitable to apply the retroactive statute against the plaintiffs.’ ” Doe No. 8725, supra, quoting American Mfrs. Mut. Ins. Co., supra at 191. See St. Germaine v. Pendergast, 416 Mass. 698, 704 (1993) (“fairness is the touchstone of due process” and retroactive application of statute “would offend fundamental fairness”).
Because we presume that a statute is constitutional, the burden of proving the unconstitutionality of its retroactive application rests with the plaintiffs. See Doe No. 8725, 450 Mass. at 788. In light of the special risks posed by retroactive application, the plaintiffs’ burden, as noted, is to prove that retroactive application of the statute would be unreasonable and therefore inequitable, not that the statute has no rational basis. See id. Retroactive legislation has “to meet a burden not faced by legislation that has only future effects. ‘It does not follow . . . that what Congress [or the Legislature] can legislate prospectively it can legislate retrospectively. The retroactive aspects of legislation, as well as the prospective aspects, must meet the test of due process, and the justifications for the latter may not suffice for the former.’ ” Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 730 (1984), quoting Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16-17 (1976). “In determining whether the application is equitable — and thus whether the regulation is reasonable — we examine the statute from three perspectives: ‘the nature of the public interest which motivated the Legislature to enact the retroactive statute; the nature of the
Examining the amendments from two of these three perspectives is rather simple. As to the public interest that motivated the Legislature to enact the retroactive statute, it is apparent that the purpose of the amendments was to make it easier for members of the public to access registry information related to level two sex offenders, and presumably thereby to permit the public better to defend themselves and those in their care from the risk of sexual assault by these offenders.
The third perspective — the nature of the rights affected
There is, however, a fundamental difference between the circumstances in this case and those in Coe. The plaintiffs in Coe had been classified as level three sex offenders, the most dangerous category of offender, who, even before enactment of the amendment requiring Internet publication, were subject to “active dissemination” of their registry information through a community notification plan. See G. L. c. 6, § 178K (2) (c), as amended through St. 1999, c. 74, § 2. There could be no reasonable claim that SORB may have given any of these level three offenders a lower classification level had it recognized that the consequence of a level three classification was Internet publication of the offender’s registry information, because a level three classification already carried with it the more invasive con
This inequity arises because the legal standard for the designation of a sex offender classification level under G. L. c. 6, § 178K, interweaves the risk of reoffense and the degree of dangerousness with the level of notification appropriate to protect the interests of public safety. Section 178K (1) delegates to SORB the task of promulgating guidelines that provide for “three levels of notification depending on [the] risk of reoffense and the degree of dangerousness posed to the public” (emphasis added). Pursuant to this authority, SORB promulgated regulations that provide that SORB, in making its initial classification recommendation and in issuing a final classification decision, is required to determine “whether and to what degree public access to the offender’s personal and criminal history information, pursuant to [G. L.] c. 6, § 178K, is in the interest of public safety” (emphasis added). 803 Code Mass. Regs. §§ 1.22(3)(c), 1.39(3)(c) (2004). Therefore, in determining the appropriate classification level, SORB is determining what degree of public access to registry information is appropriate in light of the offender’s risk of reoffense and degree of dangerousness. Increasing the scope of public access to include Internet publication of the registry information of level two offenders may affect that determination, even if it does not affect SORB’s evaluation of an offender’s degree of dangerousness, because SORB may decide that public access with Internet publication is not warranted by the public safety risk posed by the specific offender’s degree of dangerousness.
Viewing the contested amendments from the three required perspectives, and having balanced those perspectives, we conclude that the plaintiffs have met their burden of demonstrating that retroactive application of the amendments to persons finally classified as level two offenders on or before July 12, 2013, would be unreasonable and inequitable, and therefore unconstitutional as a violation of due process. What shifts the balance in favor of the plaintiff class is that retroactive application would require Internet publication of the registry information of persons who SORB implicitly concluded were not so dangerous that their information needed to be published on the Internet to
Conclusion. We declare unconstitutional the retroactive application of the amendments to G. L. c. 6, §§ 178D and 178K, that became effective on July 12, 2013, to the extent they would require the Internet publication of the registry information of individuals who were finally classified as level two sex offenders on or before July 12, 2013. The matter is remanded to the county court for entry of an order allowing the plaintiffs’ motion for class certification and permanently enjoining SORB from publishing on the Internet the registry information of any individual who was finally classified as a level two sex offender on or before July 12, 2013, unless the individual is subsequently reclassified a level two or level three sex offender. Nothing in this order affects the ability of SORB to publish on the Internet the registry information of any individual who was given a final classification as a level two sex offender after July 12, 2013.
So ordered.
We acknowledge the amicus brief filed by the Massachusetts Association for Treatment of Sexual Abusers.
The single justice allowed the plaintiffs’ motion for class certification only for purposes of the preliminary injunction motion.
Although the contested amendments became effective immediately on enactment, SORB agreed to defer implementation until the motion for a preliminary injunction was decided by the single justice, so no publication on the Internet of the registry information of level two offenders classified on or before July 12, 2013, has yet occurred.
In 1997, we considered whether a trial judge was correct in issuing a preliminary injunction preventing the previous version of G. L. c. 6, § 1781, as appearing in St. 1996, c. 239, § 1, from going into effect. Under that ver
Those requesting information at a police station are also required to “present proper identification” and “complete and sign a record of inquiry . . . which shall include ... the name and address of the person making the inquiry, the person or geographic area or street which is the subject of the inquiry, the reason for the inquiry and the date and time of the inquiry.” G. L. c. 6, § 178J (2), (4).
The amendment added the following language to G. L. c. 6, § 178D:
“Notwithstanding [§§] 178C to 178P, inclusive, or any other general or special law to the contrary and in addition to any responsibility otherwise imposed upon [SORB], [SORB] shall make the sex offender information contained in the sex offender registry . . . available for inspection by the general public in the form of a comprehensive database published on the internet, known as the ‘sex offender internet database’; provided, however, that no registration data relating to a sex offender given a level [one] or level [two] designation by [SORB] under [§] 178K shall be published in the sex offender internet database but may be disseminated by [SORB] as otherwise permitted by said [§§] 178C to 178P, inclusive . . (emphasis added).
St. 2003, c. 140, § 5.
Two amendments effectively accomplish this redefinition of “public availability of registration information” for level two offenders. First, St. 2013, c. 38, § 7, provides that G. L. c. 6, § 178D, is amended to read in pertinent part: “no registration data relating to a sex offender given a level [one] designation by [SORB] under [§] 178K shall be published in the sex offender internet database.” As a result, this restriction no longer applies to offenders given a level two designation. Second, St. 2013, c. 38, § 9, provides that G. L. c. 6, § 178K, is amended such that, where it previously stated that
Although G. L. c. 6, § 178N, prohibits the use of registry information “to engage in illegal discrimination” of a sex offender, we know of no law or regulation prohibiting such discrimination. Nor are sex offenders a class constitutionally protected against such discrimination. Consequently, we find § 178N to be relevant not because it has any practical effect in preventing such discrimination, but because it reflects the recognition that sex offenders suffer such discrimination.
We recognize that, in Coe v. Sex Offender Registry Bd., 442 Mass. 250,
Although we recognize that the Legislature enacted these amendments in the belief that Internet access to the registry information of level two offenders would reduce the number of new sex crimes committed by these offenders by enabling individuals to identify them as sex offenders and take cautionary steps to protect themselves and those under their care, there is no evidence in the record to indicate that any sex crime has been prevented, or that the incidence of sex crimes or sex offender recidivism has decreased, by such publication, even though Internet publication of the registry information of level three offenders has been required in Massachusetts since 2003, and approximately forty-two States have posted sex offender information on some form of State-sponsored Web site since 2004. See Coe v. Sex Offender Registry Bd., 442 Mass. 250, 260 n.10 (2004).
In addition to implicit determinations as to whether Internet publication is necessary to protect the public from a particular sex offender, we are aware of at least one case in which a hearing examiner made an explicit finding that Internet dissemination was necessary. See Poe v. Sex Offender Registry Bd., 456 Mass. 801, 808 (2010) (hearing examiner found “circumstances sufficient to support a level three classification, because ‘only Internet dissemination [of his status as a sex offender] could adequately protect’ ” offender’s potential victims [emphasis added]).