Doe, SORB No. 474362 v. Sex Offender Registry Board

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17-P-985 Appeals Court

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 474362, & another1 vs.
SEX OFFENDER REGISTRY BOARD & others.2

No. 17-P-985.

Essex. April 10, 2018. - September 19, 2018.

Present: Green, C.J., Desmond, & Englander, JJ.

Sex Offender Registration and Community Notification Act.
Constitutional Law, Sex offender, Privacy. Due Process of
Law, Sex offender, Substantive rights, Class action.
Internet. Immunity from Suit. Declaratory Relief.
Damages, Privacy. Practice, Civil, Sex offender, Class
action, Declaratory proceeding, Injunctive relief, Motion
to dismiss, Moot case. Moot Question.

Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on September 10, 2015.

After transfer to the Superior Court Department, a motion
to dismiss was heard by Peter M. Lauriat, J.

1 John Doe, Sex Offender Registry Board No. 106929,
individually and on behalf of all others similarly situated.

2 Kevin Hayden, individually and in his capacity as chair of
the Sex Offender Registry Board, and Laurie Myers, individually
and in her capacity as executive director of the Sex Offender
Registry Board.
2

Carrie Benedon, Assistant Attorney General, for the
defendants.
Kate A. Frame for the plaintiffs.

ENGLANDER, J. 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), 365 Mass. 754 (1974), we take the well-

pleaded facts from the plaintiffs' "amended complaint for
3

declaratory and injunctive relief and for damages" (amended

complaint). See Golchin v. Liberty Mut. Ins. Co., 460 Mass.

222, 223 (2011).

The structure of the sex offender registration statute has

been frequently described. See, e.g., Moe v. Sex Offender

Registry Bd., 467 Mass. 598, 600-603 (2014). The statute

requires a sex offender to provide certain personal information,

including name and current address, to the board. G. L. c. 6,

§ 178E. The board classifies sex offenders within a system of

three different levels based on risk of reoffense and degree of

dangerousness to the public. G. L. c. 6, § 178K. A sex

offender's registration level has consequences for public access

to that offender's information. Level one offenders are

entitled to greater information privacy. See G. L. c. 6,

§ 178D. Level two and three sex offenders, by contrast, have

their information published in an online database available to

the public. See id. "Sex offender" is a defined term, and for

present purposes it is relevant that it is defined to encompass

persons who live, work, or attend school in Massachusetts. See

G. L. c. 6, § 178C.

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
4

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 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

3 The amended complaint contains allegations regarding
another plaintiff (and proposed class representative) as well.
5

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 42

U.S.C. § 1983 (2012), the Federal statute that provides remedies

for deprivations of Federal constitutional rights by State

actors. The thrust of these due process claims is that the

publication of the plaintiffs' identifying and criminal

information constituted an impairment of their fundamental

liberty and privacy interests, and was done without notice or an

opportunity to be heard, and in clear violation of the
6

Massachusetts sex offender registration laws. In addition, the

amended complaint alleges violations of various State laws,

including the right to privacy.

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 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 from a damages claim because the constitutional

rights the defendants allegedly violated were not "clearly

established." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

The motion to dismiss also argues that the requests for

declaratory and injunctive relief are moot, because the

allegedly offending portion of the Web site has been taken down.

Notably, the motion is a partial motion that does not address

several counts of the complaint -- for example, it does not

touch at all on the privacy claim under Massachusetts law.
7

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.

4 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, 428 Mass. 684, 688
(1999). The plaintiffs claim, however, that the doctrine does
not apply here because the defendants did not move to dismiss
all the counts against them, and thus the case will go forward
against the individual defendants regardless of the result on
this appeal.

The plaintiffs' argument is at odds with Kent v.
Commonwealth, 437 Mass. 312, 316-317 (2002). Kent held that the
doctrine of present execution allowed for an immediate right of
appeal where, as here, the defendants have asserted immunity,
even if the claimed immunity would not have disposed of the
entire case. Id. ("[T]he Commonwealth's right to interlocutory
review of the denial of its motion to dismiss based on immunity
is not dependent on whether allowance of the motion would
8

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, 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

completely end the litigation"). The appeal, thus, is properly
before us.

5 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.
9

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, 424 U.S. 319,

333 (1976) ("The fundamental requirement of due process is the

opportunity to be heard 'at a meaningful time and in a

meaningful manner'" [citation omitted]). The defendants counter

that the plaintiffs did receive due process, because the

plaintiffs received notice and an opportunity to be heard when

6 The defendants' argument that the claims for declaratory
and injunctive relief are moot is addressed at the end of this
opinion.
10

they first were classified and registered, at a time when they

were present in Massachusetts. The defendants contend that

because the plaintiffs received due process at the time of

registration and classification, no further process was due

before the plaintiffs' names and information were republished as

"moved out of state."

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,

607 F.3d 864, 886 (1st Cir. 2010), cert. denied sub nom.

Feliciano v. Molina, 562 U.S. 1257 (2011) (first step in

procedural due process analysis "asks whether there exists a

liberty or property interest which has been interfered with by

the State"); LaChance v. Commissioner of Correction, 463 Mass.

767, 773 (2012) (similar proposition). Here the plaintiffs

argue that the interests at stake are their reputations and

their privacy -- they assert a right not to have their

identifying information published, along with their criminal

histories, by the Commonwealth. The United States Supreme Court

addressed a similar allegation in Paul v. Davis, 424 U.S. 693,

697 (1976), where police chiefs in Kentucky had published the

plaintiff's name and photograph on a flyer, under the heading

"Active Shoplifters." The Supreme Court rejected the
11

plaintiff's procedural due process claim in Paul, ruling as a

matter of law that the State-imposed injury to reputation at

issue could not qualify as a deprivation of "liberty" or

"property" unless the plaintiff could also show loss of "a right

or status previously recognized by [S]tate law" -- such as, for

example, loss of government employment. Id. at 711. The Court

held that absent such an additional injury the plaintiff might

have a claim under State defamation law, but he did not have a §

1983 claim for deprivation of his constitutional rights. See

id. at 710-712.

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 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., 426

7 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, 424 U.S. at 706, 711; Cutshall v.
12

Mass. 136, 143 (1997) ("Under the Fourteenth Amendment a

person's reputation is not a protected liberty or property

interest unless the circumstances involve something more, such

as a change in the person's rights or status protected by State

law").

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,

457 U.S. at 818-819; LaChance, 463 Mass. at 777.

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]

Sundquist, 193 F.3d 466, 479 (6th Cir. 1999), cert. denied, 529
U.S. 1053 (2000).

8 The word "liberty" in the due process clause also
encompasses certain rights generally described as "privacy"
rights. See Paul, 424 U.S. at 712-713. The Court in Paul
separately rejected the argument that the reputational interests
at stake qualified as fundamental "privacy" interests protected
by the Federal due process clause. Id.
13

sufficiently definite so that a reasonable official would

appreciate that the conduct in question was unlawful'" (citation

omitted). LaChance, 463 Mass. at 777. See Ashcroft v. al-Kidd,

563 U.S. 731, 741 (2011). The plaintiffs can point to no case

establishing such sufficiently definite contours to the Federal

procedural due process right they assert, particularly in light

of the long-standing interpretation of § 1983 in Paul.

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,

193 F.3d 466, 478-482 (6th Cir. 1999), cert. denied, 529 U.S.

1053 (2000), for example, the United States Court of Appeals for

the Sixth Circuit rejected an argument that the public

notification provisions of Tennessee's sex offender registry law

violated procedural due process. The court relied on Paul to

conclude that no fundamental liberty or privacy rights were

violated by the notification provisions. Id. at 479-480, 482.

See Doe v. Tandeske, 361 F.3d 594, 597 (9th Cir.), cert. denied,

543 U.S. 817 (2004) (no right "to be free from the registration

and notification requirements" of Alaska's sex offender registry

statute); A.A. v. New Jersey, 341 F.3d 206, 211-214 (3d Cir.

2003) (New Jersey's law providing for notification, including on

Internet, of sex offender's home address does not violate
14

fundamental privacy rights). But cf. E.B. v. Verniero, 119 F.3d

1077, 1105-1111 (3d Cir. 1997) (notification provisions of New

Jersey's "Megan's Law" implicated liberty interests protected by

Federal due process).

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, 426 Mass. at 144 (finding

violation of procedural due process under Massachusetts

Declaration of Rights; court "need not pass on the plaintiff's

Federal procedural due process claim"); Doe v. Attorney Gen.,

430 Mass. 155, 163 (1999) (finding violation of State procedural

due process; stating, "We need not pass on Doe's Federal

procedural due process claim"); Doe, Sex Offender Registry Bd.

No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 784-785 &

n.9, 793 (2008) (finding violation of due process rights under

Massachusetts Declaration of Rights without addressing Federal

due process); Moe, 467 Mass. at 599, 615-616 (finding violation

of due process rights under Massachusetts Declaration of Rights
15

without addressing Federal due process); Doe, Sex Offender

Registry Bd. No. 29481 v. Sex Offender Registry Bd., 84 Mass.

App. Ct. 537, 539-543 (2013) (finding due process violation

based on Massachusetts Declaration of Rights without addressing

Federal due process).9 Indeed, the decisions of our appellate

courts that discuss Paul in the context of the sex offender

registration law acknowledge that procedural due process rights

are more limited under Federal law. See Doe, 426 Mass. at 143-

144; Opinion of the Justices, 423 Mass. 1201, 1229-1231 (1996).10

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.

9 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.,
480 Mass. 212 (2018), and Noe, Sex Offender Registry Bd. No.
5340 v. Sex Offender Registry Bd., 480 Mass. 195 (2018). As
with the cases cited supra, we understand the holdings in these
cases also to be based upon the Massachusetts Declaration of
Rights. In any event, these cases, as well as the case they
principally rely upon, Doe, Sex Offender Registry Bd. No. 380316
v. Sex Offender Registry Bd., 473 Mass. 297 (2015), all were
decided after the Web site section at issue was taken down in
September of 2015.

10As the Supreme Judicial Court noted in Doe, 426 Mass. at
144 n.8, there have been inconsistent statements in the case law
as to whether the due process protections of the Massachusetts
Constitution are identical to Federal protections. As discussed
herein, however, it is clear that in connection with the
Massachusetts sex offender registration statute, the Federal and
State provisions have not been construed identically.
16

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, 523 U.S. 833, 846 (1998). In

Lewis, for example, the United States Supreme Court rejected a

substantive due process claim against a police officer who had

engaged in a high speed chase of a suspect, where the chase was

allegedly conducted with deliberate indifference to life, and

where the chase resulted in the death of the plaintiff's

decedent. Id. at 836-838, 854-855. The Court held as a matter

of law that such conduct did not meet the "shocks the

conscience" requirement for a substantive due process claim.

Id. at 854. See González-Fuentes, 607 F.3d at 880-886

(reimprisonment of participants released on electronic

supervision program does not rise to level of substantive due

process violation); J.R. v. Gloria, 593 F.3d 73, 76, 79-80 (1st

Cir. 2010) (finding physical and sexual abuse of foster children

resulting from defendants' failure to act does not rise to level
17

of substantive due process violation, noting that deliberate

indifference does not per se shock the conscience).

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, 342 U.S.

165, 172 (1952) ("Illegally breaking into the privacy of the

petitioner, [struggling] to open his mouth and remove what was

there, [and forcing] extraction of his stomach's contents"

violated due process clause of Fourteenth Amendment to the

United States Constitution); McIntyre v. United States, 336 F.

Supp. 2d 87, 109 (D. Mass. 2004) (finding purposeful disclosure

of confidential informant, knowing that revealing information

could result in informant's death, to be "conscience-shocking").

Certainly it was not clearly established, in 2015, that SORB's
18

decision to publish the plaintiffs' sex offender information

violates Federal substantive due process.

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

4. Procedural due process -- Massachusetts Constitution.

As discussed above, unlike their Federal claim, the plaintiffs'

procedural due process claim under the Massachusetts Declaration

11This 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
(1989). See O'Malley v. Sheriff of Worcester County, 415 Mass.
132, 141 (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
("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; Laubinger v. Department
of Revenue, 41 Mass. App. Ct. 598, 601-602 (1996).
19

of Rights finds considerable support in the case law. See Doe,

Sex Offender Registry Bd. No. 941 v. Sex Offender Registry Bd.,

460 Mass. 336, 338 (2011), citing Doe, Sex Offender Registry Bd.

No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 100 (1998);

Coe v. Sex Offender Registry Bd., 442 Mass. 250, 257-258 (2004).

These Massachusetts cases make clear that under Massachusetts

law the notification provisions of the sex offender registry

statute do implicate fundamental liberty and privacy rights,

thereby triggering due process protections. See Doe, Sex

Offender Registry Bd. No. 941, 460 Mass. at 338 ("'Sex offenders

have a constitutionally protected liberty and privacy interest

in avoiding registration and public dissemination of

registration information' that arises from their classification,

and therefore, they are entitled to procedural due process

. . ." [citation omitted]); Doe, 426 Mass. at 143 ("The

plaintiff [sex offender] has sufficient liberty and privacy

interests constitutionally protected by art. 12 that he is

entitled to procedural due process before he may be required to

register and before information may properly be publicly

disclosed about him"). See also Poe v. Sex Offender Registry

Bd., 456 Mass. 801, 813 (2010); Doe, Sex Offender Registry Bd.

No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 775

(2006); Doe, Sex Offender Registry Bd. No. 972, supra; Doe, Sex

Offender Registry Bd. No. 27914 v. Sex Offender Registry Bd., 81
20

Mass. App. Ct. 610, 614 (2012). Furthermore, the plaintiffs'

State law due process allegations are sufficient to survive the

motion to dismiss, inasmuch as they allege that the plaintiffs

did not receive notice or an opportunity to be heard before SORB

republished their information. We leave the final resolution of

this claim to further factual development.12

As to the remedies for any such State constitutional

violations, declaratory and injunctive relief are potentially

available. The 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, 401 Mass. 549, 552 (1988),

citing Ex parte Young, 209 U.S. 123, 159-160 (1908) ("We can

think of no basis for recognizing some form of governmental

immunity that would prevent issuance of an injunction against an

ongoing wrong committed systematically and intentionally by a

governmental agency for the continuing benefit of the

Commonwealth"); Commonwealth v. Norman, 249 Mass. 123, 130-131

(1924) ("A suit in equity to restrain a State officer from

12In 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.
21

executing an unconstitutional statute to the irreparable damage

of the plaintiff's rights is not a suit against the State but

against individuals acting outside the zone of their lawful

authority and hence not protected by any immunity").

Accordingly, the individual defendants are properly sued in

their official capacities for declaratory or injunctive relief

under State law.

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

13In 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.
22

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, 465 Mass. 834, 840-841 (2013) ("Where

the Commonwealth does choose to waive its sovereign immunity, it

can be sued 'only in the manner and to the extent expressed [by

the] statute'" [citation omitted]); Sullivan v. Chief Justice

for Admin. & Mgt. of the Trial Court, 448 Mass. 15, 31 (2006)

("the Commonwealth cannot be sued unless there has been a waiver

of its sovereign immunity");. Here the Legislature has acted to

abrogate sovereign immunity in suits for deprivations of

constitutional rights, but only in part; as noted above, the

damages remedy under the Massachusetts Civil Rights Act is only

available upon proof of threats, intimidation, or coercion. See

Lecrenski Bros. v. Johnson, 312 F. Supp. 2d 117, 122 (D. Mass.

2004); Breault v. Chairman of the Bd. of Fire Comm'rs of

Springfield, 401 Mass. 26, 36 (1987), cert. denied sub nom.

Forastiere v. Breault, 485 U.S. 906 (1988).

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
23

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, 37 Mass. App. Ct. 710, 720 (1994), we believe that the

Civil Rights Act "occup[ies] the field" in this area. The

plaintiffs cannot recover damages on their claims for

deprivation of due process brought directly under the State

Constitution.14

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

14But cf. Layne v. Superintendent, Mass. Correctional
Inst., Cedar Junction, 406 Mass. 156, 159-161 (1989) (discussing
possible availability of damages relief under art. 114 of
Amendments to Massachusetts Constitution).
24

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 injunctive remedies, if any, as the

case moves forward. See LightLab Imaging, Inc. v. Axsun Techs.,

Inc., 469 Mass. 181, 194 (2014) ("Trial judges have broad

discretion to grant or deny injunctive relief"); Boston Safe

Deposit & Trust Co. v. Dean, 361 Mass. 244, 248 (1972) (trial

judge has discretion to fashion appropriate declaratory

relief);.

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.