Mass. Crim. Dig.: Moe v. SORB

Moe v. Sex Offender Registry Board, 467 Mass. 598 (2014)

I. Issue

In Moe v. Sex Offender Registry Board, the Massachusetts Supreme Judicial Court (“SJC”) considered: (1) whether the July 12, 2013 amendments to the sex offender registry law (“SORL”) are retroactive as applied to those classified as level two offenders on or before July 12, 2013; (2) whether the Legislature intended for retroactive application; and (3) if so, whether such application violates due process under the Massachusetts Declaration of Rights.

II. Holding

The SJC held that: (1) the July 12, 2013 amendments to the sex offender registry law are retroactive as applied to those classified as level two offenders on or before July 12, 2013; (2) the Legislature intended for retroactive application; and (3) such application violates due process under the Massachusetts Declaration of Rights.

III. Facts

Under MASS. GEN. LAWS ch. 6, § 178E (e) or (f), sex offenders must register with the Sex Offender Registry Board (“SORB”) within five days of sentencing. Following their registration, each sex offender receives a classification of level one, level two, or level three. Level two classification results “[w]here [SORB] determines that 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 . . . .” In comparison, a level three classification results “[w]here [SORB] determines that 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 . . . .”

Under the 1999 amendments to the SORL, “active dissemination” of level three sex offender information involved a “community notification plan” that required police departments to notify community organizations and specific individuals who were likely to encounter the offenders. It was not until 2003 that the Legislature included internet publication within the definition of “active dissemination.” However, the 2003 amendments specifically prohibited internet publication of information regarding sex offenders below level three. The 2013 amendments addressed here effectively change the definition of “public availability” (contained in the definition of level two classification) to include internet publication of level two sex offenders.

IV. Procedural History

After the amendments’ passage, but prior to enactment, plaintiffs filed for declaratory and injunctive relief in the county court. The single justice of the county court preliminarily enjoined the internet publication of any registry information regarding individuals classified as level two sex offenders on or before July 12, 2013. The single justice reserved and reported the plaintiffs’ complaint to the SJC for final adjudication. The plaintiffs essentially sought to render the preliminary injunction permanent.

V. Reasoning

A statute is retroactive if “the new provision attaches new legal consequences to events completed before its enactment.” Here, the contested amendments are retroactive because “they mandate a substantial new legal consequence” to determinations made prior to their enactment by requiring internet publication of a level two sex offender’s registry information. Previously, level two sex offender information was known only to police; only level one sex offenders were made publicly available under the law.

The Court then found that the Legislature intended the amendments to apply retroactively, regardless of the date of classification. The intent was necessarily implied by the Legislature’s requirement that SORB “‘make the sex offender information contained in the sex offender registry’ of level two offenders ‘available for inspection by the general public’ on SORB’s Web site.”

Determining whether the retroactive operation comports with due process required a reasonableness inquiry. A retroactive statute is reasonable when “it is equitable to apply [it] against the plaintiffs.” In determining reasonableness and equity, the Court examined the amendments from three perspectives: (1) the nature of the public interest that motivated the Legislature’s enactment, (2) the scope of the statute’s impact, and (3) the nature of the rights that the amendments retroactively affect.

Regarding public interest, the Court acknowledged that the amendments’ purpose was to provide easier public access to sex offender registry information to mitigate the risk of sexual assault. As to the scope of the impact, the amendments would subject 6,000 currently classified level two sex offenders to potentially permanent employment and housing discrimination, the negative stigma of being identified as a sex offender, and the risk of being harassed or assaulted. Lastly, regarding the nature of the rights retroactively affected, the Court distinguished between level three and level two sex offenders. Although the Court formerly found internet publication of level three sex offenders’ registry information constitutional, this was based on the notion that level three classification already required “active dissemination” by definition. Here, level two sex offenders classified prior to the 2013 amendments were deemed “not so dangerous that the interest of public safety required Internet publication of the offender’s registry information . . . .” Those offenders who did not challenge classification likely relied on such an understanding. Such offenders may have opted to challenge the determination had internet publication been included as a consequence of level two classifications.

After balancing these perspectives, the Court found the amendments as applied to individuals classified as level two sex offenders prior to July 12, 2013, to be unreasonable and unconstitutional.

VI. Judgment

The SJC remanded the matter to the county court for entry of an order permanently enjoining the internet publication of registry information regarding those individuals classified as level two sex offenders on or before July 12, 2013, because the recent SORL amendments are unconstitutionally retroactive.

Contributing Editor: Kevin C. Mortimer

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