G.S. Person v. PSP Megan's Law Section ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gregory S. Person, :
:
Petitioner :
:
v. : No. 222 M.D. 2013
:
Pennsylvania State Police Megan’s : Submitted: February 20, 2015
Law Section, :
:
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER FILED: November 3, 2015
Before this Court in our original jurisdiction are the Preliminary Objections
(POs) in the form of a demurrer of the Pennsylvania State Police Megan’s Law
Section (PSP) to the pro se Second Amended Petition for Review (Petition) of
Gregory S. Person (Petitioner).1 Petitioner alleges that the Act variously known as
Megan’s Law IV or the Sexual Offender Registration and Notification Act
1
Petitioner originally filed a Petition for Review on April 11, 2013. On May 5, 2014,
this Court sustained the PSP’s POs for failure to plead facts and directed Petitioner to file the
instant Petition within 30 days. After granting Petitioner an extension, we received the instant
Petition on August 11, 2014. The Attorney General, on behalf of the PSP, filed POs on
September 11, 2014 and Petitioner filed his response on December 19, 2014.
(SORNA)2 is unconstitutional as applied to him under the Due Process, Equal
Protection, Ex Post Facto, and Contract Clauses of the United States and
Pennsylvania Constitutions. In its POs, the PSP avers that Petitioner failed to state
a claim under both the United States and Pennsylvania Constitutions because
Petitioner’s claims have been soundly rejected by courts in Pennsylvania and
federally; that Petitioner was not deprived of a protected interest under the Due
Process Clause of the United States Constitution; and that Petitioner has not stated
a claim under Article I, Section 9 of the Pennsylvania Constitution because no
criminal prosecution is at issue. Because the PSP has not challenged some of
Petitioner’s claims in its POs or shown that all of Petitioner’s claims are without
merit, we sustain the POs in part and overrule the POs in part.
I. Background
Petitioner pled guilty to involuntary deviate sexual intercourse in 1994 in the
Court of Common Pleas of Lycoming County, prior to the enactment of the first
Megan’s Law (Megan’s Law I).3 After Megan’s Law I went into effect in 1996,
2
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. Petitioner also raises claims that
the application of Megan’s Law II, the Act of May 10, 2000, P.L. 74, 42 Pa. C.S. §§ 9791-
9799.9, to him violates his constitutional rights. Pursuant to Section 9799.41 of SORNA, 42 Pa.
C.S. § 9799.41, Megan’s Law II expired on December 20, 2012. Accordingly, we shall only
address Petitioner’s claims regarding SORNA.
3
The Act of October 24, 1995, P.L. 1079 (Spec. Sess. No. 1), now known as Megan’s
Law I, was enacted on October 24, 1995 and became effective 180 days thereafter. Megan’s
Law II was enacted on May 10, 2000 after Megan’s Law I was ruled unconstitutional in
Commonwealth v. Williams, 733 A.2d 593 (Pa. 1999). Some portions of Megan’s Law II were
held to be 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. Megan’s
Law III was also struck down by our Supreme Court, this time for violating the single subject
(Continued…)
2
Petitioner’s conviction required him to register with the PSP upon release from
incarceration for a period of ten years. Petitioner’s offense was reclassified by
Megan’s Law II, enacted in 2000, and Petitioner was required to register for his
lifetime.
SORNA went into effect on December 20, 2012 and established 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. § 4915.1.4 Petitioner pled guilty to involuntary
deviate sexual intercourse, which is a Tier III offense under SORNA. 42 Pa. C.S.
§ 9799.14(d)(4). Tier III offenders are required to register for the offender’s
lifetime. 42 Pa. C.S. § 9799.15.
The PSP is charged with creating and maintaining the registration system,
and has enacted regulations to that end. Section 9799.16 of SORNA, 42 Pa. C.S. §
rule of Article III, Section 3 of the Pennsylvania Constitution. Commonwealth v. Neiman, 84
A.3d 603, 616 (Pa. 2013). 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, 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).
4
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).
3
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 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 addition to registration requirements, 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. In addition to
details of the conviction, the website shall contain the offender’s name and alias,
4
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 also 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
violent predator 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).
II. Petitioner’s Claims
Petitioner raises ten issues in his Petition and we have organized the claims
into five categories. First, Petitioner alleges that the three-tier system established
by SORNA and the law’s internet notification provision violate his procedural due
process rights under the United States and Pennsylvania Constitutions insofar as
they deprived him of his rights to reputation, privacy, and the right to pursue
happiness.5 By designing a statutory scheme that does not provide him with any
5
Petitioner identifies Article I, Sections 1 and 9 of the Pennsylvania Constitution as
providing him with due process rights. Section 11 of Article I is also applicable in due process
challenges when a petitioner is seeking a remedy in a court. See Lyness v. State Board of
Medicine, 605 A.2d 1204, 1207 (Pa. 1992) (stating: “[t]he guarantee of due process of law, in
Pennsylvania jurisprudence, emanates from a number of provisions of the Declaration of Rights,
particularly Article I, Sections 1, 9 and 11 of the Pennsylvania Constitution”). Article I, Section
11 states:
All courts shall be open; and every man for an injury done him in his lands,
goods, person or reputation shall have remedy by due course of law, and right and
justice administered without sale, denial or delay. Suits may be brought against
the Commonwealth in such manner, in such courts and in such cases as the
Legislature may by law direct.
(Continued…)
5
sort of hearing, Petitioner argues that the General Assembly deprived him of the
right to be heard by a court and to present mitigating factors.6 (Petition Addendum
I at 3-4.) According to Petitioner’s allegations, SORNA is constitutionally infirm
because it places an irrebuttable presumption upon him that he cannot be
rehabilitated and “will always present a constant high risk of danger to the
community at large.” (Petition ¶ 1.B.) Relatedly, Petitioner asserts that he was
deprived of his due process rights because the internet notification provision of
SORNA mandates the disclosure of “constitutionally protected personal
information to the public the world over.” (Petition ¶ 1.C.)
Second, Petitioner alleges that his substantive due process rights guaranteed
by the Pennsylvania Constitution were violated by SORNA in general by imposing
“an unreasonable, arbitrary, and permanent infringement of [his] fundamental
rights to reputation . . . privacy[,] and his right to pursue his own happiness.”
(Petition ¶ 1.A.) Further, Petitioner alleges that his rights to privacy and reputation
guaranteed by the substantive due process clauses of both the United States and
Pennsylvania Constitutions were violated by SORNA’s internet notification
provision. (Petition ¶ 1.C.)
Pa. Const. art. I, § 11.
6
Relatedly, Petitioner argues that his procedural due process rights were violated when
the PSP classified him as a Tier III offender because the PSP has no authority to classify
Petitioner and, thus, impermissibly acted in a judicial role. (Petition ¶ 1.E.) It appears that
Petitioner has misread the statute; the General Assembly, not the PSP, determined that
Petitioner’s offense was a Tier III offense. See 42 Pa. C.S. § 9799.14 (listing the offenses that
fall under each tier). Because the statute provides the PSP with no discretion in classifying
Petitioner, it did not act in a judicial capacity and Petitioner has not stated a viable claim.
6
Third, Petitioner alleges that his right to equal protection under the United
States and Pennsylvania Constitutions was violated by SORNA’s tier classification
system, in general, and by being treated differently than others in three ways.
Initially, Petitioner argues that he was deprived of equal protection of the laws
because those who were incarcerated at the time Megan’s Law I was enacted are
required to register as a sexual offender, and those who were convicted of the same
crime as Petitioner, but were released from incarceration and not under the
supervision or control of the Board of Probation and Parole (Parole Board) prior to
enactment, are not. (Petition ¶ 1.G.) Further, Petitioner alleges an equal protection
violation on the basis of his inability under SORNA to challenge the internet
notification provision. (Petition ¶ 1.D.) According to his allegations, Petitioner is
subject to an arbitrary classification by not being able to challenge the internet
notification requirements of SORNA when those who were juveniles at the time of
their conviction may do so. (Petition ¶ 1.D.) Finally, Petitioner argues that he is
impermissibly treated differently than those convicted after the enactment of
Megan’s Law I because those offenders have the right to challenge their
classification with the assistance of court-appointed counsel in post-trial
proceedings. (Petition ¶ 1.F.)
Fourth, Petitioner alleges that various requirements of SORNA violate the
Ex Post Facto Clauses of the United States and Pennsylvania Constitutions.
Petitioner alleges that the provisions of SORNA are more restrictive than previous
versions and removed “liberty interest[s] created under previous versions of” the
law. (Petition ¶ 2.A.) Petitioner specifically points to the registration requirements
of SORNA, which he argues are more restrictive than previous versions of
7
Megan’s Law, and the removal of a right bestowed upon him by Section 9795.5 of
Megan’s Law III, 42 Pa. C.S. § 9795.5 (expired December 20, 2012, pursuant to
Section 9799.41 of SORNA, 42 Pa. C.S. § 9799.41). Under that expired provision,
an offender subject to lifetime registration may, provided certain requirements are
met, petition the sentencing court to be exempt from the Megan’s Law III
provision requiring information to be posted on the internet. 42 Pa. C.S. § 9795.5.
Fifth, and finally, Petitioner raises two claims with regard to his 1994
negotiated plea agreement. Petitioner notes that he entered a guilty plea that
limited the penalties imposed upon him two years before Megan’s Law I went into
effect. By imposing additional penalties, Petitioner avers SORNA impairs the
obligations outlined in his 1994 plea agreement in violation of Article I, Section 17
of the Pennsylvania Constitution and Article I, Section 10 of the United States
Constitution. (Petition ¶ 2.B.) Petitioner further contends that SORNA deprives
him of his liberty and violates his due process rights by imposing penalties beyond
the terms of his negotiated plea agreement. (Petition ¶ 1.H.)
III. The PSP’s POs
The PSP objects to Petitioner’s allegations in three POs in the nature of a
demurrer.7 First, the PSP avers that Petitioner’s due process, equal protection, and
7
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 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). 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.
8
ex post facto claims have been found to be without merit. The PSP’s allegation
reads as follows:
In its Memorandum Opinion in Haigh v. Commissioner of
Pennsylvania State Police, 2010 WL 9519049, No. 518 M.D. 2010
(Pa. Cmwlth. Dec. 30, 2010), this Court found that sex offender
registration requirements do not violate the Due Process, Equal
Protection, and Ex Post Facto [C]lauses of the Pennsylvania and
United States Constitutions.
(POs ¶ 11.)8
Second, the PSP objects to Petitioner’s due process claims under the United
States Constitution because Petitioner only alleges that his rights to reputation,
privacy, and the pursuit of happiness were deprived, and these rights are not
protected under the Fourteenth Amendment to the United States Constitution.
Third, the PSP objects to Petitioner’s claims under Article I, Section 9 of the
Pennsylvania Constitution, which provides due process protections in the context
of criminal prosecutions, because no criminal prosecution is at issue in this case.
We now address each of Petitioner’s claims and the PSP’s objections thereto
below.
8
Haigh is an unreported panel decision of this Court and, pursuant to Section 414(a) of
this Court’s Internal Operating Procedures, an unreported panel decision issued by this Court
after January 15, 2008 may be cited “for its persuasive value, but not as binding precedent.” 210
Pa. Code § 69.414(a).
9
IV. Discussion
1. Due Process Under the Fourteenth Amendment to the United States
Constitution
We first address the PSP’s demurrer to Petitioner’s due process claims under
the United States Constitution. The PSP’s POs assert that Petitioner did not state a
claim that his rights were violated under the Due Process Clause of the United
States Constitution because Petitioner only alleged that he was deprived of his
rights to reputation, privacy, and the pursuit of happiness. According to PSP’s PO,
“[b]ecause the Due Process Clause of the United States Constitution does not
protect individuals’ rights of reputation, privacy, and the pursuit of happiness,
Petitioner can assert no facts which would allow recovery under the law.” (POs ¶
17.) Petitioner argues in response that, although reputational interests alone are not
sufficient to invoke due process protection under the United States Constitution,
the internet publication of his private information, coupled with other onerous
provisions of SORNA, constitutes a significant imposition beyond the mere
tarnishment of his reputation and establishes liberty interests that are protected
under the Due Process Clause.
The Due Process Clause of the Fourteenth Amendment to the United States
Constitution applies only when “the state seeks to deprive a person of a life, liberty
or property interest,” Pennsylvania Game Commission v. Marich, 666 A.2d 253,
255 (Pa. 1995). However, liberty, as used in the Fourteenth Amendment, is a
broad concept. See Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (“Without
doubt, [liberty interests] denotes not merely freedom from bodily restraint but also
the right of the individual . . . generally to enjoy those privileges long recognized at
common law as essential to the orderly pursuit of happiness by free men.”).
10
Although the Pennsylvania Supreme Court has advised us that “there can be no
doubt that the United States Constitution guarantees a right to privacy,” we find no
precedent that there is a fundamental privacy right to have one’s criminal history
and picture shielded from public view. In re June 1979 Allegheny County
Investigating Grand Jury, 415 A.2d 73, 77 (Pa. 1980) (rejecting a claim that a
record of an arrest is protected by the right to privacy). We, therefore, agree that
Petitioner has not stated a claim for violation of his right to privacy under the
United States Constitution.
Petitioner also asserts that his right to reputation under the United States
Constitution is infringed by SORNA’s internet notification provision. While
reputational interests alone are insufficient to invoke federal due process
guarantees, federal courts have held that a plaintiff may “make out a due process
claim for deprivation of a liberty interest in reputation [by] show[ing] a stigma to
his reputation plus deprivation of some additional right or interest.” Hill v.
Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006) (emphasis in original)
(citing Paul v. Davis, 424 U.S. 693, 701 (1976)). Under the so-called “stigma-
plus” test, a petitioner “must show[:] (1) some utterance of a statement that is
sufficiently derogatory to injure his or her reputation, which is capable of being
proved false, and (2) some material and state-imposed burden or alteration of his or
her status or of a right.” D.C. v. School District of Philadelphia, 879 A.2d 408,
416 (Pa. Cmwlth. 2005).
The federal circuit courts appear to be split on whether state Megan’s Laws
satisfy the “stigma-plus” test and the United States Supreme Court has yet to
11
address this issue. See Doe v. Department of Public Safety ex rel. Lee, 271 F.3d
38, 57-59 (2d Cir. 2001) (Connecticut I) (holding that by mandating that a sex
offender registry be published on the internet, Connecticut’s Megan’s Law imposes
restrictions that implicate the plaintiff’s liberty interests under the “stigma-plus”
test), rev’d on other grounds by Connecticut Department of Public Safety v. Doe,
538 U.S. 1, 7-8 (2003) (Connecticut II) (“find[ing] it unnecessary to reach” the
question of whether a sexual offender was deprived of an interest protected by the
Fourteenth Amendment); Schepers v. Indiana Department of Correction, 691 F.3d
909, 914 (7th Cir. 2012) (holding that by depriving sexual offenders of rights held
by ordinary citizens of Indiana, Indiana’s Megan’s Law imposes restrictions that fit
the requirements of the “stigma-plus” test); but see Dean v. McWherter, 70 F.3d
43, 45 (6th Cir. 1995) (holding that a provision of a Tennessee law that labeled
convicted sexual offenders as “a species of mentally ill persons,” “does not,
without more, impute a liberty interest sufficient to trigger due process
protections”) (internal quotation marks omitted). Notwithstanding this uncertainty,
we hold that, under the facts alleged, Petitioner cannot meet the “stigma-plus” test
because the allegedly derogatory statements posted on the internet to which
Petitioner is objecting are incapable of being proven false. The allegedly
derogatory statements are nothing more than statements that Petitioner has pled
guilty to a sexually violent offense and is currently registered with the PSP, facts
Petitioner acknowledges to be true.
Accordingly, Petitioner has not stated a due process claim under the
Fourteenth Amendment to the United States Constitution, and we sustain the PSP’s
PO demurring to that claim.
12
2. Due Process Under Article I, Sections 1 and 11 of the Pennsylvania
Constitution
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. Further, Article I, Section 11 of the
Pennsylvania Constitution provides that “[a]ll courts shall be open; and every man
for an injury done him in his lands, goods, person or reputation shall have remedy
by due course of law, and right and justice administered without sale, denial or
delay.” Pa. Const. art. I, § 11. Unlike the Due Process Clause of the Fourteenth
Amendment, our Supreme Court has acknowledged that reputation and privacy are
protected under the above provisions 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); In re June
1979 Allegheny County Investigating Grand Jury, 415 A.2d at 77 (stating that the
right to privacy as protected by Article I, Section 1 encompasses the freedom from
disclosure of personal matters and the freedom to make certain important
decisions). Accordingly, reputation and privacy are among the fundamental rights
that cannot be abridged without compliance with state constitutional standards of
due process. R., 636 A.2d at 149.
Petitioner alleges that: (1) his procedural due process rights are infringed by
SORNA’s registration requirements because the statute creates an irrebuttable
presumption that Petitioner will always be a high risk of danger to the community
and he is subject to SORNA’s internet notification provision without providing
13
him an opportunity to challenge his level of dangerousness; and (2) his substantive
due process rights are violated by SORNA in general because it imposes “an
unreasonable, arbitrary, and permanent infringement of [his] fundamental rights to
reputation, . . . privacy[,] and [his] right to pursue his own happiness,” and,
specifically, by SORNA’s internet notification provision. (Petition ¶¶ 1.A, 1.C.)
The PSP demurs to these claims, asserting that they do not have merit under
existing precedent. By citing to Haigh, the PSP relies on our decision in Doe v.
Miller, 886 A.2d 310 (Pa. Cmwlth. 2005), for the proposition that Megan’s Law II
did not raise due process concerns. Haigh, slip op. at 3. In Miller we addressed a
pro se class’s allegations that the registration and notification requirements of
Megan’s Law II violated its rights to due process and equal protection under the
Pennsylvania and United States Constitutions. Miller, 886 A.2d at 313. The PSP
filed preliminary objections in the nature of a demurer, which we sustained. Id. at
314, 317. However, we did not hold in Miller that a petitioner could not assert a
due process claim with regard to Megan’s Law II. Id. at 314. Instead, we simply
concluded that because the class failed to adequately allege “which property right
or other protected interest” was infringed by Megan’s Law II, the class failed to
state a substantive due process claim. Id.9 Because Miller addressed Megan’s Law
9
In Miller we also held that, because a substantive due process claim involves the same
analysis as an equal protection claim, the class’s substantive due process claim failed by virtue of
its failure to state an equal protection claim. Miller, 886 A.2d at 314. While it is true that we
conduct the same analysis for substantive due process as we do for equal protection, Griffin v.
Southeastern Pennsylvania Transportation Authority, 757 A.2d 448, 452 (Pa. Cmwlth. 2000),
this is only the case when the standard of review for each claim coincides, i.e., a petitioner is not
a member of a protected class and is asserting that a non-fundamental right was deprived. Here,
Petitioner is not a member of a suspect class, but is alleging that his fundamental right to
reputation is implicated by SORNA. As such, we analyze Petitioner’s due process claim under
(Continued…)
14
II, which contained very different notification requirements than SORNA,10 and
did not directly address the merits of the petitioners’ due process claim, that case is
not dispositive and the PSP has not sufficiently objected to Petitioner’s substantive
due process claim for us to dismiss that claim.
Petitioner specifically alleges that SORNA’s registration and internet
notification provision are based on an impermissible irrebuttable presumption. Our
Supreme Court recently assessed the constitutionality of the irrebuttable
presumption as applied to juveniles in In re J.B., 107 A.3d 1 (Pa. 2014).11
According to Section 9799.11(a)(4) of SORNA, “[s]exual offenders pose a high
risk of committing additional sexual offenses and protection of the public from this
type of offender is a paramount government interest.” 42 Pa. C.S. § 9799.11(a)(4).
The presumption that sexual offenders pose a high risk of reoffense is a
cornerstone of SORNA’s statutory scheme, and under that scheme individual
sexual offenders are not provided an opportunity to rebut this presumption. See
Section 9799.23(b) of SORNA, 42 Pa. C.S. § 9799.23(b) (stating that courts shall
not have the authority, with certain exceptions, to relieve a sexual offender from
strict scrutiny and analyze his equal protection claim under a rational basis standard. See Miller,
886 A.2d at 315 (stating that “legislation creating different categories among criminal
offenders[] receives rational basis review; however, legislation based on suspect classifications,
such as race, national origin, or alienage, as well as classifications that affect fundamental rights
are examined under strict scrutiny”).
10
We did not address whether the petitioners’ fundamental right to reputation was
infringed by Megan’s Law II in Miller. Crucially, Miller addressed Megan’s Law II, which did
not include a public notification provision.
11
Because J.B. was issued on December 29, 2014, the parties, here, did not have the
benefit of J.B. at the time of their filings.
15
the duty to register.) Thus, under SORNA, individuals convicted of sexually
violent offenses are required to register without there ever being a determination
regarding their level of dangerousness.
In J.B., the Supreme Court concluded that SORNA’s irrebuttable
presumption that juvenile sexual offenders always pose a high risk of reoffense
encroached upon the juvenile petitioners’ constitutionally protected interest in their
reputation without due process of law. 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.
According to 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.
Id. at 16-17 (citations omitted).
After determining that the juvenile petitioners had a protected right to their
reputations, the Supreme Court summarized its case law outlining the so-called
“irrebuttable presumption doctrine” as providing that “‘irrebuttable presumptions
are violative of due process where the presumption is deemed not universally true
16
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 (quoting Clayton, 684
A.2d at 1063). 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. Id. Concluding that the “irrebuttable presumption
doctrine” was satisfied, the Supreme Court held that the lifetime registration
requirement was unconstitutional as applied to juveniles. Id. at 19-20.
Although the Supreme Court’s holding in J.B. is limited to juvenile
offenders, that decision provides us with the analytical framework with which to
consider whether Petitioner has stated a claim challenging, on procedural due
process grounds, SORNA’s irrebuttable presumption.
17
Under J.B., we first determine whether Petitioner has asserted a reputational
interest protected by due process. The Supreme Court recognized a
constitutionally-protected reputational interest for the juvenile sexual offenders in
J.B., and has also recognized a reputational interest for adults adjudged to be
sexually violent predators implicated by the sex offender notification provisions of
earlier versions of Megan’s Law. See Commonwealth v. Maldonado, 838 A.2d
710, 714 (Pa. 2003) (quoting Brummer v. Iowa Department of Corrections, 661
N.W.2d 167, 174-75 (Iowa 2003)) (holding that “there is little doubt” the
notification requirements applicable under Megan’s Law II to adult sexually
violent predators “constitutes a significant imposition beyond the mere tarnishing
of one’s reputation, as it ‘threatens the impairment and foreclosure of the
associational or employment opportunities of persons who may not truly pose the
risk to the public that an errant risk assessment would indicate’”); Commonwealth
v. Williams, 733 A.2d 593, 607 (Pa. 1999) (determining that “[o]ne’s livelihood,
domestic tranquility and personal relationships are unquestionably put in jeopardy
by the notification provisions” applicable to adult sexually violent predators).12
12
Both Maldonado and Williams assessed the requirements placed upon sexually violent
predators in the earlier versions of Megan’s Law. Under those versions of the law,
the name, address, offense, designation and photograph of sexually violent
predators . . . . [was] given to the neighbors of sexually violent predators, the
director of county child and youth services where the sexually violent predator
resides, the superintendent of each school district in the area, including private
and parochial schools, the director of licensed day care facilities in the
municipality where the sexually violent predator resides and the president of any
college, university and community college located within 1,000 feet of a sexually
violent predator’s residence.
Williams, 733 A.2d at 596. Because those classified as sexually violent predators under
Megan’s Law II were determined to suffer from “a mental abnormality or personality disorder,”
(Continued…)
18
While the extent of the deprivation may impact the amount of due process afforded
to sexually violent offenders, see Marich, 666 A.2d at 256 n.7 (holding that,
pursuant to Mathews v. Eldridge, 424 U.S. 319, 336 (1976), the amount of process
due is determined by balancing the private interest affect against the risk of
erroneous deprivation of such interest and the Government’s interest), we cannot
say with certainty that Petitioner will be unable to prove that SORNA deprives Tier
III adult sexual offenders of their constitutionally protected reputational interest.
Next, under J.B., we assess whether we can say with certainty that Petitioner
will be unable to satisfy the two requirements of the irrebuttable presumption
doctrine: (1) that it is not “universally true” that adult offenders pose a heightened
risk of recidivism; and (2) that a reasonable alternative process to ascertain the
presumed fact is available. J.B., 107 A.3d at 14-15. When ruling on preliminary
objections we must accept all facts alleged, and the inferences reasonably deduced
therefrom, as true. Bright v. Pennsylvania Board of Probation and Parole, 831
A.2d 775, 777 (Pa. Cmwlth. 2003). Moreover, we must resolve any doubt “in
favor of overruling the demurrer.” Surgical Laser Technologies, Inc. v.
Department of Revenue, 626 A.2d 664, 668 (Pa. Cmwlth. 1993). The question
before the Supreme Court in J.B. was whether it is universally true that juvenile
offenders pose a high risk of recidivism and, in deciding that it was not true, the
Supreme Court discussed the evidence presented to the trial court. While
describing the evidence of recidivism of juvenile sex-offenders found credible by
42 Pa. C.S. § 9792 (expired December 20, 2012, pursuant to Section 9799.41 of SORNA, 42 Pa.
C.S. § 9799.41), being labeled as such carries a stigma beyond being labeled a sexually violent
offender under SORNA. See Schepers, 691 F.3d at 914 (“Society’s abhorrence of sexually
violent predators goes above and beyond that reserved for other sex offenders.”).
19
the trial court, the Supreme Court noted that “adult sexual offenders have a high
likelihood of reoffense.” J.B., 107 A.3d at 17. However, the question of whether
it is universally true that all adult sexual offenders pose a high risk of reoffense
was not at issue in J.B. and the Supreme Court did not decide that question. Thus,
such general references are dicta and should not preclude an adult sexual offender
the opportunity to present evidence in an effort to prove that the presumption is not
universally true. Should the Petitioner meet the first requirement, the next question
would be whether a reasonable alternative process to ascertain the presumed fact is
available, such as an individualized hearing to determine whether Petitioner is
currently dangerous.13
Because we cannot say for certain that Petitioner has not stated a claim, and
because the PSP did not provide support for its objections to Petitioner’s
procedural and substantive due process claims, we overrule the PSP’s demurrer to
Petitioner’s due process claims under Article I, Sections 1 and 11 of the
Pennsylvania Constitution.14
13
Petitioner also alleges that, under the principles of procedural due process, he is
entitled to a hearing to determine whether he is currently dangerous prior to being subject to the
internet notification provision of SORNA. The United States Supreme Court has held that a
hearing is not required by the Due Process Clause of the United States Constitution. See
Connecticut II, 538 U.S. at 7 (holding 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). However, should Petitioner prove his
claim that SORNA’s irrebuttable presumption that all adult offenders pose a heightened
recidivism risk is not universally true, Petitioner may be entitled to a hearing to determine
whether he should remain registered as a sexually violent offender.
14
We note that Petitioner faces a high burden of proof to prove his allegations; SORNA,
like all duly enacted acts passed by the General Assembly, enjoys a strong presumption of
constitutionality and “‘a statute will not be declared unconstitutional unless it clearly, palpably,
(Continued…)
20
3. Procedural Due Process Under Article I, Section 9 of the
Pennsylvania Constitution
Petitioner also alleges that SORNA deprives him of his due process rights
under Article I, Section 9 of the Pennsylvania Constitution. The PSP avers that
Petitioner has not stated a claim under this constitutional provision because no
criminal prosecution is at issue.
Article I, Section 9 of our Constitution provides:
In all criminal prosecutions the accused hath a right to be heard by
himself and his counsel, to demand the nature and cause of the
accusation against him, to be confronted with the witnesses against
him, to have compulsory process for obtaining witnesses in his favor,
and, in prosecutions by indictment or information, a speedy public
trial by an impartial jury of the vicinage; he cannot be compelled to
give evidence against himself, nor can he be deprived of his life,
liberty or property, unless by the judgment of his peers or the law of
the land. The use of a suppressed voluntary admission or voluntary
confession to impeach the credibility of a person may be permitted
and shall not be construed as compelling a person to give evidence
against himself.
Pa. Const. art. I, § 9 (emphasis added). Petitioner raises no claims that implicate a
criminal prosecution; Petitioner’s claims all address administrative action taken by
the PSP well after Petitioner pled guilty to his crime and was sentenced.
Accordingly, the PSP’s PO to this claim is sustained.
and plainly violates the Constitution.’” Pennsylvania State Association of Jury Commissioners
v. Commonwealth, 64 A.3d 611, 618 (Pa. 2013) (quoting Pennsylvanians Against Gambling
Expansion Fund, Inc. v. Commonwealth, 877 A.2d 383, 393 (Pa. 2005)).
21
4. Equal Protection
Petitioner alleges multiple violations of his right to equal protection under
both the United States and Pennsylvania Constitutions. Petitioner alleges that the
entire tier classification system of SORNA violates his equal protection rights.
Petitioner asserts that he was impermissibly treated differently than others
similarly situated in three ways: (1) that he is required to register and those
convicted of the same crime, but released from prison or supervision of the Parole
Board prior to the enactment of Megan’s Law I, are not; (2) that unlike juvenile
offenders, he may not petition a court to have his notification requirements
removed; and (3) that he was not provided counsel to challenge and appeal the
SORNA registration requirements when those convicted after the enactment of
Megan’s Law I have such rights. Once again, the PSP demurs to these claims,
arguing that they are without merit based on our decision in Miller.
Equal protection is the constitutional principle that “‘like persons in like
circumstances will be treated similarly’” under the law. Miller, 886 A.2d at 315
(quoting Curtis v. Kline, 666 A.2d 265, 267 (Pa. 1995)). Article I, Sections 1 and
26 of the Pennsylvania Constitution provide the basis for equal protection under
state law. Pa. Const. art. I, § 1 (“All men are born equally free and independent,
and have certain inherent and indefeasible rights.”); Pa. Const. art. I, § 26 (stating
that “[n]either the Commonwealth nor any political subdivision thereof shall deny
to any person the enjoyment of any civil right, nor discriminate against any person
in the exercise of any civil right”).15
15
We analyze the equal protection provisions of the Pennsylvania Constitution “under the
same standards used by the United States Supreme Court when reviewing equal protection
(Continued…)
22
In Miller, we were confronted with class action claims that the classification
scheme of Megan’s Law II violated the Equal Protection Clauses of the United
States and Pennsylvania Constitutions because the General Assembly’s decision to
classify those convicted of crimes as sexual and non-sexual offenders “def[ied]
reason and common sense.” Miller, 886 A.2d at 313. In assessing the equal
protection claim, we reasoned that “‘[t]he prohibition against treating people
differently under the law does not preclude the Commonwealth from resorting to
legislative classifications, provided that those classifications are reasonable rather
than arbitrary and bear a reasonable relationship to the object of the legislation.’”
Id. at 315 (quoting Curtis, 666 A.2d at 268 (citations omitted)). Determining
whether a classification is arbitrary depends on the type of classification at issue.
The types of classifications are: (1) classifications which implicate a
“suspect” class or a fundamental right; (2) classifications implicating
an “important” though not fundamental right or a “sensitive”
classification; and (3) classifications which involve none of these.
Should the statutory classification in question fall into the first
category, the statute is strictly construed in light of a “compelling”
governmental purpose; if the classification falls into the second
category, a heightened standard of scrutiny is applied to an
“important” governmental purpose; and if the statutory scheme falls
into the third category, the statute is upheld if there is any rational
basis for the classification.
Id. (quoting Curtis, 666 A.2d at 268 (citation omitted)). Because “convicted sexual
offenders as a category of felons[] is not . . . a suspect class,” we reviewed, in
Miller, Megan’s Law II’s registration requirements under a rational basis standard
and concluded that the classification scheme met equal protection standards
claims under the Fourteenth Amendment to the United States Constitution.” Love v. Borough of
Stroudsburg, 597 A.2d 1137, 1139 (Pa. 1991).
23
because it sought to promote the legitimate state interest of promoting public safety
and welfare. Id. at 316.
Based on our holding in Miller, we are bound to conclude that Petitioner has
not stated a claim that SORNA’s three-tier classification system violates the Equal
Protection Clauses of the United States and Pennsylvania Constitutions. Further,
Petitioner’s claim that his equal protection rights were violated by being treated
differently than those convicted of the same crime as Petitioner, but released from
incarceration and not under Parole Board supervision at the time Megan’s Law I
was enacted, is similarly without merit. Convicted sexual offenders are not a
suspect class, id., and the General Assembly’s decision to exempt those who were
released from incarceration and not under the supervision or control of the Parole
Board prior to the enactment of Megan’s Law I is rationally related to promoting
public safety and welfare. See Curtis, 666 A.2d at 268 (noting that when
conducting a rational basis analysis, “the reviewing court is free to hypothesize
reasons the legislature might have had for the classification”). Locating a
convicted sexual offender subject to registration and notification requirements, but
not currently under supervision, and enforcing such requirements would place an
enormous burden on the state. Establishing reasonable enforcement mechanisms
are essential to achieving the stated goal of promoting public safety and welfare,
and the General Assembly had a rational basis to exempt those released from
prison and not on parole from the registration requirements. Accordingly, we
sustain the PSP’s demurrer to this claim.
24
Similarly, we conclude that Petitioner’s allegation that SORNA
impermissibly treats him differently than juveniles, insofar as the law provides a
mechanism by which only juveniles may have their registration requirement
terminated, also is without merit.16 Courts have long distinguished between
juveniles and adults in various areas of law. See Bellotti v. Baird, 443 U.S. 622,
635 (1979) (“although children generally are protected by the same constitutional
guarantees against governmental deprivations as are adults, the State is entitled to
adjust its legal system to account for children’s vulnerability and their needs”).
Recently, our Supreme Court, in J.B., noted research indicating that “many of
those who commit sexual offenses as juveniles do so as a result of impulsivity and
sexual curiosity, which diminish with rehabilitation and general maturation” and
that “the vast majority of juvenile offenders are unlikely to recidivate.” J.B., 107
A.3d at 17. Because those who commit sexually violent offenses as children are
less likely to recidivate, the General Assembly’s decision to provide a means for
juveniles to have their registration requirement terminated is rationally related to
promoting public safety and welfare and does not offend Petitioner’s equal
protection rights. Therefore, we will sustain the PSP’s challenge to this claim.
16
Section 9799.23(b) of SORNA provides that “the court shall have no authority to
relieve a sexual offender from the duty to register” except as provided in Section 9799.17. 42
Pa. C.S. § 9799.23(b). Under Section 9799.17(a) of SORNA, juvenile offenders “shall have the
registration requirement terminated if”: (1) “at least twenty-five years have elapsed since the
individual was []adjudicated delinquent for an offense, which if committed by an adult, would be
classified” as rape, involuntary deviate sexual intercourse, aggravated indecent assault, or
“attempt, solicitation or conspiracy to commit” the above offenses; (2) for twenty-five “years
prior to filing the petition, the individual has not been convicted of a subsequent sexually violent
offense or a subsequent offense” graded as a second degree misdemeanor or higher or an offense
“punishable by a term of imprisonment greater than one year”; (3) “[t]he individual successfully
completed court-ordered supervision without revocation”; and (4) the individual completed an
approved treatment program for sexual offenders. 42 Pa. C.S. § 9799.17(a).
25
Finally, Petitioner alleges that his equal protection rights were violated by
being afforded less due process than those convicted after the effective date of
Megan’s Law I because those convicted after the effective date are afforded the
opportunity to challenge or appeal their sexual offender classification with the
assistance of counsel. Petitioner’s averment is premised on the erroneous belief
that those convicted of sexually violent offenses after the enactment of Megan’s
Law I are capable of challenging their tier classification at a criminal proceeding
with the assistance of counsel. The registration requirements of SORNA are civil
in nature. Commonwealth v. Leidig, 956 A.2d 399, 404 (Pa. 2008). The
imposition of civil registration requirements are not components of a criminal
proceeding for which the right to the assistance of counsel attaches. See
Commonwealth v. Cox, 983 A.2d 666, 680 (Pa. 2009) (stating that the Sixth
Amendment guarantees the right to counsel at all critical stages of a criminal
proceeding). As discussed above, even if Petitioner was convicted after the
enactment of Megan’s Law I, sentencing courts lack the authority to relieve an
adult sexual offender from the duty to register. 42 Pa. C.S. § 9799.23(b)(2). The
sole circumstance where a sexual offender is given the right to counsel to challenge
and appeal a sex offender classification is when the offender is designated as a
sexually violent predator under Section 9799.24(e) of SORNA. See 42 Pa. C.S. §
9799.24(e)(2) (providing the right to court-appointed counsel at a hearing to
determine whether the individual is a sexually violent predator). Petitioner was not
designated to be a sexually violent predator; thus, even if he had been convicted
after the enactment of Megan’s Law I, he would not have been entitled to
challenge his designation with the assistance of counsel.
26
In sum, we conclude that Petitioner has not stated a claim establishing that
the SORNA provisions requiring him to register as a Tier III sexual offender
violate his right to equal protection under either the United States or Pennsylvania
Constitutions, and we sustain the PSP’s demurrers with regard to all of Petitioner’s
equal protection claims.
5. Ex Post Facto
Next, Petitioner alleges that SORNA is an ex post facto law under both the
United States and Pennsylvania Constitutions because SORNA increases
registration requirements and removes liberty interests given to him by prior
versions of Megan’s Law. The PSP alleges Petitioner’s claims were found to be
without merit by the Pennsylvania Supreme Court in Commonwealth v. Gaffney,
733 A.2d 616, 621 (Pa. 1999), and the United States Supreme Court in Smith v.
Doe, 538 U.S. 84 (2003).
Both the United States and Pennsylvania Constitutions prohibit 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
27
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).
With regard to whether the specific registration requirements of SORNA
pose ex post facto concerns, we recently conducted an extensive review of
SORNA’s registration requirements in Coppolino v. Noonan, 102 A.3d 1254 (Pa.
Cmwlth. 2014) (en banc)17 and held 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 our holding
in Coppolino, 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. Accordingly, the PSP’s PO to Petitioner’s ex post facto
challenge to SORNA’s registration requirements is sustained in accordance with
Coppolino.
Our decision in Coppolino did not address whether SORNA’s internet
notification provision constitutes an ex post facto law because the petitioner in
Coppolino was convicted under Megan’s Law III, which, like SORNA, contained
17
Coppolino, which was heard in our original jurisdiction, is currently on appeal to the
Pennsylvania Supreme Court. The Supreme Court held oral argument on whether SORNA is
unconstitutionally overbroad with respect to Coppolino’s right of free speech and will decide, on
the briefs, whether application of SORNA to Coppolino would be an unconstitutional ex post
facto application. Coppolino v. Noonan (No. 132 MAP 2014, filed July 20, 2015). At the time
the PSP filed its POs, September 11, 2014, Coppolino was not yet filed by this Court. We note,
however, that the PSP cited to Coppolino as additional authority in its reply brief to Petitioner’s
brief in opposition to the PSP’s POs.
28
an internet notification provision. Petitioner challenges the imposition of the
internet notification requirement on him as an unconstitutional ex post facto law
under both the United States Constitution and the Pennsylvania Constitution. The
United States Supreme Court has assessed whether the internet notification
provision of Alaska’s Megan’s Law was an ex post facto law under the federal
constitution in Smith. The Court held that the internet publication of accurate
information is not punitive and, therefore, posed no ex post facto concern under the
United States Constitution. Smith, 538 U.S. at 98. According to the Court:
[T]he stigma of Alaska’s Megan 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
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 (emphasis added).
The internet notification provision of Alaska’s Megan’s Law essentially
mirrors SORNA’s internet notification provision applicable to Petitioner.18 We,
18
Under Alaska’s Megan’s Law:
(Continued…)
29
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
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.
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 AS 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.
30
We have not found a Pennsylvania case binding upon this Court addressing
whether SORNA’s internet notification provision is punitive for purposes of the Ex
Post Facto Clause of the Pennsylvania Constitution,19 and the PSP’s POs does not
19
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, 42 Pa. C.S. § 9798.1
(expired December 20, 2012, pursuant to 42 Pa. C.S. § 9799.41), was not punitive for purposes
of the Ex Post Facto Clause of the Pennsylvania Constitution. 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). Moreover, it is not clear whether the Superior Court’s holding in Ackley
applies to Petitioner’s case because the Ackley decision adopts the Supreme Court’s analysis of
the punitive effects of Megan’s Law II’s notification provisions in Gomer Williams, 832 A.2d at
976, which did not require notification to the public via the internet. Ackley, 58 A.3d at 1287.
Whether disclosure on the internet is more punitive than previous notification measures, as
Petitioner alleges here, was not addressed by the Superior Court. Additionally, the Superior
Court in Ackley emphasized that the petitioner could receive relief in 2029 to the internet
notification provision under 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). Ackley, 58 A.3d at 1287-88. That
expired provision has no counterpart in SORNA.
More recently, in Commonwealth v. Perez, 97 A.3d 747, 760 (Pa. Super. 2014), the
Superior Court declined to consider whether the Pennsylvania Constitution provides greater
protections than the United States Constitution as it relates to SORNA. 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. 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
(Continued…)
31
provide support for its averment that Petitioner’s ex post facto claim under the
Pennsylvania Constitution has been rejected by courts within this Commonwealth.
At this early stage of these proceedings, and given the lack of specificity in the
PSP’s POs, 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.
6. Plea Agreement
Petitioner alleges that his 1994 guilty plea established a contract with the
Commonwealth and that imposition of SORNA upon him violates his rights under
the Contract and Due Process Clauses of the Pennsylvania and United States
Constitutions by imposing penalties beyond the terms of his negotiated plea
agreement. With regard to Petitioner’s due process allegation, the Superior Court
addressed similar issues in Commonwealth v. Benner, 853 A.2d 1068 (Pa. Super.
2004). Our decision in Haigh, cited by the PSP, adopted the Superior Court’s
reasoning in Benner. Haigh, slip op. at 4. In that case, Benner pled guilty in 1999
to a crime that carried a registration requirement of ten years under Megan’s Law I.
Benner, 853 A.2d at 1071. Benner was released from prison in 2003, after
Megan’s Law I was repealed and replaced with Megan’s Law II, which required
Benner to register for his lifetime. Id. at 1069. Benner argued that he should not
be subject to the lifetime registration requirements of Megan’s Law II because he
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).
32
entered a plea agreement, purportedly on the representation of the District
Attorney, that Benner would avoid having to register under Megan’s Law I. Id. at
1069. Benner asserted that requiring him to do so would render his plea agreement
involuntary and sentence illegal. Id. The Superior Court rejected Benner’s
argument and held that
because the registration requirements under Megan’s Law impose
only collateral consequences of the actual sentence, their application
is not limited by the factors that control the imposition of sentence.
Thus, while a defendant may be subject to conviction only under
statutes in effect on the date of his acts, and sentence configuration
under the Guidelines in effect on that same date, the application of the
registration requirements under Megan’s Law is not so limited.
Id. at 1072. The Superior Court concluded that, because the registration
requirements were not punitive, the imposition of a lifetime registration
requirement upon Benner did not violate his due process rights. Id. at 1070-71.
We find the Superior Court’s reasoning in Benner persuasive and conclude
that due process does not require lifting the registration requirements of SORNA
by virtue of Petitioner’s 1994 plea agreement. Petitioner did not know of the
registration requirements of Megan’s Law at the time of his plea, but this lack of
knowledge did not vitiate his plea or limit the collateral consequence of this
sentence. Accordingly, we shall sustain the PSP’s demurrer to Petitioner’s due
process claims regarding his plea agreement.
The PSP did not, however, object to Petitioner’s allegation that the
imposition of SORNA upon him violates the Contract Clauses of the United States
33
and Pennsylvania Constitutions as it impairs the obligation contained in his 1994
plea agreement. Accordingly, the PSP must answer this claim.
V. Conclusion
For the foregoing reasons, we hold as follows: (1) the PSP’s preliminary
objection in the nature of a demurrer to Petitioner’s allegations that SORNA’s
irrebuttable presumption and his inability to challenge whether he is currently a
recidivism risk violates his procedural due process rights under the Pennsylvania
Constitution is overruled; (2) the PSP’s preliminary objection in the nature of a
demurrer to Petitioner’s substantive due process challenge under the Pennsylvania
Constitution is overruled; (3) the PSP’s preliminary objection in the nature of a
demurrer to Petitioner’s challenge to SORNA’s internet notification provision
under the Ex Post Facto Clause of the Pennsylvania Constitution is overruled; (4)
the PSP did not object to Petitioner’s Contract Clause allegation, which must be
answered; and (5) the PSP’s preliminary objections are sustained with regard to
the remainder of Petitioner’s claims and these claims are dismissed with prejudice.
________________________________
RENÉE COHN JUBELIRER, Judge
34
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gregory S. Person, :
:
Petitioner :
:
v. : No. 222 M.D. 2013
:
Pennsylvania State Police Megan’s :
Law Section, :
:
Respondent :
ORDER
NOW, November 3, 2015, the Pennsylvania State Police Megan’s Law
Section’s (PSP) Preliminary Objections to the Second 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
Gregory S. Person’s (Petitioner) procedural due process challenges
under Article I, Sections 1 and 11 of the Pennsylvania Constitution in
relation to the Sexual Offender Registration and Notification Act’s
(SORNA) irrebuttable presumption and his inability to challenge
whether he is currently a recidivism risk as set forth in the Second
Amended Petition for Review is OVERRULED;
(2) 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 Second Amended Petition for Review
is OVERRULED;
(3) 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 Second Amended Petition for Review
is OVERRULED;
(4) The PSP shall file an Answer to Petitioner’s claims set forth in
Petitioner’s Second Amended Petition for Review, that SORNA
violates procedural and substantive due process under the
Pennsylvania Constitution, impairs the obligations contained in his
1994 plea agreement in violation of the Contract Clauses of the
United States and Pennsylvania Constitutions, 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;
(5) The PSP’s preliminary objections are SUSTAINED with regard to
the remaining claims set forth in the Second Amended Petition for
Review; and
(6) Petitioner’s remaining claims are DISMISSED WITH
PREJUDICE.
________________________________
RENÉE COHN JUBELIRER, Judge