J. Taylor v. The PSP of the Commonwealth of PA , 2016 Pa. Commw. LEXIS 49 ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeremy Taylor, :
:
Petitioner :
:
v. : No. 532 M.D. 2014
:
The Pennsylvania State Police of the : Argued: September 16, 2015
Commonwealth of Pennsylvania, :
:
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge1
HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MARY HANNAH LEAVITT, Judge2
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION BY
JUDGE COHN JUBELIRER3 FILED: January 12, 2016
Before this Court in our original jurisdiction are the Preliminary Objections
(POs) in the nature of a demurrer of the Pennsylvania State Police (PSP) to Jeremy
1
This case was assigned to the opinion writer before December 31, 2015, when President
Judge Pellegrini assumed the status of senior judge.
2
This case was assigned to the opinion writer before January 4, 2016, when Judge
Leavitt became President Judge.
3
This matter was reassigned to the authoring judge on December 8, 2015.
Taylor’s (Petitioner) “Amended Petition for Review in the Nature of a Writ of
Mandamus seeking to Compel the [PSP] to Change Petitioner’s Sexual Offender
Registration Status in Accordance with the Law Addressed to the Court’s Original
Jurisdiction” (Petition for Review). Petitioner pled guilty to three counts of
Involuntary Deviate Sexual Intercourse (IDSI)4 in 1994, and has been required by
law to register as a sexual offender since his release from incarceration in 2004.
(Petition for Review ¶¶ 3, 7.) Petitioner alleges that the current registration and
notification requirements imposed upon him by the Sexual Offender Registration
and Notification Act (SORNA)5 are unconstitutional as the requirements are a form
of ex post facto punishment and infringe on his protected right to reputation
without due process of law. The PSP objects to the Petition for Review by alleging
that Petitioner has failed to state a claim. The PSP first alleges that mandamus will
not lie against the PSP because the statute of limitations has run for these types of
actions and the PSP lacks the duty or authority to change Petitioner’s registration
requirements. The PSP also objects to the merits of the Petition for Review by
alleging that Petitioner has not stated a constitutional claim under either the Ex
4
Section 3123(a)(4) of the Crimes Code, 18 Pa. C.S. § 3123(a)(4). The offense is
defined as:
the person engages in deviate sexual intercourse with a complainant: . . . (4)
where the person has substantially impaired the complainant’s power to appraise
or control his or her conduct by administering or employing, without the
knowledge of the complainant, drugs, intoxicants or other means for the purpose
of preventing resistance.
Id.
5
Sections 9799.10-9799.41 of the Sentencing Code, 42 Pa. C.S. §§ 9799.10-9799.41.
Courts have also referred to SORNA as the Adam Walsh Act.
2
Post Facto Clauses of the United States or Pennsylvania Constitutions or the Due
Process Clause of the Pennsylvania Constitution.6 For the reasons that follow, we
sustain the POs in part and overrule the POs in part.
I. SORNA’s Requirements
This case involves the registration and notification requirements of SORNA,
which is the General Assembly’s fourth iteration of the law commonly referred to
as Megan’s Law.7 The General Assembly’s intent in enacting SORNA was to,
inter alia, “substantially comply with [federal law] and to further protect the safety
and general welfare of the citizens of this Commonwealth by providing for
increased regulation of sexual offenders, specifically as that regulation relates to
registration of sexual offenders and community notification about sexual
6
The PSP’s first PO alleges that Petitioner has failed to state a claim because SORNA
applies to Petitioner and that Petitioner was properly classified as a Tier III offender. Petitioner
does not allege that SORNA does not apply or that he is improperly classified. We shall,
therefore, overrule this PO.
7
Megan’s Law I, the Act of October 24, 1995, P.L. 1079 (Spec. Sess. No. 1), was
enacted on October 24, 1995, and became effective 180 days thereafter. Megan’s Law II was
enacted on May 10, 2000 in response to Megan’s Law I being ruled unconstitutional by our
Supreme Court in Commonwealth v. Williams, 733 A.2d 593 (Pa. 1999). Our Supreme Court
held that some portions of Megan’s Law II were unconstitutional in Commonwealth v. Gomer
Williams, 832 A.2d 962 (Pa. 2003), and the General Assembly responded by enacting Megan’s
Law III on November 24, 2004. The United States Congress expanded the public notification
requirements of state sexual offender registries in the Adam Walsh Child Protection and Safety
Act of 2006, 42 U.S.C. §§ 16901-16945, and the Pennsylvania General Assembly responded by
passing SORNA on December 20, 2011 with the stated purpose of “bring[ing] the
Commonwealth into substantial compliance with the Adam Walsh Child Protection and Safety
Act of 2006.” 42 Pa. C.S. § 9799.10(1). SORNA went into effect a year later on December 20,
2012. Megan’s Law III was also struck down by our Supreme Court for violating the single
subject rule of Article III, Section 3 of the Pennsylvania Constitution. Commonwealth v.
Neiman, 84 A.3d 603, 616 (Pa. 2013). However, by the time it was struck down, Megan’s Law
III had been replaced by SORNA.
3
offenders.” Section 9799.11(b)(1) of SORNA, 42 Pa. C.S. § 9799.11. To this
end, SORNA established, for the first time, a three tier classification system for
sexual offenders. Section 9799.14 of SORNA, 42 Pa. C.S. § 9799.14. An
offender’s tier status is determined by the offense committed and impacts the
length of time an offender is required to register and the severity of punishment
should an offender fail to register or provide false registration information. Section
9799.15 of SORNA, 42 Pa. C.S. § 9799.15; Section 4915.1 of the Crimes Code, 18
Pa. C.S. § 4915.1.8 Petitioner pled guilty to IDSI, which is a Tier III offense under
SORNA carrying a life-time registration requirement. 42 Pa. C.S. § 9799.14(d)(4);
42 Pa. C.S. § 9799.15.
The PSP is charged with creating and maintaining a sexual offender
registration system, and has enacted regulations to that end. Section 9799.16 of
SORNA, 42 Pa. C.S. § 9799.16; 37 Pa. Code §§ 56.1 – 56.4. Pursuant to Section
9799.16(b) of SORNA, a registrant must provide the following information for
inclusion in the registry: name, including any aliases or monikers used on the
internet; telephone numbers; social security number; address of each residence
located in the Commonwealth; passport or immigration documents; the name and
address of any employers; any occupational licensing numbers; date of birth; driver
license number; and information on any vehicles owned or operated. 42 Pa. C.S. §
9799.16(b). Additionally, the PSP must ensure the registry includes a physical
description of the registrant, including any identifying marks; the offender’s
8
Section 4915.1(c)(1) of the Crimes Code provides that a Tier III offender, like
Petitioner, who fails to register may be guilty of a second degree felony. 18 Pa. C.S. §
4915.1(c)(1).
4
criminal record; and a current photograph of the individual. 42 Pa. C.S. §
9799.16(c). This information is included in a statewide registry, which must “[b]e
able to communicate with” the registries maintained by the United States
Department of Justice and other jurisdictions. 42 Pa. C.S. § 9799.16(a)(2), (3).
In order to effectuate the General Assembly’s intent to provide the public
with increased notice and information about sexual offenders, SORNA mandates
the release of certain information to the public. Relevant to this case, the General
Assembly found that the release of information, most notably through the internet,
enables “parents, minors and private entities” to “undertake appropriate remedial
precautions to prevent or avoid placing potential victims at risk” from “recidivist
acts by [sexual] offenders.” Section 9799.11(a)(7), (8) of SORNA, 42 Pa. C.S. §
9799.11(a)(7), (8). To this end, Section 9799.28(a) of SORNA, 42 Pa. C.S. §
9799.28(a) (hereafter, “internet notification provision”), mandates that the PSP
“[d]evelop and maintain a system for making information about [those] convicted
of[, inter alia,] a sexually violent offense” public via the internet. SORNA also
mandates that the website contain the offender’s name and alias, birth year,
address, facial photograph(s), and physical description. 42 Pa. C.S. §
9799.28(b)(1)-(7). If the offender operates a motor vehicle, the PSP must post the
license plate number and a description of a vehicle owned or operated by the
offender on the website. 42 Pa. C.S. § 9799.28(b)(8). Further, the internet website
must contain a feature that allows members of the public “to receive electronic
notification when the individual convicted of a sexually violent offense, sexually
5
violent predator[9] or sexually violent delinquent child moves into or out of a
geographic area chosen by the user.” 42 Pa. C.S. § 9799.28(a)(1)(ii).
With the foregoing in mind, we turn to Petitioner’s allegations.
II. Petitioner’s Allegations
Petitioner pled guilty to his crimes on April 7, 1994, prior to the enactment
of the first Megan’s Law on October 24, 1995. (Petition for Review ¶ 3.)
According to the Petition for Review, Petitioner began registering as a sexual
offender upon his release from incarceration in 2004 under the requirements of
Megan’s Law II. (Petition for Review ¶¶ 5, 7.) Petitioner alleges that he “was
informed and understood that upon his release” he would only be required to
register for ten years.10 (Petition for Review ¶ 6.) Petitioner was notified by the
PSP on December 3, 2012, that, as a result of the enactment of SORNA, he was
now classified as a Tier III offender and was required to register as a sexual
9
SORNA defines sexually violent predators as individuals convicted of sexually violent
offenses who are determined to have engaged in the violent conduct “due to a mental
abnormality or personality disorder that makes the individual likely to engage in predatory
sexually violent offenses.” Section 9799.12 of SORNA, 42 Pa. C.S. § 9799.12. The process for
the assessment and adjudication of sexual violent predators is found in Section 9799.24 of
SORNA, 42 Pa. C.S. § 9799.24. Sexually violent predators are subjected to expanded
notification requirements. See Sections 9799.26-9799.27 of SORNA, 42 Pa. C.S. §§ 9799.26-
9799.27. Petitioner has not been classified as a sexually violent predator.
10
Megan’s Law II required persons convicted of IDSI, 18 Pa. C.S. § 3123, to register for
life. Section 9795.1(b)(2) of Megan’s Law II, 42 Pa. C.S. § 9795.1(b)(2) (expired December 20,
2012, pursuant to 42 Pa. C.S. § 9799.41). Offenders convicted of IDSI, 18 Pa. C.S. § 3123, were
required to register for ten years under Megan’s Law I. Section 9793(b)(2) of Megan’s Law I,
42 Pa. C.S. § 9793(b)(2) (deleted May 10, 2000 by Section 3 of Megan’s Law II).
6
offender for life, register four times each year, and have his registration
information placed on the PSP’s website for life. (Petition for Review ¶ 9.)
Petitioner filed his initial Petition for Review on October 10, 2014 and filed
the amended version at issue here on January 28, 2015. Therein, Petitioner alleges
that: (1) SORNA is an ex post facto law, as it retroactively increased the terms of
his registration and imposes severe hardships upon him by restricting where he
may live, his ability to find employment, and his ability travel with no available
means to terminate his registration requirement; (2) SORNA “is not tailored to
meet the desired government[al] interest” of protecting the population from
recidivists; and (3) SORNA infringes upon his constitutionally protected interest to
reputation without due process of law by utilizing an irrebuttable presumption that
all sexual offenders pose a high risk of re-offense that is not universally true and
that alternative means to assess sexual offenders’ recidivism risks exist. (Petition
for Review ¶¶ 10, 12-14, 16-22.)
III. The PSP’s POs
The PSP’s first two objections to the Petition for Review, set forth in the
same PO, are rooted in an understanding that Petitioner is asserting a cause of
action in mandamus. The PSP’s first objection alleges that mandamus will not lie
against the PSP because Petitioner’s claims are barred by the six-month statute of
limitations applicable to these actions. The PSP cites to Curley v. Smeal, 41 A.3d
916, 919 (Pa. Cmwlth. 2012) (Curley I), aff’d but criticized sub nom., Curley v.
Wetzel, 82 A.3d 418 (Pa. 2013) (Curley II), as standing for the proposition that
actions against a government officer “‘for anything he does in the execution of his
7
office’ has” a six-month limitations period that begins to accrue “when the injury is
inflicted and the right to institute a suit for damages arises.” (POs ¶ 42 (quoting
Curley I, 41 A.3d at 919).) According to the PSP, Petitioner’s right to institute a
suit arose on December 20, 2012, the date SORNA’s requirements became
effective, and the statute of limitations ran on June 20, 2013. (POs ¶¶ 45-46.)
Because the instant suit was originally filed on October 10, 2014, well after June
20, 2013, Petitioner’s claims are barred by the six-month statute of limitations.
(POs ¶ 47.) The PSP’s PO alleges, in the alternative, that even if Petitioner’s
claims are not barred by the statute of limitations, mandamus will not lie against
the PSP because Petitioner does not have a clear legal right to the relief sought, and
the PSP lacks the duty and authority to provide such relief. (POs ¶¶ 48, 50.)
The PSP also objects to Petitioner’s constitutional challenges on their merits.
The PSP’s first allegation in this regard is that Petitioner has not stated a claim that
SORNA is an ex post facto law because the retroactive application of SORNA was
recently found to be non-punitive and constitutional by this Court in Coppolino v.
Noonan, 102 A.3d 1254 (Pa. Cmwlth. 2014), aff’d, __ A.3d __ (Pa., No. 132 MAP
2014, filed November 20, 2015), and that previous versions of Megan’s Law were
similarly upheld as non-punitive by the Pennsylvania Supreme Court. See
Commonwealth v. Gomer Williams, 832 A.2d 962 (Pa. 2003) (addressing Megan’s
Law II); Commonwealth v. Gaffney, 733 A.2d 616, 621 (Pa. 1999) (addressing
Megan’s Law I). (POs ¶¶ 55-57.)
The PSP demurs to Petitioner’s due process challenges under three theories.
First, the PSP alleges that the United States Supreme Court’s decision in
8
Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003) (Connecticut
II), established that Petitioner does not have a procedural due process right to
challenge his registration requirement. (POs ¶¶ 59-60.) Alternatively, PSP alleges
that “‘whether the additional sanctions imposed under Megan’s Law II are punitive
in nature is the threshold due process inquiry.’” (POs ¶ 65 n.5 (quoting Gomer
Williams, 832 A.2d at 970 n.13).) Because this Court, in Coppolino, held that
SORNA’s requirements are not punitive, Petitioner’s due process challenge also
fails. (POs ¶ 65 n.5.)
Finally, the PSP alleges that SORNA’s irrebuttable presumption that all
sexual offenders required to register pose high risk of recidivism poses no
constitutional concerns. (POs ¶ 74.) The PSP notes that the Pennsylvania
Supreme Court, in In re J.B., 107 A.3d 1 (Pa. 2014), recently struck down portions
of SORNA as applied to juvenile offenders, but alleges that the Supreme Court’s
holding in that case does not apply to adult sexual offenders. (POs ¶¶ 68-71.) The
PSP alleges that, because Petitioner cannot prove that it is not universally true that
adult sexual offenders pose a high risk of recidivating, Petitioner’s due process
claims under the Pennsylvania Constitution should be dismissed as legally
insufficient.
We shall first address the PSP’s objections based upon Petitioner seeking the
requested relief in a mandamus action and then proceed to those challenging the
legal sufficiency of Petitioner’s constitutional claims. In doing so, we are aware
that, when assessing the legal sufficiency of a petition for review, “the Court must
accept as true all well-pleaded allegations of material fact as well as all reasonable
9
inferences deducible therefrom.” Rodgers v. Pennsylvania Department of
Corrections, 659 A.2d 63, 65 (Pa. Cmwlth. 1995). A petitioner is under no burden
to prove his cause of action at this preliminary stage. Surgical Laser Technologies,
Inc. v. Department of Revenue, 626 A.2d 664, 671 (Pa. Cmwlth. 1993). Moreover,
a demurrer must only be sustained “where it appears, with certainty, that the law
permits no recovery under the allegations pleaded.” Rodgers, 659 A.2d at 65.
IV. Discussion
1. Mandamus
Two of the PSP’s objections are premised on its understanding that
Petitioner is seeking relief in a mandamus action based on the title of his pleading.
The PSP alleges that actions in mandamus have a six-month statute of limitations,
which had expired long before Petitioner filed his Petition for Review in October
2014. The PSP also alleges, in the alternative, that Petitioner’s claims lack merit
because mandamus is only applicable to situations where the petitioner has a clear
legal right to the performance of a mandatory ministerial duty, and the PSP has no
such duty here to change Petitioner’s registration requirements. However,
notwithstanding the title of his pleading, Petitioner is not actually seeking relief in
mandamus, but instead is seeking declaratory and injunctive relief from this Court.
Although the Petition for Review is self-labeled as a “Petition for Review in
the Nature of a Writ of Mandamus . . .,” a review of that document reveals no
instances where Petitioner actually requests the PSP to undertake a mandatory
duty. Petitioner requests this Court to:
10
declare that SORNA’s current lifetime registration is unconstitutional
and order that he is hereby exempt from registering any further, and
. . . from registering four (4) times a year under SORNA, or in the
alternative, grant Petitioner’s request that, as it applies to him,
application of SORNA is a direct consequence to Petitioner and an ex
post facto application of the law.
(Petition for Review, Wherefore Clause (emphasis added).) These requests, which
assert constitutional claims against a Commonwealth agency, sound in declaratory
and injunctive relief over which we have original jurisdiction pursuant to Section
761(a) of the Judicial Code.11 See Van Doren v. Mazurkiewicz, 695 A.2d 967, 969
(Pa. Cmwlth. 1997) (sustaining preliminary objections to a petition for review
requesting injunctive and declaratory relief and challenging the constitutionality of
the registration provisions of Megan’s Law I).
If Petitioner’s filing contained the identical allegations and prayer for relief,
but was not specifically titled a “Petition for Review in the Nature of a Writ of
Mandamus . . .,” but just generically titled “Petition for Review,” this Court would
consider the legal sufficiency of Petitioner’s claims. There is no jurisprudential
reason for this Court to elevate form over substance by relying on the title of the
pleading, as opposed to the relief sought therein, as conclusively determining the
form of action.12 Rule 1502 of the Pennsylvania Rules of Appellate Procedure
11
42 Pa. C.S. § 761(a). Section 761(a) of the Judicial Code provides, in relevant part,
that with few exceptions not applicable here, “Commonwealth Court shall have original
jurisdiction of all civil actions or proceedings . . . [a]gainst the Commonwealth government,
including any officer thereof, acting in his official capacity.” Id.
12
For example, upon receiving a pleading that is improvidently labeled a complaint in
equity instead of a petition for review, this Court will generally enter an order shortly thereafter
that directs the complaint to be regarded as a petition for review in our original jurisdiction. G.
(Continued…)
11
abolished, inter alia, the writ of mandamus and action for declaratory judgment
insofar as they relate to determinations of government units and established the
petition for review as the exclusive pleading for that purpose. Pa. R.A.P. 1502.
The purpose of Rule 1502 was to assure that errors of form did not defeat claims
against state government. Pa. R.A.P. 1502, Official Note. According to the
Official Note to Rule 1502:
[E]xperience teaches that governmental determinations are so varied
in character, and generate so many novel situations, that on occasion it
is only at the conclusion of the judicial review process, when a
remedy is being fashioned, that one can determine whether the
proceeding was in the nature of equity, mandamus, prohibition, or
statutory appeal, etc. The petition for review will eliminate the
wasteful and confusing practice of filing multiple “shotgun” pleadings
in equity, mandamus, prohibition, statutory appeal, etc., and related
motions for consolidation, and will permit the parties and the court
to proceed directly to the merits unencumbered by procedural
abstractions.
Id. (emphasis added).
Darlington, K. McKeon, D. Schuckers & K. Brown, Pennsylvania Appellate Practice § 1503:1
(West 2012). Similarly, on occasion, a petitioner will improvidently commence an action by
directing a petition for review to our original jurisdiction when it should have been directed to
our appellate jurisdiction. Id. In such cases, this Court treats the petition for review as if it was
addressed to our appellate jurisdiction without dismissing the action. Id. However,
“[a]mendment of the pleadings may become necessary where the theory of the cause of action is
not apparent to the court.” Id. at § 1503:2 (emphasis added). This is because while the Court
may, when appropriate, “disregard the title of the pleading” it cannot grant relief if the essential
elements of a cause of action are not properly pled, and eventually proved. Id. Here, the
elements of a cause of action in equity are properly pled; therefore, it is appropriate for this Court
to treat the Petition for Review as such.
12
It would have been preferable for Petitioner to have titled his Petition for
Review correctly and this analysis should not be construed to mean that Counsel
should not take care to identify the nature of the action in the pleading. However,
the purpose of the procedural rules is to provide for the fair, orderly, and efficient
consideration of cases. See Rule 105 of the Pennsylvania Rules of Appellate
Procedure, Pa. R.A.P. 105 (providing that the “[r]ules shall be liberally construed
to secure the just, speedy and inexpensive determination of every matter to which
they are applicable”). As our Supreme Court has stated:
Form must not be exalted over substance, and procedural errors must
not be dispositive where there has been substantial compliance with
the rules and no prejudice has resulted from purely technical error. . . .
[P]leading is not intended to be a game of skill in which “one misstep
by counsel may be decisive to the outcome.”
In re Tax Claim Bureau, German Township, Mount Sterling 54 1/2 Acres,
Miscellaneous Building, 436 A.2d 144, 146 (Pa. 1981) (quoting Foman v. Davis,
371 U.S. 178, 181-82 (1962)). The Supreme Court has further instructed that
“[a]ctions brought in the wrong form should not be dismissed, but should be
regarded as having been filed in the proper form, although amendment may be
required if necessary for clarification.” Commonwealth, Auditor General v.
Borough of East Washington, 378 A.2d 301, 304 (Pa. 1977). In actuality, this
Petition for Review requests declaratory and injunctive relief and no amendment is
necessary.
In sum, we will consider this Petition for Review as if filed “in the nature of
a declaratory judgment” and overrule the PSP’s PO alleging that Petitioner’s
claims are barred by the statute of limitations applicable to a mandamus action and
13
that mandamus will not lie because the PSP lacks a mandatory duty to provide the
relief requested.
We now proceed to address the PSP’s challenges to the legally sufficiency
of Petitioner’s constitutional claims.
2. Ex Post Facto
Both the United States and Pennsylvania Constitutions prohibit the General
Assembly from passing ex post facto laws. U.S. Const. Art. I, § 10 (stating “[n]o
State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the
Obligation of Contracts . . . .”); Pa. Const. art. I, § 17 (stating that “[n]o ex post
facto law, nor any law impairing the obligations of contracts, or making
irrevocable any grant of special privileges or immunities, shall be passed”). A law
violates the Ex Post Facto Clauses of both the United States and Pennsylvania
Constitutions if the law
(1) makes an action done before the passing of the law, and which was
innocent when done, criminal, and punishes such action; (2)
aggravates a crime, or makes it greater than it was when committed;
(3) changes the punishment, and inflicts a greater punishment than
the law annexed to the crime when committed; or (4) alters the legal
rules of evidence, and receives less, or different, testimony than the
law required at the time of the commission of the offense in order to
convict the offender.
Commonwealth v. Allshouse, 36 A.3d 163, 184 (Pa. 2012) (emphasis added).
Petitioner alleges that the requirements imposed upon him by SORNA
significantly differ from the requirements imposed upon him by previous versions
14
of Megan’s Law. Petitioner alleges that while the registration requirements of
previous versions of Megan’s Law were deemed collateral consequence of a
conviction and not punitive in nature, SORNA’s requirements are dramatically
different and represent punishment akin to probation. Petitioner further alleges
that SORNA creates a severe hardship upon him because, unlike previous versions
of Megan’s Law, there are no means available for him to seek relief from the
internet notification provision. The PSP contends that Petitioner has not stated a
claim under the Ex Post Facto Clauses of the United States and Pennsylvania
Constitutions because courts of this Commonwealth have concluded that the
registration provisions of SORNA and previous versions of Megan’s Law are non-
punitive. Further, the General Assembly expressly stated that SORNA is non-
punitive. See Section 9799.11(b)(2) of SORNA, 42 Pa. C.S. § 9799.11(b)(2)
(stating that the registration and notification provisions of SORNA “shall not be
construed as punitive”).
With regard to whether the specific registration requirements of SORNA
pose ex post facto concerns, we recently conducted an extensive review of those
requirements in Coppolino and concluded that the registration requirements, save
Section 9799.15(g), 42 Pa. C.S. § 9799.15(g) (requiring those convicted prior to
SORNA to provide in-person updates to registration information), are not punitive
and pose no ex post facto concerns. Coppolino, 102 A.3d at 1278-79. Based on
Coppolino, which was affirmed by the Pennsylvania Supreme Court, the only
registration requirement of SORNA that is punitive, as applied to Petitioner, is
Section 9799.15(g) and that requirement must not be imposed upon him.
15
Accordingly, the PSP’s PO to Petitioner’s ex post facto challenge to SORNA’s
registration requirements is sustained in accordance with Coppolino.
However, SORNA imposes both registration and notification requirements
upon sexual offenders, and our decision in Coppolino did not address whether
SORNA’s internet notification provision constitutes an ex post facto law. The
PSP’s POs do not specifically address SORNA’s internet notification provision
and the authorities offered to support its contention that all of SORNA’s
requirements pose no ex post facto concerns are silent regarding internet
notification.
The United States Supreme Court examined whether the internet notification
provision of Alaska’s Megan’s Law was an ex post facto law under the federal
constitution in Smith v. Doe, 538 U.S. 84 (2003). In Smith, the Court held that the
internet publication of accurate information is not punitive and, therefore, poses no
ex post facto concern under the United States Constitution. Id. at 98. According to
the Court:
[T]he stigma of Alaska’s Megan’s Law results not from public display
for ridicule and shaming but from the dissemination of accurate
information about a criminal record, most of which is already public.
Our system does not treat dissemination of truthful information in
furtherance of a legitimate governmental objective as punishment. . .
The fact that Alaska posts the information on the Internet does not
alter our conclusion. It must be acknowledged that notice of a
criminal conviction subjects the offender to public shame, the
humiliation increasing in proportion to the extent of the publicity.
And the geographic reach of the Internet is greater than anything
which could have been designed in colonial times. These facts do not
render Internet notification punitive. The purpose and the principal
effect of notification are to inform the public for its own safety, not to
16
humiliate the offender. Widespread public access is necessary for the
efficacy of the scheme, and the attendant humiliation is but a
collateral consequence of a valid regulation.
Id. at 98-99. The internet notification provision of Alaska’s Megan’s Law mirrors
SORNA’s internet notification provision in most relevant aspects.13 We, thus,
conclude that the internet notification provision of SORNA does not constitute an
ex post facto law under the United States Constitution when applied to Petitioner,
and we sustain the PSP’s PO in this regard.
However, “discharging the federal constitutional claim does not
automatically terminate our inquiry.” Gaffney, 733 A.2d at 621. Our Supreme
Court has long held that, when called upon to interpret provisions of the
Pennsylvania Constitution, we are not bound by the interpretations of similar
provisions of the United States Constitution made by the United States Supreme
Court. Commonwealth v. Edmunds, 586 A.2d 887, 894 (Pa. 1991). “Although we
may accord weight to federal decisions” when they address underlying specific
13
Under Alaska’s Megan’s Law:
Information about a sex offender or child kidnapper that is contained in the
central registry, including sets of fingerprints, is confidential and not subject to
public disclosure except as to the sex offender’s or child kidnapper’s name,
aliases, address, photograph, physical description, description of motor vehicles,
license numbers of motor vehicles, and vehicle identification numbers of motor
vehicles, place of employment, date of birth, crime for which convicted, date of
conviction, place and court of conviction, length and conditions of sentence, and a
statement as to whether the offender or kidnapper is in compliance with
requirements of A[laska] S[tat.] [§] 12.63 or cannot be located.
Alaska Stat. § 18.65.087(b). Although “[t]he Act does not specify the means by which the
registry information must be made public[,] Alaska has chosen to make most of the
nonconfidential information available on the Internet.” Smith, 538 U.S. at 91.
17
constitutional guarantees, “it is both important and necessary that we undertake an
independent analysis of the Pennsylvania Constitution, each time a provision of
that fundamental document is implicated.” Id. at 894-95. When there is
compelling reason to do so, we may interpret our constitution as affording greater
protections than the federal constitution. Gaffney, 733 A.2d at 621.
The PSP has neither pointed to any binding authority, and we have found
none, addressing whether SORNA’s internet notification provision is punitive for
purposes of the Ex Post Facto Clause of the Pennsylvania Constitution. Nor has
the PSP shown with certainty that the Ex Post Facto Clause of the Pennsylvania
Constitution does not provide more extensive rights than its federal counterpart.
In Commonwealth v. Ackley, 58 A.3d 1284, 1287 (Pa. Super. 2012), the
Superior Court held that the internet notification provision of Megan’s Law III was
not punitive for purposes of the Ex Post Facto Clause of the Pennsylvania
Constitution.14 In that case, Ackley was convicted of rape in 1986 and was subject
to the registration requirements of Megan’s Law II after his release from
14
Section 9798.1 of Megan’s Law III, 42 Pa. C.S. § 9798.1 (expired December 20, 2012,
pursuant to 42 Pa. C.S. § 9799.41). Section 9798.1(c) provided that the internet website
maintained by the PSP shall contain the following information:
(i) Name and any aliases; (ii) year of birth; (iii) the street address, city, county and
zip code of all residences; (iv) the street address, city, county and zip code of any
institution or location at which the person is enrolled as [a] student; (v) the city,
county and zip code of any employment location; (vi) a photograph of the
offender, which shall be updated not less than annually; (vii) a description of the
offense or offenses which trigger the application of [the registration requirement];
and (viii) the date of the offense and conviction, if available.
42 Pa. C.S. § 9798.1(c).
18
incarceration. Id. at 1285. Ackley’s registration information was exposed to
public dissemination via the internet upon the enactment of Megan’s Law III in
2004. Id. at 1286. Ackley petitioned the trial court for exemption from the
internet notification provision pursuant to Section 9795.5 of Megan’s Law III, 42
Pa. C.S. § 9795.5 (expired December 20, 2012, pursuant to 42 Pa. C.S. § 9799.41),
which allowed sexual offenders to petition sentencing courts to exempt them from
internet notification. Id. The trial court denied Ackley’s petition, and the Superior
Court affirmed. In holding that the internet notification provision of Megan’s Law
III was not punitive, the Superior Court likened the punitive effects of internet
notification to the punitive effects of the notification provision applicable to
sexually violent predators under Megan’s Law II. The Superior Court adopted the
Supreme Court’s reasoning in Gomer Williams, wherein the Supreme Court stated:
The critical issue for our present purposes is that, even to the extent
that notification under Megan’s Law II may have some punitive effect
in terms of shaming the sex offender, such effect has not been
demonstrated to be sufficient in itself to render the challenged
measures criminal punishment for constitutional purposes. For one
thing, whether a sanction constitutes punishment is not determined
from the defendant’s perspective, as even remedial sanctions carry the
sting of punishment. Equally important, any punitive effect that
results from being designated a sexually violent predator is not
gratuitous, but rather, an inevitable consequence of the effectuation of
the law’s remedial objective of protecting vulnerable members of the
public. Thus, unlike shaming punishments such as stocks and cages—
where there would have been alternative means of notifying the
community that a certain individual had committed a particular
crime—the notification provisions of Megan’s Law appear to be
reasonably calculated to accomplish self-protection only, and not to
impose additional opprobrium upon the offender unrelated to that
goal.
Id. at 1287 (quoting Gomer Williams, 832 A.2d at 976).
19
However, Ackley addressed the internet notification provision of Megan’s
Law III, not the more expansive internet notification provision of SORNA, and so
the question of whether these more expansive provisions comport with the Ex Post
Facto Clause of the Pennsylvania Constitution was not at issue in that case.15 In
addition, the Superior Court’s reasoning in Ackley relies on the Supreme Court’s
analysis of the punitive effects of the notification provisions of Megan’s Law II in
Gomer Williams, which were applicable only to those individuals adjudged to be
sexually violent predators and did not require notification to the public via the
internet. Id. The Superior Court adopted the reasoning in Gomer Williams
without independently determining whether the internet notification provision
under Megan’s Law III was excessive to meet the General Assembly’s non-
punitive purpose in enacting the provision. See Gomer Williams, 832 A.2d at 982
(quoting Smith, 538 U.S. at 105) (stating that the crux of its inquiry is “‘whether
the regulatory means chosen are reasonable in light of the nonpunitive objective’
sought to be achieved”). Additionally, the Superior Court in Ackley was
confronted with Ackley’s petition for relief under Section 9795.5 of Megan’s Law
III. That expired provision gave sexual offenders the right to petition sentencing
courts for an exemption of the internet notification provision of Megan’s Law III,
but SORNA contains no such exemption provision. Thus, unlike Ackley,
Petitioner here is given no recourse to the courts to request that he be exempt from
SORNA’s internet notification provision.
15
We note that, even if Ackley was on point, we are “not bound by the Superior Court’s
precedents although, where persuasive, we are free to adopt the Superior Court’s reasoning.”
Wertz v. Chapman Township, 709 A.2d 428, 433 n.8 (Pa. Cmwlth. 1998).
20
More recently, in Commonwealth v. Perez, 97 A.3d 747, 759 (Pa. Super.
2014), which was cited by the PSP, the Superior Court held that the SORNA
registration requirements pose no ex post facto concerns under the United States
Constitution. The Superior Court in that case declined to consider whether the
Pennsylvania Constitution provides greater protections than the United States
Constitution as it relates to SORNA. Id. at 760 (stating “[b]ecause we have
already resolved his federal ex post facto claim . . . and Appellant does not argue
that the Pennsylvania Constitution provides higher protection, his claim under the
Pennsylvania Constitution likewise fails.” (emphasis in original)). Although the
majority opinion in Perez does not discuss SORNA’s internet notification
provision, the concurring opinion of Judge Donohue expresses concern over the
impact of internet notification in light of changes to technology and societal habits.
Judge Donohue reasoned:
Yesterday’s face-to-face shaming punishment can now be
accomplished online, and an individual’s presence in cyberspace is
omnipresent. The public internet website utilized by the Pennsylvania
State Police broadcasts worldwide, for an extended period of time, the
personal identification information of individuals who have served
their “sentences.” This exposes registrants to ostracism and
harassment without any mechanism to prove rehabilitation—even
through the clearest proof. In my opinion, the extended registration
period and the worldwide dissemination of registrants’ information
authorized by SORNA now outweighs the public safety interest of the
government so as to disallow a finding that it is merely regulatory. . . .
This, to me, is the closest of cases. Had Perez not conceded that the
first prong of the Smith test had been met, my decision in his case
may have been different. Moreover, a challenge under the
Pennsylvania State Constitution may have yielded a different result.
Perez, 97 A.3d at 765-66 (Donohue, J., concurring) (emphasis added).
21
Having concluded that case law provides no clear answers, and because of
the early stage of these proceedings, we cannot say with certainty that
Pennsylvania Constitution’s Ex Post Facto Clause does not provide more
protection than its federal counterpart with regard to the internet notification
provision of SORNA. Accordingly, we overrule the PSP’s POs with regard to this
claim.
3. Procedural Due Process
Article I, Section 1 of the Pennsylvania Constitution states that “[a]ll men
are born equally free and independent, and have certain inherent and indefeasible
rights, among which are those of enjoying and defending life and liberty, of
acquiring, possessing and protecting property and reputation, and of pursuing their
own happiness.” Pa. Const. art. I, § 1. Unlike the Due Process Clause of the
Fourteenth Amendment, our Supreme Court has acknowledged that reputation is
protected under Article I, Section 1 of the Pennsylvania Constitution. See R. v.
Department of Public Welfare, 636 A.2d 142, 149 (Pa. 1994) (discerning a
fundamental right to reputation under the Pennsylvania Constitution).
Accordingly, reputation is among the fundamental rights that cannot be abridged
without compliance with state constitutional standards of due process. Id.
Petitioner’s procedural due process challenge focuses on SORNA’s bedrock
“presumption that all sexual offenders ‘pose a high risk of committing additional
sexual offenses . . . .’” (Petition for Review ¶ 20 (quoting 42 Pa. C.S. §
9799.11(a)(4)).) Because, under SORNA, all individuals previously convicted of a
sexual offense are presumed to pose a high risk of re-offense, SORNA’s
22
registration scheme does not provide offenders with an opportunity to challenge
their registration requirements by establishing to a fact finder that the offender has
reformed and no longer poses a threat to the public. See Section 9799.23(b) of
SORNA, 42 Pa. C.S. § 9799.23(b) (providing that courts shall not have the
authority, with certain exceptions, to relieve a sexual offender from the duty to
register.) Thus, under SORNA, individuals convicted of sexually violent offenses
are required to register without a determination regarding the offender’s level of
dangerousness and likelihood of re-offense ever being made.
Our Supreme Court recently assessed the constitutionality of this
presumption as applied to juveniles sexual offenders in J.B., 107 A.3d at 14. The
Supreme Court began its analysis in J.B. by considering whether the juvenile
petitioners had a right protected by the due process clause of the Pennsylvania
Constitution. As explained by the Supreme Court:
SORNA explicitly declares that sexual offenders, including juvenile
offenders, “pose a high risk of committing additional sexual offenses
and protection of the public from this type of offender is a paramount
governmental interest.” 42 Pa. C.S. § 9799.11(a)(4). Indeed, a
primary purpose of SORNA is to inform and warn law enforcement
and the public of the potential danger of those registered as sexual
offenders . . . . [T]he common view of registered sexual offenders is
that they are particularly dangerous and more likely to reoffend than
other criminals. Thus, SORNA registration requirements, premised
upon the presumption that all sexual offenders pose a high risk of
recidivating, impinge upon juvenile offenders’ fundamental right to
reputation as protected under the Pennsylvania Constitution.
J.B., 107 A.3d at 16-17.
23
After determining that the juvenile petitioners had a protected right to their
reputations, the Supreme Court summarized its case law outlining the “irrebuttable
presumption doctrine” as providing that “irrebuttable presumptions are violative
of due process where the presumption is deemed not universally true and a
reasonable alternative means of ascertaining that presumed fact are available.” Id.
at 15 (quoting Department of Transportation, Bureau of Driver Licensing v.
Clayton, 684 A.2d 1060, 1063 (Pa. 1996)). The Supreme Court cited studies
credited by the trial court that showed juvenile sexual offenders exhibit levels of
recidivism that “are indistinguishable from the recidivism rates of non-sexual
juvenile offenders.” Id. at 17. Based on these studies and other societal
knowledge gleaned from statutes and case law, the Supreme Court concluded that
SORNA’s registration requirements “improperly brand all juvenile offenders’
reputations with an indelible mark of a dangerous recidivist, even though the
irrebuttable presumption linking adjudication of specified offenses with a high
likelihood of recidivating is not ‘universally true.’” Id. at 19. The Supreme Court
then determined that a reasonable alternative means to ascertain whether the
juvenile offenders represented a recidivism risk was available in the form of a
hearing similar to the hearing required before classifying an offender as a sexually
violent predator pursuant to Section 9799.24 of SORNA, 42 Pa. C.S. § 9799.24.
J.B., 107 A.3d at 19. Concluding that the “irrebuttable presumption doctrine” was
satisfied, the Supreme Court held that the lifetime registration requirement was
unconstitutional as applied to juveniles because it encroached upon the juvenile
petitioners’ constitutionally protected interest in their reputation without due
process of law. Id. at 19-20.
24
The Supreme Court’s holding in J.B. is limited to juvenile offenders.
However, the decision provides this Court with insight on how Petitioner’s claim
should be analyzed. Under J.B., we first consider whether Petitioner has asserted
an interest protected by due process. Petitioner avers that he has a right to
reputation encroached upon by SORNA’s irrebuttable presumption. The PSP
offers no argument that Petitioner’s right to reputation is not infringed by SORNA
and we, therefore, presume that Petitioner has sufficiently alleged such. Nor does
the PSP dispute Petitioner’s allegation with regard to the final step of the
irrebuttable presumption doctrine: that reasonable alternative means exist to
determine whether Petitioner poses a high risk of recidivism. Accordingly, we
shall focus on whether Petitioner alleges facts that, when accepted as true, shows
that it is not “universally true” that adult offenders pose a heightened risk of
recidivism.
Petitioner’s allegations point to studies showing that “sexual offenders have
very low rates of recidivism in general.” (Petition for Review ¶ 17 n.1.)
According to Petitioner, SORNA’s irrebuttable presumption is “based on
speculation and conjecture despite firm evidence to the contrary . . . .” (Petition for
Review ¶ 17.) In response to Petitioner’s averments, the PSP argues that Petitioner
cannot satisfy the universality factor of the irrebuttable presumption doctrine and
points to previous decisions by the Pennsylvania and United States Supreme
Courts, in which the courts have stated that recidivism rates of all sexual offenders
are high. See Smith, 538 U.S. at 103 (noting the “grave concerns over the high
rate of recidivism among convicted sex offenders”); Commonwealth v. Lee, 935
A.2d 865, 885 (Pa. 2007) (stating recidivism rates of sexual offenders are
25
“sufficiently high to warrant careful record-keeping and continued supervision”).
Although the cases cited by the PSP are persuasive, we decline to conclusively
resolve factual questions based on statements made in judicial decisions that are
nearly a decade old. Sociological and psychological facts that serve as predicates
to judicial decisions may be re-tested based on newly developed research and
increases in human understanding. The Petition for Review cites to studies
supporting Petitioner’s allegation that it is not universally true that sexual offenders
always pose a high risk of re-offense that were published years after Smith and Lee
were decided. When reviewing preliminary objections, this Court must treat all
well-pleaded facts and any reasonable inference from those facts as true. Russo v.
Allegheny County, 125 A.3d 113, 116 n.5 (Pa. Cmwlth. 2015). Just as the
petitioners in J.B. were entitled to prove their allegations with regard to recidivism
rates of juvenile offenders, notwithstanding previous judicial findings to the
contrary, Petitioner must be afforded an opportunity to present his proof.
Accordingly, the PSP’s PO alleging that Petitioner cannot satisfy the universality
factor of the irrebuttable presumption doctrine is overruled.
The PSP also argues that Petitioner’s procedural due process challenge fails
because the United States Supreme Court has held that sexual offenders asserting
procedural due process challenge to their status under state sex offenders’ registries
must show that the fact they are challenging is relevant to the state statutory
scheme. Connecticut II, 538 U.S. at 7-8.
In that case, the plaintiff argued that Connecticut’s sex offender law violated
his procedural due process rights under the Fourteenth Amendment because his
26
liberty interests were deprived without notice or a meaningful opportunity to be
heard. Doe v. Department of Public Safety ex rel. Lee, 271 F.3d 38, 46 (2d Cir.
2001) (Connecticut I), rev’d on other grounds by Connecticut II. During its
adjudication of the case, the United States Court of Appeals for the Second Circuit
applied the so-called “stigma plus” test and held that plaintiff was deprived of his
liberty interest in reputation under the Fourteenth Amendment by the statutory
provisions requiring public notification of a sex offender’s private information
over the internet coupled with the law’s registration requirements. Id. at 59-60.
Specifically, the Second Circuit held that Connecticut’s Act violated sexual
offenders’ due process rights because officials did not afford offenders a pre-
deprivation hearing to determine whether they are likely to be currently dangerous.
Id. at 61. Upon review, the Supreme Court reversed. The Supreme Court found it
unnecessary to reach the question of whether the plaintiff’s liberty interest in
reputation was deprived. Connecticut II, 538 U.S. at 7. According to the Supreme
Court, “even assuming, arguendo, that respondent has been deprived of a liberty
interest, due process does not entitle him to a hearing” because whether or not the
respondent was currently dangerous was immaterial to Connecticut’s statutory
scheme. Id. Instead of overruling the Second Circuit’s due process reasoning
directly, the Supreme Court established a rule that “[p]laintiffs who assert a right to
a hearing under the Due Process Clause must show that the facts they seek to
establish in that hearing are relevant under the statutory scheme.” Id. at 8.
Applying the rule to this case, the question of whether the facts Petitioner
seeks to challenge are relevant to SORNA’s statutory scheme is inextricably linked
to the merits of Petitioner’s claim that SORNA’s irrebuttable presumption violates
27
his procedural due process rights. If Petitioner can prove that SORNA’s
irrebuttable presumption is not universally true and a reasonable alternative forum
exists to adjudicate whether he poses a high risk of re-offense, then whether
Petitioner is currently a recidivism risk is an inquiry relevant to SORNA’s
statutory scheme. If, however, Petitioner cannot prove his contention with regard
to SORNA’s irrebuttable presumption, then Petitioner would not be entitled to a
hearing on whether he poses a high risk of recidivism or is currently dangerous.
Accordingly, we are constrained to overrule the PSP’s PO in this regard. The
matter may be revisited should Petitioner fail to prove his claim that SORNA’s
irrebuttable presumption violates his due process rights.
The PSP’s final argument with regard to Petitioner’s due process challenge
is that Petitioner cannot assert a due process challenge to SORNA unless the
alleged infringement upon Petitioner’s rights is punitive in nature. The PSP alleges
that because this Court, in Coppolino, held that SORNA’s requirements are not
punitive, Petitioner’s due process challenge must fail. (POs ¶ 65 n.5.) As support
for this argument, the PSP cites to a footnote in the Supreme Court’s decision in
Gomer Williams, where the Court states: “the question of whether the additional
sanctions imposed under Megan's Law II are punitive in nature is the threshold due
process inquiry.” Gomer Williams, 832 A.2d at 970 n.13.
Contrary to the PSP’s argument, we do not read the Supreme Court’s
footnote in Gomer Williams as limiting the circumstances under which individuals
are entitled to procedural due process under the Pennsylvania Constitution to only
those situations where the infringement upon the right asserted is punitive in
28
nature. Such a broad understanding could have serious consequences on this
Court’s due process jurisprudence as we have never held that due process is only
implicated when the government actor is acting in a punitive, rather than
regulatory, manner. Instead, we understand this footnote as addressing the issues
specific to that case before the Court, wherein the petitioner argued that certain
liberty interests protected by the Fourteenth Amendment to the United States
Constitution were infringed by the registration, notification, and counseling
requirements of Megan’s Law II that were applicable only to sexually violent
predators. See Id. at 970 (stating: “[Appellees] assert that the registration,
notification, and counseling requirements, in effect, impose additional punishment
without first affording an offender adequate due process protections”). Our
interpretation is bolstered by the fact that the Supreme Court in J.B., when
confronted with allegations that the juvenile offenders’ reputational interests were
infringed by SORNA’s internet notification provision, did not first consider
whether the infringement upon the petitioners’ reputations was punitive in nature.
As the Supreme Court refrained from engaging in such an analysis in J.B., we do
so as well. We therefore overrule the PSP’s POs insofar as the PSP alleges that
Petitioner is incapable of stating a due process claim unless Petitioner first shows
that the alleged infringement upon his reputation is punitive.
4. Substantive Due Process
Although the words “substantive due process” are absent from Petitioner’s
Brief or Petition for Review, Petitioner alleges that SORNA “is not [narrowly]
tailored to meet the desired government[’s] interest” because SORNA and other
sexual “offender registration laws, even when applied to more serious and violent
29
offenders, have never been shown to reduce recidivism or rationally target those
who are likely to reoffend.” (Petition for Review ¶¶ 16-17.) Petitioner cites to
published studies allegedly showing relatively low recidivism rates for sexual
offenders and that sexual offender registration regimes have no appreciable impact
on recidivism. (Petition for Review ¶ 17 n.1.) Through these allegations,
Petitioner has implicitly asserted a substantive due process challenge to SORNA.
We will construe the PSP’s PO addressing Petitioner’s due process claim as
including a demurrer to Petitioner’s substantive due process claim.
The substantive component of the Due Process Clause provides protection
against government interference with certain fundamental rights and liberty
interests. Khan v. State Board of Auctioneer Examiners, 842 A.2d 936, 946 (Pa.
2004). Where the right affected is fundamental, “such as the right to privacy, the
right to marry, and the right to procreate,” strict judicial scrutiny is applied and the
statute “may only be deemed constitutional if it is narrowly tailored to a
compelling state interest.” Nixon v. Commonwealth, 839 A.2d 277, 287 (Pa.
2003). If the laws restrict other important, though not fundamental, rights, we will
uphold the statute if it seeks to achieve a valid state objective by means that are
rationally related to that objective. Khan, 842 A.2d at 946.
Like procedural due process, “for substantive due process rights to attach
there must first be the deprivation of a[n] . . . interest that is constitutionally
protected.” Khan, 842 A.2d at 946. Petitioner alleges that his constitutionally
protected reputational interest under the Pennsylvania Constitution is infringed
upon by SORNA. Assuming this allegation is true, Petitioner’s fundamental right
30
to reputation may only be abridged if SORNA is narrowly tailored to advance a
compelling state interest. Pennsylvania Bar Association v. Commonwealth, 607
A.2d 850, 857 (Pa. Cmwlth. 1992).
An extensive review of the law has shown that courts of this Commonwealth
have not specifically addressed whether SORNA’s registration and notification
provisions are narrowly tailored to meet the government’s compelling interest in
protecting the public.16 Nor have courts assessed whether the public distribution of
a sexual offender’s personal information on a government website violates
16
In Doe v. Miller, 886 A.2d 310, 314 (Pa. Cmwlth. 2005), we dismissed a class action
claim that Megan’s Law II violated class members’ substantive due process rights. Instead of
addressing the merits of the class’s claims, we concluded that because the class in that case failed
to adequately allege which fundamental right protected by due process was infringed by Megan’s
Law II, the class failed to state a substantive due process claim. Id.
In Commonwealth v. Howe, 842 A.2d 436 (Pa. Super. 2004), the Superior Court held that
“[b]alancing the unobtrusive registration provision of Megan’s Law with the Commonwealth’s
compelling interest in public safety, we find the momentary inconvenience of disclosing . . .
information” as required by Megan’s Law II’s registration requirements are “clearly outweighed
by the Commonwealth’s compelling interest in public safety.” Id. at 446-47 (emphasis added).
At first glance, Howe’s holding appears on point with regard to SORNA’s registration
requirements. Crucially, however, the Superior Court has never addressed whether the
registration and notification requirements of SORNA are narrowly tailored to meet the
government’s compelling interest. Further, the requirements of SORNA are more onerous than
those in Megan’s Law II that were assessed by the Superior Court in Howe.
Similarly, in Commonwealth v. Mountain, 711 A.2d 473, 477 (Pa. Super. 1998), the
Superior Court found no merit to a sexual offender’s substantive due process claim to Megan’s
Law I because the appellant “cannot present any evidence suggesting alienation would result
from the registration requirement.” Id. at 476. However, the Superior Court in that case only
examined the registration requirements of Megan’s Law I. Under Megan’s Law I, information
was only given to law enforcement. See Gaffney, 733 A.2d at 621 (stating that under Megan’s
Law I, registration information “is given solely to the chief law enforcement officer of the police
department having primary jurisdiction of the municipality in which the registrant resides”).
31
substantive due process. Further, the United States Supreme Court has not
addressed this issue. See Connecticut II, 538 U.S. at 8 (addressing Connecticut’s
Megan’s Law and “express[ing] no opinion as to whether Connecticut’s Megan’s
Law violates principles of substantive due process”). Because it is not clear at this
time that Petitioner is not entitled to relief, his substantive due process claim must
be answered by the PSP.
V. Conclusion
We understand the danger posed by sexual predators, and the efforts of the
General Assembly and law enforcement to protect the public from those who
would prey on our children and other victims. It is our duty to uphold the
constitutional protections for all our citizens, including those who have been
convicted of sexual offenses. At this very preliminary stage, given the allegations
and arguments before us and our standard of review, under which we accept as true
for this motion only, all the facts as pled by Petitioner, we cannot state with
certainty that the law will permit no recovery. For the foregoing reasons, we hold
as follows: (1) the PSP’s PO in the nature of a demurrer alleging that Petitioner
failed to state a claim because Petitioner is properly classified under SORNA is
overruled; (2) the PSP’s PO in the nature of a demurrer alleging that Petitioner’s
claims are barred by the applicable statute of limitations and that mandamus will
not lie against the PSP because the PSP is incapable of providing the relief
requested is overruled; (3) the PSP’s PO in the nature of a demurrer alleging that
Petitioner has not stated a claim challenging SORNA’s internet notification
provision under the Ex Post Facto Clause of the Pennsylvania Constitution is
overruled; (4) the PSP’s PO in the nature of a demurrer alleging that Petitioner
does not have a right to be heard on factual issues irrelevant to his classification
status is overruled; (5) the PSP’s PO in the nature of a demurrer alleging that
32
Petition cannot state a due process claim without first showing that the deprivation
of his reputational interests is punitive is overruled; (6) the PSP’s PO in the nature
of a demurrer alleging that Petitioner is incapable of proving that SORNA’s
irrebuttable presumption is not universally true and violates his procedural due
process rights under the Pennsylvania Constitution is overruled; (7) the PSP’s PO
in the nature of a demurrer to Petitioner’s substantive due process challenge under
the Pennsylvania Constitution is overruled; and (8) the PSP’s POs are sustained
with regard to the remainder of Petitioner’s claims and these claims are dismissed
with prejudice.
________________________________
RENÉE COHN JUBELIRER, Judge
33
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeremy Taylor, :
:
Petitioner :
:
v. : No. 532 M.D. 2014
:
The Pennsylvania State Police of the :
Commonwealth of Pennsylvania, :
:
Respondent :
ORDER
NOW, January 12, 2016, the Pennsylvania State Police’s (PSP) Preliminary
Objections to the Amended Petition for Review in the above-captioned matter are
OVERRULED, in part, and SUSTAINED, in part, as follows:
(1) The PSP’s preliminary objection in the nature of a demurrer to the
Amended Petition for Review alleging that Jeremy Taylor (Petitioner)
was properly classified under the Sexual Offender Registration and
Notification Act (SORNA) is OVERRULED;
(2) The PSP’s preliminary objection in the nature of a demurrer to the
Amended Petition for Review alleging that the claims asserted are
barred by the applicable statute of limitations is OVERRULED;
(3) The PSP’s preliminary objection in the nature of a demurrer to the
Amended Petition for Review alleging that mandamus will not lie
against the PSP is OVERRULED;
(4) The PSP’s preliminary objection in the nature of a demurrer to
Petitioner’s ex post facto challenge to SORNA’s internet notification
provision, 42 Pa. C.S. § 9799.28(a), under the Pennsylvania
Constitution as set forth in the Amended Petition for Review is
OVERRULED;
(5) The PSP’s two preliminary objections in the nature of a demurrer to
Petitioner’s procedural due process challenges under the Pennsylvania
Constitution in relation to SORNA’s irrebuttable presumption as set
forth in the Amended Petition for Review are OVERRULED;
(6) The PSP’s preliminary objection in the nature of a demurrer to
Petitioner’s substantive due process challenge under the Pennsylvania
Constitution as set forth in the Amended Petition for Review is
OVERRULED;
(7) The PSP shall file an Answer to Petitioner’s claims, set forth in
Petitioner’s Amended Petition for Review, that SORNA violates
procedural and substantive due process under the Pennsylvania
Constitution, and that Section 9799.28(a) of SORNA is an ex post
facto law under the Pennsylvania Constitution within thirty (30) days
of the date of this Order;
(8) The PSP’s preliminary objections are SUSTAINED with regard to the
remaining claims set forth in the Amended Petition for Review; and
(9) Petitioner’s remaining claims are DISMISSED WITH
PREJUDICE.
________________________________
RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeremy Taylor, :
Petitioner :
:
v. : No. 532 M.D. 2014
: Argued: September 16, 2015
The Pennsylvania State Police of the :
Commonwealth of Pennsylvania, :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
CONCURRING AND DISSENTING
OPINION BY JUDGE LEADBETTER FILED: January 12, 2016
I dissent from that portion of the majority opinion which overrules
PSP’s preliminary objections to petitioners’ ex post facto claims regarding internet
notification. Otherwise, I agree with the thorough and well reasoned discussion of
the merits of the remaining claims. Because of this agreement, and because of the
procedural posture of this case, I concur in the result of the balance of the majority
opinion.
However, I do not join the balance of the opinion and write separately
to point out that there are important differences between distinct causes of action
and it is not the job of courts to parse factual allegations and re-frame pleadings to
rectify the mistakes of counsel.1 The nature of the cause of action before the court
affects considerations of statute of limitations, immunity, subject matter
jurisdiction, etc. If, say, a contract claim is asserted but the recited facts allege the
elements of negligence or perhaps some statutory claim, how is the respondent to
know whether to reply to the pleading or to some manner in which the court may
re-fashion it? I understand the Court’s reasons for making an exception here, but I
firmly believe that ordinarily the proper course is to dismiss without prejudice and
require the petitioner to clarify his intent.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Judge
1
How flexible we might be with pro se litigants is another matter which I will not address
here.
BBL-2