-: SJC 13032 in the matter of an impounding case.
-: Okay, Attorney Koes.
-: Good morning Chief Justice and honorable justices
of the Supreme Judicial Court.
May it please the court.
My name is Matthew Koes and I represent John Doe 7546.
In Doe 7083 this court held that due process
requires that an offender's final classification
must be based upon an evaluation of risk
and dangerousness at a time reasonably close
to their release from incarceration.
-: 7083 is an important case,
but there was no waiver there.
The commissioner immediately raised the issue, correct?
-: Correct, but I think in this particular case
due process does require getting rid of the classification
even though there was a waiver
and I think that there's specific language
within the Doe 7083 case,
that kind of hints that if that court
were faced with a waiver
they would be inclined to vacate the classification.
The language I'm talking about appears on page 478.
And if the court will indulge me I'm just gonna read.
It says, "We conclude that the hearing examiner's 2009
recommendation that Doe be classified
as a level three sex offender
based on evidence presented at a time when a trial
on his petition for discharge
under chapter 123A Section nine was at least 18 months away
risked classifying Doe
based on factors that would be stale at the time
of his discharge in violation of due process protections."
-: Isn't that a clarion call
for (mumbles)
start doing these hearings closer to discharge,
which as a result of 7083, they did?
-: Correct, that's right.
And I think that, that rule that was announced in 7083,
should be applied to Doe's case.
In her specific situation, she's serving a life sentence,
she's up for parole every five years.
And even if she were to be granted parole
I don't think it's a situation
where she would be released immediately.
Usually on a life sentence, there's a step-down provision.
So I think SORB's certainly does have, you know,
plenty of opportunity to track this offender
and have them properly classified
before she would be able to be released.
I think the bigger problem here is the fact
that her current classification is stale
and materially inaccurate.
And that hurts Doe's due process rights.
And it also-- -: Can you tell me
what factors, Attorney Koes,
what factors go into assessing staleness in this case?
-: Well, there's three factors that we've identified,
and those are the risk mitigating factors
that look at the current situation.
What we've identified is Doe's age,
she's now 72 years old.
SORB's regulations recognize that age
is a significant risk mitigating factor.
The fact that Doe has completed sex offender treatment,
at the treatment, is certainly important.
I think when you look at the record,
in 2012, when the initial classification was sent to Doe,
she was at MCI Norfolk,
and really wasn't in a position
to work on the core treatment.
In order to do the real heavy duty sex offender treatment
you have to be at the treatment center.
Six years has come and gone
and, you know, there's evidence
that she's completed that treatment.
-: But she's at the treatment center now.
-: Yes, yes, Justice Cypher.
And then I'd also suggest that, you know,
community supervision plays a role as well.
-: So, so wait, so you say that's a risk?
You were going through your risk mitigating factors.
-: That's correct.
So I've identified-- -: I need the third one,
you said there were two.
-: So there was-- -: You said there were three.
-: Yes, age, sex offender treatment, and then
community supervision. -: Okay.
-: So obviously Doe's serving a life sentence
and needs a positive parole vote before she can be released.
And so basically she's gonna be on parole
for the rest of her life if she is ever released.
And that is a risk mitigating factor
under SORB's risk mitigating factors.
-: So how did she end up getting,
so she's doing a life sentence at the treatment center?
-: Yes.
So at the treatment center,
it's kinda broken down into two sections.
There's a section for inmates.
And then the other section of the treatment center
is for civil commitments.
So she is serving her life sentence for,
or at the treatment center.
You know (chuckles),
I think it is worth pointing out
though that, you know, even if she were to be released
on parole, you know, the commonwealth
would have an opportunity
to petition, to have her committed
as a sexually dangerous person under 123A Section 12.
So, you know, even if parole were to be granted,
again, this is not a situation where she would just walk
out the door the very next day.
-: When she was classified and didn't appeal,
was this prior to the cases
in which we said that this should be more contemporaneous?
'Cause there was a period of time
where, I take it, the SORB was classifying people
right after convictions.
But, again, do the case law,
in which it has to be closer to release post date
her conviction and her waiver?
-: Well, I would say it kind of has happened simultaneously.
There was a case in the appeals court,
the Doe 6904 case,
which I believe occurred within that year.
I believe it was decided in 2012,
which is the same year that Doe was finally classified.
And then the Doe 7083 case came out in 2015,
which was about three years after her final classification.
-: I'm just trying to figure out
if how we look at the waiver
and sort of how obvious it was
that this was improperly done at the time.
-: Right, and Justice Kafker,
I'd like to point your attention to the footnote,
footnote eight in the DOE 151564 case.
And that talks about applying rules retroactively
in sex offender classification cases.
And I think that that concept should carry over
to Doe's case.
And applying this rule, this due process rule
that was announced in 7083, to Doe's case.
In order to comply with, with due process.
-: Right, well I get that part of it.
I'm trying, the commonwealth is gonna get up
and argue finality here.
That she, that she waived, you know,
she knew she had a right to challenge the classification
because of that appeals court case
you just brought up, 6904, but she sits on it.
She doesn't do anything.
And in that light, you know, now she wants to do something
but she passed on that opportunity.
I'm just trying to get a sense of, you know,
well, okay, it wasn't really very well developed
that law or not, but.
-: Well, I would answer that question
in a couple of different ways.
You know, first of all, we have to look at the result.
So if we allow Doe's classification to stand,
then we've kind of created this subclass
of sex offenders who, where we've said, well, it's okay
for these sex offenders to have a stale classification
but it's not okay for this,
you know, this other group of stale, of sex offenders.
So, you know, if you don't request a hearing
then there's really no harm
to a sale classification.
That harm only arises. if you've requested a hearing.
-: If you'll remind me,
what did she, what was she convicted of?
-: She had two convictions.
So the first one was in 1970,
and it was assault of a child with intent to rape.
And then there was a 1977 conviction
for rape and abuse of a child.
The details of those two offense, offenses,
you know really kind of are not in the record.
So I don't wanna, kinda go too far afield from the record.
I did include Doe's most recent parole board decision
which kinda gives an overview of those offenses.
-: But she's got life imprisonment out of those (mumbles)?
-: Yes, your Honor, serving a life sentence.
Went before the parole board in March of 2020,
received a five-year setback.
So she doesn't appear before the parole board
again until March of 2025.
Making her-- -: You're gonna have to,
you need to sort of wrestle with the 20981.
The 20981, where there was a waiver after a number of years.
-: Yes, your Honor,
and I think the delay, it was one of three factors
that this court cited in 209081.
It cited the six-year delay,
but it also cited the lack of prejudice.
And it also cited the availability of reclassification.
So I, you know, certainly the six year delay is there,
but I would say what those other two prongs
that the court spoke about in 209081, are not there.
Doe is being prejudiced.
She's being placed on the internet,
worldwide dissemination as a level three sex offender.
And it serves no purpose.
You know, while she's at the treatment center,
she is of no harm to to the public.
And then with respect to reclassification,
the way that the board's director of hearings has framed
reclassification, Doe would not be eligible
for reclassification until three years after her release.
So it's really speculative
whether or not she would ever reach classification.
So Doe's kind of in kind of this procedural
no man's land, if you will.
You know she can't challenge the sail classification
because she's waived it.
She can't challenge the sale classification
through reclassification because she's incarcerated.
And-- -: I know it's a long shot.
And so I'm actually reticent to mention it,
but under the regulation
she actually can seek reclassification.
I don't know how much heft there is to that
considering that it can be summarily denied though.
-: Your Honor, I'm not aware of any situation
in which an offender has been granted a reclassification
while they're incarcerated.
And I would suggest given SORB's pension
for preserving finality,
I don't think that they would be inclined to, to do that.
But I think, you know, the reclassification
regulation (chuckles) appears to be a little bit ambiguous,
and it's a little bit of a moving target.
I think there's, you know, three different ways
that, you know, people in this case
have kinda interpreted that.
So, you know, again, I go back to the fact
that Doe really,
her only avenue is through, you know,
seeking a vacature for classification level
which I think due process does require.
I would also point out too that the Doe's 7083 case.
And again, I'm going back to page 748.
That court also seemed very concerned
about leaving Doe's 7083 up on the internet indefinitely
while he was incarcerated.
The fact that this kind of worldwide dissemination
of his his information would be out there.
And it doesn't say it explicitly,
but I think the implicit recognition is, it's not necessary.
It serves no purpose.
And, you know, it only serves to bestow
consequences upon Doe.
And, you know, I'd just like to kinda conclude my argument,
by saying that I think what's really missing
from SORB's argument is really any sort of explanation
in why it is necessary to have Doe posted on the internet
and have her information require her registration
while she's indefinitely incarcerated
serving a life sentence.
If there's no further questions I would rest on my brief.
-: Very good, thank you, Attorney Nixon.
I think you're on mute.
-: I apologize. -: That's okay,
can I get a question before you get started?
Attorney Nixon: Yep. -: Because I'm trying
to understand the connection in Doe's 7083
between challenging the classification
and a stale classification.
So what's the connection?
What does it matter if the person challenges
at the initial classification or not?
Regardless several years down the road
there's a good chance
that that classification's gonna be stale.
So why does there have to be a challenge
at the initial stage when we're not talking
about that anymore?
We're talking about what's going on right now.
-: Sure your Honor.
And I don't necessarily think there needs to be a challenge
at the initial stage.
What my argument really is, is that--
I'm sorry.
-: No, I'm sorry, you cut off, go ahead.
-: Okay.
That this particular Doe accepted
her classification back in 2012.
Doe's 7083, the holding in that case came out in 2015.
There's no indication from that court
that that holding should be applied retroactively here.
So that's really my argument,
is that at the time of Doe's classification,
meaning in 2012, SORB complied with its current procedures
and case law, and the case law that was in place
at the time, Doe had every opportunity
to challenge her classification level,
and she chose not to by voluntarily and knowingly--
-: Is this a due process issue though?
Isn't it a due process issue
in order, you know, that the person should have something
that's reasonably correct?
-: There is a due process issue at play,
that's correct, your Honor,
and I think that needs to be considered in this case.
And I think when you look at the due process concerns here
we have to weigh certain factors.
One is the, obviously whether this classification is stale
or whether it's current and accurate.
I do acknowledge that it was done years prior to release.
However, the mitigating circumstances that Doe's now raising
were all apparent in 2012,
with the exception of the sex offender treatment.
She's completed sex offender treatment back in 2012.
I believe she was just participating in it.
-: But that's, I mean that's a big ____, isn't it?
You got that, and you got the age.
-: That's true, your Honor, however, I would point out
without the age, back in 2012,
she was at an age when the research recognized
that risks significantly reduces
for this type of offender,
meaning an adult offender
with a child them. -: The case law didn't.
I'm sorry, could you repeat that?
-: But the case law didn't.
The case law didn't take that into account in 2012.
-: The regulations didn't, that's correct your Honor.
However, there was research out there
that, again, if she had challenged her classification level
she could have put that into play.
There was research
which now the regulations do take into account
that was out there in 2012
speaking about age as a mitigating risk factor.
And I think another piece of this is, and I want to get to,
is her opportunity-- -: Before you switch subjects.
Mr. Koes just talked about the appeals court decision
in, was it 6904,
that's sort of inconsistent with,
isn't it inconsistent with this?
The idea that you're classifying eight years,
you know, before she's going to be released?
-: The appeals court in 6904 did talk about
the, when a classification hearing needs to be held.
However, I don't think that that necessarily means
that the case law was fully developed at that point in time.
-: Yeah, I don't think it was fully developed
but doesn't that cut against?
I mean, I remember being surprised
by that decision a little bit
at the time, too, but that, doesn't that suggest
that the law is sort of in flux
and then 7803 comes out and it's clear.
We don't want people classified way ahead of time.
We want them classified when they're about to be released.
And there's no reason, what's the point of this?
She's in the sex, she's at Bridgewater.
So there's no purpose in classifying her
and putting her on the internet besides--
Well, what's the purpose?
Just 'cause you wanna not reclassify later?
I mean, what's the point?
-: Well, I acknowledge that, your Honor.
I think that's certainly a consideration.
However, I think that the proper lens
to look through this through
is whether there is a reasonable and adequate remedy here,
and there is, through a motion for reclassification.
-: But that's where I really wanna push you
because SORB constantly does these Kafkaesque choices.
Okay, you've got a choice
but you've never granted one in history, right?
So is this real?
I mean, and that's sort of what pushes the buttons
a little bit.
If there really was a reclassification process
I'm totally with you.
Show me there is, as opposed to this kind of paper process,
it never exists.
Has anyone ever been given one of these, who's incarcerated?
-: Frankly, I'm not aware of one.
However I do think-- -: Then why are you,
why do you argue?
I mean, I get it, you know, you can have it.
If there is reclassification we shouldn't be here,
but don't argue there is
if it isn't really available, right?
Well, what's the point?
-: I would disagree with you a little bit
as to whether it is really available here, your Honor.
I do-- -: Well then tell me.
Tell me 'cause, to me this really is critically important.
I hate being argued that you have a remedy
when you don't really have one,
'cause again it's Kafkaesque as opposed to reality.
But is there a real remedy that you can draw on?
-: And I respect that your Honor,
and respectfully, I do think there is a real remedy,
again, through this motion for reclassification.
I acknowledged that there is the language and the regulation
which allows the board to summarily deny
somebody who is incarcerated.
However, that denial is discretionary.
-: Well, but okay.
But so, again, your counsel for SORB,
have you ever in history allowed one of these things?
-: I'm not aware of one, frankly, your Honor.
-: Well then why are we presented with this?
'Cause, you know, we like the law to reflect reality
and your regulations to reflect reality
and I'm not blaming you,
but, you know, it should be a real process.
Or it's not, why should we take into account?
And that's sort of what due process is about, isn't it?
You know, fake procedures are not real procedures.
-: I'm sorry, you cut off a little bit at the end.
-: Yeah, I mean, due process means,
you know, you're actually are given process
as opposed to like paper process that doesn't exist.
-: I agree, your Honor.
And, and frankly,
I think that if a motion in this type of circumstance
were to be filed, then that process would be given,
that discretion would be used.
I think a lot of the times when we see these motions
for reclassification, from incarcerated offenders
it's in a very different situation than we have here.
What we have here-- -: That's true but,
two things on that.
Number one, your heart really didn't seem
to be in the reclassification issue in the brief.
And number two finality is really important.
And so there's a lot of purposes
and we saw it important in 20981.
But here, I agree with Justice Kafker,
if you had a serious, robust consideration
or reclassification, when you had the circumstance
where the issue is stale and somebody's incarcerated
and they don't even have a parole eligibility date,
then you're looking at procedural due process and Matthews.
And you're saying, okay, that finality is a really important
administrative agency thing
and there is another way that they can address it.
But again, it seems like it's never used.
And it seems like, to your credit,
you sort of admitted in your brief.
-: Your Honor, I would disagree a little bit with you
that I admitted that it's never used.
I did acknowledge my brief--
(Justice Lowy mumbles)
that it's rarely used.
And I think it's rarely used correctly
because of what I said,
this is a different type of situation
than the types of motions for reclassification that we see
from incarcerated offenders.
So I think in this type of situation--
-: I think it'll be useful then...
The difference between rare and never is important.
You can send us a 16L letter
telling us when you've actually done it,
that will be useful.
And if you've never done it, we'd also like to know
because again, you know, we want, you know,
this to be based on reality,
not, you know, a (mumbles) process.
-: Sure, and I respect that, your Honor,
and I will get that 16L letter
to you after this argument.
And moving to,
you know, whether the hearing examiner's decision
to deny the motion to vacate was reasonable.
I think under 209081, if we look at it through that lens,
then the decision was reasonable.
We do have a situation where Doe accepted
her final classification level after an opportunity
to challenge that classification level.
-: But maybe she accepted it
because she agreed with it at the time
and now things are changed.
Things have changed.
So I don't understand why she has to have,
I mean, why would she have to challenge it
if it was perfectly reasonable at the time when it was made?
-: Sure, and that's true, your Honor.
However, again, you know, I don't want to harp on this
too much because I think, I may not be persuading the court,
but if circumstances has changed
to show a decreased risk and danger.
She does have that opportunity for a motion
for reclassification, and that's really the mechanism.
And that's why the mechanism is there within the regulation.
-: But you're saying if she had moved to reclassify
and then lost there,
then she could come and say, "Hey look,
they should have given it to me."
That can't be right
because the regulations say that it's discretion.
-: It is discretionary, your Honor.
However, again, that mechanism is in place.
And when we're looking at whether there was an abuse
of discretion in denying this motion to vacate,
we have to look to see
whether there is an alternative remedy.
And I think that's what happened here.
-: So she had called this a motion to reclassify,
we wouldn't be here?
It's because it's called a motion to vacate
that SORB is taking the position
that she's waived this opportunity?
-: Well, I think it's a different standard
of the review, respectfully, your Honor.
I think in a motion for reclassification circumstance,
we're looking at something different.
We're looking at whether there is that--
-: Well I understand the difference
in the standard of review.
I'm wondering what SORB's position is,
would have been, if she had called this motion,
a motion to reclassify,
would SORB be taking the position that she had waived this?
-: I think it would have been a different situation for SORB.
I think that if this was done through the avenue of emotion
for a reclassification, we would have been looking
to a different set of circumstances,
meaning whether Doe could have met her burden
of production of showing a decreased risk and danger.
-: And there would have been a review
if that reclassification had been denied?
-: If she was granted a hearing,
then there would be an opportunity for judicial review.
If she was summarily denied the regulation,
does candidly say that it's not subject
to judicial review.
However, I think-- -: This is all regulatory
and not part of the statute, correct?
-: That's correct.
This is-- -: Regulations
that SORB has made.
-: That's correct.
These are regulations that SORB has made.
This is based on the regulatory language
within the SORB not the SORB statute itself.
-: 20981.
I understand is a helpful case for you.
But in that case, there was a finding of no prejudice.
Isn't there prejudice here?
-: There's prejudice here in the sense
that her information is being posted online.
However, I think when we're looking at the prejudice
from that we talked about in Doe 209081,
they were talking about the prejudice
in the classification process.
And here, I think, that the classification process
occurred correctly
according to what was, what the laws
and the procedures were in place at that time.
So I think when you look at it through that lens,
then the the prejudice argument would hold true
to what occurred in 209081.
-: What is the public interest
in posting her information while incarcerated?
-: And candidly, your Honor,
I think that there's limited utility, to be very frank,
in posting this person's information online.
You know, where she doesn't have a release date
insight or a parole date until 2025.
But again, I hearken back to the fact that this was done
at a time when SORBS procedures were very different.
And the case law that was in place
was very different.
-: And so despite her due process rights,
which you say are not balanced
against any public interests whatsoever,
we're supposed to stick with what was in place in 2012?
-: Well, I think it's balanced against the public interest
in a finality of an agency decision
and the finality of decisions.
And I think, again, when we balance that interest
with the circumstances we have here
and candidly Doe's right
to accurate and current classification,
along with an alternative remedy
in place with this motion for reclassification mechanism,
then there was no procedural due process violation.
If there are no further questions,
I would rest on my brief.
-: Okay, thank you very much.
Attorney Nixon: Thank you.
-: Court is now adjourned by (mumbles) Massachusets.