Loe v. Sex Offender Registry Board

Sikora, J.

(concurring). I concur in the result but not in the deferral of a standard for evaluation of the claim of ineffective assistance of counsel in the classification process of the Sexual Offender Registration Board (board). We should explicitly adopt the standard of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), without further delay and implement it as an element of the administrative law system of registration and classification established by the Legislature.

Massachusetts decisional law authorizes an appellate court to address an issue (1) of public importance, (2) of first impression, and (3) of capable adversary briefing, even though it might be moot or otherwise unnecessary for decision of a case. See, e.g., Wellesley College v. Attorney Gen., 313 Mass. 722, 731 (1943), and cases cited; Karchmar v. Worcester, 364 Mass. 124, 136 (1973); Geehan v. Trawler Arlington, Inc., 371 Mass. 815, 817 (1977); Commissioner of Correction v. Myers, 379 Mass. 255, 261 (1979). Under those criteria this appeal presents a paradigm for a decisive and useful statement. The issue carries public importance because it involves the implementation of a statutory program serving the public safety and affecting the interests of numerous individual registrants. It lacks any binding precedent. The parties have briefed it with adversarial thoroughness and motivation, the board as the agency of implementation and the registrant as the client of counsel arranged through the Committee for Public Counsel Services, the primary provider of legal representation for registrants in the board. It is squarely available as an alternative ground of decision. The unending flow of sex *680 offenders from incarceration into classification assures the recurrence of the question.

In these circumstances an appellate court should resolve uncertainty, not prolong it. It need not accept the role of a sphinx without a secret. Confrontation of a substantial issue by an intermediate appellate court may be all the more appropriate because its work can bring the issue to the attention of the court of last resort and because that higher court remains available to correct or to revise the first decision with the assistance of not only the parties’ arguments but also the analysis of the intermediate court. 1 By avoidance of a justiciable, significant, recurrent question of law, we risk abdication of a fundamental responsibility. “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (Marshall, C.J.).

Additional background. The task and duty of hearing counsel was to pursue for his client either exemption from registration or the lowest possible level of the three classifications. The essence of that effort was to marshal evidence within the twenty-four regulatory criteria established by the board for exemption or appropriate classification of risk of reoffense or degree of dangerousness. 803 Code Mass. Regs. § 1.40 (2004). 2 The hear *681 ing examiner’s determination of level three exposed the plaintiff to the broadest dissemination of his identity and history.* 3

Discussion. 1. The Saferian standard. Presently we have no standard to determine whether hearing counsel’s representation is so deficient that it undermines the reliability of the administrative adjudication and requires a new hearing. The plaintiff *682 proposes the test of Commonwealth v. Saferian , 366 Mass, at 96:

“whether there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer —■ and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence” (emphasis supplied).

Our courts have extended the Saferian standard from the evaluation of criminal defense work into two civil settings. In Care & Protection of Stephen, 401 Mass. 144, 148-149 (1987), the Supreme Judicial Court concluded that a parent confronting the transfer of custody of her children to the State possessed a statutory right to the effective assistance of counsel and that the courts should measure effectiveness by the Saferian standard. In Commonwealth v. Ferreira, 67 Mass. App. Ct. 109, 114-116 (2006), this court held that a respondent facing indeterminate civil confinement as a sexually dangerous person under the scheme of G. L. c. 123A held a statutory and constitutional right to the effective assistance of counsel again to be measured under the formula of Saferian .

The board opposes the extension of Saferian into the statutory scheme for the registration of sexual offenders. It argues that the interest of the registrant in the loss of a degree of privacy lacks the weight of the interest of a criminal defendant or an alleged sexually dangerous person in the loss of his freedom or of a parent in the loss of custody of her children. It maintains that the public interest in the effectiveness of the registration program weighs against easy challenges to the classification process. It suggests a burden of proof and persuasion “higher than the one articulated in Saferian” for registrants alleging ineffective assistance by their attorneys. However it does not specify a heightened alternative.

Several strong considerations support the application of the Saferian test to the registration classification process. First, the interest of the registrant has constitutional and statutory weight. “Sex offenders have a constitutionally protected liberty and privacy interest in avoiding registration and public dissemination of *683 registration information.” Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 100 (1998), citing Doe v. Attorney Gen., 426 Mass. 136, 143 (1997). 4 Accord Doe v. Attorney Gen., 430 Mass. 155, 160-161 (1999). The original statutory provision, G. L. c. 6, § 178M, added by St. 1996, c. 239, § 1, allowed for review of the board’s classification by the Superior Court and for the right to counsel only in the Superior Court. The statutory right to counsel at the board hearing did not exist “[b]ecause the statute [did] not provide for an evidentiary hearing before the board.” Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., supra at 100 n.10. By subsequent enactment, St. 1999, c. 74, § 2, inserting G. L. c. 6, § 178L, the Legislature expressly entitled indigents to counsel at the board classification hearing. “The right to counsel is of little value unless there is an expectation that counsel’s assistance will be effective.” Care & Protection of Stephen, 401 Mass, at 149.

Second, the two-part standard of Saferian is demanding. 5 It should not permit the abuse of the classification process feared by the board. The fault of the attorney must be “serious,” and *684 the resulting harm to the client must be “substantial.” In a civil proceeding, a slight variation of the second prong may be appropriate: the inquiry is whether a better performance by counsel “would have realistically accomplished any change in the result.” Care & Protection of Georgette, 54 Mass. App. Ct. 778, 793 (2002), S.C., 439 Mass. 28, 34-35 (2003). Those requirements do not permit minor shortcomings to obstruct the classification process, nor even larger oversights if they would not alter the classification result. The registrant must make “some showing that better work might have accomplished something material” for his position. Commonwealth v. Satterfield, 373 Mass. 109,115 (1977).

During its thirty-five years of application, Saferian has generated a number of corollaries against insubstantial arguments of ineffectiveness. The evaluation of a claim of ineffectiveness by the trier of fact (the hearing examiner in these circumstances) is entitled to special deference. 6 See, e.g., Commonwealth v. *685 DeVincent, 421 Mass. 64, 69 (1995); Commonwealth v. Figueroa, 422 Mass. 72, 77 (1996). The absence of affidavit support from trial counsel (about his or her own work) weakens proof of the claim of ineffectiveness. Commonwealth v. Savage, 51 Mass. App. Ct. 500 , 505 n.6 (2001). A contention of ineffectiveness by reason of an omission by counsel must show a likelihood of success of the omitted action (a motion; an objection). See, e.g., Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983); Commonwealth v. Comita, 441 Mass. 86, 90-91 (2004). A client challenging a strategic or tactical judgment of counsel must show the choice to have been “manifestly unreasonable.” See, e.g., *686 Commonwealth v. Martin, 427 Mass. 816, 822 (1998); Commonwealth v. Campanonio, 445 Mass. 39, 45 (2005). Even a substandard performance by counsel within the meaning of Saferian will not result in the required harm if the adverse evidence was overwhelming and the trier of fact aware of the attorney’s error. See, e.g., Commonwealth v. Wilcox, 72 Mass. App. Ct. 344, 351-353 (2008).

Third, board hearing examiners at the trial stage and Superior Court judges at the first stage of review are entitled to a definitive standard for the assessment of claims of ineffective assistance. As recounted, Saferian furnishes a developed standard readily adaptable to the registration scheme. It does not impose a change; rather it fills a void. In an unpublished memorandum and order (which is without the force of precedent) issued pursuant to our rule 1:28, Doe, Sex Offender Registry Bd. No. 19469 v. Sex Offender Registry Bd., 70 Mass. App. Ct. 1103 (2007), we assumed without deciding that Saferian applied to the registrant’s claim of ineffective assistance in the board proceedings and in the Superior Court review of the board decision. The panel concluded that any errors by the attorney in the board and in the court would not have caused substantial harm to the registrant’s position. In the choice of “assuming without deciding” the applicability of Saferian , the panel cited Commonwealth v. Sargent, 449 Mass. 576, 585-586 (2007) (applying Saferian to proceedings for the civil commitment of sexually dangerous persons under G. L. c. 123A but declining to establish a mle because the Commonwealth was agreeable to the standard in that instance). At this point, no articulated reason appears to support a pattern of deferred guidance and ad hoc decisions. Front-line adjudicators should not have to guess at a standard at the risk of reversal or repetition of their work. We should therefore follow the example of Commonwealth v. Ferreira, 67 Mass. App. Ct. at 115 , and extend the Saferian standard to registration proceedings.

Finally, the Saferian test brings the benefit of familiarity. Superior Court judges must apply it frequently in the course of postconviction criminal process. Its cumulative decisional law is available to both judges and hearing examiners. The board has not proposed an identifiable alternative. It appears unlikely that an alternative would vary significantly from the logical elements *687 inherent in the standard: fault by the attorney, and resulting serious harm to the client. In this case the Superior Court judge implicitly followed the logic of Saferian ; she concluded that better work would not have altered the result in the board. 7 For the following reasons, that assessment was correct.

2. Application of the Saferian standard. The deficiencies of *688 hearing counsel’s work summarized in the majority opinion, ante at 676 n. 6, establish the “serious” failing contemplated by the first part of the Saferian test. However it did not cause the resulting classification or “substantial” harm required by the second part. The quantity and quality of undisputed adverse evidence ordained the result. As itemized by the majority, ante at 677, the overwhelming weight of the regulatory factors compelled the level three classification (the force and violence of the sexual offense; the nonfamily status of the victim; a history of violent nonsexual offenses; continuing denial; inadequate participation in sex offender treatment programs; a history of substance abuse; a relatively short interim since release; continuing unsupervised status).

The plaintiff emphasized three shortcomings of hearing counsel as the cause of the substantial harm of the level three classification: (1) counsel’s failure to generate favorable letters from family and friends; (2) his failure to retrieve sex offender treatment records from prison; and (3) his failure to prepare the petitioner for direct and cross-examination at the board hearing. For the reasons canvassed by the majority, ante at 677-679, those failings would not have made a difference in the result created by the magnitude of undisputed adverse information.

Similarly in the Superior Court, counsel’s deficient written and oral work could not have changed the result dictated by the same information embodied in the administrative record.

Conclusion. The reasoning of the majority and the application of the Saferian rule converge at the same result. The former resembles the implicit application of the latter. They are likely to converge in the vast majority of cases. For the guidance of all participants in this important public safety program, we should convert the de facto practice to a de jure standard, and straightforwardly adopt the Saferian mle.

The Supreme Judicial Court’s review, of course, may reach a conclusion upon the merits or a conclusion rejecting a present resolution of the issue.

As an additional purpose for confrontation of such an issue, that court has cited the stimulation of legislative interest in the clarification of the law or in the evaluation of administrative practices. See Diafario v. Commissioner of Correction, 371 Mass. 545, 553 (1976) (Kaplan, J.).

The twenty-four regulatory factors include and expand upon the statutory criteria prescribed in G. L. c. 6, § 178K(l)(a)-(Z). The regulatory factors weigh the following elements of status and conduct: mental abnormality; repetitive and compulsive behavior; whether the offender was an adult who committed a sex offense on a child; the offender’s age at the time of the first sex offense; adjudication as a sexually dangerous person or release from civil commitment; whether the offender has served the maximum term of incarceration; the relationship between the offender and the victim; the use of a weapon or violence, or the infliction of bodily injury; the dates, number, and nature of prior offenses; whether the offender is currently under probation or parole supervision; whether the offender is currently in sex offender-specific treatment; current home situation; physical condition; whether the sex offender was a juvenile when he committed the offense, his response to treatment, and subsequent criminal history; psychological or psychiatric profiles indicating risk to reoffend; substance or alcohol abuse; sex offender treatment while *681 incarcerated; sex offender treatment while on probation or parole; recent threats; materials submitted by the sex offender and recent behavior and lifestyle of the offender in the twenty-four months prior to the date of notification; victim impact statement; whether sex offender-specific treatment was successfully completed or progressing less than satisfactorily.

For level three registrants, the board transmits pertinent data to the police departments of municipalities in which the subject resides, works, and attends any institution of higher learning, and to the Federal Bureau of Investigation. A community notification plan requires a police department to notify organizations and individuals likely to encounter the registrant. The classification also requires neighboring police districts to share information of the level three individual and authorizes them to notify their residents of the identity of a registrant whom they are likely to encounter.

The police or the board must disseminate the name of the registrant; his primary and any secondary address; his work address; the nature and dates of convicted or adjudicated offenses; the individual’s age, gender, race, height, weight, and eye and hair color; an available photograph; and the name and address of any institution of higher learning attended by the registrant.

The board and police have discretion to publish the information in a manner and at a time of their choice. The means of dissemination can include the Internet. All notices to the community must include a warning of criminal penalties for use of registry information to commit a crime or to engage in unlawful discrimination or harassment of the registrant and of the punishment for threatening to commit a crime. G. L. c. 6, § 178K(2)(c)(i)-(vii). 803 Code Mass. Regs. § 1.32(3)(a)-(c) (2004).

A level three offender must appear annually at the appropriate police department to verify his registration data and address. G. L. c. 6, § 178FV2. 803 Code Mass. Regs. § 1.30(1) (2004). No sooner than three years from the date of final classification, a level three offender may request reclassification upon the basis of new and updated information and proof of the reduced risk of reoffense and dangerousness to the public. 803 Code Mass. Regs. § 1.37C(2)(a), (c), (e) (2004). With certain exceptions, a registrant may request termination of registration within ten years from release from custody or supervision following conviction or adjudication of the underlying sexual offense. The request must include proof, by clear and convincing evidence, that the registrant has not committed a sexual offense within ten years after the latest of the dates of his conviction, adjudication, or release from custody or supervision resulting from the underlying sexual offense. 803 Code Mass. Regs. § 1.37B(1) (2004).

For a fuller survey of the registration program, see Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 91-95 (1998).

In Doe v. Attorney Gen., 426 Mass, at 144, the court summarized the reasons for the constitutional entitlement:

“The combination of the following circumstances persuades us that the plaintiff has a liberty and privacy interest protected by the Constitution of the Commonwealth that entitles him to procedural due process: (1) the requirement that he register with local police; (2) the disclosure of accumulated personal information on request; (3) the possible harm to his earning capacity; (4) the harm to his reputation; and most important, (5) the statutory branding of him as public danger, a sex offender. That statutory classification implicitly announces that, in the eyes of the State, the plaintiff presents a risk of committing a sex offense.”

See note 3, supra. Level three classification exposes the registrant to potentially pervasive stigmatization at his residence, workplace, and school. That burden for the registrant serves an important benefit to the community: vigilance against the danger of reoffense. This analysis respects both the burden and the benefit.

See Commonwealth v. Filippidakis, 29 Mass. App. Ct. 679, 688 (1991), and cases cited, in which Justice Kaplan, also the author of Saferian , emphasizes that “a heavy burden of proof is cast on a defendant who moves for a new trial for ineffectiveness of counsel”; that the standard requires both serious fault and substantial harm; and that the assessment of the trial judge is “entitled to high respect.”

The majority report that they are reluctant to approve of the participation of the board hearing examiner in the determination of ineffective assistance of counsel. Ante at 676 n. 5. Whatever its source, that reluctance receives no support from administrative law practice and doctrine or from criminal procedural analogy.

As a matter of practice, board hearing examiners carry out a singularly focused mission: the determination of the level of the risk of reoffense and the degree of dangerousness posed by a released sexual offender. For that purpose they sift evidence through the screen of the detailed factors prescribed by statute, G. L. c. 6, § 178K(l)(a)-(Z), and regulation, 803 Code Mass. Regs. § 1.40 (2004). By regulation, they “shall govern the conduct of every phase of the hearing,” id. at § 1:15 (2002); they must enforce all rules of privilege recognized by law, id. at § 1.19 (2002); they must rule competently on issues of law, evidence, and procedure, id. at § 1.21 (2002); and they must render a detailed adjudicatory decision encompassing a summary of the evidence, specific findings of material fact, rulings of law on all disputed questions, and conclusions drawn from and supported by the findings and rulings, id. at § 1.22 (2002). For purposes of judicial review, the hearing examiner’s decision is the final agency action. Id. at § 1.23 (2008). In this case the examiner, an attorney, produced a detailed eighteen-page decision competently resolving all issues of fact and law. As a practical matter, a hearing examiner is ideally positioned to detect, from the performance of a registrant’s counsel, unfamiliarity with the statutory and regulatory criteria, the failure to offer evidence under them, the imprudence of discretionary strategies and tactics, or other seriously harmful deficiencies.

The exclusion of the hearing examiner from the determination of ineffectiveness would contradict multiple administrative law premises and doctrines supporting the competence of the administrative adjudicator: (1) the requirement by the Administrative Procedure Act of judicial respect for “the experi *685 ence, technical competence, and specialized knowledge of the agency” and for its discretionary authority, G. L. c. 30A, § 14(7); (2) judicial review confined to the record created by the agency, G. L. c. 30A, § 14(5); (3) the substantial evidence rule upholding the choice of a reasonable finding by an agency against a reasonable alternative favored by a reviewing court, Southern Worcester County Regional Vocational Sch. Dist. v. Labor Relations Commn., 377 Mass. 897, 903 (1979); (4) the authority of the reviewing court to remand a case to the agency for supplemental fact finding, G. L. c. 30A, § 14(6); (5) the usual authority of an agency to create standards of substance and procedure for implementation of its enabling legislation, Arthurs v. Board of Registration in Med., 383 Mass. 299, 312-313 (1981) (e.g., the commitment of “every phase of the hearing” to the supervision of the examiner by 803 Code Mass. Regs. § 1.15 [2002]); (6) the required exhaustion of administrative remedies upon factual questions, e.g., East Chop Tennis Club v. Massachusetts Commn. Against Discrimination, 364 Mass. 444, 450 (1973), and Buteau v. Norfolk County Retirement Bd., 8 Mass. App. Ct. 391, 394-395 (1979), a policy which would place the first finding about the effectiveness of counsel with the observation, experience, and judgment of the agency adjudicator; and (7) the policy of primary jurisdiction (i.e., that an issue of a technical nature within the jurisdiction of an agency should begin there, and not in the courts), Murphy v. Administrator of the Div. of Personnel Admin., 377 Mass. 217, 220-222 (1979) (here we have an intensely specialized issue: whether an attorney understands the law, process, and prudent practice of the agency itself). Finally, the disqualification of the hearing examiner as a fact finder upon the question of ineffectiveness leads to the impracticable notion that the Superior Court judge will somehow become the trier of that issue in a system of restrained review under the Administrative Procedure Act.

As a matter of analogy to criminal process, appellate courts (reviewing the determination of a motion for a new trial by reason of ineffective assistance) give “substantial” or “special” deference to the evaluation of trial counsel’s performance by the trial judge. See Commonwealth v. DeVincent, 421 Mass. 64, 69 (1995); Commonwealth v. Barnette, 45 Mass. App. Ct. 486, 493 (1998); Commonwealth v. Delong, 60 Mass. App. Ct. 122,127 (2003). In this administrative setting, the hearing examiner occupied the role of the trial judge. His or her direct observation of the work of the challenged attorney in his papers and especially in the hearing room deserves similar deference.

The board appears to anticipate that registrants will attempt to complicate and to pursue repetitive adjudications of their classifications by claims of ineffective assistance. That concern is understandable. Preliminarily, one might observe that registrants with real or imagined grievances against their attorneys will pursue their claims under Saferian or under an alternative standard. The specific standard does not generate the claim.

The civil procedural scheme for classification of sex offenders differs, of course, from the criminal process in which the Saferian test originated. The two primary stages of the civil process will be the administrative adjudication in the board and judicial review of that result by the Superior Court under G. L. c. 30A, § 14. The board is free to entertain claims of ineffective assistance by reasonable procedures assuring fairness and efficiency. It may define its procedures by general rulemaking or specific adjudications. See Arthurs v. Board of Registration in Med., 383 Mass. 299, 312-315 (1981); Massachusetts Elec. Co. v. Department of Pub. Util., 383 Mass. 675, 678-680 (1981). In proceedings at the board, the hearing examiner is well placed to observe genuinely ineffective assistance and to act to prevent any resulting unfairness either in response to a grievance from a respondent or in the exercise of his or her initiative.

In the appeal to the Superior Court, the registrant may contend that ineffective assistance in the board created one of the grounds of error recognized under G. L. c. 30A, § 14(7). With an adequate record, the Superior Court judge may be able to resolve the claim directly, as happened in this case. See Commonwealth v. Sargent , 449 Mass, at 585 n.15; Commonwealth v. Ferreira, 67 Mass. App. Ct. at 115-117 . The thoroughness of the findings of board hearing examiners (the result of the detailed application of the regulatory factors and the examiners’ commendable diligence) will often enable such a determination. In those instances of an uncertain record, the judge may remand the claim to the board. There the original hearing examiner should be well situated to decide the claim from his or her prior knowledge and from any necessary supplemental proceedings. The Superior Court judge remains free to exercise any additional authority conferred by G. L. c. 30A, § 14(5) (authority to take evidence of alleged irregularities invisible in the administrative record) and (6) (authority to order the board to take additional evidence).

In the criminal process, the preferred vehicle for introduction of the claim of ineffective assistance is a motion for a new trial. Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006), and cases cited. An exception to that rule permits decision of a claim on direct appeal if the factual ground of the claim appears indisputably determinable from the trial record. Id. at 811 , and cases cited. Nothing in our discussion prevents the adaptation of those guidelines to the civil classification scheme.