Hearing examiner’s Facebook comments raised questions of bias

In the case of Doe v. Sex Offender Registry Board, the Appeals Court of Massachusetts, Suffolk, reversed an order requiring the plaintiff to register as a level three sex offender, due to "significant doubt" that his hearing was conducted by a fair, unbiased, and impartial hearing examiner after viewing various comments that were made by the hearing examiner on the Internet on a public "Facebook" social networking web page.

Procedural history

In 1997, the plaintiff entered a guilty plea to several sex crimes and was sentenced to prison and a term of probation. In 2008, the Sex Offender Registry Board ordered the plaintiff to register as a level three (high risk) sex offender. The plaintiff challenged the classification recommended by the board and requested a hearing. The hearing was conducted on November 20, 2008, by a hearing examiner for the board, who subsequently issued a decision on January 8, 2009, upholding the board's recommendation.

The plaintiff challenged the ruling by filed a complaint for judicial review in the Superior Court, but the court ultimately issued a ruling in 2011 which upheld the level three classification. The plaintiff subsequently filed a motion in the Superior Court, asking the court to vacate the decision on the basis of newly discovered evidence, claiming proof of bias on the part of the hearing examiner, as shown in the Facebook postings. The Superior Court determined that the plaintiff had received a fair hearing and denied the motion, finding that the hearing examiner's decision itself contained no evidence of bias.

Facebook postings

The hearing examiner's Internet postings spanned approximately six months and occurred during the time when the plaintiff's hearing was held and the hearing examiner's decision was issued. A few examples of the Facebook comments included:

  • It's always awkward when I see one of my pervs in the parking lot after a hearing.
  • He [the hearing examiner] "likes taking motions under advisement, but gets greater satisfaction denying them.
  • Well, they have the convicts cutting down trees, so it might be safer in my car.
  • I have a police report written entirely in Spanish!!!

The Appeals Court's ruling

The Appeals Court found a violation of due process had occurred and reversed the decision of the Superior Court. The Appeals Court determined that, when the hearing examiner's comments are viewed cumulatively, it was clear that the comments related to the hearing examiner's official duties on the board and that they were "unquestionably inappropriate, unprofessional, troubling, and suggestive of a prejudicial predisposition."

The court cited a ruling from the Massachusetts Supreme Judicial Court holding that in cases involving registration of sex offenders due process safeguards are required for the protection of the constitutional liberty and privacy interests of the offender, which include a right to a hearing before an impartial hearing examiner. The Appeals Court also cited provisions of the Massachusetts Declaration of Rights, which protect an individual's right to a fair hearing, and an impartial adjudication of claims. Like judges, said the Appeals Court, hearing officers must be held to high standards of impartiality, and even the appearance of partiality must be avoided, in order to preserve public confidence in the judicial process.

The Appeals Court remanded the plaintiff's case back to the board for a new classification hearing.

Individuals seeking to challenge their sex offender registry status are urged to seek the advice and assistance of a competent attorney experienced in such matters, to ensure that their rights are protected.