John Doe, SO Registry Board No. 95318 v Sex Offender Registry Board

8-11-2011 Massachusetts:

John Doe, SO Registry Board No. 95318 v Sex Offender Registry Board

This appeal requires us to examine the application of the Massachusetts sex offender registration law (registration law) to the particular offense of possession of child pornography. The plaintiff, John Doe, appeals from a Superior Court judgment affirming a decision of a hearing examiner of the Sex Offender Registry Board (board) classifying him as a level two offender. The plaintiff argues that the decision, grounded upon his conviction of possession of child pornography, lacks the support of substantial evidence required by G. L. c. 30A, § 14(7)(e), and suffers from error of law and arbitrariness within the meaning of G. L. c. 30A, § 14(7)(c) and (g). He maintains also that the hearing examiner's denial of his request for funds to retain expert assistance violated his constitutional rights. For the following reasons, we vacate the judgment and remand the case to the board.

....

Finally, the hearing officer's equation of possession of child pornography (and the victimization of its subjects) with the dangerousness contemplated by the statute (peril to persons within the range of level two notification) does not rest upon any specified evidence, expert or general, adduced in the adjudicatory hearing. Without such support it runs the risk of arbitrariness within the meaning of G. L. c. 30A, § 14(7)(g). For these several reasons, reconsideration of the administrative decision is necessary. [FN10] We therefore remand the case to the board for determination of these questions.

2. Funds. In September of 2006, as a preliminary matter, a hearing officer denied Doe's application for funds for retention of expert assistance. The hearing officer denied the request in accordance with the board's then prevailing interpretation that it need not consider an award of such funds to an *904 indigent applicant unless the board intended to employ expert testimony. No expert witness appeared in this case.

The governing law has materialized very differently since that ruling. In Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 770-771 (2008), the court interpreted G. L. c. 6, § 178L(1)(a), to provide the board with discretion to grant funds to an indigent sex offender independently of the board's intention to rely upon expert information. The burden of demonstrating the need for specific expert assistance falls upon the applicant. Id. at 775. In Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 623-624 & n.8 (2010), the court extended that ruling retroactively and remanded the case to the board to afford the plaintiff an opportunity to request such a discretionary grant of funds. See Doe, Sex Offender Registry Bd. No. 73946 v. Sex Offender Registry Bd., 79 Mass. App. Ct. 901, 902 (2011).

Our case falls into this emerged category. The plaintiff here did not have the opportunity to justify his request to a decision maker with discretion to grant it. Upon remand he may do so.

Conclusion. The judgment of the Superior Court and the order of the board are vacated. The case is remanded for further proceedings consistent with this opinion.