concluding that hearing required “should be held before the [sex offender registry] board pursuant to G. L. c. 30A, that the appropriateness of an offender’s risk classification must be proved by a preponderance of the evidence, and that the board must make specific, written, detailed, and individualized findings to support the appropriateness of each offender’s risk classification”
How later courts described this case
- concluding that hearing required “should be held before the [sex offender registry] board pursuant to G. L. c. 30A, that the appropriateness of an offender’s risk classification must be proved by a preponderance of the evidence, and that the board must make specific, written, detailed, and individualized findings to support the appropriateness of each offender’s risk classification”
- finding that the preponderance-of-the-evidence standard satisfies due process as long as it is combined with a requirement that the fact finder “make detailed findings to demonstrate that close attention has been given to the evidence”
- agreeing with board that it could hold individualized hearings as required by procedural due process and that preponderance of evidence standard applied at such hearings
- where right to due process entitled sex offenders to evidentiary hearing on appropriateness of risk classification but 1996 version of registration statute did not provide for such hearing, court would not strike statute but would prescribe eviden-tiary hearings to carry out legislative intent that there be viable risk classification procedure
Written by the judges who cited it.
Later courts went against this
Overruled in part by Doe, SORB No. 380316 v. Sex Offender Registry Board, 473 Mass. 297 (2015)
No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 98, 103-104 (1998) (agreeing with board that it could hold individualized hearings as required by procedural due process and that preponderance of evidence standard applied at such hearings), partially overruled by Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 298 (2015) (clear and convincing evidence standard applied at boar…
The opinion
Marshall, J.
(concurring in part and dissenting in part). The court today takes a first step in filling in the gaps in a statute that we have said falls short of providing registrants under the act a constitutional minimum of due process. See Doe v. Attorney Gen., 426 Mass. 136, 137 (1997). I emphasize that the court takes but one step, because significant, undecided issues of constitutional due process were not raised by the parties and therefore are not addressed by the court. I agree that the classification hearing may take place before the board and that it is appropriate to wait until the board establishes its own adjudicatory procedures before we consider the constitutional adequa-cies of other procedures afforded to potential registrants. I conclude, however, that due process requires that proof be by clear and convincing evidence to establish the risk level classifications. That standard would enable police and the community to focus on those offenders who may pose an actual threat to young children and others that the statute seeks to protect.
We have recognized that the Massachusetts statute is broad, far more so than cognate statutes in neighboring States. See Doe v. Attorney Gen., supra at 145 (contrasting breadth of Massachusetts statute with New York’s version of “Megan’s Law”); *105 id. at 146-147, 150 (Fried, J., concurring) (noting that “omnibus, catch-all nature of some of the offenses” in Massachusetts statute are “at a far remove” from showing requisite severity of harm and likelihood of recurrence to justify registration). Because the definition of “sex offender” sweeps in persons whose crimes may have nothing to do with victimizing anyone, much less the vulnerable populations with which the statute is concerned, 1 careful and individualized due process is necessary to sort sexual predators likely to repeat their crimes from large numbers of offenders who pose no danger to the public, but who are nonetheless caught in the statute’s far-flung net of registration. Notwithstanding the more narrow scope of sex offenses covered by, as well as the more elaborate statutory procedures in, the versions of “Megan’s Law” enacted in New York and in New Jersey, compared to the Massachusetts statute, courts examining those statutes have required that the State prove the facts supporting the recommended classifications by clear and convincing evidence. See Doe v. Pataki, 3 F. Supp. 2d 456, 471-472 (S.D.N.Y. 1998) ; E.B. v. Verniero, 119 F.3d 1077, 1110-1111 (3d Cir. 1997), cert, denied sub nom. W.P. v. Verniero, 118 S. Ct. 1039 (1998). See also State vs. Gropp, Ohio Ct. App. No. 97CA006744 (April 8, 1998) (slip op. at 17) (State bears burden of proof by clear and convincing evidence as required by Ohio version of “Megan’s Law”).
Unlike those courts, this court concludes that a mere preponderance of the evidence standard of proof is sufficient. Because the registrant does not face a loss of physical liberty, but only “the stigma of being required to register as a sex offender and of having information regarding sex offenses disseminated to the public,” the court concludes that no “higher standard of proof than that generally required in civil proceedings” is sufficient. Ante at 102. This conclusion misconceives both the private and the State interest.
In describing the private interest of the registrant, the court quotes from the concurrence in our most recent case to review the statute. There it was noted that registration (for a minimum of twenty years and in many cases for life) is a “continuing, *106 intrusive, and humiliating regulation of the person himself.” Ante at 101, quoting Doe v. Attorney Gen., supra at 149 (Fried, J., concurring). The passage in that opinion continues by noting that, “[t]o require registration of persons not in connection with any particular activity asserts a relationship between government and the individual that is in principle quite alien to our traditions, a relationship which when generalized has been the hallmark of totalitarian government.” Id. at 149-150 . Such a relationship between the registrant and the police is entirely new to our polity and uniquely burdensome, altogether aside from the burdens of notification. Requiring an American citizen to register with the police because of a single victimless offense, without clear and convincing proof of danger to anyone, is a long step away from our traditions of freedom under law.
The burden of registration also casts a continuing shadow of further criminal sanctions and possible reincarceration, not for the sex offense for which a registrant was first convicted, but for failing to comply with affirmative duties of annually appearing in person before local police officials and maintaining the accuracy of registration information. See G. L. c. 6, § 178F- § 178H. Sanctions of imprisonment for years for failure to comply with continuing affirmative registration duties, once a person is placed on the sex offender registry, undermine the distinction that the court attempts to draw between the registrant’s burden and the burden on the liberty interest of one facing civil commitment, or the administration of antipsychotic medication, ante at 101, citing Guardianship of Roe, 383 Mass. 415, 423 (1981), and Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 275-277 (1978). The burden in those civil proceedings is proof beyond a reasonable doubt, ante at 101, a standard plainly higher than clear and convincing evidence. Petition of the Dep’t of Social Servs. to Dispense with Consent to Adoption, 392 Mass. 696, 697-700 (1984) (declining to adopt beyond reasonable doubt standard of proof in proceeding to terminate parental rights, but affirming clear and convincing evidence standard). When “particularly important” interests are involved in a civil proceeding, whether or not physical restraint is threatened, the United States Supreme Court has mandated a clear and convincing evidence standard of proof and stated that, “Notwithstanding ‘the state’s “civil labels and good intentions,” ’ . . . this level of certainty [is deemed] necessary to preserve fundamental fairness in a variety of *107 government-initiated proceedings that threaten the individual involved with ‘a significant deprivation of liberty’ or ‘stigma.’ ” Santosky v. Kramer, 455 U.S. 745, 756 (1982) (requiring clear and convincing evidence standard to support termination of parental rights), quoting Addington v. Texas, 441 U.S. 418, 425, 426, 427 (1979) (civil commitment); Woodby v. INS, 385 U.S. 276, 285 (1966) (deportation); Chaunt v. United States, 364 U.S. 350, 353 (1960) (denaturalization); Schneiderman v. United States, 320 U.S. 118, 125, 159 (1943) (denaturalization). A registrant’s liberty interest is seriously infringed in the creation of a long-term relationship with the police, in the potential criminal sanctions overshadowing that relationship, and in the stigma of notification — all penalties that are “more substantial than mere loss of money.” Santosky, supra, quoting Addington v. Texas, supra at 424 .
The court also too easily confines the State’s interest to a single dimension. While the primary purpose of the registration statute is to protect the public from sexual predators, the State also has “an interest in ensuring that its classification and notification system is both fair and accurate.” E.B. v. Verniero, supra at 1107 . The State has no interest in making erroneous classifications and implementing overbroad registration and notifications. Id. See Doe v. Pataki, supra at 470 . Contrary to the court’s conclusion, the burdens on the government are great, without any likely benefit, when it holds hearings for and maintains the registration of thousands of registrants for whom there is no clear evidence that they pose any danger to the public. Requiring the government to assemble and present clear evidence of a sex offender’s dangerousness would ensure that limited adjudicatory and police enforcement resources would be concentrated on those individuals who realistically may pose threats to young children and other vulnerable populations. As observed in an altogether different context, but oddly apropos of this classification system as well, “when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless.” New York Times Co. v. United States, 403 U.S. 713, 729 (1971) (Stewart, J., concurring).
The interests of the individual and the State coincide in requiring a standard of clear and convincing evidence. I respectfully dissent from the court’s ruling on the standard of proof in classification hearings.
In Doe v. Attorney Gen., 426 Mass. 136, 138 (1997), the registrant was a former marine, now married with two grown children, whose sexual interests are exclusively oriented to other consenting adults, and who was caught in two “sting" operations against homosexual adults.