W.H. v. Com. of PA and PSP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

W.H., :

Petitioner :

:

v. : No. 352 M.D. 2021

: Submitted: October 25, 2024

Commonwealth of Pennsylvania and :

Pennsylvania State Police, :

Respondents :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: December 23, 2024

Before this Court in our original jurisdiction are W.H.’s (Petitioner), pro se,

Petition for Review1 (Petition) challenging the constitutionality of Pennsylvania’s

Sexual Offender Registration and Notification Act2 (SORNA) and an Application

1

The document Petitioner filed was named “Motion for Temporary Restraining Order

Leading to Permanent Injunction to Cease and Desist Any and All Further Sex Offender

Registrations Under Commonwealth and Federal Laws As being Federally Unconstitutional,”

which the Court treated as a Petition for Review directed to its original jurisdiction pursuant to

Section 761 of the Judicial Code, 42 Pa.C.S. § 761, and Pennsylvania Rule of Appellate Procedure

1502, Pa.R.A.P. 1502.

2

42 Pa.C.S. §§ 9799.10-9799.42, 9799.51-9799.75. The previous version of SORNA was

originally enacted on December 20, 2011, effective December 20, 2012. See Act of December 20,

2011, P.L. 446, No. 111, § 12, effective in one year or December 20, 2012 (SORNA I). SORNA I

was amended on July 5, 2012, also effective December 20, 2012, see Act of July 5, 2012, P.L. 880,

No. 91, effective December 20, 2012 (Act 91 of 2012), and amended on February 21, 2018,

effective immediately, known as Act 10 of 2018, see Act of February 21, 2018, P.L. 27, No. 10,

§§ 1-20, effective February 21, 2018 (Act 10 of 2018), and, lastly, reenacted and amended on June

12, 2018, P.L. 140, No. 29, §§ 1-23, effective June 12, 2018 (Act 29 of 2018). Acts 10 and 29 of

2018 are generally referred to collectively as SORNA II. Through Act 10, as amended in Act 29,

the General Assembly split SORNA I’s former Subchapter H into a revised Subchapter H and

(Footnote continued on next page…)

for Summary Relief3 (Application). Petitioner argues SORNA violates the due

process clauses and equal protection clauses of the United States and Pennsylvania

Constitutions, found, respectively, in the Fourteenth Amendment, U.S. CONST.

amend. XIV, and article I, sections 1 and 26, PA. CONST. art. I, §§ 1, 26. Based on

our Supreme Court’s recent decision in Commonwealth v. Torsilieri, 316 A.3d 77

(Pa. 2024) (Torsilieri II), Petitioner cannot establish a clear right to judgment as a

matter of law and, therefore, we deny the Application.

I. THE PLEADINGS

At the time of filing of the Petition, Petitioner was an inmate at Cumberland

County Prison serving the remainder of a federal sentence. (Petition at 2.) In

Petitioner’s later filed “Motion for Immediate Hearing on Petition and Rule to Show

Cause” (Motion),4 he explains that he was previously at a halfway house in

Harrisburg at which time Petitioner was taken to a Pennsylvania State Police (PSP)

barracks to register as a sex offender. (Motion ¶ 4.) After violating the halfway

house’s rules, Petitioner was transferred to the Cumberland County Prison to serve

the remainder of his sentence. (Id. ¶ 5.) With the assistance of Cumberland County

Prison staff, Petitioner changed his address with PSP to that of the prison and his

Subchapter I. Subchapter I of SORNA II applies to sexual offenders who committed an offense

on or after April 22, 1996, but before December 20, 2012, whose registration period under a prior

act had not yet expired. See 42 Pa.C.S. §§ 9799.51-9799.75. Revised Subchapter H of SORNA II

applies to offenders who committed an offense on or after December 20, 2012. See 42 Pa.C.S.

§§ 9799.10-9799.42.

3

Petitioner titled his Application as a “Motion for Summary Judgment Pursuant to

Pennsylvania Rule of Civil Procedure 1035.2,” which this Court treats as an application for

summary relief under Pennsylvania Rule of Appellate Procedure 1532(b), Pa.R.A.P. 1532(b) (“At

any time after the filing of a petition for review in an appellate or original jurisdiction matter, the

court may on application enter judgment if the right of the applicant thereto is clear.”).

4

The Court denied the Motion on January 11, 2022, because the pleadings were not closed

and no application for relief was pending at that time.

2

employment status to unemployed as required by SORNA. (Id. ¶ 6.) Petitioner then

filed the instant Petition seeking a “temporary restraining order” ordering the PSP

“to cease and desist its federally un-constitutional actions of registration and

publication of sex offender’s information on the [PSP] website, immediately, and

remove the contents of the website from public view forever in the future.”5 (Petition

at 2.)

Petitioner avers that the registration requirements and publication of

information under SORNA violates the due process clauses of both the United States

Constitution and the Pennsylvania Constitution, specifically article I, sections 1 and

26 of the Pennsylvania Constitution. (Petition ¶ 3.) Petitioner argues that sexual

offenders are a “politically unpopular group” and that the United States Supreme

Court has ruled that a state’s laws cannot aim to “harm a politically unpopular

group.” (Id. (citing U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973)).)

Petitioner expands upon the Petition, explaining that this notion has protected several

“politically unpopular groups” from harmful legislation, and “this logic” is “not out

of line and in accord” for sexual offenders as well. (Motion ¶ 17.) Petitioner

explains that he has several college degrees, including a graduate degree in business,

several educational certificates, and two apprenticeships with the United States

Department of Labor, and he could not obtain a professional position while at the

halfway house in Harrisburg. (Id. ¶ 20.) Petitioner believes that his designation as

a sexual offender prevented him from obtaining a professional position, resulting in

irreparable harm. (Id.)

The Commonwealth of Pennsylvania (Commonwealth) and PSP (together,

Respondents) filed an Answer and New Matter. Respondents generally aver that the

5

The Petition was initially filed with the Court of Common Pleas of Cumberland County,

which transferred it to this Court.

3

Petition contains conclusions of law that do not require a response and generally

deny any factual averments made to the extent that Petitioner presented any. In their

New Matter, Respondents explain that Petitioner is subject to the amendments in

SORNA, the amendments do not constitute criminal punishment but rather create a

civil registration system, and neither they, nor the courts, have the authority to alter

the requirements set forth therein. (New Matter ¶¶ 3-5 (citing 42 Pa.C.S.

§ 9799.23(b)(2) (prohibiting judicial alterations to the registration requirements)).)

Further, Respondents assert that Petitioner has not provided any evidence to “rebut

the presumption that adult sexual offenders have a high rate of recidivism” and that

the registration and publication requirements are narrowly tailored to address that

risk thereby making them constitutional. (Id. ¶¶ 7, 21.) They also assert these

requirements are mandated by federal law, namely the Adam Walsh Child Protection

and Safety Act of 20066 (Adam Walsh Act), and the Commonwealth risks its

ongoing receipt of federal funding if the requirements are not present. (Id. ¶¶ 8-13.)

According to Respondents, the Petition fails to state a claim upon which relief can

be granted because SORNA does not violate the United States or Pennsylvania

Constitutions. (Id. ¶¶ 15, 18.) Respondents also contend that Petitioner’s claims are

barred by res judicata, laches, collateral estoppel, and sovereign immunity. (Id.

¶¶ 16-17, 19-20.)

Petitioner filed an Answer to the New Matter, observing that Respondents did

not address his claim that the legislature cannot pass legislation with the intent to

harm an unpopular group as set forth in Moreno, which includes sexual offenders as

recognized in Commonwealth v. Torsilieri, 232 A.3d 567, 596 (Pa. 2020)

6

34 U.S.C. §§ 20901-20962.

4

(Torsilieri I).7 (Petitioner’s Answer to New Matter ¶¶ 1-6.) Relying on language

from Torsilieri I and Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020), as well

as new statistics, Petitioner maintains the recidivism risk is not nearly as high as

presumed and that his recidivism risk is very low as determined by the Federal

Bureau of Prisons. (Id. ¶¶ 7-8, 15, 22-23, 35-36, 39.) Petitioner disputes that there

is no “punishment” purpose in SORNA because criminal sanctions are applicable if

SORNA’s requirements are not met. (Id. ¶ 16.) Petitioner contends SORNA, and

the Adam Walsh Act, reflect the legislatures’ creation of a politically unpopular

group and intent to harm that group through those statutes, which is unconstitutional

and does not reflect a legitimate government interest. (Id. ¶ 30.) As to the other

affirmative defenses raised by Respondents, Petitioner contends they are

inapplicable to the Petition.8 (Id. ¶¶ 31-32.)

II. THE APPLICATION AND PARTIES’ ARGUMENTS

Petitioner filed the Application, requesting that the Court read his pleadings

liberally and grant summary relief on his behalf based on Respondents’ lack of

7

Petitioner also notes that Respondents’ Answer and New Matter was untimely filed.

However, Pennsylvania Rule of Appellate Procedure 105(a) provides that the rules are to be

liberally applied, Pa.R.A.P. 105(a), and “this Court may accept a late pleading as justice requires

and where the opposing party suffers no prejudice,” Humphrey v. Department of Corrections, 939

A.2d 987, 991 (Pa. Cmwlth. 2007). Because Respondents’ Answer and New Matter was only two

days tardy and Petitioner has not shown he was prejudiced by that late filing, we will accept the

late filed Answer and New Matter. Id.

8

Petitioner attempts to add a new claim, a violation of article I, section 29 of the

Pennsylvania Constitution, PA. CONST. art. I, § 29, asserting that sexual offenders are “minorities”

who are being discriminated against. (Petitioner’s Answer to New Matter ¶¶ 13, 21.) However,

Petitioner does not explain how sexual offenders, as a class, fall within the protections of that

constitutional provision, which states: “Equality of rights under the law shall not be denied or

abridged in the Commonwealth of Pennsylvania because of the race or ethnicity of the

individual.” PA. CONST. art. I, § 29 (emphasis added).

5

defense or scientific evidence supporting a defense.9 (Appl. at 1 & ¶ 1.) Petitioner

reiterates that the United States Supreme Court has concluded in 26 cases that

“politically unpopular groups” are protected by the concept of equal protection and

that a legislative intent to harm such groups is not a legitimate governmental interest.

(Appl. ¶ 2(A)-(Z).) Petitioner claims these cases support his argument that SORNA

is unconstitutional.

In their brief opposing summary relief, Respondents set forth the history of

SORNA and the complex litigation leading to its current iteration. Respondents

argue that Petitioner has “abandoned any due process argument, as it is completely

absent from his Application,” and Petitioner merely cites 26 United States Supreme

Court cases that reference politically unpopular groups. (Respondents’ Brief (Br.)

at 5-6.) Respondents explain that none of the cases Petitioner cites concern sexual

offender registries, the only case that discusses sexual offenders is not relevant to

Petitioner’s arguments, and in many of those cases the petitioners were not even

granted relief. As for the alleged equal protection violation, Respondents assert

Petitioner has not shown that sexual offenders are a suspect class, nor has he shown

that he has been treated differently than similarly situated people. Therefore,

Respondents assert that the Application should be denied.

Petitioner filed a responsive brief, arguing that he cited the 26 United States

Supreme Court cases not because they applied or because the petitioners prevailed

therein, but “to show that individuals such as [] Petitioner, who represent[] the

politically unpopular minority group called ‘sex[ual] offenders’ . . . [are] similarly

situated to other racial and minority groups . . . when it comes to seeking equality

and due process.” (Petitioner’s Br. ¶ 2.) Petitioner explains that the legislature

9

Respondents did not file a cross-application for summary relief.

6

cannot desire “to harm a politically unpopular group” and that desire “cannot

constitute a legitimate governmental interest.” (Id. ¶ 3 (quoting Moreno, 413 U.S.

at 534).) Thus, as sexual offenders are politically unpopular groups, Petitioner

contends they deserve “to be given equal rights and protections.” (Id.) Petitioner

maintains “that sex[ual] offenders have one of the lowest, if not the lowest,

recidivism rate of any group of former felons over both the short term and the long

term for new sex[ual] offenses.” (Id. ¶ 4.) Although sexual offenders “may reoffend

for other types of crimes,” Petitioner argues the rate of recidivism “for another

sex[ual] offense . . . is extremely low.” (Id.) Petitioner contends that when sexual

offenders are released from prison, most “only want to attempt to blend back into

society as productive citizens, but the registration scheme deprives them of both

privacy and the ability to obtain good paying jobs or housing in nice neighborhoods,

as a continual shunning of them by society today.” (Id. ¶ 6.) Petitioner further argues

that “sex[ual] offender [registration] statutes resemble probation.” (Id. ¶ 8 (citing

Lacombe, 234 A.3d at 627 (Mundy, J., concurring)).) Petitioner disputes that

SORNA has a nonpunitive purpose. (Petitioner’s Answer to New Matter ¶ 16.)

Petitioner summarizes that SORNA violates Petitioner’s right to “reputation[]” and

is thus unconstitutional. (Petitioner’s Br. ¶¶ 9, 11.)

Following the parties’ principal briefing, the Supreme Court issued its

decision in Torsilieri II, in which the Court reversed a court of common pleas’

decision and upheld the constitutionality of SORNA in the face of challenges that

the presumption that adult sexual offenders pose a higher risk of recidivism violates

due process, that SORNA’s notification and registration requirements infringe one’s

reputational interests in violation of substantive due process, and that those

requirements are punitive in nature. The Court permitted the parties to file

7

supplemental memoranda of law to address Torsilieri II and the impact, if any, that

decision has on the claims here. Petitioner did not file a supplemental memorandum

of law. Respondents did so, in which it reiterated that Petitioner’s arguments are

conclusory and that if Petitioner has not abandoned his due process argument by not

asserting it in the Application, Torsilieri II has effectively disposed of that issue by

rejecting the appellee’s substantive due process challenge to SORNA there.

III. DISCUSSION

Petitioner seeks summary relief on his claims that SORNA violates due

process and equal protection and that, for this reason, he should not be required to

register as a sexual offender. An application for summary relief may be filed

pursuant to Pennsylvania Rule of Appellate Procedure 1532(b), Pa.R.A.P. 1532(b),

at any time after the filing of a petition for review. Summary relief is properly

granted where “the pleadings, depositions, answers to interrogatories, and

admission[s] on file, together with the affidavits, if any, show that there is no genuine

issue of material fact and that the moving party is entitled to judgment as a matter of

law.” Ducjai v. Dennis, 656 A.2d 102, 113 (Pa. 1995). Summary relief “will be

denied where material facts are in dispute[,] or the applicant is not clearly entitled to

judgment as a matter of law.” Allen v. Pa. Bd. of Prob. & Parole, 207 A.3d 981,

984 n.4 (Pa. Cmwlth. 2019). “The record must be viewed in the light most favorable

to the nonmoving party, and all doubts as to the existence of a genuine issue of

material fact must be resolved against the moving party.” Marks v. Tasman, 589

A.2d 205, 206 (Pa. 1991). Summary relief may be entered only in those cases where

the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., Inc., 562

A.2d 279, 280 (Pa. 1989).

8

Reviewing Petitioner’s filings, it is difficult to discern the specific bases on

which he is asserting his constitutional challenges. While Petitioner cites 26 United

Supreme Court cases for the principle that a legislature’s intent to harm or punish a

politically unpopular group cannot be a legitimate governmental interest that will

defeat an equal protection challenge, and analogizes sexual offenders to the groups

at issue in those cases,10 he also acknowledges that the comparison group did not

10

Kincaid v. Williams, 600 U.S. __, 143 S.Ct. 2414 (2023) (denying certiorari in case

involving gender dysphoria and a suit against a county sheriff for not providing accommodations

at a detention center relating to that condition); 303 Creative LLC v. Elenis, 600 U.S. 570 (2023)

(holding that website designer could not be made to develop a wedding website for a same sex

couple as doing so would be contrary to the designer’s religious beliefs); Bostock v. Clayton

County, Georgia, 590 U.S. 644 (2020) (holding that it was unlawful for an employer to

discriminate against employees based on being homosexual or transgender); Gundy v. United

States, 588 U.S. 128 (2019) (holding that a provision of the Adam Walsh Act that authorized the

United States Attorney General to specify that act’s registration requirements to sexual offenders

who were convicted of sex offenses prior to its enactment did not violate the nondelegation

doctrine); Trump v. Hawaii, 585 U.S. 667 (2018) (reversing preliminary injunction against

implementation of Presidential Proclamation that prohibited entry to the United States by foreign

nationals from six predominantly Muslim countries); Whole Woman’s Health v. Hellerstedt, 579

U.S. 582 (2016) (holding state law requiring abortion providers to have admitting privileges to a

hospital within 30 miles of their abortion facility and for such facility to meet the standards for

ambulatory surgical centers was unconstitutional), overruled in part by Dobbs v. Jackson Women’s

Health Org. 597 U.S. 215 (2022); United States v. Windsor, 570 U.S. 744 (2013) (upholding

determination that exclusion from spousal deduction for federal estate tax purposes of same sex

spouses was unconstitutional); League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006)

(holding a state’s redistricting of congressional districts resulted in voter dilution); Lawrence v.

Texas, 539 U.S. 558 (2003) (striking as unconstitutional a state law making it a crime for people

of the same sex to engage in certain intimate sexual conduct); Bd. of Trs. of Univ. of Ala. v. Garrett,

531 U.S. 356 (2001) (suit by state employees with disabilities claiming discrimination based on

their disabilities and seeking money damages found to be barred by Eleventh Amendment, U.S.

CONST. amend. XI, state immunity); Reno v. American-Arab Anti-Discrimination Comm., 525

U.S. 471 (1999) (concluding federal courts lacked jurisdiction over suit by resident aliens

challenging their being targeted for deportation based on their membership to a pro-Palestinian

group in violation of the United States Constitution); Printz v. United States, 521 U.S. 898 (1997)

(holding requiring county sheriffs to perform background checks for firearms under federal law

was unconstitutional for violating sovereignty principles); Romer v. Evans, 517 U.S. 620 (1996)

(holding state constitutional amendment prohibiting legislative, executive, or judicial action

(Footnote continued on next page…)

9

always win and “not all of [those cases] apply in this case.” (Petitioner’s Br. ¶¶ 2-

3, 10; Appl. ¶ 2; Petition at 2-4.) Petitioner also appears to challenge the universality

of the presumption that sexual offenders have a high rate of reoffense and the alleged

nonpunitive nature of SORNA, and additionally argues that his right to reputation is

designed to protect homosexual persons from discrimination violates equal protection); Lyng v.

Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., UAW, 485 U.S. 360

(1988) (holding statute precluding eligibility for or increase in food stamps for households in

which a union member is on strike did not violate equal protection and freedom of association

principles); Lyng v. Castillo, 477 U.S. 635 (1986) (determining the statutory distinction between

parents, children, and siblings, and all other groups of individuals, the latter of which receive less

food stamp benefits did not violate due process); Wright v. New Jersey, 469 U.S. 1146 (1985)

(dismissal of appeal from state supreme court decision upholding a state criminal statute relating

to the carrying of an “exacto” knife against a vagueness challenge for want of federal question);

City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432 (1985) (upholding finding a local

zoning ordinance unconstitutional on equal protection grounds where it required a special use

permit for a group home for individuals with mental retardation as it was based on an irrational

prejudice against those individuals); Rhodes v. Chapman, 452 U.S. 337 (1981) (upholding prison

policy relating to double celling inmates against a challenge brought by prisoners claiming it

constituted cruel and unusual punishment); New York City Transit Auth. v. Beazer, 440 U.S. 568

(1979) (finding that a prohibition against employing individuals who regularly use narcotics,

including methadone, did not violate equal protection); Mathews v. Diaz, 426 U.S. 67 (1976)

(holding requirement of permanent resident status and length of residence status for eligibility for

Medicare Part B supplemental insurance did not violate due process); Weinberger v. Salfi, 422

U.S. 749 (1975) (upholding statutory provision limiting Social Security widow’s benefit and

stepchildren’s benefit to those in that relationship with a deceased wage earner for more than nine

months before his death against due process challenge); Johnson v. Robison, 415 U.S. 361 (1974)

(holding system of veterans’ education benefits that excluded conscientious objectors did not

violate their rights of religious freedom and equal protection); Moreno, 413 U.S. 528 (statute

excluding from participation in the food stamp program households in which a member is

unrelated to the other members unconstitutional violated equal protection by creating an irrational

classification); New York State Dep’t of Soc. Servs. v. Dublino, 413 U.S. 405 (1973) (recipients of

public assistance benefit challenged state work requirements as being preempted by federal work

requirements and the court found no preemption); U.S. v. 12 200-Ft. Reels of Super 8mm. Film,

413 U.S. 123 (1973) (decision upholding the constitutionality of statute prohibiting the importation

of obscene matter and forfeiture of such matter against freedom of constitutional speech

challenge); and Jefferson v. Hackney, 406 U.S. 535 (1972) (holding a state system’s allocation of

benefits for one program, used more by minorities, that differed from other programs, did not

violate equal protection). Many of the references to politically unpopular groups or minorities

occurred in the dissenting or concurring opinions.

10

infringed by SORNA. (Petitioner’s Br. ¶¶ 4, 8,11; Petitioner’s Answer to New

Matter ¶¶ 4-8, 12-16, 21-24, 29-30, 35-36, 39.) Upon review, Petitioner has not

established an “entitle[ment] to judgment as a matter of law,” Ducjai, 656 A.2d at

113, particularly after the Supreme Court upheld the constitutionality of Subchapter

H of SORNA in Torsilieri II.11

Statutes carry “a strong presumption of constitutionality, which will not be

overcome unless the legislation is ‘clearly, palpably and plainly’ in violation of the

Constitution.” Torsilieri II, 316 A.3d at 86. The “party challenging legislation as

unconstitutional bears a heavy burden, and all doubts are to be concluded in favor of

a finding of constitutionality.” Id. In examining “constitutional challenges to

legislative enactments, we are ever cognizant that ‘the General Assembly may enact

laws which impinge on constitutional rights to protect the health, safety, and welfare

of society,’ but also that ‘any restriction is subject to judicial review to protect the

constitutional rights of all citizens.’” Id at 91 (quoting In re J.B., 107 A.3d 1, 14

(Pa. 2014)).

In Torsilieri II, our Supreme Court rejected claims, like those Petitioner

appears to assert here, that Subchapter H of SORNA violates the constitutional rights

of registrants, including their due process right to their reputation, through the use

of an irrebuttable presumption and the registration and publication requirements.

That Court found the reputational challenge based on the registration and publication

requirements to be synonymous with the challenge to the irrebuttable presumption

that sexual offenders pose a high risk of reoffense, reasoning that the two were

“inextricably intertwined,” and analyzed the two as one. Torsilieri II, 316 A.3d at

89, 92. The language at issue in both Torsilieri II and here is the General Assembly’s

11

The Supreme Court upheld the constitutionality of Subchapter I in Lacombe, 234 A.3d

602.

11

finding that “[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

governmental interest.” 42 Pa.C.S. § 9799.11(a)(4).

In concluding that this presumption, “which largely undergirds the criminal

justice system’s treatment of sex offenders,” was not impermissible, the Supreme

Court examined the history and current iteration of that doctrine, the evidence

presented before the trial court, and the purpose and legislative intent behind

SORNA. Torsilieri II, 316 A.3d at 79-80, 92-100. The high court reasoned that

“[t]o overturn the legislative presumption that sex offenders are more likely as a

group to commit new sex offenses,” Torsilieri was “required to establish that there

exists a scientific consensus that sexual offenders pose no greater risk of committing

additional sexual crimes than other groups not subject to similar registration laws.”

Id. at 98-99. However, Torsilieri’s own experts had conceded that “adult sexual

offenders reoffend at a rate of at least three times higher than other individuals

convicted of non-sexual offenses.” Id. at 99. Because this evidence supported,

rather than refuted, the presumption, the Court concluded that Torsilieri did not meet

“his heavy burden to demonstrate that the irrebuttable presumption at issue was

constitutionally infirm.” Id. at 100. Based on the Supreme Court’s determination in

Torsilieri II that Subchapter H of SORNA is not unconstitutional for the above

reasons, which are the same as some of those Petitioner asserts in his filings,

Petitioner has not clearly and without doubt established that he has a clear right to

judgment as a matter of law on those claims. Ducjai, 656 A.2d at 113; Musser, 562

A.2d at 280.

Petitioner’s claim challenging the alleged nonpunitive nature of SORNA fairs

no better under Torsilieri II. The second issue in Torsilieri II was Torsilieri’s claim

12

that the registration and notification requirements were punitive in nature and

unconstitutional for, among other reasons, being cruel and unusual in violation of

the Eighth Amendment to the United States Constitution, U.S. CONST., amend. VIII.

316 A.3d at 100. The Court analyzed this question using the Mendoza-Martinez

factors outlined in the United States Supreme Court decision of Kennedy

v. Mendoza-Martinez, 372 U.S. 144 (1963). After examining Subchapter H,

including changes that had been made to SORNA after it had previously been found

to be punitive in nature and an unconstitutional ex post facto law in part by our

Supreme Court in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (plurality),

and balancing the Mendoza-Martinez factors, the Court reached the opposite

conclusion in Torsilieri II, 316 A.3d at 109-10. It concluded that Torsilieri had “not

me[]t his heavy burden, by the clearest of evidence, to rebut the General Assembly’s

stated non[]punitive purpose” for Subchapter H of SORNA. Id. See also Lacombe,

234 A.3d at 609 (holding Subchapter I was not punitive). Thus, to the extent

Petitioner’s filings can be read as asserting that Subchapter H (or SORNA as a

whole) is punitive in nature, he has not clearly and without doubt established that he

has a clear right to judgment as a matter of law on those claims, Ducjai, 656 A.2d at

113; Musser, 562 A.2d at 280, given our Supreme Court’s contrary conclusion.

This leaves Petitioner’s contention that SORNA is unconstitutional because a

legislature’s intent to harm a politically unpopular group or minority, which he

maintains SORNA is intended to do, is not a legitimate governmental interest that

can allow for the disparate treatment of individuals. “Equal protection is the

constitutional principle that ‘like persons in like circumstances will be treated

similarly’ under the law.” M.T. v. Pa. State Police, 298 A.3d 466, 472 (Pa. Cmwlth.

2023) (quoting Doe v. Miller, 886 A.2d 310, 315 (Pa. Cmwlth. 2005)). The Equal

13

Protection Clause of the Fourteenth Amendment to the United States Constitution

provides: “No State shall . . . deny to any person within its jurisdiction the equal

protection of the laws.” U.S. CONST., amend. XIV. 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 (“Neither 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.”). The equal protection provisions of the Pennsylvania Constitution

are analyzed “under the same standards used by the United States Supreme Court

when reviewing equal protection claims under the Fourteenth Amendment . . . .”

Love v. Borough of Stroudsburg, 597 A.2d 1137, 1139 (Pa. 1991).

The right to equal protection under the law does not prohibit the

Commonwealth from classifying individuals for the purpose of different treatment,

and it does not require equal treatment of people having different circumstances.

Curtis v. Kline, 666 A.2d 265, 267-68 (Pa. 1995) (citations omitted). “In general,

economic and social legislation, including legislation creating classifications or

categories among criminal offenders, receives rational basis review.” Jackson

v. Commonwealth, 143 A.3d 468, 474 (Pa. Cmwlth. 2016). The rational basis test

requires a two-step analysis: the Court first determines whether the challenged

statute seeks to promote a legitimate state interest and, if it does, then the legislative

classification must be found reasonably related to accomplishing that articulated

state interest. Kramer v. Workers’ Comp. Appeal Bd. (Rite Aid Corp.), 883 A.2d

518, 534 (Pa. 2005).

14

Petitioner is correct that the United States Supreme Court has held that “the

Constitution’s guarantee of equality must at the very least mean that a bare

congressional desire to harm a politically unpopular group cannot constitute a

legitimate governmental interest.” Moreno, 413 U.S. at 534 (emphasis added).

However, Petitioner’s premise that the intent behind SORNA is to harm or punish

sexual offenders is flawed, as it has been rejected by our own Supreme Court in

Torsilieri II, 316 A.3d at 109-10 (Subchapter H), and Lacombe, 234 A.3d at 626-

27 (Subchapter I). As the Court stated in Torsilieri II, “Subchapter H offer[s] a

valid nonpunitive purpose of informing and protecting the public” from sexual

offenders, 316 A.3d at 109-10 (emphasis added), and in Lacombe, “the purpose of

Subchapter I is to ‘[p]rotect the safety and general welfare of the people of this

Commonwealth by providing for registration, community notification and access to

information regarding sexually violent predators and offenders who . . . and will live

in or near their neighborhood,’” which was a nonpunitive purpose, 234 A.3d at 618,

626-27 (citing 42 Pa.C.S. § 9799.51(b)(1)) (emphasis added). These do not reflect

that SORNA’s purpose was a “bare congressional desire to harm” sexual

offenders, Moreno, 413 U.S. at 534 (emphasis added), and Petitioner’s reliance on

Moreno to argue that there is no legitimate governmental interest for SORNA is

misplaced.

Upon review of the purpose stated by the General Assembly, and recognized

by our Supreme Court, we cannot say that the goal of promoting community safety

is not a legitimate state interest, particularly given the recent decision in Torsilieri II

upholding the presumption that sexual offenders have a high risk of reoffense.

Turning to the second factor of the equal protection analysis, we also cannot say that

SORNA’s registration and notification requirements do not bear a “rational

15

relationship to the stated goal of promoting community safety” and are not aimed at

achieving that purpose. Torsilieri II, 316 A.3d at 109. See also Lacombe, 234 A.3d

at 609 (holding that “Subchapter I is narrowly tailored to its nonpunitive purpose of

protecting the public”). Therefore, Petitioner has not clearly and without doubt

established that he has a clear right to judgment as a matter of law on his equal

protection claims, Ducjai, 656 A.2d at 113; Musser, 562 A.2d at 280.

IV. CONCLUSION

For the forgoing reasons, Petitioner has not met his burden of proving his

entitlement to summary relief on any of his claims challenging the constitutionality

of SORNA. Therefore, Petitioner’s Application is denied.

_____________________________________

RENÉE COHN JUBELIRER, President Judge

16

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

W.H., :

Petitioner :

:

v. : No. 352 M.D. 2021

:

Commonwealth of Pennsylvania and :

Pennsylvania State Police, :

Respondents :

ORDER

NOW, December 23, 2024, the “Motion for Summary Judgment Pursuant to

Pennsylvania Rule of Civil Procedure 1035.2,” filed by Petitioner W.H., which this

Court treats as an Application for Summary Relief under Pennsylvania Rule of

Appellate Procedure 1532(b), Pa.R.A.P. 1532(b), is DENIED.

____________________________________

RENÉE COHN JUBELIRER, President Judge