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SJC-12160
KRISTI KOE1 vs. COMMISSIONER OF PROBATION & another.2
Suffolk. May 1, 2017. - September 27, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.3
Sex Offender. Practice, Criminal, Record. Due Process of Law, Sex offender, Retroactive application of statute. Statute, Retroactive application.
Civil action commenced in the Supreme Judicial Court for the county of Suffolk on March 18, 2016.
The case was reported by Hines, J.
Beth Eisenberg (Catherine J. Hinton also present) for the plaintiff. Susanne G. Reardon, Assistant Attorney General, for the defendants.
1 A pseudonym. 2 Acting director of the Department of Department of Criminal Justice Information Services. 3 Justice Hines participated in the deliberation on this case prior to her retirement. 2
CYPHER, J. In this case, we confront part of a statute
that retroactively prohibits the plaintiff from ever sealing the
record of her sex offenses because she was once classified as a
level two sex offender, even though the Sex Offender Registry
Board (SORB) has determined that the plaintiff no longer poses
any cognizable degree of dangerousness or risk of reoffending,
no longer believes that she should be classified as a level two
sex offender, and has relieved her of the obligation to register
as a sex offender. The plaintiff argues that, as a applied to
her, the retroactive statutory prohibition on sealing sex
offenses violates her due process rights under the Massachusetts
Declaration of Rights. Because we agree with the plaintiff that
the challenged portion of this statute, as applied to her, is
retroactive and unreasonable, we conclude that it cannot be
enforced against her.
Background. We summarize the following facts from findings
made by a Superior Court judge and by a SORB hearing panel, as
well as from other record materials.
1. Underlying offense and classification. In 1995, Kristi
Koe was found guilty by a Superior Court jury of one count of
rape and abuse of a child, G. L. c. 265, § 23, and one count of
indecent assault and battery on a child under age fourteen,
G. L. c. 265, § 13B. The offenses occurred in 1990, when Koe
was twenty-two years old. The victim was a twelve year old girl 3
who was then living with Koe and Koe's sister. Over a ten-day
period, Koe engaged in various sexual acts with the victim.
As a result of her convictions, SORB recommended, and Koe
accepted, a classification as a level two sex offender, pursuant
to G. L. c. 6, §§ 178C-178Q, and applicable regulations. Her
obligation to register as such commenced in 2003.4
2. Reclassification hearing. In 2013, Koe petitioned a
SORB hearing panel for reclassification and relief from the
obligation to register. In its decision, the hearing panel
considered the following evidence, which is incorporated into
the record before this court.
Koe herself was sexually abused as a child. At the time of
her offenses in 1990, Koe suffered from drug and alcohol
addiction, along with untreated head injuries and mental health
issues. However, the 2003 death of her mother was a turning
point for Koe. She promised her mother "she would turn her life
around."
Koe accepted responsibility for her sex offenses and
expressed remorse over the harm that she had inflicted upon the
victim. The events in 1990 were her only instance of sexual
4 The sex offender registry law, first enacted in 1996, see St. 1996, c. 239, § 1, and rewritten in 1999, see St. 1999, c. 74, § 2, may apply to persons convicted before its enactment. See Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 785 (2008) (Doe No. 8725). But see discussion at note 5, infra. 4
misconduct. Koe attended sex offender therapy in 1998 and again
from 2010 to 2012, and completed a relapse prevention plan. One
psychologist opined that Koe has "no deviant interests in
children of any age" and does not otherwise fit the
psychological profile of someone likely to reoffend. The
hearing panel credited research showing an "extremely low"
reoffense rate among female sex offenders.
Koe has been sober since 2009, having completed several
addiction and recovery programs. She has received "extensive
services" from mental health and vocational rehabilitation
providers. She has participated in various support group
programs, has a stable residence at a women's shelter, and has
positive social supports.
Ultimately, the hearing panel concluded that Koe
"present[ed] no cognizable risk to reoffend and no cognizable
degree of dangerousness." However, the panel determined that,
because Koe had been convicted of a "sexually violent offense,"
G. L. c. 6, § 178C, she was not eligible, as a matter of law,
for relief from the obligation to register, see G. L. c. 6,
§ 178K (2) (d). Accordingly, it ordered her to register as a
level one sex offender.
3. Superior Court proceedings. Koe appealed from the
hearing panel's order to register to the Superior Court pursuant
to G. L. c. 30A. In April, 2014, Koe obtained a preliminary 5
injunction ordering SORB to remove her from the sex offender
registry and enjoining SORB from requiring her to register. In
April, 2015, a Superior Court judge accepted SORB's conclusions
regarding Koe's lack of dangerousness and entered an order
granting Koe permanent relief.5 SORB did not appeal from that
ruling, and we take no position on it.
4. Petition to seal. Soon after being relieved of the
obligation to register as a sex offender, Koe filed a petition
with the Commissioner of Probation (commissioner) to seal her
criminal record, pursuant to G. L. c. 276, § 100A, and related
provisions. Section 100A contains a particular subsection that
governs the sealing of sex offenses. It provides:
"Sex offenses, as defined in [G. L. c. 6, § 178C], shall not be eligible for sealing for [fifteen] years following their disposition, including termination of supervision, probation or any period of incarceration, or for so long as the offender is under a duty to register in the commonwealth or in any other state where the offender
5 The Superior Court judge based his decision on this court's opinion in Doe No. 8725. In that case, we examined whether the Sex Offender Registry Board (SORB) could retroactively apply the 1999 amendments to the sex offender registry law to subject the petitioner to mandatory lifetime registration based on the petitioner's preenactment (1979) conviction. Doe No. 8725, 450 Mass. at 781, 785-786. We held that such a retroactive application of the law was unreasonable, and therefore did not comport with due process, absent a hearing to assess the petitioner's level of dangerousness and risk of reoffense. Id. at 793. Based on that holding, the judge in Koe's case concluded that because SORB had already determined that Koe presented no level of dangerousness and no risk of reoffense, SORB could not, within the bounds of due process, impose the mandatory lifetime registration requirement upon her based upon a retroactive application of the registry law. 6
resides or would be under such a duty if residing in the commonwealth, whichever is longer; provided, however, that any sex offender who has at any time been classified as a level [two] or level [three] sex offender, pursuant to [G. L. c. 6, § 178K], shall not be eligible for sealing of sex offenses" (emphases added).
G. L. c. 276, § 100A (6). Under the criteria of this
subsection, Koe's sex offenses would be eligible for sealing
were it not for the final clause, which prohibits the sealing of
sex offenses by someone who has ever been classified as a level
two or level three sex offender. See id. Accordingly, in
September, 2015, the commissioner responded that Koe was
ineligible to seal her sex offenses because she was once
classified as a level two sex offender.
5. Procedural history. Koe challenged the commissioner's
response in March, 2016, by way of a complaint in the county
court seeking declaratory, injunctive, and extraordinary relief.
Without decision, the single justice reserved and reported the
case to the full court.
Discussion. Koe argues that § 100A, as applied to her, is
retroactive and unreasonable, and therefore unconstitutional.6
The defendants dispute that § 100A applies retroactively and
argue that, even if it does, it is constitutionally reasonable
6 She also argues that G. L. c. 276, § 100A, as applied to her, violates her substantive due process, procedural due process, and equal protection rights under the Federal and Massachusetts constitutions. Because our resolution of her retroactivity argument renders these claims moot, we do not reach them. 7
within the bounds of due process. Therefore, we must decide
whether § 100A applies retroactively to Koe and, if so, whether
its application to her is reasonable.
1. Retroactivity. Generally, a statute operates
retroactively when it "attaches new legal consequences to events
completed before its enactment." Moe v. Sex Offender Registry
Bd., 467 Mass. 598, 607 (2014), quoting Landgraf v. USI Film
Prods., 511 U.S. 244, 270 (1994). The defendants argue that
§ 100A (6) did not attach a new legal consequence to Koe's
classification as a level two offender because she was not
eligible to seal her sex offenses at the time it became
effective. This argument misunderstands our cases applying the
"new legal consequences" test.
For example, in the Moe case, we held that amendments to
the sex offender registration law were retroactive because they
attached a new legal consequence (Internet publication of a sex
offender's registry information) to events completed before the
date of enactment (SORB's final determination that the offender
should be given a level two classification). Moe, 467 Mass. at
609. Similarly, we held that earlier amendments to the
registration law were retroactive because they imposed mandatory
lifetime registration with SORB based on the petitioner's
preamendment conviction. Doe, Sex Offender Registry Bd. No. 8
8725 v. Sex Offender Registry Bd., 450 Mass. 780, 787 (2008)
(Doe No. 8725).
Section 100A (6) functions in a similar fashion with
respect to Koe. As applied to her, it attached a new legal
consequence (a permanent prohibition against the sealing of sex
offenses, effective in 2012) to an event that occurred nearly a
decade earlier (SORB's classification of her, in 2003, as a
level two sex offender). This consequence did not exist at the
time of Koe's classification in 2003. See G. L. c. 276, § 100A,
as amended through St. 1974, c. 525, and note 9, infra. The
defendants are correct that a prohibition against sealing is a
different consequence from the registration-related consequences
at issue in Moe and Doe No. 8725. But such a difference does
not change the fact that, in Moe, Doe No. 8725, and here, the
consequences at issue arise only from a retroactive application
of the statute to the petitioner.
The defendants' core argument -- that § 100A is not
retroactive as applied to Koe because, at the time it was
enacted, she was not yet eligible to seal her sex offenses --
amounts to an argument that we should apply the "vested
substantive rights" test for retroactivity rather than the "new
legal consequences" test. See Moe, 467 Mass. at 607-608. The
"vested substantive rights" test examines "the rights and
obligations of the parties as they existed immediately before 9
and after the effective date" of the challenged statute, and
deems the statute retroactive "only where vested substantive
rights of the parties have been adversely affected." Id.,
quoting McCarthy v. Sheriff of Suffolk County, 366 Mass. 779,
781 (1975). However, in Moe, supra at 609, we specifically
rejected this test as "conclusory." We remarked that "[t]he
impairment of a vested substantive right certainly qualifies as
a new legal consequence that would render a statute retroactive,
but it is not the only new legal consequence that would do so."
Id. at 608.
We see no reason now to reconsider our adoption of the "new
legal consequences" test. Accordingly, we conclude that § 100A
applies retroactively to Koe.7
2. Reasonableness. Having determined that § 100A, as
applied to Koe, operates retroactively, she bears the burden of
making a factual showing that the statute is unreasonable in its
application to her.8 See Doe No. 8725, 450 Mass. at 788. The
7 Although not expressly argued by the parties, there can be little doubt that the Legislature intended for the challenged portion of § 100A to apply retroactively, as it prohibits sealing by "any sex offender who has at any time been classified as a level [two] or level [three] sex offender" (emphasis added). G. L. c. 276, § 100A (6). See Moe v. Sex Offender Registry Bd., 467 Mass. 598, 609-610 (2014) (discussing legislative intent and retroactivity). 8 The challenged portion of § 100A explicitly incorporates components of the sex offender registration scheme, which we have said previously is "generally regulatory rather than 10
"principal inquiry" as to reasonableness asks "whether it is
equitable to apply the retroactive statute against the
plaintiff[]." Id., quoting American Mfrs. Mut. Ins. Co. v.
Commissioner of Ins., 374 Mass. 181, 191 (1978). See Moe, 467
Mass. at 611 (discussing "special risks" posed by retroactive
legislation and noting that justifications that satisfy due
process for prospective legislation may not do so for
retroactive legislation). To decide the question of
reasonableness, we consider three factors: (1) the nature of
the public interest which motivated the Legislature to enact the
statute; (2) the nature of the rights affected; and (3) the
extent or scope of the statutory effect or impact. Doe No.
8725, 450 Mass. at 788, quoting American Mfrs. Mut. Ins. Co.,
supra. Because Koe brings only an as-applied challenge to
§ 100A (6), we limit our review of the statute to the facts and
circumstances of her case.
With respect to the first factor, two major public
interests undergird § 100A: protecting public safety and
facilitating the rehabilitation of ex-offenders by enhancing
their employment prospects. See, e.g., Governor Patrick Signs
Strong Anti-Crime Package To Protect Public Safety, Expand Job
punitive." Doe No. 8725, 450 Mass. at 787-788 (discussing different standards for retroactive punitive laws as opposed to retroactive regulatory laws). The parties do not challenge this. 11
Opportunities, Press Release, Aug. 6, 2010 (collecting
statements of Governor, Lieutenant Governor, Senate president,
and House speaker). Subsection (6) of § 100A was adopted in
2010 as part of a broad overhaul of the Commonwealth's system
for regulating availability of criminal records. See generally
St. 2010, c. 256, §§ 128-130. This overhaul "recalibrate[d] the
balance between protecting public safety and facilitating the
reintegration of criminal defendants by removing barriers to
housing and employment." Commonwealth v. Pon, 469 Mass. 296,
307 (2014). The 2010 revisions expanded access to official
criminal records for employers, housing providers, and licensing
authorities. Id. at 303-304. This recognized, in part, that
such entities "have legitimate business reason[s] for wanting to
know prospective employees' or recipients' criminal histories"
(quotations omitted). Id. at 304. To facilitate the goal of
reintegration, however, the revisions contain certain procedural
protections for defendants seeking employment, while also
changing the automatic sealing provisions of § 100A and
expanding discretionary sealing under § 100C. Id. at 305-306.
These changes "strongly indicate[d] that the Legislature was
concerned with the collateral consequences of criminal records
and sought to make sealing broadly available to individuals
whose criminal histories or records no longer presented concerns
of recidivism." Id. at 306. 12
Regarding the second factor, the nature of the rights
affected, the "recalibration" of § 100A affected important
rights on both sides of the equation. There can be little doubt
that access to accurate criminal record information serves
"important policy needs [of] employers, housing providers, and
licensing authorities." Pon, 469 Mass. at 304. On the other
side, the stakes are high for Koe as well. We need not
recognize a fundamental right to seal a criminal record in order
to appreciate "what has been articulated widely in criminal
justice research: that gainful employment is crucial to
preventing recidivism, and that criminal records have a
deleterious effect on access to employment." Id. at 307.
Sealing, in turn, "is a central means by which to alleviate the
potential adverse consequences" that flow from the availability
of such records. See id.
The record in this case substantiates the general principle
we acknowledged in Pon. As a practical matter, the exposure of
Koe's criminal record is virtually certain to damage her
prospects for employment and housing. In that way, the
prohibition against sealing is likely to constitute a major
barrier to her efforts to reestablish herself as a productive
member of society -- a barrier that is not connected to any
substantiated concern about Koe's present dangerousness or risk
of reoffense. Compare Doe No. 8725, 450 Mass. at 790 13
(recognizing that rights affected by lifetime registration
requirement, "while not fundamental, are nevertheless
substantial"). Again the defendants attempt to distinguish Doe
No. 8725 by pointing out that the prohibition against sealing is
a less-severe consequence than mandatory lifetime registration
with SORB. Even so, that distinction does not diminish the
potential quantum of harm that the bar to sealing will cause for
Koe.
The third factor, the extent or scope of the impact of
§ 100A (6) upon Koe, primarily concerns the damage wrought to
Koe's reliance interest at the time of her classification in
2002 and 2003. At that juncture, when Koe accepted SORB's
recommended classification as a level two sex offender, the
then-existing scheme generally permitted the sealing of felony
offenses after a period of fifteen years, regardless of a sex
offender's historic classification level.9 See G. L. c. 276,
§ 100A, as amended through St. 1974, c. 525. Koe was entitled
to reasonably rely on this state of the law. See Leibovich v.
Antonellis, 410 Mass. 568, 578-579 (1991) (discussing reasonable
reliance on previous state of law in context of retroactivity
challenge). Indeed, she had no way of anticipating that, in
9 At the time of Koe's classification in 2003, G. L. c. 6, § 178G, as amended through St. 1999, c. 74, § 2, prohibited relief under § 100A for so long as a sex offender had a duty to register with SORB. Because Koe has been relieved of that duty, § 178G is not at issue in this case. 14
2012, the Legislature would decide to use her 2003
classification as a reason to permanently prohibit her from
sealing her sex offenses. Cf. Vartelas v. Holder, 566 U.S. 257,
272-275 (2012) (rejecting notion that presumption against
retroactivity requires showing of detrimental reliance). Had
Koe known of this consequence, she very well might have sought
instead to be classified as a level one sex offender. See Moe,
467 Mass. at 614–615 (discussing "inequity" of retroactively
requiring Internet publication of registry information for
offenders who did not challenge level two classification based
on accurate understanding that such classification, at the time,
did not carry that consequence).
In examining this third factor, we also have weighed both
"[1] the duration of the burden imposed by the retroactive
statute and [2 'whether the scope of the statute is narrowly
drawn to treat the problem perceived by the Legislature.'" See
Sliney v. Previte, 473 Mass. 283, 294 (2015), quoting Doe No.
8725, 450 Mass. at 793.
The burden imposed by § 100A (6) is plainly "of infinite
duration." Doe No. 8725, 450 Mass. at 792. It forever
prohibits sealing based on a classification "at any time" as a
level two or level three sex offender. G. L. c. 276,
§ 100A (6). 15
The question whether the statute is narrowly drawn to treat
the problem perceived by the Legislature also raises concerns
about its reasonableness as applied to Koe. We begin by
reiterating that § 100A (6) was part of a package of legislation
aimed at expanding access to reliable criminal record
information for employers, housing providers, and others, in
exchange for making "sealing broadly available to individuals
whose criminal histories or records no longer present[] concerns
of recidivism" and providing certain procedural protections
governing the use of criminal records (emphasis added). See
Pon, 469 Mass. at 306. The defendants argue that these
procedural protections make § 100A (6) sufficiently narrowly
drawn to survive a retroactivity challenge.
As applied to Koe, however, the core legislative bargain
behind § 100A breaks down. Any "legitimate business reasons"
(citation omitted), Pon, 469 Mass. at 304, that employers or
housing providers may have for wanting to know about Koe's sex
offenses are tempered, if not extinguished, by the
administrative and judicial findings that she poses no
cognizable degree of dangerousness and no risk of reoffense, and
has been relieved of the obligation to register as a sex
offender. These developments allow Koe to credibly demonstrate
that she "no longer present[s] concerns of recidivism," id. at
306, in a way that many former offenders cannot and that § 100A 16
does not typically require. Cf. Doe No. 8725, 450 Mass. at 793,
quoting Smith v. Doe, 538 U.S. 84, 117 (2003) (Ginsburg, J.,
dissenting) (weighing burden imposed when former sex offender is
required to register despite "the clearest demonstration of
rehabilitation" or "[h]owever plain it may be that [she]
currently poses no threat of recidivism"). At least in the
unique circumstances of this case, where Koe has been relieved
of the obligation to register with SORB, has been determined (by
SORB) to pose no cognizable degree of dangerousness and no risk
of reoffense, and otherwise meets the statutory criteria for
sealing, it is difficult to discern how retroactively
prohibiting her from sealing her sex offenses furthers the
regulatory legislative goals of protecting public safety and
rehabilitating former offenders.10
Balancing all of these factors, we conclude that § 100A (6)
is unreasonable as applied to Koe, and therefore violates her
constitutional right to due process of law.
Conclusion. Because § 100A (6) is both retroactive and
unreasonable as applied to Koe, State constitutional due process
precludes us from enforcing it against her. The case is
remanded to the single justice for entry of an order in favor of
the plaintiff.
10 Any potential punitive legislative goals are not properly part of this analysis. See note 8, supra. 17
So ordered.