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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).