Administrative Law – Maryland Real Estate Comm – Discipline of real estate professional for felony conviction

10-28-2011 Maryland:

Administrative Law – Maryland Real Estate Comm – Discipline of real estate professional for felony conviction

In this case, we are asked to review the decision of the Maryland Real Estate Commission, Respondent, to revoke the real estate licenses1 of Joel T. Pautsch, Petitioner, pursuant to Sections 17-322(b)(24)(i) of the Business Occupations and Professions Article, Maryland Code (2000, 2004 Repl. Vol.),2 based upon his convictions for child abuse. Mr. Pautsch sought judicial review of the Commission’s decision in the Circuit Court for Baltimore City,3 which affirmed in a Memorandum Opinion penned by Judge Barry G. Williams, in which he reasoned that there was “competent, material and substantial evidence to support” the Commission’s decision, and “there [was] no evidence to support the allegation that the decision of the Maryland Real Estate Commission was either arbitrary or capricious.” The Court of Special Appeals affirmed in an unreported opinion,4 concluding that the Commission’s “estimation of [Mr. Pautsch’s] trustworthiness was neither arbitrary nor capricious,” and that Mr. Pautsch “failed to demonstrate any factual or legal error in the Commission’s decision.” We granted certiorari.

In the case before us, it is undisputed that Section 17-322(b)(24)(i) of the Business Occupations and Professions Article authorizes the Commission to “suspend or revoke” a real estate professional’s licenses if, “under the laws of the United States or of any state,” he is convicted of “a felony.” Beyond lawfulness and authority, then, the only issue is whether Mr. Pautsch has shown that the Commission’s sanction was so extreme and egregious that it amounted to arbitrary and capricious agency action. Based upon the testimony and the exhibits before it, the Commission found that Mr. Pautsch had been engaged in sexually abusive behavior towards minor children throughout a “fifteen-year period,” and that, according to the Commission, showed a lack of responsibility, maturity, and trustworthiness on the part of Mr. Pautsch, as a real estate professional, which prevents a finding that the Commission’s sanction was arbitrary or capricious. Judgement Affirmed.

Heath v State

11-4-2009 Delaware:

Heath v State (Most unusual case)
(983 A.2d 77 (2009)

The Governor, as the Board of Pardons recommended, unconditionally pardoned Brian Heath for Second Degree Unlawful Sexual Contact. We address, on first impression, whether that pardon permits Heath to deregister as a sexual offender. The trial judge decided that the pardon statute's silence regarding registration differentiates its effect from expunction, which would extinguish Heath's Registry requirements.

Because the Board and Governor review "propensity for recidivism" before recommending and granting an unconditional pardon and a pardon restores all civil rights, no basis remains for mandating continued registration as a sex offender. Therefore, we REVERSE the judgment of the Superior Court

Article: Ruling limits sex offender registry.

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.

Wright v State

9-21-2011 Arkansas:

Wright v State
(2011 Ark. 356)

(Effectively this case holds, that once convicted a person must register, and if the case is later overturned, the person is still criminally responsible for any Failure to Register charge which occurred during the period before the case was overturned)

On June 28, 2005, appellant James Brian Wright entered a plea of guilty in the Sebastian County Circuit Court, Fort Smith District, to the offenses of overdraft and failure to comply with the reporting requirements of the Sex and Child Offender Registration Act. As a result, the circuit court suspended imposition of sentence for a period of five years on both convictions. For each offense, appellant was sentenced to two years in prison followed by a four-year suspended imposition of sentence. Appellant brings this appeal from the circuit court's order denying the latest in a series of motions that he filed seeking to set aside his convictions for failure to register as a sex offender. For reversal, he contends that his failure-to-register convictions should be overturned because an Oklahoma court vacated the rape conviction on which the registration requirement was based, that the circuit court's refusal to set aside the convictions violated the Full Faith and Credit Clause of the United States Constitution; and that under federal law it was the responsibility of the releasing institution to inform the local government of the requirement to register. We affirm the circuit court's decision that appellant was not entitled to postconviction relief.

At issue in this case are appellant's 2005 and 2006 convictions for failing to register as a sex offender. In May 2008, an Oklahoma District Court granted appellant's application for postconviction relief and vacated appellant's 1994 conviction for rape. On June 16, 2008, appellant filed a petition in circuit court pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011), arguing that his failure-to-register convictions should be set aside because the rape conviction, which led to the requirement for him to register as a sex offender, had been vacated. In July 2008, the circuit court denied appellant's petition as untimely. The court also noted that appellant was under an obligation to register when he pled guilty to the then valid charges of failing to register as a sex offender.1

On November 26, 2008, appellant filed a petition for writ of error coram nobis in circuit court. In this petition, appellant also argued that his convictions for failing to register should be vacated due to the setting aside of his Oklahoma rape conviction. By an order dated December 5, 2008, the circuit court denied the petition for writ of error coram nobis, finding that the setting aside of the rape conviction had no effect on his convictions for failing to register because, at the time appellant pled guilty to those offenses, he was required by law to register as a sex offender.