-: Mr. Kenneally please call the first case.
-: SJC 12908 in the matter of an impounded case.
-: Ms. Doherty?
Oh, you're on mute.
You're still on mute.
We can't hear you, oh, there you go.
Okay very good. -: Great.
-: Okay, thank you, good morning.
May it please the Court, happy New Year,
welcome to the new Justices on the Court.
I'm Elizabeth Doherty I represent
John Doe, the plaintiff in this matter.
Just to start out,
the purpose of the sex offender registry law
is very clear from its enactment
that it was to protect against sexual offenders
and to prevent sexual victimization,
in particular, to protect vulnerable members
of the community including minors from sexual intercourse.
-: I want to just interrupt you
and ask you about some scenarios
in your very interesting brief, okay?
So the two scenarios that come to mind are
cases like your client's case,
where suppose there's a car theft
and the person who steals the car
doesn't know there's a baby in a car seat
and the parent is negligent to leave.
And then they steal a car and they go,
"Oh jeez, there's a baby in the back seat."
That's a kidnapping right?
-: Yes. -: Similar to your client,
kinda.
The second scenario is I'm thinking
of the Sicari and the Jayne's cases from way back,
where someone kidnaps a child,
intended to have sexual abuse,
and suppose in Sicari and Jaynes
the police stopped the car before anything bad happens.
We don't know, they don't get to sexually abuse the child.
So those are the two polar extremes I think
of these cases.
The result you want us to reach,
the due process argument is all cases,
including that Jayne, Sicari
kidnapping with intent to sexually abuse
would not be covered under the statute or would it,
or is there some result that gets us
to the the second scenario being covered?
-: Absolutely.
I believe that, so the kidnapping statute,
when it, from it, at the beginning
there was just one paragraph of kidnapping,
everything was kidnapping
and its evolution through the years has been
that there've been added a number of clauses,
a number of different alternative ways
in which to commit kidnapping.
The third paragraph
would cover that type of scenario
where they're, in fact,
one of the crimes that's specified in there,
I believe is assault with intent to rape.
-: Well, that's different though,
because in some of the cases that discuss this,
they say if there's another crime,
there's kidnapping plus assault with intent to rape,
you already have a registrable offense
with the assault with intent to rape.
I'm talking about standalone kidnapping,
as opposed to some type of sexual behavior
or some something of that sort.
-: Well, I mean, I guess I would back up and say that
in order to be, so the, the Sex Offender Registry,
sex offense ,under 178C,
you know, covers a number of offenses.
Every offense that's in there
has some sort of sexual component.
And in order for this to be a sex offense under that
I would concur,
argue that it has to have a sexual component.
There are many violent, even serious,
serious even violent crimes against which,
and again, things like- -: Right.
The question I'm asking you is
if we reach your result, do what do we hold?
Do we say that this crime, right,
cannot be enumerated 'cause it violates due process?
Or do we say something like,
"This crime, unless there's additional proof."
'Cause that's the Florida case,
held that way with additional proof.
And I'm asking you
how far are you asking us to go in your case?
-: I think that there has to be proof
of some sort of a sexual component in there,
in order for it to be considered a sex offense.
-: So you want.
All right, so you want us to do what Florida did
and read that into the statute?
-: Well, again, I think
that this court can construe the S the statute
that is 178C, definition of a sex offense,
I think you can construe it in a constitutional manner
if you specify that the offense that is a sex offense
is the third paragraph of,
you know, 265/26.
-: Again- -: I think that, I think that
that instruction avoids constitutional infirmities,
it gives weight, or you know,
it interprets the statute the way
that the legislature would have thought.
That it was, that this statute has to be construed
to involve a sexual offense or a sexual component, rather.
-: Right, so let me ask you,
probably my final question,
as I go through your brief in Ms. Nixon's brief,
and I'll ask her the same question,
can you give me a sense of the scorecard?
So there are 42 states who have enacted the statute
after the federal statute.
I know that there's a federal court, I think was New Mexico,
there's the Florida case,
and maybe it's a trial court in Ohio
that have gone the way you ask us to go,
is that all the cases
that have held this be unconstitutional,
or am I missing something?
-: No, the US District Court, which has,
is standing, hasn't been challenged,
Eunice v. Robinson, which I cite in my brief,
found that- -: That was,
was that the New Mexico case? -: No, that was New York.
-: New York, I'm sorry. -: Yes.
-: Okay, so- -: That's cited in my brief
and that's a US district court case.
-: Okay, I think I missed that, okay, thank you.
Did I miss any other ones Ms. Doherty?
-: I think that in my brief and in Ms. Nixon's brief,
I think that we have, I wouldn't stake my life on it,
but I think that those are the ones that are identified.
-: Thank you. -: The most recent one
as they say was 2019 and that was Eunice v. Robinson
and that's in my brief.
-: Great, thank you.
Those are all the questions I have.
-: Okay.
-: Ms. Doherty, I want to talk about
whether or not it's a legitimate legislative concern
to link childhood sexual exploitation
with a concern about kidnapping children.
Because if we're dealing with substantive due process issue
and whether or not this circumstance shocks the conscience,
really one of the issues we're looking at is,
is it reasonable for the legislature to say,
" You know, we have a concern whether,"
you can go back to Justice Gaziano's point,
"in these particular facts
it's actually come to fruition that it's clear
that there's an intent for a sexual assault.
But we just are concerned
that when there's kidnapping of children,
there's a serious concern
about childhood sexual exploitation."
Why does that link raise a substantive due process?
-: Well, certainly protecting children from sexual harm
and sexual predators is a reasonable legislative objective.
But in this case where there is no evidence,
I mean the plea judge,
I mean it's undisputed
that there was no sexual component to this.
That's not a reasonable relation
to identifying kidnapping without a sexual component
as a sex offense.
I wasn't sure- -: Just before you finish
answering Justice Lowy's question,
'cause I need to understand one fact
to understand your answer to his question,
how did this crime terminate?
How did it end?
-: So the facts that came about from,
that came out of the plea hearing is that,
so this child was in the stairwell of her apartment building
and the plaintiff was in the stairwell as well.
It seems to be undisputed that he was suffering
from a mental episode at that point.
She came along and he did, he punched her and whatever,
and then they came down the stairway and he came,
he was bringing her, I believe to the lobby.
And from there, whether he let her go,
or she, you know, escaped from him.
So it terminated in the lobby.
-: It terminated in the lobby
and she may have run away- -: Or he may have let her go-
-: Okay, I understand- -: They're not sure.
-: All right, I'm sorry, Justice Lowy
I didn't mean, I just wanted to get that in my mind
as far as the ending of this escapade
in to better understand the answer to your question.
-: I was gonna say, just to finish up,
the facts of that are in the record appendix.
The best recitation of them are in the plea-
-: Right, I read them,
but I just want to make sure -: Okay.
-: I understood what you understood.
-: Okay, okay, thank you.
Getting back to your question, Justice Lowy,
the link between, as I suggested in the,
both in my brief and in more detail in my reply brief,
the link between child kidnapping
and child sexual assault is very questionable.
That you know, the research and the studies,
you know, are questionable but
this seems to be, this seemed to come about, it was-
-: Well, how questionable are they?
I mean, I thought,
I'm just looking at some of this stuff cited,
2/3 of the child kidnappings involve sexual offenses.
They've excluded kidnappings, intra-family kidnappings,
which are the ones that we would assume,
I mean, I mean, I can imagine there's the "Raising Arizona,"
whatever that movie was,
where they're stealing the child to have a baby,
but they're very few of those.
So why isn't there, there an evidentiary,
or at least a, you know, empirical basis
for concluding that kidnapping has a sexual component
in this type of case?
-: Well, I mean, I would dispute
and I think I did in the reply brief,
that 2/3 number as not being valid.
You know, as I described in the reply brief,
some of the data collection was extremely questionable.
-: But Counsel, isn't that really an argument
that one might make to the legislature,
to say to the legislature,
"You know what, this is too big of a net.
2/3 is actually not accurate, it's more like,
I don't know, 1/3."
But isn't that an argument for the legislature?
In looking at the constitutionality of the provision
don't we have to look at whether or not
there's a rational basis for a connection?
Not the data underlying it and questioning whether or not
it's 2/3 or 1/3,
but is it a reasonable basis to have as a gating issue
that the sexual offense is kidnapping,
which is correlated in some way to sexual abuse
and then have the hearing officer examine
whether in fact, this particular Doe should register.
Why is that, why isn't that a reasonable scheme?
-: Just to, a couple of things, this particular Doe
the hearing officer did not examine in any way
whether there was a sexual sexual component at all.
As I say, it's completely undisputed that there was not,
there was no evidence of that.
But just to sort of back up with respect
to sort of the link
between child kidnapping and child sexual assault,
all of this legislative, all of these
sort of research studies came about
and sort of the adoption of
of SORNA, of the federal statute.
We haven't, in this state we've not, we've not had that.
I don't know if we had SORNA
I think that there would be constitutional problems in that
Doe 87-25, and Doe 12-11
that there would be problems in, you know,
that you were asking somebody to register
where there's no evidence that that person
poses a chance of sexual recidivism or sexual harm.
-: But that's not the case here, right?
I mean, it seems like you're collapsing the statute
with the specifics of your case.
And you haven't really explained why there
isn't a rational basis
for having kidnapping be a part of the statute.
And I understand that you're saying
that in your client's case, there was no sexual component
of that particular kidnapping, but that doesn't mean
that the statutes unconstitutional.
They looked at your client, right,
and looked at all the circumstances
and the hearing examiner found
that he was a risk to commit sexual crimes.
-: There was no evidence though, that he was posed a risk
of sexual recidivism or sexual harm.
-: You understand that SORNA's going to challenge that.
They're going to say, "Wait a minute, she ran away.
You don't have to throw your common sense away.
This person already committed a very
serious sexual assault on somebody else according to SORB,
I understand the verdict."
And they are going to say,
going back to Justice Gaziano's point,
"The kidnapping stopped before there was an opportunity
and what do you think the sexual predator was going to do
if it didn't happen with a young girl of the same age?"
Their assumptions are different than yours.
-: Well, I guess I would just sort of back up
with respect to the consideration of the
the conduct of which he was acquitted.
I mean, I would argue
that without a sexual component to this,
to the index offense, you shouldn't even get to
the hearsay evidence of acquitted conduct.
I mean, it would be as if you had a trespassing charge
that, you know, that was the valid offense
and then you sort of came back
and dredged up acquitted conduct.
You can't consider, I would argue,
you can't consider this hearsay evidence,
not even getting to the reliability
of the hearsay evidence, without having a jurisdiction,
without having a sexual component.
And so, I mean, every other case that you look at
where they're considering hearsay of other conduct,
the offense that is the index offense
has a sexual component to this.
This is, you know, very unfair in that as I say,
they're dredging up from, you know, from long ago, a charge,
or not long ago but, a charge of acquitted conduct
in order to sort of make the index offense
into a sexual offense.
Which is, you know, is very unfair on his part.
Again, I would argue that
this court can construe the statute
in a constitutional manner
by just making sure that the kidnapping offense,
that considers a sex offense under 178C,
is the third paragraph of kidnapping.
You know, I think this is consistent
with the legislative history.
It gives the plaintiff in this case,
the benefit of ambiguity and it
permits the court to construe the statute
in a way that's that avoids constitutional infirmities.
-: I may have missed it, but did you say
why there's no rational basis here
for the statute as it currently stands without-
-: There's no rational basis because it's very clear
that the purpose of the statute is to protect
against sexual harm, sexual offenders
and to protect minors and vulnerable,
vulnerable members of the community against sexual harm.
In this case, there is no, there's no sexual harm.
And I would also say that, you know,
the evidence with the link
between child sexual assault or sexual harm and kidnapping,
without that it's, there's no rational basis.
I mean, particularly to impose,
as this court recognizes,
the Onerous Burdens of Sex Offender Registration.
-: Anyone have any other questions?
Okay, thank you so much, counselor.
Elizabeth: Thank you.
Thank you, good morning and may it please the Court,
Nicole Nixon, Assistant General Counsel
appearing on behalf of the Appellee Board.
-: Ms. Nixon, let me just jump to the chase.
Nicole: Absolutely.
-: I gave the two scenarios,
one of the car theft and one of the,
I guess I'll say the Sicari, Jayne situation,
where they're apprehended
before anything even worse happens to the child.
Is this an all-or-nothing situation?
Or is there a way to say
that we find it a due process violation,
unless and until there's a sexual component,
intent or motive that can be proven?
-: I think it is an all-or-nothing conclusion in this case
because what we're looking at is the legislature's inclusion
of the specific crime, kidnapping of a child in violation of
Chapter 265, Section 26.
-: I know you've read all the cases,
but if you go to the Florida case,
what they conclude is,
"We hold only that under the facts of this case
where the state concedes a crime contains no sexual element.
We conclusively bly any sexual MOL of the designation
of the defendant as a sexual predator is unconstitutional."
So that seems to hold open the door for a court to say
that where there is a sexual motive,
the statements, et cetera, that would be an index,
that would be a qualifying offense.
True or not true?
-: I don't think it holds up on the door.
I think if you look at the Florida case specifically
it was a very narrow holding
based on that specific set of circumstances.
-: I think the circumstances here-
-: Is it possible to have a narrow holding,
or is it all-or-nothing?
That's I guess the question I'm inartfully asking.
-: I think that it's an all-or-nothing holding
in this particular case.
If you look at the argument that's made here
and what's being raised is really whether
there's a rational basis to include this crime
as a sex offense from the sex offender registry law.
And in Massachusetts,
and I think this is different from that Florida case
where I believe in Florida
once you're convicted of a sex offense
that triggers the attendant registration requirements.
There's no further hearing to determine whether
somebody should be ultimately classified as a sex offender.
And I think that's what makes this particular case
different from that Florida case.
-: Okay, thank you, and let me ask you
just maybe a last question,
what Ms. Doherty cites, and there's a lot of case law
in this state that I don't know if it's unique or not,
we're going to have to dig into it,
that emphasizes that what we're talking about
is not criminal behavior.
We're not talking about recidivism,
we're talking about sexual recidivism in sexual engagements.
Is that something that distinguishes Massachusetts case law
and requires us to find a rational,
not a rational basis because of that Massachusetts case law?
-: Well, I think that it's a little bit tricky.
I, I think that certainly to have somebody
be finally classified as a sex offender,
the board has to prove by clear
and convincing evidence that somebody poses a risk
of sexual reoffense and a risk of sexual harm.
That's undisputed, there's multiple cases that say that.
But I, and I think here that that was done.
But if you look at whether there's a rational basis
to include the specific kidnapping offense
as a sex offense under the sex offender registry law,
I think there were certainly that rational basis to do that
where there is that link between
kidnapping of a child offense and sexual harm.
-: Can you give me your reasons why there's a rational basis.
-: Sure, I think if you look,
if you look at the specific crime of kidnapping of a child
it involves forcibly taking away a child from the protection
of his or her loved ones and isolates them,
making them more vulnerable to sexual assault.
In this type of specific crime,
it's certainly reasonable for the legislature
to include this specific crime as a sex offense,
to let the board or allow the board make an inquiry
into whether offenders who commit the specific offense
pose a risk of sexual reoffense
and sexual harm to warrant a final classification.
I think that's certainly rational
and I don't think that Doe's proven
irrationality on this record.
Also- -: Do we need,
do we you need the statistical evidence?
Your sister argues, "Okay, they put in statistical evidence
when they did the federal statute but they,
the legislature did not have a,"
you know, I mean is this a case where we have a statute
with the legislative history that indicates someone
considered the statistics on kidnapping?
Or is that something we're just going to have to infer?
-: If you look at the legislative history
of the Massachusetts Sex Offender Registry Law,
there's nothing specifically in it
that talks about consideration of the statistics
that the federal, the Federal Congress did.
However, I don't think that's necessary to
conclude a rational basis here
and to conclude that the legislature rationally
included this crime as a sex offense.
-: Are you familiar with the law review article
cited in your sister's brief
that refutes some of the statistics?
-: I am.
I think that's the opinion
of the law review articles author
that tacts sort of the methodology behind
some of the the DOJ studies that Federal Congress
had relied on in enacting the Jacob Wetterling Act.
I've read the article
and I understand the arguments behind that,
but I don't think that this court needs to find that
as conclusive proof, that those articles and the research
that was included within those studies is unreliable.
-: I'm confused though, just for a second.
So the feds did an analysis
that included some statistical review
of how often this type of kidnapping has a sexual component.
The state's statute's modeled on the federal one,
is that true?
-: That's correct, if you look at the legislative preamble
to the sex offender registry law,
specifically, the 1999 amendments,
it talks about including the amendment
to the sex offender registry law,
to comply with the federal requirements.
-: Okay, so then can we,
whether this statistical review was done really well or not
can we, when you get rid of the statistics
you make me nervous when you start sort of
positing a rational basis without, you know,
because someone takes a child away from their parents
they're more vulnerable to sexual assault.
They're more vulnerable that person
is going to sexually assault them.
I'm just not sure I follow this.
Don't we need a statistical basis for this,
whether you can piggyback on the federal basis or not,
don't you need that?
I mean, you're running away from that,
I just want to make sure I understand where you are on that.
-: Sure, and I'm sorry if my answer
was a little bit confusing before,
I'm not running away from it.
I do think that the statistical evidence certainly shows
and supports a rational basis
and if you look at the enactment
of the Massachusetts statute,
it's pretty clear that it was enacted to comply
with the Federal SORNA, Jacob Wetterling Act requirements.
So I think that when you're looking at a rational basis
for the Massachusetts legislature to do something
it had included this kidnapping of a child sex offense
to comply with those federal requirements,
but also because you can,
you can make the argument that where the Federal Congress
found a rational basis to show a connection
between the kidnapping of a child offense and sexual assault
that the Massachusetts legislature would have agreed
with that rational basis and it included this crime
as a sex offense as well in it's own statute.
-: And can I follow up on Justice Gaziano's
first type hypothetical too?
So does our statute address the,
you know, the person who runs off with the kids in the back,
not realizing the kid's there?
By the second part of the analysis that SORB has to decide
whether something, I mean,
you get in the game because you have the kidnapping,
but SORB, if it realizes this guy's just a car thief
who has no history with sex offenses, can't,
is that how we handle the first hypothetical?
That we're not in danger of requiring someone
to register in that context?
-: That's correct, Your Honor.
I would say in that certain context
where somebody runs off with a car
and a baby happens to be in the backseat,
that person wouldn't have to register as a sex offender
unless something within their history
or within the circumstances
of the governing offense shows a risk
of sexual reoffense and risk of sexual harm.
So I think the statute does deal with that type
of crime and those circumstances in that way,
and would mean that somebody who committed a kidnapping
for say stealing a car and the baby was in there,
or for say a drug ransom type of a situation
where I think some of the other states facts bore out,
those people would not be required to register
as a sex offender under the Massachusetts statute.
-: What if they had something in their past,
you know, a sexual assault that was, they were accused of
but acquitted of, and so they would now be
in the position of facing, having to register,
is that right?
-: I think that would be a closer question, Your Honor.
You know, certainly in this case
based on the facts of the governing offense, as well as his,
his acquitted charges, the board had determined
that he had to register and be finally classified
as a sex offender.
It really depends on the factual circumstances
of the particular case.
-: Right, so I'm saying what if it was the same
underlying facts, you know,
in the fact is he got into this whole thing
because he kidnapped a baby unintentionally?
-: Sure, you know, I think that if, if that were the case
and there was reliable and substantial evidence to show
that he sexually assaulted somebody on another occasion,
but he wasn't convicted of that offense then yes,
he probably would have to register
and be finally classified as a sex offender
because the board would have shown a risk
of sexual reoffense and sexual harm.
-: You want to address the funds issue
'cause this guy's got some mental health issues,
but there's a denial of funds for an expert to help.
So where do we draw the line here on the funds?
Cause we've reversed or least the appeals courts reversed
in certain contexts where you don't
give expert funding, right?
-: Could you rephrase the question, Your Honor?
I wanna make sure- -: Yeah.
I understand the question. -: This guy's got
mental health issues
and he's requested funds for an expert, right?
And that was denied
because it wasn't a specific enough request.
Your regulation's pretty narrow about when you get these.
So I'm just trying to understand how that's consistent
with some of our cases where we've reversed
for the denial of funds.
It's an open-ended question, but go ahead.
-: So I think that the denial here first of all,
was proper because the Doe didn't make a sufficient showing
to show a connection between
a specific mental health condition
and his risk of reoffense or danger.
And I think that the hearing examiner
complied with the regulation but as well as the case law
in making that determination.
In some of the other cases where the appellate courts
have reversed a hearing examiner's decision
to deny expert funds,
the Doe in those cases
had made a sufficient proffer of evidence.
Here all we have to show,
there isn't really even a diagnosis
of a mental health condition.
The only medical evidence that we have here
to support Doe's motion was a one page
mental health note from the DOC.
I don't think in these circumstances
that's sufficient evidence to warrant the granting
of a motion for expert funds.
-: Ms. Nixon, if I could change the subject for a moment
and go to the hearsay issue?
-: Sure.
-: When the Sex Offender Registry Board
is considering a sex offense
where the defendant in the criminal case
was found not guilty,
should there be a requirement
that the hearsay needs to be corroborated to some extent
beyond the requirements of Commonwealth v. Durling?
-: I don't think so, Your Honor
and I don't think so because there's different standards
of proof in a criminal trial
and in the admissibility of a hearsay evidence
at an administrative proceeding, such as this one.
And I think that the burden that,
or the admissibility requirements
in an administrative proceedings such as this one
are sufficient to protect an offender's
due process rights in these circumstances.
-: Can I just ask how it works
if someone's acquitted of a sexual crime
then they don't have to go before the board at all?
-: That's correct, to go before the board
there needs to be a conviction of a sex offense
as described in Chapter 6, Section 178C.
So if somebody's acquitted of sexual charges
then they would not have to register.
Unless of course there's another conviction on their record
which qualifies as a sex offense.
-: So basically SORB gets a chance to look at it
only because this other thing happened.
-: That's correct, in these circumstances, yes.
-: Can I ask you about the hearing examiner's
actual decision?
You know, some of the factors that
the hearing examiner applied,
like factor to repetitive and compulsive behavior.
The examiner said, "The petitioner engaged
in sexual misconduct with two victims
on separate occasions."
Now there isn't sexual misconduct
with regard to the governing offense.
So I'm wondering if we have to send this back anyway
because the examiner misapplied, some of these factors
actually all of the aggravating factors
that's just an example.
-: Sure- -: There's nothing sexual about
the governing offense.
-: There was no evidence to prove
that he sexually assaulted the girl
or there was a sexual motivation.
-: For any, even any analysis in the hearing examiner's
decision as to that at all.
-: There was not, that's correct, Your Honor.
-: But yet the examiner is saying,
"Two victims of sexual offense,
therefore apply factor two."
I don't understand that.
-: Sure, and I think if you look at the regulation
and the regulatory language of factor two,
even if you take out that first victim,
the kidnapping victim,
there would still be evidence
to support the application of factor two,
where he had sexually assaulted victim two
on multiple occasions with opportunity and time
to reflect on the wrong- -: Or if that's something
that SORB, I mean, we can't apply that analysis.
The hearing examiner has to apply that analysis.
So we would have to send it back
to the hearing examiner to say, you know,
maybe you persuasively could argue that,
but that's not something that the hearing examiner
took into account.
He or she is actually looking at the two offenses
and saying, "Yeah, that's repetitive and compulsive."
-: Well, respectfully, I would disagree, Your Honor.
I think if you, if the court does find
that there is sufficient evidence
to support the application of a factor,
then you don't have to send it back
for the hearing examiner's review and analysis.
And the hearing examiner did,
I believe in her analysis of factor two
talk about sexually assaulting victim two
on multiple occasions.
-: What is the legal authority for that proposition?
Because we defer to the administrative agency
and now you're asking us to substitute our analysis,
or what you're supplying as analysis
for the application of factor two.
-: I'm not asking you to support or to substitute
my analysis or the court's analysis, certainly.
I'm just saying that when there's other evidence
to support the application of a factor
courts have not, the appellate courts have not
sent back cases for a hearing examiner's review.
That's all I'm saying.
But certainly, the courts defer to a hearing examiner's
analysis of the application of the evidence and the factors.
-: Okay, any other questions? -: If there,
If there are no further questions,
I would rest on my brief at this time
and ask that this court affirm the judgment
of the Suffolk Superior Court, thank you.
-: Okay, thanks so much.