Doe v. PA Bd Probation

Opinions of the United

2008 Decisions States Court of Appeals

for the Third Circuit

1-23-2008

Doe v. PA Bd Probation

Precedential or Non-Precedential: Precedential

Docket No. 05-4200

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 05-4200

___________

JOHN DOE a/k/a D.T.C.

v.

THE PENNSYLVANIA BOARD OF PROBATION AND

PAROLE; STATE POLICE COMMISSIONER JEFFREY B.

MILLER; APPOINTED BOARD CHAIR

CATHERINE C. MCVEY

Chairman of the Pennsylvania Board of Probation and Parole

Catherine C. McVey; Commissioner of the Pennsylvania State

Police Jeffrey B. Miller,

Appellants

___________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 01-cv-03639)

District Judge: The Honorable Louis H. Pollak

___________

ARGUED OCTOBER 4, 2006

BEFORE: McKEE, AMBRO,

and NYGAARD, Circuit Judges.

(Filed January 23, 2008)

___________

Sue A. Unger, Esq. (ARGUED)

Office of the Attorney General of Pennsylvania

21 South 12th Street

Philadelphia, PA 19107

Counsel for Appellants

Witold J. Walczak, Esq. (ARGUED)

American Civil Liberties Union

313 Atwood Street

Pittsburgh, PA 15213

John J. Kerrigan, Jr., Esq.

174 Middletown Boulevard

Suite C300

The Lofts at Oxford Valley

Langhorne, PA 19047

Counsel for Appellee

2

__________

OPINION OF THE COURT

___________

NYGAARD, Circuit Judge.

John Doe, an anonymous plaintiff, sued under 42 U.S.C.

§ 1983, seeking declaratory and injunctive relief from aspects

of Pennsylvania's Registration of Sexual Offenders Act

("Megan's Law"), 42 P A. C ONS. S TAT. §§ 9791 et seq.

Pennsylvania's Megan's Law requires all convicted sex

offenders to register with state and local police, and subjects

certain offenders to community notification. The suit involves

the application of these requirements to a Pennsylvania resident

who was convicted of a sexual offense in New Jersey, and

sought to return to his home state to serve his parole. Under the

provisions of Pennsylvania's Megan's Law, any out-of-state sex

offender who transfers his supervision to Pennsylvania is subject

to community notification. By contrast, an individual who was

convicted of the same offense in Pennsylvania would only be

subject to community notification if, after a civil hearing, he had

been designated a "sexually violent predator due to a mental

abnormality or personality disorder that makes the person likely

to engage in predatory sexually violent offenses." 42 P A. C ONS.

S TAT. § 9792 (2000). The District Court concluded that the

disparate treatment of out-of-state offenders violates the Equal

Protection Clause of the Fourteenth Amendment to the

Constitution. The Commonwealth of Pennsylvania has

appealed. We will affirm.

3

I.

We have borrowed liberally from the well-stated factual

background section, and the carefully reasoned opinion of Judge

Pollak. See Doe v. McVey et al., 381 F.Supp.2d 443, 444-447

(E.D.Pa. 2005). John Doe, a Pennsylvania resident, was

arrested for molesting an 11-year-old girl in New Jersey. He

pleaded guilty to second degree sexual assault and was

sentenced to five years' probation and parole supervision for life.

In the sentencing report, the New Jersey judge found that

“[d]efendant's sexual deviation is not compulsive nor repetitive

and it appears was the result of an intoxicated condition on the

evening of the offense” and that Doe was “unlikely to commit

another offense.”

Ordinarily under New Jersey's Megan's Law, Doe would

then have a civil hearing to determine whether his likelihood of

recidivism was sufficiently substantial as to warrant his being

made a subject of community notification. However, because

Doe intended to return to Pennsylvania to complete his sentence,

New Jersey did not hold a community notification hearing. At

sentencing, Doe requested that his supervision be transferred to

Pennsylvania in accordance with the Interstate Compact

Concerning Parole and Probation (“the Compact”), 61 P A. S TAT.

A NN. § 324 (2002), to which both New Jersey and Pennsylvania

were signatories.1 Doe signed an “Application for Compact

1.

On June 19, 2002, the Interstate Compact for the

Supervision of Parolees and Probationers was repealed and

(continued...)

4

Services and Agreement to Return,” consenting to some

differences in probationary supervision in the two states.2 Doe

1.

(...continued)

replaced by the Interstate Compact for the Supervision of Adult

Offenders, which provides for the “controlled movement of

adult parolees and probationers across state lines.” 61 P A. S TAT.

A NN.§ 324 (2002); N.J. S TAT. A NN. § 168-26 (2002). Both

compacts were approved by Congress. See 4 U.S.C. § 112 (“The

consent of Congress is hereby given to any two or more States

to enter into agreements or compacts for cooperative effort and

mutual assistance in the prevention of crime and in the

enforcement of their respective criminal laws and policies, and

to establish such agencies, joint or otherwise, as they may deem

desirable for making effective such agreements and compacts.”).

2.

The Commonwealth raised the issue whether Doe had

somehow waived his claim to the process afforded in-state

offenders when he applied for a transfer to Pennsylvania by

agreeing to comply with the conditions present in Pennsylvania.

The record makes clear that Doe was not informed that he would

be required to submit to community notification until several

months after he applied for the transfer and signed this

agreement. "Waivers of constitutional rights not only must be

voluntary but must be knowing, intelligent acts done with

sufficient awareness of the relevant circumstances and likely

consequences." Brady v. United States, 397 U.S. 742, 748

(1970). The District Court here found no waiver and neither do

(continued...)

5

was allowed to travel to Pennsylvania pending acceptance of his

application to transfer his probation.

Upon receiving Doe's application, the Pennsylvania

Board of Probation and Parole held an equivalency hearing in

which it determined that, had Doe been convicted in

Pennsylvania, he would have been guilty of indecent assault. 18

P A. C ONS. S TAT. § 3126(a)(7) (2000). Where, as here, the

victim is under age thirteen, indecent assault constitutes a

misdemeanor in the first degree and is designated a “sexually

violent offense.” See 42 P A. C ONS.S TAT. §§ 9792, 9795.1(a)(1)

(2000).

Doe registered with the Pennsylvania State Police as a

sex offender, but refused to consent to community notification

without some assessment to determine whether he posed any

danger to the community. As a result, the Pennsylvania Board

of Probation and Parole denied Doe's application for transfer of

probation and informed him that he had to leave the

Commonwealth. Doe filed an administrative appeal of that

decision, and without awaiting disposition of the administrative

2.

(...continued)

we. The application for parole transfer refers only to differences

in the "supervision" Doe would receive in the two states. It does

not make reference to community notification, Megan's Law, or

the waiver of any constitutional rights.

6

appeal, filed a Section 1983 action.3 Doe alleged that, by

treating him differently from in-state offenders, the Board,

Board Chairman William F. Ward, and State Police

Commissioner Paul Evanko violated his constitutional right to

equal protection and due process as well as his statutory rights

under the Interstate Compact Concerning Parole.4 The Board

3.

We are satisfied that Doe has properly brought this

action under Section 1983. For prisoners, the difference

between a civil rights action and a collateral attack is easy to

describe. Challenges to conditions of confinement fall under §

1983. Preiser v. Rodriguez, 411 U.S. 475, 500, (1973). Attacks

on the fact or duration of the confinement come under 28

U.S.C.A. § 2254. Id. However, for parolees and probationers,

the question of whether a claim should be made under Section

1983 or under federal habeas has been described as a more

“metaphysical” one, because the “conditions” of parole are the

confinement. Williams v. Wisconsin, 336 F.3d 576, 579 (7th Cir.

2003). Here, Doe is not challenging the actual conditions of his

confinement. Instead, he simply wishes to transfer those

conditions placed upon him by the State of New Jersey to the

Commonwealth of Pennsylvania. See Muhammad v. Close, 540

U.S. 749, 750 (2004) (per curiam) (citing Preiser, 411 U.S. at

500). An inmate's challenge to the circumstances of his

confinement may be brought under Section 1983.

4.

On September 30, 2004, the District Court entered

orders dismissing the Board on Eleventh Amendment grounds

(continued...)

7

has given Doe permission to remain in Pennsylvania pending

resolution of his administrative appeal, and has stayed that

appeal until his Section 1983 action is final.

The Commonwealth filed a motion for judgment on the

pleadings. The District Court denied that motion without

prejudice and ordered the parties to submit cross-motions for

summary judgment limited to the claim that community

notification, as applied to Doe, violated the Interstate Compact.

Doe v. Pa. Bd. of Prob. & Parole, No. 01-3639, 2002 WL

31548998, 2002 U.S. Dist. Lexis 15067 (E.D.Pa. July 26, 2002).

After the parties submitted those motions, the District Court

granted the Commonwealth’s Motion for Summary Judgment,

and invited the parties to re-file their Motions for Judgment on

the Pleadings on the constitutional claims in Doe's complaint.

Doe v. Pa. Bd. of Prob. & Parole, No. 01-3639, 2003 U.S. Dist.

Lexis 6795 (E.D.Pa. Mar. 31, 2003).

II.

The District Court had federal question jurisdiction under

28 U.S.C. § 1331. We exercise jurisdiction over this appeal

4.

(...continued)

for lack of jurisdiction, and substituting Acting Board Chairman

Benjamin A. Martinez for Chairman Ward and State Police

Commissioner Jeffery B. Miller for Commissioner Evanko. By

order of July 21, 2005, Board Chair Catherine C. McVey was

substituted for former Acting Board Chairman Martinez.

8

under 28 U.S.C. § 1291. Our standard of review for judgment

on the pleadings is plenary. Sikirica v. Nationwide Ins. Co., 416

F.3d 214, 220 (3d Cir. 2005) (citing Jablonski v. Pan Am. World

Airways, Inc., 863 F.2d 289, 290 (3d Cir. 1988)).

III.

Pennsylvania’s “Megan’s Law” has undergone three

distinct enactments. The Act was first passed in 1995. The

version of the law being challenged in this appeal was enacted

in 2000 and is referred to as “Megan’s Law II.” A final revision

of the law took effect in January of 2005, (“Megan’s Law III”)

and requires that all offenders (both in-state and out-of-state) be

listed on the Pennsylvania State Police website as a component

of community notification. Pennsylvania’s Megan’s Law statute

sets forth the purpose for registering sexual offenders:

It is hereby declared to be the intention of the

General Assembly to protect the safety and

general welfare of the people of this

Commonwealth by providing for registration and

community notification regarding sexually violent

predators who are about to be released from

custody and will live in or near their

neighborhood.

42 P A. C ONS. S TAT. A NN. § 9791(b) (2000) (emphasis added).

To accomplish this goal, Megan’s Law II creates two separate

levels of notification: 1) registration with the local law

enforcement agencies, and 2) community notification. Doe does

not challenge the law’s registration provision and indeed, has

9

registered with the appropriate authorities. This appeal

challenges the manner is which the community notification

provision is applied to out-of-state offenders.

The community notification provisions apply to in-state

offenders who have been adjudicated as “sexually violent

predators” and all out-of-state offenders (regardless of their

offense and without adjudication) who have transferred their

probation to the Commonwealth. 42 P A. C ONS. S TAT. A NN. §

9798 (2000). The community notification is carried out by the

chief law enforcement officer in the particular jurisdiction by

disseminating fliers that contain the offender’s photo, name,

address and some indication that he is a sex offender. These

fliers are given to neighbors, school superintendents, school

principals, day-care directors and college presidents, charging

those individuals with the responsibility of informing

individuals whose duties include “supervision of or

responsibility for students.” 42 P A. C ONS. S TAT. A NN. § 9798(a)

and (b) (2000). A municipality’s chief law enforcement officer

is to make these fliers available to the general public upon

request. 42 P A. C ONS. S TAT. A NN. § 9798(d) (2000).

Before ordering community notification in the case of an

in-state offender, Megan’s Law II provides a comprehensive

assessment procedure to determine whether the offender is a

sexually violent predator. First, the State Sexual Offenders

Board evaluates the in-state offender. The Board reviews the

nature of the offense, the circumstances surrounding the offense

and the offender’s character and history. The Board submits a

written report containing its assessment to the district attorney.

If upon reviewing the Board’s assessment, the district attorney

10

believes community notification is warranted, he must file a

praecipe with the Court of Common Pleas, request a hearing,

and serve the praecipe and the Board’s report on defense

counsel. An adversarial hearing, with full trial procedures, is

held to determine whether the offender is a sexually violent

predator. At this hearing, the Commonwealth bears the burden

of proving by clear and convincing evidence that the offender is

a “sexually violent predator.” The offender has a right to be

heard, and to call and cross-examine witnesses, including expert

witnesses. He has a right to appointed counsel, if he cannot

afford a private attorney.

By contrast, all out-of-state offenders who transfer parole

to Pennsylvania are subject to the community notification

provisions, regardless of their offense of conviction or their

potential danger to the community. The statute provides that

any “individual ... who is paroled to the Commonwealth

pursuant to the interstate compact or the supervision of parolees

and probationers shall, in addition to the [registration]

requirements..., be subject to the requirements of section 33 of

the act ...”. 42 P A. C ONS. S TAT. A NN. § 9795.4(e)(2) (2000).

The referenced provision provides that the parolee must “submit

to mandatory registration and public notification of all current

addresses.” 61 P A. S TAT. A NN. § 331.33(d)(3) (1941).

Further, 42 Pa. Con. Stat. Ann. § 9798(e) mandates that

fliers be state-produced for all out-of-state offenders and given

by the local police department to neighbors, day-care centers,

school superintendents and various other individuals near the

sexual offender’s residence. 42 Pa. Cons. Stat. Ann. § 9798(e).

Under Megan’s Law II, these fliers are only published for in-

11

state individuals who are deemed to be “sexually violent

predators.” 42 Pa. Cons. Stat. Ann. § 9798(a).

Under this statutory scheme, there is no procedure in

which it is determined whether an out-of-state offender poses a

danger to the community, thereby triggering the community

notification provisions. An in-state offender is given the benefit

of an extensive adjudicatory process to determine if he will be

subject to community notification. Doe, as an out-of-state

offender, was not given a hearing at all. Instead, without

judicial decision, or any other determination whatsoever that

Doe was a “sexually violent predator,” the Commonwealth

simply required Doe to submit to community notification.

IV.

As a first inquiry, we must avoid deciding a

constitutional question if the case may be disposed of on some

other basis. Spicer v. Hilton, 618 F.2d 232, 239 (3d Cir. 1980);

see also Kelly v. Railroad Retirement Bd., 625 F.2d 486, 495 (3d

Cir. 1980) (Sloviter, J., concurring) (“We are constrained to

avoid passing upon a constitutional question if the case might be

disposed of on statutory grounds and we should not reach to

decide a constitutional issue, however intriguing.”)

Thus, we begin by examining whether this issue may be

resolved under the Interstate Compact for Adult Offender

Supervision. Before doing so, however, we need to determine

whether we have jurisdiction to undertake such an examination.

Put another way, we must decide whether the Compact is a state

or federal law.

12

A.

The Parole Compact provides in pertinent part:

Entered into by and among the contracting states,

signatories hereto, with the consent of the

Congress of the United States of America granted

by an act, entitled ‘An act granting the consent of

Congress to any two or more states to enter into

agreements or compacts for cooperative effort and

mutual assistance in the prevention of crime and

for other purposes.’

The contracting states solemnly agree:

(1) That it shall be competent for the duly

constituted judicial and administrative authorities

of a state party to this compact (herein called the

‘sending state’) to permit any person, convicted of

an offense within such state and placed on

probation or released on parole, to reside in any

other state party to this compact (herein called

‘receiving state’) while on probation or parole, if-

(a) Such person is in fact a resident of or has

family residing within the receiving state and can

obtain employment there.

(b) Though not a resident of the receiving state

and not having his family residing there, the

13

receiving state consents to such person being

there.

Before granting such permission, opportunity

shall be granted to the receiving state to

investigate the home and prospective employment

of such person.

A resident of the receiving state, within the

meaning of this section, is one who has been an

actual inhabitant of such state continuously for

more than one year prior to his coming to the

sending state, and has not resided within the

sending state more than six continuous months

immediately preceding the commission of the

offense for which he has been convicted.

(2) That each receiving state will assume the

duties of visitation of, and supervision over,

probationers or parolees of any sending state, and,

in the exercise of those duties, will be governed

by the same standards that prevail for its own

probationers and parolees.

61 P A. S TAT. A NN. § 321.

We have not, nor has the Supreme Court decided

whether the Interstate Parole Compact is federal or a state law.

We must now do so because federal courts do not have subject

matter jurisdiction to enjoin state officials on the basis of state

law. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89

14

(1984). In Doe v. Ward, 124 F.Supp.2d 900 (W.D. Pa. 2000),

the District Court held that the Interstate Compact on Probation

and Parole is both a state and federal law, explaining:

[A]n interstate compact is transformed into

federal law when 1) it falls within the scope of the

Constitution’s Compact Clause, 2) it has received

congressional consent, and 3) its subject matter is

appropriate for congressional legislation. Cuyler

[v. Adams 449 U.S. 433, 442 (1981)] The

interstate compact satisfies each of these

conditions.

First the need to assert cross-border control of

people subject to the jurisdiction of the criminal

justice system, whether individuals with detainers

or parolees, is a matter that falls within the scope

of the Constitution’s Compact Clause. Second,

the interstate parole compact has received

congressional consent. In fact, the legislative

source of the congressional consent is the same

for both the IAD [Interstate Agreement on

Detainers - the subject of Cuyler] and the

interstate parole compact. Lastly, the subject

matter is appropriate for congressional legislation,

as the need for interstate cooperation to monitor

and control parolees is the same as it is for

inmates with detainers.

Id. at 911-912. Adopting the reasoning of the District Court in

Ward, supra, and applying the factors set forth in Cuyler, supra,

15

the District Court herein held that the Parole Compact, as a

congressionally-sanctioned interstate compact, is federal law as

well as state law. We agree.

B.

The first avenue by which we may divert our decision

from Constitutional issues, is to see whether a private cause of

action (and remedy) exists within the Interstate Compact itself.

See Cannon v. Univ. of Chicago, 441 U.S. 677, 688 (1979)

(“[T]he fact that a federal statute has been violated and some

person harmed does not automatically give rise to a private

cause of action in favor of that person.”). The District Court

opined that Congress did not intend to create an enforceable

federal right under 42 U.S.C. § 1983 for probationers and

parolees through the Compact. We agree.

In Gonzaga Univ. v. Doe, 536 U.S. 273 (2002), the

Supreme Court took up the question of whether the Family

Educational Rights and Privacy Act of 1974 (FERPA), 20

U.S.C. § 1232g, created an enforceable right under Section

1983. The Court held that an act of Congress must

“unambiguously confer” individual rights upon a particular class

of beneficiaries for a right of action under Section 1983 to exist.

Gonzaga, 536 U.S. at 282-283.

To determine whether a statute creates enforceable rights,

we consider two indicia of legislative intent. First, we look to

statutory text for “rights creating language.” Alexander v.

Sandoval, 532 U.S. 275, 288 (2001). Such language has

generally “been the most accurate indicator of the propriety of

16

implication of a cause of action.” Cannon, 441 U.S. at 690 n.13.

Statutory language that is “rights-creating” is explicit in

conferring a right directly on a class of persons that includes the

plaintiff in a particular case. Id.; see also Gonzaga, 536 U.S.

283 (The statute’s text must be phrased in terms of the persons

benefitted.) (citations omitted). In contrast, general regulatory

language or “statutory language customarily found in criminal

statutes . . . and other laws enacted for the protection of the

general public” provide “far less reason to infer a remedy in

favor of individual persons.” Cannon, 441 U.S. at 693. That is

to say, “statutes that focus on the person regulated rather than

the individuals protected create ‘no implication of an intent to

confer rights on a particular class of persons.’” Sandoval, 532

U.S. at 289 (citations omitted).

Absent “rights creating” language, we look to whether

the statutory structure evinces an internal enforcement scheme.

The Supreme Court advises that, where a statute provides an

administrative review process, but does not provide judicial

sanctions, the “express provision of one method of enforcing a

substantive rule suggests that Congress intended to preclude

others.” Sandoval, 532 U.S. at 290; see also Karahalios v. Nat’l

Fed’n of Fed. Employees, 489 U.S. 527, 533 (1989) (“[I]t is . .

. ‘an elemental canon’ of statutory construction that where a

statute expressly provides a remedy, courts must be especially

reluctant to provide additional remedies.”) (quoting

Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19

(1979)).

Because the Compact does not manifest either expressly

or indirectly an intent to create a federal right or remedy, we

17

hold that the Compact itself does not create an enforceable right.

The language of the Compact itself creates rights for the various

states who are signatories to it. It does not create rights for

probationers or parolees. Notably, the title under which

Congress approved the Compact — “An act granting the consent

of Congress to any two or more states to enter into agreements

or compacts for cooperative effort and mutual assistance in the

prevention of crime and for other purposes” — supports our

inference that Congress approved the Compact as a means of

aiding the states in crime prevention, not as a vehicle to provide

procedural rights for probationers and parolees.5

At the second point of inquiry, the Probation Compact

regulates interactions among the states, delineating one state’s

rights and responsibilities to another. Regarding the strictures

5.

The District Court pointed out that Section 321(7) of the

Compact may be perceived as containing “rights-creating”

language, but concluded that such a perception is incorrect.

Section 321(7) provides that “[t]he duties and obligations

hereunder of a renouncing state shall continue as to parolees or

probationers residing therein at the time of withdrawal until

retaken or finally discharged by the sending state.” 61 P A.

S TAT. A NN. § 321(7). This section’s potential rights-creating

language does not qualify as the “unambiguous confer[ral]” of

rights required under Gonzaga. As the learned District Judge

observed, “Section (7) is too slender a reed to support the

conclusion that the Probation Compact includes the rights-

creating language necessary to give rise to an enforceable right

under Section 1983.” We agree.

18

imposed by one state on probationers from another, the Compact

described such requirements as duties that will be “governed by

the same standards that prevail for its own probationers and

parolees.” 61 P A. S TAT. A NN. § 321(2) (2002). As was the case

in Sandoval, the Compact here focuses upon the State entities

regulated by the standards, “rather than the individuals

protected.” Sandoval, 532 U.S. at 289. The Compact, we

conclude, creates “no implication of an intent to confer rights on

a particular class of persons.” Id.

Lastly, the Compact has no mechanism by which to

enforce the alleged “rights” of probationers or parolees. The

Compact mentions neither court adjudication nor administrative

proceedings. These omissions further lead us to conclude that

Congress did not intend to create an enforceable federal right for

probationers or parolees under this Compact.

We hold that Doe does not have a private right of action

under Section 1983 to enforce the provisions of the Interstate

Compact because one cannot be inferred from its terms.

C.

However, that does not end our contractual inquiry.

Interstate compacts are formal agreements between states, and

hence, are contracts subject to the principles of contract law.6

6.

The authority for states to enter into such agreements

with one another arises from the Compact Clause of the United

(continued...)

19

“[A] Compact is, after all, a contract.” Petty v.

Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 285, (1959)

(Frankfurter, J., dissenting). It remains a legal document that

must be construed and applied in accordance with its terms.

Texas v. New Mexico, 462 U.S. at 564; West Virginia ex rel.

Dyer v. Sims, 341 U.S. 22, 28 (1951). Interstate compacts may

be considered contracts because of the manner in which they are

enacted: there is an offer (the presentation of a reciprocal law to

state legislatures), an acceptance (the actual enactment of the

law) and consideration (the settlement of a dispute or the

creation of a regulatory scheme). See Aveline v. Pa. Bd. Prob.

& Parole, 729 A.2d 1254, 1257 n.10 (Pa. Commw. Ct.1999).7

Although a common law contract directly affects only the

rights and obligations of the individual parties to it, an interstate

compact may have a direct impact upon the larger population,

the economy, and the physical environment in the whole of the

6.

(...continued)

States Constitution, Article I, Section 10, Clause 3.

7.

For a thorough discussion of the history and contractual

nature of the Interstate Compact for Adult Offender

Supervision, see the website of the Interstate Commission for

Adult Offender Supervision, http://www.interstatecompact.org;

see also Michael L. Buenger and Richard L. Masters, The

Interstate Compact on Adult Offender Supervision: Using Old

Tools to Solve New Problems, 9 R OGER W ILLIAMS U. L. R EV. 71

(2003).

20

compact area. Therefore, although Pennsylvania and New Jersey

are the obvious parties to the Compact, we must decide whether

Doe has any rights under this contract as a third-party

beneficiary. This is an issue of first impression.

The Supreme Court has held that an interstate compact is

like a contract to the extent that it is “a legal document that must

be construed and applied in accordance with its terms,” Texas v.

New Mexico, 482 U.S. 124, 128 (1987). Because a compact is

a contract, and must be enforced according to its terms, we do

not have authority to provide relief that is inconsistent with its

terms. Texas v. New Mexico, 462 U.S. 554, 564 (1983). When

interpreting an interstate compact, we must address disputes

under the compact just as if we were addressing a federal statute

or a federal contract. Absent a federal statute making state

statutory or common law applicable, federal law controls, and

absent federal statutory guidance, the governing rule of decision

must be fashioned by the federal court in the mode of the

common law. Oneida Indian Nation v. County of Oneida, 414

U.S. 661, 674-679 (1974).

In addition to the parties to a contract, “third-party

beneficiaries” of the contract can also enforce its terms. For

either Pennsylvania or federal law on third-party beneficiaries

we look to the Restatement of Contracts’ definition. See

R ESTATEMENT (S ECOND) OF C ONTRACTS § 302 (1981); see e.g.

Owens v. Haas, 601 F.2d 1242, 1250 (2d Cir.), cert. denied, 444

U.S. 980 (1979). Under the Restatement, a third party can claim

rights under a contract, even if not stated expressly, if it is

consonant with the intention of the contracting parties. Section

302 states as follows:

21

Intended and Incidental Beneficiaries

(1) Unless otherwise agreed between promisor

and promisee, a beneficiary of a promise is an

intended beneficiary if recognition of a right to

performance in the beneficiary is appropriate to

effectuate the intentions of the parties and either

(a) the performance

of the promise will

satisfy an obligation

of the promisee to

pay money to the

beneficiary; or

(b) the circumstances

indicate that the

promisee intends to

give the beneficiary

the benefit of the

p r o m i s e d

performance.

(2) An incidental beneficiary is a beneficiary who

is not an intended beneficiary.

Restatement (Second) of Contracts § 302 (1979).

Thus, we have two tests for determining third-party

beneficiary status. The first one requires the parties to indicate

in the agreement itself that the third party is a beneficiary. The

22

second test does not require that the purported beneficiary be

adverted to directly in the contract; but, if not, third-party status

will be conferred only if circumstances compel us to recognize

such a status in order to effectuate the intention of the parties.

The first test offers Doe no relief. The Interstate

Compact does not specifically indicate that Doe, or for that

matter any parolee, is a third-party beneficiary.8 Under the

second test he fares no better. Here, the “intentions of the

parties” must be discerned from the document itself. Langer v.

Monarch Life Ins. Co. 879 F.2d 75, 81 n.8 (3d Cir. 1989) (citing

Hutchison v. Sunbeam Coal Corp., 519 A.2d 385 (Pa.1986)).

The parties to this Compact have set forth their intentions

quite clearly:

It is the purpose of this compact and the Interstate

Commission created hereunder, through means of

joint and cooperative action among the

compacting states: to provide the framework for

the promotion of public safety and protection of

the rights of victims through the control and

regulation of the interstate movement of offenders

in the community; to provide for the effective

tracking, supervision, and rehabilitation of these

8.

It is well to note, however, that “the rehabilitation” of

the offender is a goal of the Compact. This, however, is too

tangential at the current stage of penal science to declare it a

“benefit.”

23

offenders by the sending and receiving states; and

to equitably distribute the costs, benefits and

obligations of the compact among the compacting

states.

61 P A. S TAT A NN. § 324.1 (2002).

The Compact speaks of cooperation between states,

protection of the rights of victims, regulation and control of

offenders across state borders and the tracking, supervision and

rehabilitation of these offenders. In short, no explicit third-party

obligation appears in the Compact and there is no compelling

evidence that, by entering into the Compact, Pennsylvania and

New Jersey implicitly intended to give legally enforceable rights

to Doe. Doe and similarly situated parolees are not beneficiaries

of this Compact; they are merely the subjects of it. Hence, we

may now turn to Doe’s Constitutional arguments, specifically

his assertion that the Commonwealth’s disparate treatment of in-

state and out-of-state offenders violated his rights to equal

protection.

V.

A.

Doe does not challenge the registration requirements of

Pennsylvania’s Megan’s Law. Indeed, he has complied with

them since returning to the Commonwealth. He claims only that

the law’s community notification provisions violate the Equal

Protection Clause as they relate to him and other out-of-state

offenders. In reviewing a claim that government action violates

24

the Equal Protection Clause, we must first determine the

appropriate standard by which we are to review the claim.

Donatelli v. Mitchell, 2 F.3d 508, 513 (3d Cir. 1993). If state

action does not burden a fundamental Constitutional right or

target a suspect class, the “challenged classification must be

upheld ‘if there is any reasonably conceivable state of facts that

could provide a rational basis for the classification.’” Id.

(quoting FCC v. Beach Communications, Inc., 508 U.S. 307,

313 (1993)). If the challenged state action involves a “suspect”

classification based on race, alienage or national origin, or

infringes on a fundamental constitutional right, we must apply

the strict scrutiny standard. Id.

The District Court did not decide whether Doe has a

fundamental right subject to strict scrutiny, deciding instead that

the Commonwealth’s disparate treatment could not survive the

lower threshold rational basis review. Because we also

conclude that the Commonwealth’s restrictions would not

survive the lower threshold of rational basis review, we likewise

do not reach the issue.

B.

If a statute neither burdens a fundamental right nor

targets a suspect class, it does not violate equal protection so

long as it bears a rational relationship to some legitimate end.

Romer v. Evans, 517 U.S. 620, 631 (1996). A statute will be

considered constitutional under rational basis review if there is

“any reasonably conceivable set of facts that could provide a

rational basis for” it. FCC v. Beach Communications, 508 U.S.

307, 313 (1993). Although this is a low threshold, the Supreme

25

Court has nonetheless instructed that “even in the ordinary equal

protection case calling for the most deferential standards, we

insist on knowing the relation between the classification adopted

and the object to be obtained.” Id. at 632.

Here, the Commonwealth argues that its interest in public

safety is a legitimate concern, and that its practice of treating in-

state and out-of-state offenders differently is rationally related

to its efforts at alleviating this concern. We readily agree that

protecting its citizens from sex offenses committed by repeat

offenders is a legitimate state interest. The question, however,

is whether the Commonwealth’s denial of equivalent process to

both in-state and out-of state parolees is rationally related to its

security concerns. We conclude it is not.

C.

The Commonwealth offers four rationales to explain how

its disparate treatment is rationally related to its public safety

goals. First, the Commonwealth argues it is impossible to

replicate the legal proceedings it provides in-state offenders for

out-of-state offenders. Second, the Commonwealth argues that

providing such proceedings to out-of-state offenders would

increase time and expense. The Commonwealth next argues

that the “harshness” of community notification differs for in-

state and out-of-state offenders. Finally, the Commonwealth

argues that the publicity given to a sex offender’s trial in

Pennsylvania rationalizes the disparate treatment of out-of-state

offenders whose trials are less likely to receive media attention

in the Commonwealth.

26

D.

Turning to its specific attempts to rationalize the

disparate treatment, the Commonwealth first argues that it

would be impossible to replicate the process it affords in-state

offenders for out-of-state offenders. The Pennsylvania

legislature, contrary to this argument, has outlined its

responsibilities and obligations under the Interstate Compact,

and indeed has statutorily promised to the other signatory states

that it would provide Doe, and others similarly situated, with

“the same standards that prevail for its own probationers and

parolees.” 61 P A. S TAT. A NN. § 321.

By signing the Interstate Compact, Pennsylvania has

agreed that, when accepting out-of-state probationers who

transfer their parole and their residence to the Commonwealth,

it will approximate the same procedures and standards it applies

to its own probationers. There is no evidence on this record that

the Commonwealth has even tried.

Furthermore, the Commonwealth’s assertion that in

deciding whether an out-of-state parolee transferee is a sexually

violent predator, a Pennsylvania judge would have more

evidence about an in-state offender does not hold water. We

acknowledge, and Doe concedes, that judges who have presided

over an offender’s trial will most likely have more first-hand

information about a particular defendant, his criminal history

and other relevant circumstances.

Nonetheless, other avenues of evidence are readily

available to the parties. For example, any pre-sentence

27

investigation and/or recommendation conducted by the

transferring state can be made available to the SOAS. Certainly

in this digital age court records, transcripts, hearing records and

pre-sentence reports can be transmitted interstate electronically.

There is no doubt that the Commonwealth can accomplish its

goal of ensuring the public safety of its citizens and yet assure

out-of-state probationers and parolees procedural rights

equivalent to that which it offers in-state offenders.

The Commonwealth’s contention is that out-of-state

offenders may have benefitted from rehabilitative sexual

therapy, thereby placing in-state offenders at a disadvantage,

need not detain us long. Under Pennsylvania law, the goal of its

community notification program is to identify the sexually

violent predator and notify the community where the predator

resides. Whether a particular sexual predator has received

therapy or treatment is not germane to his identity and location.

Indeed, there is no evidence that the fliers used for community

notification purposes indicate whether the particular offender

has received treatment. The Commonwealth’s argument here

does not justify the disparate treatment at issue and is not

rationally related to its public safety goals.

Interestingly, the difference in the “harshness” of the

community notification between in-state and out-of-state

offenders is also given by the Commonwealth as a rational

reason for its disparate treatment. This contention is not only

irrational but illogical. The Commonwealth argues that in-state

offenders who are determined to be sexually violent predators

are subjected to community notification for life whereas out-of-

state offenders are subjected to such notification for the length

28

of their supervision. First, New Jersey has sentenced Doe to

lifetime supervision, so the comparison is wholly misplaced.

Additionally, as Doe points out, the Commonwealth is

comparing the wrong group of offenders. We agree. A

comparison of in-state offenders not deemed sexually violent

predators and out-of-state offenders reveals that these in-state

offenders are excused from community notification whereas all

out-of-state offenders are subjected to such notification. Given

the opportunity, Doe would argue that he does not meet the

statutory definition of a sexually violent predator. He should

have that opportunity.

Next, the Commonwealth argues that providing Doe an

opportunity to challenge his status as a sexually violent predator

would increase costs and time devoted to such a task. That,

while possibly true, is wholly irrelevant. The Commonwealth

promised to treat all parolees, in-state and out-of-state, the same

under the Compact. By agreeing to the dictates of the Interstate

Compact, the Commonwealth determined that the burden of

additional costs is outweighed by the benefits provided by the

Compact. Indeed, one of the stated purposes of the Interstate

Compact is to “equitably distribute the costs, benefits and

obligations of the Compact among the compacting states.” 61

P A. S TAT. A NN. § 324.1 (2002). It cannot now argue that

concerns about increased costs and expenses are rationally

related to its ultimate public safety goals — goals the Interstate

Compact seeks to reach through the equitable distribution of

costs and expenses.

As a final rationalization for the disparate treatment, the

Commonwealth contends that Pennsylvania communities are

29

less likely to have information about a particular offense through

media coverage and general public discourse if that offense had

been committed outside the state. We conclude, as did the

District Court, that this geographic argument is counter-intuitive

and meritless. For certain, residents of local communities may

have limited — if any — information about an out-of-state

sexual offender. However, the same is likely to be true about in-

state offenders. This lack of general information is one of the

principal reasons Megan’s Law was enacted in the first place.

Indeed, the crime that inspired the first Megan’s Law was

committed by a twice-convicted, in-state sexual predator, a fact

unknown to his new neighbors. See Paul P. v. Farmer, 227 F.3d

98, 99 (3d Cir. 2000) (citing E.B. v. Verniero, 119 F.3d 1077,

1097 (3d Cir. 1997). Because any concerns over the public’s

lack of information about out-of-state sexual offenders applies

equally to in-state offenders, the Commonwealth’s proffer

simply does not rationalize Pennsylvania’s disparate treatment

of the two groups, nor does it correlate the illegitimate

procedural disparity to its legitimate public safety goal.

The Supreme Court has cautioned that “equal protection

is not a license for courts to judge the wisdom, fairness, or logic

of legislative choices.” Beach Communications, 508 U.S. at 307.

We undertake no such exercise here. Indeed, we care not. We

are only requiring of it, the performance it agreed to. We do not

second-guess the actions of the Commonwealth in becoming a

signatory to the Interstate Compact — we merely suggest that it

must hold to its agreement. There are no exceptions in the

Compact to excuse non-performance, or partial performance.

30

We conclude, that the Commonwealth’s approval and

participation in the Interstate Compact invalidates any rational

connection between the Compact’s stated goals and the

Commonwealth’s disparate treatment of in-state and out-of-state

offenders. As a signatory to the Interstate Compact, the

Commonwealth has agreed to abide by its terms, and it must.

Because the Commonwealth has agreed to adhere to the dictates

of the Interstate Compact, it cannot now argue that its reasons

for violating the Compact are rational.

Although the Supreme Court has acknowledged that an

interstate compact is like a contract to the extent that it is “a

legal document that must be construed and applied in

accordance with its terms,” Texas v. New Mexico, 482 U.S. 124,

128 (1987), the Court has also recognized the unique features

and functions of such a compact. An interstate compact is one

“of two methods under our Constitution of settling controversies

between States,” Petty v. Tennessee-Missouri Bridge Comm'n,

359 U.S. 275, 279 n. 5 (1959), and it “performs high functions

in our federalism,” id. at 279. See also Felix Frankfurter &

James M. Landis, The Compact Clause of the Constitution-A

Study in Interstate Adjustments, 34 Y ALE L.J. 685, 691-95

(1925) (discussing history of Compact Clause). Put another way,

an interstate compact represents a political compromise between

“constituent elements of the Union,” as opposed to a

commercial transaction. Hess v. Port Auth. Trans-Hudson

Corp., 513 U.S. 30, 40, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994).

Such an agreement is made to “address interests and problems

that do not coincide nicely either with the national boundaries or

with state lines --- interests that may be badly served or not

served at all by the ordinary channels of National or State

31

political action.” Id. (internal quotation marks omitted). Here,

the Interstate Compact reflects the collective wisdom not only

of the Pennsylvania General Assembly and the New Jersey

Legislature, but also that of the other signatory states and the

United States Congress as to how best to deal with the interstate

movements of adult offenders. It is the stated purpose of the

Interstate Compact to “provide the framework for the promotion

of public safety and to protect the rights of victims through

control and regulation of the interstate movements of offenders

in the community.” 61 P A. S TAT. A NN. § 324.1 (2002)

As we have previously indicated, the Commonwealth

requires every out-of-state probationer convicted of a sex

offense to submit to community notification under Megan’s Law

II. 61 P A. S TAT. A NN.. § 331.33(d)(3). In Pennsylvania,

submission to community notification is a prerequisite to the

acceptance of an out-of-state probationer’s transfer under the

Compact. Id. This prerequisite, however, changes the terms of

the Compact because it places additional conditions on the

transfer of parolees and probationers who otherwise satisfy its

other requirements. Having entered into this Compact, the

Commonwealth may not unilaterally change its terms. By

becoming a signatory to the Compact , Pennsylvania is required

to provide Doe with the same process it affords in-state

offenders before subjecting him to community notification.

Once New Jersey granted permission for Doe to return to

Pennsylvania, Pennsylvania was required to assume supervision

over Doe and to treat him the same as in-state offenders. The

Commonwealth has not done so and in treating Doe and other

out-of-state parolees differently, it violates its own agreement

32

failing to do precisely what it promised: that out-of-state

offenders will be “governed by the same standards that prevail

for its own probationers and parolees.” 61 P A. S TAT. A NN.

§ 321(2).

E.

The Commonwealth’s arguments are further undercut by

subsequent legislation. While the District Court’s decision was

pending, the General Assembly amended Megan's Law,

effective January 24, 2005 (“Megan’s Law III”). This version

of the statute altered the statutory scheme governing when out-

of-state sex offenders are subjected to community notification

fliers within the Commonwealth by amending its registration

requirements. Megan’s Law III requires registration of

individuals convicted of offenses specified in § 9795.1 — which

now includes “individuals currently residing in this

Commonwealth who have been convicted of [similar sexual

offenses] under the laws of . . . another state.” 42 P A. C ONS.

S TAT. A NN. § 9795.1 (2005). Because out-of-state offenders

are now specifically listed in § 9795.1, they are included in the

assessment procedures outlined later in the statute. Section

9797.4 of the statute provides that individuals who were

convicted of an offense listed in § 9795.1 (as out-of-state

offenders now are), shall, upon court order, be assessed by the

board to determine if they should be classified as a sexually

violent predator. See 42 P A. C ONS. S TAT. A NN. §§ 9795.1(a)(3),

9795.1(b)(4); 42 P A. C ONS. S TAT. A NN. §§ 9795.4(a), (b). This

“assessment” procedure makes no distinction between in-state

and out-of-state offenders, contemplating only those individuals

identified in § 9795.1.

33

Under this provision, various enumerated factors are to

be reviewed before a determination is made as to the offender’s

“sexually violent predator status.” These factors include

whether the offense involved multiple victims, the nature of the

sexual contact with the victim, relationship of the individual to

the victim, the age of the victim, the offender’s prior offenses

and characteristics of the offender such as the offender’s age,

use of illegal drugs, mental illness and any other mental

disabilities or abnormalities. See 42 P A. C ONS. S TAT. A NN. §

9795.4(b)(1)-(4) (2005). Doe — as someone convicted of an

offense specified in § 9795.1 — would, upon court order, be

provided a hearing, notice, the right to call witnesses, the right

to counsel and to the assistance of expert witnesses — all to be

conducted before any determination of whether he, as an out-of-

state offender, could be classified as a sexually violent offender

and be subjected to community notification by police flier. 42

P A. C ONS. S TAT. A NN. § 9795.4(e).

This essential difference is exactly what Doe seeks.

Inexplicably, the Commonwealth argues that what is rational for

an out-of-state offender today, cannot be applied to an

individual like Doe whose crimes were committed before 2005.

Megan’s Law III is further support for Doe’s argument

that the reasons proffered by the Commonwealth to support its

disparate treatment of out-of-state offenders are meritless and,

hence, irrational. The Commonwealth argues that it cannot offer

full due process for out-of-state offenders. Yet, since January

24, 2005, it has been affording out-of-state offenders the

opportunity to challenge their status as sexually violent

offenders. It simply is not rational for the Commonwealth to

34

claim it cannot provide equal treatment to out-of-state offenders

under Megan’s Law II when it is practically doing so under

Megan’s Law III.9

VI.

In summary, we note that Pennsylvania’s interest in

protecting its citizens from sexually violent predators is certainly

compelling. However, subjecting out-of state sex offenders to

community notification without providing equivalent procedural

safeguards as given to in-state sex offenders is not rationally

9.

An undercurrent to our dissenting colleague’s

argument is that under rational basis review, the government

always wins. That, quite simply, cannot be so. In fact, were that

the case, our review of issues under this standard would be

equivalent to no review at all. A necessary corollary to and

implication of rationality as a test is that there will be situations

where proffered reasons are not rational. That precise situation

is graphically presented here. Put simply, every reason

proffered by the Commonwealth for its disparate treatment of

Doe in this case is meritless, and hence irrational. No reason the

Commonwealth offers for disparate treatment can be considered

“rational” because each is contrary to the promises it made to

the other signatories when it signed- on to the Compact. Indeed,

in the several instances, the stated purposes of the Interstate

Compact itself contradict what the Commonwealth claims are its

reasons for the disparate treatment it gives to in-state and out-of-

state offenders.

35

related to that goal. The judgment of the District Court will be

affirmed.

AMBRO, Circuit Judge, dissenting

When the Pennsylvania legislature passed Megan’s Law

II, it decided to require community notification for all out-of-

state sex offenders subject to registration who are paroled into

the Commonwealth, but to require community notification for

in-state sex offenders only if they were deemed to be “sexually

violent predator[s]” following a hearing. Because this

legislative decision is reviewed under the rational basis test and

because I believe it satisfies that easily met standard, I must

respectfully dissent.10

I. Rational Basis Review Applies

“The Fourteenth Amendment forbids the States to ‘deny

to any person within [their] jurisdiction the equal protection of

the laws,’ but does not prevent the States from making

reasonable classifications among such persons.” W. & S. Life

10.

I have no quarrel with much of the majority’s opinion.

I agree that Doe has no private right of action under the

Interstate Compact on Probation and Parole (the “Compact”)

and that he is not a third-party beneficiary of the Compact.

Thus, as the majority recognizes, the constitutional question

under review is properly before us.

36

Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 656–57

(1981). As the Supreme Court has long recognized, “[u]nless a

classification trammels fundamental personal rights or is drawn

upon inherently suspect distinctions such as race, religion, or

alienage, our decisions presume the constitutionality of the

statutory discriminations and require only that the classification

challenged be rationally related to a legitimate state interest.”

City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976); see

also Romer v. Evans, 517 U.S. 620, 631 (1996) (“[I]f a law

neither burdens a fundamental right nor targets a suspect class,

we will uphold the legislative classification so long as it bears

a rational relation to some legitimate end.”). Conversely,

classifications that discriminate against a suspect class or violate

an individual’s fundamental constitutional rights receive strict

scrutiny. Donatelli v. Mitchell, 2 F.3d 508, 513 (3d Cir. 1993).

Such fundamental rights include the right to marry, see, e.g.,

Loving v. Virginia, 388 U.S. 1, 12 (1967), the right to custody of

one’s children, see, e.g., Santosky v. Kramer, 455 U.S. 745, 753

(1982), the right to vote, see, e.g., Yick Wo v. Hopkins, 118 U.S.

356, 370 (1886), and the right to interstate travel. See, e.g.,

United States v. Guest, 383 U.S. 745, 757 (1966).

Our first task, therefore, is to ascertain the proper level of

constitutional review.11 Id. Doe asserts that the Pennsylvania

11.

While the majority acknowledges that “we must first

determine the appropriate standard by which we are to review

(continued...)

37

statute burdens his fundamental right to interstate travel and that

the Commonwealth’s classification therefore must satisfy strict

scrutiny.12 Because Doe’s status, first as a probationer and then

as an individual subject to parole supervision for life,

necessarily limits his constitutional right to travel, I conclude

that the Commonwealth’s alleged restrictions on that right are

subject simply to rational basis review.

The Supreme Court’s most recent and comprehensive

explanation of the right to interstate travel is found in Saenz v.

Roe, 526 U.S. 489 (1999). The Court concluded that this right

consists of three components: “[1] the right of a citizen of one

State to enter and leave another State, [2] the right to be treated

11.

(...continued)

the claim,” Maj. Op. at 24, it does not reach this question

because it concludes that “the Commonwealth’s restrictions

would not survive rational basis review.” Maj. Op. at 25.

12.

Strict scrutiny is only triggered if the Commonwealth’s

law actually infringes a right to interstate travel. See Attorney

General of New York v. Soto-Lopez, 476 U.S. 898, 905 (1986)

(“[O]nly where a State’s law ‘operates to penalize those persons

. . . who have exercised their constitutional right of interstate

migration’ is heightened scrutiny triggered.”) (quoting Mem’l

Hosp. v. Maricopa County, 415 U.S. 250, 258 (1974)). There is

no dispute that Doe has exercised his right to travel. However,

the question remains whether that right is freighted with

conditions such that strict scrutiny review does not apply.

38

as a welcome visitor rather than an unfriendly alien when

temporarily present in the second State, and [3], for those

travelers who elect to become permanent residents, the right to

be treated like other citizens of that State.” Id. at 500.

Doe argues that, because under Megan’s Law II all out-

of-state sex offenders paroled into Pennsylvania are subject to

community notification but in-state sex offenders are only

subject to community notification if they are deemed “sexually

violent predator[s]” following a hearing, his “right to be treated

equally in [his] new State of residence” has been violated. Id.

at 505. The Commonwealth concedes that Megan’s Law II

treats differently sex offenders who committed their offenses out

of state and are then transferred to Pennsylvania under the

Compact and sex offenders who were convicted in the

Commonwealth. It argues, however, that Doe’s status as a

convicted sex offender subject to parole supervision for life

necessarily limits his right to interstate travel. I conclude this

contention is correct.

In Jones v. Helms, 452 U.S. 412 (1981), the Supreme

Court recognized that individuals who have committed crimes

do not have an unqualified right to interstate travel: “Despite

the fundamental nature of this right [to interstate travel], there

nonetheless are situations in which a State may prevent a citizen

from leaving. Most obvious is the case in which a person has

been convicted of a crime . . . .” Id. at 419. The Court went on

to hold that even if a person is not currently incarcerated for (or

39

even charged with) a crime, that person’s criminal conduct

“necessarily qualified his right” to interstate travel. Id. at

420–21. Similarly, the Court has pointed out that probationers

and parolees “do not enjoy ‘the absolute liberty to which every

citizen is entitled, but only . . . conditional liberty properly

dependent on observance of special [probation] restrictions.’”

Griffin v. Wisconsin, 483 U.S. 868, 874 (1987) (quoting

Morrissey v. Brewer, 408 U.S. 471, 480 (1972)); see also United

States v. Knights, 534 U.S. 112, 119 (2001) (“Just as other

punishments for criminal convictions curtail an offender’s

freedoms, a court granting probation may impose reasonable

conditions that deprive the offender of some freedoms enjoyed

by law-abiding citizens.”).

Our Court likewise has recognized that “conditions of

probation include restrictions on a defendant’s right to travel.”

United States v. Warren, 186 F.3d 358, 366 (3d Cir. 1999). And

the courts of appeals to address directly the right to interstate

travel for those on probation or parole have all concluded that

the right is either limited or non-existent. See Williams v.

Wisconsin, 336 F.3d 576, 581 (7th Cir. 2003) (“Like prisoners,

. . . parolees . . . have no right to control where they live in the

United States; the right to travel is extinguished for the entire

balance of their sentences.”); Bagley v. Harvey, 718 F.2d 921,

924 (9th Cir. 1983) (“[A]n individual’s constitutional right to

travel, having been legally extinguished by a valid conviction

followed by imprisonment, is not revived by the change in status

from prisoner to parolee.”); Berrigan v. Sigler, 499 F.2d 514,

40

522 (D.C. Cir. 1974) (holding that any rights parolees had to

travel were necessarily limited because “those rights of necessity

are conditioned by the situation in which their convictions

placed them”).

When Doe initially sought permission to move to

Pennsylvania, he was serving a probationary sentence. His

sentence of probation ended in 2005, but, pursuant to New

Jersey law, as a convicted sex offender Doe’s sentence also

included “a special sentence of parole supervision for life.” N.J.

S TAT. A NN. § 2C:43-6.4. Under the statute, “[p]ersons serving

a special sentence of parole supervision for life remain in the

legal custody of the Commissioner of Corrections, shall be

supervised by the Division of Parole of the State Parole Board,

. . . and shall be subject to conditions appropriate to protect the

public . . . .” Id.

Doe’s status as a probationer at the time he filed his suit,

and as subject to lifelong supervised parole now, necessarily

means that he was not, and is not now or ever, entitled to the full

panoply of constitutional rights enjoyed by the average citizen.

Doe contends that the cases recognizing the limits on parolees’

and probationers’ right to interstate travel do not apply because

they do not involve the third component of the right to travel

recognized by Saenz – the right of those who elect to become

permanent residents to be treated like other citizens. But Doe

offers no reasons why this distinction matters, and I know of

none. His status as a convicted sex offender on parole

41

necessarily places restrictions not only on his freedom of

movement but also on other rights of citizenship.13 Because

Megan’s Law II applies the allegedly discriminatory

requirement only to out-of-state sex offenders whose rights to

travel have been reduced by probation or parole, 14 it is less likely

to be constitutionally suspect, obviating the need for strict

scrutiny.

13.

For example, the Supreme Court has held that states

may, consistent with the Equal Protection Clause, deprive

convicted felons of the right to vote even after they have

completed their sentences and paroles. Richardson v. Ramirez,

418 U.S. 24, 56 (1974).

14.

While Doe contends that Megan’s Law II discriminates

between in- and out-of-state sex offenders, in fact the

community notification requirement only applies to out-of-state

sex offenders who are transferred to Pennsylvania while on

probation or parole. See 42 P A. C ONS. S TAT. A NN.

§ 9795.2(b)(3) (2004) (“An individual subject to registration

under this subsection who is paroled to the Commonwealth

pursuant to the interstate compact for supervision of parolees

and probationers shall, in addition to the requirements of this

subchapter, be subject to [community notification].”) (emphasis

added), repealed by 2004, Nov. 24, P.L. 1243, No. 152 § 8,

effective Jan. 24, 2005. If a sex offender convicted in another

state is no longer subject to parole supervision in that state and

then moves to Pennsylvania, that individual, while still subject

to registration requirements, would not be subject to the

community notification requirement that Doe challenges here.

42

For this reason, although never directly addressed by the

Supreme Court or our Court, it appears uncontroversial that

someone who has been convicted of a sexual offense and who

continues to be subject to parole supervision has forfeited some

portion of his constitutional right to interstate travel—including

the right to be treated the same as the in-state sexual offenders

of the state in which he wishes to make his new home. Because

Doe as a probationer or parolee is not entitled to an unqualified

right to interstate travel, I conclude that restrictions on his

exercise of that right should be subject to rational basis review.

In other words, I would inquire whether the different treatment

of him and similarly situated sex-offenders who are citizens of

Pennsylvania is rationally related to a legitimate state purpose.

II. The Rational Basis Test is Satisfied

As our Court has observed, the rational basis test is a

“very deferential standard.” English v. Bd. of Educ. of Boonton,

301 F.3d 69, 82 (3d Cir. 2002). “Under rational basis review, ‘a

classification must be upheld against equal protection challenge

if there is any reasonably conceivable state of facts that could

provide a rational basis for the classification.’” United States v.

Walker, 473 F.3d 71, 77 (3d Cir. 2007) (quoting Heller v. Doe,

509 U.S. 312, 320 (1993)). “A statute is presumed

constitutional, and ‘[t]he burden is on the one attacking the

legislative arrangement to [negate] every conceivable basis

which might support it.’” Heller, 509 U.S. at 320 (quoting

Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364

43

(1973)) (internal citations omitted). Thus, equal protection

principles are met so long as a plausible policy reason explains

the classification and the relationship of the classification to its

policy goal is not so weak as to suggest that the distinction is

arbitrary or irrational. Walker, 473 F.3d at 77 (citing Fitzgerald

v. Racing Ass’n of Cent. Iowa, 539 U.S. 103, 107 (2003)). In

this context, “equal protection is not a license for courts to judge

the wisdom, fairness, or logic of legislative choices.” FCC v.

Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993); see also

Dukes, 427 U.S. at 303 (“[T]he judiciary may not sit as a

superlegislature to judge the wisdom or desirability of legislative

policy determinations . . . .”). “The threshold for upholding

distinctions in a statute under rational basis review is extremely

low, and it is not within the purview of the courts to conduct

anything but a limited review of the reasons that legislation

subject to rational-basis review classifies among similarly

situated persons.” United States v. Pollard, 326 F.3d 397, 408

(3d Cir. 2003). “[E]ven if the law seems unwise or works to the

disadvantage of a particular group, or if the rationale for it

seems tenuous,” Romer, 517 U.S. at 632, “[w]here there are

‘plausible reasons’ for [the legislature’s] action, ‘our inquiry is

at an end,’” Beach Commc’ns, Inc., 508 U.S. at 313-14 (quoting

U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980)).

“Moreover, because we never require a legislature to

articulate its reasons for enacting a statute, it is entirely

irrelevant for constitutional purposes whether the conceived

reason for the challenged distinction actually motivated the

44

legislature.” Id. at 315. In addition, “a legislative choice is not

subject to courtroom fact-finding and may be based on rational

speculation unsupported by evidence or empirical data.” Id.

“Finally, courts are compelled under rational-basis review to

accept a legislature’s generalizations even when there is an

imperfect fit between means and ends.” Heller, 509 U.S. at 321.

What this means in practice is that “[a] classification does

not fail rational-basis review because it ‘is not made with

mathematical nicety or because . . . it results in some

inequality.’” Id. (quoting Dandridge v. Williams, 397 U.S. 471,

485 (1970)); see also Metropolis Theatre Co. v. Chicago, 228

U.S. 61, 69–70 (1913) (“The problems of government are

practical ones and may justify, if they do not require, rough

accommodations—illogical, it may be, and unscientific.”).

I believe that Megan’s Law II passes the rational basis

15

test. As the majority acknowledges and our Court has held, the

15.

The majority reads my analysis as having an

“undercurrent” implying that “under rational basis review, the

government always wins.” Maj. Op. 35 n.9. I do not suggest

that “our review of issues under this standard [is] equivalent to

no review at all.” Id. The Supreme Court has struck down

statutes under this standard of review. See, e.g., Romer, 517

U.S. 620 (striking down amendment to Colorado constitution

barring the enactment of laws prohibiting discrimination on the

(continued...)

45

Commonwealth unquestionably has a legitimate interest in

protecting its citizens from sexual offenses. Maj. Op. at 26, 35;

Artway v. Att’y Gen. of N.J., 81 F.3d 1235, 1267 (3d Cir. 1996)

(“Protecting vulnerable individuals from sexual offenses is

certainly a legitimate state interest.”). It is not necessary to

“explore all the reasons that the State advances in justification”

of the different treatment, so long as any one of them provides

a rational basis for the distinction. Dandridge, 397 U.S. at 486.

Here, at least two of the Commonwealth’s justifications

demonstrate that the different treatment of out-of-state sex-

offenders is rationally related to its interest in protecting its

citizens from sexual offenses. First, the Commonwealth argues

that it would not be able to replicate adequately the proceedings

that in-state offenders receive prior to community notification

for out-of-state offenders and that the use of inadequate

proceedings would not provide the level of protection it desires.

Specifically, the Commonwealth notes that the hearings for in-

state offenders take place close to the time of sentencing and are

usually conducted by the same judge who presided over the

15.

(...continued)

basis of sexual orientation); City of Cleburne v. Cleburne Living

Center, 473 U.S. 432 (1985) (striking down zoning ordinance

excluding homes for mentally disabled). However, the results

of those cases stem from an arbitrariness and irrationality absent

here. I certainly would not hesitate to join the majority had

Pennsylvania’s law suffered from similar inadequacies.

46

offender’s trial. Any hearing that would be conducted for an

out-of-state offender would necessarily be conducted by a judge

who is unfamiliar with the offender and nearly always would

take place at a time further removed from the conviction,

increasing the likelihood that, as a general matter, there would

be less relevant information available in an out-of-state

offender’s hearing than in an in-state offenders’ hearing. This

would make the results of out-of-state offenders’ hearings

generally less reliable than those for in-state offenders. Such

reasoning is rational.

The majority faults it, however, insisting that “in this

digital age court records, transcripts, hearing records and pre-

sentence reports can be transmitted interstate electronically.”

Maj. Op. at 27. Even if the majority is correct that all the

relevant information is readily available, which seems doubtful,

this mistakes our judicial role. Under rational basis review, we

do not pass on the “wisdom, fairness, or [even] logic” of

legislative decisionmaking. Beach Commc’ns, Inc., 508 U.S. at

313; see also Dandridge, 397 U.S. at 486 (“[T]he Fourteenth

Amendment gives the federal courts no power to impose upon

the States their views of what constitutes wise economic or

social policy.”). As long as there is “any reasonably conceivable

state of facts that could provide a rational basis for the

classification,” we must uphold the statute against an equal

protection challenge. Walker, 473 F.3d at 77. If the “question

is at least debatable,” the Commonwealth’s classification

survives rational basis review. Minnesota v. Clover Leaf

47

Creamery, Co., 449 U.S. 456, 464 (1981). Because it is

debatable whether appropriate records may be obtained as

readily from the courts of another state as from within the

Pennsylvania court system, Megan’s Law II survives rational

basis review.

A second rational basis for the different treatment can be

found in the Commonwealth’s argument that Pennsylvania

communities are likely to know more about in-state offenders

than out-of-state offenders because of local media coverage.

The majority calls this reasoning “counter-intuitive and

meritless.” Maj. Op. 29. I disagree. It is not irrational to think

that, on the whole, Pennsylvania communities are more likely to

be aware of in-state sexual offenders than out-of-state offenders.

It may be true that residents of Philadelphia likely would know

more from local media coverage about a sex offender in

Camden, New Jersey than in Pittsburgh, and it may be true that

many (or even most) sex offenders, both in-state and out-of-

state, receive no publicity at all. However, when the legislature

made a distinction between in-state and out-of-state offenders,

“[e]ven if the classification involved here is to some extent both

underinclusive and overinclusive, and hence the line drawn by

[the legislature] imperfect, it is nevertheless the rule that in a

case like this ‘perfection is by no means required.’” Vance v.

Bradley, 440 U.S. 93, 108 (1979) (quoting Phillips Chem. Co.

v. Dumas Sch. Dist., 361 U.S. 376, 385 (1960)).

48

The majority is correct that the driving force behind the

enactment here was a lack of available information about sex

offenders, but this does not mean Pennsylvania must forgo

deciding that, in the case of out-of-state sex offenders paroled

into the Commonwealth, it is going to demand the greater

protection afforded by community notification. The

Pennsylvania legislature could have rationally believed that

overall there is likely to be a greater lack of public information

for out-of-state offenders than for in-state offenders. This is

sufficient to survive rational basis review.

My colleagues also suggest that two global concerns

undermine the specific reasoning discussed above. First, they

conclude that “the Commonwealth’s approval and participation

in the Interstate Compact invalidates any rational connection

between the Compact’s stated goals and the Commonwealth’s

disparate treatment of in-state and out-of-state offenders.” Maj.

Op. 30. They claim that they do not second-guess the

Commonwealth’s decision to join the Compact. Id. Instead,

they “merely suggest that [the Commonwealth] must hold to its

agreement.” Id. But how is this relevant to our equal protection

analysis? We agree that Doe does not have a private right of

action under the Compact. The Equal Protection Clause should

not be construed to allow him a de facto right of action. Any

alleged violation of the Compact is not properly before us and

it is inappropriate for us to try to enforce it via the Equal

Protection Clause.

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Second, the majority reasons that the “Commonwealth’s

arguments are further undercut by subsequent legislation.” Id.

at 33. Megan’s Law III indeed may improve upon the former

legislation.16 However, our rational basis inquiry does not

require us to invalidate legislation that can be improved or that

has been improved. Accordingly, I am unpersuaded that

Megan’s Law II should be invalidated under rational basis

review.17

*****

16.

Megan’s Law III, 2004 Nov. 24, P.L. 1243, No. 152, §

7, established new rules and procedures for out-of-state

offenders, which Doe describes as bringing Pennsylvania closer

to other jurisdictions. Doe explains that they subject

transferring probationers and parolees to community notification

if the offender would have been subject to community

notification in the state in which parole or probation was

imposed. Because these new rules are not at issue in this appeal,

we need not consider how Doe would be treated under them.

17.

Because the District Court did not reach Doe’s due

process claim, I would remand for that Court to address the

issue in the first instance. Berda v. CBS Inc., 881 F.2d 20, 28

(3d Cir. 1989) (“Generally, in the absence of ‘exceptional

circumstances,’ we decline to ‘consider an issue not passed upon

below.’”).

50

I believe that Megan’s Law II passes the rational basis

test, the standard we apply. Because I believe the majority

misapplies that test, apparently concluding that there is no

conceivable set of facts that the Pennsylvania legislature could

have rationally believed to justify the different treatment here, I

respectfully dissent.

51