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Commonwealth v. Kateley, Mass. Rosado, Mass. An individual who has been convicted of a sex offense as defined under G. See G. Registration and classification. Sex offenders are subject to a two-step registration and classification process. First, the board assesses an individual's risk of reoffense and degree of dangerousness and prepares a recommendation as to the appropriate classification level for the offender. The board has identified thirty-eight factors to be considered in making this determination.

See Code Mass. The final classification level is not based on a cumulative analysis of the applicable factors, but rather a qualitative analysis of the individual sex offender's history and personal circumstances. If the sex offender objects to the board's recommendation, he or she has the right to a de novo evidentiary hearing before an examiner who makes a final determination as to the offender's duty to register and the appropriate classification level.


At the evidentiary hearing, the examiner must consider the criteria that the board has identified in its regulations when assessing an offender's risk of reoffense and degree of dangerousness. The examiner then issues a written decision and places the offender into one of three classification levels.

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The sex offender has the right to counsel at this initial classification hearing. Where "the risk of reoffense is low and the degree of dangerousness posed to the public is not such that a public safety interest is served by public availability," the sex offender is classified as level one. Where "the risk of reoffense is moderate and the degree of dangerousness posed to the public is such that a public safety interest is served by public availability of registration information," the offender is classified as level two.

Where "the risk of reoffense is high and the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination" of the offender's information, the offender is classified as level three. Doe v. Lynn, Mass. The standard of proof required to satisfy due process has been the subject of much litigation.

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The sex offender registry law calls for the board to prove the appropriateness of a sex offender's classification by a preponderance of the evidence. In , two years after the passage of the sex offender registry law, we held that this preponderance of the evidence standard satisfied due process under the State and Federal Constitutions.

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However, seventeen years later, in light of changes to the sex offender registry law that had significantly increased the burdens on registered offenders, and other factors such as greater Internet dissemination of sex offender information, we determined that the preponderance of the evidence standard no longer satisfied due process. See Doe No.

Rather, the "extensive private interests now affected by classification counsel in favor of requiring a higher standard of proof," namely clear and convincing evidence, for final classification hearings. Under the statutory and regulatory scheme, a sex offender may be reclassified in one of two ways. Pursuant to G. The offender has the right to challenge the reclassification, may submit "documentary evidence relative to his risk of reoffense and the degree of dangerousness posed to the public," and has the right to counsel.

Board-initiated reclassifications must follow the same procedures used for original classifications. The board's regulations specify a separate procedure for sex offenders seeking downward reclassification. An individual classified as a level two or level three sex offender may seek reclassification based on a decreased risk of reoffense or degree of dangerousness.

Offenders are eligible to seek downward reclassification no sooner than three years after the date of their final classification. An offender who has committed a new sex offense since his or her original classification, however, must be offense free for at least ten years before he or she can seek reclassification. Offenders who have experienced "a material change in circumstances related to a medical condition" may file a motion for reclassification less than three years after the date of their prior classification.

The procedure for offender-initiated downward reclassifications is as follows. The offender must file a motion detailing why reclassification is appropriate and include supporting documentation. The offender must also supply "an affidavit that provides an overview of his or her behavior and lifestyle during the three years prior to the filing of his motion for reclassification.

The board bases its decision on new and updated information but may also consider information the board used in prior classification decisions, including any prior written decisions by the board. The sex offender registry law does not specify the standard and burden of proof for reclassification hearings.

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However, the board's regulations dictate that for offender-initiated motions for reclassification, the burden is on the offender to prove why downward reclassification is appropriate by clear and convincing evidence. Noe's reclassification. The plaintiff, Noe, was convicted of open and gross lewdness and lascivious behavior on five separate occasions between and None of these incidents involved physical contact with the plaintiff's victims. Noe was classified as a level three sex offender in January, In the six years following his final classification, Noe lived in the community without any further sexual reoffenses.

In January, , he filed a request for downward reclassification and was granted a hearing before the board. In his letter to the board, Noe indicated:. First, I would like to accept full responsibility for my poor choices and behavior. I have a long history of criminal activity which has had an impact on innocent people. I express sincere regret for affecting others in a negative way and have made major changes in my life. I admit to having a history of alcoholism and drug addiction. I believe that my past behavior is directly related to my substance abuse issues.

I am currently sober and have not engaged in any such conduct in [seven] years. I am currently homeless and am finding it extremely difficult. There are many people who are aware of my history and status as a level [three] sex offender which make it hard to move on in my life. This public information creates a barrier for me to gain employment and become a productive member of society. I am truly a changed man and would like an opportunity to start my life over again.

Please take this request into consideration. Noe appeared, pro se, before a panel of three examiners.

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Noe did not offer new evidence or call any witnesses. The board introduced only an updated copy of Noe's board of probation record and correspondences to the Boston police indicating that he was seeking reclassification. During the hearing, Noe expressed confusion about the kind of documentation he needed to provide to the examiners. Although the board acknowledged that Noe "has remained offense free to the community for approximately seven years" and "has maintained sobriety for approximately five and one half years," the majority of the board concluded by a preponderance of the evidence [Note 8] that Noe "remains a high risk of reoffense and a high degree of dangerousness.

Noe sought judicial review of the board's decision in the Superior Court, pursuant to G. He moved for judgment on the pleadings under Mass. While that motion was pending, Noe amended his complaint to include claims for declaratory relief under G. The Superior Court judge declared that the board's regulations, which place the burden of proof on the offender seeking reclassification, violate the offender's right to due process under the Fourteenth Amendment to the Federal Constitution and art. The judge further declared that the board's failure, through its regulations and procedures, to provide counsel for indigent offenders who seek reclassification violates G.

The board appealed, and we transferred the case to this court on our own motion. Demoulas Super Mkts. A court may rule on a motion for judgment on the pleadings seeking declarations of the parties' rights if there are no material issues of fact left to be determined.

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See id. Standard and burden of proof in reclassification proceedings. The board's regulations place the burden of proof on the offender to prove by clear and convincing evidence that downward reclassification is appropriate.

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To determine whether this standard and burden of proof violate due process, we apply the familiar test outlined in Mathews v. Eldridge, U. Private interests. The private interests at stake in sex offender registration and classification are significant. The "liberty and privacy interests" implicated include "stringent affirmative reporting requirements," "stigma and legal restrictions that will make it harder. Doe No. The effects of registration and classification are "continuing, intrusive, and humiliating. Attorney Gen. Dissemination of a sex offender's registry information and photograph on the Internet also widely publicizes the offender's registration and classification status, magnifying their effects.

The board asserts nonetheless that reclassification implicates lesser private interests because the offender has already been. See, e. We recognize that an offender who has previously been registered is not in the same position as someone who has never offended or never been registered.