PHILIP BUNTING

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule
1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to
the parties and, therefore, may not fully address the facts of the case or the
panel's decisional rationale. Moreover, such decisions are not circulated to
the entire court and, therefore, represent only the views of the panel that
decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued
after February 25, 2008, may be cited for its persuasive value but, because of
the limitations noted above, not as binding precedent. See Chace v. Curran, 71
Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-76

PHILIP BUNTING, petitioner.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial on his G. L. c. 123A, § 9 (§ 9) petition

for release, the petitioner, Philip Bunting, appeals from a non-

unanimous jury verdict finding that he remained a sexually

dangerous person (SDP). His sole argument on appeal is that the

nonunanimous verdict violated his right to due process under the

Fourteenth Amendment to the United States Constitution. We

affirm.

Background. In 2009, the petitioner was adjudicated an SDP

and civilly committed to the Massachusetts Treatment Center.

Nine years later, in November 2018, he filed a petition for

release under G. L. c. 123A, § 9, and a trial on the matter

commenced in July 2022 in the Superior Court with a fifteen-

member jury.

The evidence at trial showed that the petitioner had, by

his own admission, engaged in at least eight acts of sexual

misconduct against both adult and child victims. Four of those
incidents resulted in convictions for indecent assault and

battery -- one against a child under fourteen and three against

persons aged fourteen years or older. In the opinion of the

Community Access Board members and one qualified examiner, the

petitioner continued to suffer from at least one mental

abnormality or personality disorder that rendered him likely to

reoffend if he were to be released into the community. One

qualified examiner and two expert witnesses for the petitioner

testified that, in their opinion, he was no longer sexually

dangerous.

At the conclusion of trial, the parties agreed that all

fifteen jurors could deliberate. The jury were instructed, as

per the petitioner's proposed instructions, that "[t]he decision

you reach in [the] jury room concerning whether or not [the

petitioner] is [a] sexually dangerous person or not sexually

dangerous person need not be unanimous," so long as five-sixths,

or thirteen out of fifteen, jurors agreed. Ultimately, the jury

returned a non-unanimous verdict, with thirteen jurors finding

that the petitioner remained sexually dangerous and two jurors

finding that he was no longer so.

Discussion. On appeal, the petitioner claims that it is a

violation of his right to due process under the Fourteenth

Amendment to allow a jury to return a non-unanimous verdict in a

§ 9 case. As previously mentioned, the petitioner argued the

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opposite in the trial court; thus, the issue is waived, and we

review only to determine whether any error created a substantial

risk of a miscarriage of justice. R.B., petitioner, 479 Mass.

712, 718 (2018).

When the Commonwealth initially seeks to civilly commit

someone as an SDP, it must follow the procedures outlined in

G. L. c. 123A, § 14, which requires a jury (when one is

demanded), in order to adjudicate the person an SDP, to find

"unanimously and beyond a reasonable doubt" that the

Commonwealth has met its burden. G. L. c. 123A, § 14 (d).

After an initial adjudication, petitions for release are

governed by § 9 of the same chapter, which provides only that

"[i]f a jury trial is demanded, the matter shall proceed

according to the practice of trial in civil cases in the

superior court." Case law confirms that in § 9 petitions, as in

any other civil action governed by G. L. c. 234A, § 68B, only

five-sixths of the jury must agree in order to return a verdict.

See Sheridan, petitioner, 422 Mass. 776, 777 (1996) (discussing

predecessor statute, G. L. c. 234, § 34A).

In deciding that the five-sixths requirement applies to § 9

petitions, the Supreme Judicial Court, using the due process

framework provided in Mathews v. Eldridge, 424 U.S. 319 (1976),

directly considered whether a unanimous jury verdict was

necessary to protect petitioners' fundamental liberty interest

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and concluded that unanimity was not required. See Sheridan,

422 Mass. at 777-780. Indeed, the court has repeatedly held

that neither the Federal nor the State constitution affords

petitioners a right to trial by jury at all in G. L. c. 123A

proceedings; it is only the statute itself which provides and

defines the right. See Commonwealth v. Barboza, 387 Mass. 105,

113, cert. denied, 459 U.S. 1020 (1982). See also LeSage,

petitioner, 488 Mass. 175, 184 (2021); Gagnon, petitioner, 416

Mass. 775, 778 (1994). Cf. Commonwealth v. G.F., 479 Mass. 180,

202 (2018), quoting Sheridan, supra at 780 (declining, in

absence of "compelling constitutional basis," to override

statutory scheme requiring unanimity under § 14 but not § 9).

Keeping in mind these precedents, and that "we have no power to

alter, overrule or decline to follow the holding of cases the

Supreme Judicial Court has decided," we reject the petitioner's

arguments. Ready, petitioner, 63 Mass. App. Ct. 171, 180

(2005), quoting Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485

(2003).

1. Right to a unanimous jury verdict. The petitioner's

first argument is that the Supreme Court's decision in Ramos v.

Louisiana, 140 S. Ct. 1390 (2020), gives him a substantive right

to a unanimous jury, and that § 9's non-unanimous jury provision

infringes on that right. We are unpersuaded. Ramos established

that the Sixth Amendment, as incorporated in and applicable to

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the States under the Fourteenth Amendment, requires a unanimous

verdict to support a conviction of a serious criminal offense in

State court, as it does in Federal court. Id. at 1397.

However, the Sixth Amendment right to a trial by jury does not

extend to SDP proceedings under c. 123A, which are civil in

nature. See Barboza, 387 Mass. at 112. Thus, the holding in

Ramos has no direct bearing on whether civil commitment

proceedings must be decided by a unanimous jury. See Interest

of T.B., 641 S.W.3d 535, 539 (Tex. App. 2022) ("Ramos is limited

to verdicts in criminal cases, and we decline to extend its

holding to civil commitment proceedings").

Nevertheless, the petitioner attempts to reframe Ramos as

holding that jury unanimity, like the right to notice and an

opportunity to be heard by an impartial tribunal, is now an

element of procedural due process that must be met when the

stakes are sufficiently serious, regardless of the context in

which the case arises. Given that Ramos specifically bases its

holding on the language of the Sixth Amendment, which guarantees

a "trial by an impartial jury" during criminal proceedings, see

Ramos, 140 S. Ct. at 1396, we see no support for the

petitioner's expansive reading and decline to extend Ramos

beyond the Sixth Amendment criminal context. See generally

Kansas v. Hendricks, 521 U.S. 346, 370 (1997) (explaining that

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civil commitment proceedings do not trigger constitutional

protections that pertain exclusively to penal statutes).

2. Substantive due process. Next, the petitioner claims

that, because the jury verdict provided for in § 9 ultimately

infringes on his fundamental liberty interest in freedom from

physical restraint, the non-unanimity requirement should be

subject to strict scrutiny. Yet the petitioner fails to explain

how the five-sixths provision works any such infringement.

Certainly, the petitioner's continued civil commitment is

an infringement upon his liberty interest that must be

adequately justified and narrowly tailored, see LeSage, 488

Mass. at 181, but the particular verdict provision that the

petitioner challenges is just as likely to result in his release

as his continued confinement. In G.F., 479 Mass. at 201-202,

the court confirmed that the verdict provisions under c. 123A

are symmetrical; thus, although the Commonwealth must obtain

only five-sixths of the jurors' votes to continue an SDP's

commitment, the same is true for an SDP's bid to be released.

Importantly, § 9 hearings are not zero-sum proceedings in which

the Commonwealth's failure to obtain a verdict in its favor

automatically results in a petitioner's release. See, e.g.,

LeSage, supra at 177 (hung jury during § 9 proceeding resulted

in mistrial). Rather, to be released, a petitioner must obtain

a verdict in his favor. Allowing five-sixths of the jury to

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return a verdict thus may work to a petitioner's benefit as well

as his detriment. For example, the defendant in G.F. sought to

have the five-sixths provision of § 9 apply at his § 14 hearing

after several mistrials because it would have been easier to

obtain a verdict in his favor if unanimity were not required.

See G.F., supra at 188. In sum, the five-sixths provision for

obtaining a verdict under § 9, as compared to § 14, advantages

and disadvantages both parties equally, and the provision does

not, in and of itself, infringe on the petitioner's liberty

interest.

3. Arbitrariness. Finally, the petitioner asserts that,

even if strict scrutiny is not warranted, the statute is still

unconstitutional because the Commonwealth cannot demonstrate

that the five-sixths provision of § 9 is not arbitrary.

However, this question was effectively resolved in G.F., where

the court concluded that the five-sixths provision in § 9 is

rationally based on the fact that "[a]n individual who petitions

for release under [§ 9], unlike a person tried under [§ 14], has

had access to at least one year of sex offender treatment," and

therefore is potentially more prepared to reenter society.

G.F., 479 Mass. at 202. If the distinction between § 9 and § 14

has a rational basis, it cannot be arbitrary. See, e.g.,

Goodridge v. Department of Pub. Health, 440 Mass. 309, 329-330

(2003) (due process requirement that state action have rational

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basis and not be arbitrary); id. at 331 (referring to "rational

basis test for . . . due process"). Thus, we conclude that the

agreement of only five-sixths of the jurors is constitutionally

sufficient to render a verdict in § 9 cases.

The petitioner also argues that the five-sixths provision

is invalid because "the way the law assesses whether the

Commonwealth met its burden is to have a verdict rendered by a

unanimous jury." This assertion simply assumes the desired

conclusion, that the Commonwealth's burden is not only to prove

beyond a reasonable doubt that the petitioner remains an SDP but

also to prove it to every juror. Yet § 9, as interpreted in

Sheridan, does not require such unanimity, and neither the Sixth

Amendment nor the Fourteenth Amendment's due process clause

invalidates that aspect of § 9. See Sheridan, 422 Mass. at 780.

In short, although the petitioner asserts that "the law"

requires a unanimous jury in § 9 proceedings, he has not

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identified any statute, constitutional provision, or other

source of law that creates such a requirement.

Judgment affirmed.

By the Court (Sacks, Singh &
Walsh, JJ. 1),

Assistant Clerk

Entered: April 10, 2024.

1 The panelists are listed in order of seniority.

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