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13-P-848                                             Appeals Court

   JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 203108     vs.   SEX
                    OFFENDER REGISTRY BOARD.



              No. 13-P-848.      January 29, 2016.


Sex Offender. Sex Offender Registration and Community
     Notification Act. Constitutional Law, Sex offender. Due
     Process of Law, Sex offender, Hearing, Standard of proof.
     Practice, Civil, Sex offender, Standard of proof.
     Administrative Law, Hearing, Standard of proof. Internet.


     In our decision dated May 5, 2015, we affirmed a judgment
of the Superior Court issued under G. L. c. 30A, § 14, affirming
the administrative decision of the Sex Offender Registry Board
(board) designating Doe No. 203108 (Doe) as a level three sex
offender. See Doe, Sex Offender Registry Bd. No. 203108 v. Sex
Offender Registry Bd., 87 Mass. App. Ct. 313 (2015) (Doe No.
203108). Doe timely filed a petition for further appellate
review (FAR) on May 18, 2015.

     On December 22, 2015, the Supreme Judicial Court denied
Doe's FAR application without prejudice and remanded the case to
this court for further consideration in light of two recent
decisions, Doe, Sex Offender Registry Bd. No. 7083 v. Sex
Offender Registry Bd., 472 Mass. 475 (2015) (Doe No. 7083), and
Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry
Bd., 472 Mass. 492 (2015) (Doe No. 3839). 473 Mass. 1106
(2015). Although we conclude that neither of those decisions
requires us to alter our decision in Doe No. 203108, Doe is
nonetheless entitled to a new classification hearing in light of
Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender
Registry Bd., 473 Mass. 297 (2015) (Doe No. 380316).
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     In this case, Doe's classification hearing was held twenty
months before his eventual release date, but just seven months
before his earliest possible release date. (He had recently
been denied parole, but the parole board offered him an
opportunity to request reconsideration ninety days after the
denial). Unlike the plaintiff in Doe No. 7083, at the time of
his classification hearing Doe was not also civilly committed as
a sexually dangerous person (SDP), making release on parole
unlikely because of the need to obtain a Superior Court order of
discharge. See Doe No. 7083, supra at 487 & n.11. Moreover,
unlike the plaintiff in Doe No. 7083, Doe did not request a
further continuance of his classification hearing date or ask
the board to keep his classification proceeding open until
immediately prior to his actual release. See id. at 480-481.

     In Doe No. 3839, the board held the classification hearing
more than three years before the plaintiff's eventual discharge
date. Doe No. 3839, supra at 494-495, 501. At the time of the
hearing, the plaintiff was civilly committed as an SDP, but
after three additional years of treatment, he was found to be no
longer sexually dangerous and was discharged into the community.
Ibid. In this case, Doe's hearing was held twenty months prior
to his eventual release, in contrast to being held thirty-eight
months prematurely in Doe No. 3839, and the record does not
disclose any changed circumstances comparable to those present
in Doe No. 3839. Accordingly, we adhere to our decision in Doe
No. 203108, supra at 319-320, that Doe's hearing was not so
unreasonably premature as to violate due process or amount to an
abuse of the board's discretion, especially in the absence of
any request for a continuance.

     Nonetheless, in Doe No. 380316, supra at 300, the Supreme
Judicial Court held that the board is required to make its
classification decisions based on clear and convincing evidence
as opposed to a preponderance of the evidence. "Because our
decision is a new constitutional rule," the court noted, "the
higher standard should be applied retroactively only to
classification proceedings pending before [the board], the
Superior Court, or the appellate courts on the date of the
issuance of the rescript in this case." Id. at 314 n.26. In
the case before us, Doe's FAR application was pending on
December 11, 2015, when Doe No. 380316 was decided. Therefore,
Doe is entitled to a new classification hearing. Moreover, his
reclassification must be based on his current circumstances at
the time of the new hearing. See Doe No. 7083, supra at 481-
482. Both Doe and the board may present new evidence relevant
to his then-current risk of reoffense. See id. at 490.
                                                                   3



     Accordingly, the Superior Court's judgment affirming the
board's designation of Doe as a level three sex offender is
vacated. We remand the matter to the Superior Court for entry
of an order requiring the board to conduct a new evidentiary
hearing and to cease disseminating Doe's registry information on
the Internet during the pendency of the proceedings. See Doe
No. 380316, supra at 315-316.

                                   So ordered.

    Inna Landsman for the plaintiff.
    Patrick M. Grogan for the defendant.
