Recently the SJC ruled in JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 941 vs. SEX OFFENDER REGISTRY BOARD 460 Mass. 336 (2011) that the Sex Offender Registry Board lacked the authority to declare that a sex offender had waived his right to a hearing. The board had argued that a party had requested a classification hearing and his attorney was present at that hearing had waived the right to such a hearing by failing to appear himself without good cause. However the court disagreed and stated that the Legislature specified that such a hearing is waived only when the sex offender does not timely request one, leaving out whether they were required to attend themselves. The court reasoned that by not attending the hearing they run the risk of adverse evidence being submitted without their opposition, however the hearing must still occur if requested.
The court in deciding stated “Sex offenders have a constitutionally protected liberty and privacy interest in avoiding registration and public dissemination of registration information” that arises from their classification, and therefore, they are entitled to procedural due process in establishing their classification. Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90 , 100 (1998). See Doe v. Attorney Gen., 426 Mass. 136 , 149 (1997) (Fried, J., concurring) (registration “is a continuing, intrusive, and humiliating regulation of the person himself”). Due process requires that, where a sex offender challenges his classification, the board bears the burden of justifying that classification by a preponderance of the evidence at an evidentiary hearing at which an offender has the right to present evidence and cross-examine witnesses, and after which the hearing examiner must make “specific, written, detailed, and individualized findings” supporting the board’s final classification. Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., supra at 91, 98, 102-104.
In 1999, the Legislature repealed the existing statute and enacted the present sex offender registry statute to provide more adequate protection of procedural rights. See St. 1999, c. 74, § 2. See also Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768 , 775-776 (2006); Roe v. Attorney Gen., 434 Mass. 418 , 419, 423 (2001). As a result, a sex offender is now entitled by statute to request an evidentiary hearing to challenge the board’s recommended classification, to be represented by counsel at that hearing and to have counsel appointed if he is indigent, and to put the board to its burden to prove the appropriateness of its recommended classification by a preponderance of the evidence. G. L. c. 6, § 178L.
Under G. L. c. 6, § 178L (1), a sex offender waives these due process rights by failing timely to request a classification hearing; the statute provides no other way in which a sex offender can waive the right to a hearing. The board, however, has promulgated a regulation, 803 Code Mass. Regs. § 1.13(2), providing that a sex offender who has invoked his due process rights by requesting a hearing waives his right to that hearing by failing to appear without good cause.
The board claims that this regulation is a valid exercise of its rule making authority pursuant to G. L. c. 6, § 178D, which provides that “[t]he board shall promulgate rules and regulations to implement the provisions of sections 178C to 178P, inclusive.” We disagree. Because we have recognized and the Legislature has acted to protect the constitutional rights of sex offenders who face classification determinations, and the Legislature provided for waiver of these due process rights only where a sex offender did not request a hearing, we conclude that 803 Code Mass. Regs. § 1.13(2) is not in harmony with the legislative mandate and is ultra vires. See Commonwealth v. Maker, 459 Mass. 46 , 50 (2011) (regulation requiring level two or three sex offenders who were incarcerated during classification to report in person to local police department within two days of being released from custody was ultra vires, where nothing in statute authorized board to create new registration requirements); Moot v. Department of Envtl. Protection, 448 Mass. 340 , 352-353 (2007), S.C., 456 Mass. 309 (2010) (regulation exempting landlocked tidelands from licensing requirements that applied to uses or structures on tidelands was ultra vires because it relinquished Department of Environmental Protection’s obligation under applicable statute to protect public’s rights in tidelands).
We have held that a criminal defendant who has moved to suppress evidence but voluntarily fails to appear at the suppression hearing does not waive the right to suppress evidence or to have a hearing, but may waive the right to be present at that hearing. See Robinson v. Commonwealth,445 Mass. 280 , 290 (2005). Similarly, we have long held that a defendant who voluntarily absents himself from his trial after it has begun does not waive his right to trial but, in the discretion of the judge, may waive his right to be present for the remainder of the trial. Id. at 287-288. See Commonwealth v. Flemmi, 360 Mass. 693 , 694 (1971). Just as the voluntary absence of these defendants does not waive the right to suppress unconstitutional evidence, the right to a verdict based on proof beyond a reasonable doubt, or the right, through counsel, to cross-examine prosecution witnesses and offer evidence in their own behalf, nothing in the sex offender registration statute or the Legislature’s general grant of rule making authority suggests that a sex offender who invokes the right to a classification hearing but voluntarily fails to appear at the hearing has waived the right to detailed written findings justifying the board’s final risk classification by a preponderance of the evidence or the right, through counsel, to present evidence or challenge the board’s evidence at the hearing. We recognize that the potential consequences arising from a conviction are greater than those arising from classification as a sex offender, and that the latter is civil, not criminal, but a constitutionally protected liberty interest is at issue in both proceedings. See Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90 , 100 (1998).
We agree with the board that a sex offender reasonably may suffer adverse consequences arising from the failure to appear at a classification hearing, but we do not agree that the denial of a right to a hearing may be among those consequences. By voluntarily failing to attend a classification hearing, the sex offender loses the ability to assist his attorney in challenging the classification, to testify at the hearing, and to listen to the evidence that will determine his classification. Robinson v. Commonwealth, supra at 290. But the regulation allows the board, without any findings and without judicial review, to assign a risk classification to a sex offender who voluntarily fails to appear at the hearing. Like the judge below, we are “deeply troubled” by this consequence, because we have emphasized the importance of detailed written findings, guided by the factors in G. L. c. 6, § 178K, to ensure that “close attention has been given to the evidence as to each offender and that the classification for each is appropriate.” Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., supra at 102. This regulatory waiver is not necessary to the administration of the board’s classification procedure. The board may offer its documentary evidence and call witnesses just as it would if the sex offender were present, and the sex offender’s attorney may cross-examine these witnesses and offer evidence on the sex offender’s behalf.
The Legislature acted carefully to protect a sex offender’s due process rights, and declared that a sex offender waives the right to a classification hearing only where the offender does not ask the board to be put to its burden to justify the classification. See G. L. c. 6, § 178L (1). We conclude, therefore, that the board’s regulation exceeds the scope of its legislative mandate by declaring that a sex offender who has asked that the board be put to its burden and whose attorney is present and prepared to challenge the recommended classification waives the right to a classification hearing by failing to appear without good cause.
Conclusion. We vacate the dismissal of the complaint, and direct the entry of a judgment vacating the board’s classification and remanding the matter to the board for a classification hearing consistent with this opinion.
Attorney Ronald A. Sellon