Opinion
No. 97-571
May 1, 1997
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION IN LIMINE TO DETERMINE SCOPE AND STANDARD OF REVIEW UNDER G.L.c. 6, § 178M
John Doe brings this action under G.L.c. 6, § 178M to challenge the "risk designation" assigned to him by the Sex Offender Registry Board (the board) pursuant to the Sex Offender Registration and Community Notification Act, G.L.c. 6, §§ 178C-178O (the Act). The board now moves in limine for a ruling that, under G.L.c. 6, § 178M, judicial review of the board's risk level designation is confined to the record of materials that were before the board, so that Doe is not entitled to an evidentiary hearing before the court. The board also seeks a ruling that the standard of review governing the court's review is the one stated in G.L.c. 6, § 178M, viz., that the court may modify the board's risk designation only if that designation is "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law." For the reasons discussed below, the motion is denied.
Background
1. Sex Offender Registration
The Act, G.L.c. 6, §§ 178C-178O (enacted by St. 1996, c. 239), went into effect October 1, 1996. It requires that all sex offenders, as that term is defined in G.L.c. 6, § 178C, register in person with the police department in the city or town where the sex offender resides. That police department is then required to transmit the registration information to the Criminal History Systems Board (CHSB), and the CHSB is required to send the information to the police departments where the sex offender works and where the offense was committed, as well as to the Federal Bureau of Investigation.
A sex offender is defined as a person convicted of a sex offense or adjudicated as a youthful offender or delinquent juvcted of aenile by reason of a sex offense, or a person released from incarceration, parole or probation, whichever last occurs, on or after August 1, 1981. "Sex offense" is defined to include indecent assault and battery of (i) a child under fourteen, (ii) a mentally retarded person, and (iii) a person over fourteen; rape; rape of a child under sixteen with force, and rape of a child; assault with intent to commit rape, and assault of a child with intent to commit rape; kidnaping of a child under sixteen; unnatural and lascivious acts with a child under sixteen; any attempt to commit any of these crimes; and any violation of a similar law in another state. G.L.c. 6, § 178C.
There are additional provisions concerning registration and the duties of agencies with custody or supervision of sex offenders, but they are not pertinent in this case.
A sex offender who intends to move to a different city or town, to change his home address within the same municipality, or to change his work address, must notify the local police department of his residence and, if applicable, his intended new residence. G.L.c. 6, § 178E(e), (f).
"Every sex offender shall appear in person at least one time per year at the local police department to verify that the registration data on file remains true and accurate." Id., § 178F. The duty of a sex offender to register continues for "twenty years after the sex offender has been convicted or adjudicated" or, if the sex offender has been convicted of more than one sex offense, "the duty to register shall last for the offender's life." Id., § 178G. A sex offender, however, may petition the board to end the registration requirement earlier, but must prove by clear and convincing evidence that he has not committed a sex offense following conviction and is not likely to pose a threat to others' safety. Id.
When a sex offender registers, he must provide his name and aliases used; date and place of birth; sex, race, height, weight, eye and hair color; social security number, home address and work address; a photograph and a set of fingerprints; a description of the offense for which he was convicted or adjudicated, the city or town where the offense occurred, the date of conviction or adjudication and the sentence imposed; any other information which may be useful in assessing the risk of the sex offender to re-offend; and any other information which may be useful in identifying the sex offender. G.L.c. 6, § 178D (a)-(e). Failure to register may be grounds for revocation of probation or parole. Id., § 178E (b). In addition, the knowing failure to register or to verify registration information is a crime. Id., § 178H.
2. Community Notification
The board, established in G.L.c. 6, § 178K, is a subdivision of the CHSB. The board consists of five gubernatorial appointees with expertise in various criminal justice fields, including two psychologists or psychiatrists "with special expertise in the assessment and evaluation of sex offenders," and "knowledge of the forensic mental health system." One of the five members is the Secretary of Public Safety or her designee, who is to serve as chair. The board is responsible, inter alia, for "promulgat[ing] guidelines for determining the level of risk of re-offence of sex offenders, apply[ing] the guidelines to assess the risk level of particular offenders, develop[ing] guidelines for use by city and town police departments in disseminating sex offender registry information. . . ." Id., § 178K. The Act sets out a non-exclusive list of specific factors relevant to the risk of re-offense that the board is to consider in formulating its guidelines. The delineated factors are grouped into categories: criminal history factors indicative of a high risk of re-offense; other criminal history factors; conditions of release which minimize the risk of re-offense; physical conditions that may minimize the risk; whether the sex offender was a juvenile; psychological profiles which may indicate a risk of recidivism; participation in sex offender treatment and counseling; history of substance abuse and recent behavior. Id., § 178K.
The Act also gives direction for the board's guidelines on community notification. In particular, the guidelines are to provide for three levels of notification, depending on the designated re-offence risk. The board has designated these as levels I, II and III. Level II designations apply to sex offenders assessed with a moderate risk of re-offense.
Because only level II and III designations may be challenged in the Superior Court, see G.L.c. 6, § 178M, only those notification plans are at issue.
In such case, the board shall transmit the [sex offender] registration data to the police departments where the sex offender intends to live and work and where the offense was committed and to the Federal Bureau of Investigation. A level two community notification plan shall require the police department to notify organizations in the community which are likely to encounter the offender including, but not limited to, schools, day care centers, religious and youth organizations, and sports leagues. The police shall disseminate: (i) the name of the offender; (ii) home address; (iii) work address; (iv) the offense for which he was convicted or adjudicated, and the date of the conviction or adjudication; (v) the offender's age, sex, race, height, weight, eye and hair color; and (vi) a photograph of the offender, if available.
G.L.c. 6, § 178K(2)(b). Level III designation is assigned to offenders assessed with a high risk of re-offense.
In such case, the board shall transmit the registration data to the police departments where the sex offender intends to live and work and where the offense was committed and to the Federal Bureau of Investigation. A level three community notification plan shall require the police department to notify organizations in the community which are likely to encounter the offender and individual members of the public which are likely to encounter the offender.
§ 178K(2)(c). The sex offender information to be disseminated by the police in level III notification plans is the same as that in level II notification plans. In both level II and III notifications, the community receives warnings "regarding the criminal penalties for use of sex offender registry information to commit a crime or to engage in illegal discrimination or harassment of an offender and the punishment for threatening to commit a crime. § 178K(2)(b) and (c).
The description of level III community notification in G.L.c. 6, § 178K (2)(c) does not include any specific directions as to how "organizations or individual members of the public in the community" likely to encounter a sex offender are to be notified. The board's guidelines do address these points. See below at p. 15, n. 21.
In addition to the community notification plans, the Act also provides for the release by local police departments of the same type of sex offender registry information about any identified sex offender, regardless of risk level designation, upon request to a person who is eighteen or older in certain circumstances. G.L.c. 6, § 178J. Finally, any person who is eighteen or older may obtain from the CHSB, at no cost, a report indicating whether an identified person is a sex offender, the offense(s) for which he was convicted and the date(s) of conviction. Id., § 178I.
3. The Board's Risk Assessment Guidelines
The board has now promulgated regulations which set forth its risk of re-offense assessment and community notification guidelines — the guidelines called for in G.L.c. 6, § 178K. See 803 Code Mass. Regs. § 1.00 et. seq. The risk assessment provisions of the guidelines are organized by risk factor, and each factor is then broken down into three separate, descriptive statements, one of which is designated as low risk of re-offense, one as moderate risk, and the third as high risk. In addition, each factor is designated as either a core factor or supporting factor. Finally, the risk assessment guidelines provide for certain "overrides." These are certain descriptive statements which, if selected as applicable to a particular offender, presumptively result in a determination that the offender is to be classified in the highest level of risk of re-offense. 803 Code Mass. Regs. § 1.02 (4), (5).
The five "override" statements in the guidelines are: (1) the offender has a mental health disorder which includes a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior; (2) the offender has been adjudicated and/or convicted of multiple instances of sexual abuse/assault and/or the offender has been convicted of one or more crimes, sexual in nature, against a child and/or a mentally retarded person; (3) the offender has used some threats of violence in the commission of any of his offense(s), which included the use of a weapon, and/or causing bodily harm, and/or participation in a gang type assault, (4) the offender has been determined to be a moderate risk to re-offend as a result of the assessment and currently participates in a sex offender specific treatment program with unsatisfactory progress or, has no participation in a sex offender specific treatment program and/or participated in a sex offender specific treatment program in the past but is not currently involved in such a program; and (5) the offender has made recent threats against a person and/or expressions of intent to commit additional sexual offenses. 803 Code Mass. Regs. § 1.02 (5).
Under the guidelines, the actual risk assessment for a particular offender is accomplished by filling out a risk assessment guideline "instrument," or form, based on all the information made available to the board — which may include information submitted by the offender as well as victim impact statements. The person completing the form reviews each risk factor listed on the form, and checks off the one descriptive statement under each factor — the low risk, moderate risk or high risk descriptive statement — which best applies to the offender based on the information. The person then separately totals the low, the moderate and the high risk of re-offense statements that have been checked off, and for each statement, in each of the three columns, records whether the statement is part of a core or supporting factor. The sex offender's risk level is determined by where the highest number of core factor statements lie: in the low risk of re-offense column, the moderate risk column or the high risk column. However, in the event that one or more of the "override" statements have been selected, the offender will be classified as high risk (level III), "unless the board finds compelling justification to take other action. . . ." 803 Code Mass. Regs. § 1.02 (4).
It appears that a staff member of the board fills out the risk assessment guideline form, and then it is reviewed by the board, and may be adjusted.
The classification of sex offenders by the board does not involve an evidentiary hearing of any kind, or an opportunity for the sex offender to appear. The classification is based solely on written materials which the board obtains, as well as any materials submitted by the sex offender. The sex offender is not given notice of or the opportunity to challenge or comment on any of the information which the board obtains from other sources, or an opportunity to question or comment on the individual risk assessment guideline form completed by the board's staff before the board makes its determination.
4. John Doe
The plaintiff John Doe in this case is 61 years old. In November, 1987, he was convicted of rape of a child, in violation of G.L.c. 265, § 23, and indecent assault and battery of a child under the age of fourteen, a violation of G.L.c. 265, § 13B. The victim was his twelve year old stepdaughter. Doe received concurrent sentences of six to ten years for each offense. Doe has no history of any other criminal convictions.
The record does not reveal whether Doe was convicted after trial or pleaded guilty, but I infer there was a trial. Whether it was tried to a jury or the court is not revealed.
The materials submitted by the board contain a copy of a printout apparently from the Federal Bureau of Investigation, which indicate that someone with a name similar to John Doe's was arrested in Burbank, California in June 1993 on a charge of oral copulation with a person under fourteen. At a hearing recently held in connection with this motion in limine, Robert Baker, the board's staff member who filled out the risk assessment form for John Doe, filed an affidavit indicating that his investigation of the Burbank charge led him to conclude the person arrested was not John Doe. Based on the hearing, where Baker as well as Timothy App, the Secretary of Public Safety's designee to the board testified (App also submitted an affidavit), I accept that neither Baker nor the board considered the Burbank charge in connection with John Doe's classification.
Doe was released on parole on May 1, 1992, after serving approximately four and one-half years of his sentence. He was scheduled to complete his parole on January 30, 1997.
In accordance with the Act, Doe registered with the police department of his town of residence before October 1, 1996. Thereafter, the board sent Doe notice of the classification process, and Doe submitted certain information to the board, including two separate psychological evaluations and testing reports by a licensed psychologist who also served as Doe's therapist from 1991 to 1993; the reports contain no information suggesting a risk of re-offense. Doe also submitted a letter from his parole officer indicating that Doe had met all conditions of parole, including mandatory mental health counseling and no contact with the victim, and offering the officer's opinion that Doe was of little or no risk to re-offend; and a copy of a supporting letter from Doe's employer, written in 1992 to the pre-release center where Doe was then living. The board also had before it Doe's sex offender registry information form; probation and court records concerning the indictments and court history; documents from M.C.I. Concord including police reports regarding the underlying offenses and containing a report of statements by the victim at the time of Doe's arrest in 1987; documents from the Park Drive Pre-Release Center; information from the NCIC Interstate Identification Index; and Doe's FBI identification record.
The communications from the therapist indicate that as of June, 1993, the therapist had reached the clinical judgment that Doe was not in need of any continued counseling sessions — that the therapy had been successfully completed.
The letter is from the executive director of the veterans' shelter where Doe continues to work. The letter indicates that the employer is aware of Doe's offense.
The board classified Doe in level III, a high risk of re-offense, although Doe's risk assessment guideline form suggests that without any overrides, Doe would have been classified in level I because the scoring shows the greatest number of core factor statements fall in the low risk category. The guideline form indicates the board applied two override categories to Doe: he had been convicted of one or more sexual crimes against a child (see 803 Code Mass. Regs. § 1.02 (5)(b)), and he was not currently participating in a specific sex offender treatment program. (See id., § 1.02 (5)(d)).
There seems to be a question whether the override relating to sex offender treatment properly applies to Doe under the guidelines, since he does not appear to be classified as a moderate risk to re-offend. However, this issue is not before me at the present time.
Discussion
1. The Act's Provision for Judicial Review
The Act explicitly provides an opportunity for judicial review of a sex offender's risk designation when he is classified in either level II or level III. Thus, G.L.c. 6, § 178K states that among its other functions, the board is to "make recommendations to the superior court regarding risk levels and community notification plans in the cases where the offender has a right to judicial review and has requested a hearing as provided in [§ 178L]." The actual section defining the right to judicial review is G.L.c. 6, § 178M (§ 178M), which reads as follows:
There is no § 178L in the Act as it finally was enacted. This appears to be a vestige of an earlier version of the legislation. Judicial review is specifically provided in G.L. c. 6, § 178M, as discussed immediately below.
An offender who has been given a level two or level three designation may petition the superior court where the offender resides or intends to reside to challenge his risk designation. Such offender may request an opportunity to appear and be heard. At such hearing, the rules of evidence shall not apply and the court may review any materials described in the guidelines. The court shall, if requested, appoint counsel to represent the sex offender in the proceedings if the offender is deemed indigent in accordance with [G.L.c. 211D, § 2]. An attorney employed by the [criminal history systems] board may make an appearance to defend the risk designation given by the sex offender registry board and to represent the public interest. The court may modify the risk designation given by the sex offender registry board only if such designation is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law. The court shall reach its final decision within sixty days of the offender's petition for review. The court shall keep proceedings conducted pursuant to this paragraph and records from such proceedings confidential.
The issue raised by the board's motion in limine is the nature and scope of judicial review afforded by § 178M. The board argues that the section should be construed to provide solely for a review of the board's risk designation of the sex offender on the basis of the materials before the board — the board's record and not for a trial de novo with witness testimony or other types of evidence being presented directly in court. The board further asserts that the standard of review is to be the narrow one set forth in § 178M (viz., the court may change the board's classification "only if" the court finds it to be arbitrary and capricious, an abuse of discretion or not in accordance with law), and that no constitutional considerations of due process require otherwise. Doe argues that at the very least, the statute provides him an opportunity to be heard — to testify as a witness.
1. Section 178M is less than pellucid concerning the nature of the hearing before the court. On the one hand, there is express authorization for the sex offender to "request an opportunity to appear and be heard," language suggesting that the offender is able personally to articulate his position to the court in a way that may include the right to testify himself or present evidence. This seems to be a likely reading when the language is considered in connection with § 178M's provision for the appointment of counsel if an offender is indigent; the argument can be made that entitlement to counsel would be a hollow right if it is contemplated that counsel will be confined to the board's record and not free to present directly the position of the offender through his testimony or affidavit, or proffer any evidence on the offender's behalf. Moreover, the very fact that the Act does not provide for an adjudicatory-type hearing before the board, with its attendant procedural rights to present witnesses and other types of evidence, may support a reading of § 178M to authorize the use of at least some of those procedures in the next forum, that is, the court. Compare Sherman v. Rent Control Bd. of Brookline, 367 Mass. 1, 8-12 (1975) (rent control statute would not be read to afford a de novo hearing in the court where the plaintiff was entitled to an adjudicatory hearing before the rent control board).
In addition, § 178M provides that the rules of evidence are not to apply to the hearing, and the court may review any materials described in the guidelines. The board contends that (1) the reference to the rules of evidence is an "artifact" from an earlier version of the sex offender statute that contained a very different judicial review provision, and the reference should not be read as broadening the scope of the hearing before the Superior Court under the current version of § 178M; and (2) the reference to guidelines materials is best understood as indicating the court is to focus on the record before the board. It is equally reasonable, however, to read these provisions as providing the court with flexibility and broad discretion to consider a variety of types of evidence when reviewing a challenged classification. If the Legislature had intended to confine the court's review to the materials before the board, presumably the Legislature would have said so, rather than using the broader language of "any materials described in the guidelines." The Legislature knows how to provide that judicial review will be restricted to the agency's record when such a limitation is desired. See G.L.c. 30A, § 14, penultimate paragraph. Cf. Healey v. Commissioner of Pub. Welfare, 414 Mass. 18, 23 and n. 5 (1992).
On the other hand, there is no question that the narrow standard of review spelled out in § 178M is often used — and works most comfortably — in a context where that review is confined to an administrative agency's record. See G.L.c. 30A, § 14 (judicial review of adjudicatory administrative proceedings considers, inter alia, whether agency decision is arbitrary and capricious, an abuse of discretion or otherwise not in accordance with law, and is confined to the administrative record). Furthermore, the "fit" between this standard of review and confinement to the agency record is particularly close in this case because of the significance the Legislature has accorded the board's classification decision. Thus, § 178M provides that "[t]he court may modify the risk designation only if such designation is arbitrary and capricious . . . [emphasis supplied]."
Despite this reference to G.L.c. 30A, the parties agree that c. 30A, § 14 does not govern the court's review of the board's risk designation, since no adjudicatory proceeding, or indeed a hearing of any kind, takes place before the board as part of the risk of re-offense classification process.
The board's argument that § 178M contemplates a review of the board's record is also supported by a comparison of § 178M with the version of the judicial review provision appearing in Senate Bill No. 2276 (1996), the earlier version of the Act which was reviewed by the Justices of the Supreme Judicial Court in Opinion of the Justices, 423 Mass. 1201(1996). Senate Bill No. 2276 provided that the board was to make its recommendation of risk designation for every case to the Superior Court, and the court was "to make a final determination regarding the risk of re-offense and the community notification plan." The bill went on to state:
The sex offender may request an opportunity to appear and be heard. The court shall, if requested, appoint counsel to represent the sex offender in the proceedings if the sex offender is deemed indigent. . . . At any such hearing, the rules of evidence shall not apply and the court may review any materials described in the guidelines, including any statement by the victim, any materials submitted by the sex offender, and any other information that the court deems useful in assessing the risk of re-offense. . . .
[Emphasis supplied.] While certain portions of this earlier version were retained in § 178M, it is plain that in the latter section the Legislature has sought to enhance the role of the board in making the risk of re-offense determination, and concomitantly to restrict the role of the court.
2. Due Process Requirements
Doe argues in substance that regardless of whether the Legislature intended § 178M to provide for a narrow or broader scope of judicial hearing and review, the due process guarantees of the United States Constitution and the Massachusetts Declaration of Rights require that he be afforded the opportunity to appear and be heard in a meaningful way, including the right to testify and present evidence. I agree.
Doe's claim requires examination of (a) whether the sex offender classification and community notification provisions of the Act (and the board's implementing guidelines) implicate a protected liberty or property interest of the sex offender; and, if so, (b) whether the level of process provided in § 178M is constitutionally adequate. See Doe v. Poritz, 142 N.J. 1, 99 (1995). See also Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994).
In Opinion of the Justices, 423 Mass. 1201 (1996), the Justices touched on each of these issues, but found it unnecessary to resolve the first because they concluded that if the notification provisions of the proposed sex offender legislation before them did implicate a liberty interest, the process provided by that legislation was sufficient to satisfy constitutional requirements. Id. at 1229-1231. As indicated previously, the judicial review provision in the proposed legislation reviewed by the Justices, Senate Bill No. 2276, differed from § 178M, and would appear to offer greater procedural protections to the offender than does § 178M; certainly this is so if the construction of § 178M championed by the board is adopted. In the present circumstances, therefore, it becomes necessary to consider whether the section does touch on a constitutionally protected liberty or property interest of the sex offender.
See note 17 above, where the proposed provision is quoted.
a. Implication of a Liberty Interest
In Paul v. Davis, 424 U.S. 693 (1976), the Supreme Court considered the validity of a local police department's distribution to about 800 area merchants of a "flyer" containing mug shots of individuals identified as active shoplifters. The plaintiff's photo was included in the flyer although the shoplifting charges against him had been dismissed, and he argued that his inclusion violated a liberty interest protected against deprivation by the Due Process Clause of the Fourteenth Amendment. The Supreme Court reasoned that the distribution of the flyer may have given rise to a common law defamation action, but rejected the idea that a person's interest in reputation alone, "apart from some more tangible interests such as employment" (id. at 701), qualified as "liberty" or "property" that was "guaranteed against state deprivation without due process of law." Id. at 712. The Court also ruled that the flyer's distribution did not violate any constitutional right to privacy. Id. at 712-713. See Opinion of the Justices, supra, 423 Mass. at 1229-1230, 1236-1237 (discussing Paul v. Davis, but leaving open its application to the community notification provisions of the Act).
After Paul v. Davis, it is clear that State-imposed damage or "stigma" to one's reputation does not, on its own, qualify as deprivation of a liberty interest protected by the Due Process Clause of the Fourteenth Amendment. See id. at 701, 712. "[D]amage to reputation, even with all attendant emotional anguish and social stigma, does not in itself state a cause of action for violation of a constitutional right; infringement of more 'tangible interests', must be alleged as well." Borucki v. Ryan, 827 F.2d 842-843, 836 (1st Cir. 1987) (citations omitted). "[S]tigma plus" some other encumbrance or handicap prescribed by the State is necessary to invoke a liberty interest. Valmonte v. Bane, supra, 18 F.3d at 999.
"Megan's Law," the New Jersey sex offender registration and notification law, which has many significant similarities to the Act, has been the subject of State and Federal court review in that State. The reviewing courts in both jurisdictions have concluded that the notification provisions of Megan's Law do go beyond damage to reputation to implicate a constitutionally protected liberty interest. See Doe v. Poritz, supra, 142 N.J. at 103-104 (because stigma resulting from notification becomes coupled with protectible interest in privacy, offender's liberty interest is implicated). See also W.P. v. Poritz, 931 F. Supp. 1199, 1219 (D.N.J. 1996) (in addition to privacy coupled with harm to reputation, link between reputational damage and loss of employment implicates liberty interest). These courts have held, therefore, that constitutional due process must be provided before any deprivation occurs. Doe v. Poritz, 142 N.J. at 12, 99-106; W.P. v. Poritz, 931 F. Supp. at 1219. The extent of community notification prescribed by the Act for those, like Doe, classified in level III, is very broad — essentially the same as New Jersey's. See G.L.c. 6, § 178K (2)(b), (c). The board has only recently begun to classify sex offenders, and no community notification has occurred at least for Doe and all those who have filed a complaint for judicial review to date. Accordingly, no evidence appears to be available at this time concerning the actual effect of community notification on Doe or any other offender classified in level III or even level II. However, one may obtain information about the consequences of community notification from the experience of other states, none of which appears to have a statute with significantly broader notification provisions than Massachusetts. Courts in several other states have recognized the substantial impact notification has on an individual's life and employment opportunities. See Doe v. Patacki, 940 F. Supp. 603, 608-611 (S.D.N.Y. 1996). See also, e.g., Roe v. Office of Adult Probation, supra, 938 F. Supp. 1080, 1092 (D.Conn. 1976) ("[n]otification . . . by its very nature pervades into every aspect of an offender's life"); Artway v. Attorney General, supra, 876 F. Supp. 666, 668-689 (D.N.J. 1995) (notification "may well affect his employability . . ., his association with his neighbors, and thus his ability to return to a private law abiding life in the community. . . . [T]he court is troubled by any argument that such impediments do not rise to the level of affirmative, disability."); State v. Noble, 829 P.2d 1217, 1222 (Ariz. 1992) (availability of registry information impaired sex offender's employability); State v. Myers, 923 P.2d 1024, 1041 (Kan. 1996) ("[t]he practical effect of such unrestricted dissemination could make it impossible for the offender to find housing or employment").
The Opinion of the Justices discusses the New Jersey statute and judicial opinions interpreting at some length. 423 Mass. at 1211-1214, 1222.
Other courts have found that community notification of sex offender status constitutes punishment for purposes of the Ex Post Facto Clause or Double Jeopardy Clause. See, e.g., Roe v. Office of Adult Probation, 938 F. Supp. 1080, 1091 (D.Conn 1996); Artaway v. Attorney General, 876 F. Supp. 666, 692 (D.N.J. 1995); Doe v. Pataki, 940 F. Supp. 603, 604-605 (S.D.N.Y 1996); State v. Myers, 923 P.2d 1024, 1043 (Kan. 1996); State v. Ward, 869 P.2d 1062, 1069 (Wash. 1994); State v. Babin, 637 So.2d 814, 824 (La.App. 1994). See also Rowe v. Burton, 884 F. Supp. 1372, 1380 (D. Alaska 1994) (finding registration which allowed for disclosure of some registry information was violation of ex post facto provisions); State v. Taylor, 835 P.2d 245, 249 (Wash.App. 1992) (where there was an ex post facto claim regarding registration and registration included no restriction on dissemination of registry information). There is no ex post facto or double jeopardy issue raised to date in this case, but the opinions cited here offer some useful guidance in assessing the "stigma plus" factor(s) that may be raised in connection with the Act.
See pp. 4-5 above, where § 178K (2)(b)(c) are quoted and discussed. The community notification regulations promulgated by the board add more breadth to the Act's provisions. The regulations provide that level II and III notification plans are to include but not be limited to notifying the following organizations: youth football leagues; little league and Babe Ruth baseball leagues; youth soccer, tennis basketball and other sports leagues; religious organizations; boys and girls clubs; Girl Scouts and Boy Scouts; volunteer and community organizations having contact with children; malls and department stores; local merchant associations; sports facilities; entertainment facilities, including movie theaters and community theaters; neighborhood organizations; and all public meeting facilities. 803 Code Mass. Regs. § 1.03(5)(d). In addition, level III notification of individuals in the community is to take place via local cable television, publication in the local newspaper, or posting in a public place, such as the library or post office. Id., § 1.03 (6)(c). The local police are to repeat the dissemination of sex offender information to the organizations and other recipients set out in their community notification plans semiannually for level II offenders and quarterly for level III offenders. Id., § 1.03 (10). (The validity of the guidelines is not raised by Doe in this case, and is not considered.)
In Poe v. Attorney General, C.A. No. 96-6237-B (Suffolk Superior Court, December 19, 1996), a judge of this court (King, J.), granted a preliminary injunction barring community notification concerning the plaintiff's sex offender registry information while his complaint for judicial review was pending. The board has agreed to abide by the injunction in the case of every sex offender who brings an action for judicial review pursuant to § 178M.
In Doe v. Pataki, 940 F. Supp. 603 (S.D.N.Y. 1996), the court chronicled the reports of repercussions in other states. In New York, reporters kept a vigil outside an offender's home, a man whose victim was an adult woman was branded as a child molester by community members, another man lost his job, and he and his family were harassed by threatening phone calls. Id. at 608-609. In New Jersey, sex offenders and their families were run out of town, lost employment, were threatened, physically assaulted and suffered property damage. Id. at 609. In Washington, sex offenders were forced by public outrage to move, lost employment, and were physically assaulted and harassed. Id. at 610. Also in Washington, a twelve year old boy who was classified as a sexual predator, and his newly adoptive family, were evicted from their home. Id. California law enforcement officials did not have any reported information regarding harassment suffered by sex offenders. Id. In Oregon sex offenders experienced harassment and physical threats. Id. at 610-611. One sex offender had his home burned and another committed suicide ten days after community notification occurred. Id. at 611.
Doe is currently employed as a shelter worker and his employer is apparently aware of his sex offense conviction. However, faced with the scrutiny of co-workers, shelter clients or community members after community notification occurs, a once understanding employer might feel compelled to fire an employee who brings negative attention to a place of employment. See Doe v. Pataki, supra, 940 F. Supp. at 611 (businesses which were initially willing quietly to employ a sex offender sometimes do not provide jobs when the hiring will clearly become public). In sum, loss of employment and a less productive life appear to be realistic threats for a sex offender whose home and work address, identifying characteristics, and sex offense conviction or convictions are broadly disseminated throughout a community, even to the extent of being broadcast via cable television or newspaper. The length of the registration and notification requirements — presumptively 20 years for Doe — also must be factored in. While concededly there is no actual evidence of the community notification provisions' impact on Doe or any sex offender in Massachusetts, I agree with the opinions cited above that the combination of reputational harm and the likely impact on employment and the ability to maintain a workable daily life implicates a liberty interest. See e.g., W.P. v. Poritz, supra, 931 F. Supp. at 1219 (notification provisions create the "'stigma plus'" needed to implicate a liberty interest "by coupling the reputational damage with the loss of employment opportunities or, more directly, the continuing legal status as a registrant and the duties imposed as a result").
Doe's interest in privacy may also be implicated by the notification provisions of the Act. In Opinion of the Justices, supra, the Justices were highly skeptical, at best, that any constitutional right to privacy wholly protected sex offenders against disclosure of the types of personal information which are to be included in the community notification plans. 423 Mass. at 1234-1237. However, this view appears to leave open the question whether notification under the Act as passed and the board's implementing regulations at least implicates privacy rights — and thereby a liberty interest — to a degree that brings due process protections into play before disclosure takes place.
The Justices pointed out that the information subject to dissemination through the notification plans was all properly in the government's possession quite apart from the Act. From this, they reasoned that the constitutional right to privacy is not likely to be violated "by a governmental disclosure of information properly in its possession that the individual would rather not have disseminated." Opinion of the Justices, 423 Mass. at 1235. But see id. at 1243 (Liacos, C.J., concurring) (emphasizing that the Opinion does not consider a variety of constitutional questions, including "whether the notification provisions run afoul of a right to privacy under our State Constitution").
The privacy interests that may invoke constitutional protection have been found to include an individual's interest "in avoiding disclosure of personal matters." Whalen v. Roe, 429 U.S. 589, 598-599 (1977). See Opinion of the Justices, supra, 423 Mass. at 1235 n. 26. The Act's community notification provisions for those classified in level III (as well as level II, to a somewhat lesser extent) have a double impact on this class of privacy interest: the provisions have the effect of (1) coordinating and linking together a substantial amount of personal information about a sex offender — his name, home address, work address, a variety of physical identifying characteristics personal to him, and the fact that he is a convicted sex offender; and (2) disseminating that coordinated information to a very broad group of organizations and individuals in the sex offender's community, in a manner that will make it hard for them to ignore. It is true that the government does have all the information about the offender properly in its possession, and true as well, as the board notes, that the record of a person's conviction for a sex offense is a matter of public record. However, there is a vast practical difference in the availability of the information to members of the public when they must seek access themselves from a variety of disparate sources and when it is combined and effectively dropped as a complete package into their laps. The difference in impact on the privacy concerns of the sex offender follows suit. As the New Jersey Supreme Court noted in reviewing New Jersey's Megan's Law:
See pp. 4-5, 15 and n. 21 above. As indicated in note 21, for the level III sex offender, notification of individual members of the public likely to encounter him is to be effected by at least one of the following: local cable television; local newspaper; or posting the information in the neighborhood where the offender lives or works, such as the town hall, the local public library, or the local post office. 803 Code Mass. Regs. § 1.03(6)(c).
The distinction between merely providing access to information and compiling and disclosing that information is evident in this case. Government dissemination of information to which the public merely has access through various sources eliminates the costs, in time, effort, and expense, that members of the public would incur in assembling the information themselves. Those costs, however, may severely limit the extent to which the information becomes a matter of public knowledge. The Notification Law therefore exposes various bits of information that, although accessible to the public, may remain obscure. Indeed, . . . if the information disclosed under the Notification Law were, in fact, freely available, there would be no need for the law.
In exposing those various bits of information to the public, the Notification Law links various bits of information — name, appearance, address and crime — that otherwise might remain unconnected. However public any of those individual pieces of information may be, were not for the Notification Law, those connections might never be made.
Doe v. Poritz, supra, 142 N.J. at 86-87. The court went on to conclude as follows:
. . . We believe a privacy interest is implicated when the government assembles those diverse pieces into a single package and disseminates that package to the public, thereby ensuring that a person cannot assume anonymity — in this case, preventing a person's criminal history from fading into obscurity and being wholly forgotten. Those convicted of crime may have no cognizable privacy interest in the fact of their conviction, but the Notification Law, given the compilation and dissemination of information, nonetheless implicates a privacy interest.
Id. at 87. See Artway v. Attorney General, supra, 876 F. Supp. at 689. See also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 425-427 (1988) (aggregation of personal information included in releases by Registrar of Motor Vehicles "intensifies the invasion of privacy"). The notification provisions of the Act have the same characteristics and potential impact as its New Jersey counterpart, and I agree with the conclusion of the New Jersey Supreme Court that they implicate the privacy interests of the sex offender who is the subject of the notification.
In sum, I believe Doe has demonstrated that community notification concerning his status as a sex offender will have a sufficient impact on protected liberty interests (including an interest in privacy) to entitle him to invoke due process protections before the deprivation occurs. The question then becomes what process is due.
As should be obvious, there is no claim by Doe in this case that the notification provisions themselves are invalid because of the degree to which they invade protected liberty or privacy interests; the only issue is whether, and the extent to which, the provisions touch on protected interests in a manner that would entitle Doe to claim procedural due process protections.
b. The Process That is Due
Under the Federal and State Constitutions, "[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful manner." Neff v. Commissioner of the Dep't of Industrial Accidents, 421 Mass. 70, 80 (O'Connor, J. dissenting). The level of process due in a particular situation requires the balancing of three factors: "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any of additional or substitute procedural safeguards; and finally, the Government's interest, including . . . the fiscal and administrative burdens involved." Mathews v. Eldridge, 424 U.S. 319, 335 (1976). See Thompson v. Commonwealth, 386 Mass. 811, 817 (1986) (in determining what process is due, court must balance "the interests of the individual affected, the risk of erroneous deprivation of those interests, and the government's interest in the efficient and economic administration of its affairs").
In the present case, Doe's interest in his reputation, his employment, and his privacy are substantial, and are likely to be significantly affected by the classification he receives. A level I designation involves no affirmative community notification at all, and a level II designation involves no dissemination of information to individual members of the community (as opposed to organizations). Moreover, whatever classification given to Doe has the potential of lasting for 20 years.
The second consideration is the risk of an erroneous risk of re-offense classification on account of the procedures used. As described above, the board holds no hearing as part of the risk classification process, the sex offender has no opportunity to address the board in person, and is not even provided with information about, and thereby the ability to respond to, the materials the board is considering (other than any which the offender may send to the board himself). The board makes its risk designation by applying a set of presumptive overrides that by definition apply generally without regard to an individual offender's circumstances. The offender has no right to counsel at that stage of the proceeding. In all the circumstances, I am of the view that there is a substantial risk of erroneous determination by the board of an individual's risk of re-offense and corresponding risk classification.
See p. 6, n. 7 above where the overrides are described. There can be no question that in this case, the only reason Doe was classified in level III was that the board found two overrides to apply.
As for the third Mathews factor, the government's interests, clearly the government has a strong interest in protecting its vulnerable citizens from the threat of harm posed by sex offenders who may re-offend. See Opinion of the Justices, supra, 423 Mass. at 1226-1227, 1236. (At the same time, the government also would appear to have an interest in protecting those of its citizens who have been convicted of sex offenses from the stigma and other harm they would likely suffer if erroneously classified as posing a high or moderate risk of re-offense.) With respect to fiscal or administrative burdens, they will increase if an evidentiary hearing is required as part of the risk classification process, even if that hearing only occurs when an offender files an appeal. But the seriousness of the interests involved, considered in light of the potential for error, outweighs these burdens.
The fiscal burden is greater in cases involving indigent sex offenders, because the cost of counsel and any other fees and costs will have to be paid by the Commonwealth.
When the three Mathews factors are weighed against each other, the balance tips in favor of providing additional procedural protections to the sex offender. In particular, I conclude that at some point before he receives a final risk designation, Doe (or any similarly situated sex offender) has a due process right to claim a hearing where he can be heard and present evidence in his own behalf on the likelihood of re-offense. See Opinion of the Justices, 423 Mass. at 1230-1231, where the Justices discuss the process accorded in the judicial review section of Senate Bill No. 2276, the proposed sex offender legislation before them, concluding that this process which included provisions (1) requiring the court to make the final determination concerning risk of re-offense and community notification plan upon recommendations from the board, and (2) authorizing the court to consider, inter alia, any materials submitted by the sex offender, "and any other information that the court deems useful in assessing the risk of re-offense[,]" — was constitutionally adequate. See also Doe v. Poritz, supra, 142 N.J. at 30-35 (court grafts on to sex offender legislation a judicial review provision allowing the offender an opportunity to be heard and present information; Matter of C.A., 146 N.J. 71, 93-95 (1996) (discussing the hearing procedures established by Doe v. Poritz); W.P. v. Poritz, supra, 931 F. Supp. at 1222 (same).
See n. 17 above, where that judicial review section of Senate Bill No. 2276 is quoted.
With the exception of the standard of review provision in § 178M, discussed below, the section contains fairly general and flexible language that may permissibly be interpreted to accommodate the process that is constitutionally due. The court has a duty to construe a statute "to avoid an unconstitutional result or the likelihood thereof," Adamwicz v. Ipswich, 395 Mass. 757, 763-764 (1985), so long as "reasonable principles of interpretation permit it." School Comm. of Greenfield v. Greenfield Educ. Ass'n., 385 Mass. 70, 79 (1982). I also agree with the New Jersey Supreme Court that the scope of a hearing in a particular case — what types of information and evidence the court will entertain — will depend on the particular circumstances. See Matter of C.A., 196 N.J. 71, 94-95 (1996). See also Doe v. Poritz, supra, 142 N.J. at 31, 35.
The remaining issues for consideration, in terms of due process requirements, are the burden and standard of proof. With respect to burden, while it does not address the issue expressly, § 178M appears to place the burden squarely on the sex offender to prove that the board's risk classification is erroneous. First, there is no other logical way to interpret § 178M's provision that the court shall modify the board's classification only on a determination that it is arbitrary and capricious, an abuse of discretion or contrary to law. Second, the section's provision authorizing an attorney for the CHSB to appear and "defend" the board's risk designation is certainly inconsistent with a view that the CHSB or the board shoulders the burden of proof. The question is whether placing the burden of proof on the offender is constitutionally adequate.
This is not an easy question to answer. The proposed sex offender legislation reviewed in the Opinion of the Justices does not address burden of proof, and the Justices did not either. 423 Mass. at 1230-1231. However, it is relevant that in the context of the commitment of a sexually dangerous person (SDP), a civil proceeding, the court has ruled that due process requires the government to prove not only the basis for original commitment, but also to prove, on the SDP's petition for release, that he remains an SDP — and to do so beyond a reasonable doubt. See Andrews, petitioner, 368 Mass. 468, 483-489 (1975). The court emphasized there that the labeling of a person as an SDP, together with the deprivation of liberty for an indeterminate period of time, required no less. Id. at 488-490. More generally, the court observed in that case, quoting Speiser v. Randall, 357 U.S. 513, 526 (1958), that "'[d]ue process commands that no man shall lose his liberty unless the Government has borne the burden of producing the evidence and convincing the fact finder of his guilt.'" Andrews, petitioner, 368 Mass. at 486. See Commonwealth v. Travis, 372 Mass. 238, 250 (1977). See also Sheridan, petitioner, 422 Mass. 776, 777 (1996) (SDP); Commonwealth v. Barboza, 387 Mass. 105, 111 (1982) (SDP); Peterson, petitioner, 354 Mass. 110, 114 (1968) (SDP); Cf. Doe v. Doe, 377 Mass. 272, 281 (1979) (involuntary commitment of mentally ill ward by guardian requests court to find beyond a reasonable doubt that failure to commit would present a likelihood of serious harm by the ward); Superintendent of Worcester State Hospital v. Hagberg, 374 Mass. 271, 276 (1978) (proof beyond reasonable doubt required to commit a mentally ill person).
The Supreme Judicial Court has noted that it has "afforded the individual's interest in physical liberty more protection than required by the United States Supreme Court." Aime v. Commonwealth, 414 Mass. 667, 681 n. 18 (1993).
The sex offender classification and community notification provisions of the Act operate to deprive Doe of important liberty interests, including an interest in privacy. Moreover, the deprivation is of long duration. In the circumstances, the cases just cited give rise to a strong argument that the government should be required to prove the validity of its risk classification, since that classification is the source of the deprivation. Compare Thompson v. Commonwealth, supra, 386 Mass. at 817-818(it is constitutionally permissible to put burden of proof on involuntarily committed patient to establish grounds for discharge under G.L.c. 123, § 9(b), since in the context of entire statutory scheme, effect on liberty interest is limited in time). On the other hand, it is obviously the case that the deprivation of liberty which confronts Doe does not include physical liberty; we are not talking about confinement here. In New Jersey, the courts have concluded that the state may constitutionally impose on the sex offender the burden of proving that his risk classification is wrong, once the government satisfies its burden of producing prima facie evidence justifying the classification and level of community notification. W.P. v. Poritz, supra, 931 F. Supp. at 1222-1223. Matter of C.A., supra, 146 N.J. at 83-84.
While the question is close, I conclude that under Massachusetts law, it is not constitutionally permissible to put the burden of proof on Doe to prove the board's classification is in error. The potential harm to Doe's liberty and privacy interests, while certainly less than physical confinement, is significant and very long-term. The SDP and involuntary commitment cases cited just above suggest that since this is so, the burden must be on the government to prove the premise for its deprivation. See also Speiser v. Randall, supra, 557 U.S. at 520-521, 525-526, 528-529.
Speiser concerned taxpayers' challenge to a California statute which required the taxpayers to prove they were wrongfully denied a tax exemption for veterans on the grounds that they refused to sign oaths that they did not advocate the government's overthrow. The court held that because the taxpayers' rights of free speech were implicated, due process required the government to prove the taxpayers were disqualified for the exemption rather than the other way around.
The distinction between the nature of liberty interests found to exist in the SDP and involuntary commitment cases cited and the liberty interest of Doe presented here finds expression in a difference in standard of proof. Where, as here, it is not physical liberty but a more abstract form of liberty that is at issue — where the potential deprivation of liberty is not nearly as "massive" — there does not appear to be a reason why the standard of proof should be greater than that generally applicable in civil cases, viz., preponderance of the evidence.
Commonwealth v. Travis, 372 Mass. 238, 249 (1977). See Commonwealth v. Barboza, 387 Mass. 105, 111 (1982).
One last point on standard of proof. Section 178M specifically provides for an arbitrary and capricious standard of review. As previously discussed, this standard necessarily implies that the sex offender carry the burden of proving the board's risk designation is in error. It follows from my determination that the burden of proof must be with the board rather than the sex offender that the arbitrary and capricious standard cannot stand.
3. Constitutional Implementation of § 178M
The final issue for determination arises from this last conclusion: if § 178M is unconstitutional insofar as it places on the sex offender the burden of proving that the board's risk designation is arbitrary and capricious, an abuse of discretion or otherwise not in accordance with law, can this offending provision be stricken and the remaining provisions of the section implemented as a valid statutory enactment?
I believe § 178M can be so implemented.
"When a court is compelled to pass upon the constitutionality of a statute and is obliged to declare part of it unconstitutional, the court, as far as possible, will hold the remainder to be constitutional and valid, if the parts are capable of separation and are not so entwined that the Legislature could not have intended that the part otherwise valid should take effect without the invalid part."
Massachusetts Wholesalers of Malt Beverages, Inc. v. Commonwealth, 414 Mass. 411, 420 (1993), quoting Boston Gas Co. v. Department of Pub. Utils., 387 Mass. 531, 540 (1982). Accord, Murphy v. Commissioner of the Dept. of Industrial Accidents, 418 Mass. 165, 169 (1994). See G.L.c. 4, § 6, clause Eleventh ("[t]he provisions of any statute shall be deemed severable, and if any part of any statute shall be adjudged unconstitutional or invalid, such judgment shall not affect other valid parts thereof").
Section 178M provides an opportunity for a sex offender to challenge his risk designation in a judicial proceeding, and sets out the procedures that will govern that proceeding. (See p. 9 above where § 178M is quoted in full.) The provision defining the standard of review — from which implicitly flows the section's placement of the burden of proof — is contained in one separate sentence, the sixth of eight in the section. This sentence is plainly "capable of separation." Massachusetts Wholesalers, supra, 414 Mass. at 420. See Murphy v. Commissioner of the Dept. of Industrial Accidents, supra, 418 Mass. at 169. What remains, if that sentence is excised, is a section that authorizes a sex offender to "petition the superior court . . . to challenge his risk designation," describes in general terms some of the ground rules for the judicial hearing in terms of defining the parties, the sex offender's right to be heard and the availability of counsel, the general types of information the court may consider, etc., and then states that the court is to "reach its final decision within sixty days of the offender's petition for review." As so modified, § 178M thus provides for judicial review but is simply silent on the burden and standard of proof; these must be supplied, as is often the case, by governing legal principles and precedents. Cf. 1010 Memorial Drive Tenants Corp. v. Fire Chief of Cambridge, 424 Mass. 661, 663 (1997). In this respect, the excised version of § 178M is very similar to the judicial review provision in Senate Bill No. 2276 discussed in the Opinion of the Justices. On the issue of what the court was ultimately to decide, that provision simply stated the court was to "make a final determination regarding the risk of re-offense and the community notification plan." (See n. 17 above, where the provision is quoted.) There is no requirement that a statute expressly define burden and standard of proof, and § 178M as modified may operate as a valid, workable statute.
"The court may modify the risk designation given by the sex offender registry board only if such designation is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law."
What remains to consider is "whether the Legislature would have intended the entire [judicial review] section [§ 178M] to be invalid or whether [the standard of review] provision alone may be struck." Murphy, supra, 418 Mass. at 170. This requires consideration of whether the standard of review (and related burden of proof) provision is "so entwined" with the judicial review section as a whole "that the Legislature could not have intended the section to take effect without it." Id.
I cannot conclude the Legislature would have intended that no judicial review section take effect unless the arbitrary and capricious standard of review were part of it. For the reasons discussed above, the opportunity for a sex offender classified in level II or level III to challenge his risk designation is itself constitutionally required in light of the impact that the classification may have on him. Thus, without a judicial review section such as § 178M, it is reasonable to assume that at least insofar as sex offenders such as Doe are concerned — those who were adjudicated or convicted of a sex offense before the effective date of the Act — the community notification provisions of the Act could not permissibly be applied and put into effect. It seems very clear from the Opinion of the Justices, supra, and otherwise that the Legislature was and remains extremely interested in the effective implementation of a sex offender classification and community notification statute — among other considerations, Federal funding for State law enforcement is conditioned on such implementation. (See Opinion of the Justices, 423 Mass. at 1208-1210, describing the Federal statute in issue.)
As mentioned previously, the New Jersey Supreme Court added such an opportunity for level II and level III offenders on to New Jersey's very similar Megan's Law in order to save its constitutionality. Doe v. Poritz, supra, 142 N.J. at 30. In Opinion of the Justices, supra, although the Justices did not hold that a judicial review provision was constitutionally necessary, they expressly discussed the existence and scope of the proposed provision in the legislation under review in concluding that it satisfied due process. 423 Mass. at 1230-1231.
It is true that the Legislature appears to have added the provision in § 178M concerning the standard of review — and thereby altered and strengthened the role of the board in relation to the court in making the classification decision — following review of Senate Bill No. 2276 by the Justices. The argument can be made that this specific, late addition to the overall sex offender legislation evidences a strong legislative commitment to its importance. However, when the consequences of insisting on the arbitrary and capricious standard are considered, namely, the probable unconstitutionality of the Act's community notification scheme as a whole — at least as applied to a broad class of previously convicted sex offenders — it is only reasonable to assume that the Legislature would not have intended such a result, but would have preferred that the judicial review provision without this standard of review be put into effect.
There is nothing presented to indicate that if § 178M is read to entitle sex offenders to evidentiary hearings and to place the burden of proof on the board, the strain on the courts and the board will be of such enormous proportions that the question of how best to deal with the constitutional requirements of due process in this context must be resolved by the Legislature. Compare Aime v. Commonwealth, supra, 414 Mass. at 683-684.
Accordingly, I conclude that § 178M, to satisfy constitutional standards, is to be given effect without the sixth sentence defining the arbitrary and capricious standard of review.
ORDER
For the foregoing reasons, the motion in limine of the board is denied. At the hearing in this action, the Sex Offender Registry Board will be required to introduce evidence, in the form of the record before the Board, supporting the appropriateness of its risk designation in this case; the Board may call witnesses and introduce additional evidence as well. The plaintiff Doe will be entitled to cross-examine any witnesses called by the board, call witnesses in his own behalf, and present documentary evidence in support of his challenge to the Board's risk designation. The rules of evidence will not apply at the hearing. The burden will be on the board to establish, by a preponderance of the evidence, that its risk designation is appropriate.
______________________________ Margot Botsford Justice of the Superior Court
Dated: May 1, 1997