G.S. Person v. PSP Megan's Law Section

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gregory S. Person, :

:

Petitioner :

:

v. : No. 222 M.D. 2013

:

Pennsylvania State Police Megan’s : Submitted: February 20, 2015

Law Section, :

:

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE COHN JUBELIRER FILED: November 3, 2015

Before this Court in our original jurisdiction are the Preliminary Objections

(POs) in the form of a demurrer of the Pennsylvania State Police Megan’s Law

Section (PSP) to the pro se Second Amended Petition for Review (Petition) of

Gregory S. Person (Petitioner).1 Petitioner alleges that the Act variously known as

Megan’s Law IV or the Sexual Offender Registration and Notification Act

1

Petitioner originally filed a Petition for Review on April 11, 2013. On May 5, 2014,

this Court sustained the PSP’s POs for failure to plead facts and directed Petitioner to file the

instant Petition within 30 days. After granting Petitioner an extension, we received the instant

Petition on August 11, 2014. The Attorney General, on behalf of the PSP, filed POs on

September 11, 2014 and Petitioner filed his response on December 19, 2014.

(SORNA)2 is unconstitutional as applied to him under the Due Process, Equal

Protection, Ex Post Facto, and Contract Clauses of the United States and

Pennsylvania Constitutions. In its POs, the PSP avers that Petitioner failed to state

a claim under both the United States and Pennsylvania Constitutions because

Petitioner’s claims have been soundly rejected by courts in Pennsylvania and

federally; that Petitioner was not deprived of a protected interest under the Due

Process Clause of the United States Constitution; and that Petitioner has not stated

a claim under Article I, Section 9 of the Pennsylvania Constitution because no

criminal prosecution is at issue. Because the PSP has not challenged some of

Petitioner’s claims in its POs or shown that all of Petitioner’s claims are without

merit, we sustain the POs in part and overrule the POs in part.

I. Background

Petitioner pled guilty to involuntary deviate sexual intercourse in 1994 in the

Court of Common Pleas of Lycoming County, prior to the enactment of the first

Megan’s Law (Megan’s Law I).3 After Megan’s Law I went into effect in 1996,

2

Sections 9799.10-9799.41 of the Sentencing Code, 42 Pa. C.S. §§ 9799.10-9799.41.

Courts have also referred to SORNA as the Adam Walsh Act. Petitioner also raises claims that

the application of Megan’s Law II, the Act of May 10, 2000, P.L. 74, 42 Pa. C.S. §§ 9791-

9799.9, to him violates his constitutional rights. Pursuant to Section 9799.41 of SORNA, 42 Pa.

C.S. § 9799.41, Megan’s Law II expired on December 20, 2012. Accordingly, we shall only

address Petitioner’s claims regarding SORNA.

3

The Act of October 24, 1995, P.L. 1079 (Spec. Sess. No. 1), now known as Megan’s

Law I, was enacted on October 24, 1995 and became effective 180 days thereafter. Megan’s

Law II was enacted on May 10, 2000 after Megan’s Law I was ruled unconstitutional in

Commonwealth v. Williams, 733 A.2d 593 (Pa. 1999). Some portions of Megan’s Law II were

held to be unconstitutional in Commonwealth v. Gomer Williams, 832 A.2d 962 (Pa. 2003), and

the General Assembly responded by enacting Megan’s Law III on November 24, 2004. Megan’s

Law III was also struck down by our Supreme Court, this time for violating the single subject

(Continued…)

2

Petitioner’s conviction required him to register with the PSP upon release from

incarceration for a period of ten years. Petitioner’s offense was reclassified by

Megan’s Law II, enacted in 2000, and Petitioner was required to register for his

lifetime.

SORNA went into effect on December 20, 2012 and established a three-tier

classification system for sexual offenders. Section 9799.14 of SORNA, 42 Pa.

C.S. § 9799.14. An offender’s tier status is determined by the offense committed

and impacts the length of time an offender is required to register and the severity of

punishment should an offender fail to register or provide false registration

information. Section 9799.15 of SORNA, 42 Pa. C.S. § 9799.15; Section 4915.1

of the Crimes Code, 18 Pa. C.S. § 4915.1.4 Petitioner pled guilty to involuntary

deviate sexual intercourse, which is a Tier III offense under SORNA. 42 Pa. C.S.

§ 9799.14(d)(4). Tier III offenders are required to register for the offender’s

lifetime. 42 Pa. C.S. § 9799.15.

The PSP is charged with creating and maintaining the registration system,

and has enacted regulations to that end. Section 9799.16 of SORNA, 42 Pa. C.S. §

rule of Article III, Section 3 of the Pennsylvania Constitution. Commonwealth v. Neiman, 84

A.3d 603, 616 (Pa. 2013). The United States Congress expanded the public notification

requirements of state sexual offender registries in the Adam Walsh Child Protection and Safety

Act of 2006, 42 U.S.C. §§ 16901-16945, and the Pennsylvania General Assembly responded by

passing SORNA, with the stated purpose of “bring[ing] the Commonwealth into substantial

compliance with the Adam Walsh Child Protection and Safety Act of 2006.” 42 Pa. C.S. §

9799.10(1).

4

Section 4915.1(c)(1) of the Crimes Code provides that a Tier III offender, like

Petitioner, who fails to register may be guilty of a second degree felony. 18 Pa. C.S. §

4915.1(c)(1).

3

9799.16; 37 Pa. Code §§ 56.1 – 56.4. Pursuant to Section 9799.16(b) of SORNA,

a registrant must provide the following information for inclusion in the registry:

name, including any aliases or monikers used on the internet; telephone numbers;

social security number; address of each residence located in the Commonwealth;

passport or immigration documents; the name and address of any employers; any

occupational licensing numbers; date of birth; driver license number; and

information on any vehicles owned or operated. 42 Pa. C.S. § 9799.16(b).

Additionally, the PSP must ensure the registry includes a physical description of

the registrant, including any identifying marks; the offender’s criminal record; and

a current photograph of the individual. 42 Pa. C.S. § 9799.16(c). This information

is included in a statewide registry, which must “[b]e able to communicate with” the

registries maintained by the United States Department of Justice and other

jurisdictions. 42 Pa. C.S. § 9799.16(a)(2), (3).

In addition to registration requirements, SORNA mandates the release of

certain information to the public. Relevant to this case, the General Assembly

found that the release of information, most notably through the internet, enables

“parents, minors and private entities” to “undertake appropriate remedial

precautions to prevent or avoid placing potential victims at risk” from “recidivist

acts by [sexual] offenders.” Section 9799.11(a)(7), (8) of SORNA, 42 Pa. C.S. §

9799.11(a)(7), (8). To this end, Section 9799.28(a) of SORNA, 42 Pa. C.S. §

9799.28(a) (hereafter, “internet notification provision”), mandates that the PSP

“[d]evelop and maintain a system for making information about [those] convicted

of[, inter alia,] a sexually violent offense” public via the internet. In addition to

details of the conviction, the website shall contain the offender’s name and alias,

4

birth year, address, facial photograph(s), and physical description. 42 Pa. C.S. §

9799.28(b)(1)-(7). If the offender operates a motor vehicle, the PSP must also post

the license plate number and a description of a vehicle owned or operated by the

offender on the website. 42 Pa. C.S. § 9799.28(b)(8). Further, the internet website

must contain a feature that allows members of the public “to receive electronic

notification when the individual convicted of a sexually violent offense, sexually

violent predator or sexually violent delinquent child moves into or out of a

geographic area chosen by the user.” 42 Pa. C.S. § 9799.28(a)(1)(ii).

II. Petitioner’s Claims

Petitioner raises ten issues in his Petition and we have organized the claims

into five categories. First, Petitioner alleges that the three-tier system established

by SORNA and the law’s internet notification provision violate his procedural due

process rights under the United States and Pennsylvania Constitutions insofar as

they deprived him of his rights to reputation, privacy, and the right to pursue

happiness.5 By designing a statutory scheme that does not provide him with any

5

Petitioner identifies Article I, Sections 1 and 9 of the Pennsylvania Constitution as

providing him with due process rights. Section 11 of Article I is also applicable in due process

challenges when a petitioner is seeking a remedy in a court. See Lyness v. State Board of

Medicine, 605 A.2d 1204, 1207 (Pa. 1992) (stating: “[t]he guarantee of due process of law, in

Pennsylvania jurisprudence, emanates from a number of provisions of the Declaration of Rights,

particularly Article I, Sections 1, 9 and 11 of the Pennsylvania Constitution”). Article I, Section

11 states:

All courts shall be open; and every man for an injury done him in his lands,

goods, person or reputation shall have remedy by due course of law, and right and

justice administered without sale, denial or delay. Suits may be brought against

the Commonwealth in such manner, in such courts and in such cases as the

Legislature may by law direct.

(Continued…)

5

sort of hearing, Petitioner argues that the General Assembly deprived him of the

right to be heard by a court and to present mitigating factors.6 (Petition Addendum

I at 3-4.) According to Petitioner’s allegations, SORNA is constitutionally infirm

because it places an irrebuttable presumption upon him that he cannot be

rehabilitated and “will always present a constant high risk of danger to the

community at large.” (Petition ¶ 1.B.) Relatedly, Petitioner asserts that he was

deprived of his due process rights because the internet notification provision of

SORNA mandates the disclosure of “constitutionally protected personal

information to the public the world over.” (Petition ¶ 1.C.)

Second, Petitioner alleges that his substantive due process rights guaranteed

by the Pennsylvania Constitution were violated by SORNA in general by imposing

“an unreasonable, arbitrary, and permanent infringement of [his] fundamental

rights to reputation . . . privacy[,] and his right to pursue his own happiness.”

(Petition ¶ 1.A.) Further, Petitioner alleges that his rights to privacy and reputation

guaranteed by the substantive due process clauses of both the United States and

Pennsylvania Constitutions were violated by SORNA’s internet notification

provision. (Petition ¶ 1.C.)

Pa. Const. art. I, § 11.

6

Relatedly, Petitioner argues that his procedural due process rights were violated when

the PSP classified him as a Tier III offender because the PSP has no authority to classify

Petitioner and, thus, impermissibly acted in a judicial role. (Petition ¶ 1.E.) It appears that

Petitioner has misread the statute; the General Assembly, not the PSP, determined that

Petitioner’s offense was a Tier III offense. See 42 Pa. C.S. § 9799.14 (listing the offenses that

fall under each tier). Because the statute provides the PSP with no discretion in classifying

Petitioner, it did not act in a judicial capacity and Petitioner has not stated a viable claim.

6

Third, Petitioner alleges that his right to equal protection under the United

States and Pennsylvania Constitutions was violated by SORNA’s tier classification

system, in general, and by being treated differently than others in three ways.

Initially, Petitioner argues that he was deprived of equal protection of the laws

because those who were incarcerated at the time Megan’s Law I was enacted are

required to register as a sexual offender, and those who were convicted of the same

crime as Petitioner, but were released from incarceration and not under the

supervision or control of the Board of Probation and Parole (Parole Board) prior to

enactment, are not. (Petition ¶ 1.G.) Further, Petitioner alleges an equal protection

violation on the basis of his inability under SORNA to challenge the internet

notification provision. (Petition ¶ 1.D.) According to his allegations, Petitioner is

subject to an arbitrary classification by not being able to challenge the internet

notification requirements of SORNA when those who were juveniles at the time of

their conviction may do so. (Petition ¶ 1.D.) Finally, Petitioner argues that he is

impermissibly treated differently than those convicted after the enactment of

Megan’s Law I because those offenders have the right to challenge their

classification with the assistance of court-appointed counsel in post-trial

proceedings. (Petition ¶ 1.F.)

Fourth, Petitioner alleges that various requirements of SORNA violate the

Ex Post Facto Clauses of the United States and Pennsylvania Constitutions.

Petitioner alleges that the provisions of SORNA are more restrictive than previous

versions and removed “liberty interest[s] created under previous versions of” the

law. (Petition ¶ 2.A.) Petitioner specifically points to the registration requirements

of SORNA, which he argues are more restrictive than previous versions of

7

Megan’s Law, and the removal of a right bestowed upon him by Section 9795.5 of

Megan’s Law III, 42 Pa. C.S. § 9795.5 (expired December 20, 2012, pursuant to

Section 9799.41 of SORNA, 42 Pa. C.S. § 9799.41). Under that expired provision,

an offender subject to lifetime registration may, provided certain requirements are

met, petition the sentencing court to be exempt from the Megan’s Law III

provision requiring information to be posted on the internet. 42 Pa. C.S. § 9795.5.

Fifth, and finally, Petitioner raises two claims with regard to his 1994

negotiated plea agreement. Petitioner notes that he entered a guilty plea that

limited the penalties imposed upon him two years before Megan’s Law I went into

effect. By imposing additional penalties, Petitioner avers SORNA impairs the

obligations outlined in his 1994 plea agreement in violation of Article I, Section 17

of the Pennsylvania Constitution and Article I, Section 10 of the United States

Constitution. (Petition ¶ 2.B.) Petitioner further contends that SORNA deprives

him of his liberty and violates his due process rights by imposing penalties beyond

the terms of his negotiated plea agreement. (Petition ¶ 1.H.)

III. The PSP’s POs

The PSP objects to Petitioner’s allegations in three POs in the nature of a

demurrer.7 First, the PSP avers that Petitioner’s due process, equal protection, and

7

When assessing the legal sufficiency of a petition for review, “the Court must accept as

true all well-pleaded allegations of material fact as well as all reasonable inferences deducible

therefrom.” Rodgers v. Pennsylvania Department of Corrections, 659 A.2d 63, 65 (Pa. Cmwlth.

1995). A petitioner is under no burden to prove his cause of action at this preliminary stage.

Surgical Laser Technologies, Inc. v. Department of Revenue, 626 A.2d 664, 671 (Pa. Cmwlth.

1993). A demurrer must only be sustained “where it appears, with certainty, that the law permits

no recovery under the allegations pleaded.” Rodgers, 659 A.2d at 65.

8

ex post facto claims have been found to be without merit. The PSP’s allegation

reads as follows:

In its Memorandum Opinion in Haigh v. Commissioner of

Pennsylvania State Police, 2010 WL 9519049, No. 518 M.D. 2010

(Pa. Cmwlth. Dec. 30, 2010), this Court found that sex offender

registration requirements do not violate the Due Process, Equal

Protection, and Ex Post Facto [C]lauses of the Pennsylvania and

United States Constitutions.

(POs ¶ 11.)8

Second, the PSP objects to Petitioner’s due process claims under the United

States Constitution because Petitioner only alleges that his rights to reputation,

privacy, and the pursuit of happiness were deprived, and these rights are not

protected under the Fourteenth Amendment to the United States Constitution.

Third, the PSP objects to Petitioner’s claims under Article I, Section 9 of the

Pennsylvania Constitution, which provides due process protections in the context

of criminal prosecutions, because no criminal prosecution is at issue in this case.

We now address each of Petitioner’s claims and the PSP’s objections thereto

below.

8

Haigh is an unreported panel decision of this Court and, pursuant to Section 414(a) of

this Court’s Internal Operating Procedures, an unreported panel decision issued by this Court

after January 15, 2008 may be cited “for its persuasive value, but not as binding precedent.” 210

Pa. Code § 69.414(a).

9

IV. Discussion

1. Due Process Under the Fourteenth Amendment to the United States

Constitution

We first address the PSP’s demurrer to Petitioner’s due process claims under

the United States Constitution. The PSP’s POs assert that Petitioner did not state a

claim that his rights were violated under the Due Process Clause of the United

States Constitution because Petitioner only alleged that he was deprived of his

rights to reputation, privacy, and the pursuit of happiness. According to PSP’s PO,

“[b]ecause the Due Process Clause of the United States Constitution does not

protect individuals’ rights of reputation, privacy, and the pursuit of happiness,

Petitioner can assert no facts which would allow recovery under the law.” (POs ¶

17.) Petitioner argues in response that, although reputational interests alone are not

sufficient to invoke due process protection under the United States Constitution,

the internet publication of his private information, coupled with other onerous

provisions of SORNA, constitutes a significant imposition beyond the mere

tarnishment of his reputation and establishes liberty interests that are protected

under the Due Process Clause.

The Due Process Clause of the Fourteenth Amendment to the United States

Constitution applies only when “the state seeks to deprive a person of a life, liberty

or property interest,” Pennsylvania Game Commission v. Marich, 666 A.2d 253,

255 (Pa. 1995). However, liberty, as used in the Fourteenth Amendment, is a

broad concept. See Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (“Without

doubt, [liberty interests] denotes not merely freedom from bodily restraint but also

the right of the individual . . . generally to enjoy those privileges long recognized at

common law as essential to the orderly pursuit of happiness by free men.”).

10

Although the Pennsylvania Supreme Court has advised us that “there can be no

doubt that the United States Constitution guarantees a right to privacy,” we find no

precedent that there is a fundamental privacy right to have one’s criminal history

and picture shielded from public view. In re June 1979 Allegheny County

Investigating Grand Jury, 415 A.2d 73, 77 (Pa. 1980) (rejecting a claim that a

record of an arrest is protected by the right to privacy). We, therefore, agree that

Petitioner has not stated a claim for violation of his right to privacy under the

United States Constitution.

Petitioner also asserts that his right to reputation under the United States

Constitution is infringed by SORNA’s internet notification provision. While

reputational interests alone are insufficient to invoke federal due process

guarantees, federal courts have held that a plaintiff may “make out a due process

claim for deprivation of a liberty interest in reputation [by] show[ing] a stigma to

his reputation plus deprivation of some additional right or interest.” Hill v.

Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006) (emphasis in original)

(citing Paul v. Davis, 424 U.S. 693, 701 (1976)). Under the so-called “stigma-

plus” test, a petitioner “must show[:] (1) some utterance of a statement that is

sufficiently derogatory to injure his or her reputation, which is capable of being

proved false, and (2) some material and state-imposed burden or alteration of his or

her status or of a right.” D.C. v. School District of Philadelphia, 879 A.2d 408,

416 (Pa. Cmwlth. 2005).

The federal circuit courts appear to be split on whether state Megan’s Laws

satisfy the “stigma-plus” test and the United States Supreme Court has yet to

11

address this issue. See Doe v. Department of Public Safety ex rel. Lee, 271 F.3d

38, 57-59 (2d Cir. 2001) (Connecticut I) (holding that by mandating that a sex

offender registry be published on the internet, Connecticut’s Megan’s Law imposes

restrictions that implicate the plaintiff’s liberty interests under the “stigma-plus”

test), rev’d on other grounds by Connecticut Department of Public Safety v. Doe,

538 U.S. 1, 7-8 (2003) (Connecticut II) (“find[ing] it unnecessary to reach” the

question of whether a sexual offender was deprived of an interest protected by the

Fourteenth Amendment); Schepers v. Indiana Department of Correction, 691 F.3d

909, 914 (7th Cir. 2012) (holding that by depriving sexual offenders of rights held

by ordinary citizens of Indiana, Indiana’s Megan’s Law imposes restrictions that fit

the requirements of the “stigma-plus” test); but see Dean v. McWherter, 70 F.3d

43, 45 (6th Cir. 1995) (holding that a provision of a Tennessee law that labeled

convicted sexual offenders as “a species of mentally ill persons,” “does not,

without more, impute a liberty interest sufficient to trigger due process

protections”) (internal quotation marks omitted). Notwithstanding this uncertainty,

we hold that, under the facts alleged, Petitioner cannot meet the “stigma-plus” test

because the allegedly derogatory statements posted on the internet to which

Petitioner is objecting are incapable of being proven false. The allegedly

derogatory statements are nothing more than statements that Petitioner has pled

guilty to a sexually violent offense and is currently registered with the PSP, facts

Petitioner acknowledges to be true.

Accordingly, Petitioner has not stated a due process claim under the

Fourteenth Amendment to the United States Constitution, and we sustain the PSP’s

PO demurring to that claim.

12

2. Due Process Under Article I, Sections 1 and 11 of the Pennsylvania

Constitution

Article I, Section 1 of the Pennsylvania Constitution states that “[a]ll men

are born equally free and independent, and have certain inherent and indefeasible

rights, among which are those of enjoying and defending life and liberty, of

acquiring, possessing and protecting property and reputation, and of pursuing their

own happiness.” Pa. Const. art. I, § 1. Further, Article I, Section 11 of the

Pennsylvania Constitution provides that “[a]ll courts shall be open; and every man

for an injury done him in his lands, goods, person or reputation shall have remedy

by due course of law, and right and justice administered without sale, denial or

delay.” Pa. Const. art. I, § 11. Unlike the Due Process Clause of the Fourteenth

Amendment, our Supreme Court has acknowledged that reputation and privacy are

protected under the above provisions of the Pennsylvania Constitution. See R. v.

Department of Public Welfare, 636 A.2d 142, 149 (Pa. 1994) (discerning a

fundamental right to reputation under the Pennsylvania Constitution); In re June

1979 Allegheny County Investigating Grand Jury, 415 A.2d at 77 (stating that the

right to privacy as protected by Article I, Section 1 encompasses the freedom from

disclosure of personal matters and the freedom to make certain important

decisions). Accordingly, reputation and privacy are among the fundamental rights

that cannot be abridged without compliance with state constitutional standards of

due process. R., 636 A.2d at 149.

Petitioner alleges that: (1) his procedural due process rights are infringed by

SORNA’s registration requirements because the statute creates an irrebuttable

presumption that Petitioner will always be a high risk of danger to the community

and he is subject to SORNA’s internet notification provision without providing

13

him an opportunity to challenge his level of dangerousness; and (2) his substantive

due process rights are violated by SORNA in general because it imposes “an

unreasonable, arbitrary, and permanent infringement of [his] fundamental rights to

reputation, . . . privacy[,] and [his] right to pursue his own happiness,” and,

specifically, by SORNA’s internet notification provision. (Petition ¶¶ 1.A, 1.C.)

The PSP demurs to these claims, asserting that they do not have merit under

existing precedent. By citing to Haigh, the PSP relies on our decision in Doe v.

Miller, 886 A.2d 310 (Pa. Cmwlth. 2005), for the proposition that Megan’s Law II

did not raise due process concerns. Haigh, slip op. at 3. In Miller we addressed a

pro se class’s allegations that the registration and notification requirements of

Megan’s Law II violated its rights to due process and equal protection under the

Pennsylvania and United States Constitutions. Miller, 886 A.2d at 313. The PSP

filed preliminary objections in the nature of a demurer, which we sustained. Id. at

314, 317. However, we did not hold in Miller that a petitioner could not assert a

due process claim with regard to Megan’s Law II. Id. at 314. Instead, we simply

concluded that because the class failed to adequately allege “which property right

or other protected interest” was infringed by Megan’s Law II, the class failed to

state a substantive due process claim. Id.9 Because Miller addressed Megan’s Law

9

In Miller we also held that, because a substantive due process claim involves the same

analysis as an equal protection claim, the class’s substantive due process claim failed by virtue of

its failure to state an equal protection claim. Miller, 886 A.2d at 314. While it is true that we

conduct the same analysis for substantive due process as we do for equal protection, Griffin v.

Southeastern Pennsylvania Transportation Authority, 757 A.2d 448, 452 (Pa. Cmwlth. 2000),

this is only the case when the standard of review for each claim coincides, i.e., a petitioner is not

a member of a protected class and is asserting that a non-fundamental right was deprived. Here,

Petitioner is not a member of a suspect class, but is alleging that his fundamental right to

reputation is implicated by SORNA. As such, we analyze Petitioner’s due process claim under

(Continued…)

14

II, which contained very different notification requirements than SORNA,10 and

did not directly address the merits of the petitioners’ due process claim, that case is

not dispositive and the PSP has not sufficiently objected to Petitioner’s substantive

due process claim for us to dismiss that claim.

Petitioner specifically alleges that SORNA’s registration and internet

notification provision are based on an impermissible irrebuttable presumption. Our

Supreme Court recently assessed the constitutionality of the irrebuttable

presumption as applied to juveniles in In re J.B., 107 A.3d 1 (Pa. 2014).11

According to Section 9799.11(a)(4) of SORNA, “[s]exual offenders pose a high

risk of committing additional sexual offenses and protection of the public from this

type of offender is a paramount government interest.” 42 Pa. C.S. § 9799.11(a)(4).

The presumption that sexual offenders pose a high risk of reoffense is a

cornerstone of SORNA’s statutory scheme, and under that scheme individual

sexual offenders are not provided an opportunity to rebut this presumption. See

Section 9799.23(b) of SORNA, 42 Pa. C.S. § 9799.23(b) (stating that courts shall

not have the authority, with certain exceptions, to relieve a sexual offender from

strict scrutiny and analyze his equal protection claim under a rational basis standard. See Miller,

886 A.2d at 315 (stating that “legislation creating different categories among criminal

offenders[] receives rational basis review; however, legislation based on suspect classifications,

such as race, national origin, or alienage, as well as classifications that affect fundamental rights

are examined under strict scrutiny”).

10

We did not address whether the petitioners’ fundamental right to reputation was

infringed by Megan’s Law II in Miller. Crucially, Miller addressed Megan’s Law II, which did

not include a public notification provision.

11

Because J.B. was issued on December 29, 2014, the parties, here, did not have the

benefit of J.B. at the time of their filings.

15

the duty to register.) Thus, under SORNA, individuals convicted of sexually

violent offenses are required to register without there ever being a determination

regarding their level of dangerousness.

In J.B., the Supreme Court concluded that SORNA’s irrebuttable

presumption that juvenile sexual offenders always pose a high risk of reoffense

encroached upon the juvenile petitioners’ constitutionally protected interest in their

reputation without due process of law. J.B., 107 A.3d at 14. The Supreme Court

began its analysis in J.B. by considering whether the juvenile petitioners had a

right protected by the due process clause of the Pennsylvania Constitution.

According to the Supreme Court:

SORNA explicitly declares that sexual offenders, including juvenile

offenders, “pose a high risk of committing additional sexual offenses

and protection of the public from this type of offender is a paramount

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

primary purpose of SORNA is to inform and warn law enforcement

and the public of the potential danger of those registered as sexual

offenders. . . . [T]he common view of registered sexual offenders is

that they are particularly dangerous and more likely to reoffend than

other criminals. . . . Thus, SORNA registration requirements,

premised upon the presumption that all sexual offenders pose a high

risk of recidivating, impinge upon juvenile offenders’ fundamental

right to reputation as protected under the Pennsylvania Constitution.

Id. at 16-17 (citations omitted).

After determining that the juvenile petitioners had a protected right to their

reputations, the Supreme Court summarized its case law outlining the so-called

“irrebuttable presumption doctrine” as providing that “‘irrebuttable presumptions

are violative of due process where the presumption is deemed not universally true

16

and a reasonable alternative means of ascertaining that presumed fact are

available.’” Id. at 15 (quoting Department of Transportation, Bureau of Driver

Licensing v. Clayton, 684 A.2d 1060, 1063 (Pa. 1996)). The Supreme Court cited

studies credited by the trial court that showed juvenile sexual offenders exhibit

levels of recidivism that “are indistinguishable from the recidivism rates of non-

sexual juvenile offenders.” Id. at 17. Based on these studies and other societal

knowledge gleaned from statutes and case law, the Supreme Court concluded “that

SORNA’s registration requirements improperly brand all juvenile offenders’

reputations with an indelible mark of a dangerous recidivist, even though the

irrebuttable presumption linking adjudication of specified offenses with a high

likelihood of recidivating is not ‘universally true.’” Id. at 19 (quoting Clayton, 684

A.2d at 1063). The Supreme Court then determined that a reasonable alternative

means to ascertain whether the juvenile offenders represented a recidivism risk was

available in the form of a hearing similar to the hearing required before classifying

an offender as a sexually violent predator pursuant to Section 9799.24 of SORNA,

42 Pa. C.S. § 9799.24. Id. Concluding that the “irrebuttable presumption

doctrine” was satisfied, the Supreme Court held that the lifetime registration

requirement was unconstitutional as applied to juveniles. Id. at 19-20.

Although the Supreme Court’s holding in J.B. is limited to juvenile

offenders, that decision provides us with the analytical framework with which to

consider whether Petitioner has stated a claim challenging, on procedural due

process grounds, SORNA’s irrebuttable presumption.

17

Under J.B., we first determine whether Petitioner has asserted a reputational

interest protected by due process. The Supreme Court recognized a

constitutionally-protected reputational interest for the juvenile sexual offenders in

J.B., and has also recognized a reputational interest for adults adjudged to be

sexually violent predators implicated by the sex offender notification provisions of

earlier versions of Megan’s Law. See Commonwealth v. Maldonado, 838 A.2d

710, 714 (Pa. 2003) (quoting Brummer v. Iowa Department of Corrections, 661

N.W.2d 167, 174-75 (Iowa 2003)) (holding that “there is little doubt” the

notification requirements applicable under Megan’s Law II to adult sexually

violent predators “constitutes a significant imposition beyond the mere tarnishing

of one’s reputation, as it ‘threatens the impairment and foreclosure of the

associational or employment opportunities of persons who may not truly pose the

risk to the public that an errant risk assessment would indicate’”); Commonwealth

v. Williams, 733 A.2d 593, 607 (Pa. 1999) (determining that “[o]ne’s livelihood,

domestic tranquility and personal relationships are unquestionably put in jeopardy

by the notification provisions” applicable to adult sexually violent predators).12

12

Both Maldonado and Williams assessed the requirements placed upon sexually violent

predators in the earlier versions of Megan’s Law. Under those versions of the law,

the name, address, offense, designation and photograph of sexually violent

predators . . . . [was] given to the neighbors of sexually violent predators, the

director of county child and youth services where the sexually violent predator

resides, the superintendent of each school district in the area, including private

and parochial schools, the director of licensed day care facilities in the

municipality where the sexually violent predator resides and the president of any

college, university and community college located within 1,000 feet of a sexually

violent predator’s residence.

Williams, 733 A.2d at 596. Because those classified as sexually violent predators under

Megan’s Law II were determined to suffer from “a mental abnormality or personality disorder,”

(Continued…)

18

While the extent of the deprivation may impact the amount of due process afforded

to sexually violent offenders, see Marich, 666 A.2d at 256 n.7 (holding that,

pursuant to Mathews v. Eldridge, 424 U.S. 319, 336 (1976), the amount of process

due is determined by balancing the private interest affect against the risk of

erroneous deprivation of such interest and the Government’s interest), we cannot

say with certainty that Petitioner will be unable to prove that SORNA deprives Tier

III adult sexual offenders of their constitutionally protected reputational interest.

Next, under J.B., we assess whether we can say with certainty that Petitioner

will be unable to satisfy the two requirements of the irrebuttable presumption

doctrine: (1) that it is not “universally true” that adult offenders pose a heightened

risk of recidivism; and (2) that a reasonable alternative process to ascertain the

presumed fact is available. J.B., 107 A.3d at 14-15. When ruling on preliminary

objections we must accept all facts alleged, and the inferences reasonably deduced

therefrom, as true. Bright v. Pennsylvania Board of Probation and Parole, 831

A.2d 775, 777 (Pa. Cmwlth. 2003). Moreover, we must resolve any doubt “in

favor of overruling the demurrer.” Surgical Laser Technologies, Inc. v.

Department of Revenue, 626 A.2d 664, 668 (Pa. Cmwlth. 1993). The question

before the Supreme Court in J.B. was whether it is universally true that juvenile

offenders pose a high risk of recidivism and, in deciding that it was not true, the

Supreme Court discussed the evidence presented to the trial court. While

describing the evidence of recidivism of juvenile sex-offenders found credible by

42 Pa. C.S. § 9792 (expired December 20, 2012, pursuant to Section 9799.41 of SORNA, 42 Pa.

C.S. § 9799.41), being labeled as such carries a stigma beyond being labeled a sexually violent

offender under SORNA. See Schepers, 691 F.3d at 914 (“Society’s abhorrence of sexually

violent predators goes above and beyond that reserved for other sex offenders.”).

19

the trial court, the Supreme Court noted that “adult sexual offenders have a high

likelihood of reoffense.” J.B., 107 A.3d at 17. However, the question of whether

it is universally true that all adult sexual offenders pose a high risk of reoffense

was not at issue in J.B. and the Supreme Court did not decide that question. Thus,

such general references are dicta and should not preclude an adult sexual offender

the opportunity to present evidence in an effort to prove that the presumption is not

universally true. Should the Petitioner meet the first requirement, the next question

would be whether a reasonable alternative process to ascertain the presumed fact is

available, such as an individualized hearing to determine whether Petitioner is

currently dangerous.13

Because we cannot say for certain that Petitioner has not stated a claim, and

because the PSP did not provide support for its objections to Petitioner’s

procedural and substantive due process claims, we overrule the PSP’s demurrer to

Petitioner’s due process claims under Article I, Sections 1 and 11 of the

Pennsylvania Constitution.14

13

Petitioner also alleges that, under the principles of procedural due process, he is

entitled to a hearing to determine whether he is currently dangerous prior to being subject to the

internet notification provision of SORNA. The United States Supreme Court has held that a

hearing is not required by the Due Process Clause of the United States Constitution. See

Connecticut II, 538 U.S. at 7 (holding that sexual offenders asserting procedural due process

challenge to their status under state sex offenders registries must show that the fact they are

challenging is relevant to the state statutory scheme). However, should Petitioner prove his

claim that SORNA’s irrebuttable presumption that all adult offenders pose a heightened

recidivism risk is not universally true, Petitioner may be entitled to a hearing to determine

whether he should remain registered as a sexually violent offender.

14

We note that Petitioner faces a high burden of proof to prove his allegations; SORNA,

like all duly enacted acts passed by the General Assembly, enjoys a strong presumption of

constitutionality and “‘a statute will not be declared unconstitutional unless it clearly, palpably,

(Continued…)

20

3. Procedural Due Process Under Article I, Section 9 of the

Pennsylvania Constitution

Petitioner also alleges that SORNA deprives him of his due process rights

under Article I, Section 9 of the Pennsylvania Constitution. The PSP avers that

Petitioner has not stated a claim under this constitutional provision because no

criminal prosecution is at issue.

Article I, Section 9 of our Constitution provides:

In all criminal prosecutions the accused hath a right to be heard by

himself and his counsel, to demand the nature and cause of the

accusation against him, to be confronted with the witnesses against

him, to have compulsory process for obtaining witnesses in his favor,

and, in prosecutions by indictment or information, a speedy public

trial by an impartial jury of the vicinage; he cannot be compelled to

give evidence against himself, nor can he be deprived of his life,

liberty or property, unless by the judgment of his peers or the law of

the land. The use of a suppressed voluntary admission or voluntary

confession to impeach the credibility of a person may be permitted

and shall not be construed as compelling a person to give evidence

against himself.

Pa. Const. art. I, § 9 (emphasis added). Petitioner raises no claims that implicate a

criminal prosecution; Petitioner’s claims all address administrative action taken by

the PSP well after Petitioner pled guilty to his crime and was sentenced.

Accordingly, the PSP’s PO to this claim is sustained.

and plainly violates the Constitution.’” Pennsylvania State Association of Jury Commissioners

v. Commonwealth, 64 A.3d 611, 618 (Pa. 2013) (quoting Pennsylvanians Against Gambling

Expansion Fund, Inc. v. Commonwealth, 877 A.2d 383, 393 (Pa. 2005)).

21

4. Equal Protection

Petitioner alleges multiple violations of his right to equal protection under

both the United States and Pennsylvania Constitutions. Petitioner alleges that the

entire tier classification system of SORNA violates his equal protection rights.

Petitioner asserts that he was impermissibly treated differently than others

similarly situated in three ways: (1) that he is required to register and those

convicted of the same crime, but released from prison or supervision of the Parole

Board prior to the enactment of Megan’s Law I, are not; (2) that unlike juvenile

offenders, he may not petition a court to have his notification requirements

removed; and (3) that he was not provided counsel to challenge and appeal the

SORNA registration requirements when those convicted after the enactment of

Megan’s Law I have such rights. Once again, the PSP demurs to these claims,

arguing that they are without merit based on our decision in Miller.

Equal protection is the constitutional principle that “‘like persons in like

circumstances will be treated similarly’” under the law. Miller, 886 A.2d at 315

(quoting Curtis v. Kline, 666 A.2d 265, 267 (Pa. 1995)). Article I, Sections 1 and

26 of the Pennsylvania Constitution provide the basis for equal protection under

state law. Pa. Const. art. I, § 1 (“All men are born equally free and independent,

and have certain inherent and indefeasible rights.”); Pa. Const. art. I, § 26 (stating

that “[n]either the Commonwealth nor any political subdivision thereof shall deny

to any person the enjoyment of any civil right, nor discriminate against any person

in the exercise of any civil right”).15

15

We analyze the equal protection provisions of the Pennsylvania Constitution “under the

same standards used by the United States Supreme Court when reviewing equal protection

(Continued…)

22

In Miller, we were confronted with class action claims that the classification

scheme of Megan’s Law II violated the Equal Protection Clauses of the United

States and Pennsylvania Constitutions because the General Assembly’s decision to

classify those convicted of crimes as sexual and non-sexual offenders “def[ied]

reason and common sense.” Miller, 886 A.2d at 313. In assessing the equal

protection claim, we reasoned that “‘[t]he prohibition against treating people

differently under the law does not preclude the Commonwealth from resorting to

legislative classifications, provided that those classifications are reasonable rather

than arbitrary and bear a reasonable relationship to the object of the legislation.’”

Id. at 315 (quoting Curtis, 666 A.2d at 268 (citations omitted)). Determining

whether a classification is arbitrary depends on the type of classification at issue.

The types of classifications are: (1) classifications which implicate a

“suspect” class or a fundamental right; (2) classifications implicating

an “important” though not fundamental right or a “sensitive”

classification; and (3) classifications which involve none of these.

Should the statutory classification in question fall into the first

category, the statute is strictly construed in light of a “compelling”

governmental purpose; if the classification falls into the second

category, a heightened standard of scrutiny is applied to an

“important” governmental purpose; and if the statutory scheme falls

into the third category, the statute is upheld if there is any rational

basis for the classification.

Id. (quoting Curtis, 666 A.2d at 268 (citation omitted)). Because “convicted sexual

offenders as a category of felons[] is not . . . a suspect class,” we reviewed, in

Miller, Megan’s Law II’s registration requirements under a rational basis standard

and concluded that the classification scheme met equal protection standards

claims under the Fourteenth Amendment to the United States Constitution.” Love v. Borough of

Stroudsburg, 597 A.2d 1137, 1139 (Pa. 1991).

23

because it sought to promote the legitimate state interest of promoting public safety

and welfare. Id. at 316.

Based on our holding in Miller, we are bound to conclude that Petitioner has

not stated a claim that SORNA’s three-tier classification system violates the Equal

Protection Clauses of the United States and Pennsylvania Constitutions. Further,

Petitioner’s claim that his equal protection rights were violated by being treated

differently than those convicted of the same crime as Petitioner, but released from

incarceration and not under Parole Board supervision at the time Megan’s Law I

was enacted, is similarly without merit. Convicted sexual offenders are not a

suspect class, id., and the General Assembly’s decision to exempt those who were

released from incarceration and not under the supervision or control of the Parole

Board prior to the enactment of Megan’s Law I is rationally related to promoting

public safety and welfare. See Curtis, 666 A.2d at 268 (noting that when

conducting a rational basis analysis, “the reviewing court is free to hypothesize

reasons the legislature might have had for the classification”). Locating a

convicted sexual offender subject to registration and notification requirements, but

not currently under supervision, and enforcing such requirements would place an

enormous burden on the state. Establishing reasonable enforcement mechanisms

are essential to achieving the stated goal of promoting public safety and welfare,

and the General Assembly had a rational basis to exempt those released from

prison and not on parole from the registration requirements. Accordingly, we

sustain the PSP’s demurrer to this claim.

24

Similarly, we conclude that Petitioner’s allegation that SORNA

impermissibly treats him differently than juveniles, insofar as the law provides a

mechanism by which only juveniles may have their registration requirement

terminated, also is without merit.16 Courts have long distinguished between

juveniles and adults in various areas of law. See Bellotti v. Baird, 443 U.S. 622,

635 (1979) (“although children generally are protected by the same constitutional

guarantees against governmental deprivations as are adults, the State is entitled to

adjust its legal system to account for children’s vulnerability and their needs”).

Recently, our Supreme Court, in J.B., noted research indicating that “many of

those who commit sexual offenses as juveniles do so as a result of impulsivity and

sexual curiosity, which diminish with rehabilitation and general maturation” and

that “the vast majority of juvenile offenders are unlikely to recidivate.” J.B., 107

A.3d at 17. Because those who commit sexually violent offenses as children are

less likely to recidivate, the General Assembly’s decision to provide a means for

juveniles to have their registration requirement terminated is rationally related to

promoting public safety and welfare and does not offend Petitioner’s equal

protection rights. Therefore, we will sustain the PSP’s challenge to this claim.

16

Section 9799.23(b) of SORNA provides that “the court shall have no authority to

relieve a sexual offender from the duty to register” except as provided in Section 9799.17. 42

Pa. C.S. § 9799.23(b). Under Section 9799.17(a) of SORNA, juvenile offenders “shall have the

registration requirement terminated if”: (1) “at least twenty-five years have elapsed since the

individual was []adjudicated delinquent for an offense, which if committed by an adult, would be

classified” as rape, involuntary deviate sexual intercourse, aggravated indecent assault, or

“attempt, solicitation or conspiracy to commit” the above offenses; (2) for twenty-five “years

prior to filing the petition, the individual has not been convicted of a subsequent sexually violent

offense or a subsequent offense” graded as a second degree misdemeanor or higher or an offense

“punishable by a term of imprisonment greater than one year”; (3) “[t]he individual successfully

completed court-ordered supervision without revocation”; and (4) the individual completed an

approved treatment program for sexual offenders. 42 Pa. C.S. § 9799.17(a).

25

Finally, Petitioner alleges that his equal protection rights were violated by

being afforded less due process than those convicted after the effective date of

Megan’s Law I because those convicted after the effective date are afforded the

opportunity to challenge or appeal their sexual offender classification with the

assistance of counsel. Petitioner’s averment is premised on the erroneous belief

that those convicted of sexually violent offenses after the enactment of Megan’s

Law I are capable of challenging their tier classification at a criminal proceeding

with the assistance of counsel. The registration requirements of SORNA are civil

in nature. Commonwealth v. Leidig, 956 A.2d 399, 404 (Pa. 2008). The

imposition of civil registration requirements are not components of a criminal

proceeding for which the right to the assistance of counsel attaches. See

Commonwealth v. Cox, 983 A.2d 666, 680 (Pa. 2009) (stating that the Sixth

Amendment guarantees the right to counsel at all critical stages of a criminal

proceeding). As discussed above, even if Petitioner was convicted after the

enactment of Megan’s Law I, sentencing courts lack the authority to relieve an

adult sexual offender from the duty to register. 42 Pa. C.S. § 9799.23(b)(2). The

sole circumstance where a sexual offender is given the right to counsel to challenge

and appeal a sex offender classification is when the offender is designated as a

sexually violent predator under Section 9799.24(e) of SORNA. See 42 Pa. C.S. §

9799.24(e)(2) (providing the right to court-appointed counsel at a hearing to

determine whether the individual is a sexually violent predator). Petitioner was not

designated to be a sexually violent predator; thus, even if he had been convicted

after the enactment of Megan’s Law I, he would not have been entitled to

challenge his designation with the assistance of counsel.

26

In sum, we conclude that Petitioner has not stated a claim establishing that

the SORNA provisions requiring him to register as a Tier III sexual offender

violate his right to equal protection under either the United States or Pennsylvania

Constitutions, and we sustain the PSP’s demurrers with regard to all of Petitioner’s

equal protection claims.

5. Ex Post Facto

Next, Petitioner alleges that SORNA is an ex post facto law under both the

United States and Pennsylvania Constitutions because SORNA increases

registration requirements and removes liberty interests given to him by prior

versions of Megan’s Law. The PSP alleges Petitioner’s claims were found to be

without merit by the Pennsylvania Supreme Court in Commonwealth v. Gaffney,

733 A.2d 616, 621 (Pa. 1999), and the United States Supreme Court in Smith v.

Doe, 538 U.S. 84 (2003).

Both the United States and Pennsylvania Constitutions prohibit ex post facto

laws. U.S. Const. Art. I, § 10 (stating “[n]o State shall . . . pass any Bill of

Attainder, ex post facto Law, or Law impairing the Obligation of Contracts . . . .”);

Pa. Const. art. I, § 17 (stating that “[n]o ex post facto law, nor any law impairing

the obligations of contracts, or making irrevocable any grant of special privileges

or immunities, shall be passed”). A law violates the Ex Post Facto Clauses of both

the United States and Pennsylvania Constitutions if the law

(1) makes an action done before the passing of the law, and which was

innocent when done, criminal, and punishes such action; (2)

aggravates a crime, or makes it greater than it was when committed;

(3) changes the punishment, and inflicts a greater punishment than the

law annexed to the crime when committed; or (4) alters the legal rules

27

of evidence, and receives less, or different, testimony than the law

required at the time of the commission of the offense in order to

convict the offender.

Commonwealth v. Allshouse, 36 A.3d 163, 184 (Pa. 2012).

With regard to whether the specific registration requirements of SORNA

pose ex post facto concerns, we recently conducted an extensive review of

SORNA’s registration requirements in Coppolino v. Noonan, 102 A.3d 1254 (Pa.

Cmwlth. 2014) (en banc)17 and held that the registration requirements, save Section

9799.15(g), 42 Pa. C.S. § 9799.15(g) (requiring those convicted prior to SORNA

to provide in-person updates to registration information), are not punitive and pose

no ex post facto concerns. Coppolino, 102 A.3d at 1278-79. Based on our holding

in Coppolino, the only registration requirement of SORNA that is punitive, as

applied to Petitioner, is Section 9799.15(g) and that requirement must not be

imposed upon him. Accordingly, the PSP’s PO to Petitioner’s ex post facto

challenge to SORNA’s registration requirements is sustained in accordance with

Coppolino.

Our decision in Coppolino did not address whether SORNA’s internet

notification provision constitutes an ex post facto law because the petitioner in

Coppolino was convicted under Megan’s Law III, which, like SORNA, contained

17

Coppolino, which was heard in our original jurisdiction, is currently on appeal to the

Pennsylvania Supreme Court. The Supreme Court held oral argument on whether SORNA is

unconstitutionally overbroad with respect to Coppolino’s right of free speech and will decide, on

the briefs, whether application of SORNA to Coppolino would be an unconstitutional ex post

facto application. Coppolino v. Noonan (No. 132 MAP 2014, filed July 20, 2015). At the time

the PSP filed its POs, September 11, 2014, Coppolino was not yet filed by this Court. We note,

however, that the PSP cited to Coppolino as additional authority in its reply brief to Petitioner’s

brief in opposition to the PSP’s POs.

28

an internet notification provision. Petitioner challenges the imposition of the

internet notification requirement on him as an unconstitutional ex post facto law

under both the United States Constitution and the Pennsylvania Constitution. The

United States Supreme Court has assessed whether the internet notification

provision of Alaska’s Megan’s Law was an ex post facto law under the federal

constitution in Smith. The Court held that the internet publication of accurate

information is not punitive and, therefore, posed no ex post facto concern under the

United States Constitution. Smith, 538 U.S. at 98. According to the Court:

[T]he stigma of Alaska’s Megan Law results not from public display

for ridicule and shaming but from the dissemination of accurate

information about a criminal record, most of which is already public.

Our system does not treat dissemination of truthful information in

furtherance of a legitimate governmental objective as punishment. . .

The fact that Alaska posts the information on the Internet does not

alter our conclusion. It must be acknowledged that notice of a

criminal conviction subjects the offender to public shame, the

humiliation increasing in proportion to the extent of the publicity.

And the geographic reach of the Internet is greater than anything

which could have been designed in colonial times. These facts do not

render Internet notification punitive. The purpose and the principal

effect of notification are to inform the public for its own safety, not to

humiliate the offender. Widespread public access is necessary for the

efficacy of the scheme, and the attendant humiliation is but a

collateral consequence of a valid regulation.

Id. at 98-99 (emphasis added).

The internet notification provision of Alaska’s Megan’s Law essentially

mirrors SORNA’s internet notification provision applicable to Petitioner.18 We,

18

Under Alaska’s Megan’s Law:

(Continued…)

29

thus, conclude that the internet notification provision of SORNA does not

constitute an ex post facto law under the United States Constitution when applied

to Petitioner, and we sustain the PSP’s PO in this regard.

However, “discharging the federal constitutional claim does not

automatically terminate our inquiry.” Gaffney, 733 A.2d at 621. Our Supreme

Court has long held that, when called upon to interpret provisions of the

Pennsylvania Constitution, we are not bound by the interpretations of similar

provisions of the United States Constitution made by the United States Supreme

Court. Commonwealth v. Edmunds, 586 A.2d 887, 894 (Pa. 1991). “Although we

may accord weight to federal decisions” when they address underlying specific

constitutional guarantees, “it is both important and necessary that we undertake an

independent analysis of the Pennsylvania Constitution, each time a provision of

that fundamental document is implicated.” Id. at 894-95. When there is

compelling reason to do so, we may interpret our constitution as affording greater

protections than the federal constitution. Gaffney, 733 A.2d at 621.

Information about a sex offender or child kidnapper that is contained in the

central registry, including sets of fingerprints, is confidential and not subject to

public disclosure except as to the sex offender’s or child kidnapper’s name,

aliases, address, photograph, physical description, description of motor vehicles,

license numbers of motor vehicles, and vehicle identification numbers of motor

vehicles, place of employment, date of birth, crime for which convicted, date of

conviction, place and court of conviction, length and conditions of sentence, and a

statement as to whether the offender or kidnapper is in compliance with

requirements of AS 12.63 or cannot be located.

Alaska Stat. § 18.65.087(b). Although “[t]he Act does not specify the means by which the

registry information must be made public[,] Alaska has chosen to make most of the

nonconfidential information available on the Internet.” Smith, 538 U.S. at 91.

30

We have not found a Pennsylvania case binding upon this Court addressing

whether SORNA’s internet notification provision is punitive for purposes of the Ex

Post Facto Clause of the Pennsylvania Constitution,19 and the PSP’s POs does not

19

In Commonwealth v. Ackley, 58 A.3d 1284, 1287 (Pa. Super. 2012), the Superior

Court held that the internet notification provision of Megan’s Law III, 42 Pa. C.S. § 9798.1

(expired December 20, 2012, pursuant to 42 Pa. C.S. § 9799.41), was not punitive for purposes

of the Ex Post Facto Clause of the Pennsylvania Constitution. Even if Ackley was on point we

are “not bound by the Superior Court’s precedents, although where persuasive, we are free to

adopt the Superior Court’s reasoning.” Wertz v. Chapman Township, 709 A.2d 428, 433 n.8

(Pa. Cmwlth. 1998). Moreover, it is not clear whether the Superior Court’s holding in Ackley

applies to Petitioner’s case because the Ackley decision adopts the Supreme Court’s analysis of

the punitive effects of Megan’s Law II’s notification provisions in Gomer Williams, 832 A.2d at

976, which did not require notification to the public via the internet. Ackley, 58 A.3d at 1287.

Whether disclosure on the internet is more punitive than previous notification measures, as

Petitioner alleges here, was not addressed by the Superior Court. Additionally, the Superior

Court in Ackley emphasized that the petitioner could receive relief in 2029 to the internet

notification provision under Section 9795.5 of Megan’s Law III, 42 Pa. C.S. § 9795.5 (expired

December 20, 2012, pursuant to 42 Pa. C.S. § 9799.41). Ackley, 58 A.3d at 1287-88. That

expired provision has no counterpart in SORNA.

More recently, in Commonwealth v. Perez, 97 A.3d 747, 760 (Pa. Super. 2014), the

Superior Court declined to consider whether the Pennsylvania Constitution provides greater

protections than the United States Constitution as it relates to SORNA. Although the majority

opinion in Perez does not discuss SORNA’s internet notification provision, the concurring

opinion of Judge Donohue expresses concern over the impact of internet notification. Judge

Donohue reasoned:

Yesterday’s face-to-face shaming punishment can now be accomplished online,

and an individual’s presence in cyberspace is omnipresent. The public internet

website utilized by the Pennsylvania State Police broadcasts worldwide, for an

extended period of time, the personal identification information of individuals

who have served their “sentences.” This exposes registrants to ostracism and

harassment without any mechanism to prove rehabilitation—even through the

clearest proof. In my opinion, the extended registration period and the worldwide

dissemination of registrants’ information authorized by SORNA now outweighs

the public safety interest of the government so as to disallow a finding that it is

merely regulatory. . . . This, to me, is the closest of cases. Had Perez not

conceded that the first prong of the Smith test had been met, my decision in his

(Continued…)

31

provide support for its averment that Petitioner’s ex post facto claim under the

Pennsylvania Constitution has been rejected by courts within this Commonwealth.

At this early stage of these proceedings, and given the lack of specificity in the

PSP’s POs, we cannot say with certainty that Pennsylvania Constitution’s Ex Post

Facto Clause does not provide more protection than its federal counterpart with

regard to the internet notification provision of SORNA. Accordingly, we overrule

the PSP’s POs with regard to this claim.

6. Plea Agreement

Petitioner alleges that his 1994 guilty plea established a contract with the

Commonwealth and that imposition of SORNA upon him violates his rights under

the Contract and Due Process Clauses of the Pennsylvania and United States

Constitutions by imposing penalties beyond the terms of his negotiated plea

agreement. With regard to Petitioner’s due process allegation, the Superior Court

addressed similar issues in Commonwealth v. Benner, 853 A.2d 1068 (Pa. Super.

2004). Our decision in Haigh, cited by the PSP, adopted the Superior Court’s

reasoning in Benner. Haigh, slip op. at 4. In that case, Benner pled guilty in 1999

to a crime that carried a registration requirement of ten years under Megan’s Law I.

Benner, 853 A.2d at 1071. Benner was released from prison in 2003, after

Megan’s Law I was repealed and replaced with Megan’s Law II, which required

Benner to register for his lifetime. Id. at 1069. Benner argued that he should not

be subject to the lifetime registration requirements of Megan’s Law II because he

case may have been different. Moreover, a challenge under the Pennsylvania

State Constitution may have yielded a different result.

Perez, 97 A.3d at 765-66 (Donohue, J., concurring) (emphasis added).

32

entered a plea agreement, purportedly on the representation of the District

Attorney, that Benner would avoid having to register under Megan’s Law I. Id. at

1069. Benner asserted that requiring him to do so would render his plea agreement

involuntary and sentence illegal. Id. The Superior Court rejected Benner’s

argument and held that

because the registration requirements under Megan’s Law impose

only collateral consequences of the actual sentence, their application

is not limited by the factors that control the imposition of sentence.

Thus, while a defendant may be subject to conviction only under

statutes in effect on the date of his acts, and sentence configuration

under the Guidelines in effect on that same date, the application of the

registration requirements under Megan’s Law is not so limited.

Id. at 1072. The Superior Court concluded that, because the registration

requirements were not punitive, the imposition of a lifetime registration

requirement upon Benner did not violate his due process rights. Id. at 1070-71.

We find the Superior Court’s reasoning in Benner persuasive and conclude

that due process does not require lifting the registration requirements of SORNA

by virtue of Petitioner’s 1994 plea agreement. Petitioner did not know of the

registration requirements of Megan’s Law at the time of his plea, but this lack of

knowledge did not vitiate his plea or limit the collateral consequence of this

sentence. Accordingly, we shall sustain the PSP’s demurrer to Petitioner’s due

process claims regarding his plea agreement.

The PSP did not, however, object to Petitioner’s allegation that the

imposition of SORNA upon him violates the Contract Clauses of the United States

33

and Pennsylvania Constitutions as it impairs the obligation contained in his 1994

plea agreement. Accordingly, the PSP must answer this claim.

V. Conclusion

For the foregoing reasons, we hold as follows: (1) the PSP’s preliminary

objection in the nature of a demurrer to Petitioner’s allegations that SORNA’s

irrebuttable presumption and his inability to challenge whether he is currently a

recidivism risk violates his procedural due process rights under the Pennsylvania

Constitution is overruled; (2) the PSP’s preliminary objection in the nature of a

demurrer to Petitioner’s substantive due process challenge under the Pennsylvania

Constitution is overruled; (3) the PSP’s preliminary objection in the nature of a

demurrer to Petitioner’s challenge to SORNA’s internet notification provision

under the Ex Post Facto Clause of the Pennsylvania Constitution is overruled; (4)

the PSP did not object to Petitioner’s Contract Clause allegation, which must be

answered; and (5) the PSP’s preliminary objections are sustained with regard to

the remainder of Petitioner’s claims and these claims are dismissed with prejudice.

________________________________

RENÉE COHN JUBELIRER, Judge

34

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gregory S. Person, :

:

Petitioner :

:

v. : No. 222 M.D. 2013

:

Pennsylvania State Police Megan’s :

Law Section, :

:

Respondent :

ORDER

NOW, November 3, 2015, the Pennsylvania State Police Megan’s Law

Section’s (PSP) Preliminary Objections to the Second Amended Petition for

Review in the above-captioned matter are OVERRULED, in part, and

SUSTAINED, in part, as follows:

(1) The PSP’s preliminary objection in the nature of a demurrer to

Gregory S. Person’s (Petitioner) procedural due process challenges

under Article I, Sections 1 and 11 of the Pennsylvania Constitution in

relation to the Sexual Offender Registration and Notification Act’s

(SORNA) irrebuttable presumption and his inability to challenge

whether he is currently a recidivism risk as set forth in the Second

Amended Petition for Review is OVERRULED;

(2) The PSP’s preliminary objection in the nature of a demurrer to

Petitioner’s substantive due process challenge under the Pennsylvania

Constitution as set forth in the Second Amended Petition for Review

is OVERRULED;

(3) The PSP’s preliminary objection in the nature of a demurrer to

Petitioner’s ex post facto challenge to SORNA’s internet notification

provision, 42 Pa. C.S. § 9799.28(a), under the Pennsylvania

Constitution as set forth in the Second Amended Petition for Review

is OVERRULED;

(4) The PSP shall file an Answer to Petitioner’s claims set forth in

Petitioner’s Second Amended Petition for Review, that SORNA

violates procedural and substantive due process under the

Pennsylvania Constitution, impairs the obligations contained in his

1994 plea agreement in violation of the Contract Clauses of the

United States and Pennsylvania Constitutions, and that Section

9799.28(a) of SORNA is an ex post facto law under the Pennsylvania

Constitution within thirty (30) days of the date of this Order;

(5) The PSP’s preliminary objections are SUSTAINED with regard to

the remaining claims set forth in the Second Amended Petition for

Review; and

(6) Petitioner’s remaining claims are DISMISSED WITH

PREJUDICE.

________________________________

RENÉE COHN JUBELIRER, Judge