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SJC-11806

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 7083    vs.   SEX OFFENDER
                         REGISTRY BOARD.



            Plymouth.    March 5, 2015. - August 21, 2015.

 Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                              Hines, JJ.


Sex Offender. Sex Offender Registration and Community
     Notification Act. Constitutional Law, Sex offender.     Due
     Process of Law, Sex offender. Practice, Civil, Sex
     offender.



     Civil action commenced in the Superior Court Department on
April 2, 2012.

     The case was heard by Paul E. Troy, J., on a motion for
judgment on the pleadings.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Ethan C. Stiles for the plaintiff.
     David L. Chenail for the defendant.
     Matthew J. Koes for John Doe, Sex Offender Registry Board
No. 3839, amicus curiae, submitted a brief.


     DUFFLY, J.    The plaintiff, John Doe, Sex Offender Registry

Board No. 7083 (Doe), was serving a criminal sentence at the
                                                                     2


Massachusetts Treatment Center (treatment center), and also had

been civilly committed to the treatment center as a sexually

dangerous person (SDP), when the defendant Sex Offender Registry

Board (SORB) notified him in September, 2009, of its

recommendation that he be classified as a level three sex

offender, pursuant to the sex offender registration statute,

G. L. c. 6, §§ 178C-178Q. 1   Doe requested a hearing to challenge

SORB's recommendation.    When that classification hearing took

place, in February, 2012, Doe's earliest parole eligibility date

was ten months away, and a trial on Doe's petition for discharge,

pursuant to G. L. c. 123A, § 9, had been scheduled for a date

eighteen months away. 2

     Because each date was not only distant in time, but also

only a potential date on which he might have become eligible for

release, rather than a known release date, Doe requested that the

classification hearing be continued to a date after, or shortly

before, trial on his petition for discharge.    In the alternative,

Doe sought to have the classification proceeding left open after


     1
       The sex offender registration statute, G. L. c. 6,
§§ 178C-178Q, as enacted by St. 1996, c. 239, § 1, was rewritten
in 1999. See St. 1999, c. 74, § 2. The 1999 version is at issue
here.
     2
       Thereafter, the trial on Doe's petition for discharge was
rescheduled for a date one year later than originally scheduled.
Doe's subsequent motion to dismiss the petition was allowed, and
he remained confined at the Massachusetts Treatment Center
(treatment center) when he filed this appeal.
                                                                     3


the hearing, so that his classification would not become final,

and current evidence of his risk of reoffense would be available

for the hearing officer to consider when his discharge was

imminent.    The hearing examiner denied the requests and

classified Doe as a level three sex offender.    Doe sought review

in the Superior Court pursuant to G. L. c. 30A, §§ 7, and 14 (7),

and G. L. c. 6, § 178M, arguing that his risk of reoffense was

zero while he was confined at the treatment center, and that the

denial of his request to continue or to leave open the

classification hearing violated his right to due process.     A

Superior Court judge affirmed the hearing examiner's decision,

and Doe appealed.    A panel of the Appeals Court also affirmed, in

an unpublished memorandum and order issued pursuant to its rule

1:28.    Doe, Sex Offender Registry Bd. No. 7083 v. Sex Offender

Registry Bd., 86 Mass. App. Ct. 1113 (2014).    We granted Doe's

application for further appellate review. 3

     Doe argues that, by scheduling the classification hearing

based on his earliest possible parole eligibility date, the

information relied on by the hearing examiner in reaching a

classification decision inevitably will have become stale, and

therefore potentially unreliable, by the time he is released from

confinement, even if the determination of his level of risk was

     3
       We acknowledge the amicus brief submitted by John Doe, Sex
Offender Registry Board No. 3839.
                                                                   4


based on appropriate factors when it was made.   Doe contends that

803 Code Mass. Regs. § 1.37C(2) (2013), which permits a sex

offender to seek reclassification three years after a final

classification, does not address adequately his due process

concerns. 4

     SORB contends that the early classification was required

here because there was a possibility that Doe could have been

released prior to a trial on his petition for discharge.   SORB

maintains that an individual who has been committed as an SDP may

be released prior to the date of a trial on his or her petition

for discharge pursuant to G. L. c. 123A, § 9, through one of two

mechanisms.   First, the community access board (CAB) may file a

petition for discharge under G. L. c. 123A, § 9, if it

determines, in its annual review, that an individual committed as

an SDP no longer is sexually dangerous.   Had the CAB determined

at Doe's next annual review (which likely would have taken place

a few months after the February, 2012, classification hearing)

that Doe was no longer sexually dangerous, it could have filed

its own petition for discharge, accompanied by a motion for an

     4
       Doe cites a number of reasons in support of this
contention. He argues particularly that, under the regulations
of the Sex Offender Registry Board (SORB), while a petition for
reclassification may be filed every three years, a decision to
reclassify a registered sex offender requires that the offender
has remained offense-free for more than five continuous years
"since his or her release from incarceration." See 803 Code
Mass. Regs. § 1.37C(2)(d) (2013).
                                                                    5


expedited trial. 5   Second, Doe could have filed a motion for an

expedited trial on his petition for discharge if two qualified

examiners opined, following their examination of Doe in

conjunction with his petition, that he was no longer sexually

dangerous.     See Matter of Johnstone, 453 Mass 544, 545, 553

(2009).   SORB maintains that any error in a premature

classification may be remedied by its reclassification

procedures.    See 803 Code Mass. Regs. § 1.37C(2).

     We conclude that the hearing examiner's 2009 recommendation

that Doe be classified as a level three sex offender, based on

evidence presented at a time when a trial on his petition for

discharge under G. L. c. 123A, § 9, was at least eighteen months

away, risked classifying Doe based on factors that would be stale

at the time of his discharge, in violation of due process

protections.    The hearing examiner's 2012 final classification of

     5
       SORB argues that, based on the possibility of a finding by
the community access board (CAB) that Doe was no longer sexually
dangerous,

     "It was therefore conceivable that . . . within months
     after [SORB's] classification hearing, the CAB could find
     [Doe] no longer [a sexually dangerous person (SDP)] and on
     that basis, [Doe] could then have filed a motion seeking an
     expedited review by the qualified examiners and discharge
     trial. . . . In the event that the [c]ourt granted a motion
     for expedited review and trial, the offender could
     potentially have been released prior to the originally
     scheduled section 9 discharge trial. Therefore, the
     initial trial date of August 2013 on [Doe's] section 9
     discharge petition was not necessarily dispositive as to
     [Doe's] earliest possible release from his SDP commitment."
                                                                     6


Doe as a level three sex offender embodies this result, and

reflects an evaluation of Doe's risk that will be stale when Doe

ultimately is discharged.   Nor are these procedural due process

concerns adequately addressed by Doe's ability to request

reclassification pursuant to 803 Code Mass. Regs. § 1.37C(1)-(9).

     We note first that a final classification as a level three

sex offender would permit SORB to require Doe to register as such

while he is committed to the treatment center, albeit that the

final classification occurs long before even his potential

release date.   See G. L. c. 6, § 178I (information about level

three sex offenders "shall be made available"); 803 Code Mass.

Regs. § 1.32(2) (2013) (SORB "may actively disseminate"

information pertaining to level three sex offender, "in such

time, place, manner or means, as it, in its sole discretion,

deems reasonable and proper").   Thus, Doe's information and

photograph would be actively and publicly disseminated on SORB's

Web site, while he remains confined; the bell cannot thereafter

be unrung by reclassification, and dissemination, which can

result in a wide variety of harms, see Moe v. Sex Offender

Registry Bd., 467 Mass. 598, 604 (2014), cannot be revoked.    See

Note, The Right to Be Forgotten, 64 Hastings L.J. 257, 259 (2012)

("information posted on the Internet is never truly forgotten").

     Moreover, at a reclassification hearing, the regulations

shift to Doe the burden of establishing that his risk of
                                                                    7


reoffense and degree of dangerousness have been reduced, do not

entitle him to appointed counsel if he is indigent, and provide

that reclassification may not be requested for three years after

the date of the final classification order.    See 803 Code Mass.

Regs. § 1.37C(2).    In addition, most of the factors which SORB is

to consider in determining whether a sex offender has

demonstrated a reduced risk of reoffense contemplate that an

offender already is living in the community.   See id.

     Accordingly, Doe's final classification as a level three sex

offender must be vacated; the 2012 classification is only

preliminary, and the evidentiary hearing held in February, 2012,

must be left open.   At a reasonable time prior to his actual

release date, Doe may request a continuation of the evidentiary

hearing, at which he may submit new evidence relevant to a final

classification determination, 6 and SORB will bear the burden of

establishing Doe's then-current risk of reoffense and degree of

dangerousness.   See G. L. c. 6, § 178L; 803 Code Mass. Regs.

§§ 1.01, 1.10 (2013).   If Doe does not seek a continuation of the

hearing at a reasonable time prior to his actual release date, 7

the findings from the initial hearing will become final, and SORB


     6
       At that hearing, the Commonwealth also may introduce
relevant new evidence.
     7
       A next possible scheduled release date is to be
distinguished from Doe's actual release date.
                                                                       8


may issue a final classification determination based on the

preliminary classification.

     1.   Background.   a.   Governing offenses.   The hearing

examiner found the following.     At the time of the February, 2012,

classification hearing, Doe was forty-six years old.      He had been

convicted of two separate sex offenses in 1987, and one sex

offense in 2009.   In 1987, when he was twenty-one, Doe was

convicted of indecent assault and battery on a nineteen year old

female acquaintance of his girl friend and sentenced to a one-

year term of probation.      Later that year, while on probation for

the first sexual assault, Doe broke into his former girl friend's

house, raped her three times, and then stabbed her, and himself,

with a knife.   He pleaded guilty to three counts of aggravated

rape, assault with intent to commit murder, assault and battery

by means of a dangerous weapon, and breaking and entering in the

nighttime; he was sentenced to concurrent terms of incarceration

of from ten to twelve years for all but one of these convictions,

and a term of probation on the other conviction. 8

     In 2003, Doe met a twenty-two year old woman at a bus


     8
       In 1990, Doe's motion to revise and revoke his sentences
was allowed, and his sentences were modified to a single ten- to
twelve-year term of incarceration, with commitment set to time
served and the balance suspended for five years. In April,
1991, the suspension was revoked after Doe violated a term of
his probation by having contact with his former girl friend (his
second victim), and Doe was incarcerated until February, 1999.
                                                                    9


station in Fall River; after he missed his bus to Boston, she

invited him to spend the night at her apartment, where her

brother was also visiting.   The woman went to sleep alone in her

bedroom and awoke to find that her pajamas had been removed and

Doe was raping her.   Doe fled the apartment after the woman's

screams alerted her brother.   The woman provided police a

detailed description of her attacker, who was not identified at

that time.

     In May, 2006, Doe was sentenced to a term of two and one-

half years of incarceration, with nineteen months to serve and

the balance suspended, for failing to register as a sex offender.

Shortly after he began serving this sentence, the State police

crime laboratory conducted a search of a convicted offender

database and matched a deoxyribonucleic acid (DNA) sample from

Doe to a sample taken during the investigation of the 2003

assault.   The victim then identified Doe from a photographic

array.

     In July, 2006, after receiving notice of the DNA match in

the 2003 rape, the Commonwealth filed a petition pursuant to

G. L. c. 123A, § 12, seeking Doe's civil commitment as an SDP.    A

jury found Doe to be sexually dangerous, and in January, 2007, he

was committed to the treatment center.   In October, 2009, Doe

pleaded guilty to rape and was sentenced to a term of from five

to eight years for the 2003 offense.   The earliest date on which
                                                                    10


he would become eligible for parole from that sentence was in

December, 2012.   In June, 2010, Doe filed in the Superior Court a

petition for discharge, pursuant to G. L. c. 123A, § 9.      In June,

2011, while that petition was pending, the CAB found during its

annual review that Doe continued to be sexually dangerous.

     b.   Classification proceedings.    Meanwhile, SORB had

proceeded with a determination of Doe's sex offender

classification level.   In September, 2009, SORB concluded that

Doe presented a high level of risk of reoffense, and recommended

that he be classified as a level three sex offender.      Doe

challenged this recommendation and requested a de novo hearing to

determine his final classification.     See G. L. c. 6,

§ 178L (1) (a).   The hearing ultimately was scheduled to be

conducted in February, 2012.   At that time, trial in the Superior

Court on Doe's petition for discharge had been scheduled for

August, 2013, some eighteen months thereafter.     Doe requested

that the hearing examiner either allow a continuance of the

classification hearing until a date closer to the trial on Doe's

petition, or that the classification proceeding be left open

until immediately prior to his release, to allow for submission

of then-current evidence of his risk of reoffense and his degree

of dangerousness.   The hearing examiner denied this request.      The

hearing took place as scheduled in February, 2012.     On March 16,

2012, the hearing examiner issued a decision concluding that Doe
                                                                     11


should be finally classified as a level three sex offender, and

ordering Doe to register as such.

     2.   Statutory and regulatory framework.   The purpose of the

sex offender registration statute is to protect "the vulnerable

members of our communities from sexual offenders," St. 1999,

c. 74, preamble, and from "the danger of recidivism posed by sex

offenders."   St. 1999, c. 74, § 1.   Every person defined as a sex

offender under G. L. c. 6, § 178C, is subject to a two-stage

process of registration and classification.     See 803 Code Mass.

Regs. § 1.38(3) (2013).   First, SORB prepares "a recommended

registration determination and, if applicable, a classification

of the sex offender as a Level 1, Level 2, or Level 3 Offender."

803 Code Mass. Regs. § 1.06(1) (2013).   Second, if the offender

objects to SORB's recommendation, the offender may request a de

novo evidentiary hearing before a SORB hearing examiner to

determine whether he or she must register, and, if so, at what

level of risk.   803 Code Mass. Regs. § 1.38(4) (2013).

     In proceedings that result in a final classification of a

sex offender's level of risk, the offender is entitled to an

evidentiary hearing and an individualized assessment of the

proper classification level, to be represented by legal counsel,

and to judicial review of an adverse result.    See G. L. c. 6,

§ 178L; 803 Code Mass. Regs. §§ 1.01, 1.08, 1.10, 1.14, 1.26

(2013).   SORB bears the burden of establishing the sex offender's
                                                                  12


current level of dangerousness to the community, and the risk of

reoffense.   See G. L. c. 6, § 178L; 803 Code Mass. Regs. §§ 1.01,

1.10.

     The sex offender registration statute requires that SORB

develop guidelines to determine a sex offender's level of

dangerousness and risk of reoffense, and that an offender's

recent behavior and current treatment be considered as factors

relevant to this determination.   See, e.g., G. L. c. 6,

§ 178K (1) (c), (h), (i), (j) (mandatory factors include "whether

such sex offender is receiving counseling, therapy or treatment";

"the sex offender's participation in sex offender treatment and

counseling while incarcerated or while on probation or parole and

his response to such treatment or counseling"; "recent behavior,

including behavior while incarcerated or while supervised on

probation or parole"; and "recent threats against persons").

     Consistent with this statutory imperative, SORB's

regulations provide that a sex offender's current risk of

reoffense and dangerousness to the community must be considered

in arriving at a preliminary determination whether registration

is required and in deciding a recommended classification level.

See 803 Code Mass. Regs. § 1.06(2)(d) (2013) (requiring

registration only if offender "currently poses a danger"); 803

Code Mass. Regs. § 1.06(3) (2013) (in determining whether

offender "currently poses a danger," SORB shall review enumerated
                                                                    13


criteria, as well as "other matters that demonstrate whether or

not the offender poses a risk to reoffend").   Similarly, for a

final classification determination, a sex offender's current

circumstances must be considered.   See, e.g., 803 Code Mass.

Regs. § 1.40(10), (11), (12), (19), (20) (2013) (hearing examiner

must consider, among other factors, whether offender is

"currently" supervised; "currently in sex-offender-specific

treatment"; offender's "current home situation"; and "recent

behavior" while incarcerated or on probation or parole).   SORB

must demonstrate at the classification proceeding a "sound

application of [the risk] factors to derive a true and accurate

assessment of an offender's potential for reoffending."    Doe, Sex

Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd.,

466 Mass. 594, 605 (2013) (Doe No. 205614), quoting Doe, Sex

Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81

Mass. App. Ct. 639, 656 (2012).

     A sex offender "has sufficient liberty and privacy interests

constitutionally protected by art. 12 [of the Massachusetts

Declaration of Rights] that he is entitled to procedural due

process before he may be required to register and before

information may properly be publicly disclosed about him."    Doe

v. Attorney Gen., 426 Mass. 136, 143-144 (1997).   As we said in

Roe v. Attorney Gen., 434 Mass. 418, 427 (2001), quoting Mathews

v. Eldridge, 424 U.S. 319, 335 (1976):
                                                                  14


          "Where there is an interference with a protected
     liberty interest, the court must consider '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 function involved
     and the fiscal and administrative burdens that the
     additional or substitute procedural requirement would
     entail.'"

In the context of sex offender classification, we examine the fit

"between a classification and the policy that the classification

serves."   See Doe v. Police Comm'r of Boston, 460 Mass. 342, 349

(2011).

     To further the statutory purpose of protecting the public,

while at the same time protecting a sex offender's due process

rights, the sex offender registration statute establishes time

frames within which certain actions must occur in connection with

classification proceedings when a sex offender is incarcerated or

civilly committed, and imposes deadlines for final classification

of such offenders.   See G. L. c. 6, § 178E (a) (SORB "shall

classify such a sex offender at least [ten] days before the

offender's earliest possible release date"); G. L. c. 6,

§ 178L (1) (a) ("Not less than [sixty] days prior to the release

or parole of a sex offender from custody or incarceration, [SORB]

shall notify the sex offender of his right to submit to [SORB]

documentary evidence relative to his risk of reoffense and the

degree of dangerousness posed to the public").   The registration

statute contains no explicit requirement that SORB schedule a
                                                                   15


classification hearing at a time near the anticipated date of a

sex offender's release from custody.

     Our jurisprudence has acknowledged that the purpose of the

registration statute is "promoted by allowing final

classifications of sex offenders while they are incarcerated,"

and "before their release back into the community."   Doe, Sex

Offender Registry Bd. No. 1 v. Sex Offender Registry Bd., 79

Mass. App. Ct. 683, 688 (2011), citing Doe, Sex Offender Registry

Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 759-760

(2006).

     At the same time, our decisions recognize that the

registration statute requires SORB to base its classification

determinations on a sex offender's "current" risk to the

community, in order to protect the offender's right to due

process.   See, e.g., Doe, Sex Offender Registry Bd. No. 8725 v.

Sex Offender Registry Bd., 450 Mass. 780, 793 (2008) (sex

offender entitled to hearing at which offender must have

opportunity to demonstrate he or she is not "a current danger to

vulnerable members of our communities"); Doe v. Attorney Gen.,

430 Mass. 155, 168 (1999) (individualized hearing must be

conducted to determine whether sex offender "is a present threat"

because of likelihood of reoffense); Doe, Sex Offender Registry

Bd. No. 6904 v. Sex Offender Registry Bd., 82 Mass. App. Ct. 67,

73-74 (2012) (Doe No. 6904), and cases cited ("Under the statute,
                                                                    16


a sex offender is entitled to an individualized determination

whether he is currently dangerous before registration and

notification requirements may be imposed").    SORB's regulations

themselves recognize that "the risk to reoffend and the degree of

dangerousness posed by a sex offender may decrease over time."

803 Code Mass. Regs. § 1.37C(1).

     3.   Application.   SORB contends that it is necessary to

finally classify civilly committed sex offenders long before

their actual release, to protect against the eventuality that the

time prior to a trial on a petition for discharge by a sex

offender might be shortened by a motion seeking an expedited

trial, either by the CAB or by the petitioner, in two specific

circumstances:   following the CAB's annual review, if it

determines that a sex offender is no longer sexually dangerous,

see G. L. c. 123A, §§ 6A, 9, or upon a finding by two qualified

examiners who examined the offender in conjunction with a

petition for discharge that the offender is no longer sexually

dangerous.   See Johnstone, petitioner, 453 Mass. 544, 553 (2009).

SORB maintains that any possible due process violation arising

from a premature classification is ameliorated by the fact that

its regulations permit a sex offender to seek reclassification

after a three-year interval.    We are not persuaded.

     a.   Final classification date.   To promote both the

statutory goals that a sex offender's final classification be
                                                                   17


made before discharge, and that it be accurate and current, a

final classification must be based on an evaluation of the

offender's risk of reoffense at a time reasonably close to the

actual date of discharge.   Reaching a final classification

determination close to the actual date of discharge promotes

accuracy of classification determinations, which advances both

the interests of the community and of the sex offender.    For

instance, a sex offender who has spent insufficient time in the

treatment center, which was established to provide "treatment and

rehabilitation of persons adjudicated as being sexually

dangerous," G. L. c. 123A, § 2, may not have had the opportunity

to fully avail himself or herself of specialized treatment

programs, or to make progress in treatment, so as to reduce the

risk of reoffense according to SORB's guidelines.   Similarly, a

sex offender who has been committed to the treatment center for a

lengthy period of time may have reached an age at which his or

her risk of reoffense has been reduced.   See Doe, Sex Offender

Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass.

612, 622-623 (2010).   Moreover, advances in scientific research

on sex offender recidivism over the course of an offender's

commitment could indicate that additional factors should be

considered, or that factors thought to be relevant to a

determination of risk are not as predictive as initially

believed.   "Where, as here, scientific knowledge in a field is
                                                                   18


rapidly evolving, . . . the applicable standards may require more

frequent modification in order to reflect accurately the current

state of knowledge" (citation omitted).   Id. at 623 n.6, citing

Commonwealth v. Lanigan, 419 Mass. 15, 27 (1994).   See Doe No.

205614, 466 Mass. at 608-609 (potential for "frustration of

individualized risk assessment is particularly conspicuous where

the growing scientific consensus suggests specific factors that

have quantifiable effects on recidivism rates, such as age and

gender").

     A premature, and potentially unreliable or inaccurate,

classification as a level three sex offender has severe

consequences where classification has become final and, as a

result, an offender is required to register at that risk level.

Information about level three sex offenders is entered into a

publicly accessible Internet database, see G. L. c. 6, § 178D,

and "SORB and local police departments 'actively disseminate'

information about level three offenders to individuals and

organizations who are likely to encounter those offenders.    G. L.

c. 6, § 178K (2) (c)."   Doe, Sex Offender Registry Bd. No. 68549

v. Sex Offender Registry Bd., 470 Mass. 102, 104-105 (2014).

Internet dissemination of sex offender information "exposes

[offenders], through aggressive public notification of their

crimes, to profound humiliation and community-wide ostracism."

Smith v. Doe, 538 U.S. 84, 115 (2003) (Ginsburg, J., dissenting).
                                                                  19


Sex offenders whose personal information is available on SORB's

Web site "will suffer discrimination in employment and housing,

and will otherwise suffer from the stigma of being identified as

a sex offender, which sometimes means the additional risk of

being harassed or assaulted."   Moe v. Sex Offender Registry Bd.,

467 Mass. 598, 604 (2014).   "Classification and registration

entail possible harm to a sex offender's earning capacity, damage

to his reputation, and . . . 'the statutory branding of him as a

public danger.'"   Poe v. Sex Offender Registry Bd., 456 Mass.

801, 813 (2010), quoting Doe v. Attorney Gen., 426 Mass. 136, 144

(1997).   An inaccurate classification at a higher risk level not

only does not serve to protect the public, it places a more

onerous burden on law enforcement officials.   See G. L. c. 6,

§ 178K (2) (c).

     Acknowledging similar concerns, the Appeals Court set aside

a final classification order based on a classification hearing

held four years before a sex offender's release, and remanded the

matter for a "new final classification evidentiary hearing."     See

Doe No. 6904, 82 Mass. App. Ct. at 78.   The sex offender in that

case argued that a classification hearing held four years before

his release from incarceration was unreasonable under the

registration statute, and was prejudicial to him.   Asserting that

"a hearing closer in time to his release was required so that the

board could appropriately determine whether he had availed
                                                                    20


himself of sex offender treatment while incarcerated and whether

he posed a current risk to the public," the sex offender had

moved to reschedule the hearing.    Id. at 76.   His motion was

denied, and SORB proceeded to make a classification determination

eight months prior to the sex offender's next scheduled parole

hearing, at which parole was denied.     Id. at 77.   The Appeals

Court concluded that, "where no administrative justification was

provided, a procedure imposing a final classification

approximately four years old at the time of the offender's

release from incarceration and affording a reclassification no

earlier than five years after his release, is inconsistent with

the statutory purpose." 9   Id. at 78.

     SORB argues that in the present case, unlike the

incarcerated offender in Doe No. 6904, supra, Doe's commitment to

the treatment center is open ended, and that this difference

justifies conducting a classification hearing "as soon as

practicable."   SORB contends that the due process protections

extended to sex offenders during the classification process


     9
       Under the reclassification procedure in effect at the
time, see 803 Code Mass. Regs. § 1.37C(1) (2002), a sex offender
was not entitled to an evidentiary hearing in conjunction with a
motion for reclassification. See Doe, Sex Offender Registry Bd.
No. 6904 v. Sex Offender Registry Bd., 82 Mass. App. Ct. 67, 78
n.3 (2012). In 2013, SORB amended its reclassification
procedure, such that a sex offender now is entitled to an
evidentiary hearing on a motion for reclassification. See 803
Code Mass. Regs. § 1.37C(5) (2013).
                                                                  21


require that certain events take place within time limits that

make it "impracticable" to classify a civilly committed offender

at a time closer to a trial on a petition for discharge. 10

     SORB notes also that, as discussed supra, the time prior to

a trial on a petition for discharge might be shortened by a

motion seeking an expedited trial, either by the CAB or by the

petitioner, where a determination has been made, by the CAB or by

two qualified examiners, that the sex offender is no longer

sexually dangerous.   SORB does not argue that either a favorable

review by the CAB or a favorable determination by two qualified

examiners entitles a sex offender adjudicated to have been an SDP

to immediate release without an order by a Superior Court judge.

Nor does SORB offer any explanation why, if classification

hearings were left open, there would be insufficient time in

which to evaluate additional, current evidence concerning the

level of risk of a sex offender who sought and was granted an

expedited trial on a petition for discharge.

     SORB maintains that it was reasonable to seek final

     10
       SORB cites, for example, regulations permitting a sex
offender to submit, within thirty days after receipt of notice
of a registration requirement, documentary evidence regarding
the offender's risk to reoffend, 803 Code Mass. Regs.
§§ 1.04(1), (4), 1.05(1) (2013); that the offender has twenty
days after notification of SORB's recommended classification
within which to request a hearing, 803 Code Mass. Regs.
§ 1.07(2) (2013); and that the offender must receive notice of
the scheduled date, time, and place of the hearing thirty days
in advance. 803 Code Mass. Regs. § 1.09(1) (2013).
                                                                  22


classification of Doe ten months prior to his earliest parole

eligibility date, because that was the earliest date on which Doe

potentially could have been released.    SORB contends that holding

a hearing at that time "adequately balanced [SORB's] statutory

requirement to finally classify a sex offender prior to his

release from incarceration with the offender's right to have an

individualized hearing to determine his current risk."    SORB does

not suggest that it was reasonably likely that Doe, who had been

committed to the treatment center as an SDP, could in fact have

been released into the community on the date on which he first

became eligible for parole. 11   Rather, SORB maintains that Doe's


     11
       We note that, as with any other sex offender committed to
the treatment center as an SDP, even if Doe had been released on
parole or his sentence had expired, he could not have been
discharged from the treatment center until a petition for
discharge, pursuant to G. L. c. 123A, § 9, had been allowed.
Notwithstanding its emphasis on Doe's parole eligibility date,
SORB recognizes in its brief that Doe's parole eligibility date
was his earliest possible release date only if he previously had
been discharged from civil commitment as an SDP.

     A prior version of G. L. c. 123A, § 9, stated that "[a]ny
person committed to the center for treatment and rehabilitation
under [G. L. c. 123A, §§ 5, 6,] shall be eligible for parole,"
and required that such individuals be presented to the parole
board at least once in the first year of commitment and at least
every three years thereafter. Commonwealth v. Travis, 372 Mass.
238, 244 & n.3 (1977), quoting G. L. c. 123A, § 9. See
Thompson, petitioner, 394 Mass. 502, 503 n.1, 506-507 & n.5
(1985); St. 1985, c. 752, § 1. General Laws c. 123A, § 9, also
allowed release on parole without a finding that an individual
was no longer sexually dangerous. See Thompson, petitioner,
supra at 504 n.3, quoting Commonwealth v. Travis, supra at 247
n.4. Those provisions were eliminated when the statute was
rewritten in 1993, see St. 1993, c. 489, § 7, and release
                                                                   23


procedural due process rights are protected adequately through

the reclassification procedure, pursuant to which Doe may file a

petition every three years seeking to obtain a lower

classification level.

     We conclude that SORB's final classification of Doe was

premature.    When SORB made its initial recommendation in

September, 2009, that Doe be classified as a level three sex

offender, he had been committed to the treatment center for

approximately thirty-two months.    Approximately one month later,

Doe pleaded guilty to the 2003 rape.    In his final classification

determination, the hearing examiner noted that, although Doe had,

during the preceding year, made progress in sex offender

treatment, there were shortcomings in his response to treatment

that remained to be addressed.    When Doe eventually is discharged

from the treatment center, this classification, based on his

circumstances in early 2012, will not reflect an evaluation of

his then-current risk of reoffense and degree of dangerousness to

the public.    See G. L. c. 6, § 178K (1) (h) and 803 Code Mass.

Regs. § 1.40(17) (2013) (defining current sex offender specific

treatment as risk-reducing).

     Ensuring that a sex offender's final classification reflects

a level of risk and dangerousness that is current at a time when



without an adjudication that a person is no longer an SDP is no
longer possible under the statute. See G. L. c. 123A, § 6A.
                                                                     24


the offender's release is imminent furthers both SORB's interest,

and that of the public, in protecting vulnerable members of the

community through reliable notification of an offender's risk of

reoffense and degree of dangerousness, and better protects Doe's

liberty interest in receiving a classification that reflects

consideration of current, rather than stale, risk factors.      We

turn to a consideration whether any harm from Doe's premature

classification may be remedied through SORB's reclassification

procedures.

     b.   Availability of reclassification.   We do not agree that

the reclassification procedure available under 803 Code Mass.

Regs. § 1.37C(1), (2), ameliorates the potential harm to a sex

offender's protected liberty interests.    As stated, the

regulations provide that a sex offender must wait three years

after the date of a final classification before requesting

reclassification.    See 803 Code Mass. Regs. § 1.37C (2).    In

addition, the factors SORB is to consider in determining whether

reclassification is warranted, and the evidence that a sex

offender must present to establish a reduced risk of reoffense,

clearly contemplate that the offender must be living in the

community.    See, e.g., 803 Code Mass. Regs. § 1.37C(2)(c)

(stability of home and work situation, successful completion of

probation, and substance free lifestyle in the community).

Therefore, a sex offender such as Doe, who is committed to the
                                                                  25


treatment center, likely would be unable to make such a showing.

Moreover, the reclassification procedure as defined in the

regulations imposes on the offender the burden of establishing

that his or her level of risk has been reduced, see 803 Code

Mass. Regs. § 1.10(1), and neither an indigent nor a juvenile

offender has the right to appointed counsel in connection with a

reclassification hearing.   Compare 803 Code Mass. Regs.

§ 1.37C(5)(d) with 803 Code Mass. Regs. §§ 1.08, 1.14.

     The registration statute, by contrast, requires SORB to bear

the burden of proving that a classification reflects a sex

offender's current risk to the community.   See Doe, Sex Offender

Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90,

98 (1998).   If, in order to update the results of a final

classification hearing that was prematurely conducted, Doe's only

recourse were to seek reclassification, SORB effectively would be

relieved of its burden.   Procedural due process is not satisfied

where the burden to establish his or her level of risk is, in

effect, shifted to the offender.   Nor is the statutory purpose

advanced where a sex offender confined to the treatment center

must meet this burden by producing evidence of a reduction in

risk based largely on factors which, practically, require SORB to

evaluate his or her lifestyle in the community.   See Roe v.

Attorney Gen., 434 Mass. 418, 427 (2001), quoting Mathews v.

Eldridge, 424 U.S. 319, 335 (1976).
                                                                    26


     c.   Remedy.   Because final classification of Doe will have

been based on stale and not on current information on his risk of

reoffense at the time he is actually released, and the

reclassification proceeding does not adequately address

procedural due process concerns, the final classification of Doe

made in 2012 must be vacated, and Doe's classification as a level

three sex offender must be deemed preliminary.    Doe is entitled

to a continuation of the evidentiary hearing, conducted in

accordance with 803 Code Mass. Regs. §§ 1.07-1.26 (2013), at a

time reasonably close to his actual release date; at that

hearing, both Doe and SORB may introduce new evidence relevant to

a final classification determination.

     At any such hearing, in addition to the newly introduced

evidence, the hearing examiner may consider all the evidence

introduced in 2012, as well as the first hearing examiner's

findings.   If Doe does not introduce additional evidence, SORB

may issue a final classification decision when Doe's release is

imminent.   If additional evidence is introduced at a continued

evidentiary hearing that takes place at a time anticipated to be

reasonably close to Doe's actual release date, 12 but parole or a


     12
       The Appeals Court panel's decision in this case reasoned
that a classification hearing held within ten months of a sex
offender's potential discharge date adequately ensures that the
offender's classification reflects an evaluation of his or her
current risk at the time of discharge. See Doe, Sex Offender
Registry Bd. No. 7083 v. Sex Offender Registry Bd., 86 Mass.
                                                                  27


petition for discharge is denied, Doe may seek a further

evidentiary hearing, at a reasonable time prior to a subsequent

proceeding, 13 and both parties may introduce in evidence at that

hearing further information relative to Doe's then-current risk

of reoffense.    Cf. Doe No. 6904, 82 Mass. App. Ct. at 78 n.4

(suggesting offender may petition to reopen evidentiary hearing

if significant period of time has elapsed between final

classification and offender's scheduled release).

     We note that other cases have raised similar concerns about

the potential for classification determinations based on stale

factors, see, e.g., Doe, Sex Offender Registry Bd. No. 3839 v.

Sex Offender Registry Bd., 472 Mass.       (2015); Doe, Sex

Offender Registry Bd. No. 3974 v. Sex Offender Registry Bd., 457

Mass. 53, 60-61 (2010); Doe No. 6904, supra at 75-76, and it

appears likely that the issue will continue to arise in future

cases.    SORB may wish to address these concerns through

comprehensive amendment of its regulations in a manner that

ensures its internal procedures meet constitutional due process

requirements, with cognizance of the administrative burdens such


App. Ct. 1113 (2014) (unpublished). While that reasoning may be
correct, so long as the offender actually is discharged within
ten months of the classification hearing, we need not decide the
issue.
     13
       The minimum one-year period between such proceedings, see
G. L. c. 123A, § 9, would render invalid a determination based
only on prior, stale evidence.
                                                                    28


amendments may engender.     See Doe, Sex Offender Registry Bd. No.

972 v. Sex Offender Registry Bd., 428 Mass. 90, 100 (1998).

     4.    Conclusion.   Because the 2012 classification of Doe as a

level three sex offender will not reflect an evaluation of his

current level of risk at the time of his discharge from the

treatment center, the decision finally classifying Doe as a level

three offender is invalid, and the Superior Court judge's order

affirming that determination is erroneous.    Both must be vacated.

     The 2012 classification will remain preliminary until a

reasonable time prior to Doe's actual release date.    At that

time, Doe is entitled to reopen the evidentiary hearing, and to

introduce new evidence relevant to his then-current level of

risk.     SORB will then bear the burden of establishing Doe's then-

current level of risk and dangerousness to the community.    See

G. L. c. 6, § 178L; 803 Code Mass. Regs. § 1.01.    If Doe does not

seek to reopen the hearing, the preliminary classification will

become final.    The matter is remanded to the Superior Court for

entry of a judgment consistent with this opinion.

                                      So ordered.
