803 Mass. Reg. 1.16 : — DEPARTMENT OF CRIMINAL JUSTICE INFORMATION SERVICESSex Offender Registry Board, Registration, Classification and Dissemination — Motions

(1) General Provisions. All motions, unless made during the classification hearing, shall be in writing. All motions and rulings will be included in the administrative record of the hearing. The Hearing Examiner shall have the discretion to rule on any motion at the time it is made or to reserve ruling until a later time, including as part of the final decision issued pursuant to 803 CMR 1.20.

Motions to reschedule hearings are addressed exclusively in 803 CMR 1.11.

(2) Written Motions.

(a) Grounds and Affidavit. All written motions shall state the specific grounds for the motion and shall set forth the action or order that is sought. Affidavits and other documents in support of the motion must be attached to the motion upon filing.

(b) Oral Argument. The Hearing Examiner may hear oral argument on motions at the hearing.

(c) Timely Filing. Parties shall file all written motions no later than ten calendar days prior to the scheduled hearing date.

(d) Service and Notice. A copy of any motion, including all supporting affidavits and documents, must be served on the other party at the same time the originals are filed with the Board's Hearings Unit.

(e) Opposition to Motion. Oppositions to any motion may be submitted in writing or argued orally at the hearing.

(f) Record. All written motions and rulings will be included in the administrative record of the hearing.

(3) Oral Motions. If a motion is made orally at the hearing, the Hearing Examiner may request that the motion and any opposition be reduced to writing.

(4) Motion for Expert Funds. An offender who has been deemed indigent pursuant to 803 CMR 1.09 may file a written motion for expert funds at least ten calendar days before the scheduled hearing.

(a) The written motion for expert funds must:

1. identify a condition or circumstance special to the sex offender and explain how that condition is connected to his or her risk of reoffense or level of dangerousness;

2. identify the particular type of Expert Witness who would provide testimony to assist the Hearing Examiner in his or her understanding and analysis; and

3. include supporting documentation or affidavits verifying the specific condition or circumstance that the offender suffers from.

Any motion that fails to meet the criteria in 803 CMR 1.16(4) may be denied prior to the hearing.

(b) Motions for funds for the purpose of an expert to provide a general opinion on the sex offender's risk to reoffend and degree of dangerousness will be deemed insufficient and denied prior to the hearing.

(c) When a motion for expert funds is allowed, the presiding Hearing Examiner shall issue an order requiring the sex offender to provide an affidavit from the proposed Expert Witness. At minimum, the affidavit must include the following:

1. identification of the expert's area of expertise, including a copy of the expert's curriculum vitae;

2. summary of the anticipated opinion and testimony of the Expert Witness paying particular attention to the condition or circumstance identified by the sex offender in his or her motion for expert funds with an explanation as to how that condition or circumstance correlates to the sex offender's risk to reoffend or degree of dangerousness; and

3. the Expert Witness's hourly fee and estimated number of hours that the Expert Witness expects will be required to conduct an evaluation, prepare a written report to be admitted as evidence at the hearing, and testify at the hearing.

(d) As part of the order allowing the motion for expert funds, the Hearing Examiner shall include deadlines for:

1. the sex offender to submit to the Board the Expert Witness's affidavit and a copy of the expert's written report that will be submitted as evidence at the hearing; and

2. scheduling the hearing for the expert testimony.

(e) If the sex offender fails to comply with the Hearing Examiner's order, the Hearing Examiner may withdraw the order and deny the motion for expert funds.

(5) Motion to Reopen the Record. At any time after the close of evidence and prior to the issuance of the final decision pursuant to 803 CMR 1.20, a party may move to reopen the record to submit new evidence.

(a) For purposes of this motion, "new evidence" consists of newly discovered evidence which, by due diligence, could not have been discovered prior to the close of the evidence at the hearing by the party seeking to offer it.

(b) The moving party shall include a copy of the newly discovered evidence and provide the reason(s) explaining why the evidence was not discovered prior to the close of evidence at the hearing and how the evidence is relevant to the Hearing Examiner's analysis.

(c) The non-moving party shall have ten calendar days to oppose the motion.

(d) The presiding Hearing Examiner may rule on this motion as part of the written final classification decision.

(6) Motion for Reconsideration. After the final decision has been issued pursuant to 803 CMR 1.20 and before the expiration of the time for filing a complaint for judicial review pursuant to M.G.L. c. 30A, a party may move for reconsideration. The motion must clearly identify at least one of the following criteria:

(a) a clerical or mechanical error in the final decision;

(b) a significant factor that the Hearing Examiner overlooked in making the final classification level; or

(c) a material change in the sex offender's circumstances that was not foreseeable at the time of the hearing.

A properly filed motion for reconsideration shall be deemed a motion for rehearing pursuant to M.G.L. c. 30A, § 14(1) for the purposes of tolling the time to file a complaint for judicial review. The filing of this motion will not alter the final classification level or stay dissemination of registration information.

803 CMR 1.16

Amended by Mass Register Issue 1305, eff. 1/29/2016.