NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-12182

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 326573 vs. SEX 

OFFENDER REGISTRY BOARD (and a consolidated case1).

Suffolk. February 7, 2017. - June 23, 2017.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

Sex Offender. Sex Offender Registration and Community 

Notification Act. Internet.

Civil action commenced in the Superior Court Department on 

November 21, 2014.

A motion for preliminary injunction was heard by Gregg J. 

Pasquale, J., and the case was reported by him to the Appeals 

Court.

The Supreme Judicial Court granted an application for 

direct appellate review.

Civil action commenced in the Superior Court Department on 

June 22, 2015.

A motion for a preliminary injunction was heard by Heidi E. 

Brieger, J.

A proceeding for interlocutory review was allowed in the 

Appeals Court by Judd J. Carhart, J. The Supreme Judicial Court 

granted an application for direct appellate review.

 

1 John Doe, Sex Offender Registry Board No. 15890 vs. Sex 

Offender Registry Board.
2

Andrew S. Crouch for John Doe, Sex Offender Registry Board 

No. 326573, & another.

John P. Bossé for the defendant.

Dana Goldblatt, for Committee for Public Counsel Services, 

amicus curiae, submitted a brief.

GANTS, C.J. In Moe v. Sex Offender Registry Bd., 467 Mass. 

598, 616 (2014), we permanently enjoined the Sex Offender 

Registry Board (SORB) "from publishing on the Internet the 

registry information of any individual who was finally 

classified as a level two sex offender on or before July 12, 

2013, unless the individual is subsequently reclassified a level 

two or level three sex offender." SORB contends in these two 

cases that, when it unsuccessfully seeks after July 12, 2013, to 

reclassify a level two sex offender as a level three sex 

offender, the individual is reclassified a level two sex 

offender for purposes of Moe, and SORB may therefore publish the 

individual's registry information on the Internet. We disagree. 

We conclude that, under Moe, a sex offender is "reclassified" 

only where a hearing officer allows SORB's motion to increase 

his or her classification based on new information indicating an 

increased risk of sexual recidivism, not, as here, where the 

hearing officer denied SORB's motion for reclassification and 

retained the earlier level two classification. We therefore 

remand these cases to the Superior Court for the issuance of a 
3

permanent injunction barring publication of each plaintiff's 

registry information on SORB's Web site on the Internet unless 

and until the offender is reclassified a level three sex 

offender.2

Background. For over two decades, the Commonwealth has 

maintained a registration system for individuals convicted of a 

sex offense as defined by the sex offender registry law, G. L. 

c. 6, §§ 178C-178Q. See St. 1996, c. 239, § 1. A sex offender 

is required to register with SORB upon release from custody or, 

if not sentenced to confinement, upon notification by the court 

of the obligation to register. See G. L. c. 6, § 178E (a), (c).

"Upon review of any information useful in assessing the risk of 

reoffense and the degree of dangerousness posed to the public by 

the sex offender, including . . . any materials submitted by the 

sex offender," SORB prepares a "recommended classification" of 

each offender. G. L. c. 6, § 178L (1). The offender has the 

right to challenge SORB's recommended classification, and where 

the offender chooses to exercise that right, a panel of three 

SORB members or a hearing examiner designated by SORB finally 

classifies the offender into one of three "levels of 

notification depending on the degree of risk of reoffense and 

 

2 We acknowledge the amicus brief submitted by the Committee 

for Public Counsel Services.
4

the degree of dangerousness posed to the public by the sex 

offender." See G. L. c. 6, §§ 178K (2), 178L (1) (a), (2).

The three levels of notification are defined as follows:

 "Where [SORB] 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, it shall give a level [one] 

designation to the sex offender." G. L. c. 6, 

§ 178K (2) (a).

 "Where [SORB] 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, it 

shall give a level [two] designation to the sex 

offender." G. L. c. 6, § 178K (2) (b).

 "Where [SORB] 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 is 

served by active dissemination, it shall give a level 

[three] designation to the sex offender." G. L. c. 6, 

§ 178K (2) (c).

Over time, the Legislature has revised the required forms 

of public notification for the different levels of sex offender

classification. As amended in 1999, the sex offender registry 

law mandated that information regarding level two offenders 

could only be obtained by a member of the public through a 

request to SORB or a police department. St. 1999, c. 74, § 2.

See G. L. c. 6, §§ 178I, 178J, 178K (2) (b). In contrast, a 

level three sex offender's registry information was subject to

"active dissemination" by way of a "community notification 

plan," in which the police department in the community where the
5

level three sex offender resided or worked was required to 

notify individuals and community organizations that were likely 

to encounter the sex offender. St. 1999, c. 74, § 2. See G. L. 

c. 6, § 178K (2) (c).

In 2003, the Legislature amended G. L. c. 6, § 178D, to 

require Internet publication of registry information for level 

three sex offenders only. St. 2003, c. 140, § 5. A decade 

later, effective on July 12, 2013, the Legislature again amended 

§ 178D, this time to require Internet publication of registry 

information for both level two and three sex offenders. See St. 

2013, c. 38, §§ 7, 9. Plaintiffs who were classified as level 

two sex offenders prior to the 2013 amendments filed suit, 

arguing that retroactive application of the statute to mandate 

Internet publication of their registry information would be 

unreasonable, and therefore violate their right to due process 

under art. 12 of the Massachusetts Declaration of Rights. See 

Moe, 467 Mass. at 599, 616. We agreed and declared 

unconstitutional the retroactive application of the amendments 

"to the extent they would require the Internet publication of 

the registry information of individuals who were finally 

classified as level two sex offenders on or before July 12, 

2013." Id. at 616.

In our Moe decision, we highlighted the inequity that would 

result from retroactive application of the 2013 amendments. The
6

imposition of a "substantial new legal consequence" in the form 

of Internet publication would transform offenders classified as 

level two prior to the amendments "into something akin to level 

'two and one-half' offenders." Moe, 467 Mass. at 609. But when 

SORB gave such an offender a level two classification prior to 

the amendments, it had "implicitly determined that the offender 

was not so dangerous" that Internet publication was necessary to 

protect the public. Id. at 614. "Thus, the practical 

consequence of the [2013] amendments is that offenders whose 

degree of dangerousness, according to SORB, was not so 

substantial that Internet publication of their information was 

needed to protect the public safety would now be subject to 

Internet publication of their registry information." Id. The 

unfairness of such retroactive application of the amendments was 

compounded by the likelihood that some offenders classified as 

level two prior to the amendments had decided not to challenge 

that classification based on an accurate understanding that a 

level two classification did not carry the consequence of 

Internet publication. Id. at 614-615. Accordingly, we remanded 

the case for entry of an order "permanently enjoining SORB from 

publishing on the Internet the registry information of any 

individual who was finally classified as a level two sex 

offender on or before July 12, 2013, unless the individual is 
7

subsequently reclassified a level two or level three sex 

offender." Id. at 616.

The sex offender registry law permits a sex offender's 

final classification to be reclassified in one of two ways. 

First, SORB may seek reclassification where new information is 

received "which is relevant to a determination of a risk of reoffense or degree of dangerousness." G. L. c. 6, § 178L (3). 

Although the statute would permit SORB to seek a higher or lower 

reclassification level where new information is received that 

would suggest either an increase or a decrease in the risk of 

sexual recidivism, the SORB regulations authorize it to seek 

only a higher classification level based on the "[r]eceipt of 

any information that indicates the offender may present an 

increased risk to reoffend or degree of dangerousness." 803 

Code Mass. Regs. § 1.37C(10)(a) (2013).3 Where SORB does so, the 

sex offender may reject the recommended reclassification level

and request a reclassification hearing that follows the same 

procedures as a classification hearing. 803 Code Mass. Regs. 

 

3 After the denial of reclassification in these two cases, 

the Sex Offender Registry Board (SORB) promulgated new 

regulations, which continue to provide that SORB may seek only a 

higher classification based on new information relevant to a sex 

offender's risk of sexual recidivism. 803 Code Mass. Regs. 

§ 1.32(1) (2016). In addition to substantive changes, the 2016 

regulations are also numbered differently. In order to avoid 

confusion, we refer to the 2016 regulations only in footnotes. 

Unless otherwise noted, the language in the 2013 regulations 

that we discuss is also present in the 2016 regulations.
8

§ 1.37C(10)(c) (2013). Second, a sex offender may seek 

reclassification based on a showing that the offender's risk of 

reoffense and degree of dangerousness has decreased since his or 

her final classification. 803 Code Mass. Regs. § 1.37C(1)

(2013).

4

Both plaintiffs, John Doe, SORB No. 326573 (Doe No. 

326573), and John Doe, SORB No. 15890 (Doe No. 15890), pleaded 

guilty to sex offenses and received a final classification as a 

level two offender before the 2013 amendments to the sex 

offender registry law. In separate proceedings, SORB sought to 

reclassify each as a level three offender after the amendments 

based on new information. In each case, the hearing officer 

concluded that a reclassification of the original classification 

was not warranted and that the offender remained a moderate risk 

to reoffend. As to Doe No. 326573, the hearing officer found 

that the "reclassification record does not provide any new or 

 

4 A sex offender who is classified as a level two or level 

three offender may file a motion for reclassification no sooner 

than three years after the final classification, but a sex 

offender who has been convicted of a new sex offense may not 

file such a motion until ten years after the final 

classification. 803 Code Mass. Regs. § 1.37C(2) (2013). The 

2013 regulations also provide that a sex offender who has 

experienced a material change in circumstances related to a 

medical condition may file a motion for reclassification "sooner 

than five years after the date of his or her prior 

classification." 803 Code Mass. Regs. § 1.37C(3) (2013). Under 

the 2016 regulations, an offender may file such a motion "sooner 

than three years after the date of his or her prior 

classification." 803 Code Mass. Regs. § 1.31(3) (2016).
9

different insight into his capacity to sexually reoffend or the 

danger he poses to the community as a sex offender than was the 

case at the time of his original classification." As to Doe No. 

15890, the hearing officer found that, although much of SORB's 

evidence was "credible and concerning, [she did] not find these 

events are enough to warrant [him] to now present a high risk to 

reoffend or high degree of danger."5

After the hearing, SORB informed Doe No. 326573 that, 

because of the hearing officer's decision, his registry 

information would be made available on the SORB Web site. Doe 

No. 326573 filed, in the Superior Court, a complaint for 

declaratory and injunctive relief and a motion for a preliminary 

injunction seeking a stay of the Internet publication. A 

Superior Court judge allowed the motion and issued an order

enjoining SORB from publishing Doe No. 326573's registry 

information until further notice. The parties then filed a 

joint motion to report the case to the Appeals Court, pursuant 

to Mass. R. Civ. P. 64 (a), as amended, 423 Mass. 1403 (1996), 

which the Superior Court judge allowed. After the case was 

 

5 After SORB moved to reclassify John Doe, SORB No. 15890 

(Doe No. 15890), upward to a level three sex offender, he moved 

for reclassification downward to a level one offender. The 

hearing officer denied both motions in the same decision. As to 

Doe No. 15890's motion, the hearing officer found that his "risk 

to sexually reoffend and his degree of dangerousness have not 

decreased since his last classification."
10

docketed in the Appeals Court, we granted Doe No. 326573's 

application for direct appellate review.

Doe No. 15890 filed a complaint in the Superior Court for 

judicial review of the hearing officer's decision, as well as a 

motion for a preliminary injunction to stay Internet publication

of his registry information. After a judge denied the motion

for a preliminary injunction, a single justice of the Appeals 

Court allowed Doe No. 15890's request for interlocutory relief, 

stating that allowing Internet publication of Doe No. 15890's 

registry information would effectively permit SORB to

"circumvent" this court's holding in Moe. After the case was 

entered in the Appeals Court, we granted Doe No. 15890's

application for direct appellate review. We then consolidated 

the appeals because of the common issue they present.

Discussion. SORB contends that, where it moves to 

reclassify a level two offender as a level three offender based 

on new information relevant to the offender's risk of sexual 

recidivism and where the hearing officer issues a decision after 

July 12, 2013, that the new information does not warrant any 

change in the offender's classification, the offender has been 

"subsequently reclassified a level two . . . sex offender" and 

therefore falls outside the scope of the injunction in Moe, 467 

Mass. at 616, that bars Internet publication of the offender's 

registry information. The premise of SORB's argument is that 
11

its motion for reclassification triggers a review of the 

offender's classification and, where that occurs after July 12, 

2013, a determination by the hearing officer that the offender's 

classification should remain at level two is made with knowledge 

that such a classification will trigger Internet publication, 

thus curing the violation of due process identified in Moe.

The flaw in SORB's premise is that a decision in a

reclassification hearing, in contrast with the original 

classification, is not written on a clean slate. Where 

initiated by SORB, it is essentially a hearing on a motion to 

increase the classification from level two to level three based 

on new information allegedly indicating an increased risk of 

sexual recidivism. The burden rests with SORB to prove that the 

new information warrants a reclassification to a higher offense 

level.6 Where, as here, the hearing officer determines that SORB 

failed to meet that burden, the motion for reclassification is 

denied and the original level two classification remains. 

 

6 SORB's burden of proof in these two cases was proof by a 

preponderance of the evidence. See 803 Code Mass. Regs. 

§§ 1.10(1), 1.37C(10)(c) (2013). The regulations were amended 

after we held in John Doe, Sex Offender Registry Bd. No. 380316

v. Sex Offender Registry Bd., 473 Mass. 297, 314-315 (2015), 

that because the consequences of registration as a sex offender 

have become more severe, SORB must prove the appropriateness of 

an offender's risk classification by "clear and convincing 

evidence" in order to satisfy due process. SORB's burden under 

the new regulations for an upward classification is now proof by 

clear and convincing evidence. See 803 Code Mass. Regs. 

§§ 1.03, 1.14(1) (2016).
12

Because the original classification issued on or before July 12, 

2013, has not changed, the denial does not result in the 

offender's subsequent reclassification as a level two offender 

within the meaning of Moe.

Similarly, where the offender moves to reduce his or her 

classification from a level two to a level one, the burden rests 

with the offender to prove that his or her risk of sexual 

recidivism has decreased since final classification. 803 Code 

Mass. Regs. § 1.37C(1), (2)(c) (2013).

7 "Motions for 

reclassification shall be based on new and updated information 

not available at the time of the original classification," 803 

Code Mass. Regs. § 1.37C(5)(e) (2013), but the hearing officer 

is not foreclosed from considering the information relied on in 

determining the original classification level. Id. Where the 

offender fails to meet this burden, the motion for 

reclassification is denied and the original level two 

classification remains in place.

 

7 The offender's burden of proof had been proof by a 

preponderance of the evidence. See 803 Code Mass. Regs. 

§ 1.37C(1), (2)(c) (2013). But under the new SORB regulations, 

the offender must prove by clear and convincing evidence that 

his or her risk of sexual recidivism has decreased since the 

final classification. 803 Code Mass. Regs. § 1.31(2)(c) (2016). 

Consequently, even where the offender proves by a preponderance 

of the evidence that a lower classification is warranted in 

light of his or her reduced risk of sexual recidivism, the 

offender's motion for reclassification will be denied. Because 

the constitutionality of this regulation is not at issue in this 

case, we do not address it.
13

SORB argues that, where it moves for reclassification to a 

higher level and the offender rejects the recommended 

reclassification, the regulations provide that "he or she may 

request a hearing that follows the procedures detailed in [803 

Code Mass. Regs. §§ 1.08 through 1.25 (2013)]," 803 Code Mass. 

Regs. § 1.37C(10)(c), which include the provision in § 1.10(1)

that the hearing "shall be a de novo review" limited to 

determine whether SORB has met its burden to prove the 

offender's final classification. SORB contends that, because 

the reclassification hearing is a "de novo review," the denial 

of reclassification should be treated as a new final 

classification. But the regulations make clear that SORB may 

initiate a reclassification hearing only based on its receipt of 

new information and only to increase the offender's 

classification. The hearing officer upon SORB's application for 

reclassification decides only whether to increase the original 

classification based on the new information; where the 

regulations give SORB no authority to apply for a lower 

classification, the hearing officer, in the absence of a motion 

by the offender for reclassification, has no reason to reach 

beyond the scope of SORB's motion and reduce the classification.8

 

8 As a technical matter, the regulations permit the hearing

officer to "maintain, decrease, or increase" the SORB 

recommendation in a reclassification hearing. See 803 Code 

Mass. Regs. § 1.22(2) (2013). But where only SORB seeks 
14

In essence, SORB's argument is that, when it moves to 

reclassify a level two offender who was classified on or before 

July 12, 2013, it is "heads, we win, tails, you (the offender)

lose." If SORB prevails on its motion to reclassify the 

offender from level two to level three based on its new 

information, it may publish the offender's registry information 

on its Web site on the Internet. If it fails to prevail on its 

motion, the offender will be reclassified a level two offender, 

and it may publish the offender's registry information on its 

Web site on the Internet. We decline to adopt such a rule. The 

denial of SORB's motion to reclassify level two offenders who 

were finally classified on or before July 12, 2013, cannot 

transform them "into something akin to level 'two and one-half'

offenders." See Moe, 467 Mass. at 609. Such a result would not 

respect our conclusion in Moe that retroactive application of 

the 2013 amendments requiring Internet publication of registry 

 

reclassification, the regulations render a decrease in 

classification virtually impossible, because they only permit 

SORB to seek reclassification based on an increased risk. See 

803 Code Mass. Regs. § 1.37C(10). At oral argument, SORB's 

attorney was asked if a hearing officer had ever reclassified a 

level two offender as a level one offender after SORB moved to 

reclassify an offender from level two to level three. SORB 

replied in a letter pursuant to Mass. R. A. P. 16 (l), as 

amended, 386 Mass. 1247 (1982), that it had located one case 

where this had occurred. However, in the decision attached to 

the letter, the hearing officer noted that, after SORB moved to 

reclassify the level two offender at level three, the offender 

moved for reclassification as a level one sex offender. The 

hearing officer essentially denied SORB's motion to reclassify 

upward and allowed the offender's motion to reclassify downward.
15

information for these level two offenders "would be unreasonable 

and inequitable, and therefore unconstitutional as a violation 

of due process." Id. at 615. Nor does it respect the gravity 

of Internet publication of an offender's registry information, 

which magnifies the "risk of serious adverse consequences to 

that offender, including the risk that the sex offender will 

suffer discrimination in employment and housing, and will 

otherwise suffer from the stigma of being identified as a sex 

offender, which sometimes means the additional risk of being 

harassed or assaulted." Id. at 604. See Doe v. Attorney Gen.

(No. 2), 425 Mass. 217, 221-222 (1997).9

We also decline to adopt SORB's argument that, where a 

level two offender who was classified on or before July 12, 

2013, moves to be reclassified as a level one offender, the 

denial of his or her motion means that the offender has been 

subsequently reclassified a level two offender and his or her 

 

9 Our opinion in Moe identified three reasons why this is 

so: first, Internet publication allows the offender's registry 

information to be accessed anonymously by persons from the 

comfort of their own home; second, once published on the SORB 

Web site, an offender's registry information will likely be 

republished elsewhere on the Internet and remain publicly 

available even if SORB were later to reduce or eliminate the 

offender's registration requirement; and third, search engines 

may reveal the registry information even to those persons who 

searched the offender's name for other reasons. Moe v. Sex 

Offender Registry Bd., 467 Mass. 598, 605 (2014), citing D.J. 

Solove, The Future of Reputation: Gossip, Rumor, and Privacy on 

the Internet 78 (2007) ("When one puts information on the 

Internet, it can easily become like Frankenstein's monster, 

escaping the dominion of its master").
16

registry information may now be published on the SORB Web site. 

Under the regulations in effect when Doe No. 15890 moved to 

reduce his classification, his failure to prove by a 

preponderance of the evidence that his classification should be 

reduced based on new information does not transform his level 

two classification into "something akin" to a level two and onehalf classification. It means simply that his motion for 

reclassification is denied. If it meant more, level two 

offenders who were classified on or before July 12, 2013, would 

be deterred from ever seeking to move to reduce their 

classification level, because the denial of that motion would 

result in publication of their registry information on the SORB 

Web site on the Internet.10

Conclusion. We conclude that, under Moe, a sex offender is 

"reclassified" only where a hearing officer allows SORB's motion 

to increase his or her classification based on new information 

indicating an increased risk of sexual recidivism, not, as here, 

where the hearing officer denied SORB's motion for 

reclassification and retained the earlier level two 

classification. We affirm the judge's allowance of the motion

 

10 That deterrent would be even stronger under the new 

regulations, where an offender's motion for a lower 

classification will be denied unless the offender proves by 

clear and convincing evidence that his or her risk of sexual 

recidivism has decreased since final classification. See 803 

Code Mass. Regs. § 1.31(2)(c). See note 7, supra.
17

for a preliminary injunction in Doe No. 326573's case and 

reverse a different judge's denial of the motion in Doe No.

15890's case, and remand these cases to the Superior Court for 

the issuance of a permanent injunction barring publication of 

each plaintiff's registry information on SORB's Web site on the 

Internet unless and until the offender is reclassified a level 

three sex offender.

So ordered.