Doe, SORB No. 474362 v. Sex Offender Registry Board
Doe, SORB No. 474362 v. Sex Offender Registry Board
Opinion
*53 The plaintiffs filed this action in 2015 challenging a now-discontinued practice of the Sex Offender Registry Board (SORB or board), under which SORB published the criminal history and identifying information of adjudicated sex offenders who no longer lived in Massachusetts. Pursuant to this practice the plaintiffs' information was displayed on a page of SORB's official Web site, under the heading "moved out of state." The plaintiffs' claims are brought against SORB and two of its officers, alleging violations of Federal and State constitutional due process rights, as well as other violations of State law. This interlocutory appeal comes before us from the denial of a motion to dismiss that raised a variety of issues -- including, in particular, the propriety of claims for damages brought against the two SORB officers in their individual capacities. Because the Federal and State constitutional claims for damages against the officers fail as a matter of law, we reverse that portion of the Superior Court order denying the motion to dismiss, and affirm the remainder.
Background
. As this is an appeal from a ruling under Mass. R. Civ. P. 12 (b) (6),
The structure of the sex offender registration statute has been frequently described. See, e.g.,
Moe
v.
Sex Offender Registry Bd
.,
On or around June of 2015, SORB began the practice of publishing the sex offense history and other identifying information of sex offenders who had previously been registered but who were no longer living, working, or attending school in Massachusetts. The information was posted on SORB's Web site under the category entitled "moved out of state." The practice was initiated without any notification of the reposting to the affected individuals -- there were more than 600 such persons. The information published included photographs and criminal histories. SORB did not verify that the information was current or accurate before posting it -- and some of the information allegedly was inaccurate.
The plaintiffs sued on their own behalf and on behalf of a purported class. The allegations with respect to plaintiff John Doe, Sex Offender Registry Board No. 106929 (Doe No. 106929), well-illustrate why the plaintiffs were concerned: 3 Doe No. 106929 came to Massachusetts in 2005 to attend school. He had previously been convicted in California for engaging in sexual relations with a sixteen year old when he was nineteen years old; California's age of consent was eighteen. After learning that Massachusetts had preliminarily classified him as a level three *55 offender, Doe No. 106929 immediately left Massachusetts, and SORB ceased publishing his photograph and criminal history.
Ten years later, in June of 2015, Doe No. 106929 learned through an Internet conversation that SORB had resumed publishing his name and photograph -- this time on its "moved out of state" page. The sex offense listed on the page was "rape of a child." Doe No. 106929 received no notice from SORB regarding SORB's new practice, or that his name was being republished on SORB's Web site. Moreover, after Doe No. 106929 left Massachusetts, a court in California had entered an order expunging the record of his sex offense. Doe No. 106929 lost two jobs in California in 2015 once this information was made known at his workplaces.
The original complaint was filed on September 10, 2015. After some initial skirmishes, SORB took down the "moved out of state" portion of its Web site on or about September 29, 2015. Sometime later the plaintiffs filed an amended complaint which, for the first time, sought damages.
The amended complaint contains nine counts. Described generally, it includes counts for violations of both procedural and substantive due process, under both the State and Federal Constitutions. It also contains a separate count under
The defendants are SORB, the State entity, as well as two officers of SORB, each of whom is sued in both their official and individual capacities. Defendant Kevin *280 Hayden was the chair of SORB when the complaint was filed; defendant Laurie Myers was its executive director.
The defendants eventually countered the amended complaint with the motion to dismiss at issue in this appeal. The thrust of that motion is that the plaintiffs do not have a claim for
damages
, both because (1) SORB's Web site publication did not violate procedural or substantive due process rights, and (2) even if such a violation occurred, the individual defendants have immunity
*56
from a damages claim because the constitutional rights the defendants allegedly violated were not "clearly established."
Harlow
v.
Fitzgerald
,
The Superior Court judge denied the motion. He reasoned, in relevant part:
"The court is unpersuaded by the defendants' argument that the individual defendants could not have known that the dissemination of the plaintiffs' information would amount to a violation of [F]ederal law. Given the numerous recent cases where Massachusetts courts have highlighted the due process, privacy, and liberty interests implicated by the [I]nternet dissemination of sex offenders' information to the public, the court is not convinced by the defendants' assertion that it would not have been clear to the individually named defendants that disseminating information of sex offenders who no longer have a duty to register in Massachusetts could amount to a violation of those individuals' constitutional rights."
The defendants appeal from the Superior Court judge's order, invoking our jurisdiction under the doctrine of present execution. 4 For the reasons discussed below, we reverse in part and affirm in part.
*57 Discussion . 1. The claims at issue . Before diving into substance, we need to first clearly define what is before us. The motion to dismiss under appeal focused on those counts of the amended complaint that allege constitutional due process violations, but the motion did not distinguish between Federal and State constitutional rights. 5 The amended complaint, however, *281 contains separate counts under both the Federal and Massachusetts Constitutions, for deprivations of both procedural and substantive due process. The distinction between claims under the Federal and State Constitutions is important: first, because under the case law the due process rights secured by the two Constitutions are not identical, and second, because the remedies available for violations of the two Constitutions may not be the same. Deprivations of Federal constitutional rights are remedied under § 1983, which includes, in appropriate circumstances, a damages remedy. In contrast, it is unclear whether damages are available for deprivations of State constitutional rights where, as here, the plaintiffs have not alleged a "threats, intimidation or coercion" claim under the Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H, 11I.
The upshot of these differences between Federal and State law is that each of the plaintiffs' claims must be separately analyzed, paying attention not only to the substantive law but also to the remedies available, and to the applicable defenses and government immunities. 6
2.
Procedural due process -- Federal Constitution
. The Fourteenth Amendment to the United States Constitution provides that no State shall "deprive any person of life, liberty, or property, without due process of law." The plaintiffs' procedural due process argument is that they were deprived of a "liberty" or "property" interest when SORB published their photographs and criminal histories, and that SORB did so without providing the fundamentals of due process -- notice and an opportunity to be heard. See
Mathews
v.
Eldridge
,
The difficulty with the plaintiffs' Federal due process argument, however, comes at the threshold; the plaintiffs must first demonstrate a deprivation of a constitutionally protected liberty or property interest. See
González-Fuentes
v.
Molina
,
The reasoning in
Paul
is the touchstone for analyzing the plaintiffs' Federal claims here, as it has been in other cases, discussed
infra
, that have addressed Federal procedural due process issues in connection with State sex offender notification laws. The plaintiffs complain of harms to their reputation and their privacy resulting from the publication of (in some instances
*59
false) information about their criminal histories. While the alleged harms, if proved, are no doubt very serious, under
Paul
they would not by themselves rise to the level of liberty or property interests protected by the Federal due process clause.
7
,
8
See
Doe
v.
Attorney Gen
.,
Given the posture of the appeal before us, we do not today decide whether the plaintiffs have stated a Federal due process claim. Whether or not the plaintiffs have stated such a claim, we are satisfied that the individual defendants, Hayden and Myers, have immunity from the § 1983 damages claim against them. This is because as employees of a State executive agency, Hayden and Myers are immune from suit under § 1983 unless their actions violated clearly established constitutional rights. See
Harlow
,
There was no clearly established Federal due process right applicable to the plaintiffs' circumstances at the time of the posting in 2015. As the court stated in
LaChance
, "A right is only clearly established if, at the time of the alleged violation, 'the contours of the right allegedly violated [were] sufficiently definite so that a reasonable official would appreciate that the conduct in question was unlawful' " (citation omitted).
LaChance
,
*283
Our conclusion is bolstered by several more recent decisions of Federal Courts of Appeals, which have refused to find violations of Federal due process in the specific context of State sex offender registry laws. In
Cutshall
v.
Sundquist
,
We do not find a contrary construction of Federal law in the decisions of the Supreme Judicial Court or this court. While many Massachusetts appellate decisions have addressed what procedural due process rights exist in connection with the Massachusetts sex offender registration and public notification laws, the cases that have found violations of procedural due process have been based on the Massachusetts Declaration of Rights, not on the Federal Constitution. See the following representative chronology:
Doe
,
In sum, given the state of the Federal case law, set forth above, we conclude that the Federal procedural due process violation asserted by the plaintiffs was not clearly established as of June, 2015.
3.
Substantive due process -- Federal Constitution
. The plaintiffs' Federal substantive due process claim also fails to provide a basis for relief. As discussed above, there is an initial question whether the plaintiffs can meet the threshold requirement to show a deprivation of a Federal liberty or property interest here. But perhaps more saliently, Federal substantive due process claims of this type require a showing of government conduct that is so "egregious" that it "shocks the conscience."
Sacramento
v.
Lewis
,
Lewis
and the other Federal cases establish that there is no substantive due process claim here. It is true that the allegations, if proved, arguably show a clear violation of Massachusetts law. The Massachusetts statute defines a "sex offender" subject to registration and notification as a person who resides, works, or goes to school "
in the [C]ommonwealth
" (emphasis supplied) -- yet the plaintiffs here did not live, work, or go to school in Massachusetts when SORB republished their photographs and criminal histories. G. L. c. 6, § 178C. Even assuming, however, that this was a clear violation of State law, the actions complained of do not approach the conduct that previously has been found to qualify as a Federal substantive due process violation. Contrast
Rochin
v.
California
,
*285 Because as a matter of law the individual defendants did not violate any "clearly established" Federal due process rights, the damages claims against them under the Federal Constitution and § 1983 must be dismissed. 11
*63
4.
Procedural due process -- Massachusetts Constitution
. As discussed above, unlike their Federal claim, the plaintiffs' procedural due process claim under the Massachusetts Declaration of Rights finds considerable support in the case law. See
Doe, Sex Offender Registry Bd. No. 941
v.
Sex Offender Registry Bd
.,
*286
As to the remedies for any such State constitutional violations, declaratory and injunctive relief are potentially available. The
*64
Supreme Judicial Court has long held that a person may sue the responsible State officer, in his or her
official
capacity, to enjoin deprivations of one's State constitutional rights, and that no immunity prevents such a suit. See
Lane
v.
Commonwealth
,
The plaintiffs' claim for damages for the alleged State constitutional due process violations stands on a different footing. One basis for a damages claim could be the Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H, 11I, but that statute requires a plaintiff to allege and show a deprivation by "threats, intimidation or coercion." The amended complaint, however, does not contain such a claim. 13
Instead, the amended complaint purports to assert its State constitutional claims directly under the Massachusetts Declaration of Rights, without reference to any statutory cause of action. No case, however, has yet recognized a claim for money damages, brought directly under the State Constitution against State officers for actions taken as State officers. We decline to recognize one here. The reason for this is soundly rooted in long-standing sovereign immunity law, which holds that the Commonwealth and its officers are generally immune from suits for damages for actions taken as State officers, unless the Legislature has acted expressly to abrogate that immunity. See
Irwin
v.
Commonwealth
,
In short, the Legislature has acted directly in this area, and has provided a damages remedy for some constitutional deprivations but not others. The amended complaint attempts to circumvent this legislative scheme by stating claims directly under the Massachusetts Declaration of Rights, but we are not willing to abrogate sovereign immunity by fashioning a judicial remedy where the Legislature did not. As we said in
Martino
v.
Hogan
,
5. Mootness . Finally, while the defendants have asserted that the plaintiffs' claims are moot, that is incorrect. Plainly, there is a live controversy here. Indeed, the motion to dismiss did not even address four counts of the amended complaint.
What the defendants apparently mean to contend is that there is no longer a basis for declaratory or injunctive relief, because SORB took down the "moved out of state" page more than two years ago. The Superior Court judge rejected this argument. Among other things, he noted that the plaintiffs have an interest in pursuing a declaration that the defendants violated the law in posting the plaintiffs' information, as such a declaration might provide a remedy to address the collateral consequences stemming from the defendants' conduct. We discern no error or abuse of discretion in that determination. The case is not moot, and the judge may take up the question of the appropriate declaratory or
*66
injunctive remedies, if any, as the case moves forward. See
LightLab Imaging, Inc
. v.
Axsun Techs., Inc
.,
In sum, the plaintiffs' § 1983 claims for damages must be dismissed as to defendants Hayden and Lewis. The damages claims brought directly under the Massachusetts Constitution also must be dismissed. That part of the order denying the motion to dismiss the damages claims is accordingly reversed. In all other respects, the order is affirmed.
So ordered .
The amended complaint contains allegations regarding another plaintiff (and proposed class representative) as well.
The plaintiffs challenge the application of the doctrine of present execution. Under one aspect of that doctrine, the government may immediately appeal an order denying a motion to dismiss where the motion was based on immunity from suit claimed by a State officer.
Brum
v.
Dartmouth
,
The plaintiffs' argument is at odds with
Kent
v.
Commonwealth
,
The motion relied only on Federal law, but requested the dismissal of all constitutional claims. Moreover, the briefing in the Superior Court, as well as the judge's decision, sometimes mix the Federal and State case law together. At oral argument we asked for, and subsequently received, supplemental briefing on two issues: (1) whether there are differences between the Federal and State constitutional rights asserted, and (2) whether there is a damages remedy available for deprivations of the State constitutional rights asserted.
The defendants' argument that the claims for declaratory and injunctive relief are moot is addressed at the end of this opinion.
Under
Paul
the loss of a government job might qualify as a sufficient property interest, but the loss of private employment would not. See
Paul
,
The word "liberty" in the due process clause also encompasses certain rights generally described as "privacy" rights. See
Paul
,
Recently, the Supreme Judicial Court decided two additional procedural due process cases in this area,
Doe, Sex Offender Registry Bd. No. 76819
v.
Sex Offender Registry Bd
.,
As the Supreme Judicial Court noted in
Doe
,
This conclusion leaves the status of the Federal claims as follows:
(1) The § 1983 claims for damages against the State officers in their individual capacities are dismissed, based upon their qualified immunity.
(2) The § 1983 claims against the State officers in their official capacities also must be dismissed, as State officers may not be sued for damages in their official capacities under § 1983. Will v. Michigan Dep't of State Police ,491 U.S. 58 , 71,109 S.Ct. 2304 ,105 L.Ed.2d 45 (1989). See O'Malley v. Sheriff of Worcester County ,415 Mass. 132 , 141,612 N.E.2d 641 (1993) ("Monetary damages against State officials are available only if they are sued in their individual or personal capacities under color of State law").
(3) The claims for declaratory and injunctive relief against the State officers, in both their official and individual capacities, remain. See O'Malley ,415 Mass. at 141 ,612 N.E.2d 641 ("If a State official is sued in his [or her] official capacity, then the plaintiffs' recovery is limited to equitable relief only"). See infra .
(4) The § 1983 claims against SORB must be dismissed. SORB is not a proper defendant under § 1983, as it is a State entity, see G. L. c. 6, § 178K, and State entities may not be sued under § 1983. See Will ,491 U.S. at 67, 70 ,109 S.Ct. 2304 ; Laubinger v. Department of Revenue ,41 Mass. App. Ct. 598 , 601-602,672 N.E.2d 554 (1996).
In their amended complaint, the plaintiffs also assert a substantive due process violation under the Massachusetts Declaration of Rights. However, the plaintiffs did not brief the Massachusetts law of substantive due process, and given our rulings on the State law claims we need not address the State substantive due process claim at this time.
In response to our request for supplemental briefing, the plaintiffs argued that the defendants' alleged actions could qualify as threats, intimidation, or coercion under the Massachusetts Civil Rights Act. However, the plaintiffs have not alleged a cause of action under the Massachusetts Civil Rights Act, and thus this argument is unavailing.
But cf.
Layne
v.
Superintendent, Mass. Correctional Inst., Cedar Junction
,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.