Mass. high court says ban on sex offenders living in nursing homes is unconstitutional

By Kay Lazar and John R. Ellement, Globe Staff

A state law that made it illegal for dangerous sex offenders to live in a nursing home is unconstitutional, the Massachusetts Supreme Judicial Court ruled today.

In a unanimous ruling, the high court said that the rights of the offender, known only as “John Doe,” were violated when Boston police invoked the law in 2010 and told him he had to leave the nursing home where he was living.

Attorneys familiar with the case said the ruling technically applies only to John Doe, but advocates for aging sex offenders in need of long-term care said they hope the ruling will sway nursing home administrators to let Level 3 offenders into their facilities.

The court said it had previously ruled that it was constitutionally permissible for people to lose protections, such as privacy rights, after being classified as Level 3 offenders -- those considered most likely to reoffend -- by the Sex Offender Registry Board.

But the court said the state law barring Level 3 sex offenders from nursing homes goes too far under the state’s Declaration of Rights -- because it transforms a person’s right to choose where to live into a crime.

“Those who have been released from incarceration … are free to live where they choose and to move freely within and without the Commonwealth,’’ the court said in an opinion written by Justice Fernande R.V. Duffly.

“A restriction on the right to choose where one lives is a further imposition on the liberty interests protected by our State Constitution,’’ the opinion said.

Ryan M. Schiff, Doe’s attorney, said the ruling technically applies only to Doe. But he said he is hopeful nursing homes will now act as if the law is no longer on the books.

Before today’s ruling, he said, many Level 3 sex offenders had been routinely denied admittance to nursing homes by administrators who pointed to the law as the reason for their decision.

“This case will apply to a lot more people than just John Doe,’’ said Schiff, an attorney with the state Committee for Public Counsel Services. “It means it’s going to be unconstitutional for more than just this one person, but for anybody in similar circumstances to John Doe.’’

Schiff added, “I’m hoping that now people are going to be able to get into these facilities, to get the care they need without fear of being prosecuted under an unconstitutional statute. It’s an aging population and there is a real acute need for this care.’’

But Attorney General Martha Coakley, whose office appeared before the SJC as the lawyer for the state, said in a statement that the decision is narrowly drawn. She suggested it will have limited impact.

“We believe the current law banning level-three sex offenders from nursing homes can remain an important tool for protecting the homes’ residents, visiting children and other members of the public,’’ Coakley said in a statement.

She noted that because the court said it was applying its thinking only to John Doe’s case, the state “may legitimately prevent offenders who are shown to present a risk of harm to their elderly neighbors from living with this vulnerable population.’’

The SJC decision was focused solely on the ban on Level 3 offenders in nursing homes and did not address the potential conflict created by the court’s ruling and municipal ordinances that prohibit sex offenders from living with 1,000 feet of schools.