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SJC-11495

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 156545 vs. SEX 

OFFENDER REGISTRY BOARD.

July 9, 2014.

Sex Offender. Mandamus. Practice, Civil, Sex offender, Action 

in nature of mandamus, Transcript of testimony. 

Administrative Law, Proceedings before agency, Adjudicatory 

proceeding, Record, Judicial review.

The petitioner appeals from a judgment of a single justice 

of this court declining to compel the Sex Offender Registry 

Board (board) to produce a transcript of the petitioner's 

classification hearing. We hold that, in the peculiar 

circumstances of this case, the petitioner is entitled to the 

transcript.

Background. In September 2009, the board notified the 

petitioner that it had preliminarily classified him as a level 

three sex offender. The petitioner requested a hearing, 

pursuant to G. L. c. 6, § 178L, which was held on July 29, 2010. 

After the hearing had been completed but before the hearing 

examiner had rendered a decision, the examiner became 

unavailable, and a successor examiner was appointed pursuant to 

803 Code Mass. Regs. § 1.22(4) (2002).1 The successor examiner 

1 Title 803 Code Mass. Regs. § 1.22(4) (2002) provides as 

follows:

"If the Hearing Examiner becomes unavailable before 

completing his decision, the Chair shall appoint a 

successor to assume the case and render the decision. If 

 
2

issued his decision on January 12, 2011, classifying the 

petitioner as a level three offender. The petitioner thereafter 

commenced an action for judicial review in the Superior Court

pursuant to G. L. c. 30A; his counsel did not order a transcript 

of the classification hearing at that point, as he might have 

done, for inclusion in the administrative record. The board 

filed its answer, in the form of the administrative record, 

which did not include a copy of a transcript. A judge in the 

Superior Court denied the petitioner's motion for judgment on 

the pleadings and affirmed the board's decision classifying the 

petitioner as a level three offender.

The petitioner appealed, and his appeal was entered in the 

Appeals Court on March 9, 2012. The Appeals Court stayed the 

appeal, at the petitioner's request, to allow the petitioner 

time to file, and the Superior Court to consider, a motion to 

remand the matter to the board. The petitioner then filed in 

the Superior Court, pursuant to Mass. R. Civ. P. 60 (b), 365 

Mass. 828 (1974), a motion seeking remand of the matter to the 

board so that it could reconsider his "motion for funds to 

retain an expert," or, "[a]lternatively, [to hold] a new 

classification hearing because he was denied the effective 

assistance of counsel at the hearing." He also sought "an order 

directing the [b]oard to produce a transcript of his 

classification hearing." In support of his request for an order 

directing the board to produce a transcript, the petitioner 

pointed to 803 Code Mass. Regs. § 1.22(4), see note 1, supra,

which states that the board "shall provide" a successor hearing 

examiner and the parties with a copy of the transcript where, as 

here, the successor examiner is appointed after the presentation 

of evidence is complete and the record closed. Despite this 

requirement, no copy of the transcript was ever provided to the 

successor examiner or the parties.

A second judge in the Superior Court denied the request for 

a remand to the board as well as the petitioner's subsequent 

motion for reconsideration, and the petitioner filed a notice of 

appeal from the denial of each motion. Thereafter, the 

the presentation of evidence has been completed and the 

record is closed, the successor shall decide the case on 

the basis of the record. Otherwise, the successor may 

either proceed with the hearing or require the presentation 

of evidence from the beginning. The Board shall provide 

the successor and the Parties with a copy of the 

transcript, or completed portions thereof, without cost."

 
3

petitioner filed his mandamus petition in the county court, 

seeking to compel the board to provide a copy of the hearing 

transcript. The single justice denied the petition, and the 

petitioner appeals.2

Discussion. The petitioner argues that the board had a 

legal duty to provide him with a copy of the transcript pursuant

to 803 Code Mass. Regs. § 1.22(4); that the board failed to 

perform that duty; and that mandamus relief is therefore 

appropriate. In the circumstances of this case, we agree.

The regulation provides, in relevant part, that where, as 

here, a successor hearing examiner has been appointed after the 

presentation of evidence has been completed and the record 

closed, the board "shall provide the successor and the [p]arties 

with a copy of the transcript." See note 1, supra. The board's

failure to comply with its duty was not inconsequential. Had 

the board provided the transcript as required, it would have 

been a part of the administrative record before the trial court

judge, and the judge thus would have had full access to what 

transpired at the hearing. We recognize that the petitioner had 

an opportunity to request that the transcript be included in the 

administrative record after he filed his complaint for judicial 

review in the Superior Court and while the board was preparing 

the record, and that he made no such request. This does not

abrogate the fact that the board had an unqualified legal duty,

clearly set forth in 803 Code Mass. Regs. § 1.22(4), to provide 

a copy of the transcript to both the successor examiner and the 

parties at the time the successor examiner was appointed. With 

that in mind, we conclude that the most practical and reasonable 

course of action, in the circumstances presented here, is to 

allow the mandamus petition and to order the board to comply 

with its legal obligation pursuant to the regulation. After the 

transcript is prepared it should be made available to the 

Appeals Court. The Appeals Court may then take what action it 

deems appropriate.3

Conclusion. The judgment of the single justice is vacated 

and the case remanded to the county court where an order shall 

2 The proceedings in the Appeals Court remain stayed pending 

the outcome of this appeal.

3 Our task here is only to consider the petitioner's 

mandamus petition, not to make any determinations regarding the 

petitioner's direct appeal, which remains pending in the Appeals 

Court.

 
4

enter directing the board to produce a copy of the transcript in 

accordance with this opinion.

So ordered.

Valerie A. DePalma for the plaintiff.

Jennifer K. Zalnasky for the defendant.