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SJC-11495

   JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 156545   vs.   SEX
                    OFFENDER REGISTRY BOARD.



                          July 9, 2014.


Sex Offender. Mandamus. Practice, Civil, Sex offender, Action
     in nature of mandamus, Transcript of testimony.
     Administrative Law, Proceedings before agency, Adjudicatory
     proceeding, Record, Judicial review.



     The petitioner appeals from a judgment of a single justice
of this court declining to compel the Sex Offender Registry
Board (board) to produce a transcript of the petitioner's
classification hearing. We hold that, in the peculiar
circumstances of this case, the petitioner is entitled to the
transcript.

     Background. In September 2009, the board notified the
petitioner that it had preliminarily classified him as a level
three sex offender. The petitioner requested a hearing,
pursuant to G. L. c. 6, § 178L, which was held on July 29, 2010.
After the hearing had been completed but before the hearing
examiner had rendered a decision, the examiner became
unavailable, and a successor examiner was appointed pursuant to
803 Code Mass. Regs. § 1.22(4) (2002). 1 The successor examiner

     1
       Title 803 Code Mass. Regs. § 1.22(4) (2002) provides as
follows:

          "If the Hearing Examiner becomes unavailable before
     completing his decision, the Chair shall appoint a
     successor to assume the case and render the decision. If
                                                                   2

issued his decision on January 12, 2011, classifying the
petitioner as a level three offender. The petitioner thereafter
commenced an action for judicial review in the Superior Court
pursuant to G. L. c. 30A; his counsel did not order a transcript
of the classification hearing at that point, as he might have
done, for inclusion in the administrative record. The board
filed its answer, in the form of the administrative record,
which did not include a copy of a transcript. A judge in the
Superior Court denied the petitioner's motion for judgment on
the pleadings and affirmed the board's decision classifying the
petitioner as a level three offender.

     The petitioner appealed, and his appeal was entered in the
Appeals Court on March 9, 2012. The Appeals Court stayed the
appeal, at the petitioner's request, to allow the petitioner
time to file, and the Superior Court to consider, a motion to
remand the matter to the board. The petitioner then filed in
the Superior Court, pursuant to Mass. R. Civ. P. 60 (b), 365
Mass. 828 (1974), a motion seeking remand of the matter to the
board so that it could reconsider his "motion for funds to
retain an expert," or, "[a]lternatively, [to hold] a new
classification hearing because he was denied the effective
assistance of counsel at the hearing." He also sought "an order
directing the [b]oard to produce a transcript of his
classification hearing." In support of his request for an order
directing the board to produce a transcript, the petitioner
pointed to 803 Code Mass. Regs. § 1.22(4), see note 1, supra,
which states that the board "shall provide" a successor hearing
examiner and the parties with a copy of the transcript where, as
here, the successor examiner is appointed after the presentation
of evidence is complete and the record closed. Despite this
requirement, no copy of the transcript was ever provided to the
successor examiner or the parties.

     A second judge in the Superior Court denied the request for
a remand to the board as well as the petitioner's subsequent
motion for reconsideration, and the petitioner filed a notice of
appeal from the denial of each motion. Thereafter, the


     the presentation of evidence has been completed and the
     record is closed, the successor shall decide the case on
     the basis of the record. Otherwise, the successor may
     either proceed with the hearing or require the presentation
     of evidence from the beginning. The Board shall provide
     the successor and the Parties with a copy of the
     transcript, or completed portions thereof, without cost."
                                                                   3

petitioner filed his mandamus petition in the county court,
seeking to compel the board to provide a copy of the hearing
transcript. The single justice denied the petition, and the
petitioner appeals. 2

     Discussion. The petitioner argues that the board had a
legal duty to provide him with a copy of the transcript pursuant
to 803 Code Mass. Regs. § 1.22(4); that the board failed to
perform that duty; and that mandamus relief is therefore
appropriate. In the circumstances of this case, we agree.

     The regulation provides, in relevant part, that where, as
here, a successor hearing examiner has been appointed after the
presentation of evidence has been completed and the record
closed, the board "shall provide the successor and the [p]arties
with a copy of the transcript." See note 1, supra. The board's
failure to comply with its duty was not inconsequential. Had
the board provided the transcript as required, it would have
been a part of the administrative record before the trial court
judge, and the judge thus would have had full access to what
transpired at the hearing. We recognize that the petitioner had
an opportunity to request that the transcript be included in the
administrative record after he filed his complaint for judicial
review in the Superior Court and while the board was preparing
the record, and that he made no such request. This does not
abrogate the fact that the board had an unqualified legal duty,
clearly set forth in 803 Code Mass. Regs. § 1.22(4), to provide
a copy of the transcript to both the successor examiner and the
parties at the time the successor examiner was appointed. With
that in mind, we conclude that the most practical and reasonable
course of action, in the circumstances presented here, is to
allow the mandamus petition and to order the board to comply
with its legal obligation pursuant to the regulation. After the
transcript is prepared it should be made available to the
Appeals Court. The Appeals Court may then take what action it
deems appropriate. 3

     Conclusion. The judgment of the single justice is vacated
and the case remanded to the county court where an order shall

     2
       The proceedings in the Appeals Court remain stayed pending
the outcome of this appeal.
     3
       Our task here is only to consider the petitioner's
mandamus petition, not to make any determinations regarding the
petitioner's direct appeal, which remains pending in the Appeals
Court.
                                                                   4

enter directing the board to produce a copy of the transcript in
accordance with this opinion.

                                        So ordered.


     Valerie A. DePalma for the plaintiff.
     Jennifer K. Zalnasky for the defendant.
