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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 offenderinitiated 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 offenderinitiated 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 offenderinitiated 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.