Sex Offender “Resides” in Commonwealth While Incarcerated

On 6/4/2010 the SJC ruled that a sex offender is under the jurisdiction of the Massachusetts Sex Offender Registry board despite his claims that he was not a “resident” of the Commonwealth in JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 3974 vs. SEX OFFENDER REGISTRY BOARD 457 Mass. 53

The court stated in its ruling “In the circumstances of a plaintiffs appeal from a Superior Court judge’s decision affirming his classification as a level two sex offender by the sex offender registry board (board), the plaintiffs argument that he was not a “sex offender” within the meaning of G. L. c. 6, § 178C, because he did not reside in Massachusetts at the time of his classification did not implicate the board’s subject matter jurisdiction and was therefore waived by the plaintiff’s failure to raise the argument during proceedings before the board, which had before it sufficient evidence to satisfy a prima facie showing of the plaintiffs residence.

A plaintiff who did not object to his final classification as a level two sex offender by the sex offender registry board (board) waived the ability to assert on appeal that the classification of an incarcerated person is beyond the authority of the board or that the board infringed his right to due process by depriving him of the opportunity to show how specific conditions of his release might mitigate his risk of reoffense and threat to the public.

Claimed lack of subject matter jurisdiction. The plaintiff’s primary challenge to his classification is that the board lacked subject matter jurisdiction over his case. At the time of his classification, G. L. c. 6, § 178C, defined a “[s]ex offender” as “a person who resides . . . in the commonwealth and who has been convicted of a sex offense or who has been adjudicated as a youthful offender or as a delinquent juvenile by reason of a sex offense.”[Note 5] In essence, the plaintiff argues that he was not a “sex offender” because, having been transferred to the Barnstable County house of correction involuntarily, he did not “reside” in Massachusetts. Therefore, he contends that the board acted beyond its authority when it classified him, and that an incarcerated person only “resides” in Massachusetts when there is evidence that the person intends to live in the State after release.

Given the fact that the plaintiff neglected to raise this issue until his case reached the Appeals Court, there is a strategic explanation for why he has couched his argument in terms of subject matter jurisdiction. As we have said, “questions of subject matter jurisdiction ‘may be raised at any time’ . . . and are not waived even when not argued below.” Commonwealth v. DeJesus, 440 Mass. 147 , 151 (2003), quoting Commonwealth v. Cantres, 405 Mass. 238 , 240 (1989). Thus, provided that questions concerning a person’s residence implicate the subject matter jurisdiction of the board, the plaintiff’s failure to raise the issue before the board is excusable. However, if the plaintiff’s argument does not implicate subject matter jurisdiction, then it is waived.

Subject matter jurisdiction is ‘jurisdiction over the nature of the case and the type of relief sought’ . . . .” Middleborough v. Housing Appeals Comm.,449 Mass. 514 , 520 (2007), quoting Black’s Law Dictionary 870 (8th ed. 2004). It is divided “among the various trial courts and administrative agencies [and] ‘is both conferred and limited by statute.’ ” Middleborough v. Housing Appeals Comm., supra, quoting Edgar v. Edgar, 403 Mass. 616, 619 (1988). The question at the heart of subject matter jurisdiction is, “Has the Legislature empowered the [agency] to hear cases of a certain genre?” Wachovia Bank,

In this case, the plaintiff’s argument concerning his residence is based entirely on what the board did not know when it classified him. He asserts that the board had no information about where he intended to reside after his release from prison, and he then proceeds to argue that this thus deprived the board of its authority to classify him. The notion that the board might claim the power to classify incarcerated individuals who have been transferred into Massachusetts on a temporary and involuntary basis does, indeed, raise concerns. However, because the plaintiff never raised this point to the board, we have no indication that the board tried to assert such sweeping authority. Instead, the record includes sufficient evidence to satisfy a prima facie showing of the plaintiff’s residence.

The Appeals Court held, citing Commonwealth v. Becker, 71 Mass. App. Ct. 81 , 88 (2008), that the plaintiff’s incarceration in Massachusetts was enough to qualify him as a resident for purposes of G. L. c. 6, § 178C. However, much more was present than temporary incarceration, thus obviating the need to rely on such a narrow ground. The record indicates that the plaintiff was born in Massachusetts and that he spent his youth here. Indeed, the underlying sex offense that triggered his classification occurred and was adjudicated in Massachusetts. The record also shows that he was married and living with his wife in Massachusetts when he was arrested on his Federal drug charge. There was no evidence, aside from his temporary incarceration in Rhode Island, that the plaintiff ever lived or intended to live anywhere but Massachusetts. Coupled with his presence in the Barnstable County house of correction, these facts are enough to deem the plaintiff a resident of Massachusetts. See Phillips v. Boston, 183 Mass. 314 , 315 (1903) (“Ordinarily, the word ‘resides’ may be construed as having a residence in a place and to be there settled as a home . . .”). The plaintiff was entitled to rebut these facts, G. L. c. 6, § 178L (1) (a), but he opted to offer no evidence of his own.

Therefore, even had he not waived his argument concerning his residence, the plaintiff would have lost on the merits. Under G. L. c. 30A, § 14 (7), a reviewing court would have examined the record to determine if the plaintiff was a resident of Massachusetts within the meaning of G. L. c. 6, § 178C. That record, as we have shown, was of the plaintiff’s own making, and would have been fatal to his argument.”


The court goes into alot of issues such as subject matter jurisdiction which are really more relevant to the D.A. office than a police officer. But, the case does stand for the proposition that if he is incarcerated in Massachusetts, its home sweet home and therefore makes him subject to the Sex Offender Registry Boards authority.

Attorney Ronald A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to
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