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SJC-12462

 JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 76819 & others1   vs.
                  SEX OFFENDER REGISTRY BOARD.



            Suffolk.    April 3, 2018. - August 1, 2018.

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


Sex Offender. Sex Offender Registration and Community
     Notification Act. Constitutional Law, Sex offender, Burden
     of proof. Due Process of Law, Sex offender, Hearing,
     Burden of proof, Standard of proof. Evidence, Sex
     offender, Burden of going forward, Presumptions and burden
     of proof. Practice, Civil, Sex offender, Motion to
     dismiss, Presumptions and burden of proof, Standard of
     proof. Supreme Judicial Court, Jurisdiction.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on October 10, 2017.

     The case was reported by Gants, C.J.


     Christopher M. Bova (William H. Burke, Special Assistant
Attorney General, also present) for the defendant.


     1 John Does, Sex Offender Registry Board Nos. 293109, 22306,
21890, 1719, 208025, 3687l, 21916, 11751, 645, 22023, 5165,
34293, 20594, 37783, 54040, 6063, 96160, 7320, 11596, 151563,
276695, 35451, 31337, and 156025; and Alexander H., intervener.
                                                                  2


     Eric B. Tennen (Kate A. Frame & Andrew S. Crouch also
present) for the plaintiffs.
     John Reinstein, for the intervener, was present but did not
argue.
     Nancy A. Dolberg, Committee for Public Counsel Services,
for Committee for Public Counsel Services, amicus curiae,
submitted a brief.


    KAFKER, J.   In this companion case to Noe, Sex Offender

Registry Bd. No. 5340 v. Sex Offender Registry Bd., 480

Mass.    (2018) (Noe No. 5340), we consider the burden and

quantum of proof in cases in which sex offenders seek

termination of their duty to register under the State's sex

offender registry law, G. L. c. 6, §§ 178C-178Q.   We also

address the requirement imposed on the Sex Offender Registry

Board (board) to hold hearings in reclassification and

termination proceedings requested by the sex offender within a

reasonable amount of time.   Finally, we address various other

procedural and jurisdictional questions raised by the parties.

    The plaintiffs, sex offenders seeking reclassification or

termination of their duty to register, sought relief from a

single justice of this court, challenging both the board's

allocation of the burden of proof in these proceedings and the

board's failure to timely conduct offender-initiated

reclassification and termination hearings.   The board moved to

dismiss the petition and complaint, arguing that the single

justice did not have jurisdiction to hear the matter.    The board
                                                                     3


further contended that its delay was justified by its duty to

prioritize other cases, pursuant to G. L. c. 6, § 178K (3), and

its interest in the resolution of the pending Noe No. 5340

litigation.

    The single justice reserved and reported to the full court

so much of the case as involved the board's motion to dismiss.

Additionally, the single justice reserved and reported the

following question:   "What is the quantum of proof required at a

hearing where a sex offender requests reclassification or

termination of his or her status as a registered sex offender?"

    For the reasons discussed below, the motion to dismiss is

denied.   Additionally, for substantially the reasons discussed

in Noe No. 5340, 480 Mass. at     , we conclude that due process

requires that the appropriate quantum of proof in termination

proceedings, as in reclassification proceedings, is clear and

convincing evidence, and that the burden is imposed on the

board, not the sex offender.    The sex offender does, however,

retain an initial burden of production to introduce evidence of

changed circumstances showing that he or she "does not pose a

risk to reoffend or a danger to the public."    See 803 Code Mass.

Regs. § 1.30(1) (2016).   We further conclude that such hearings

on reclassifications and terminations must take place within a
                                                                      4


reasonable period of time after the issuance of the rescript in

this case.2

     1.   Background.   a.   Statutory scheme.   Under the sex

offender registry law, an individual convicted of an enumerated

sex offense may be required to register as a sex offender in the

Commonwealth.   See G. L. c. 6, § 178E.    Offenders are classified

in one of three levels depending on their risk of reoffense and

degree of dangerousness.     See G. L. c. 6, § 178K (2).    A sex

offender is classified as level one where "the board determines

that the risk of reoffense is low and the degree of

dangerousness posed to the public is not such that a public

safety interest is served by public availability" of

registration information.    G. L. c. 6, § 178K (2) (a).    A sex

offender is classified as level two where "the board determines

that the risk of reoffense is moderate and the degree of

dangerousness posed to the public is such that a public safety

interest is served by public availability of registration

information."   G. L. c. 6, § 178K (2) (b).      A sex offender is

classified as level three where "the board determines that the

risk of reoffense is high and the degree of dangerousness posed

to the public is such that a substantial public safety interest




     2 We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services in support of the plaintiffs.
                                                                      5


is served by active dissemination" of registration information.

G. L. c. 6, § 178K (2) (c).

    Pursuant to the sex offender registry law, the board

prepares a recommended classification for each sex offender.

G. L. c. 6, § 178L (1).    If an offender objects to the board's

recommendation, he or she is entitled to request an evidentiary

hearing for a final determination as to his or her registration

and classification.   See G. L. c. 6, § 178L (1) (a), (2).      The

sex offender registry law requires that the hearing officer

"determine by a preponderance of evidence such sex offender's

duty to register and final classification."     G. L. c. 6,

§ 178L (2).   In Doe, Sex Offender Registry Bd. No. 380316 v. Sex

Offender Registry Bd., 473 Mass. 297, 311 (2015) (Doe No.

380316), this court concluded that the statutory provision

requiring only a preponderance of the evidence to determine an

offender's duty to register and classification level violated

the offender's procedural due process rights.    We held that the

board was instead constitutionally required to prove the

appropriateness of an offender's initial classification by clear

and convincing evidence.   Id.

    No sooner than three years after initial classification, an

offender may seek to be reclassified at a lower level.        See

G. L. c. 6, § 178L (3); 803 Code Mass. Regs. § 1.31(2)(a)

(2016).   After our decision in Doe No. 380316, the board amended
                                                                     6


its regulations to require that offenders prove the

appropriateness of downward reclassification by clear and

convincing evidence, rather than a preponderance of the

evidence.   See 803 Code Mass. Regs. § 1.31(2)(c).    Today, in Noe

No. 5340, 480 Mass. at     , we held that the regulation placing

the burden of proof on the offender in downward reclassification

hearings violated the offender's procedural due process rights.

We concluded that the burden of proof must remain with the board

to prove the appropriateness of an offender's existing

classification by clear and convincing evidence.     See id.   The

offender does, however, have an initial burden of production to

provide "new information" of a decreased risk of reoffense or

degree of dangerousness.   See id.; G. L. c. 6, § 178L (3).

    At least ten years after initial classification, an

offender may seek to have his or her duty to register

terminated.   See G. L. c. 6, § 178G.   Here, we are confronted

with the question of the appropriate quantum and burden of proof

in the context of such termination hearings.   Pursuant to G. L.

c. 6, § 178G:

    "A person required to register with the sex offender
    registry board may make an application to said board to
    terminate the obligation upon proof, by clear and
    convincing evidence, that the person has not committed a
    sex offense within ten years following conviction,
    adjudication or release from all custody or supervision,
    whichever is later, and is not likely to pose a danger to
    the safety of others."
                                                                      7


To answer the reported question from the single justice, we must

determine whether placing the burden of proof on an offender in

termination hearings, by clear and convincing evidence, is in

violation of procedural due process.

    2.   Discussion.   a.   Reported question.   For substantially

the same reasons outlined in our decision in Noe No. 5340, we

now conclude that the appropriate quantum of proof in

termination proceedings is also clear and convincing evidence

and that the burden is imposed on the board.     We further

conclude, as we did in Noe No. 5340, that the offender retains

an initial burden of production to provide new evidence.      In so

doing, we balance "the private interests affected, the risk of

erroneous deprivation, the probable value of additional or

substitute safeguards, and the governmental interests involved."

Doe No. 380316, 473 Mass. at 311, quoting Doe, Sex Offender

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

100 (1998) (Doe No. 972).

    i.   Private interests.   As we stated in Doe No. 380316, 473

Mass. at 311, the private interests at stake in sex offender

registration and classification are significant.    A sex offender

faces "increasingly stringent affirmative reporting

requirements" and is "likely to confront stigma and legal

restrictions that will make it harder for him to find stable
                                                                     8


housing or employment, and may even face threats of physical

harm."   Id.

    Although an offender who is already registered is in a

different position from that of an individual who has not yet

registered, the private interests at stake remain significant.

See Noe No. 5340, 480 Mass. at     .    The sex offender registry

law requires sex offenders to register annually.    See G. L.

c. 6, § 178F.   Such registration information is transmitted to

local law enforcement where the offender lives and works, as

well as law enforcement where the offender attends an

institution of higher learning.   See G. L. c. 6, § 178K (2); 803

Code Mass. Regs. § 1.05(9) (2016).     The information is also

disseminated to the Federal Bureau of Investigation and may also

be provided to numerous State agencies.    See G. L. c. 6,

§ 178K (2); 803 Code Mass. Regs. § 1.05(9)(c).     In other words,

"the Commonwealth [is required] annually to inform local and

Federal law enforcement officers that, in its view, [the

offender] presents a risk of committing a sex offense," despite

any subsequent conduct to the contrary (emphasis in original).

Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry

Bd., 450 Mass. 780, 790-791 (2008).    A sex offender's continued

duty to register thus remains "a continuing, intrusive, and

humiliating regulation of the person himself."     Doe v. Attorney

Gen., 426 Mass. 136, 149 (1997) (Fried, J., concurring).
                                                                     9


Accordingly, sex offenders seeking termination of their

continued duty to register, and the significant consequences

that follow from such registration, have substantial privacy and

liberty interests at stake.

     ii.   Risk of erroneous deprivation.   As we stated in Noe

No. 5340, 480 Mass. at     , "the risk of erroneous

classification and deprivation remains in reclassification

proceedings and . . . that risk must continue to be borne by the

government."   Therefore, in reclassification proceedings the

ultimate burden of proof must remain with the board to prove by

clear and convincing evidence that the existing classification

is current and correct.   Id.   See Doe No. 380316, 473 Mass. at

313, quoting Addington v. Texas, 441 U.S. 418, 427 (1979)

(offenders "should not be asked to share equally with society

the risk of error" in initial classification proceedings).      We

further concluded, however, that there is a burden of production

on the offender seeking reclassification to demonstrate some

change in his or her circumstances indicating a reduced risk of

reoffense or degree of dangerousness, as he or she is in the

best position to provide such evidence.     Noe No. 5340, supra at

.   The same essential reasoning applies to terminations as well.

     Termination, like reclassification, is not "a mere

continuation of the original classification" proceedings,

designed to verify the board's initial determination.     Id. at
                                                                     10


.   An offender may not apply for termination unless the offender

"has not committed a sex offense within ten years following

conviction, adjudication or release from all custody or

supervision, whichever is later."    G. L. c. 6, § 178G.

Subsequent requests for termination may be made three years

after the board has denied the last motion for termination.     See

803 Code Mass. Regs. § 1.30(9).     Thus, at minimum, a sex

offender only becomes eligible to apply for termination ten

years after his or her initial offense.

     By including a decade-long waiting period for initial

termination requests, the Legislature recognized that an

offender may no longer pose a danger to others after the passage

of such a significant period of time.     See G. L. c. 6, § 178G.

See also 803 Code Mass. Regs. § 1.33(29), (30), (31) (2016)

(recognizing that likelihood of recidivism and dangerousness

decreases with additional offense-free time in community,

advanced age, and debilitating illness).     This ten-year waiting

period is significantly longer than the three-year

reclassification waiting period that we concluded amounted to a

"significant passage of time and thus a meaningful waiting

period" in Noe No. 5340, 480 Mass. at       .   Over the course of

ten years, it is even more possible that an offender has

undergone a significant change in his or her degree of

dangerousness than over the course of three years.     Thus, rather
                                                                    11


than a continuation of the original classification hearing, a

termination hearing is an independent proceeding designed to

determine whether an offender currently poses a danger to the

safety of others, taking into account this significant passage

of time and the new evidence provided by the offender.     See Doe,

Sex Offender Registry Bd. No. 7083 v. Sex Offender Registry Bd.,

472 Mass. 475, 483 (2015).

       Given that passage of time, the production of new evidence

by the sex offender, and the difficulty of assessing an

offender's degree of dangerousness, there is a risk of erroneous

classification.    See Noe No. 5340, 480 Mass. at     .   As we have

concluded in Doe No. 380316 and Noe No. 5340, that risk must be

borne by the government.     Placing the burden of proof on the

board by clear and convincing evidence, as is necessary in

original classification and reclassification hearings,

appropriately reduces the risk of erroneous deprivation.     See

Noe No. 5340, supra at       ; Doe No. 380316, 473 Mass. at 311-

314.

       Offenders do have a burden of production to show a change

in circumstances indicating that they do not pose a risk to

reoffend or a danger to the public.     See 803 Code Mass. Regs.

§ 1.30(1).   Placing the burden of proof on the board and the

burden of production on the offender seeking termination further

minimizes the risk of error.     See Noe No. 5340, 480 Mass. at
                                                                    12


.   Offenders are in the best position to provide such

information and thus have a duty to do so if they want their

registration requirement terminated.

     iii.   Government interests.   The State has a public safety

interest in protecting "children and other vulnerable people

from recidivistic sex offenders."    Doe No. 380316, 473 Mass. at

313, quoting Doe No. 972, 428 Mass. at 103.    In passing the sex

offender registry law, the Legislature found "the danger of

recidivism posed by sex offenders, especially sexually violent

offenders who commit predatory acts characterized by repetitive

and compulsive behavior, to be grave and that the protection of

the public from these sex offenders is of paramount interest to

the government."   St. 1999, c. 74, § 1.   That government

interest is best accomplished, however, by accurately

classifying each offender.   See Soe, Sex Offender Registry Bd.

No. 252997 v. Sex Offender Registry Bd., 466 Mass. 381, 391

(2013).

     In Noe No. 5340, 480 Mass. at      , we stated that the

"government interest in accurate classifications applies equally

to reclassifications and to original classifications."    So too

does that interest apply to termination hearings.    A sex

offender's continued duty to register, despite no longer posing

a risk to reoffend or a danger to the public, "distracts the

public's attention from those offenders who pose a real risk of
                                                                     13


reoffense, and strains law enforcement resources."     Doe No.

380316, 473 Mass. at 313-314.    See Doe No. 972, 428 Mass. at 107

(Marshall, J., concurring in part and dissenting in part) ("As

observed in an altogether different context but oddly apropos of

this classification system as well, 'when everything is

classified, then nothing is classified, and the system becomes

one to be disregarded by the cynical or the careless'" [citation

omitted]).

     iv.    Balancing.   Balancing the factors specified above, we

conclude that the significant private interests at stake, the

need to avoid erroneous classification, and the government's own

overarching interest in accurate classification require that the

burden of proof remain with the board in termination hearings.

In balancing these factors in Doe No. 380316, 473 Mass. at 314-

315, we determined that procedural due process required that the

board have the burden of proving the appropriateness of an

offender's initial classification by clear and convincing

evidence.    We reached this conclusion in Noe No. 5340, 480 Mass.

at   , with regard to reclassification hearings, so long as the

offender satisfies his or her initial burden of production to

establish changed circumstances justifying reclassification, and

we reach the same conclusion here as to termination hearings.

     An individual's ongoing duty to register as a sex offender

implicates significant liberty and privacy interests for as long
                                                                   14


as the individual is required to register as a sex offender.

Applying a clear and convincing evidence standard, with the

burden on the board, throughout the classification,

reclassification, and termination process provides "greater

certainty that the burdens placed on [the offender] . . . are

warranted," by providing greater protection against erroneous

classification.   Doe No. 380316, 473 Mass. at 314.   The

government's public safety responsibilities are also best served

by accurate classification, not overclassification, which "both

distracts the public's attention from those offenders who pose a

real risk of reoffense, and strains law enforcement resources."

Id. at 313-314.

    Accordingly, we conclude that G. L. c. 6, § 178G,

unconstitutionally places the burden of proof in termination

hearings on the sex offender.   Procedural due process requires

that the burden of proof remain with the board to demonstrate

the continued appropriateness of the offender's duty to

register, by clear and convincing evidence.    See Noe No. 5340,

480 Mass. at      ; Doe No. 380316, 473 Mass. at 314-315.   The

offender's burden is only one of production, to introduce

credible evidence of changed circumstances demonstrating that he

or she is no longer a risk to public safety.

    For the reasons discussed above, and for the reasons stated

in our decision in Noe No. 5340, 480 Mass. at      , we answer the
                                                                    15


reported question as follows:    the quantum of proof required at

a hearing where a sex offender requests reclassification or

termination of his or her status as a registered sex offender is

clear and convincing evidence, with the burden of proof on the

board.   An offender seeking reclassification has a burden of

production to show a change in circumstances indicating that the

offender poses a decreased risk of reoffense or degree of

dangerousness.   Id.   An offender seeking termination has a

burden of production to show a change in circumstances

indicating that the offender no longer poses a risk to reoffend

or a danger to the public.

    b.   Motion to dismiss.     In addition to the reported

question, the single justice also reported this case to the full

court on the motion to dismiss.    "Factual allegations are

sufficient to survive a motion to dismiss if they plausibly

suggest that the plaintiff is entitled to relief."     A.L. Prime

Energy Consultant, Inc. v. Massachusetts Bay Transp. Auth., 479

Mass. 419, 424 (2018).   See Iannacchino v. Ford Motor Co., 451

Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 557 (2007) ("What is required at the pleading stage

are factual 'allegations plausibly suggesting [not merely

consistent with]' an entitlement to relief").     The board's

motion to dismiss asserts lack of subject matter jurisdiction
                                                                   16


and failure to state a claim on which relief can be granted.      We

address each argument in turn.

    i.   Subject matter jurisdiction.    Although the parties

disagree over the grounds on which this court has subject matter

jurisdiction, there is no question that this case is properly

before us.   Pursuant to G. L. c. 231A, § 1, this court "may on

appropriate proceedings make binding declarations of right,

duty, status and other legal relations sought thereby."     See

generally Moe v. Sex Offender Registry Bd., 467 Mass. 598, 600

(2014) (single justice reserved and reported complaint seeking

declaratory and injunctive relief to full court).    More

particularly, we have previously held that declaratory relief is

the proper mechanism for challenging the constitutionality of

the board's regulations.   See Doe, Sex Offender Registry Bd. No.

10800 v. Sex Offender Registry Bd., 459 Mass. 603, 629 (2011)

("A challenge to the constitutionality of a regulation of

general application is appropriately presented as an action for

declaratory judgment").    Additionally, pursuant to G. L. c. 214,

§ 1, the Supreme Judicial Court has "original and concurrent

jurisdiction of all cases and matters of equity cognizable under

the general principles of equity jurisprudence."    Thus, the
                                                                     17


plaintiffs' claims for declaratory and injunctive relief are

properly before this court.3

     ii.   Failure to state a claim.    Under the sex offender

registry law, reclassification hearings must be conducted "in a

reasonable time."   G. L. c. 6, § 178L (3).   The board's

regulations further require that sex offenders must be provided

with notification of the board's reclassification or termination

decision "as soon as practicable."     See 803 Code Mass. Regs.

§§ 1.30(8)(a), 1.31(7)(a).     General Laws c. 6, § 178K (3), also




     3 While the amended complaint focuses largely on declaratory
and injunctive relief, the plaintiffs continue to argue for
relief under G. L. c. 211, § 3, as well as for mandamus under
G. L. c. 249, § 5, both in their opposition to the board's
motion to dismiss and in their brief to the full court. The
board argues on appeal that the plaintiffs are foreclosed from
seeking relief under G. L. c. 211, § 3, or G. L. c. 249, § 5.
We agree. Our superintendence authority under G. L. c. 211,
§ 3, "is to be used sparingly, and 'should be exercised only in
exceptional circumstances and where necessary to protect
substantive rights in the absence of an alternative, effective
remedy.'" MacDougall v. Commonwealth, 447 Mass. 505, 510
(2006), quoting Soja v. T.P. Sampson Co., 373 Mass. 630, 631
(1977). Similarly, a claim seeking mandamus under G. L. c. 249,
§ 5, "does not lie if any other effective remedy exists."
County Comm'rs of Middlesex County v. Sheriff of Middlesex
County, 361 Mass. 89, 90–91 (1972). Here, the plaintiffs have
other available remedies, namely declaratory and equitable
relief, and thus are not entitled to relief under G. L. c. 211,
§ 3, or G. L. c. 249, § 5. See Doe, Sex Offender Registry Bd.
No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 629
(2011) ("A challenge to the constitutionality of a regulation of
general application is appropriately presented as an action for
declaratory judgment"). Further, G. L. c. 211, § 3, only
empowers us to exercise superintendence over "courts of inferior
jurisdiction," not executive agencies.
                                                                  18


creates a specific prioritization scheme for conducting initial

classifications that the board must follow.4

     Subsequent to our decision in Doe No. 380316, 473 Mass. at

314 n.26, hundreds of initial classification proceedings then

pending before the board, the Superior Court, and the appellate

courts were remanded to the board to apply the appropriate

quantum of proof.    In light of our ruling, and the board's

statutory duty to prioritize certain cases under G. L. c. 6,

§ 178K (3), the board "triaged" its caseload, prioritizing this

backlog of initial classifications.    See G. L. c. 6, § 178K (3).

Less than two years later, when the Superior Court judge in the

case underlying Noe No. 5340 declared that placing the burden of

proof on offenders in reclassification hearings was

unconstitutional, the board elected not to resume

     4   General Laws c. 6, § 178K (3), provides in relevant part:

          "The sex offender registry board shall make a
     determination regarding the level of risk of reoffense and
     the degree of dangerousness posed to the public of each sex
     offender listed in said sex offender registry and shall
     give immediate priority to those offenders who have been
     convicted of a sex offense involving a child or convicted
     or adjudicated as a delinquent juvenile or as a youthful
     offender by reason of a sexually violent offense or of a
     sex offense of indecent assault and battery upon a mentally
     retarded person pursuant to [G. L. c. 265, § 13F], and who
     have not been sentenced to incarceration for at least
     [ninety] days, followed, in order of priority, by those sex
     offenders who (1) have been released from incarceration
     within the past [twelve] months, (2) are currently on
     parole or probation supervision, and (3) are scheduled to
     be released from incarceration within six months."
                                                                  19


reclassification hearings pending a definitive resolution of

that case by this court.   As of February, 2018, approximately

1,115 sex offenders were waiting for a hearing on their request

for downward reclassification or termination.5

     On appeal, the board argues that the plaintiffs' claims for

equitable relief must be dismissed because the board was

lawfully acting within its own discretion in prioritizing

initial classification hearings and awaiting the outcome of Noe

No. 5340 before resuming reclassification or termination

hearings.

     We recognize the practical constraints placed on the board

by our decision in Doe No. 380316, as well as the board's

interest in awaiting the outcome of Noe No. 5340 before

reinitiating reclassification and termination hearings, which

may otherwise have to be remanded to the board to apply a

different quantum or burden of proof.   Further, we recognize the

board's statutory mandate to prioritize particular hearings

under G. L. c. 6, § 178K (3).   However, Noe No. 5340 has now

been decided and the board properly conceded at oral arguments

that it has worked through the backlog generated by Doe No.

380316, with only a "handful" of those cases left.   Thus, the

     5 Downward reclassification hearings constituted 12.8 per
cent of the total number of hearings conducted by the board in
2014; 23.7 per cent of the hearings conducted in 2015; and 1.8
per cent of the hearings conducted in 2016.
                                                                   20


reasons cited by the board for failing to conduct offender-

initiated reclassification and termination hearings no longer

exist.   More importantly, a significant backlog of such hearings

has been created with lengthy delays for individual offenders,

some of whom have waited over four years for a hearing.    Given

this backlog, and the lengthy delays for individual offenders,

we conclude that the motion to dismiss is properly denied.

    We do not consider the "reasonable time" standard to be a

rigid one; rather, it requires a "fair consideration of the

total circumstances of the case."   School Comm. of Boston v.

Board of Educ., 363 Mass. 20, 28 (1973).   However, it does not

provide the board with unfettered discretion to delay offender-

initiated reclassification and termination hearings,

particularly given that the Doe No. 380316 backlog no longer

exists and Noe No. 5340 has now been decided.   The board must

promptly begin to confront this large backlog of offender-

initiated reclassification and termination hearings, and conduct

such hearings in a reasonable time after the issuance of this

rescript.   The board shall report to the single justice on its

plan for addressing this backlog within thirty days from

issuance of this rescript.   The single justice shall determine

whether the plan satisfies the reasonable time standard and, if

it does not, shall issue appropriate orders to ensure compliance

with that standard, consistent with this opinion.
                                                                 21


    3.   Conclusion.   The motion to dismiss the plaintiffs'

claims is denied.   The case is remanded to the single justice

for further proceedings consistent with this opinion, as

appropriate.

                                    So ordered.
