Top Massachusetts court decides due process now demands heightened proof standard for sex offender classification

12-13-2015 Massachusetts:

A helpful reader alerted me to a notable new procedural ruling by the Massachusetts Supreme Judicial Court this past week. In Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Board, SJC-11823 (Mass. Dec. 11, 2015) (available here), the top Massachusetts court decided that the preponderance standard of proof is inadequate for sex offender classification. Here is how the opinion starts:

We are asked in this case to consider anew the standard of proof that the Sex Offender Registry Board (SORB) must satisfy in order to classify a convicted sex offender under the provisions of the sex offender registry law, G. L. c. 6, §§ 178C-178Q.

The plaintiff, John Doe No. 380316 (Doe), is a convicted sex offender who was classified by a preponderance of the evidence as having a moderate risk of reoffense. In Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 91 (1998) (Doe No. 972), we held that SORB need only prove the appropriateness of a sex offender's risk classification by a preponderance of the evidence.

In light of amendments to the sex offender registry law and other developments since our decision in that case, however, Doe contends that the preponderance standard no longer adequately protects his due process rights. We agree.

For the reasons stated below, we hold that SORB is constitutionally required to prove the appropriateness of an offender's risk classification by clear and convincing evidence.

..Source..

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News SJC Ruling Threatens Sex Offender Laws In 40 Mass. Towns

See also: ACLU of Massachusetts article. And the legal documents HERE Note: RSOL joined in Amicus brief)

8-28-15 Massachusetts:

Doe v City of Lynn

BOSTON (AP) — The highest court in Massachusetts upheld a judge’s decision Friday to throw out a local law that severely restricts where sex offenders can live in the city of Lynn, a ruling that could have broad implications for about 40 other communities.

In a unanimous ruling, the Supreme Judicial Court agreed that Lynn had no legal authority to adopt the ordinance in 2011 because it is inconsistent with state laws governing the oversight of sex offenders.

The Lynn ordinance prohibits Level Two and Level Three sex offenders from living within 1,000 feet of parks or public, private or church schools, effectively banning offenders from about 95 percent of the city’s residential properties.

The high court said a package of laws passed by the state Legislature in 1999 establishes clear policies for monitoring sex offenders and notifying the public where they live. The court said there are “grave societal and constitutional implications” of segregating sex offenders.

National Geographic photos not child porn, court rules

7-9-2014 Massachusetts:

The state’s highest court has tossed out a child pornography case against a convicted child rapist who had photocopies of pictures of naked children from a National Geographic magazine, a sociology textbook, and a naturist catalogue in his state prison cell.

The state Supreme Judicial Court said that the photos allegedly kept by sex offender John D. Rex did not constitute a “lewd exhibition” so they weren’t covered under the state’s law banning child pornography.

The court noted previous decisions that had found that “nudity alone is not enough to render a photograph lewd.”

“There is nothing remotely sexual, either explicitly or implicitly, in any of the photocopies,” the court said after reviewing the pictures.

The court, in an opinion written by Justice Francis X. Spina, agreed with a Superior Court judge who had dismissed a Norfolk County grand jury indictment against Rex that charged him with seven counts of possession of child pornography and seven counts of being a habitual offender.

“As a matter of law, no grand jury could conclude that the seven photocopies constituted a ‘lewd exhibition’” under state law, the court said. “It follows therefore that the grand jury were not presented with any evidence to support a finding of probable cause to arrest the defendant for possession of child pornography.”

The court noted that the photos came from materials that are readily available to the general public, though perhaps to niche audiences. And it noted previous court decisions that found “child pornography is not created when the [viewer] derives sexual enjoyment from an otherwise innocent photograph.”

Rex, 43, is an incarcerated Level 3 sex offender who has been convicted of eight sex charges, including rape and abuse of a child, according to the state’s sex offender registry.

In a statement, Norfolk District Attorney Michael Morrissey said the SJC ruling runs counter to federal law where judges have ruled images can be considered child pornography when there is evidence that the image was cropped to emphasize the nude child.

Rex cropped the images just that way, Morrissey’s office said in a statement.

“We see this decision as an unfortunate departure from federal case law,’’ Morrissey said. “A Norfolk County grand jury found that the images possessed by Rex were lewd, and the case law prior to this suggested strongly that decision was appropriately made by a jury of citizens.’’ ..Source.. by John R. Ellement

US v Burdulis

5-23-2014 Massachusetts:

US v Burdulis

Paul Burdulis was convicted of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) after the police found such pornography on a thumb drive (a kind of data storage device) in his home. To show that the pornography was "produced using materials which have been . . . shipped or transported" in interstate commerce, as required by the statute, the prosecution relied solely on an inscription on the thumb drive stating, "Made in China."

We agree with the district court that copying pornography onto a thumb drive is "produc[ing]" pornography under the statute, and we reject Burdulis's challenge to the admission of the drive's inscription.

We also reject Burdulis's claim that our interpretation of the law puts it beyond Congress's authority to regulate interstate commerce. After discussing these issues, along with Burdulis's objections to the warrant used to search the thumb drive, we affirm his conviction in all respects.

USA v Roberson

5-21-2014:

USA v Roberson

This case addresses an important question of interpretation of first impression in the federal courts of appeals. Defendant James Roberson appeals from a district court denial of his motion to dismiss and from his criminal conviction for his failure to register as a sex offender under SORNA, the Sex Offender Registration and Notification Act. 18 U.S.C. § 2250.

At the time of his federal indictment in July 2012, Roberson stood convicted, in 1998, of the Massachusetts crime of indecent assault and battery on a child under the age of 14. Mass. Gen. Laws ch. 265, § 13B. He did not appeal from that conviction; nor did he ever register as a sex offender at any time between 2010 and 2012, though he had been notified of his obligation to do so.

Four months after his federal SORNA indictment, on November 16, Roberson moved to withdraw his guilty plea to the sex crime in the state court. Roberson did not and does not allege that he was innocent of the indecent assault. But he did allege that his guilty plea had entered after a constitutionally defective procedure. The local prosecutor did not oppose the motion because the plea judge had utilized incomplete and inadequate plea-colloquy procedures before June 16, 2000 and there was no independent evidence that the proper plea procedures were followed during Roberson's March 4, 1998 plea hearing.1 The local state district court allowed the unopposed motion on January 11, 2013. We assume arguendo that Roberson's plea colloquy was constitutionally defective.

On February 15, 2013, Roberson moved to dismiss his federal charges on the basis that he no longer had a predicate sex offense to support a SORNA violation. More specifically, he argued that because of the constitutional defect, he was never "validly" convicted. He argued that his case is governed by Burgett v. Texas, 389 U.S. 109 (1967), and not by Lewis v. United States, 445 U.S. 55 (1980).

Agreeing with the district court, we hold that SORNA's registration requirement applied to Roberson as a person who "was convicted" of a sex offense, 42 U.S.C. § 16911(1), enforced by 18 U.S.C. § 2250, regardless of whether that conviction is later vacated, when federal charges have been brought for conduct before the vacation of conviction. We also reject Roberson's additional challenges.

Massachusetts: Order Relieving Sex Offender of Registration Not Vacated Upon Probation Violation

5-17-2013 Massachusetts:

The Massachusetts Supreme Judicial Court has held that once a judge relieves a sex offender of the requirement to register, a different judge lacks the authority to order the offender to register following a probation violation.

Douglas Ventura pleaded guilty to one count of possession of child pornography. After being sentenced to probation, pursuant to state law he moved to be relieved of the statutory requirement to register as a sex offender. The sentencing judge found that Ventura had demonstrated he did not pose a risk of re-offense or a danger to the public, and relieved him of the registration requirement.

About two-and-a-half years later, in September 2010, Ventura was charged with accosting and annoying a person of the opposite sex. At his probation revocation hearing, it was established that Ventura had watched two of his daughters’ friends through a hole in the shower wall of his home’s guest bathroom, which they used when they stayed at his house during overnight visits.

Ventura’s probation was revoked and he was sentenced to one year in prison and three years of probation on the new charge. As part of the sentence, the judge ordered him to register as a sex offender.

Ban on Sex Offenders from Nursing Homes Unconstitutional

8-6-2011 Massachusetts:

The Supreme Judicial Court (“SJC”) issues a narrow, yet potentially sweeping ruling on Friday. In John Doe v. Police Commissioner of Boston, the SJC found that a registered sex offender, regardless of level, cannot be summarily denied the ability to live in a nursing home without an individual finding that he poses some danger.

The ruling took aim at a law enacted in 2006 that barred all Level 3 offenders from going to a “long-term care facility.” The law infringed on an individual’s constitutionally protected right to travel and freedom to choose where they live. This law was particularly pernicious in that it took aim at a particularly powerless, infirm, and likely indigent population. For someone who required the assistance of a long-term facility, there are no alternatives.

The law also seems to try and protect from a perceived danger that is no danger at all. There is no single scientific study or piece of evidence that shows sex offenders of any kind pose any different or heightened risk in a long-term care facility. Indeed, the plaintiff in this case, John Doe, had been living at this facility prior to, and during, the duration of this lawsuit. He was very ill and never posed a risk or danger to anyone. At the time of the decision, the Court noted his health had deteriorated significantly. Had he been unable to live at the facility, one wonders where he could have gone.

While the case technically applies to just this one plaintiff, its language seems to sweep much more broadly. It likely spells the end for municipal laws prohibiting sex offenders from living in their towns. It may even curtail the use of residency restrictions (i.e. prohibiting persons from living within a certain distance from schools), at least not unless there is an individual finding that such a restriction is necessary. ..Source.. by Eric Tennen

Moe v Sex Offender Registry Board

3-26-2014 Massachusetts:

Moe v Sex Offender Registry Board

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 require the Sex Offender Registry Board (SORB) to publish on the Internet information contained in the sex offender registry (registry information) regarding all individuals given a level two or level three classification by SORB. See St.2013, c. 38, §§ 7, 9.

Before these amendments were enacted, § 178D required SORB to publish on the Internet the registry information of sex offenders given a level three classification, but expressly prohibited SORB from publishing on the Internet the registry information of level two offenders.

The issues presented are whether the amendments are retroactive in effect "for the purposes of further constitutional inquiry," as applied to those who were classified as level two offenders on or before the date of the amendments' enactment, see Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 787 (2008) (Doe No. 8725 ); whether the Legislature intended that they apply retroactively; and, if so, whether their retroactive application would violate due process under the Massachusetts Declaration of Rights.

We conclude that the amendments are retroactive in effect as applied to level two offenders who were classified on or before the date of the amendments' enactment and that the Legislature intended such retroactive application, but that such retroactive application would violate State constitutional due process.

... ... ...

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.

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Mass. court says sex offender law not retroactive

The state’s highest court has ruled that Massachusetts cannot retroactively post information about thousands of registered sex offenders on the Internet.

The ruling on Wednesday came in response to a challenge to a law passed last July that allowed the state to add Level 2 sex offenders to its online database. The state’s Sex Offender Registry had previously been allowed to make information available online only about Level 3 sex offenders, those considered most dangerous and most likely to re-offend.

The Supreme Judicial Court did not strike down the new law, but ruled that it could not apply retroactively to sex offenders who had been classified as Level 2 prior to July 2013.

The court said its ruling would affect about 6,200 Level 2 sex offenders. ..Source.. by Boston.com

State court tosses out sex offender's conviction

3-1-2014 Massachusetts:

The state's highest court this week reversed the conviction of a Level 3 sex offender for failing to register as a sex offender after the justices ruled there was insufficient evidence to prove he was living at his aunt's home in Lowell and not in the homeless shelter.

In a decision issued on Thursday, the state Supreme Judicial Court overturned a judge's 2011 ruling that Jose Armando Arce was guilty of failing to register as a sex offender. The judge had sentenced Arce to one year in a house of correction and lifetime community parole.

While the jail sentence may have been completed, the lifetime parole is vacated.

Laurie Myers, of the Chelmsford-based Community Voices advocacy group, said, "It has always been difficult to prove a homeless offender failed to register, but it looks like the SJC made it a little more difficult. Yet another way for sex offenders to manipulate the system."

Arce, 44, who lists his address at 260 Middlesex St., was convicted in 2006 of indecent assault and battery on a child under 14. He was convicted in 2012 of indecent assault and battery on a person 14 or older.

He was arrested by Lowell police on July 20, 2010 and charged with failing to notify police of a change of address as required under the sex offender law.

State supreme court rules for woman fighting sex offender status

12-11-2013 Massachusetts:

John DOE, Sex Offender Registry Board No. 205614 v Sex Offender Registry Board. (Must read actual court decision, well worth your time)

The state supreme court has ordered the Sex Offender Registry Board to reconsider whether a woman convicted on federal charges of sex trafficking of a child should be classified as a sex offender.

The woman, a former prostitute whose name was not released, ran an escort service from 2000 to 2002. Three years after she closed down the service, she was arrested on sex charges.

The woman testified that she started the business after serious physical assaults by pimps. She employed four minors, one of them a 14-year-old with an ID showing that she was 19. After she saw the girl's photo on a National Center for Missing and Exploited Children poster and learned her actual age, she had another employee inform the center where to find the girl.

She pleaded guilty to charges in connection with the 14-year-old and served 17 months in jail.

After her release, she was classified as a level 1 offender, the lowest of three categories. The hearing examiner who made that decision acknowledged the low danger posed by the woman and the low probability that she would commit further offenses.

Facebook Rant Against ‘Arial’ Font Helps Reverse Sex Offender Determination

11-29-2013 Massachusetts:

Another day, another workplace problem due to an off-hours Facebook rant. Doe is a convicted sex offender. He fought the Massachusetts Sex Offender Registry Board’s determination that he needed to register as a level 3 sex offender. As part of the normal administrative process, Doe’s case went to hearing examiner Tyson Lynch, who ruled against Doe.

During a 6 month time period around the hearing, Lynch posted remarks to Facebook that included the following (as stated by the opinion):

a. “it’s always awkward when I see one of my pervs in the parking lot after a hearing”;
b. he (the hearing examiner) “likes taking motions under advisement, but gets greater satisfaction denying them”;
c. On November 20, 2008, the day of the plaintiff’s hearing, the following comment was posted during working hours: “it’s always a mistake when people testify, because they get destroyed in cross examination”;
d. On that same day, the day of the plaintiff’s hearing, the hearing examiner also posted the following (apparently with reference to a different sex offender): he (the examiner) “hopes this guy doesn’t show up!!” which was followed up with “Tyson Lynch says yay!! He didn’t show up!”;
e. he “thinks his agency has been the subject of too many news exposes should seek alt career plans?”;
f. he “can’t trust someone who drafts a letter in arial font!”;
g. he “thinks attorneys should know that arial font is not appropriate for motions” followed up with “I might be biased. I think arial is inappropriate for most things”;
h. he “hates silly motions”;
i. he “had to lay some smack down on some crazy attorney!!”;
j. he “is at the longest hearing ever!!!”;
k. The entry above was followed by: he “just sat through a 2.5 hour direct examination! Hearings generally last an hour”;
l. he “is off to jail for the day! Let’s hope he doesn’t get shanked”;
m. The above comment was followed up with “[he] wasn’t stabbed while he was in jail, but with the lax security, I’m surprised it didn’t happen”;
n. “well, they have the convicts cutting down trees, so it might be safer in my car”;
o. “I have a police report written entirely in Spanish!!!”; and
p. he “hates the word ‘lascivious.’

These remarks are damning. The court harshly characterizes them as “unquestionably inappropriate, unprofessional, troubling, and suggestive of a prejudicial predisposition.” The remarks imply Lynch made unwarranted negative presumptions against the people he evaluated (the “pervs” reference), was biased against Spanish speakers, and ruled on the basis of the fonts used in written submissions rather than their legal arguments. (I’m not an Arial fan myself but it’s a respectable font. It would have been more understandable if he had ranted against Comic Sans).

Due to Lynch’s apparent bias, the court vacated the registry board’s ruling against Doe and granted Doe another hearing. That resolution should be just the tip of the iceberg because every other case Lynch heard could be susceptible to similar claims of bias. Not only would any biased rulings by Lynch have potentially ruined people’s lives, but it will take years and enormous amounts of tax dollars to resolve the many likely bias claims from Lynch’s prior cases.

This ruling is quite similar to the Shepherd v. McGee, where a children’s social worker ranted on Facebook in a way that suggested bias in her child placement decisions. No doubt both Lynch and the social worker made ill-advised choices when they ranted about their jobs on Facebook, but I’m not sure Facebook is the “problem.” If, in fact, Lynch really felt the way he did, his beliefs are the real problem and Facebook merely provided a way for other people to discover his beliefs. If instead Lynch was truly joking–edgy humor at best, but perhaps amusing to his intended audience–then he learned the hard way that jokes don’t easily translate online. We probably need to do more education of government workers that it’s best to blow off steam around the water cooler or over beers, not on social media.

Fortunately, it appears Lynch took his own advice in paragraph “e.” This report indicates he took a layoff 2 years ago, and this LinkedIn profile suggests he’s now a real estate agent.

Case citation: Doe v. Sex Offender Registry Bd., 11–P–1700 (Mass. App. Ct. Nov. 21, 2013) ..Source.. by Eric Goldman

Court rules in favor of child rapist in dispute over Facebook posts

11-21-2013 Massachusetts:

Doe v Registry Board

A child rapist has won a new shot to reverse his Level 3 classification after a state appellate court ruled his hearing officer was biased thanks to a string of “troubling” Facebook posts in which he referred to offenders as “pervs,” wrote about taking “satisfaction” in denying motions, and aired his concerns that the Sex Offender Registry Board was featured in “too many news exposes.”

The Sex Offender Registry Board said it has sent “many, if not all” of examiner Tyson Lynch’s classifications decisions during a six-month period back for new hearings, according to a court decision released today that blasted his social media exploits as “unquestionably inappropriate, unprofessional, troubling, and suggestive of a prejudicial predisposition.”



The court sided with the sex offender, who is referred to as John Doe in the case, after he appealed his classification as a Level III sex offender, which is considered the most likely to reoffend. He was convicted in 1997 of two counts each of rape of a child, indecent assault and battery of a child under 14 and incest after raping his then preteen daughter over the course of several months, according to the court decision.

In appealing his classification, he said that Lynch showed “bias” against him, an argument the court upheld after browsing Lynch’s busy Facebook account.

Among Lynch’s posts:

• “It’s always awkward when I see one of my pervs in the parking lot after a hearing”

• “had to lay some smack down on some crazy attorney!!”

• “off to jail for the day! Let’s hope he doesn’t get shanked”

• “can’t trust someone who drafts a letter in arial (sic) font!”

Lynch also said he “likes taking motions under advisement, but gets greater satisfaction denying them” and said he “thinks his agency has been the subject of too many news exposes.”

He mused: “should seek alt career plans?”

“We have significant doubt whether the plaintiff received a hearing conducted by a fair, unbiased, and impartial hearing examiner,” the justices wrote in their decision.

The decision did not detail how many cases were returned for a new hearing, either by a court order or agreement of the board.

Lynch was no longer employed at the board when the three-justice panel heard the case, according to the decision, though it did not specify the circumstances under which he left the job.

A message left with a spokesman for the Sex Offender Registry Board was not immediately returned this morning. ..Source.. by Matt Stout

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John DOE, Sex Offender Registry Board No. 29481 vs. SEX OFFENDER REGISTRY BOARD. No. 11-P-1700.
Suffolk. September 12, 2013. - November 21, 2013.
Sex Offender. Sex Offender Registration and Community Notification Act. Administrative Law, Hearing. Evidence, Bias. Due Process of Law, Administrative hearing. Constitutional Law, Impartial tribunal.

CIVIL ACTION commenced in the Superior Court Department on January 22, 2009.

The case was heard by Frank M. Gaziano, J., on a motion for judgment on the pleadings, and a motion to vacate the denial of the motion for judgment on the pleadings was heard by Peter M. Lauriat, J.

Xiomara M. Hernandez for the plaintiff.
Thomas M. Doyle for the defendant.

Attorney Crouch Secures Reversal Of Client’s Failure To Register Conviction

6-13-2013 Massachusetts:

In the recent case of Commonwealth v. Loring, 463 Mass. 1012 (2012), Attorney Crouch argued that a client’s conviction for failing to register as a sex offender should be reversed and the Supreme Judicial Court agreed, reversing his client’s conviction.

In Loring, the defendant was classified by the Sex Offender Registry Board as a level two sex offender. Defendant subsequently registered with the police department. When the defendant failed to register again a few months later during the month of his birth, he was charged with a single count of failing to register as a sex offender in violation of Mass. Gen. Laws ch. 6, 178F 1/2. Defendant pleaded guilty to the offense and Attorney Crouch later filed a motion to withdraw the guilty plea on his client’s behalf.

His motion was denied by the trial court. Attorney Crouch appealed the case and the Supreme Judicial Court reversed, holding (1) although the defendant admitted during the plea hearing that he did not register in his birth month, the statute did not require him to do so; and (2) being under no obligation to register in his birth month, the defendant could not be convicted of the offense of failure to register. ..Source.. by Attorney Crouch at (617) 441-5111

Former Salem man cleared of failing to register

4-27-2013 Massachusetts:

SALEM — A level 3 sex offender who moved out of a Salem rooming house without first telling police last year was found not guilty late Thursday by a Salem District Court jury.

Jason Wallace, 40, formerly of 116 Lafayette St., was convicted of indecent assault and battery in 1992 in Peabody, and was later deemed to be among the sex offenders at highest risk of re-offending by the Sex Offender Registry Board.

Wallace had been registered in Lynn, then moved to Salem in 2011.

He initially told the Salem police where he was living.

But during a visit to the rooming house on an unrelated matter last February, Salem police detective Stephen Bona discovered that Wallace had been evicted.

For several days, until Wallace finally contacted Lynn police, authorities had no idea where he was, prosecutor Lynsey Legier told the jury of six women.

“He knew he had to give (police) 10 days notice prior to any change in address,” Legier argued to the jury. “He knew that ... because he’s done it in the past.”

Wallace’s attorney, Joan McAbee, argued that the sex offender registration statute was vague and confusing, even to her — an admission that later led to a warning to jurors to disregard the lawyer’s personal opinion.

“He tried to do what he was supposed to do,” McAbee argued to the jury.

Courts reporter Julie Manganis can be reached at 978-338-2521, via email at jmanganis@salemnews.com or on Twitter @SNJulieManganis. ..Source.. by JULIE MANGANIS STAFF WRITER

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.

John Doe v Police Comm of Boston and others

8-5-2011 Massachusetts:

John DOE v Police Comm. of Boston & others.
(460 Mass. 342 (2011)

The plaintiff is a level three sex offender currently residing in a rest home. Pursuant to a statute enacted by the Legislature in 2006, a level three sex offender who “establish[es] living conditions within, move[s] to, or transfer[s] to” a long-term care facility such as a rest home commits a crime. See G.L. c. 6, § 178K (2) (e ), inserted by St.2006, c. 303, § 6 (§ 178K [2] [e ], or the statute).

The plaintiff asks this court to declare § 178K (2) (e ) unconstitutional as applied to him. We conclude that the statute infringes on the plaintiff's protected liberty and property interests and violates his right to due process; because the statute fails to provide for an individualized determination that the public safety benefits of requiring him to leave the rest home outweigh the risks to the plaintiff of such a removal, the statute is unconstitutional as applied to the plaintiff.

Doe No:8725 v Sex Offender Registry Bd

3-14-2008 Massachusetts:

Doe No:8725 v Sex Offender Registry Bd

On September 13, 1979, the plaintiff, John Doe, then twenty-two years of age, tendered an Alford plea, see North Carolina v. Alford,400 U.S. 25 (1970), to a charge of rape. G. L. c. 265, § 22.1 He was sentenced to a two-year term of probation which he completed without incident on September 9, 1981. Twenty-two years later, on November 10, 2003, the Sex Offender Registry Board (board) notified Doe that pursuant to G. L. c. 6, §§ 178C-178Q, the sex offender registration law (registration law),2 it was reviewing his case to make a recommendation regarding his duty to register with the board and his classification level. See G. L. c. 6, § 178L (1); 803 Code Mass. Regs. § 1.01 (2002).

Doe was given thirty days to submit documentary evidence "relative to his risk of reoffense, the degree of dangerousness posed to the public and his duty to register." 803 Code Mass. Regs. § 1.05(1) (2002). Doe submitted documentary evidence to the board to the effect that he had established a stable life in the community, with a strong network of family and friends, and that he had been married for twenty-one years, had raised three accomplished children, and had maintained steady employment with increasing levels of responsibility over the years. Doe had not been convicted of any crime since his 1981 discharge from probation.

On December 31, 2003, the board recommended that Doe be required to register as a level one sex offender. A level one classification is the classification given to sex offenders whose risk of reoffense is low.3 Doe was informed of his right to request an evidentiary hearing to challenge his classification and registration obligation. See G. L. c. 6, § 178L (1); 803 Code Mass. Regs. §§ 1.06(1), 1.07(1) (2002). On January 11, 2004, Doe requested a hearing, and the matter was assigned to a hearing examiner.

Conclusion. When considering the retroactive application of civil statutes, we balance "opposing considerations." Leibovich v. Antonellis, supra at 577, quoting American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., supra at 189-190. Here, the requirements the registration law would impose on Doe are extensive and permanent. Moreover, if Doe can establish that he poses neither a risk of reoffense nor a danger to the communities the law was intended to protect, the imposition of the registration law's requirements on him would not further the law's substantial and important purposes.

Consequently, the retroactive imposition of the registration requirement without an opportunity to overcome the conclusive presumption of dangerousness that flows solely from Doe's conviction, violates his right to due process under the Massachusetts Constitution. Doe must be granted the hearing he has requested, in accordance with the procedure set forth in G. L. c. 6, § 178L, where he will have the opportunity to demonstrate that he neither poses a risk of reoffense nor is a current danger to vulnerable members of our communities. The Superior Court decision is vacated. The case is remanded to the board for an evidentiary hearing. Article: SJC says low-level sex offenders have right to hearing