NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-386
JANE DOE, SEX OFFENDER REGISTRY BOARD NO. 300581
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Jane Doe, appeals from a Superior Court
summary judgment in favor of the defendant, the Sex Offender
Registry Board (SORB), on Doe's complaint seeking declaratory
and injunctive relief that SORB's regulations are arbitrary and
capricious as applied to her and therefore violate her
constitutional right to due process of law. Doe argues that a
genuine issue of material fact is shown by the affidavit of her
expert averring that the SORB regulations "as applied to females
convicted of sexual offenses, including . . . Doe, are not
consistent with the empirical literature and do not reflect best
practices for risk assessment for this population." Because
Doe's expert affidavit does not set forth any facts calling into question how the SORB regulations were applied to Doe
individually, as opposed to female offenders as a group, it does
not present a dispute of fact that is material in an as-applied
challenge, and thus we affirm the judgment.
Background. In August 2010, Doe pleaded guilty to two
counts of indecent assault and battery on children under
fourteen. The convictions were based on an incident in which
Doe, then twenty years old, forced a twelve year old boy to put
his penis into her "butt," forced the head of a different twelve
year old boy toward her genitals for cunnilingus, and asked one
of the boys to engage in sex acts with an eight year old girl.
At sentencing, the judge considered an evaluation in aid of
sentencing of Doe by forensic psychologist Dr. Charlotte Denton.
After multiple hearings, SORB in 2018 classified Doe as a
level two sex offender, based on a finding by clear and
convincing evidence that her risk of reoffense was moderate, her
dangerousness was moderate, and a public safety interest was
served by Internet publication of her registry information. See
G. L. c. 6, § 178K (2) (b). In making that classification, the
hearing examiner applied SORB's regulations, 803 Code Mass.
Regs. § 1.33 (2016), which recognize that the rate of reoffense
among female sex offenders is low, and as a result female sex
2 offenders are entitled to "mitigating weight."1 The hearing
examiner considered Dr. Denton's aid in sentencing evaluation
and the testimony of Doe's expert, clinical psychologist Dr.
Frederick Winsmann, about female sex offenders' recidivism
rates. In addition, the hearing examiner considered two studies
submitted by Doe dated 2005 and 2007 on recidivism in female sex
offenders.2 The hearing examiner concluded that the studies
support a low risk of reoffense for female sex offenders
generally, but they also point to several risk-aggravating
factors present here. Unlike most female sex offenders, Doe
committed her sex offenses alone rather than with a male
accomplice. Other risk-aggravating factors recognized by those
studies include that Doe was victimized in childhood, had
difficulties maintaining intimate relationships, and had
problems with mental health and substance use.
1 As to the factors listed in 803 Code Mass. Regs. § 1.33, the hearing examiner gave maximum weight to high-risk factor 3 (adult offender with child victim), and also found elevated risk based on factors 7 (relationship between offender and victim), 21 (diverse victim type), and 22 (number of victims). Among the other factors that the hearing examiner considered to be risk- elevating were factors 9 (alcohol and substance use) and 13 (noncompliance with community supervision). Among the factors that the hearing examiner considered risk-mitigating were factors 28 (supervision by probation), 29 (offense-free time in the community), and 33 (home situation and support systems).
2 Those two studies were discussed by the court in Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 603, 605 (2013).
3 Doe filed her Superior Court complaint seeking judicial
review of her classification as a level two sex offender, G. L.
c. 30A, § 14, and a separate claim for declaratory and
injunctive relief challenging the SORB regulations as applied to
her, G. L. c. 231A, §§ 1 & 2. Doe moved for judgment on the
pleadings on the chapter 30A claim, arguing that the level two
classification was not supported by substantial evidence and
that the SORB regulations "are invalid as-applied to Doe." A
judge denied the motion, concluding that the SORB regulations
were not arbitrary and capricious as applied to Doe, because the
hearing examiner considered evidence presented by Doe on the
subject of recidivism in female sex offenders, including Dr.
Winsmann's testimony and the two scholarly articles. G. L.
c. 6, § 178K (1) (l) ("any materials submitted by the sex
offender"); 803 Code Mass. Regs. § 1.33(37) ("any information
that [SORB] deems useful"). The judge ordered that judgment
enter affirming SORB's determination that Doe is a level two sex
offender.
On the remaining counts for declaratory and injunctive
relief, SORB moved for summary judgment, supported by an
affidavit of clinical psychologist Dr. Alexandria M. Weida. Doe
opposed summary judgment, supported by an affidavit of forensic
psychologist Dr. Kaitlyn Peretti. Another Superior Court judge
4 granted summary judgment in favor of SORB. That judge noted
that in denying Doe's motion for judgment on the pleadings, the
first judge had already considered and rejected Doe's argument
that SORB's regulations were invalid as applied to Doe because
they were not based on a scientific understanding of recidivism
rates of female sex offenders. The second judge then concluded
that, were she to consider Doe's as-applied challenge anew, it
would not succeed, because the hearing examiner "performed a
careful and individualized assessment of Doe," applying the SORB
regulations that treated as mitigating Doe's status as a female
sex offender and considering the expert testimony and scholarly
articles submitted by Doe. Final judgment entered for SORB.
Doe now appeals from the summary judgment on her claims for
declaratory and injunctive relief.3
Discussion. Summary judgment is appropriate if, as shown
by materials comprised of the pleadings, discovery responses,
and affidavits, "there is no genuine issue of material fact."
Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). See
DuPont v.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-386
JANE DOE, SEX OFFENDER REGISTRY BOARD NO. 300581
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Jane Doe, appeals from a Superior Court
summary judgment in favor of the defendant, the Sex Offender
Registry Board (SORB), on Doe's complaint seeking declaratory
and injunctive relief that SORB's regulations are arbitrary and
capricious as applied to her and therefore violate her
constitutional right to due process of law. Doe argues that a
genuine issue of material fact is shown by the affidavit of her
expert averring that the SORB regulations "as applied to females
convicted of sexual offenses, including . . . Doe, are not
consistent with the empirical literature and do not reflect best
practices for risk assessment for this population." Because
Doe's expert affidavit does not set forth any facts calling into question how the SORB regulations were applied to Doe
individually, as opposed to female offenders as a group, it does
not present a dispute of fact that is material in an as-applied
challenge, and thus we affirm the judgment.
Background. In August 2010, Doe pleaded guilty to two
counts of indecent assault and battery on children under
fourteen. The convictions were based on an incident in which
Doe, then twenty years old, forced a twelve year old boy to put
his penis into her "butt," forced the head of a different twelve
year old boy toward her genitals for cunnilingus, and asked one
of the boys to engage in sex acts with an eight year old girl.
At sentencing, the judge considered an evaluation in aid of
sentencing of Doe by forensic psychologist Dr. Charlotte Denton.
After multiple hearings, SORB in 2018 classified Doe as a
level two sex offender, based on a finding by clear and
convincing evidence that her risk of reoffense was moderate, her
dangerousness was moderate, and a public safety interest was
served by Internet publication of her registry information. See
G. L. c. 6, § 178K (2) (b). In making that classification, the
hearing examiner applied SORB's regulations, 803 Code Mass.
Regs. § 1.33 (2016), which recognize that the rate of reoffense
among female sex offenders is low, and as a result female sex
2 offenders are entitled to "mitigating weight."1 The hearing
examiner considered Dr. Denton's aid in sentencing evaluation
and the testimony of Doe's expert, clinical psychologist Dr.
Frederick Winsmann, about female sex offenders' recidivism
rates. In addition, the hearing examiner considered two studies
submitted by Doe dated 2005 and 2007 on recidivism in female sex
offenders.2 The hearing examiner concluded that the studies
support a low risk of reoffense for female sex offenders
generally, but they also point to several risk-aggravating
factors present here. Unlike most female sex offenders, Doe
committed her sex offenses alone rather than with a male
accomplice. Other risk-aggravating factors recognized by those
studies include that Doe was victimized in childhood, had
difficulties maintaining intimate relationships, and had
problems with mental health and substance use.
1 As to the factors listed in 803 Code Mass. Regs. § 1.33, the hearing examiner gave maximum weight to high-risk factor 3 (adult offender with child victim), and also found elevated risk based on factors 7 (relationship between offender and victim), 21 (diverse victim type), and 22 (number of victims). Among the other factors that the hearing examiner considered to be risk- elevating were factors 9 (alcohol and substance use) and 13 (noncompliance with community supervision). Among the factors that the hearing examiner considered risk-mitigating were factors 28 (supervision by probation), 29 (offense-free time in the community), and 33 (home situation and support systems).
2 Those two studies were discussed by the court in Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 603, 605 (2013).
3 Doe filed her Superior Court complaint seeking judicial
review of her classification as a level two sex offender, G. L.
c. 30A, § 14, and a separate claim for declaratory and
injunctive relief challenging the SORB regulations as applied to
her, G. L. c. 231A, §§ 1 & 2. Doe moved for judgment on the
pleadings on the chapter 30A claim, arguing that the level two
classification was not supported by substantial evidence and
that the SORB regulations "are invalid as-applied to Doe." A
judge denied the motion, concluding that the SORB regulations
were not arbitrary and capricious as applied to Doe, because the
hearing examiner considered evidence presented by Doe on the
subject of recidivism in female sex offenders, including Dr.
Winsmann's testimony and the two scholarly articles. G. L.
c. 6, § 178K (1) (l) ("any materials submitted by the sex
offender"); 803 Code Mass. Regs. § 1.33(37) ("any information
that [SORB] deems useful"). The judge ordered that judgment
enter affirming SORB's determination that Doe is a level two sex
offender.
On the remaining counts for declaratory and injunctive
relief, SORB moved for summary judgment, supported by an
affidavit of clinical psychologist Dr. Alexandria M. Weida. Doe
opposed summary judgment, supported by an affidavit of forensic
psychologist Dr. Kaitlyn Peretti. Another Superior Court judge
4 granted summary judgment in favor of SORB. That judge noted
that in denying Doe's motion for judgment on the pleadings, the
first judge had already considered and rejected Doe's argument
that SORB's regulations were invalid as applied to Doe because
they were not based on a scientific understanding of recidivism
rates of female sex offenders. The second judge then concluded
that, were she to consider Doe's as-applied challenge anew, it
would not succeed, because the hearing examiner "performed a
careful and individualized assessment of Doe," applying the SORB
regulations that treated as mitigating Doe's status as a female
sex offender and considering the expert testimony and scholarly
articles submitted by Doe. Final judgment entered for SORB.
Doe now appeals from the summary judgment on her claims for
declaratory and injunctive relief.3
Discussion. Summary judgment is appropriate if, as shown
by materials comprised of the pleadings, discovery responses,
and affidavits, "there is no genuine issue of material fact."
Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). See
DuPont v. Commissioner of Correction, 448 Mass. 389, 397 (2007).
In reviewing the allowance of summary judgment, we view the
evidence in the light most favorable to Doe, the nonmoving
3 Doe does not appeal from the judgment on the pleadings in favor of SORB on her G. L. c. 30A, § 14 claim for judicial review of her classification as a level two sex offender.
5 party, and determine whether SORB is entitled to judgment as a
matter of law. See Edwards v. Commonwealth, 488 Mass. 555, 562
(2021). Because Doe as plaintiff has the burden of proof at
trial, SORB is entitled to summary judgment if it demonstrates
by reference to the rule 56 (c) materials, "unmet by
countervailing materials," that Doe has no reasonable
expectation of proving an essential element of her case.
DuPont, supra at 397, quoting Kourouvacilis v. General Motors
Corp., 410 Mass. 706, 716 (1991). Our review is de novo,
without deference to the motion judge's reasoning. See Doe v.
Massachusetts Parole Bd., 82 Mass. App. Ct. 851, 857 (2012).
Consideration of administrative record on summary judgment.
Doe argues that in granting summary judgment to SORB, the second
judge improperly conflated Doe's claim that the SORB regulations
were invalid as applied to her with her claim for judicial
review of her sex offender classification.4 Doe contends that in
ruling on her as-applied challenge to the constitutionality of
the SORB regulations, the second judge improperly "refer[red]
back to the SORB record" which was "largely stale," and instead
the parties should have conducted further discovery beyond the
administrative record so that a "separate adjudication" could be
4 We pass over the question whether, in denying Doe's motion for judgment on the pleadings, the first judge had already rejected Doe's as-applied challenge to the SORB regulations.
6 made on the counts for declaratory and injunctive relief. We
are not persuaded.
The administrative record was entered as SORB's answer on
the docket of the Superior Court and thus was among the
"pleadings," Mass. R. Civ. P. 56 (c), comprising the summary
judgment materials. In closing argument at the administrative
hearing, Doe's counsel argued that although the SORB regulations
had been amended in 2016 to consider a female sex offender's
gender in assessing her risk of reoffense, the amended
regulations failed to "differentiate females from males" and
were "still inconsistent with the research."
In those circumstances, Doe's challenge to the SORB
regulations as applied to her was "closely intertwined" with the
evidence in the administrative record supporting her
classification as a level two sex offender. Doe, Sex Offender
Registry Bd. No. 339940 v. Sex Offender Registry Bd., 488 Mass.
15, 19-20 (2021) (plaintiff raised as-applied challenge to
statutory registration requirement before SORB and in Superior
Court chapter 30A action). Contrast Doe, Sex Offender Registry
Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 630
(2011) (facial challenge to SORB's classification regulations
must be asserted through claim for declaratory judgment).
Simply put, the hearing examiner's decision classifying Doe, and
7 the administrative record materials to which it referred, were
the central evidence of how SORB's regulations had been applied
to Doe, and that was the target of Doe's declaratory judgment
claim. It may well be questioned whether such a claim (as
opposed to a chapter 30A or similar claim) is an appropriate way
to challenge how a regulation has been applied to a particular
person. See Frawley v. Police Comm'r of Cambridge, 473 Mass.
716, 724-726 (2016). Assuming arguendo that it is, in ruling on
the summary judgment motion on Doe's claims for declaratory and
injunctive relief, the second judge properly considered the
administrative record.
Absence of genuine issue of material fact. Doe argues that
the second judge erred in granting summary judgment, asserting
that a genuine dispute of material fact exists whether SORB's
regulations may constitutionally be applied to Doe because they
do not adequately account for differences in recidivism between
male and female sex offenders. From the summary judgment record
before us, we conclude that Doe did not set forth facts that
raised a genuine issue of material fact whether SORB's
regulations are unconstitutional as they were applied to her.
In Doe, Sex Offender Registry Bd. No. 205614 v. Sex
Offender Registry Bd., 466 Mass. 594, 606 (2013) (Doe No.
205614), the Supreme Judicial Court held that the then-current
8 SORB regulations, which had been promulgated in 2002, "developed
as they were from studies of male offenders, could not predict
accurately the recidivism risk of a female offender, and . . .
such risk could not be evaluated without examining the effect of
gender." The court cautioned that "it is not necessarily the
case that all risk factors contained in the guidelines are
categorically inapplicable to females," but the research before
the court "strongly indicates that the factors have a weaker
predictive value for females." Id. at 606-607. In 2016 in
response to that case, SORB promulgated the regulations that
were applied here.
On summary judgment, Doe's expert, Dr. Peretti, averred
that because of the "lack of empirical support" for assessment
practices for female sex offenders, it is inappropriate to apply
to them the assessment practices for male sex offenders. Dr.
Peretti opined that the SORB regulations "as applied to females
convicted of sexual offenses, including Jane Doe, are not
consistent with the empirical literature and do not reflect best
practices for risk assessment for this population."
Absent from Dr. Peretti's affidavit was any discussion of
how the SORB regulations were applied to Doe individually, i.e.,
as apart from other female sex offenders. The affidavit did not
discuss whether the hearing examiner's having accorded
9 mitigating weight to Doe's status as a female offender, 803 Code
Mass. Regs. § 1.33, and having considered expert testimony and
scholarly articles presented by Doe about recidivism in female
sex offenders, G. L. c. 6, § 178K (1) (l); 803 Code Mass. Regs.
§ 1.33(37), sufficiently tailored the SORB regulations to Doe.
See 803 Code Mass. Regs. § 1.33 (final classification is based
on "a qualitative analysis of the individual sex offender's
history and personal circumstances"). We conclude that Doe did
not demonstrate a genuine issue of material fact by proffering
her expert's opinion that regulations based on scientific
studies of male sex offenders cannot be applied to females
generally, without discussion of how the SORB regulations were
applied to Doe in this case.
Dr. Peretti's opinion that, as applied to female sex
offenders generally, the SORB regulations were inconsistent with
research and best practices did not amount to "specific facts
showing that there is a genuine issue for trial," Mass.
R. Civ. P. 56 (e), 365 Mass. 824 (1974), on a challenge to the
regulations as applied to Doe. As for Doe's claim that she
should have been permitted to develop a further record in
discovery, it is unavailing. Doe did not file an affidavit
invoking Mass. R. Civ. P. 56 (f), 365 Mass. 824 (1974), and
explaining how she anticipated challenging the regulations as
10 applied to her. See First Nat'l Bank of Boston v. Slade, 379
Mass. 243, 244-245 (1979). See also G. L. c. 30A, § 14 (6).
In DuPont, 448 Mass. at 402, the plaintiff, a male inmate,
argued that Department of Correction (DOC) regulations imposing
disciplinary confinement on the most predatory and dangerous
inmates were unconstitutional as applied to him because those
regulations had not been applied to any female inmates. Based
on the summary judgment record including an affidavit of the DOC
commissioner that a similar disciplinary unit was not presently
necessary at the women's prison and, should the need arise, one
could be established there, id. at 397, the Supreme Judicial
Court held that the plaintiff had "no reasonable expectation of
establishing that he and female prisoners are similarly
situated," id. at 402, and thus summary judgment for DOC was
appropriate.
We conclude that Doe had no reasonable expectation of
proving that the SORB regulations, as amended in 2016 to
consider the relevance of gender in assessing the risk of
11 reoffense, and as applied to Doe by the hearing examiner in
2018, are unconstitutional as applied to her.
Judgment entered August 16, 2022, affirmed.
By the Court (Sacks, Englander & Grant, JJ.5),
Clerk
Entered: November 8, 2024.
5 The panelists are listed in order of seniority.