March 3, 2011
Commonwealth v. Maker
Docket No. 10761
Supreme Judicial Court
Regulations, Sex Offender Registration
Facts: The defendant, a level three sex offender, began living in a homeless shelter after his release from incarceration. He submitted his intended future address before release in compliance with statutory requirement G.L. c. 6 §178E(a), but did not register pursuant to regulation 803 Code Mass. Regs § 1.04(7)(b) promulgated by the Sex Offender Registry Board, which requires sex offenders to register in person at a police department within two days after release. He pled guilty to failure to register pursuant to that regulation. The trial court judge reported questions of law at the request of the Commonwealth, and the SJC transferred the case on its own motion.
Statutory Scheme: G.L. c. 6 §178C-178P subjects sex offenders to a classification, registration, and tracking scheme. Offenders are required to register with the board, provide home and work addresses, and are expected to update their information regularly. Level 1 offenders may verify information by mail, while level 2 or 3 offenders must do so in person at the local police department annually, or every 45 days if living in a homeless shelter. The statute also created the Sex Offender Registry Board and gave it the power to, among other things, promulgate rules and regulations to implement the statute.
Issue: Did the Sex Offender Registry Board exceed the scope of its power in promulgating 803 Code Mass. Regs § 1.04(7)(b)?
Yes. While regulations are generally entitled to a presumption of validity, they cannot be deemed valid when, as here, nothing in the statute authorizes the action taken. G.L. c. 6 §178C-178P neither expressly nor impliedly empowers the Bard to modify or supplement the registration requirements. The Board’s general power to promulgate rules and regulations is not unlimited and does not extend this far. The Board’s argument that this regulation fills a gap regarding information about offenders recently released from incarceration is unpersuasive as such offenders are already required to provide their future addresses and update the Board if they move. The regulation imposes an additional obligation, does not elicit information or provide security that the statutory requirements do not alone provide, and exceeds the Board’s authority. 803 Code Mass. Regs § 1.04(7)(b) is invalid and the defendant’s conviction vacated.
-- Prepared by RAA
-- Prepared by RAA
