-: SJC-12933 in the matter of an impounded case.
-: Good morning Chief Justice,
honorable justices of the Supreme Judicial Court,
before I begin my argument,
I just wanna let the court know that
although I live in the most rural part of the state,
God blessed us yesterday morning with broadband.
So I'm hoping that we have no problems during this.
And my heart goes out to the attorney
who was arguing before me, I feel very bad for her.
Drawing that into the case,
my client, John Doe was 17 years old in 1993,
when he pleaded guilty to a sex offense
in the District Court.
This was before SORB existed
before the sex offender registry laws.
10 years later, he accepted a level two.
At that time,
there was no internet dissemination of level twos.
And in 2018, the board sought to upwardly reclassify him
from two to three based on the commission
of new sex offenses, and the fact, he was incarcerated.
-: Okay, can I interrupt you for one minute just,
and then I'll let you get back to,
I just wanna clarify a couple of things
in light of your letter yesterday or the day before.
So what issue two, which is I'm sorry, issue one,
which deals with the question of the standard,
whether it's clear and convincing evidence,
or whether it's beyond by preponderance of the evidence,
are you saying now that the hearing examiner
used the right standard,
or the standard you're advocating
throughout the whole proceeding or just in certain places?
-: So there were two hearings.
The hearing examiner in 2016
used the preponderance standard,
but the case was remanded by the superior courts
so that the hearing examiner
could consider the trial transcripts.
Then the second hearing examiner
for which this case is on appeal,
did apply clear and convincing,
but then the superior court judge on judicial review
applied the preponderance standard.
We argue, of course
it should be the clear and convincing evidence standard.
Although our argument in issue two, which argues
the application doesn't depend on the standard.
We feel that regardless of how the court decides issue one,
whether it should be clear and convincing or preponderance
that we should prevail.
In terms of issue one--
-: Can I ask one question on the standard
that this appellate court,
did he apply the clear and convincing evidence
to the entire issue and preponderance to the conviction,
or did he just apply preponderance of evidence
to the upward determination itself?
'Cause there are two different issues, right?
Whether this subsidiary finding,
whether he committed the sexual assault
was by a preponderance of the evidence.
But he could have found that
by the preponderance of the evidence,
but the overall thing by the overall upward,
you know change upward by clear and convincing.
But I just wanna make sure I understand
what you say when the superior court applied preponderance,
where did he apply preponderance to?
-: So the board applied clear and convincing
both to risk of re-offending and degree of dangerousness
and to the existence of the new offense
while the superior court applied clear and convincing
to the risk of re-offending and degree of dangerousness,
but preponderance of the evidence
to the event triggering reclassification.
Regarding the standard of proof,
we essentially have two arguments.
We concede that the cases cited by the judge
do indicate that an administrative hearings
clear a preponderance is typically the standard
for subsidiary facts.
However, we argue two things.
Number one, SORB hearings aren't
like administrative hearings in other contexts.
And this court has declared that individuals
before the board are afforded
due process rights and protections that go above and beyond.
And secondly is the question
between a subsidiary fact and an ultimate fact.
A subsidiary effect is like an ingredient,
you put ingredients together like the factors
that the board considers.
But ultimately the board has to find
risk of re-offending and a degree of dangerousness
by clear and convincing evidence.
But whatever the factors,
the ingredients are only by preponderance.
We feel that the fact of the new offense
is not a subsidiary fact, it's not an ingredient.
It's actually a legal fact
that the board must decide by a certain standard
in order to trigger reclassification in the first place.
So we argue that basically for two reasons,
we should prevail on issue one.
Number one is that sex offenders before the board
have liberty interests that go above and beyond
the average person before an administrative board.
And two that this is not an ingredient,
it's not a subsidiary fact that's combined
with other facts to reach a legal conclusion.
The board in order to upwardly reclassify somebody
under 803 CMR 1.32, must first find
that they did commit a new sex offense.
-: Isn't this a little more complicated than that
because we've got also all of his other offenses?
They're not sex offenses,
but we have other criminal behavior, right?
So this wasn't a case where the upward reclassification
was only based on the new sex offense issue,
but it may have been based on multi-part.
I understand one of your arguments is that
it was only based on that.
But don't we have to divide this up a little bit?
-: Well, the rule that the board promulgated
in response to legislative changes on upward
the board initiated reclassifications
requires the board to do a vote.
And they have to put in writing the basis
for the upward reclassification attempt the petition,
and they need to have a majority of the board.
And they did that in March of 2018.
And the two bases for the upward reclassification petition
was the new sex offense.
And that Mr. Doe had spent 60 days
in the house of corrections.
So although Mr. Doe does have myriad non-sex offenses
from 1993 to the present
that wasn't the basis for the upward reclassification.
The basis for the upward reclassification
was the 2015 sex offenses that resulted in acquittals twice,
as well as the drug and larceny case.
My brother in his brief cites the fact
that the board vote isn't specific on which incarceration
resulted in the petition to upwardly reclassify.
However, in argument four on issue four,
we argue, the statute and the rules require
that the information being new.
We have a petition from March of 2018.
So the information that is used
for an upward reclassification by statute needs to be new.
And the only incarceration that is new
was the nine month incarceration on the drug offense.
Yes, Mr. Doe was incarcerated for two years in 2008.
However, the board we would argue
cannot seek to reclassify somebody in 2018,
simply based on an incarcerated from 10 years prior.
Focusing further on issue four,
we have a case where the board became aware
of a new sex offense in 2015.
And they attempted to reclassify,
but they didn't follow the proper procedures.
And in February of 2018,
the petition to reclassify was dismissed.
So in February of 2018,
everything that happened between 2015 and 2018,
which was the reclassification hearing
going to the superior court, the remand.
None of that has legal import
because that case was dismissed.
The case before this court commenced
in March-April of 2018.
And we're talking about
the board reclassifying an offender
based on very old facts,
the sex offense, the acquittal was in 2016,
and the board cites myriad things that happened
in many instances a decades prior
to the reclassification efforts.
So in essence issue two,
we could argue all day,
there's two full transcripts, there were two jury trials,
Mr. Doe was acquitted twice,
I'd simply point out that at the first hearing,
there were no transcripts.
The hearing examiner found by preponderance
based solely on the police report and on cross-examined.
But at the two trials,
I'd asked this court to focus
on the evidence introduced at that trials,
that those trials that really undercut,
I mean, the Lieutenant, the officer,
the honey farms employee,
the first complaint witness and Eric, the eyewitness,
they all undercut the allegations.
We believe not withstanding this court's determination.
And we realized that this court has taken
this case on direct appellate review SORB's respondent
to address issue one,
which is the standard clear and convincing
versus preponderance.
But in our experience,
is there really a difference
in how the board applies it's standard?
We don't really have evidence
that the clear and convincing versus preponderance standard
in these cases would really be dispositive,
but regardless of the standard,
we'd ask the court to read the transcripts,
and our argument and look at all of the pieces
of evidence that undermine the Commonwealth's Case.
If there are no further questions,
Mr. Doe would rest on his brief.
Hon. Kimberly: Okay, great. Thank you.
-: Thank you.
-: Mr. Chenail.
-: Couldn't find the unmute button, sorry about that.
At my age technology gets harder and harder.
If it pleases the court Chief Justice, Budd,
and your honors, I'm David Chenail for the board.
I think you have to get right to the heart of the matter
of I really think this comes down
to what kind of information the board should be able to use
to reclassify or bring an upward reclassification.
I think you have to look at the process,
and say, there's two factors here.
One is the beginning, which is the investigative process.
And then the second, which is the adjudication process.
And in the investigative process,
really the board should be required
to have reliable information
that indicates an individual's risk and danger
is elevated or has elevated,
or could possibly have been elevated
since their reclassification.
And the reason I stated that is because
at that initial stage, there is no jeopardy attached
to the individual,
and the board has the mandate to protect the public
against dangerous sex offenders.
Now, in this situation,
it's kinda like a probation violation issue.
The individual is already part of the,
or is within the jurisdiction of the board.
And the board has already indicated
from the first classification that the individual poses,
at least some risks and some danger,
either it's a one or a two.
And the whole idea of the reclassification is,
if the board gets information,
and I would say reliable information,
because the information they get comes
from agencies, district attorney's office,
police departments, correction officers,
the board itself doesn't seek out the information,
we don't have investigators,
we don't track people on a daily basis like probation does,
but because no jeopardy attaches
when we start the investigation.
What we're looking for is just the reliable information
that would indicate a risk.
And if you look at the statute,
the statute specifically.
-: Don't you have to give him some notice
of what you're gonna base it on, right?
I mean, there's a due process issue with that.
So if you change direction,
so do you have to inform of that?
-: Well, that's how the due process
is set up in this situation.
When we decide that we're getting information
that an individual might be escalating
or his risk or danger might be elevating,
we notify the individual.
What we're considering,
that we're considering an upward classification
based on things that we're seeing.
We tell them what they are,
and we give them time
to send an information to refute that.
Then the second stage is after we give them
that time and opportunity.
And after reviewing anything that the offender sends to us,
we then send out to them our recommendation,
and say, we say, we're gonna upward classes you.
-: Let's get specific here then,
the notice had two bases, right?
The new sex offense charges,
and the 60 days in of incarceration is that--
-: Correct.
-: And when were those the basis
for the upward classification or not?
-: Yes.
-: So the notice and so this issue you're talking
about doesn't matter here
because the notice and the basis were the same?
-: Correct.
-: Okay, so now can we get to the issues, we've gotta decide,
which is if you've got a new charge of a sex offense,
okay, there's an acquittal on it.
Does it have to be proved by a preponderance
or by clear and convincing evidence
when there are multiple prongs to the up,
I take it as is the sole change
that has to be by clear and convincing evidence,
or is that not true?
-: No, I think what we're doing
is we're blurring it a little bit.
Again, in the investigative process
when we bring the action,
just because someone has been incarcerated
more than 60 days,
doesn't necessarily mean that risk or danger is gone up,
just because someone is being investigated for a sex offense
doesn't necessarily mean,
that their risk or danger has been risen.
That's why we have the adjudicatory process
where they actually get to have a hearing in contest
the board's recommendation.
At the hearing is where you make the determined
by clear and convincing evidence.
If in fact the individual's risk or danger
had actually increased in this case,
the hearing examiner found that it had increased.
And again, that's where due process comes in.
-: Just be specific 'cause we've gotta,
do you have to prove in Mr. Gauthier's language,
you know the effect,
I don't wanna use this ingredients thing
because I find it confusing.
But do you have to prove,
are the individual conviction here?
The individual sex offense you have to,
the level of proof for that to be meaningful,
is it preponderance of evidence
or is it clear and convincing evidence
for the new sex offense?
-: Okay. And again, I just wanna be clear,
the initial investigation isn't based on a standard,
such as preponderance of the evidence
or a clear and convincing.
It's after we go to the next stage,
when the individual requests to hearing
to contest our recommendation.
At that point, the board has approved
by clear and convincing evidence
that the individuals risk and danger has elevated enough
to upward reclassify that individual.
So it's just like a classification here, right?
-: I get the big picture issue,
but like, it's an analogy that you may not be familiar with.
In DCF cases,
the individual incidents are proved
by a preponderance of the evidence,
but the overall determination
is by clear and convincing evidence.
I'm trying to understand here,
what level of proof we have to have
for that new effects charge to be considered relevant.
Does the Commonwealth need to prove that
by a preponderance of the evidence,
or does that individual new charge
have to meet the clear and convincing evidence standard?
Cause it's so important to this determination.
-: No, because it's a subsidiary fact
is by preponderance of the evidence.
And I cite in Leasa Lowy is a case in the Doe 496501.
I think we also,
this court said that in board cases
that the subsidiary facts,
which the new sex offense would be is by probably
by a preponderance of the evidence.
That's what the board has to find that it happened.
It's making the final determination whether or not
that with all the other evidence,
by clear and convincing evidence
raises to the level of an upper classification
or an elevation in the risk and danger.
But the actual subsidiary findings
are by a preponderance of the evidence.
-: Okay, so in this case, help us out here
because he got a level two before,
so we got to look at new stuff, right?
-: Correct. -: We should only
be considering new stuff if we're going to go up, right?
-: Correct.
-: So what is the new stuff here
that makes it go up to three?
-: The new stuff here is that it's not new as
in just 10 days ago or a year ago.
It is new, the word new is used
because it begins from any information
since the original classification.
Now this individual on eight different occasions
was incarcerated for more than 60 days.
That became part of it.
Once the hearing was scheduled,
we had not only the new sex offense allegations
and the evidence of that,
but we could also now consider
all of his criminal behavior since his last classification
or his original classification.
So bringing all of that in is part of why
his risk was elevated at that point,
because some of these crimes were serious crimes.
Now I'm looking at the actual sex offense.
That was just one component of the ultimate decision.
And again, we didn't have to prove that the sex offense,
we only had to show a preponderance of the evidence
that it occurred
and that it was reliable information that it occurred.
Now, I think we have cases where you say
just because someone was not convicted of an offense
that the board still had the right
to consider that offense.
I think the SORB case says that,
and I believe Doe 523391, says that.
Even if you are basing information on a case,
where it ultimately it resulted in not guilty,
the board can still consider that case
if they have reliable information that shows
my preponderance of the evidence that the events alleged
in the facts occurred.
So the board has the right to look at those types of things,
just because this individual was found not guilty
of the ultimate sex events did not prevent the board
from considering it because we're looking at it
as a preponderance of the evidence.
Another case it's close to this as a Doe 252997,
which was in 2013,
where this court specifically said
the board can consider during a classification process,
pending criminal cases, and that the individual
does not have a right to a continuance
of a SORB classification hearing
just because he has a pending criminal action.
And therefore the board could go forward with that process.
Now, so based on that information, even with this case,
even while this case was pending this new sex events,
the board had the right to go forward,
and determine whether or not the evidence produced
show by preponderance of the evidence
that this individual had committed this event
based on reliable information.
Now, again, the due process rights are protected
because the individual had the right
to come in and argue against that,
present evidence against that.
He also had judicial review of that,
and he gets appellate review as a fact
that we're here today on it.
So there are procedural due process like Gautheir position
in these circumstances,
but ultimately, and that's the adjudicator process.
We only have to show the subsidiary findings
by a preponderance of the evidence.
-: And when we review,
I'm trying to understand what we do on this,
so that you find by a preponderance of the evidence
that the sex offense was occurred.
Do we owe you any deference on that?
'Cause you're looking at the criminal trial transcripts,
or do we have to do that to De novo ourselves?
How does that work?
-: Well, you have to give deference
to the hearing examiner's decision,
unless you find that the factual decisions made by,
or factual findings made by the hearing examiner
were either arbitrary and capricious or contrary to law.
But if you find that the findings are reasonable,
then you have to give deference to the board.
The board is the ultimate fact finder.
If again, you decide that the fact factual findings
were contrary to law or arbitrary and capricious,
just as a superior court would have the power,
you will probably have more power being the Supreme court
could alter the decision on that level,
but that's why we have judicial review of these hearings,
so that the offender has the ability
to allow the court system to make sure
that the hearing examiner made the proper determination
based on the fact pattern that was before it.
But again, there is a deference
to the hearing examiners findings of fact and law
on these issues.
-: Although I'm confused a bit,
we normally would look at individual facts
to see whether they're clearly erroneous is that,
but because we've got this trial,
the key finding here, right, is the new sex offense.
That's a key finding, right?
-: Correct.
-: And you have to make you say,
the SORB does this by the preponderance of the evidence?
We also have the exact same evidence you have
on that trial, right?
-: Correct.
-: We normally don't give any deference on documents.
So I don't know how that works here.
So we normally respect facts,
unless they're clearly erroneous,
but at the same time,
we're sort of doing De novo review of that problem,
I mean, of that preponderance of evidence finding.
That's a little tricky.
-: Yeah.
-: That's a question. (both laughing)
Am I wrong?
And there's something simple here that would be helpful.
-: No, I think again,
case law says that deference should be given
to the hearing examiner's decision,
unless you find it either clearly erroneous,
or you find that it's arbitrary and capricious,
which is essentially the same thing.
If you find that you have the right
to alter that decision-making process,
but that again, doesn't undermine
the board's initial ability to bring the action,
and it doesn't undermine their ability
to determine facts by a preponderance of the evidence.
The only difference is, is that you're saying,
and again, minds can disagree as to whether or not
that actual findings of fact was reasonably made.
If you find it wasn't reasonably made,
and that's why we have judicial review of these cases,
then you can act on that.
So I'm not saying that you cannot say,
okay, in this case, the board clearly aired
that's your call.
What I'm saying is that it still doesn't prevent us
in the future from looking at these cases
through the lens of a preponderance of the evidence
for the subsidiary findings like we do in every case,
'cause keep in mind,
these individuals have already been classified.
They are subject to the board's regulations.
So these new hearings are to determine whether or not,
there is a showing that there's an elevation
of risk and danger.
We have to prove that by clear and convincing evidence,
but the underlying facts to get to that point are still
by a preponderance of the evidence.
-: Somebody have any further questions.
Okay, thank you very much, counsel.
-: Thank you.