SUMMARY: Massachusetts Supreme Judicial Court (SJC) clarified an earlier ruling enjoining the Massachusetts Sex Offender Registry Board (SORB) from publishing registry information on Level Two sex offenders classified before July 12, 2013. The SJC stated that SORB cannot use a post-July 12, 2013 failure to reclassify a Level Two as a Level Three as a post-July 12, 2013 finding of a Level Two, and thereby justify internet publication of the Level Two’s registry information. In conjunction, the SJC declared that SORB also could not use a Level Two’s post-July 12, 2013 failed attempt to reclassify lower as an excuse to publish the Level Two’s registry information on the internet, if that information was previously barred from publication.

CASE NAME: Doe 326573 v. Sex Offender Registry Board, 477 Mass. 361 (2017)

DECISION: Unanimous 6-0 (quorum), opinion by Chief Justice Gants, ordering the Superior Court to permanently enjoin publication of the plaintiff’s registry information.

JUSTICES/JUDGES:

• Chief Justice Ralph D. Gants (opinion writer)
• Justice Geraldine S. Hines
• Justice Barbara A. Lenk
• Justice Frank M. Gaziano
• Justice David A. Lowy
• Justice Kimberly S. Budd

RELEVANT FACTS:

• Before July 12, 2013, only Level Three sex offenders were subject to having their SORB information published on the internet.
• However, effective July 12, 2013, the Massachusetts legislature required that Level Two sex offenders also have their SORB information published on the internet.
• In 2014, in Moe v. Sex Offender Registry Board, 467 Mass. 598 (2014), the Massachusetts Supreme Judicial Court (SJC) permanently enjoined the Massachusetts Sex Offender Registry Board (SORB) from internet publication of information on level two sex offenders who were classified at level two on or before July 12, 2013. This was because the retroactive application of the new publication requirements violated Due Process rights of the Level Two sex offenders..
• Also in Moe, the SJC added the caveat that the injunction would not apply if “the individual is subsequently reclassified a level two or level three sex offender.” Moe at 616.
• Both plaintiffs in this matter pled guilty to sex offenses and were classified as Level Twos before July 12, 2013.
• After July 12, 2013, SORB initiated proceedings to reclassify the plaintiffs as Level Three offenders.
• In both proceedings the hearing officer found that reclassification was not warranted, and the plaintiffs remained Level Two offenders. Following the decisions, SORB informed the plaintiffs that, since the hearing officer had decided to keep them at Level Two, that SORB would now publish their information on the internet.
• Both plaintiffs moved for injunctions in the Superior Court against SORB to prevent internet dissemination. The cases were consolidated for direct appellate review.
• SORB argued that when the hearing officers issued their decisions on that the plaintiffs remain Level Twos, and since such decisions occurred after July 12, 2103, the plaintiffs had been subsequently reclassified under Moe and, therefore, fell within the exception to Moe’s
• The plaintiffs argued that such decisions were not reclassifications under Moe, and were instead an attempt by SORB to circumvent Moe’s core holding.

OPINION:

• “The flaw in SORB’s premise is that a decision in a reclassification hearing, in contrast with the original classification, is not written on a clean slate.”
• The SJC opined that the issue was one of the burden and the default state: when SORB seeks reclassification, it has the burden to prove the higher level, but if it failed to carry the burden the default level was the offender’s previous level. When the offender seeks reclassification, the offender has the burden, but if s/he failed the default level was the offender’s previous level. Thus, in either case, the default level was not proven by a failed reclassification attempt, but instead the newly-sought level was not
• What is more, when SORB moves for reclassification of a Level Two the hearing officer has no authority of his own to go below a Level Two, rendering the default state meaningless.
• The default level in these cases was the offender’s pre-July 12, 2013 Level Two, which did not include internet publication. Thus, when SORB failed to prove its case that Level Three was warranted, the offender defaulted to a level that did not allow for sex offender classification.
• “In essence, SORB’s argument is that, when it moves to reclassify a level two offender who was classified on or before July 12, 2013, it is “’heads, we win, tails, you (the offender)lose.’”
• The SJC went on to say that the reverse was true as well: when a pre-July 12, 2013 Level Two offender seeks to be reclassified at a lower level and fails, it does not mean SORB may publish the Level Two’s information on the internet, because a post-July 12, 2013 Level Two has not been proven.

ANALYSIS:

• The SJC’s decision essentially blocks SORB from using a disingenuous reclassification attempt as a method to disseminate barred information on the internet, where SORB seeks to reclassify a Level Two to a Level Three for the purpose of keeping the offender at the Level Two but clearing the way for internet publication.
• The SJC also made clear that a pre-July 12, 2013 Level Two’s failed attempt to reclassify lower was not, in itself, proof of a Level Two that allowed SORB to disseminate his information on the internet. If the opposite were true, it would unfairly penalize Level Twos from seeking their rights to seek reclassification.
• The SJC went over the history of SORB and an explanation of the classification levels. The SJC also discussed how reclassification works, and the two methods of reclassification: one method initiated by SORB, the other by the sex offender.
• The SJC noted that SORB has restricted itself to only seeking higher reclassification levels when it initiates such hearings, although the law itself allows SORB to seek both higher and lower classification levels.
• The SJC reiterated a statement from Moe that the Level Two offenders classified on or before July 12, 2013 were somewhat of a lesser category than the Level Two offenders classified after July 12, 2013. The implication is that SORB may, under its own regulations (which only allow SORB to seek reclassification at higher levels), seek to reclassify pre-July 12, 2013 Level Twos as post-July 12, 2013 Level Twos, because a post-July 12, 2013 Level Two is a constructively higher category.