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SJC Rules that SORB Bears Burden of Proof at Reclassification Hearings by Clear and Convincing Evidence

gavel-2-1236453-300x200In a recent decision – Noe v. Sex Offender Registry Board – the Supreme Judicial Court ruled (1) that in sex offender registry reclassification proceedings initiated by an offender, the Sex Offender Registry Board (board) bears the burden of proof by clear and convincing evidence; and (2) that “indigent sex offenders have a right to counsel in such reclassification hearings.”

The background was as follows. “In Doe, Sex Offender Registry Bd. No. 380316v. Sex Offender Registry Bd., 473 Mass. 297, 298 (2015) …, [the SJC] held that [the board] is constitutionally required to prove the initial classification of a convicted sex offender under the sex offender registry law, G.L. c.6, §§178C-178Q, by clear and convincing evidence.” The same standards apply where the board initiates proceedings to reclassify an offender upward. “The board’s regulations specify a separate procedure for sex offenders seeking downward reclassification.” “The sex offender registry law does not specify the standard and burden of proof for [such] reclassification hearings…. However, the board’s regulations dictate that for offender-initiated motions for reclassification, the burden is on the offender to prove why downward reclassification is appropriate by clear and convincing evidence.” In this case, Noe “was classified as a level three sex offender in January, 2007. In the six years following his final classification, Noe lived in the community without any further sexual reoffenses. In January, 2013, he filed a request for downward reclassification and was granted a hearing before the board…. [A] majority of the [panel of examiners] concluded by a preponderance of the evidence that Noe ‘remains a high risk of re-offense.’…. Accordingly, Noe’s request for reclassification was denied…. Noe sought judicial review of the board’s decision in the Superior Court, “includ[ing] claims for declaratory relief under G.L. c.231A, §1, challenging the board’s procedures for failing to provide a right to counsel in the reclassification hearing and [for] placing the burden of proof in reclassification on the offender by clear and convincing evidence.” The Superior Court judge vacated the board’s denial of Noe’s request for reclassification. The judge “declared that the board’s regulations, which place the burden of proof on the offender seeking reclassification, violate the offender’s right to due process under the Fourteenth Amendment … and art. 12 of the Massachusetts Declaration of Rights. The judge further declared that the board’s failure, through its regulations and procedures, to provide counsel for indigent offenders who seek reclassification violates G.L. c.6, §178L(3). The board appealed.”

In its decision, the SJC affirmed the ruling “of the Superior Court judge vacating the board’s reclassification of Noe as a level three sex offender.” Regarding the constitutionality of the standard and burden of proof that were applied in Noe’s reclassification proceedings, the SJC employed “the familiar test outlined in Mathewsv. Eldridge, 424 U.S. 319 (1976), which requires [the balancing of] ‘the private interests affected, the risk of erroneous deprivation, the probable value of additional or substitute safeguards, and the governmental interests involved.’ Doe No. 380316, 473 Mass. at 311, quoting Doe No. 972, 428 Mass. [90,] 100 [1998].” The Court concluded that its “balancing of the Mathewsfactors … results in a burden of production being imposed on the offender in downward reclassification proceedings to provide some evidence of changed circumstances, but requires the board to prove by clear and convincing evidence that the offender is properly classified once such evidence is provided.”

The SJC also held “that the board’s regulations violate G.L. c.6, §178L(3), insofar as they fail to provide the right to counsel for indigent offenders seeking reclassification.” The Court noted that the statute “provides sex offenders with the right to counsel at the initial classification hearing, at board-initiated upward reclassification hearings, and at a termination hearing.” Moreover, “G.L. c.6, §178M, extends that right to offenders who seek judicial review in the Superior Court of a classification or reclassification decision by the board.” “Given that the … law provides the right to counsel at each of these other hearings, it makes little sense to … depriv[e] indigent offenders of the right to counsel exclusively in the context of offender-initiated reclassification hearings, particularly in the absence of any statutory language to that effect.”

A conviction for a sex offense has significant collateral consequences that may impact a person’s ability to obtain employment and housing, among other things. If you or a loved one is facing a sex offense charge, or has been convicted of a sex offense and is facing classification proceedings or re-classification, you will need the assistance of a skilled defense attorney to make sure that you benefit from the changes in the case law. Attorney Daniel Cappetta handles criminal defense of all sexual assault charges, and knows several attorneys experienced in the field of sex offender classification litigation – call him for a free consultation today.