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SJC-12160

     KRISTI KOE1       vs.    COMMISSIONER OF PROBATION & another.2



            Suffolk.         May 1, 2017. - September 27, 2017.

   Present:     Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, &
                             Cypher, JJ.3


Sex Offender. Practice, Criminal, Record. Due Process of Law,
     Sex offender, Retroactive application of statute. Statute,
     Retroactive application.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on March 18, 2016.

     The case was reported by Hines, J.


     Beth Eisenberg (Catherine J. Hinton also present) for the
plaintiff.
     Susanne G. Reardon, Assistant Attorney General, for the
defendants.




     1
         A pseudonym.
     2
       Acting director of the Department of Department of
Criminal Justice Information Services.
     3
       Justice Hines participated in the deliberation on this
case prior to her retirement.
                                                                      2


    CYPHER, J.    In this case, we confront part of a statute

that retroactively prohibits the plaintiff from ever sealing the

record of her sex offenses because she was once classified as a

level two sex offender, even though the Sex Offender Registry

Board (SORB) has determined that the plaintiff no longer poses

any cognizable degree of dangerousness or risk of reoffending,

no longer believes that she should be classified as a level two

sex offender, and has relieved her of the obligation to register

as a sex offender.     The plaintiff argues that, as a applied to

her, the retroactive statutory prohibition on sealing sex

offenses violates her due process rights under the Massachusetts

Declaration of Rights.    Because we agree with the plaintiff that

the challenged portion of this statute, as applied to her, is

retroactive and unreasonable, we conclude that it cannot be

enforced against her.

    Background.      We summarize the following facts from findings

made by a Superior Court judge and by a SORB hearing panel, as

well as from other record materials.

    1.   Underlying offense and classification.     In 1995, Kristi

Koe was found guilty by a Superior Court jury of one count of

rape and abuse of a child, G. L. c. 265, § 23, and one count of

indecent assault and battery on a child under age fourteen,

G. L. c. 265, § 13B.    The offenses occurred in 1990, when Koe

was twenty-two years old.    The victim was a twelve year old girl
                                                                      3


who was then living with Koe and Koe's sister.     Over a ten-day

period, Koe engaged in various sexual acts with the victim.

     As a result of her convictions, SORB recommended, and Koe

accepted, a classification as a level two sex offender, pursuant

to G. L. c. 6, §§ 178C-178Q, and applicable regulations.     Her

obligation to register as such commenced in 2003.4

     2.    Reclassification hearing.   In 2013, Koe petitioned a

SORB hearing panel for reclassification and relief from the

obligation to register.    In its decision, the hearing panel

considered the following evidence, which is incorporated into

the record before this court.

     Koe herself was sexually abused as a child.     At the time of

her offenses in 1990, Koe suffered from drug and alcohol

addiction, along with untreated head injuries and mental health

issues.    However, the 2003 death of her mother was a turning

point for Koe.   She promised her mother "she would turn her life

around."

     Koe accepted responsibility for her sex offenses and

expressed remorse over the harm that she had inflicted upon the

victim.    The events in 1990 were her only instance of sexual


     4
       The sex offender registry law, first enacted in 1996, see
St. 1996, c. 239, § 1, and rewritten in 1999, see St. 1999,
c. 74, § 2, may apply to persons convicted before its enactment.
See Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender
Registry Bd., 450 Mass. 780, 785 (2008) (Doe No. 8725). But see
discussion at note 5, infra.
                                                                    4


misconduct.   Koe attended sex offender therapy in 1998 and again

from 2010 to 2012, and completed a relapse prevention plan.       One

psychologist opined that Koe has "no deviant interests in

children of any age" and does not otherwise fit the

psychological profile of someone likely to reoffend.    The

hearing panel credited research showing an "extremely low"

reoffense rate among female sex offenders.

    Koe has been sober since 2009, having completed several

addiction and recovery programs.    She has received "extensive

services" from mental health and vocational rehabilitation

providers.    She has participated in various support group

programs, has a stable residence at a women's shelter, and has

positive social supports.

    Ultimately, the hearing panel concluded that Koe

"present[ed] no cognizable risk to reoffend and no cognizable

degree of dangerousness."   However, the panel determined that,

because Koe had been convicted of a "sexually violent offense,"

G. L. c. 6, § 178C, she was not eligible, as a matter of law,

for relief from the obligation to register, see G. L. c. 6,

§ 178K (2) (d).    Accordingly, it ordered her to register as a

level one sex offender.

    3.   Superior Court proceedings.    Koe appealed from the

hearing panel's order to register to the Superior Court pursuant

to G. L. c. 30A.   In April, 2014, Koe obtained a preliminary
                                                                      5


injunction ordering SORB to remove her from the sex offender

registry and enjoining SORB from requiring her to register.      In

April, 2015, a Superior Court judge accepted SORB's conclusions

regarding Koe's lack of dangerousness and entered an order

granting Koe permanent relief.5   SORB did not appeal from that

ruling, and we take no position on it.

     4.   Petition to seal.   Soon after being relieved of the

obligation to register as a sex offender, Koe filed a petition

with the Commissioner of Probation (commissioner) to seal her

criminal record, pursuant to G. L. c. 276, § 100A, and related

provisions.   Section 100A contains a particular subsection that

governs the sealing of sex offenses.   It provides:

          "Sex offenses, as defined in [G. L. c. 6, § 178C],
     shall not be eligible for sealing for [fifteen] years
     following their disposition, including termination of
     supervision, probation or any period of incarceration, or
     for so long as the offender is under a duty to register in
     the commonwealth or in any other state where the offender

     5
       The Superior Court judge based his decision on this
court's opinion in Doe No. 8725. In that case, we examined
whether the Sex Offender Registry Board (SORB) could
retroactively apply the 1999 amendments to the sex offender
registry law to subject the petitioner to mandatory lifetime
registration based on the petitioner's preenactment (1979)
conviction. Doe No. 8725, 450 Mass. at 781, 785-786. We held
that such a retroactive application of the law was unreasonable,
and therefore did not comport with due process, absent a hearing
to assess the petitioner's level of dangerousness and risk of
reoffense. Id. at 793. Based on that holding, the judge in
Koe's case concluded that because SORB had already determined
that Koe presented no level of dangerousness and no risk of
reoffense, SORB could not, within the bounds of due process,
impose the mandatory lifetime registration requirement upon her
based upon a retroactive application of the registry law.
                                                                    6


     resides or would be under such a duty if residing in the
     commonwealth, whichever is longer; provided, however, that
     any sex offender who has at any time been classified as a
     level [two] or level [three] sex offender, pursuant to
     [G. L. c. 6, § 178K], shall not be eligible for sealing of
     sex offenses" (emphases added).

G. L. c. 276, § 100A (6).   Under the criteria of this

subsection, Koe's sex offenses would be eligible for sealing

were it not for the final clause, which prohibits the sealing of

sex offenses by someone who has ever been classified as a level

two or level three sex offender.   See id.   Accordingly, in

September, 2015, the commissioner responded that Koe was

ineligible to seal her sex offenses because she was once

classified as a level two sex offender.

     5.   Procedural history.   Koe challenged the commissioner's

response in March, 2016, by way of a complaint in the county

court seeking declaratory, injunctive, and extraordinary relief.

Without decision, the single justice reserved and reported the

case to the full court.

     Discussion.   Koe argues that § 100A, as applied to her, is

retroactive and unreasonable, and therefore unconstitutional.6

The defendants dispute that § 100A applies retroactively and

argue that, even if it does, it is constitutionally reasonable

     6
       She also argues that G. L. c. 276, § 100A, as applied to
her, violates her substantive due process, procedural due
process, and equal protection rights under the Federal and
Massachusetts constitutions. Because our resolution of her
retroactivity argument renders these claims moot, we do not
reach them.
                                                                      7


within the bounds of due process.      Therefore, we must decide

whether § 100A applies retroactively to Koe and, if so, whether

its application to her is reasonable.

       1.   Retroactivity.   Generally, a statute operates

retroactively when it "attaches new legal consequences to events

completed before its enactment."      Moe v. Sex Offender Registry

Bd., 467 Mass. 598, 607 (2014), quoting Landgraf v. USI Film

Prods., 511 U.S. 244, 270 (1994).      The defendants argue that

§ 100A (6) did not attach a new legal consequence to Koe's

classification as a level two offender because she was not

eligible to seal her sex offenses at the time it became

effective.    This argument misunderstands our cases applying the

"new legal consequences" test.

       For example, in the Moe case, we held that amendments to

the sex offender registration law were retroactive because they

attached a new legal consequence (Internet publication of a sex

offender's registry information) to events completed before the

date of enactment (SORB's final determination that the offender

should be given a level two classification).      Moe, 467 Mass. at

609.    Similarly, we held that earlier amendments to the

registration law were retroactive because they imposed mandatory

lifetime registration with SORB based on the petitioner's

preamendment conviction.      Doe, Sex Offender Registry Bd. No.
                                                                     8


8725 v. Sex Offender Registry Bd., 450 Mass. 780, 787 (2008)

(Doe No. 8725).

    Section 100A (6) functions in a similar fashion with

respect to Koe.   As applied to her, it attached a new legal

consequence (a permanent prohibition against the sealing of sex

offenses, effective in 2012) to an event that occurred nearly a

decade earlier (SORB's classification of her, in 2003, as a

level two sex offender).    This consequence did not exist at the

time of Koe's classification in 2003.   See G. L. c. 276, § 100A,

as amended through St. 1974, c. 525, and note 9, infra.     The

defendants are correct that a prohibition against sealing is a

different consequence from the registration-related consequences

at issue in Moe and Doe No. 8725.    But such a difference does

not change the fact that, in Moe, Doe No. 8725, and here, the

consequences at issue arise only from a retroactive application

of the statute to the petitioner.

    The defendants' core argument -- that § 100A is not

retroactive as applied to Koe because, at the time it was

enacted, she was not yet eligible to seal her sex offenses --

amounts to an argument that we should apply the "vested

substantive rights" test for retroactivity rather than the "new

legal consequences" test.    See Moe, 467 Mass. at 607-608.    The

"vested substantive rights" test examines "the rights and

obligations of the parties as they existed immediately before
                                                                     9


and after the effective date" of the challenged statute, and

deems the statute retroactive "only where vested substantive

rights of the parties have been adversely affected."    Id.,

quoting McCarthy v. Sheriff of Suffolk County, 366 Mass. 779,

781 (1975).   However, in Moe, supra at 609, we specifically

rejected this test as "conclusory."   We remarked that "[t]he

impairment of a vested substantive right certainly qualifies as

a new legal consequence that would render a statute retroactive,

but it is not the only new legal consequence that would do so."

Id. at 608.

     We see no reason now to reconsider our adoption of the "new

legal consequences" test.   Accordingly, we conclude that § 100A

applies retroactively to Koe.7

     2.   Reasonableness.   Having determined that § 100A, as

applied to Koe, operates retroactively, she bears the burden of

making a factual showing that the statute is unreasonable in its

application to her.8   See Doe No. 8725, 450 Mass. at 788.     The


     7
       Although not expressly argued by the parties, there can be
little doubt that the Legislature intended for the challenged
portion of § 100A to apply retroactively, as it prohibits
sealing by "any sex offender who has at any time been classified
as a level [two] or level [three] sex offender" (emphasis
added). G. L. c. 276, § 100A (6). See Moe v. Sex Offender
Registry Bd., 467 Mass. 598, 609-610 (2014) (discussing
legislative intent and retroactivity).
     8
       The challenged portion of § 100A explicitly incorporates
components of the sex offender registration scheme, which we
have said previously is "generally regulatory rather than
                                                                    10


"principal inquiry" as to reasonableness asks "whether it is

equitable to apply the retroactive statute against the

plaintiff[]."   Id., quoting American Mfrs. Mut. Ins. Co. v.

Commissioner of Ins., 374 Mass. 181, 191 (1978).     See Moe, 467

Mass. at 611 (discussing "special risks" posed by retroactive

legislation and noting that justifications that satisfy due

process for prospective legislation may not do so for

retroactive legislation).     To decide the question of

reasonableness, we consider three factors:     (1) the nature of

the public interest which motivated the Legislature to enact the

statute; (2) the nature of the rights affected; and (3) the

extent or scope of the statutory effect or impact.        Doe No.

8725, 450 Mass. at 788, quoting American Mfrs. Mut. Ins. Co.,

supra.   Because Koe brings only an as-applied challenge to

§ 100A (6), we limit our review of the statute to the facts and

circumstances of her case.

    With respect to the first factor, two major public

interests undergird § 100A:     protecting public safety and

facilitating the rehabilitation of ex-offenders by enhancing

their employment prospects.    See, e.g., Governor Patrick Signs

Strong Anti-Crime Package To Protect Public Safety, Expand Job



punitive." Doe No. 8725, 450 Mass. at 787-788 (discussing
different standards for retroactive punitive laws as opposed to
retroactive regulatory laws). The parties do not challenge
this.
                                                                    11


Opportunities, Press Release, Aug. 6, 2010 (collecting

statements of Governor, Lieutenant Governor, Senate president,

and House speaker).     Subsection (6) of § 100A was adopted in

2010 as part of a broad overhaul of the Commonwealth's system

for regulating availability of criminal records.    See generally

St. 2010, c. 256, §§ 128-130.    This overhaul "recalibrate[d] the

balance between protecting public safety and facilitating the

reintegration of criminal defendants by removing barriers to

housing and employment."    Commonwealth v. Pon, 469 Mass. 296,

307 (2014).    The 2010 revisions expanded access to official

criminal records for employers, housing providers, and licensing

authorities.   Id. at 303-304.   This recognized, in part, that

such entities "have legitimate business reason[s] for wanting to

know prospective employees' or recipients' criminal histories"

(quotations omitted).    Id. at 304.   To facilitate the goal of

reintegration, however, the revisions contain certain procedural

protections for defendants seeking employment, while also

changing the automatic sealing provisions of § 100A and

expanding discretionary sealing under § 100C.     Id. at 305-306.

These changes "strongly indicate[d] that the Legislature was

concerned with the collateral consequences of criminal records

and sought to make sealing broadly available to individuals

whose criminal histories or records no longer presented concerns

of recidivism."   Id. at 306.
                                                                    12


    Regarding the second factor, the nature of the rights

affected, the "recalibration" of § 100A affected important

rights on both sides of the equation.   There can be little doubt

that access to accurate criminal record information serves

"important policy needs [of] employers, housing providers, and

licensing authorities."    Pon, 469 Mass. at 304.   On the other

side, the stakes are high for Koe as well.    We need not

recognize a fundamental right to seal a criminal record in order

to appreciate "what has been articulated widely in criminal

justice research:    that gainful employment is crucial to

preventing recidivism, and that criminal records have a

deleterious effect on access to employment."    Id. at 307.

Sealing, in turn, "is a central means by which to alleviate the

potential adverse consequences" that flow from the availability

of such records.    See id.

    The record in this case substantiates the general principle

we acknowledged in Pon.    As a practical matter, the exposure of

Koe's criminal record is virtually certain to damage her

prospects for employment and housing.   In that way, the

prohibition against sealing is likely to constitute a major

barrier to her efforts to reestablish herself as a productive

member of society -- a barrier that is not connected to any

substantiated concern about Koe's present dangerousness or risk

of reoffense.   Compare Doe No. 8725, 450 Mass. at 790
                                                                   13


(recognizing that rights affected by lifetime registration

requirement, "while not fundamental, are nevertheless

substantial").   Again the defendants attempt to distinguish Doe

No. 8725 by pointing out that the prohibition against sealing is

a less-severe consequence than mandatory lifetime registration

with SORB.    Even so, that distinction does not diminish the

potential quantum of harm that the bar to sealing will cause for

Koe.

       The third factor, the extent or scope of the impact of

§ 100A (6) upon Koe, primarily concerns the damage wrought to

Koe's reliance interest at the time of her classification in

2002 and 2003.   At that juncture, when Koe accepted SORB's

recommended classification as a level two sex offender, the

then-existing scheme generally permitted the sealing of felony

offenses after a period of fifteen years, regardless of a sex

offender's historic classification level.9   See G. L. c. 276,

§ 100A, as amended through St. 1974, c. 525.    Koe was entitled

to reasonably rely on this state of the law.    See Leibovich v.

Antonellis, 410 Mass. 568, 578-579 (1991) (discussing reasonable

reliance on previous state of law in context of retroactivity

challenge).    Indeed, she had no way of anticipating that, in

       9
       At the time of Koe's classification in 2003, G. L. c. 6,
§ 178G, as amended through St. 1999, c. 74, § 2, prohibited
relief under § 100A for so long as a sex offender had a duty to
register with SORB. Because Koe has been relieved of that duty,
§ 178G is not at issue in this case.
                                                                     14


2012, the Legislature would decide to use her 2003

classification as a reason to permanently prohibit her from

sealing her sex offenses.   Cf. Vartelas v. Holder, 566 U.S. 257,

272-275 (2012) (rejecting notion that presumption against

retroactivity requires showing of detrimental reliance).       Had

Koe known of this consequence, she very well might have sought

instead to be classified as a level one sex offender.        See Moe,

467 Mass. at 614–615 (discussing "inequity" of retroactively

requiring Internet publication of registry information for

offenders who did not challenge level two classification based

on accurate understanding that such classification, at the time,

did not carry that consequence).

    In examining this third factor, we also have weighed both

"[1] the duration of the burden imposed by the retroactive

statute and [2 'whether the scope of the statute is narrowly

drawn to treat the problem perceived by the Legislature.'"       See

Sliney v. Previte, 473 Mass. 283, 294 (2015), quoting Doe No.

8725, 450 Mass. at 793.

    The burden imposed by § 100A (6) is plainly "of infinite

duration."    Doe No. 8725, 450 Mass. at 792.   It forever

prohibits sealing based on a classification "at any time" as a

level two or level three sex offender.    G. L. c. 276,

§ 100A (6).
                                                                   15


    The question whether the statute is narrowly drawn to treat

the problem perceived by the Legislature also raises concerns

about its reasonableness as applied to Koe.   We begin by

reiterating that § 100A (6) was part of a package of legislation

aimed at expanding access to reliable criminal record

information for employers, housing providers, and others, in

exchange for making "sealing broadly available to individuals

whose criminal histories or records no longer present[] concerns

of recidivism" and providing certain procedural protections

governing the use of criminal records (emphasis added).     See

Pon, 469 Mass. at 306.   The defendants argue that these

procedural protections make § 100A (6) sufficiently narrowly

drawn to survive a retroactivity challenge.

    As applied to Koe, however, the core legislative bargain

behind § 100A breaks down.   Any "legitimate business reasons"

(citation omitted), Pon, 469 Mass. at 304, that employers or

housing providers may have for wanting to know about Koe's sex

offenses are tempered, if not extinguished, by the

administrative and judicial findings that she poses no

cognizable degree of dangerousness and no risk of reoffense, and

has been relieved of the obligation to register as a sex

offender.   These developments allow Koe to credibly demonstrate

that she "no longer present[s] concerns of recidivism," id. at

306, in a way that many former offenders cannot and that § 100A
                                                                 16


does not typically require.   Cf. Doe No. 8725, 450 Mass. at 793,

quoting Smith v. Doe, 538 U.S. 84, 117 (2003) (Ginsburg, J.,

dissenting) (weighing burden imposed when former sex offender is

required to register despite "the clearest demonstration of

rehabilitation" or "[h]owever plain it may be that [she]

currently poses no threat of recidivism").    At least in the

unique circumstances of this case, where Koe has been relieved

of the obligation to register with SORB, has been determined (by

SORB) to pose no cognizable degree of dangerousness and no risk

of reoffense, and otherwise meets the statutory criteria for

sealing, it is difficult to discern how retroactively

prohibiting her from sealing her sex offenses furthers the

regulatory legislative goals of protecting public safety and

rehabilitating former offenders.10

     Balancing all of these factors, we conclude that § 100A (6)

is unreasonable as applied to Koe, and therefore violates her

constitutional right to due process of law.

     Conclusion.   Because § 100A (6) is both retroactive and

unreasonable as applied to Koe, State constitutional due process

precludes us from enforcing it against her.   The case is

remanded to the single justice for entry of an order in favor of

the plaintiff.


     10
       Any potential punitive legislative goals are not properly
part of this analysis. See note 8, supra.
              17


So ordered.
