Doe v. Sex Offender Registry Board

8 Mass. L. Rptr. 147
CourtMassachusetts Superior Court
DecidedDecember 22, 1997
DocketNo. 972462
StatusPublished

This text of 8 Mass. L. Rptr. 147 (Doe v. Sex Offender Registry Board) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doe v. Sex Offender Registry Board, 8 Mass. L. Rptr. 147 (Mass. Ct. App. 1997).

Opinion

Botsford, J.

The plaintiff John Doe is a sex offender subject to the Sex Offender Registration and Community Notification Act, G.L.c. 6, §§1780-1780 (theAct).1 He was convicted in 1984 of rape of a child, indecent assault and battery of a child under fourteen and unnatural and lascivious acts. All of the crimes were committed against his minor daughter. The plaintiff received a sentence of 12 years. There is conflicting information provided as to when the plaintiff was ultimately released from prison, but it was no later than August 1995.

In 1996, pursuant to G.L.c. 6, §178E (§178E), the plaintiff registered with the police department in the town where he lives. Pursuant to G.L.c. 6, §§1781 and 178J (§§1781 and 178J),2 the Sex Offender Registry Board (the Board) has made sex offender registration information about the plaintiff available to the public through police departments and through the Criminal History Systems Board.3

The board has classified the plaintiff as a high risk or Level Three offender pursuant to G.L.c. 6, §178K (§178K). However, community dissemination of sex offender information concerning Doe under §178K(2)(c) has been stayed pending a hearing in this case on the plaintiffs challenge to his classification. See G.L.c. 6, §178M (§178M). See also Poe v. Attorney General, C.A. No. 96-6327-B, 6 Mass. L. Rptr. 313 (Suffolk Superior Court, December 16, 1996).4

On November 17, 1997, the Supreme Judicial Court decided Doe v. Attorney General, 426 Mass. 136 (1997) (Doe No. 3). In response to that case, the plaintiff here seeks a preliminary injunction which would bar the Board from (a) requiring the plaintiff to continue registering under the Act, and (b) disseminating any sex offender registration information concerning the plaintiff.5 The Board opposes the injunction. For the reasons summarized below, the plaintiffs request for injunctive relief is allowed in part and denied in part.

Discussion

I. Preliminary Injunction

In order to obtain a preliminary injunction, a moving party must “show that, without the requested relief, it may suffer a loss of rights that cannot be vindicated should it prevail after a full hearing on the merits." Planned Parenthood League of Massachusetts, Inc. v. Operation Rescue, 406 Mass. 701, 710 (1990) (citation omitted). “What matters as to each parly is not the raw amount of irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of the party’s chance of success on the merits." Packaging Indus. Group v. Cheney, 380 Mass. 609, 617 (1980). In evaluating the motion, the court must “balance the risk of irreparable harm to the plaintiff and defendant ‘in light of [each] party’s chance of success on the merits’ at trial,” Planned Parenthood, 406 Mass. at 710 (quoting Packaging Indus.Group, 380 Mass. at 617). “Only where the balance between these risks cuts in favor of the moving party may a preliminary injunction properly issue.” Id. (quoting Packaging Indus Group., 380 Mass. at 617).

II. The Merits

Given that the plaintiffs request for injunctive relief is based on the Supreme Judicial Court’s decision in Doe No. 3, it is useful to start with that case. Doe No. 3 concerned a challenge to certain provisions of the Act by a person convicted of a single count of indecent assault and battery6 who was classified as a low level or Level One sex offender. The Doe No. 3 plaintiffs argument was that as a Level One offender, he could not constitutionally be required to register under the Act, and information concerning him could not constitutionally be provided to any person on request under §§1781 and 178J, unless and until a determination were made, after the plaintiff was given the opportunity for a hearing, that he was a threat to children or other vulnerable persons the Act was designed to protect. Doe No. 3, 426 Mass. at 139-40, 146. The court in Doe No. 3 agreed. It concluded that the plaintiff there had a constitutionally protected7 liberty and property interest — arising in part from the potential harm to his earning capacity and reputation, and the stigma associated with being “branded” as a sex offender — which was implicated by the registration and basic information dissemination provisions of §§178E, 1781 and 178J of the Act. Id. at 142-44. And given the existence of this interest, the plaintiff was entitled, as a matter of due process, to the opportunity for a hearing

... at which the evidence might show that he is not a threat to children and other vulnerable persons whom the [A]ct seeks to protect and that disclosure is not needed when balanced against the public need to which the . . . [A]ct responded."

Id. at 146.

The question central to the request for injunctive relief of the plaintiff in this case is to what extent the court’s decision in Doe No. 3 applies to him. The plaintiff himself appears to take the position that there are no distinctions of substance between him (or indeed any sex offender) and the plaintiff in Doe No. 3, and that he (as well as every other sex offender) is entitled to exactly the same relief from the provisions of theAct as the plaintiff there. The Board, on the other hand, argues that there are several key factual differences between the two cases — e.g., the far more serious offense of rape of a child involved here, the substantial incarcerated sentence served by this plaintiff, the short amount of time that has passed since he was released from prison — which suffice to ensure that Doe No. 3 does not entitle the plaintiff in this case to any additional relief. According to the Board, the nature of the plaintiffs convictions and the Board’s determination that he should be classified as a Level Three sex offender, demonstrate that he should [149]*149remain subject to both the registration and public disclosure provisions of the Act.

I cannot agree fully with either argument. Contrary to the Board’s suggestion, it seems clear from Doe No. 3 that the liberty and privacy interest which the court identified as belonging to the plaintiff in that case also belong to all persons who qualify as “sex offenders” under the Act. See Doe No. 3, 426 Mass. at 144:

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 statutoiy branding of him as a public danger, a sex offender. That statutoiy classification implicitly announces that, in the eyes of the State, the plaintiff presents a risk of committing a sex offense.

This same “combination of... circumstances” applies with equal force to the plaintiff in this case and indeed to every sex offender required by the Act to register. The factual differences between the plaintiff here and the plaintiff in Doe No. 3

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Cite This Page — Counsel Stack

Bluebook (online)
8 Mass. L. Rptr. 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doe-v-sex-offender-registry-board-masssuperct-1997.