Recently the SJC ruled in JOHN DOE vs. POLICE COMMISSIONER OF BOSTON 460 Mass. 342 (2011). In the case, the plaintiff, was a level three sex offender currently residing in a rest home. Pursuant to a statute enacted by the Legislature in 2006, a level three sex offender who “establish[es] living conditions within, move[s] to, or transfer[s] to” a long-term care facility such as a rest home commits a crime. See G. L. c. 6, § 178K (2) (e), inserted by St. 2006, c. 303, § 6 (§ 178K  [e], or the statute). The plaintiff asked the court to declare § 178K (2) (e) unconstitutional as applied to him. The court concluded that the statute infringed on the plaintiff’s protected liberty and property interests and violated his right to due process; because the statute fails to provide for an individualized determination that the public safety benefits of requiring him to leave the rest home outweigh the risks to the plaintiff of such a removal, the statute is unconstitutional as applied to the plaintiff. The simple answer to this is for the Legislature to simply insert that requirement.
The court in ruling stated “Effective December 20, 2006, § 178K (2) (e) subjects to criminal penalties any level three sex offender who moves to a rest home or other regulated long-term care facility. The statute provides:
“No sex offender classified as a level [three] offender shall knowingly and willingly establish living conditions within, move to, or transfer to any convalescent or nursing home, infirmary maintained in a town, rest home, charitable home for the aged or intermediate care facility for the mentally retarded which meets the requirements of the department of public health under [G. L. c. 111, § 71]. Any sex offender who violates this paragraph shall . . . be punished . . . . Prosecutions commenced hereunder shall neither be continued without a finding nor placed on file.” G. L. c. 6, § 178K (2) (e).
The statute applies uniformly to level three sex offenders; it allows for no exceptions. Id.
The plaintiff asserts a number of arguments in support of his claim that, as applied to him, § 178K (2) (e) is unconstitutional. We need address only one: whether the prohibitions as to where the plaintiff may reside may be imposed absent an individualized determination that weighs the plaintiff’s liberty and property interests against the rights of the Commonwealth to protect vulnerable members of society.
The parties’ arguments are best understood in the light of our prior decisions discussing the sex offender registration scheme, and we therefore begin with a brief overview. The sex offender registration system applies broadly to those the statute defines as sex offenders, including those who have served their criminal sentences and those who have been found, following a trial, to be no longer sexually dangerous. See G. L. c. 6, §§ 178C-178K; G. L. c. 123A. Cf. Opinion of the Justices, 423 Mass. 1201 , 1225 (1996) (earlier version of sex offender registration statute “imposes an entirely new system of consequences — potentially extremely burdensome — only on persons who have satisfied all the punitive measures applied to them in connection with a previous conviction”). We have determined that the act of registering, “in circumstances that serve the act’s remedial purposes,” will not necessarily constitute punishment in violation of the ex post facto clauses of the Federal and State Constitutions. Doe v. Attorney Gen., 426 Mass. 136 , 137 n.3 (1997). See Doe v. Attorney Gen. (No. 2), 425 Mass. 217 , 220 (1997).
Nonetheless, we have recognized that significant liberty and privacy interests of sex offenders are implicated by the registration law. See, e.g., Poe v. Sex Offender Registry Bd., 456 Mass. 801 , 813 (2010) (privacy interest); Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764 , 772 (2008), citing Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780 , 790-791 (2008) (liberty interest). Before imposing the burden of registration, and being subjected to public dissemination of information about them, sex offenders are entitled to procedural due process protections that include the opportunity for individualized hearings to determine present sexual dangerousness or risk of reoffense, and the appropriateness of the risk classification. Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90 , 91, 98 (1998). See Roe v. Attorney Gen., 434 Mass. 418 , 422-423 (2001). In Coe v. Sex Offender Registry Bd., 442 Mass. 250 , 257, 261 (2004), we held that the board’s publication of level three sex offender information on the Internet does not violate art. 12 of the Massachusetts Declaration of Rights, and declined to enhance procedural due process protections beyond what already was being provided by the opportunity for individualized risk classification hearings.
The prohibition contained in § 178K (2) (e), however, goes well beyond the registration and dissemination provisions we have said implicate substantial privacy and liberty rights of those convicted of sex offenses. The liberty and privacy rights at issue in this case are far more substantial. Cf., e.g., Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., supra at 781-782, 793.
But for the restrictions imposed by § 178K (2) (e), those who have been released from incarceration (and are not otherwise subject to supervision or restrictions, see G. L. c. 265, § 47, or committed to the Massachusetts Treatment Center as sexually dangerous persons, see G. L. c. 123A) are free to live where they choose and to move freely within and without the Commonwealth. See Coe v. Sex Offender Registry Bd., supra at 258 (“Level three sex offenders are not prohibited from leaving their residences or places of employment, and are not restricted in traveling in and outside of the Commonwealth . . .”). See also Commonwealth v. Weston W., 455 Mass. 24 , 32-33 (2009) (“Massachusetts Declaration of Rights guarantees a fundamental right to move freely within the Commonwealth”). A restriction on the right to choose where one lives is a further imposition on the liberty interests protected by our State Constitution.
Because the plaintiff has an existing placement in a rest home that the State in effect threatens to take away from him, the statute implicates property interests as well. Cf. Greene v. Lindsey, 456 U.S. 444, 446, 456 (1982) (right to continued residence in government-subsidized housing is significant interest in property to which due process rights attach). These constitutionally based interests are further threatened when the limitation that forces a person to leave a rest home renders him homeless.
Where a statute infringes on a constitutionally protected liberty or property interest, an individual is entitled to due process of law; how much process is due will depend on the magnitude of the deprivation. Doe v. Attorney Gen., supra at 140. We described in Roe v. Attorney Gen., supra at 427, the factors that must be considered in assessing whether the process afforded is sufficient:
“Where there is an interference with a protected liberty interest, the court must consider ‘the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the [g]overnment’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’ Mathews v. Eldridge, [424 U.S. 319, 335 (1976)]. See Aime v. Commonwealth, 414 Mass. 667 , 675 (1993) (‘the individual interest at stake must be balanced against the nature of the governmental interest and the risk of an erroneous deprivation of liberty or property under the procedures which the State seeks to use’).”As noted, the determination that the plaintiff is a level three offender, and thus has been found to pose a risk of further offense to the community at large, subjects him to the registration requirements and dissemination provisions of G. L. c. 6, §§ 178C-178Q. Section 178K (2) (e), however, seeks to impose additional curtailments on his liberty and privacy rights, as well as on his right to live where he chooses, solely on the basis of the plaintiff’s level three classification. The statute presumes that all members of a class of sex offenders are dangerous to every community of rest home residents. It affords no opportunity for the plaintiff to demonstrate that he represents no or a minimal danger to the community the law is intended to protect and makes no provision for the necessary balancing of the plaintiff’s individual circumstances against the Commonwealth’s interest in protecting vulnerable elders from sexual assault. See Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780 , 793 (2008).
The United States Supreme Court has struck down as illegitimate certain “irrebuttable presumptions” where the “fit” was inadequate between a classification and the policy that the classification serves. See Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 644-648 (1974) (administrative convenience insufficient to justify irrebuttable presumption of physical incapacity among pregnant teachers); Stanley v. Illinois, 405 U.S. 645, 656-658 (1972) (irrebuttable presumption that unwed fathers are unfit parents did not serve State’s goal of strengthening family ties). See also Michael H. v. Gerald D., 491 U.S. 110, 120-121 (1989).
Here, the “fit” between the classification and the State’s goals has not been sufficiently established. See Michael H. v. Gerald D., supra. Even assuming that some level three sex offenders in long-term care facilities pose a danger to other residents, others — perhaps especially those who have no history of assaults against adult victims — pose no particular danger to the population the policy aims to protect and are fully capable of contributing positively to rest home communities. See Cleveland Bd. of Educ. v. LaFleur, supra at 645-646. In light of the further encroachment on the plaintiff’s liberty and property interests imposed by the statute that places limitations on where he may reside, which is further heightened by his circumstances, the plaintiff must have an opportunity to establish that he poses minimal risk to the community the statute was intended to protect and, if removed from the rest home, will likely become homeless and expose himself to significant harm. Cf. Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., supra.
The defendants assert that the sex offender registration law already provides for individualized hearings in the context of classification. See G. L. c. 6, § 178L; 803 Code Mass. Regs. § 1.40(9)(c) (2002). Classification and reclassification procedures, however, are designed to assess the risk of reoffense and degree of dangerousness posed to the public for the purposes of determining whether and how the public should be informed about individual sex offenders. See G. L. c. 6, § 178K (1). Classification hearings balance sex offenders’ liberty and privacy interests implicated by the acts of registration and dissemination of information about them, against the need for the public to have information about dangerous sex offenders in order to protect vulnerable populations. See Coe v. Sex Offender Registry Bd., 442 Mass. 250 , 257-259, 261 (2004); Doe v. Attorney Gen., 426 Mass. 136 , 143 (1997). The plaintiff’s classification hearings did not adequately address the heightened liberty and property interests implicated by § 178K (2) (e).
3. Conclusion. In order to protect his liberty and property interests in continued residence in the rest home — to which he was admitted and where he chooses to live — the plaintiff is entitled to a meaningful opportunity to be heard before § 178K (2) (e) may be enforced against him. Because the statute does not provide for, or permit, such an individualized determination, as applied to the plaintiff it violates due process of law under the Fourteenth Amendment to the United States Constitution and arts. 10 and 12 of the Massachusetts Declaration of Rights. The matter is remanded to the county court where a declaration shall enter stating that, as applied to the plaintiff, G. L. c. 6, § 178K (2) (e), does not comport with the due process clause of the Fourteenth Amendment and arts. 10 and 12, and cannot be enforced against him.
Attorney Ronald A. Sellon