-: SJC-12875 Commonwealth vs. Francis X Harding Jr.
-: Mr Kendall, you may proceed.
-: Thank you. Good morning.
May I please record Eric Tennen on behalf of Mr. Harding,
and with me on the phone as Mike Farrington,
who was the attorney below.
Like so many people unlike so many registered person,
Mr. Harding ran a business out of his home.
He did it for years and years and years
and although he provided services outside of the home,
his place of employment was always his home.
Harding was what we refer to it self-employed
and for people like him, sometimes registration
can be confusing.
The statute defines employment in terms of time.
You are employed for registration purposes based on how long
or how little you work somewhere.
But when you provide services in different places
that can be a little confusing.
That's why he registered his home address
as his place of employment.
First the store form actually allows for that,
that for someone to register as self employed.
And secondly, no one ever thought this was wrong.
His lawyer counseled him. This was the way to do it.
And his probation officer was well aware
that this is how he was registering.
The legislature I suppose could have defined employment
for registration purposes in some other way.
It could have defined it based on what you do
not how long you do it.
That's how it set parameters and other context
and where employment needs to be defined,
where it's defined based on the services you provide.
And had they defined it that way, he may well
have had preregistered the address
where he provided services.
But that would be in this context a little absurd,
burdensome and really impossible to manage.
And so the legislature defined employment based on timing.
And it makes sense that someone should only register
an employment address that has a little more permanence.
And for someone like Harding that was his home
where he was self employed.
Requiring anything else,
create several problems including two big ones,
one general and one specific to this case.
Generally, it really makes it virtually impossible
for anyone to comply with.
If you have to register a place where you provide services
for 10 days in a row, when you registered that address?
Especially if you don't know how long a job is gonna be.
Do you do it on day one?
But if you only worked eight days, then what?
Do you do it on day 10?
And then on day 11 when you're done,
you now have to unregistered.
It becomes unwieldy.
Then a specific problem in this case is that Mr. Harding
could not have possibly know about this
in the facts of this case.
And the Commonwealth concede this point,
that he just couldn't have been unknowingly violation,
because there was no way he hadn't noticed since
he had advice from, from his lawyer saying otherwise
and because probation office was aware of this
and they didn't tell him it was erroneous,
nor did they ever contact, sort of themselves
to indicate otherwise.
Secondly, and briefly the second condition,
I would submit that the Judge Harrington finding
that he violated his probation by working with children.
And it's important to know that the condition was always
that he not "Work, volunteer, reside with children."
The notice of the violation.
And this is the theory of the judge seemed to adopt
is that he valued the condition of working "Where children
"are present."
And those are not the same thing.
Working with children means something different
than working where children are present.
And if you read the condition as it was written
and intended, it's clear that there was no factual
or legal basis that they'd give out that conditions here.
And there are similar arguments here,
with the first issue in terms of what does it mean,
how do you interpret this, and what the parameters are.
And I think when you read that in context, it's clear
that he didn't violate this condition either.
At this point I guess I would open it up
to any questions from the court.
-: Okay. Before we do that, if anybody's who is not speaking
has not muted their phone, please do,
for the respect around noise
then, Justice Lenk, you may proceed.
-: Yes, hi thanks Mr. Tennen, good morning.
Our question has to do with the fact that
if the Commonwealth has conceded the point
that he did not know how to deal with that
he did not know how to deal with that sick evidence proves
that he knowingly (static drowns out sound)
Does that rule out one of these things,
one of the convictions?
-: I think it does.
You know, this court took a direct appellate review.
I don't know if it was aware of that or not.
I think it moves it out in terms of the finding.
I think this court can and still should provide
some guidance about what people in Mr. Harding's situation
can or should do moving forward.
-: Yeah, that doesn't do anything for the other conviction,
I take it. There's one on having to do with the child.
-: Correct, they're separate.
They're separate issues, I agree with that.
-: Okay. Those are my questions.
Thank you very much.
-: Justice Gaziano.
-: A quick question, look at judge's findings.
Was the judge basically finding that he was engaged
in separate instances of employment
so that if he exceeded the requisite number of days,
at one particular job site, he was employed by that family
who owned the land home.
And that's... so they use a definition of employment
to transcribe it to a workplace.
Is that your read of what the judge did?
-: I think it has to be Judge Gaziano
because that's the only way it makes sense
that the judge was just adding up and saying,
"Well, here you were more than X number of times
"as the statute says so I'm going to say
"that you were employed there, right by this family,
"you know, at this house that was your employer."
I think that's the only way to read what the judge did here.
-: Right, so in what way, if at all,
do we use the definition of employment
and help us tease out what the legislation meant by,
place of employment?
By work address, I'm sorry.
-: Sure.
The problem is I think that definition only gets you so far.
It doesn't answer the question here.
And so you have to look at other things.
You have to look at a little bit of context.
It does define it based on time, not what you do.
I think that's the first important thing.
So that it's looking for something a little more permanent.
It doesn't want people to register if they work some,
if they provide services, you know, one day here
or one day there.
So that's the first clue I think you have.
And you also have to look at the fact
that you can register as self employed.
And so you start putting these things together
and I think the best interpretation you can give based
on what little we have from the legislature
is that there are some instances in which people
don't have to register places where they provide service,
regardless of how long they do it.
If that is really not where they're employed.
If they're self employed and their center of business
is somewhere else, then they don't have to register
every time they go out and do something related to that job.
-: Next question and the final one I have is,
when your client provided the invoices to show
that he was employed to the probation officer,
I assume that they, there were invoices, you know,
I'm doing the window job at this house in the next month,
perhaps the same invoice for the same job site.
So there's no, there's no surprise
that he was doing extended, carpentry services
for people past the 14 days, correct?
-: Correct. And some of those invoices,
I think all of those invoices are in the appendant.
-: Yeah, there in the appendant.
-: And so you can see the address of the home
where he was providing with services
and you can see a description of what those services were
and then there's a date of it in where.
-: Great. Thanks. That's all the questions I have.
Thank you.
-: Justice Lowy.
-: Mr. Tennen, good morning.
I know that these are not, your facts,
but if you have an individual who's self-employed
and does construction employed in Newton,
that's where his office is.
But he's building an addition at a house in when
and he need to know he's going to be there
for four months building the addition.
In that circumstance, would he need, in your opinion
to have to register that he was working in When as well?
-: I don't think so.
And I think it gets back to, the way in which,
the legislature chose to, define work
for this situation versus something else.
He's providing services somewhere other than
where he's self employed.
I agree with that.
And he's providing services for a time period longer
than what the statute that finds his work.
But that's not what he's employed
and that's what the statute is really getting at.
So I don't think in that, even in that situation,
he would have to provide or you have to register
the address where he's providing those services.
-: Okay, now one last question.
The tradition of working with children,
you suggest that, that means a job where you work
with children, not that children are present,
but if you had a carpenter,
who was working at a location where there were,
you know, teenagers coming home after work, turn key,
and the carpenters is in there,
he might been violating different condition of probation
if he has to stay away from children,
would you agree with that?
-: Absolutely.
-: Okay, that's all I have.
Thank you.
-: Justice Budd.
-: Good morning.
-: Morning.
-: For the first issue.
I'm just trying to figure out, doesn't your definition
or the way you, you're defining or the way
you're interpreting, employment defeat, the purpose
of listing the places of employment,
if they're 14 or more consecutive days or 30 days total.
Do you know what I mean?
-: I do know what you mean. I think I know what you mean.
(laughs)
My answer I guess will tell you
whether I know what you mean.
-: All right.
-: So I don't think it's possible
or I think the legislature made a decision to say,
you know, it can't, it's not going to be possible for people
to registered literally everywhere they provide services
in some situations.
And nor do we even want that.
Do we want, you know, someone registering a home
that they're worked at, provided some services after one day
and now that family has their home published publicly
as a place of employment, when that's not really what it is.
So the legislature had to make a decision about
what, you know, how to navigate this and they've done.
I think the best they could because any other interpretation
really makes us unwieldy.
And the other thing I think that,
is sort of a failed pay fair is that
they have internet dissemination.
And despite what I may think of that,
that is a fail safe, which is,
you can still look somebody up by name.
You don't have to look them up by address.
And so Mr. Harding is a good example.
He's a level three, and if you look him up by name,
you would find his status.
He doesn't need to register everywhere he provide services
for that to be available.
So I think the legislature sort of put this scheme
as a whole to say some way or another we will capture this,
but we're not going to capture in a way
that makes them unburden some
or impossible for the registrant,
and really burdensome to the place
in which he is providing services.
You know, in this case, for example, the home he leaves.
-: I'm still trying to puzzle this out
because didn't the legislature, and like you said,
they, the legislature made a determination that well,
we're not going to do it for one day.
We're not going to do it, you know, if he's there
for a couple of days, we'll do it if the person is going
to be there for 14 or more consecutive days
or if they end up being, being there over 30 days
for a calendar year.
So, I mean, isn't that just what the statute,
isn't that just what it says?
Don't you just do what it says?
-: So, I think the problem is it becomes unworkable
and when it becomes unworkable, you have to take a step back
and say, "What were they trying to say?"
And what they were trying to say is, "What we're really
"looking for is for people to register, places
"where they essentially permanently work
"and not where they provide services."
So that time period tells us that they were trying,
what they were trying to capture.
-: I'm sorry, what's the difference between doing work
and performing services where somebody actually works
and where somebody performed services.
-: So when I say doing work, what I mean by that employed
in terms of how I think the statute defines it
because there's many people who are self employed
and they run their business out of the house
but they have to travel out of the house to do things.
-: Again I think a great example--
-: Your example of the lawyer going to court.
I think that's a little different but I do,
I take your point there.
Were you going to give me another example?
Papers, cause I did see that.
-: No, I mean, I gave the example keep going for stuff,
you know, you have people who do landscaping,
you have people who do, you know, contracting work
like Mr. Harding does.
And to say that they're employed,
at the places where they're providing you services
I think does not capture what the statute
is trying to capture.
That's why I use the different providing services
versus employed, that they're providing services,
in different locations.
But no one would say that these families
are their employers.
And in any stretch of the imagination.
-: And then with regard to the second, violation,
you know, I just wanna... I know
I was a superior court judge and did this stuff,
but don't you, does the judge create the conditions
based on the circumstances or are there,
they're not boilerplate conditions, right?
So a judge will say, well, given the situation, given the,
what he's pled guilty to and the circumstances of that,
here are the conditions I'm going to put on his probation.
It's not that.
-: I think that's certainly the way it's supposed to be.
I can't say that it's never, boiler plate.
But yes, context matters.
I agree with that at least when you're trying to figure out
what does this condition for this person need.
-: Right.
-: And (coughing) that I think we're all, thinking
about when they think about the issue, go to that,
what was going on in this person underlying conviction
that creates this condition and what noticed
that he had therefore, that this condition prohibited
A, B or C.
-: And so what you have here contextually,
and actually, and I reread the record many times
and the record actually doesn't, have much, in the way
of saying what the context of the condition was.
But I don't think anyone was under the impression
that the offending occurred in any context related
to the kind of work that he was doing.
From what I know about the case, if this was an offense
that took place at the home against, the grandchildren
of his then wife.
-: Okay. -: So for someone to have that,
that offending behavior and then read this condition to mean
or to even to think that it means, well I can't provide,
I can't do some work on the outside of the house
if there's a supervised child on the inside.
I think it's just a bridge too far.
-: Okay, thank you.
-: Justice Cypher.
-: Thank you.
Good morning. -: Morning.
-: Do you know where we are?
Are we consistent with other States in the way
this has been interpreted or have you seen any other States
interpreting this in any particular way or?
-: I wish, I had a better answer.
I looked, I really did look as hard as I could
to see if I could find this issue playing out anywhere else,
either at the state or federal level.
I personally came up empty handed.
Doesn't mean it's not out there.
It just means that I can't answer that question
cause I couldn't find anything.
But maybe one of, you know, you guys have great law clerks
and they're could find something.
(laughing)
-: Well they are great law clerks but not fair.
-: Okay.
-: One other question is related more to your experience,
that, so I guess outside the record, but have you seen a lot
of these kinds of cases or is there a lot of
this sort of case?
-: Meaning people being -: Yeah.
-: violated?
I mean, I can tell you--
-: No, no, but they get violated all the time.
I know that.
But I mean in terms of this particular kind of work.
-: Oh yeah.
-: Situation.
-: Sure anecdotally I can tell you, absolutely.
And I have clients in similar positions
and I have to tell you quite honestly
that I advise them the same way Mr. Harding
was advised here.
Cause that's my, that has been my interpretation of it.
So there are a lot of people who are self employed
who essentially run their business out of their home,
but they have a job that requires them to leave the home
to provide services similar to Mr. Harding maybe
it's landscaping, maybe snow removal, maybe you know--
-: Or some kind of delivery service that come every week.
-: delivery service, you know, driving a truck,
driving a delivery truck, something like that.
That's not uncommon.
-: All right, thank you.
I have no further questions.
-: Justice Kafker.
-: I find this very difficult.
I'm trying to understand, so, and it's a combination
of Justice Lowy and Justice Budd question.
-: So you've got some handyman or you got
a self employed construction worker
and they're in your house for a month.
And they know they're gonna be there a month.
Aren't we creating a danger here if these people
don't have to report,
cause they meet the statutory definition, right?
Clearly their employment includes employment
that is full time or part time for a period
of time exceeding 14 days or for an aggregate period time
exceeding 30 days.
So I mean Justice Lowy's hypothetical, you've got someone,
and again I'm distinguishing a landscape company,
which is a whole company but an individual employer,
you know, a self employed individual.
They're working in my house for 30 days
and I've got young kids.
Isn't that what the statutes directed at?
-: So I had to push back a little bit and say,
I think when you start to try and figure out
what the statute was getting at, it's not.
It can't possibly or wasn't possibly intended
to capture that.
-: Why not?
-: Because, of the impossibility of complying with it.
So some of the hypotheticals I gave,
at what point when Mr. Harding have had to register here?
Does he do it on the first day if he's not sure he's going
to be working for more than 10 days?
Does he do it on day 10?
And if he finishes on day 11, is he only registered
for one day and then it comes off?
Is it always considered a place of employment?
-: Take Justice Lowy's hypothetical.
It's a big job.
He's gonna build a deck for somebody or some something
he knows he can't do, in less than a couple of weeks
and they've got five little kids.
He doesn't have to register there.
I mean, I understand it's burdensome, but it just seems like
the legislature put in these day requirements.
I'd be more comfortable that said full time.
But in justice, always hypothetical.
You're there for four months and they've got children
and you don't have to ... cause it's not like your guy
where he has a carpentry thing in his house.
He just, that's what does, he goes to your house and fix it.
-: Right.
No, I understand the hypothetical.
I just don't think that, the way the statute was crafted
that it could capture that.
Meaning if it's not looking for people to register
when they're providing services for less than that,
then it's not looking for them to register
when they're providing services for more
than those days, if they're in their place of employment
or self-employment of somewhere else.
If that's not where they permanently work.
-: But they don't really have this place of employment
is where he's employed.
I go, you know, he's a handyman.
He says, "I'm coming, I'll come to your house and fix it."
That's it.
He doesn't have a workshop at his house or something.
He... I understand he's different from your person, but--
-: Right.
-: We've got a lot... we don't want sex offenders
in people's homes for long periods of time, delete unless
they're registered.
-: So I think the problem is you're talking
about employment colloquially and we have to talk about
how the legislature could define it for the purposes
of registration and they just chose to define
it in a way that will at some point,
have people providing services
and put in addresses that are not registered.
That's why there are other things in place
to perhaps capture that.
And one of that is, you know, internet dissemination
or dissemination of information in other formats
that are not related to an address.
And you know, the other thing is if you look at
the registration form, for example, it has a, an option
for self-employed. And so if people--
-: Give me an example of something that would be,
we've got to make some sense of the statute, right?
Give me one where, describe something that would be covered.
It's 14 days or 30 days, cause it seems like
you're reading out the entire language.
Give me something that would meet that definition
that would satisfy it.
-: I'm not reading out the entire language.
What I'm trying to figure out or ones--
-: Tell me a job -: any job
-: that would meet this requirement--
-: Sure, my job, I am employed at 50 Congress street
and if I had to register, this is the address
I would have to register.
-: You're there 360 days a year.
Give me an example of something with 14 days or 30 days.
-: But I'm not, I'm here some days, especially nowadays,
I'm barely here and I'm working for four and a half days
of the week in my office, but I still consider it my home
if I still consider myself employed here.
There are days where I, you know, I'll be on trial
for two weeks out of County and I'm not in my office.
So there, you know, most jobs, most people
are not self-employed. Most people have--
-: Again, I'm trying to make... the statute
has to make some sense.
Give me something that's covered by this.
Where, why would they pick a 14 day or a 30 day?
Tell me a job that's legitimately covered by this,
cause I think you're reading out everything
that meets this definition.
-: What... I think the problem is what we're really,
what we're trying to figure out is which address
do you have to register?
So everyone who works has to register some address.
The question is which,
and that's the thing, not that he doesn't have to register,
it's just which address does he register?
If someone works at a restaurant and that is where they work
and they're a cook, they're not a delivery,
they're a cook.
They work at that restaurant.
But if someone, you know, drives, you know,
for Grab Hub and they pick up, meals from that restaurant
to deliver it to places, they do not work
at that restaurant.
So which address would people have to register?
The cook would register that restaurant.
The driver would register wherever he,
you know, keep tracks of bills and take calls
and things like that.
So that's what we're talking about.
Which address do you register?
Not, you know, everybody has to register
so where, which one, which address do you register
on this theme?
-: Your view is this reads, everyone
has to put one address down.
Okay--
-: Well I suppose the people who work two jobs but, you know,
but yes, you have to put an address of where you work
if you have two jobs to put two addresses,
but depending on your job, you may not have to put
everywhere in which you're doing your job.
-: Okay, no further questions.
Thank you.
-: I've got some questions.
So, (clearing throat) what do you say the 14 days
and the 30 days means?
The Amicus says it should be a declared void.
(coughing)
Are you saying that we can crafty definition,
which would spare us from the need to do that?
-: I do.
And what I say is on its face, it's not clear what it means.
And so the best you can do is take the context of it and try
and figure out what the legislature was trying
to accomplish with it.
And it's what, you know, I don't want to repeat my answer,
but what I just answered to Justice Kafker's question is,
they were trying to use those timeframes to show
that they're trying to capture permanence,
they're trying to capture longterm and not that somebody,
you know, took a job, as wrapping gifts
for Christmas for five days.
But no less or no longer right there.
They're trying to capture this permanent by that,
that's what those dates are good for.
But when it comes to figuring out which address
you have to register, those dates don't help us.
We have to figure out in the context of each case,
is this the kind of permanent address
that the legislature was trying to capture?
-: I mean we have, there are two, two related issues.
It means that the term employment is a defined term,
I believe, correct
-: Yes.
-: Yes, so, and that speaks about 14 days.
If it's to be consecutive in 30 days, if it's sporadic,
but does that include weekends?
I mean, if it's--
-: That's a good question.
I don't know, like
as most of us work Monday through Friday.
So I don't know how to answer that question.
-: Okay.
Let me speak of this.
By the way, this obligation is not only for level two
and three, it's for level one, isn't it?
-: Yes, this is right.
Anyone at any level has to register there address.
The question is, you know what is done
with that information once it's registered?
-: Right, so the term work address is not a defined term.
They just use, that's just the language
they use it in the statute.
They say you must report your work address, correct?
-: Well I think they use work and employment interchangeably.
I think that's their intent.
But it's defined employment means then the time gates
that you're on reference.
-: Okay.
But the term work address is elsewhere in the statute
that what you must report.
That the term used is work address.
-: Correct.
I read that as either sloppy drafting or they're just using
at work and employment interchangeably.
They meant employment address employment as defined
by the statute.
-: So let's assume that you have... let's just assume
it's a level one.
If that person goes to, is in college,
do they need to report their residence?
Correct. What dorm they would be living in,
that would be the response that must be reported?
-: I would think so, yeah.
-: But they also must report
that they're going to university.
-: Correct.
-: So, but they would typically have to report the university
saying they wouldn't have to tell them which particular,
what classes they have or where they're going.
-: That's my understanding.
-: Right.
-: The university of Massachusetts, Boston
is what you would have to report.
And being that you're a level one, your work address
then goes to soar, but it's not publicly revealed.
Correct?
-: Correct.
-: So for level ones going to Justice camp at this point
reporting it as the Commonwealth says, would have no,
wouldn't be able to inform this family
and Lynn that the person is a sex offender
because there wouldn't be any reporting.
-: Correct.
The same way no one would be able to report his address
of where the person resides there goes to school
for that matter.
-: Okay, so and if it's level two that they could,
that score internet, and if they wanted to hire somebody,
they could check out the person and see whether
or not that person is a sex offender.
-: Correct.
If we do what the Commonwealth says, that the work address
is that if it's level two, is that posted, would that mean
that the Lynn family would be then be seen as the employer
of a sex offender and that would be publicly available
to everybody.
-: That is my assumption.
If you make someone like Harding register that address,
then that Lynn address would come up
for whatever time period is up there at his place
of employment or a secondary place of employment I guess.
-: So the internet dissemination, I've not looked at it
for awhile, but that includes not only that Mr. Smith
is a sex offender, but also that Mr. Smith resides
at this address or goes to university at Umass
or is presently working at this location or these locations?
-: Yes, it disseminates any addresses.
So primary, secondary work and although I haven't seen it,
I presume it disseminates, university information too.
-: Okay.
I have no further questions.
Are there any questions that follow up on the questions
that have been asked?
-: Just one follow up on the chief's questions,
this is Justice Kafker again.
So the Lynn's family, so you've got again,
the Lynn's family hire this person
and how would it be listed that,
that they're there?
Would it be listed that this particular person
was employed in the house?
I'm just trying to understand
how that would be publicly understood.
-: Sure, I'm not sure if I missed a little bit
of your question cause the went out or you just paused.
But I think what your question is,
what does it look like if it's published?
-: Yeah.
I mean..., so say you're wrong in the Lynn fam.
I mean this person would have to list his work address
as the Lynn family.
I'm trying to understand whether when
the Lynn family's neighbor looks and sees this,
would it list just, the house that's having a sex offender
or would list the houses employing, your client in there.
-: It would list the address and then it would be listed as
an employment address for my client.
So if you go online and you look somebody up,
it'll list whatever addresses they have registered.
So if you have one primary residence, it says residents.
If you have a secondary address,
it says secondary address and the address.
If you have an employment address,
it says employment and then the address.
-: Yeah, I'm just, mine's more basic.
So I'm the Lynn family neighbor and I look at this,
I wouldn't think that someone in the Lynn family
was the sex offender.
I would think that this person being employed
as a carpenter was a sex offender.
I'm just trying to understand what they would know.
-: You wouldn't know what they were doing.
It would just just say, you know, Harding employment address
and then would have that Lynn address.
It wouldn't tell you more about
what the employment consists of.
So wouldn't say carpenter or duration or anything like that.
-: I got you.
Thank you.
That's all.
-: Actually before we leave that point, does this,
Justice Gants, but the work address give only
the address or does it also give the name of the employer?
-: I don't believe it gives the name of the employer.
-: If he, if he worked for Racingon,
it wouldn't say Racingon?
-: Off the top of my head I'm not sure.
But it is publicly, I mean, you can do a search at any point
and see for yourself how it would list it online.
-: Are there any further questions?
And hearing done, Mr. Nato
-: Thank you.
-: Good morning.
May please the court, Steven Nato on behalf
of the Commonwealth.
I begin by noting that the statutory scheme here,
residential and reporting of addresses
similarly section 178E, is described some offenders
to register on the police side.
-: Could you get closer to the phone please?
You're hard to hear.
I'm sorry.
-: That's better. I took it off speaker phone.
How's that?
-: It's better.
-: Better.
-: Okay so again, just to begin again.
The statutory scheme treats residential
and employment addresses.
Similarly, section 178 E describes an offender's duty
to register the places he resides or intents to reside.
In the same term to describe an offender's duty
to register the placements he works on intends to work.
And section 178C defines employment
and secondary residential addresses.
And the same kind of terms are consistent with an apparent
intent that the oversight authorities, whether soar
or local police department should know where
these offenders given their risk of recidivism,
they have to know where they're spending their time,
where you living, where you working, where you residing.
And again, that's consistent with the intent as described
by this court in dove versus
sex offending registry board in 2006.
And it's also consistent with the way that the court
has interpreted the as we need to register employment
on even if it's burdensome or yields harsh results.
For instance, for the homeless or for those vacationing.
And in the Berkshires, I don't see any indication
of the language that the two should be treated differently.
Again, the court has applied one interpretation
to a secondary residences based on the languages
that are similar throughout the scheme.
It seems that employment addresses should be treated,
or interpreted and applied in the same way.
I trained up briefly to the ... again, we can see
that the evidence here was insufficient to show a knowing
violation of his duty to register that employment address.
But on the last issue that the offender
for the defendant violated his, condition of working
with or not to work with children.
Again, we almost sort of recognize that the record
here is limited hearsay.
A lot of it and kind of on papers to the probation
department mostly.
But the Commonwealth position is that the judge
here made a reasonable decision that the evidence supported,
the finding that he had worked with children in violation
of that condition on decoding a couple plus factors,
to distinguish it from instance or have you been working
as a bus boy in a restaurant encountered a family by mistake
and sort of that extent of it? I hear the defendant
was, returning to the same place after knowing a child
was present on the premises.
He never made any attempt to clarify
what his responsibilities were.
He continued on apparently took numerous days,
on site with the child present and the record
does have some indication that when he wasn't sure
he felt comfortable asking for instance as to register
the employment address he did,
so there's nothing like that here.
He just continued to again, work onsite.
Occasionally there's some indication in the house
while the child was, the infant was present.
And again, the court will just have to decide
whether that's sufficient under the circumstances
that led to the record.
And that's essentially my opening remarks.
-: Okay Justice Lenk.
-: Oh, that was the same question I had before.
As to the, fact that there's nothing to establish knowingly
as to the first probation violation.
Whether you agree with that, your confession,
there is not an implication of that.
-: And just to clarify as far as movement.
-: Yeah.
-: Yeah, I think arguably it wouldn't move.
There's no life issue.
However, the issue haven't been fully brief
and now argued this morning,
I do think the court is in a position to decide the issue
that consistent with its own president are movement concern
and given me sort of a practice.
We have interpretation of one prong of this scheme
for residential addresses.
But there's sort of a lack of clarity persisting
for the employment addresses.
If it makes sense that the courts sort of resolved
that ambiguity.
-: Yes.
Not that this defendant.
-: I'm sorry.
-: Minus this defendant however.
This defendant is free of this, right?
-: Correct.
-: Yes, that's right.
Okay, I have nothing else.
-: Justice Gaziano.
-: Right. Thank you.
Just one point you opened by saying that,
the statutory scheme is very similar with respect
to residential address
and work address, but as far as I read,
maybe I missed something.
Residential address specifically provides
for a secondary address, right?
And that's the Berkshire vacation, right?
-: Correct.
-: But work address doesn't have similar language.
-: And again, acknowledge that sort of wrinkle or you know,
a parent discrepancy as far as residences versus employment.
But I think a lot of people might understand residents
to mean almost domicile.
Where do you live?
Where is your house?
Not, for instance, if I stay at my sister's house,
help out with my nephews four days nonconsecutive
in a month.
I would think of that as my residence,
but under the statute of may qualify.
Whereas employment, it's more common for people
to have multiple jobs, multiple places
where they're working that they would have to register.
-: But it does also show a legislative intent
to be more specific with respect to residential
and cause we're going to have to construe
this against the government.
Correct, it's a punitive statute.
-: Correct.
-: Those are all the questions I have.
-: Justice Lowy.
-: Thank you, so, I understand why we would want to know
if somebody's painting inside of a home
and the teenagers coming home,
you know, alone quarter to three every day.
We'd like to not have somebody who's been convicted
of numerous, stranger sex offenses in the house
at the same time.
But why isn't that addressed
through a conditional probation stay away
from children rather than interpret the issue
of working with children.
Not to mean working in a daycare center
or working in other environments where there is
you're obviously going to be working with children,
but meaning working with children.
There's a child that happens to be present.
There's an infant that happens to be in the house
with the infants mother and the person working
is working outside replacing windows.
Can't we address, the concern through
another conditional probation rather than
have this expansive definition of what working
with children means.
-: I think absolutely.
The comment would be much happier had the judge provided
more specific or extensive, raising of the condition.
But again, we're kind of left with the condition
we have here and the record we have here.
But I think at some point our concerns are or are similar
to what, the question articulate is, the idea
of someone doing carpentry summer months,
maybe when kids are home from school.
Maybe a Comcast technician who is reports to correct call
for service fixing cable internet connection
in a teenager's bedroom and that would not qualify,
like a one time show up for
the employment registration requirement.
But a judge will order the defendant not to work
with children, could not have had in mind
that they could perform this kind of work with this kind
of intimate access to tools and that sort of concern.
Our position is trying to articulate, I guess.
-: Well, I understand the concern.
I just don't see how that contemplates working
with children.
But I want to ask you one last question please.
About, the concern about, 14 consecutive days,
maybe even more than 30 days.
So, how is the employee, employer, supposed to really know?
What if the painting the house in April and gee,
I think this is gonna to take eight days
and all of a sudden it's raining like crazy
and it takes, 14 and a half days.
Are they breaking the law
because they've failed to register.
-: Well, I think as far as I understand it,
the consequence for failure to register is the exposure
to the failure to register statute.
And whenever the duty, the resume
technically clicked in,
we'd still then have a problem with the knowing element
on it.
So that might cover the person finds themselves
on a job site that may have been able to,
supposed to last 10 days,
but has gone beyond, sort of unplanned
but extension of work, similar in the same way
the example I used the, I'm not expecting to, stay over
at my sister's house to take care of my nephews
at the beginning of the month for four nights that month.
But it had happening.
I think the duty and the criminal liability
with such the point you recognize
that you've passed that point where you have to register.
-: Okay, thank you.
-: So, did you, I don't know if you explained this earlier,
I might've missed it.
If the person does register, you know, police
where they're working and it shows up on the registry
after they finished the project,
would it come down off the registry,
you know, off the database?
-: I mean, certainly if I were--
-: I'm only asking if you know, I mean, if you don't know.
-: I'm not sure.
I think if, you know, hopefully
the offender could change the address for move it
from his registration,
the work is complete and then it would no longer appear.
-: All right.
And then, just to be clear, you are,
I thought you said to Justice Lowy that you just want
to get clarification on what working with children is?
-: I'm trying to remember exactly.
-: Well, my point is only, I thought you said
that it could have been clearer what was meant
by working with children.
But yes go ahead.
-: Again, Commonwealth in an ideal record would have,
you know, had a more now can't do any work
with children involving children to bring you into.
-: Right. That's going to be of children.
But here we just kind of have the straightforward,
I cannot work with children.
And again, we kind of are defending the judges finding
is reasonable based on, again, the concern
that defendants would have known that
this is not what defendants and judge intended.
That there's not some exception that allows
you to work essentially with children.
Just cause you were worked at directly involved
in the same way that I guess a school janitor
a little different too about working directly with children.
-: Okay, but it is probation obviously the prompt,
the violation to the court attention.
-: Now exiting Ellie Cypher.
(beeping)
-: Oh, that's not good timing is it?
Cause I'm done.
-: Okay, we'll have to wait for a moment
for Justice Cypher to return
-: Somebody text Justice Cypher and tell her we lost her.
-: Justice Cypher said she's having a technical problem
and we should skip over her.
-: Okay.
We'll do so for now, Justice Kafker.
-: So I'm following up on some of the points Mr Tennen made.
When would they have to register?
So I've got some guy working on my house.
He thinks he's going to get it done, in less than two weeks.
But it's like all construction never finishes on time.
What does he register on the, as he, when he realizes
that he's going to go over 14 days?
Cause then does that serve any purpose?
Cause the first 10 days is there without registering.
So how does that work?
-: Well, there so many perfect ideas depends on
how long over the 14 days it's going to go.
But as I see the fact that I don't know
that there's wiggle room, but once it's apparent,
it's extending past that point.
Certainly I think, even if it's only be a couple more days
for a couple more days, that address should be registered.
-: And so he has, what does he do?
So he's a guy, he's a handyman, and he just moves
from job to job.
What does he list as his.. what does he do?
What is he supposed to do?
-: In terms of dealing with it?
-: Well, I mean like, so he, you know, one day fixing
a sink the next day he is, you know, doing a deck,
does, he just list his home address
and I'm just trying to understand how this works.
A guy specializes in doing decks which takes,
you know, not like a three hour job
but it's a, you know, it's a job that you know,
takes a while.
Does he keep changing his address?
-: I guess, I suppose you would have to just given
the fact that the statute intends to allow people
to kind of escape the registration requirement just
because their job like keeps changing
as long as it's over, that's pretty tight.
-: And so how about a landscape--
-: Now joining Ellie Cypher.
-: I'm looking out my window and I see guys working
on my neighbor's lawn.
And they have, do they list 30 different sites
that they have 30 different, you know,
they work for two hours, for 30 days in 30 different places.
Do they list all of those if their work site
or they just list their employer?
-: Well, I think in that case where you,
you know, landscaping that will become
the summer might not add up.
-: Well say it, these guys show up pretty regularly.
And so does every landscape company have to everyone
who works at a landscape company lists every single job
they have that they go to the site more than 30 times?
-: That would be my interpretation of the statute.
Well, I don't think it's convenient,
but I think that the balance with statute,
the legislature struck in drafting it this way
because again, the intent legislatures to know
where these offenders are spending their time at home.
-: So I've got a guy who's a snow removal guy
and it's a bad winter.
They're going to list every one of their clients
as they think it's going to be 30 days of snow removal.
-: My answer to that would be yes,
I guess I thought, again, that's what I'm thinking.
It defines the work day.
178E kind of uses work and employment interchangeably
suggesting kind of with our colloquially idea
of what work is.
-: Right.
-: It would work at a location over that timeframe.
I think you have to register it.
-: Okay, that's all I have.
Thank you.
-: Justice Cypher, welcome come back.
Do you have any questions?
-: No, I'm all set.
Thank you very much.
I'm just happy to be here.
(laughs)
-: I got a few questions.
You concede that there is no violation of the,
soar requirement with regard to work address
because of the probation officer or the attorney told them
that that's what he had to do.
-: With regard to the probation condition that too,
has to be a knowing violation does it not?
-: Yes.
-: So how do we say that it's a knowing violation given
the language that the judge used to describe it.
-: And again, it's kind of the sort of colloquial
or everyday understanding of what working is.
I ended up defendant and offender in the defendant's
position should know that the judge did not intend
that he should be able to perform that kind of work
in such... excuse me, close proximity to a child.
It's an initiative--
-: In this context, I gathered the child was an infant.
-: Yes.
-: Was the child born at the time to work began?
-: As the fact came in there, sort of like two phases
of work the defendant performed, he was hired for initial,
excuse me, an initial series and then hired later on
to do some more work.
And then from that second chunk that the child had been born
and was present throughout.
-: So he supposed to know that the prohibition
against working with children means that
he now can no longer perform this job because
the woman who resides in the house had a baby.
-: Well, I'm not sure what that, again, the Commonwealth
concern here is that, defendant wouldn't think
that except for the idea that the defendant would able
to be able to act at such an intimate look
at the child's home, but not at school kind of yields
a weird result.
If it only means their work,
their job directly involves children.
-: Well, I mean, it's different.
You recognize there's, I mean, there are times
in which you would say, I don't want you to be working
in any place where there are children
and that's not unusual conditions.
And there are conditions which say, we don't want
you to be working with children.
We don't want you to be a camp counselor.
We don't want you to be a little league coach.
Those are not unusual conditions,
but they're different conditions.
-: Yes.
-: So why should that, why should we state
that this defendant should have understood
that this was the first and not the second
when the judge used the language of the second?
-: Again, I think it kind of comes down to that question
of what a reasonable person in that defendant's position
believe this is what they were allowed to do,
were they allowed to be in such proximity
the children with their work.
And the Commonwealth's position apparently consistent
the deciding judges that in this circumstance
it was beautiful.
-: Okay, going into the pragmatic, work address
or does the store periodically,
and correspondence to the work address?
-: To be honest, I'm not sure, your honor.
-: I think I have no further questions.
Give me one moment.
And I don't have any further questions.
Are there any questions of any of my fellow justices?
And, hearing none, we shall conclude, this oral argument
and it's now noon and we will convene our sample at 12:05.
So we'll take a five minute break.
Thank you all.
-: Well, thank you. -: Thank you.