Summary
The Massachusetts Supreme Judicial Court held that the Sex Offender Registry Board exceeded its statutory authority by requiring incarcerated level 2 and level 3 sex offenders to report in person to local police within two days of release. The court invalidated the regulation, answered both reported questions in the negative, and ordered the defendant’s conviction and sentence vacated. The matter was remanded for further proceedings.
Topics
Practice areas
Questions Presented
- Whether the Sex Offender Registry Board had statutory authority to require incarcerated level 2 and 3 sex offenders to report in person to their local police department within two days after release.
- Whether failure to comply with 803 Code Mass. Regs. § 1.04(7)(b) constitutes a violation of G. L. c. 6, § 178H.
Holdings
- The Sex Offender Registry Board lacked express or implied statutory authority to require incarcerated level 2 or 3 sex offenders to report in person to local police within two days after release. The regulation therefore exceeded the board's authority and was invalid.
- Failure to comply with 803 Code Mass. Regs. § 1.04(7)(b) does not constitute a violation of G. L. c. 6, § 178H because the regulation is invalid and cannot create an enforceable registration obligation.
Key quotations
“Although we look to the statute as a whole to determine the scope of the agency’s power, see Grocery Mfrs. of Am., Inc. v. Department of Pub. Health, 379 Mass. 70,75 (1979), an agency can exercise only “the powers and duties expressly conferred upon it by statute and such as are reasonably necessary to carry out its mission.”” (50)
“That section authorizes regulations to implement the statute; it does not confer an unfettered authority to enact any regulation that protects the public from sex offenders.” (51)
“Because it does not implement the statutory registration requirements but rather adds to them, and because the board is not vested with any authority to create new registration requirements, 803 Code Mass. Regs. § 1.04(7)(b) is outside the board’s authority and is invalid.” (52)
Factual background
The defendant had been finally classified as a level 3 sex offender. After his release from incarceration in 2008, he lived in a homeless shelter in Boston and did not report in person to the local police department within two days of release, as required by 803 Code Mass. Regs. § 1.04(7)(b) (2004). The regulation imposed that postrelease reporting requirement on incarcerated level 2 and 3 offenders, although the statutory scheme separately required pre-release registration with the board and later periodic verification.
Procedural history
The defendant was charged under G. L. c. 6, § 178H, after failing to report in person to his local police department within two days of release from incarceration as required by 803 Code Mass. Regs. § 1.04(7)(b) (2004). He pleaded guilty and received a two-year committed sentence in the Suffolk County house of correction. The plea judge reported questions of law to the Appeals Court, and the Supreme Judicial Court transferred the matter on its own motion.
Remand instructions
The defendant's sentence and conviction are vacated. The matter is remanded to the Boston Municipal Court Department for further proceedings consistent with the opinion.