NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-12282

   JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 209081     vs.   SEX
                    OFFENDER REGISTRY BOARD.



     Middlesex.       September 5, 2017. - December 6, 2017.

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


Sex Offender. Sex Offender Registration and Community
     Notification Act. Administrative Law, Rehearing,
     Proceedings before agency, Regulations. Regulation.
     Waiver.



     Civil action commenced in the Superior Court Department on
August 3, 2015.

    A motion to dismiss was heard by Peter B. Krupp, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Rebecca Rose for the plaintiff.
     David L. Chenail for the defendant.
     Elizabeth Caddick, for Committee for Public Counsel
Services, amicus curiae, submitted a brief.


    BUDD, J.   In 2008, the Sex Offender Registry Board (board),

after a hearing, classified the plaintiff, John Doe, as a level
                                                                   2


three sex offender.   Doe did not appeal from that decision.

Over six years later, he sought to reopen his classification

hearing, contending that the board violated his procedural due

process rights when it went forward with his hearing without

ensuring that his waiver of counsel was knowing and voluntary.

When the board summarily denied his petition for rehearing as

untimely, he filed a complaint in the Superior Court seeking

review.   A Superior Court judge granted the board's motion to

dismiss the petition, and the plaintiff appealed.   We

transferred the case to this court on our own motion.

     We conclude that the board did not abuse its discretion in

denying the plaintiff's petition to reopen his classification

hearing where the petition, which was filed six years after the

board's final decision, did not adequately explain the delay and

did not allege prejudice.1   Although we do not reach the

plaintiff's due process claim, we caution that pursuant to the

board's own regulations, the board must ensure that sex

offenders who choose to represent themselves at classification


     1
       We note that we consider here solely the question whether
the board abused its discretion in declining to reopen the
plaintiff's hearing. We have no jurisdiction to review the
classification decision itself, as the plaintiff failed to file
a complaint in the Superior Court within thirty days of
receiving notice of the board's decision in December of 2008.
See G. L. c. 6, § 178M; G. L. c. 30A, § 14 (1). See also School
Comm. of Franklin v. Commissioner of Educ., 395 Mass. 800, 809
n.8 (1985).
                                                                    3


hearings "knowingly and voluntarily" waive their statutory right

to counsel.2   See 803 Code Mass. Regs. § 1.09(5) (2016).

     Background.   On two different dates in 2008, the plaintiff

pleaded guilty to one count of indecent assault and battery on a

person over fourteen, and to two counts of rape and abuse of a

child.3   In June, 2008, while the plaintiff was incarcerated for

the first conviction, the board notified him of his duty to

register with the board as a sex offender and preliminarily

classified him at level three.4   The plaintiff requested a


     2
       We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services.
     3
       The plaintiff received a sentence of two and one-half
years in a house of correction with one year to serve and the
balance suspended with three years' probation on the former
conviction, and two and one-half years committed from and after
that sentence with five years' probation on the latter
convictions.
     4
       The Sex Offender Registry Board (board) classifies sex
offenders within a system of three different levels based on
risk of reoffense and degree of dangerousness, with level one
representing the designation for offenders presenting the least
serious risk of reoffense and level of dangerousness and level
three for those presenting the most serious. See G. L. c. 6,
§ 178K (2). The board begins with a preliminary recommended
classification. See G. L. c. 6, § 178L (1); 803 Code Mass Regs.
§ 1.06(3) (2016). Any offender who disagrees with the
recommended classification may request a de novo evidentiary
hearing conducted by a board member, a panel of three board
members, or a hearing examiner. See G. L. c. 6, § 178L (2); 803
Code Mass. Regs. §§ 1.06(4), 1.08, 1.14 (2016). If no such
request is made, the board's recommended classification decision
becomes its final classification determination. See G. L. c. 6,
§ 178L (1). Where a sex offender does request a hearing, a
board attorney and the sex offender may both present evidence at
                                                                    4


hearing to challenge the board's classification recommendation

by filling out a form provided by the board.    On that form, he

checked a box indicating that he would represent himself at the

hearing.

     At the October, 2008, hearing, however, the plaintiff

refused to sign a waiver of counsel form and told the hearing

examiner that, in fact, he did not wish to appear without

counsel.    The plaintiff indicated that he had expected that his

criminal defense attorney would be present, and that there had

been a misunderstanding regarding his representation.    The

hearing examiner treated the plaintiff's statements as a motion

to continue the hearing so that the plaintiff could obtain an

attorney, but denied the motion based on the plaintiff's initial

indication, on the written board form, that he would represent

himself.5   The plaintiff did not offer any evidence during the



it, and the sex offender is entitled to be represented by
counsel; the board must provide notice to the sex offender that
if he or she is indigent, he or she has a right to have counsel
appointed. See G. L. c. 6, § 178L (2); 803 Code Mass. Regs.
§§ 1.09, 1.18 (2016). At the conclusion of the hearing, a board
member, board panel, or hearing examiner issues a written
decision that determines the sex offender's final classification
level and sets out the findings on which the classification
determination was based. See G. L. c. 6, § 178K; 803 Code Mass.
Regs. §§ 1.20, 1.33 (2016). A sex offender has a right to seek
judicial review of the final classification decision in
accordance with G. L. c. 30A, § 14. See G. L. c. 6, § 178M.
     5
       The hearing examiner seemed to acknowledge at least some
confusion on the part of the plaintiff about the right to
                                                                     5


hearing.    In a decision issued on November 18, 2008, the hearing

examiner ordered the plaintiff to register as a level three sex

offender based on the evidence introduced by the board.

    The plaintiff waited more than six years, until after he

had completed his criminal sentence, including five years of

probation, to file in June, 2015, a petition to reopen the

initial classification hearing with the board.    In the petition,

plaintiff claimed that the hearing examiner's actions during the

2008 proceeding deprived him of his due process rights and

violated the board's regulations.    Specifically, the plaintiff

contended that he had had insufficient time to prepare for the

hearing, and that the hearing examiner failed to telephone the

plaintiff's criminal defense attorney or postpone the hearing

after becoming aware that the plaintiff was confused without his

attorney.   Further, the plaintiff claimed that it was error for

the hearing examiner to proceed with the hearing and issue a

decision despite his refusal to sign a statement acknowledging

that he knowingly and voluntarily waived his right to counsel.

    The board summarily denied the plaintiff's petition to

reopen on the grounds that it was untimely and the plaintiff had

(initially) indicated that he would represent himself.    The

plaintiff timely filed in the Superior Court a complaint for



counsel.
                                                                   6


judicial review of the board's denial of his petition.    See

G. L. c. 30A, § 14 (1).    In response, the board filed a motion

to dismiss the complaint, which a Superior Court judge allowed.6

The plaintiff appealed, and we transferred his appeal to this

court on our own motion.

     Discussion.   1.   The board's denial of the plaintiff's

request to reopen the classification hearing.    The board has

inherent authority to reopen a classification proceeding and

reconsider its decision at any time, by motion of the sex

offender or by the board's own motion.    Soe, Sex Offender

Registry Bd. No. 252997 v. Sex Offender Registry Bd., 466 Mass.

381, 395-396 (2013) (Soe).    One reason the board may decide to

reconsider a sex offender's classification level after it has

become final is to prevent or mitigate a miscarriage of justice.7


     6
       We note that a timely claim for judicial review of an
agency's decision should be resolved through a motion for
judgment on the pleadings rather than a motion to dismiss the
plaintiff's claim. See Crowell v. Massachusetts Parole Bd., 477
Mass. 106, 109-110 (2017).
     7
       In Soe, we noted that a miscarriage of justice may occur
for many reasons, including when the board substantially relies
on evidence that was later demonstrated to be false. Soe, Sex
Offender Registry Bd. No. 252997 v. Sex Offender Registry Bd.,
466 Mass. 381, 395 (2013) (Soe). "In such cases, the sex
offender's claim is not that he has become less sexually
dangerous since his classification hearing because of a change
in circumstances over the past three years, but that he was less
sexually dangerous than his classification level reflected at
the time of the hearing because the hearing examiner rested the
classification decision on evidence that subsequently was
                                                                   7


Id. at 394-395.    The board's broad inherent authority in this

area is "reviewable only for an abuse of discretion."    Id. at

396.    We note that "[i]n general, administrative agencies have

broad discretion over procedural aspects of matters before

them."    Zachs v. Department of Pub. Utils., 406 Mass. 217, 227

(1989).    When reviewing an agency's decision for abuse of

discretion, we look to see whether the decision was reasonable.

See Soe, supra at 392-393; Zachs, supra at 228; Massachusetts

Elec. Co. v. Department of Pub. Utils., 376 Mass. 294, 307-308

(1978).

       An agency's inherent power to reopen proceedings "must be

sparingly used if administrative decisions are to have resolving

force on which persons can rely."    Soe, 466 Mass. at 395,

quoting Stowe v. Bologna, 32 Mass. App. Ct. 612, 616 (1992).

See Alliance to Protect Nantucket Sound, Inc. v. Department of

Pub. Utils. (No. 2), 461 Mass. 190, 195 (2011) (noting that

party seeking to reopen proceedings "must demonstrate compelling

circumstances").    While each agency's decision to reopen a

proceeding must be considered in the specific context of the

circumstances presented and statutory scheme involved, factors

generally to be weighed by the agency include the advantages of

preserving finality, the desire for stability, the degree of



affirmatively shown to be erroneous."    Id.
                                                                     8


haste or care in making the first decision, timeliness, and the

specific equities involved.   See 2 K.C. Davis, Administrative

Law Treatise § 18.09, at 607 (1958), cited in Aronson v.

Brookline Rent Control Bd., 19 Mass. App. Ct. 700, 706 (1985).

     Here, we agree with the Superior Court judge that the board

did not abuse its discretion in denying the plaintiff's petition

to reopen the hearing.8   First, the plaintiff has failed to

explain adequately his six-year delay in responding to the

board's classification decision.   The hearing examiner informed

the plaintiff that he had thirty days from the receipt of the

board's decision to seek judicial review of that decision.     The

hearing examiner further suggested that the plaintiff should

consult an attorney regarding his appellate rights.   In

addition, the board's final classification decision included

notice in three places, in bold and all capitalized print, that

he had thirty days to appeal that decision to the Superior

Court.   Despite the plaintiff's claim that he mistakenly

believed that he could not pursue an appeal of the board's

classification decision until after he completed his sentence,

the repeated references to the thirty-day deadline for filing an

     8
       The judge erroneously suggested that the board lacked the
authority to reopen the hearing. See Soe, 466 Mass. at 395-396.
However, the judge concluded further that the board's denial of
the plaintiff's petition was justified on alternative grounds,
i.e., that the board did not abuse its discretion in denying
that petition because the petition was not timely.
                                                                    9


appeal provided more than adequate notice that, at the very

least, he needed to explore his appeal options in a more timely

way.

       Second, although it is apparent that the board failed to

ensure that the plaintiff knowingly and voluntarily waived his

right to be represented by counsel at his classification

hearing, the plaintiff failed to articulate in any manner how he

was prejudiced by the error.    The plaintiff's petition does not

include an affidavit or, indeed, any mention of specific facts

or mitigating circumstances that, if represented by counsel, he

would place before the board at a reopened hearing that could

lead it to reconsider its decision.9   See Matter of Powers, 465

Mass. 63, 81 (2013) (concluding that respondent was not

prejudiced because of denied request to appear before regulatory

body where he "provided no proffer of what he or his attorney

would have said to the [body] had his request for an appearance

been honored"); Martorano v. Department of Pub. Utils., 401

       9
       The plaintiff's motion to reopen the initial
classification hearing does contain the following statement in
paragraph 20: "[The plaintiff] had mitigating circumstances and
evidence to bring to the hearing which he did not present, as
appears from the [t]ranscript, relying on his attorney to handle
the case." However, neither in the petition nor on appeal has
the plaintiff described any of the mitigating circumstances or
evidence to which he referred. Cf., e.g., Commonwealth v.
Rosario, 477 Mass. 69, 73, 80-81 (2017) (motion judge did not
abuse discretion in granting new trial approximately thirty
years after defendant's conviction where defendant's motion
cited newly discovered evidence).
                                                                  10


Mass. 257, 262 (1987) ("There must be some showing of prejudice

before an agency's disregard of its own rules may constitute

reversible error").

    Finally, the sex offender registration system administered

by the board provides a plaintiff with the right to a new

reclassification proceeding.   803 Code Mass. Regs. § 1.31

(2016).   The plaintiff notes correctly that, under the board's

regulations, the burden to prove a sex offender's classification

level shifts from the board in an initial classification hearing

to the sex offender in a reclassification hearing.     See 803 Code

Mass. Regs. §§ 1.10, 1.37C(2) (2004); 803 Code Mass. Regs.

§§ 1.14(1), 1.31(1) (2016).    However, the existence of this

reclassification mechanism is an additional factor specific to

the board's regulatory scheme weighing in favor of the agency's

decision to reject his request to reopen his initial

classification proceeding six years after it had concluded.

    That judicial review of both the board's final

classification and its reclassification decisions is subject to

the timing constraints of G. L. c. 30A, § 14, and G. L. c. 6,

§ 178M, reflects a legislative acknowledgement that there is

value in finality of sex offender classification proceedings.

See G. L. c. 6, § 178M (requiring offenders to seek review of

board decisions within thirty days, under G. L. c. 30A, § 14,

and requiring completion of judicial review within sixty days).
                                                                 11


Although the public's interest in such finality does not trump

an interest in rectifying a miscarriage of justice, here,

because the plaintiff failed to show prejudice, it was not

unreasonable for the board to conclude that finality and

timeliness outweighed the plaintiff's interest in reopening the

proceedings.   Given the circumstances, the board's denial of the

plaintiff's petition to reopen his classification hearing was

not an abuse of discretion.

    2.   Right to counsel in Sex Offender Registry Board

classification proceedings.   Because we conclude that in the

circumstances of this case, the board did not abuse its

discretion in declining to reopen the plaintiff's classification

proceeding, we do not reach the plaintiff's claim that his right

to counsel at the hearing was denied.   That being said, it is

clear from the record that the hearing examiner required the

plaintiff to proceed pro se despite concluding that the

plaintiff wanted to be represented by counsel.   We therefore

make the following observations.

    "[A] sex offender is . . . entitled by statute to request

an evidentiary hearing to challenge the board's recommended

classification, to be represented by counsel at that hearing and

to have counsel appointed if he is indigent."    Doe, Sex Offender

Registry Bd. No 941 v. Sex Offender Registry Bd., 460 Mass. 336,
                                                                    12


339 (2011).    See G. L. c. 6, § 178L.10   The Legislature has

granted the board broad authority to promulgate rules and

regulations providing for evidentiary hearings in accordance

with G. L. c. 6, § 178L.     See G. L. c. 6, § 178D; St. 1999,

c. 74, § 16.    If an offender decides to represent himself or

herself at the hearing, the board, by regulation, provides that

"[t]he [h]earing [e]xaminer shall require the offender to sign a

statement, or affirm under oath in the case of video-conference

hearings, that he or she has been informed of his or her right

to have representation and that he or she has knowingly and

voluntarily waived that right" (emphasis added).     803 Code Mass.

Regs. § 1.09(5).     See 803 Code Mass. Regs. § 1.14(1) (2002)

(imposing similar requirement in earlier promulgated

regulation).    At a minimum, the board is expected to follow its

own regulations.11    Royce v. Commissioner of Correction, 390


     10
       In Poe v. Sex Offender Registry Bd., 456 Mass. 801, 811
(2010), we concluded that "sex offenders are entitled to the
effective assistance of counsel at classification hearings and
that the civil formulation of the Saferian standard governs
claims of ineffectiveness." See Commonwealth v. Saferian, 366
Mass. 89, 96 (1974).
     11
       In this case, the hearing examiner seemingly did the
opposite of what we expect would be required for the plaintiff
to have "knowingly and voluntarily" waived counsel pursuant to
the board's regulation. See 803 Code Mass Regs. § 1.09(5).
After the plaintiff refused to sign the required form, the
hearing examiner confirmed that the plaintiff wanted to be
represented by counsel, and then refused to continue the hearing
to allow for such representation. At oral argument, counsel for
                                                                   13


Mass. 425, 427 (1983).

    At oral argument, the board's counsel indicated that

pursuant to the board's current practice when an offender

attends his or her classification hearing without counsel, the

board engages in a colloquy with the offender to ensure that the

offender is giving up his or her right to counsel knowingly,

intelligently, freely, and voluntarily.     The colloquy addresses

the offender's right to counsel and the potential ramifications

of classification, regardless of any initial indications that

the offender would represent himself or herself.     Further, under

current practice, the board's hearing examiners must continue an

offender's classification hearing if at any point during the

hearing the offender determines that he or she would like to be

represented by counsel, providing the offender with the

opportunity to obtain counsel.     These practices appear to

satisfy the requirement that the board ensure that any waiver of

counsel is knowing and voluntary.     See 803 Code Mass. Regs.

§ 1.09(5).   We recommend that they continue.

    3.   Conclusion.     For the reasons stated above, we remand

the case to the Superior Court for entry of a judgment affirming

the board's decision denying the plaintiff's petition to reopen

the initial classification hearing.


the board acknowledged that the hearing examiner in the
plaintiff's case erred.
              14


So ordered.
    GANTS, C.J. (dissenting, with whom Lenk, J., joins).      In

2013, we declared in Soe, Sex Offender Registry Bd. No. 252997

v. Sex Offender Registry Bd., 466 Mass. 381, 395 (2013) (Soe),

that the Sex Offender Registry Board (board) "has the inherent

authority to reconsider a decision or reopen a proceeding to

prevent or mitigate a miscarriage of justice."   We also declared

that the board's decision not to exercise such authority is

reviewable for an abuse of discretion.   Id. at 396.    Where, as

here, the plaintiff petitioned to reopen his initial

classification hearing on the ground that he was required to

proceed without counsel despite his refusal to make a knowing

and voluntary waiver of that statutory right at the hearing, I

believe that it is an abuse of discretion for the board to deny

the petition without deciding whether reopening the hearing is

necessary to prevent or mitigate a miscarriage of justice.

Because the board failed to reach that decision, and because the

plaintiff made a substantial claim that he suffered a

miscarriage of justice at the initial classification hearing, I

would reverse the Superior Court judge's allowance of the

board's motion to dismiss the complaint for judicial review, and

remand the matter to the judge, directing that he remand the

plaintiff's petition to the board.   Consequently, I respectfully

dissent.

    The material facts in this appeal are not in dispute.     When
                                                                         2


the plaintiff requested a hearing on the board's initial

classification of him as a level three sex offender, he checked

the box that read, "I will represent myself at the hearing."        At

the time he checked this box on July 11, 2008, the plaintiff was

serving a sentence in a house of correction after pleading

guilty to one count of indecent assault and battery on a person

over fourteen years of age, and was represented by counsel in a

pending criminal case.   At the classification hearing, the

plaintiff appeared without counsel.   The plaintiff, when advised

of his rights by the hearing examiner, refused to sign the

written waiver of his right to counsel, and told the hearing

examiner, "I don't want to waive my [right to] counsel."1     The

hearing examiner understood that the plaintiff wished to have an

attorney appointed or to retain his own attorney, but denied the

request and proceeded with the hearing.   The board offered in

evidence the classification report and its five attachments, and

rested its case.   When asked by the hearing examiner whether he

intended to present evidence, the plaintiff replied, "I'm not

sure what evidence I need to present to the [b]oard."   He

offered no evidence in his defense.


     1
       The plaintiff later explained to the hearing examiner that
he thought his criminal attorney would represent him at the
hearing, stating, "[W]hen I had my lawyer present, I was told
not to waive [my right to counsel] because that's something he
would take care of."
                                                                     3


    The board concedes that the hearing examiner "blew it" when

he refused to continue the hearing to allow the plaintiff to

obtain counsel.     At the time of the hearing, the board's

regulations provided that a sex offender may represent himself

at the hearing only after the offender signs a statement

declaring that "he knowingly and voluntarily has waived" his

right to counsel.     803 Code Mass. Regs. § 1.14(1) (2002).

    The plaintiff, although notified of his right to appeal

from the board's final determination that he was a level three

offender, did not timely seek judicial review of that

determination.    In 2015, after completing his incarceration and

term of probation, the plaintiff petitioned the board to reopen

his classification hearing because he had been denied his right

to counsel.    The board denied the plaintiff's petition on two

separate grounds:    first, because the classification hearing had

been conducted more than six years earlier; and second, because

the plaintiff had "indicated he would represent himself" -- a

reference, apparently, to the fact that the plaintiff had

checked the box waiving his right to counsel when he requested

the hearing.

    The plaintiff filed a complaint for judicial review of the

board's denial of his petition.     The Superior Court judge in

2016 allowed the board's motion to dismiss the complaint,

concluding that "[the b]oard's regulations do not authorize a
                                                                   4


petition to the hearing examiner to reopen a hearing or conduct

a new hearing once a decision is final." The judge's conclusion

was factually accurate but an error of law.   Although the

board's regulations do not specifically countenance petitions

for reconsideration or reopening of a hearing, this court had

declared in 2013 in Soe, 466 Mass. at 395, that the board

retains the inherent authority to reconsider a decision or

reopen a proceeding to prevent or mitigate a miscarriage of

justice.

    The judge also stated an alternative ground for the

dismissal:   that the board did not abuse its discretion in

denying the petition because the petition was not timely, given

the delay of more than six years.   This, too, was an error of

law, because the public interest in finality is not so great

that it justifies the failure to rectify a miscarriage of

justice.

    "Although the public's interest in . . . finality . . . is

weighty, it is not always paramount."   Commonwealth v. Randolph,

438 Mass. 290, 294 (2002).   In the criminal context, we have

long recognized the "fundamental principle . . . that, if it

appears that justice may not have been done, the valuable

finality of judicial proceedings must yield to our system's

reluctance to countenance significant individual injustices."

Commonwealth v. Brescia, 471 Mass. 381, 388 (2015).   See, e.g.,
                                                                    5


Commonwealth v. Rosario, 477 Mass. 69, 70, 78, 81 (2017)

(affirming order granting new trial based on "substantial risk

of a miscarriage of justice" approximately thirty years after

defendant's conviction); Commonwealth v. Azar, 435 Mass. 675,

689-690 (2002) (remanding criminal case for new trial based on

"substantial risk of a miscarriage of justice," notwithstanding

defendant's six-year delay in filing postappeal motion for new

trial).   That principle applies with equal force to the board's

risk classification proceedings, where -- as we have recently

reiterated -- important liberty and privacy interests are at

stake.    See Doe, Sex Offender Registry Bd. No. 380316 v. Sex

Offender Registry Bd., 473 Mass. 297, 311 (2015).   See also Doe,

Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd.,

428 Mass. 90, 100-101 (1998) (Doe No. 972).   Classification as a

sex offender is "a continuing, intrusive, and humiliating

regulation of the person," Doe v. Attorney Gen., 426 Mass. 136,

149 (1997) (Fried, J., concurring), with severe collateral

consequences, often "cast[ing] a continuing shadow of further

criminal sanctions and possible reincarceration."   Doe No. 972,

supra at 106 (Marshall, J., concurring in part and dissenting in

part).

    Indeed, the interest in finality is considerably less

weighty in a sexual risk classification proceeding than in a

criminal case.   In a criminal case, the issue is whether a
                                                                    6


defendant committed a crime in the past with the intent required

for that crime.   In a risk classification proceeding, the issue

is whether a person at the present time poses so substantial a

risk of sexual recidivism that he or she should be classified a

level one, two, or three sex offender.   The purpose of the

classification is not to punish or condemn for past crimes, but

to protect the public from the risk of the sex offender

committing future crimes.   The plaintiff here, in a proceeding

where he was denied his right to counsel, was classified as a

level three sex offender and has suffered the consequences of

that classification for the past nine years.   In contrast with a

criminal conviction, however, such a classification is never

final; it is always subject to change over time as the person's

risk of sexual recidivism changes, as it often does with age.

See 803 Code Mass. Regs. § 1.31(1) (2016) ("The [b]oard

recognizes the risk to reoffend . . . posed by a sex offender

may decrease over time"); Doe, Sex Offender Registry Bd. No.

7083 v. Sex Offender Registry Bd., 472 Mass. 475, 483 (2015)

("[The board must] 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 also Doe,

Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry

Bd., 456 Mass. 612, 622-623 (2010) (board's failure to consider

evidence of offender's age in classification determination was
                                                                   7


"arbitrary and capricious").

     Moreover, the concerns that in the past have typically

weighed in favor of finality -- the deterioration of evidence,

the need to resummon witnesses, the cost and time associated

with readjudication, see Commonwealth v. Amirault, 424 Mass.

618, 637 (1997) -- are present in a criminal case but largely

absent in the context of a classification hearing.   Here, the

board simply offered in evidence the classification report and

its related attachments, and rested.   During oral argument, the

board admitted that this is the norm in classification hearings.2

Where the administrative burden of reopening a proceeding is

minimal, as here, the need for finality is correspondingly

limited.

     At a minimum, before finality is allowed to trump the

demands of justice, an administrative agency (and, on review, a

judge) must first evaluate whether there was a miscarriage of

justice and balance the importance of rectifying or mitigating

that miscarriage against the public interest in finality.    The

board did not do that here; to the extent that it even

considered whether there was a miscarriage of justice, it erred


     2
       When asked what evidence the board would present if the
plaintiff's hearing were to be reopened, counsel for the board
stated: "Honestly, in the twelve years that I've been with the
[board], I don't think I've ever called a witness. It's
basically the documentary evidence."
                                                                        8


by focusing solely on the plaintiff having checked the box

regarding the waiver of counsel before the hearing, while

ignoring the plaintiff's refusal to make a knowing and voluntary

waiver at the hearing when the board's own regulation required

just such a waiver.

    Certainly, a more searching inquiry is necessary where the

board concedes, as it does here, that the plaintiff was denied

his statutory right to counsel.    See G. L. c. 6, § 178L.   In Poe

v. Sex Offender Registry Bd., 456 Mass. 801, 812 (2010), we held

that a sex offender's statutory right to counsel at a

classification hearing implies a right to effective counsel.       We

concluded that, "[i]n light of the serious ramifications of

erroneous classification, the principle of fundamental fairness

that underlies the statutory entitlement to counsel would be

ill-served if sex offenders were afforded something less than

what we usually refer to as the effective assistance of

counsel."   Id. at 813.   Where the performance of counsel at a

classification hearing "fall[s] measurably below that which

might be expected from an ordinary fallible lawyer," id. at 812,

quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), we

order a new hearing where the plaintiff proves prejudice, that

is, "a 'reasonable probability' that 'but for counsel's

unprofessional errors, the result of the proceeding would have

been different.'"     Poe, supra at 813, quoting Commonwealth v.
                                                                     9


Mahar, 442 Mass. 11, 15 (2004).   Here, the plaintiff was not

denied his right to the effective assistance of counsel; he was

denied his right to any assistance from counsel, in violation of

statute (§ 178L) and of the board's own regulation (803 Code

Mass. Regs. § 1.14[1]).

    The court essentially concludes that the standard for

reopening a classification hearing is the same for an individual

who received the ineffective assistance of counsel as for an

individual who was denied the right to counsel altogether, even

though we have recognized that classification as a sex offender

implicates a "constitutionally protected liberty . . .

interest."   Doe No. 972, 428 Mass. at 100.    Where a liberty

interest is at stake, we have never before equated the two

situations; we have always recognized that the denial of the

right to counsel itself, unlike the ineffective assistance of

counsel, is a structural error requiring a new trial because

prejudice must be presumed.   See, e.g., Commonwealth v.

LaChance, 469 Mass. 854, 859 (2014), cert. denied, 136 S. Ct.

317 (2015) (distinguishing between "circumstances where the

essential right to the assistance of counsel itself has been

denied," and prejudice is presumed, and "circumstances where

ineffectiveness is based on '[a]n error by counsel,'" where

prejudice must be shown [citation omitted]).    In criminal cases,

it is without question that the denial of counsel is so
                                                                     10


"inherently unfair" that it "require[s] no showing of prejudice

to warrant reversal."    Commonwealth v. Valentin, 470 Mass. 186,

194 (2014).   See Commonwealth v. Means, 454 Mass. 81, 88-89

(2009) ("Because the right to the assistance of counsel is

essential to individual liberty and security, . . . its

erroneous denial can never be treated as harmless error").     And

in the context of civil proceedings, too, our appellate courts

have held that the denial of counsel is so "presumptively

harmful" -- and its consequences so "pervasive, undetectable,

and immeasurable" -- that justice requires new proceedings.

Adoption of Gabe, 84 Mass. App. Ct. 286, 293-294 (2013)

(ordering new trial on termination of parental rights).

    "Of all the rights that an accused person has, the right to

be represented by counsel is by far the most pervasive for it

affects his ability to assert any other rights he may have"

(citation omitted).     United States v. Cronic, 466 U.S. 648, 654

(1984).   Here, it is apparent from the record that without

counsel the plaintiff received a classification hearing in form

only; in substance, he had no meaningful opportunity to

challenge the board's evidence.    Unlike other errors that may

require a showing of prejudice, the denial of counsel -- in

violation of the plaintiff's statutory right -- creates "a

serious risk of injustice" that must be weighed against any

interest in finality.    Id. at 656, quoting Cuyler v. Sullivan,
                                                                   11


446 U.S. 335, 343 (1980).

    Nor, where the plaintiff has been denied his statutory

right to counsel, is it reasonable to deny rehearing because he

failed timely to seek judicial review of his classification.     We

have held that failure to file a timely notice of appeal

constitutes ineffective assistance of counsel where the

defendant would have prevailed on appeal.   See Commonwealth v.

Patton, 458 Mass. 119, 129 (2010), citing Commonwealth v. Cowie,

404 Mass. 119, 122 (1989) (failure to timely appeal probation

revocation was ineffective assistance of counsel).   Here, there

can be no doubt that, if the plaintiff had timely sought

judicial review of his classification, he would have prevailed

in obtaining a new hearing based on the denial of his right to

counsel.   He should not be left without an adequate remedy

merely because he was unable, while incarcerated and without the

assistance of counsel, timely to recognize that he had been

denied his right to counsel.

    Nor can it reasonably be expected that, given the passage

of time, justice can now be served by the plaintiff's

eligibility to request a reclassification hearing.   Under the

current board regulations, the plaintiff would bear the burden

at such a hearing to demonstrate by clear and convincing

evidence that his or her risk of sexual recidivism has decreased

since the final classification.   803 Code Mass. Regs.
                                                                   12


§ 1.31(2)(c) (2016).3   This is a far cry from the standard that

would apply were he to be given a new classification hearing

examining his current risk of sexual recidivism, where the

burden would remain on the board to prove by clear and

convincing evidence that his risk of sexual recidivism warrants

his classification as a level three offender.   803 Code Mass.

Regs. § 1.14(1) (2016).   See Doe, Sex Offender Registry Bd. No.

326573 v. Sex Offender Registry Bd., 477 Mass. 361, 367 n.7

(2017).

     For these reasons, I would reverse the Superior Court

judge's allowance of the board's motion to dismiss, and remand

the matter to the judge with instructions that he remand it to

the board for consideration consistent with our law.




     3
       We have yet to confront a case that challenges the
constitutionality of the burden placed on sex offenders seeking
reclassification by this regulation. See Doe, Sex Offender
Registry Bd. No. 326573 v. Sex Offender Registry Bd., 477 Mass.
361, 367 n.7 (2017) (declining to address constitutionality of
regulation).
