Opinion
14-P-470
06-11-2015
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 188011 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a judgment of the Superior Court affirming the level three classification decision of the Sex Offender Registry Board (board). He contends that the hearing examiner improperly (1) reopened the proceeding after it had concluded, (2) admitted Spanish language documents without an accompanying certified English translation, and (3) exhibited bias with regard to the two language interpreters. We affirm.
1. Standard of review. In determining the validity of the board's decision, a reviewing court "must give due weight to [the board's] experience, technical competence, and specialized knowledge . . . as well as to the discretionary authority conferred upon it." Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109 (2014), quoting from G. L. c. 30A, § 14(7). A reviewing court will not disturb the board's decision unless it was "arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law." Doe, Sex Offender Registry Bd. No. 291554 v. Sex Offender Registry Bd., 87 Mass. App. Ct. 210, 213 (2015) (citations omitted).
2. Motion to reopen. The hearing examiner acted within his discretion to grant the motion to reopen the evidence. At the initial hearing, the board had established that the plaintiff had been charged with attempted rape in Puerto Rico. However, evidence regarding the disposition of the charge was unavailable. The hearing examiner took the matter under advisement. Subsequently, the board filed a motion to reopen the evidence to submit court records from the Superior Court of San Juan, Puerto Rico, which established that the attempted rape charge had resulted in a conviction.
Contrary to the plaintiff's assertion, the hearing examiner did not impose a one-week deadline on the submission of additional evidence.
The hearing examiner properly granted the motion. "An administrative agency, in the absence of statutory limitations, generally has the inherent authority to reconsider a decision or reopen a proceeding to prevent or mitigate a miscarriage of justice." Soe, Sex Offender Registry Bd. No. 252997 v. Sex Offender Registry Bd., 466 Mass. 381, 395 (2013). Pursuant to 803 Code Mass. Regs. § 1.19(2) (2002), the hearing examiner is authorized to reopen the evidence upon request of a party for good cause.
"This authority may be invoked by . . . the board's own motion," and "the exercise of such authority rests in the sound discretion of the board." Soe, 466 Mass. at 396.
Here, the admission of the court records ensured an "adequate and comprehensive record" because it undisputedly established that the plaintiff had committed a sex offense. See 803 Code Mass. Regs. § 1.21(2)(f) (2002). Moreover, the lack of evidence regarding the plaintiff's attempted rape conviction was not the result of the board's inaction or delay, but rather a failure by Puerto Rico authorities to comply with the board's request for the court records. Thus, the circumstances supported the hearing examiner's decision. See Moe v. Sex Offender Registry Bd., 444 Mass. 1009, 1009-1010 (2005); Soe, 466 Mass. at 395. See also Northeast Metropolitan Regional Vocational Sch. Dist. Sch. Comm. v. Massachusetts Commn. Against Discrimination, 35 Mass. App. Ct. 813, 818 (1994) (holding order to reopen administrative proceeding to hear additional evidence not be abuse of discretion).
The plaintiff incorrectly asserts that the right against double jeopardy is implicated. See Opinion of the Justices, 423 Mass. 1201, 1240 (1996).
3. Admission of Spanish language documents. We also see no cause to disturb the hearing examiner's decision to admit the Spanish language court records from the Superior Court of San Juan, Puerto Rico, without an accompanying certified English translation. See 803 Code Mass. Regs. § 1.21(2)(f) (2002). Contrary to the plaintiff's assertion, Local Rule 5(g) of the United States District Court for the District of Puerto Rico, which requires foreign language documents to be accompanied by a certified English translation, is not binding in board classification hearings. See Biby v. Kansas City Life Ins. Co., 629 F.2d 1289, 1293 (8th Cir. 1980) (Federal District Court rules of practice are binding only on parties and court that promulgated them). Indeed, it is well settled that the "the rules of evidence [observed by courts] do not apply to a classification hearing." Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 647 (2012). See 803 Code Mass. Regs. § 1.19(1) (2002).
The plaintiff's contention that the board must identify which rules would be inapplicable is unsupported by law.
The plaintiff's related argument regarding his ability to establish a defense is also without merit. See Commonwealth v. Portillo, 462 Mass. 324, 328 (2012); Commonwealth v. Esteves, 46 Mass. App. Ct. 339, 345, S.C., 429 Mass. 636 (1999) (reversing on other grounds). See also Commonwealth v. Festa, 369 Mass. 419, 429-430 (1976). The Festa and Portilla cases are concerned with the fact finder's ability to comprehend foreign language evidence. See Festa, 369 Mass. at 429-430; Portillo, 462 Mass. at 328. That concern is not applicable here because there is no claim regarding the hearing examiner's understanding of the court records. See Esteves, supra at 345. Moreover, the plaintiff was sufficiently capable of comprehending the court records without a certified translation and had ample opportunity to translate them prior to the hearing.
4. Language interpreter. Finally, the hearing examiner acted well within his discretion regarding the first and second interpreters. General Laws c. 221C, § 5(d), inserted by St. 1986, c. 627, § 2, expressly permits a judge to remove an interpreter for "being unable to interpret adequately, including where the interpreter self-reports such inability." Here, the first interpreter voluntarily acknowledged her own inability to accurately translate the court records and thus, the hearing examiner acted with good cause.
The hearing examiner also acted impartially with regard to the second interpreter. Here, the second interpreter translated the phrase "tentativa de violacion" to mean "rape tentatively." The hearing examiner determined that this translation equated to "attempted rape." Upon objection by plaintiff's counsel, the hearing examiner recessed and instructed the interpreter to seek clarification from the Puerto Rico criminal documents on the phrase's meaning. When the hearing reconvened, the interpreter testified that further research indicated "attempted rape" was accurate. We conclude that the hearing examiner took appropriate steps to ascertain the proper translation of "tentativa de violacion" and make a credibility determination regarding the interpreter's testimony. See Doe, Sex Offender Registry Bd. No. 27914 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 610, 619 n.8 (2012). "We will not second guess those determinations." Ibid. We also conclude that the plaintiff had adequate notice that translators would be required to consider the document.
Finally, the plaintiff had more than sufficient opportunity to contest the accuracy of the interpreter's translation. He had the relevant Spanish language documents for seven months prior to their admission in evidence. He was also given an opportunity after the hearing to challenge the accuracy of the translation, which he has never done.
5. Conclusion. For the reasons articulated above, we affirm the Superior Court judgment.
Judgment affirmed.
By the Court (Kantrowitz, Kafker & Hanlon, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: June 11, 2015.