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SJC-12447

     DANIEL NOE, SEX OFFENDER REGISTRY BOARD NO. 5340      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,
     Standard of proof, Burden of proof. Evidence, Sex
     offender. Practice, Civil, Sex offender, Standard of
     proof, Presumptions and burden of proof, Assistance of
     counsel. Regulation.



     Civil action commenced in the Superior Court Department on
June 27, 2014.

     The case was heard by Brian A. Davis, J., on a motion for
judgment on the pleadings.

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


     Christopher M. Bova for the defendant.
     Kate A. Frame (Eric B. Tennen also present) for the
plaintiff.
     William J. Kobuszewski & John C. Cratsley, pro se, amici
curiae, submitted a brief.
                                                                     2


     Nancy A. Dolberg, Committee for Public Counsel Services,
for Committee for Public Counsel Services, amicus curiae,
submitted a brief.


     KAFKER, J.   In Doe, Sex Offender Registry Bd. No. 380316 v.

Sex Offender Registry Bd., 473 Mass. 297, 298 (2015) (Doe No.

380316), we held that the Sex Offender Registry Board (board) is

constitutionally required to prove the initial classification of

a convicted sex offender under the sex offender registry law,

G. L. c. 6, §§ 178C-178Q, by clear and convincing evidence.     We

are now asked to consider whether reclassification hearings

require the board to meet the same standard and burden of proof

as initial classification hearings.   We conclude that they do.

We also conclude that, given the plain language of G. L. c. 6,

§ 178L (3), indigent sex offenders have a right to counsel in

such reclassification hearings.1,2


     1 Months after a judge in the Superior Court heard oral
arguments in this case, the plaintiff's counsel learned that the
plaintiff had died in August, 2016, of natural causes. The Sex
Offender Registry Board (board) argued in its appellate brief
that the plaintiff's death renders this case moot. At oral
arguments before this court, however, the board eventually
conceded that it makes little sense to decline to address the
merits of this case on the basis of mootness, given the
importance of the issues involved. Further, the board has
temporarily ceased holding reclassification hearings pending the
outcome of its appeal in this case and our resolution of these
issues. Thus, "[w]e exercise our discretion to reach the merits
of [this] appeal regardless of whether the matter may currently
be moot, because the issues are significant and have been fully
briefed and it is in the public interest to do so." Doe v.
Police Comm'r of Boston, 460 Mass. 342, 343 n.3 (2011).
                                                                    3


    1.   Background.   The sex offender registry law is "an

extensive statutory registration scheme for sex offenders"

designed to "protect the public from the danger of recidivism

posed by sex offenders and to aid law enforcement officials in

protecting their communities" (quotations omitted).

Commonwealth v. Kateley, 461 Mass. 575, 576 (2012), quoting

Commonwealth v. Rosado, 450 Mass. 657, 659-660 (2008).    An

individual who has been convicted of a sex offense as defined

under G. L. c. 6, § 178C, is required to register under the sex

offender registry law on release from custody, if applicable, or

on notification of his or her obligation to register.    See G. L.

c. 6, § 178E (a), (c).

    a.   Registration and classification.   Sex offenders are

subject to a two-step registration and classification process.

First, the board assesses an individual's risk of reoffense and

degree of dangerousness and prepares a recommendation as to the

appropriate classification level for the offender.    See G. L.

c. 6, § 178L (1).   The board has identified thirty-eight factors

to be considered in making this determination.   See 803 Code




    2  We acknowledge the amicus briefs submitted by volunteer
pro bono attorneys providing legal services for veterans and by
the Committee for Public Counsel Services.
                                                                       4


Mass. Regs. § 1.33 (2016).3    The board's regulations recognize

that "[t]hese factors may be present to varying degrees in any

individual case.   The final classification level is not based on

a cumulative analysis of the applicable factors, but rather a

qualitative analysis of the individual sex offender's history

and personal circumstances."    Id.

     If the sex offender objects to the board's recommendation,

he or she has the right to a de novo evidentiary hearing before

an examiner who makes a final determination as to the offender's

duty to register and the appropriate classification level.       See

G. L. c. 6, § 178L (1); 803 Code Mass. Regs. § 1.04(3) (2016).

At the evidentiary hearing, the examiner must consider the

criteria that the board has identified in its regulations when

assessing an offender's risk of reoffense and degree of

dangerousness.   See 803 Code Mass. Regs. § 1.04(4).   The

examiner then issues a written decision and places the offender

into one of three classification levels.    See 803 Code Mass.

Regs. § 1.20 (2016).   The sex offender has the right to counsel

at this initial classification hearing.    See G. L. c. 6,

§ 178L (1).


     3 After the plaintiff moved for reclassification, the board
changed its regulatory scheme. The new regulations are numbered
differently from the ones in effect at the time of the
plaintiff's motion. To avoid confusion, we refer to the new
regulations except where noted.
                                                                     5


       Where "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," the sex

offender is classified as level one.     G. L. c. 6,

§ 178K (2) (a).   Where "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," the offender is classified as level

two.    G. L. c. 6, § 178K (2) (b).   Where "the risk of reoffense

is high and the degree of dangerousness posed to the public is

such that a substantial public safety interest is served by

active dissemination" of the offender's information, the

offender is classified as level three.    G. L. c. 6,

§ 178K (2) (c).   "Registration information for level one sex

offenders is not provided to the public, information for level

two and level three offenders is available to the public by

request or on the Internet, and information for level three

offenders may be disseminated actively to the public" (footnote

omitted).   Doe v. Lynn, 472 Mass. 521, 529 (2015).

       The standard of proof required to satisfy due process has

been the subject of much litigation.     The sex offender registry

law calls for the board to prove the appropriateness of a sex

offender's classification by a preponderance of the evidence.

See G. L. c. 6, § 178L (2).    In 1998, two years after the
                                                                    6


passage of the sex offender registry law, we held that this

preponderance of the evidence standard satisfied due process

under the State and Federal Constitutions.     See Doe, Sex

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

Mass. 90, 103-104 (1998) (Doe No. 972).     However, seventeen

years later, in light of changes to the sex offender registry

law that had significantly increased the burdens on registered

offenders, and other factors such as greater Internet

dissemination of sex offender information, we determined that

the preponderance of the evidence standard no longer satisfied

due process.    See Doe No. 380316, 473 Mass. at 311-312, 314.

Rather, the "extensive private interests now affected by

classification counsel in favor of requiring a higher standard

of proof," namely clear and convincing evidence, for final

classification hearings.    Id. at 311-312.

     b.    Reclassification.   Under the statutory and regulatory

scheme, a sex offender may be reclassified in one of two ways.

See Doe, Sex Offender Registry Bd. No. 326573 v. Sex Offender

Registry Bd., 477 Mass. 361, 364 (2017) (Doe No. 326573).

Pursuant to G. L. c. 6, § 178L (3),4 the board can initiate


     4   General Laws c. 6, § 178L (3), provides:

          "The board may, on its own initiative or upon written
     request by a police department or district attorney, seek
     to reclassify any registered and finally classified sex
                                                                  7


reclassification proceedings "on its own initiative or upon

written request by a police department or district attorney."

Although the language of the statute allows the board to seek

higher or lower reclassification level where new information is

received "relevant to a determination of a risk of re-offense or

degree of dangerousness," G. L. c. 6, § 178L (3), the board has

promulgated regulations restricting it to seeking upward

reclassification.   See 803 Code Mass. Regs. § 1.32(1) (2016).

Pursuant to G. L. c. 6, § 178L (3), the board must provide the



    offender in the event that new information, which is
    relevant to a determination of a risk of re-offense or
    degree of dangerousness, is received. The board shall
    promulgate regulations defining such new information and
    establishing the procedures relative to a reclassification
    hearing held for this purpose; provided that (i) the
    hearing is conducted according to the standard rules of
    adjudicatory procedure or other rules which the board may
    promulgate, (ii) the hearing is conducted in a reasonable
    time, and (iii) the sex offender is provided prompt notice
    of the hearing, which includes: the new information that
    led the board to seek reclassification of the offender, the
    offender's right to challenge the reclassification, the
    offender's right to submit to the board documentary
    evidence relative to his risk of reoffense and the degree
    of dangerousness posed to the public, the offender's right
    to retain counsel for the hearing, and the offender's right
    to have counsel appointed if the offender is indigent, as
    determined by the board using the standards in [G. L.
    c. 211D]. An indigent offender may also apply for and the
    board may grant payment of fees for an expert witness in
    any case in which the board intends to rely on the
    testimony or report of an expert witness prepared
    specifically for the purposes of the reclassification
    proceeding. The failure of the offender to attend the
    hearing may result in a waiver of the offender's rights and
    the board's recommended reclassification becoming final."
                                                                   8


offender with the information that led the board to seek

reclassification.   The offender has the right to challenge the

reclassification, may submit "documentary evidence relative to

his risk of reoffense and the degree of dangerousness posed to

the public," and has the right to counsel.    Id.   Board-initiated

reclassifications must follow the same procedures used for

original classifications.    See 803 Code Mass. Regs. § 1.32(4).

    The board's regulations specify a separate procedure for

sex offenders seeking downward reclassification.    See 803 Code

Mass. Regs. § 1.31 (2016).   An individual classified as a level

two or level three sex offender may seek reclassification based

on a decreased risk of reoffense or degree of dangerousness.

See 803 Code Mass. Regs. § 1.31(1).    Offenders are eligible to

seek downward reclassification no sooner than three years after

the date of their final classification.    803 Code Mass. Regs.

§ 1.31(2)(a).   An offender who has committed a new sex offense

since his or her original classification, however, must be

offense free for at least ten years before he or she can seek

reclassification.   Id.   Offenders who have experienced "a

material change in circumstances related to a medical condition"

may file a motion for reclassification less than three years
                                                                       9


after the date of their prior classification.       803 Code Mass.

Regs. § 1.31(3).5

       The procedure for offender-initiated downward

reclassifications is as follows.       The offender must file a

motion detailing why reclassification is appropriate and include

supporting documentation.       803 Code Mass. Regs. § 1.31(2)(b),

(c).       The offender must also supply "an affidavit that provides

an overview of his or her behavior and lifestyle during the

three years prior to the filing of his motion for

reclassification."       803 Code Mass. Regs. § 1.31(2)(d).   The

board bases its decision on new and updated information but may

also consider information the board used in prior classification

decisions, including any prior written decisions by the board.

803 Code Mass. Regs. § 1.31(5)(e).

       The sex offender registry law does not specify the standard

and burden of proof for reclassification hearings.       See G. L.

c. 6, § 178L (3).       However, the board's regulations dictate that

for offender-initiated motions for reclassification, the burden



       Under the 2013 regulations, offenders were required to
       5

demonstrate that they had remained offense free for more than
five continuous years. 803 Code Mass. Regs. § 1.37C(2)(d)
(2013). The current regulations do not contain this
requirement, but permit the board to summarily deny the
offender's reclassification request if he or she has not
remained offense free for more than three continuous years since
his or her last classification. See 803 Code Mass. Regs.
§ 1.31(2)(e) (2016).
                                                                    10


is on the offender to prove why downward reclassification is

appropriate by clear and convincing evidence.     803 Code Mass.

Regs. § 1.31(2)(c).

     c.   Noe's reclassification.    The plaintiff, Noe, was

convicted of open and gross lewdness and lascivious behavior on

five separate occasions between 1990 and 2004.6    In each

incident, the plaintiff exposed himself and masturbated in

public.   None of these incidents involved physical contact with

the plaintiff's victims.     Noe was classified as a level three

sex offender in January, 2007.     In the six years following his

final classification, Noe lived in the community without any

further sexual reoffenses.    In January, 2013, he filed a request

for downward reclassification and was granted a hearing before

the board.   In his letter to the board, Noe indicated:

     "I am writing this letter to request a reduction in my
     current status as level [three] sex offender. First, I
     would like to accept full responsibility for my poor
     choices and behavior. I have a long history of criminal
     activity which has had an impact on innocent people. I
     express sincere regret for affecting others in a negative
     way and have made major changes in my life. I admit to
     having a history of alcoholism and drug addiction. I
     believe that my past behavior is directly related to my
     substance abuse issues. I am currently sober and have not
     engaged in any such conduct in [seven] years. I am
     currently homeless and am finding it extremely difficult to
     put my life back together. There are many people who are
     aware of my history and status as a level [three] sex
     offender which make it hard to move on in my life. This

     6 Apart from these sex offenses, Noe also had an extensive
criminal record.
                                                                   11


     public information creates a barrier for me to gain
     employment and become a productive member of society. I am
     truly a changed man and would like an opportunity to start
     my life over again. Please take this request into
     consideration."

     Noe appeared, pro se, before a panel of three examiners.

Noe did not offer new evidence or call any witnesses.    The board

introduced only an updated copy of Noe's board of probation

record and correspondences to the Boston police indicating that

he was seeking reclassification.   During the hearing, Noe

expressed confusion about the kind of documentation he needed to

provide to the examiners.7   In May, 2014, the board issued a

decision denying Noe's request for reclassification.    Although

the board acknowledged that Noe "has remained offense free to

the community for approximately seven years" and "has maintained

sobriety for approximately five and one half years," the

majority of the board concluded by a preponderance of the

evidence8 that Noe "remains a high risk of reoffense and a high




     7 At the hearing, Noe explained that he had been unable to
work since 2006 or 2007, due to medical issues. When the
hearing examiners indicated that Noe needed to provide the board
with medical documentation, he responded that he "didn't know
[he] needed medicals." Although he indicated a willingness at
the hearing to provide medical documentation, the board was
never furnished with those records.

     8 At the time of Noe's reclassification hearing, the board's
regulations articulated a preponderance of the evidence standard
for reclassification hearings. See 803 Code Mass. Regs.
§ 1.37C(2)(c) (2013). The regulations were amended in 2016 to
                                                                    12


degree of dangerousness."     Accordingly, Noe's request for

reclassification was denied and he was ordered to continue to

register as a level three sex offender.

    Noe sought judicial review of the board's decision in the

Superior Court, pursuant to G. L. c. 30A, § 14, and G. L. c. 6,

§ 178M.     He moved for judgment on the pleadings under Mass. R.

Civ. P. 12 (c), 365 Mass. 754 (1974).     While that motion was

pending, Noe amended his complaint to include claims for

declaratory relief under G. L. c. 231A, § 1, challenging the

board's procedures for failing to provide a right to counsel in

the reclassification hearing and placing the burden of proof in

reclassification on the offender by clear and convincing

evidence.    The Superior Court judge declared that the board's

regulations, which place the burden of proof on the offender

seeking reclassification, violate the offender's right to due

process under the Fourteenth Amendment to the Federal

Constitution and art. 12 of the Massachusetts Declaration of

Rights.     The judge further declared that the board's failure,

through its regulations and procedures, to provide counsel for

indigent offenders who seek reclassification violates G. L.

c. 6, § 178L (3).     The board appealed, and we transferred the

case to this court on our own motion.


increase the quantum of proof to clear and convincing evidence.
See 803 Code Mass. Regs. § 1.31(2)(c) (2016).
                                                                     13


    2.    Discussion.    "We review de novo a judge's order

allowing a motion for judgment on the pleadings under Mass. R.

Civ. P. 12 (c)."    Merriam v. Demoulas Super Mkts., Inc., 464

Mass. 721, 726 (2013).    A court may rule on a motion for

judgment on the pleadings seeking declarations of the parties'

rights if there are no material issues of fact left to be

determined.    See id.

    a.    Standard and burden of proof in reclassification

proceedings.    The board's regulations place the burden of proof

on the offender to prove by clear and convincing evidence that

downward reclassification is appropriate.     803 Code Mass. Regs.

§ 1.31(2)(c).   To determine whether this standard and burden of

proof violate due process, we apply the familiar test outlined

in Mathews v. Eldridge, 424 U.S. 319 (1976), which requires that

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 No. 972, 428 Mass.

at 100.

    i.    Private interests.   The private interests at stake in

sex offender registration and classification are significant.

The "liberty and privacy interests" implicated include

"stringent affirmative reporting requirements," "stigma and

legal restrictions that will make it harder . . . to find stable
                                                                   14


housing or employment," and possible threats of physical harm.

Doe No. 380316, 473 Mass. at 311.   The effects of registration

and classification are "continuing, intrusive, and humiliating."

Doe v. Attorney Gen., 426 Mass. 136, 149 (1997) (Fried, J.,

concurring).   Dissemination of a sex offender's registry

information and photograph on the Internet also widely

publicizes the offender's registration and classification

status, magnifying their effects.   See Doe, Sex Offender

Registry Bd. No. 7083 v. Sex Offender Registry Bd., 472 Mass.

475, 485 (2015) (Doe No. 7083).

     The board asserts nonetheless that reclassification

implicates lesser private interests because the offender has

already been classified and registered, and dissemination of the

offender's information has occurred and is likely to remain on

the Internet even after the offender's reclassification.    See,

e.g., Moe v. Sex Offender Registry Bd., 467 Mass. 598, 604, 606

(2014) ("Once [level two9 and level three sex offenders']

registry information is published on [the board's] Web site,

there is a substantial likelihood that they would soon be

identified on private Web sites listing sex offenders, and that

the subsequent removal of their names from [the board's] Web

     9 Only level two sex offenders who were classified as such
after July 12, 2013, may have their information published on the
board's Web site. See Moe v. Sex Offender Registry Bd., 467
Mass. 598, 616 (2014).
                                                                   15


site would not result in the removal of their names from these

private Web sites").

    We recognize that an offender who has previously been

registered is not in the same position as someone who has never

offended or never been registered.    The decision to reclassify

an offender is not "written on a clean slate."    Doe No. 326573,

477 Mass. at 367.    That being said, the different classification

levels have different consequences and entail different public

perceptions.    These consequences include, but are not limited

to, the required public Internet dissemination for level two and

three offenders.    See G. L. c. 6, 178D; Doe No. 380316, 473

Mass. at 307.   The difference between level three and level two

classifications can also be particularly significant, especially

for aging offenders.    For example, a level three sex offender

may not reside in a nursing home.    G. L. c. 6, § 178K (2) (e).

After an offender's initial classification, as he or she grows

older this particular consequence has an even more significant

impact on the offender's interests.    In sum, the private

interests at stake in reclassification remain significant.

    ii.   Risk of erroneous deprivation.    Under Mathews, 424

U.S. at 334-335, we must also examine "the risk of an erroneous

deprivation of [these private interests] through the procedures

used, and the probable value, if any, of additional or

substitute procedural safeguards."    In Doe No. 380316, 473 Mass.
                                                                   16


at 312, we concluded that imposing a clear and convincing burden

of proof on the government was necessary to address "the actual

risk of an erroneous deprivation of a registered sex offender's

privacy or liberty" in an original classification decision.     We

emphasized the difficulty in determining such risk and stated

that offenders "should not be asked to share equally with

society the risk of error."    Id. at 313, quoting Addington v.

Texas, 441 U.S. 418, 427 (1979).

    The board contends, however, that reclassifications are

different.    The offender has already been properly classified.

The board argues, therefore, that it is up to offenders to prove

by clear and convincing evidence changed circumstances in their

lives that indicate a diminished risk of reoffense or degree of

dangerousness.   We conclude that the risk of erroneous

classification and deprivation remains in reclassification

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

government.   Therefore, the ultimate burden of proof should

remain with the board to prove by clear and convincing evidence

that the classification is current and correct.   We further

conclude, however, that there is a burden of production on the

offender seeking reclassification to demonstrate some change in

his or her circumstances, as he or she is in the best position

to provide such evidence.
                                                                       17


    The board's regulations require a significant passage of

time and thus a meaningful waiting period before an offender can

request a reclassification.     Such requests cannot be made less

than three years after the initial classification, or less than

ten years afterward if another offense has occurred since the

initial classification.     See 803 Code Mass. Regs. § 1.31(2)(a).

The reclassification regulations "recognize[] that the risk to

reoffend and the degree of dangerousness posed by a sex offender

may decrease over time."     803 Code Mass. Regs. § 1.31(1).     See

803 Code Mass. Regs. § 1.33(29), (30), (31) (recognizing that

likelihood of recidivism and dangerousness decreases with

additional offense-free time in community, advanced age, and

debilitating illness).     Accordingly, the purpose of holding

reclassification hearings is to assess an offender's current

risk of reoffense and degree of dangerousness, taking into

account the significant passage of time and the new information

provided by the offender.     Doe No. 7083, 472 Mass. at 483.

    Reclassification is therefore not, as the board would seem

to suggest, a mere continuation of the original classification

wherein the board's determination of the proper level is

reviewed or verified.     Procedural safeguards for

reclassification must protect against the risk that an offender

will be erroneously denied a downward reclassification, despite

posing a decreased risk of reoffense or degree of dangerousness.
                                                                  18


Placing the burden of proof on the board by clear and convincing

evidence, as is necessary in original classification hearings,

would appropriately reduce the risk of erroneous deprivation.

See Doe No. 380316, 473 Mass. at 311-314.   Importantly, it would

make very little sense to flip the burden of proof from clear

and convincing evidence on the board in original classification

proceedings to clear and convincing evidence on the offender in

reclassification proceedings.10

     Although the ultimate burden of proof by clear and

convincing evidence remains on the board, offenders do have a

burden of production to show a change in circumstances


     10The board's reliance on Commonwealth v. Ronald R., 450
Mass. 262, 268-269 (2007), in support of placing the burden on
the offender is misplaced. As we stated in Ronald R., supra at
268, "[G. L. c. 6, § 178E (f)], benefits a limited class of sex
offenders by granting them the opportunity to avoid
registration." This is the exception and not the rule, as
"there is a presumption that sex offenders must register." Id.
at 264. Section 178E (f) also requires the unusual
determination that the offender does not pose a risk. We held
that the "Legislature's use of the word 'not' suggests that the
burden is on the sex offender because as a practical matter he
is in the best position to bring forth evidence demonstrating
that he does not pose a risk of reoffense." Id. at 269.
Finally, if the exception is found not to apply and the offender
is required to register, the burden of proof is thereafter
imposed on the government to establish the appropriate
classification level. See id. at 264-265. In these
circumstances, where an offender seeks to avoid registration
altogether, we held: "'A person who seeks relief under [this]
statute bears the burden of proving that his case falls within
its terms,' especially where [the] statute already protects due
process rights." Id. at 268, quoting Andrews, petitioner, 449
Mass. 587, 590 (2007).
                                                                      19


indicating a decreased risk of reoffense or degree of

dangerousness.     See G. L. c. 6, § 178L (3).   Combining the

burden of proof on the board with the burden of production on

the offender seeking reclassification further minimizes the risk

of error.     Offenders are in the best position to provide such

information and thus have a duty to do so if they seek a

downward reclassification.

    "The 'burden of production' refers to 'a party's obligation

to come forward with evidence to support its claim.'"        Bulwer v.

Mount Auburn Hosp., 473 Mass. 672, 681 n.7 (2016), quoting

Director, Office of Workers' Compensation Programs, Dep't of

Labor v. Greenwich Collieries, 512 U.S. 267, 272 (1994).         To

satisfy the burden of production, an offender "must present some

credible evidence that circumstances have changed," such that

his or her risk of reoffense or degree of dangerousness has

decreased.    Care & Protection of Erin, 443 Mass. 567, 572

(2005).     Once the offender has satisfied this burden of

production, the board has the ultimate burden to prove, by clear

and convincing evidence, the appropriateness of the offender's

existing classification.     Imposing this burden of production and

burden of proof is constitutionally necessary to prevent an

undue risk of erroneous classification.     See Doe No. 380316, 473

Mass. at 311-314.
                                                                  20


    iii.    Government interests.   Finally, we assess the

government interests involved.   Mathews, 424 U.S. at 335.

Registration requirements provide law enforcement with important

information about potentially dangerous individuals.   See Doe,

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

450 Mass. 780, 789-790 (2008), quoting St. 1999, c. 74, § 1

("the registration of sex offenders is a proper exercise of

police powers 'regulating present and ongoing conduct, which

will provide law enforcement with additional information

critical to preventing sexual victimization'").    As the

Legislature explained in passing the 1999 iteration of the sex

offender registry law, "the danger of recidivism posed by sex

offenders, especially sexually violent offenders who commit

predatory acts characterized by repetitive and compulsive

behavior, [is] grave and . . . the protection of the public from

these sex offenders is of paramount interest to the government."

St. 1999, c. 74, § 1.   That interest is best served, however, by

ensuring that the classification of each individual offender is

accurate.   See Soe, Sex Offender Registry Bd. No. 252997 v. Sex

Offender Registry Bd., 466 Mass. 381, 391 (2013) (Soe No.

252997).

    The government interest in accurate classifications applies

equally to reclassifications and to original classifications.

Indeed, all of the interests at stake in the classification and
                                                                    21


reclassifications of sex offenders depend on accuracy in the

classification process.   We have repeatedly recognized the

importance of ensuring such accurate classifications.   See Doe

No. 380316, 473 Mass. at 314 (interest in ensuring notification

and classification system is fair and accurate); Soe No. 252997,

466 Mass. at 391 ("both the public and a sex offender have a

substantial interest in assuring the accuracy of the offender's

classification"); Roe v. Attorney Gen., 434 Mass. 418, 430

(2001) ("It is in everyone's best interests -- including the

best interests of sex offenders themselves -- that the board

work from accurate, up to date, and thorough information").    See

also Doe No. 972, 428 Mass. at 107 (Marshall, J., concurring in

part and dissenting in part) ("The State has no interest in

making erroneous classifications and implementing overbroad

registration and notifications").   The overclassification of sex

offenders frustrates the governmental interests in registration

because it "both distracts the public's attention from those

offenders who pose a real risk of reoffense, and strains law

enforcement resources."   Doe No. 380316, supra at 313-314.

    iv.   Balancing.   In balancing the Mathews factors, we

therefore recognize that reclassifications are different from

original classifications, but there remain important private

interests at stake in reclassifications, as the different levels

impose significantly different consequences for offenders.     We
                                                                     22


also note that in downward reclassification proceedings the

offender is in the best position to know whether changed

circumstances exist that justify reclassification and is also in

the best position to bring such evidence forward, and thus has a

burden of production to do so if he or she wants to be

reclassified downward.

     We further recognize that in reclassifications, as in

original classifications, there remains an actual risk of

misclassification due to the passage of time and changed

circumstances.   Given the difficulties of accurate

classification, such classification is best achieved through

imposing a clear and convincing evidence standard.     See Doe No.

380316, 473 Mass. at 314.     We also conclude that the risk of

misclassification must be borne by the government, not the

offender.   See id. at 313.   Consequently, once the offender has

met his or her burden of production in downward reclassification

proceedings, due process requires that the board be required to

prove the appropriateness of the offender's current

classification by clear and convincing evidence.      If the board

fails to satisfy this burden of proof, the offender must be

reclassified to a lower level.11


     11We note, however, that if a level three offender seeks
reclassification to level one and the board fails to prove by
clear and convincing evidence that the offender should remain
                                                                    23


    Our balancing also recognizes that the government has

important public protection interests at stake in

reclassifications as well as original classifications, as many

of these offenders remain public safety concerns, but those

interests are best served by an accurate classification.

Overclassification, as explained above, strains public safety

resources.

     Our balancing of the Mathews factors therefore results in

a burden of production being imposed on the offender in downward

reclassification proceedings to provide some evidence of changed

circumstances, but requires the board to prove by clear and

convincing evidence that the offender is properly classified

once such evidence is provided.   We conclude that such process,

and the accompanying burdens of production and proof, properly

balance the Mathews factors.

    b.   Right to counsel in reclassification proceedings.     We

must next determine whether the board's regulations violate

G. L. c. 6, § 178L (3), insofar as they fail to provide the

right to counsel for indigent offenders seeking

reclassification.   We review the validity of regulations


classified at level three, the offender will not necessarily be
reclassified at level one. Rather, if the board has presented
evidence sufficient to show by clear and convincing evidence
that the offender should at least be classified as level two,
the offender's classification will only be reclassified downward
to level two, not level one.
                                                                   24


promulgated by the board "guided by the established principle

that '[r]egulations are not to be declared void unless their

provisions cannot by any reasonable construction be interpreted

in harmony with the legislative mandate.'"    Smith v.

Commissioner of Transitional Assistance, 431 Mass. 638, 646

(2000), quoting Dowell v. Commissioner of Transitional

Assistance, 424 Mass. 610, 613 (1997).   We may reject, however,

an "agency regulation that is contrary to the plain language of

the statute and its underlying purpose."     Massachusetts

Teachers' Retirement Sys. v. Contributory Retirement Appeal Bd.,

466 Mass. 292, 301 (2013), quoting Duarte v. Commissioner of

Revenue, 451 Mass. 399, 408 (2008).

    The board urges us to interpret G. L. c. 6, § 178L (3), as

providing the right to counsel in "board-initiated"

reclassifications but not in "offender-initiated"

reclassifications.   This proposed distinction has no basis in

the text of the statute.   Section 178L does not distinguish

between board-initiated reclassifications and offender-initiated

reclassifications.   Rather, it refers only to "reclassification

hearing[s]" held for the purpose of reclassifying offenders "in

the event that new information, which is relevant to a

determination of a risk of re-offense or degree of

dangerousness, is received."   G. L. c. 6, § 178L (3).       The

statute also makes no distinction between upward
                                                                   25


reclassifications and downward reclassifications.    It simply

provides that the board may seek to reclassify "any registered

and finally classified sex offender" when it receives new

information.   Id.   In all such hearings, the offender is

guaranteed the right to counsel.    Id.

    This understanding of § 178L (3) is also in accord with the

over-all statutory scheme.   As discussed above, the board's

interests depend greatly on the classification being accurate

and current.   Therefore, a key purpose of the reclassification

process is ensuring that the offender is accurately classified,

based on current information.     Indeed, reclassification is an

essential component of the registration scheme because it is the

only means through which an offender can obtain a lower

classification level where the circumstances warrant it.

Without such a provision, an offender could face indefinite

registration and classification at his or her original

classification level, regardless of any subsequent changes in

circumstance or rehabilitation.

    Even under the board's own interpretation of the statute,

the sex offender registry law provides sex offenders with the

right to counsel at the initial classification hearing, at

board-initiated upward reclassification hearings, and at a

termination hearing.   Given that the sex offender registry law

provides the right to counsel at each of these other hearings,
                                                                   26


it makes little sense to interpret § 178L (3) as depriving

indigent offenders of the right to counsel exclusively in the

context of offender-initiated reclassification hearings,

particularly in the absence of any statutory language to that

effect.

    By contrast, providing indigent offenders with a right to

counsel in offender-initiated reclassification hearings

logically comports with the complex nature of the

reclassification process.   The regulations require that the

offender provide the board with an affidavit, a detailed motion,

and documentation that addresses specific topics.   See 803 Code

Mass. Regs. § 1.31(2)(b),(c),(d).   The board determines the

offender's risk of reoffense and degree of dangerousness using

risk factors derived from sophisticated scientific research.

See 803 Code Mass. Regs. § 1.33.    Doe, Sex Offender Registry Bd.

No. 151564 v. Sex Offender Registry Bd., 85 Mass. App. Ct. 1, 9-

10 (2014) (scientific and statistical studies on risk factors

are "technical and complex," and expert testimony is important

for proper interpretation and understanding).    The offender is

expected to present evidence to the board, whether through

witness testimony or documentary evidence, that is probative of

these factors.

    Noe's hearing before the board illustrates how difficult it

can be for indigent offenders to navigate the reclassification
                                                                    27


process without counsel.     At his hearing, Noe introduced no

evidence and called no witnesses, other than himself.     He

appeared confused at times and wanted to address topics beyond

the scope of the hearing.     He spoke at length about his guilty

pleas and the underlying facts that led to his duty to register

and his classification as a level three sex offender.     Noe also

testified that he had injuries to his back and shoulders that

were significant enough to keep him from working but failed to

provide any documentation of the injury even after the hearing

examiners requested it.     This may have been significant in the

board's determination.    See G. L. c. 6, § 178K (1) (d) (evidence

of physical condition that would minimize risk of reoffense is

factor to be considered in risk of reoffense); 803 Code Mass.

Regs. § 1.33(31) ("the [b]oard shall give consideration to the

offender who has a physical condition that is documented by a

treating medical provider" [emphasis added]).     As Noe's case

demonstrates, many, if not most, offenders are simply not

capable of adequately representing themselves when appearing

before the board.   This only inhibits the ability of

reclassification proceedings to accurately classify the

offender.

    Recognizing the importance and complexity of this process,

the Legislature has provided a statutory right to counsel

throughout the registration and classification process.
                                                                   28


Juvenile offenders must be represented by counsel at initial

classifications as well as any subsequent reclassifications.

See G. L. c. 6, § 178L (2) ("All offenders who are juveniles at

the time of notification shall be represented by counsel at the

hearing"); G. L. c. 6, § 178L (3) (same for reclassification

hearing).   Adult offenders have the right to retain counsel or

have counsel appointed if they are indigent at the original

classification hearing.   G. L. c. 6, § 178L (1).   General Laws

c. 6, § 178L (3), gives offenders the same right to counsel for

reclassification hearings, and G. L. c. 6, § 178M, extends that

right to offenders who seek judicial review in the Superior

Court of a classification or reclassification decision by the

board.   The board does not contest the fact that the Legislature

gave offenders the right to counsel at each of these points, but

nevertheless argues that the right to counsel is neither

provided for nor necessary at offender-initiated

reclassification hearings.   We conclude that such an

interpretation frustrates the underlying purpose of the

reclassification proceeding and is not supported by the text of

the statute.

    Thus, the board's regulations, insofar as they fail to

provide offenders with the right to counsel at reclassification

hearings, are in clear conflict with both the text and the

purpose of G. L. c. 6, § 178L.   See Duarte, 451 Mass. at 411.
                                                                   29


We therefore hold that the board's regulations violate G. L.

c. 6, § 178L (3), insofar as they fail to provide the right to

counsel for indigent offenders seeking reclassification.12

     3.   Conclusion.   The decision of the Superior Court judge

vacating the board's reclassification of Noe as a level three

sex offender is affirmed.

                                    Judgment affirmed.




     12Because we conclude that indigent offenders have a
statutory right to counsel at reclassification hearings, we need
not address whether there is also a constitutional right to
counsel at such hearings.
