John Doe, Sex Offender Registry Board No. 526599 v. Sex Offender Registry Board.

• Court: Massachusetts Appeals Court
• Decided: March 6, 2024
• Docket: 22-P-1062
• Status: Unpublished

Opinion

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

22-P-1062

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 526599

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this G. L. c. 30A appeal from a Sex Offender Registry

Board (SORB or the board) classification proceeding, the

petitioner, John Doe No. 526599, argues that the board erred in

classifying him as a Level 1 sex offender. Before the hearing

examiner, the petitioner argued that his index offense -- a

conviction in United States District Court for the District of

Rhode Island for violation of 18 U.S.C. § 2421 (transportation

of a person for purposes of illegal sexual activity) -- did not

qualify as a "sex offense" for the purposes of the Massachusetts

sex offender registry statute, G. L. c. 6, § 178C. On appeal to

this court, the petitioner's argument has shifted somewhat: he

contends that in the hearing examiner's decision, the hearing

examiner failed to identify a Massachusetts sex offense that was

a "like violation," Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 615-616 (2010) (Doe

No. 151564), to the petitioner's Federal conviction, and thus

that the board lacks "jurisdiction" over the petitioner.

We are not persuaded. General Laws c. 6, § 178C, defines

"sex offense" in detail; a "sex offense" is any one of a long

list of Massachusetts crimes, but also includes "a like

violation of the laws of . . . the United States." Id. There

is no question that the petitioner's Federal offense is a "like

violation" to the Massachusetts crime of "human trafficking,"

G. L. c. 265, § 50, which is listed as a "sex offense" in

§ 178C. 18 U.S.C. § 2421 punishes (1) knowingly,

(2) transporting any individual, (3) in interstate or foreign

commerce, (4) with intent that such individual engage in

prostitution, or in any sexual activity for which any person can

be charged with a criminal offense. Similarly, the elements of

c. 265, § 50, include (1) knowingly, (2) transporting (among

other statutorily enumerated means), (3) another person, (4) to

engage in commercial sexual activity. See Commonwealth v. Fan,

490 Mass. 433, 448 (2022). The offenses are thus "like

violations," and on this record we can decide the "like

violation" question as a matter of law. See Doe No. 151564, 456

Mass. at 615-616 ("A 'like violation' is a conviction in another

jurisdiction of an offense of which the elements are the same or

nearly the same as an offense requiring registration in

2 Massachusetts. The elements of the offense in another

jurisdiction need not be precisely the same as the elements of a

Massachusetts sex offense in order for it to constitute a 'like

violation'"); Doe, Sex Offender Registry Bd. No. 36870 v. Sex

Offender Registry Bd., 96 Mass. App. Ct. 246, 251-252 (2019).

Indeed, the petitioner concedes that his crime is a "like

violation" to the Massachusetts human trafficking crime.

The petitioner argues, however, that in deciding that the

petitioner had committed a "like violation," the hearing

examiner did not cite c. 265, § 50, and accordingly, that we may

not rely upon c. 265, § 50 as the "like violation" to affirm the

board's classification. And, the petitioner urges, the statute

that the hearing examiner did rely upon as a "like violation,"

G. L. c. 272, § 2, does not qualify as a like violation because

the elements of c. 272, § 2 are materially different than those

of 18 U.S.C. § 2421. The petitioner accordingly argues that the

board failed to establish its "jurisdiction," and that the

proceedings must be dismissed.

We disagree. As indicated, there is no question that, as a

result of his Federal conviction, the petitioner committed a

like violation to G. L. c. 265, § 50, and is therefore a "sex

offender" under § 178C. The petitioner works in Massachusetts

and because he meets the definition of a sex offender, is

required to register with the board. 803 Code Mass. Regs.

3 § 1.05(1) (2016). The board thus has "jurisdiction" -- that is,

the power to act -- with respect to the petitioner. Under the

circumstances, this court is not obliged to dismiss these

proceedings even assuming the hearing examiner, in his decision,

identified an inapt Massachusetts statute as the "like

violation." 1 The "law cares not for trifles," Wisconsin Dep't of

Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 231 (1992)

(quotation omitted), nor do we rest decisions on grounds that

lack in substance. See A. Doykos & T. Pappas, Inc. v.

Leventhal, 290 Mass. 375, 376 (1935) ("the law does not deal

1 The petitioner invokes the general principle that a reviewing court may not affirm an agency's action based upon a ground that was not advanced by the agency. We do not question the general principle, but we deem it inapplicable in the particular circumstances, where we can decide the question as a matter of law (indeed, it is conceded), and where a remand would serve no practical purpose. United Food Corp. v. Alcoholic Beverages Control Comm'n, 375 Mass. 238, 245 (1978) (where "there is no real doubt that the [agency] upon a remand would [reach same result]" such "that remand would be merely a waste of time," the court may affirm the agency).

4 with trivialities when no substantial right is involved. De

minimis non curat lex").

Judgment affirmed.

By the Court (Englander, Hand & Brennan, JJ. 2),

Assistant Clerk

Entered: March 6, 2024.

2 The panelists are listed in order of seniority.