B. John Doe
Doe currently resides in Pennsylvania. S-1. Defendant William
F. Ward is Chairman of the Board and is being sued in his
official capacity. S-2. Paul J. Evanko has been substituted for
defendant Jeffrey Miller. S-3. Mr. Evanko is the Commissioner of
the State Police and is being sued in his official capacity.
In late 1995, Doe engaged in a sexual relationship with an
underage 15 year old girl (hereinafter referred to as "Smith").
S-5. Doe was 32 years old at the time and was the coach of
Smith's softball team. S5. At the time, Doe resided in a state
outside of Pennsylvania (hereinafter referred to a "State X").
S-5. Over a four month period, Doe and Smith engaged in oral sex
and sexual intercourse on a regular basis in the rear of Doe's
van in a shopping center parking lot, at Doe's residence, and at
various motels. S-8. Smith became pregnant from the relationship
and obtained an abortion. S-8. Doe accompanied Smith to, and
paid for, the abortion. S-8.
Prior to their sexual relationship, Doe was aware that Smith
had emotional problems relating to bulimia, that her parents'
were divorced, and that her grandfather had sexually molested
her by, in her words, "touch[ing] her private areas," when she
was a child. S-6. Doe was also aware that the relationship was
an illegal act and that it was a sex offense. S-5. But in Doe's
words, "I loved her and she loved me," and "I followed my heart
instead of my brain." S-6.
Doe left State X in April 1996 and returned to Pennsylvania
because he felt the relationship was getting out of control with
Smith's increased displays of affection and that he could get
into serious trouble. S6. In late 1996, a criminal complaint was
filed against Doe by State X law enforcement authorities
charging him with seven first degree felonies and one second
degree felony in connection with his relationship with Smith.
S-7. The police officer who investigated the case requested that
one charge of "sexual battery upon a child under sixteen" be
filed against Doe. S-7. Sexual battery is a first degree felony
in State X. S-7.
Thereafter, Doe was advised by his mother that two individuals
had come to her house looking for him. S-7. Based upon a
subsequent conversation with Smith, Doe contacted an attorney.
S-7 The attorney advised Doe that an arrest warrant had been
issued for him. S-7. Upon advice of counsel, Doe voluntarily
returned to State X, after having been advised that he could be
extradited there if he did not return. S-7.
Doe negotiated a plea agreement with State X's prosecuting
authorities whereby he pled guilty to four counts of lewd
assault, a second degree felony, lesser included offense. S-8.
On March 27, 1997, Doe was given a 90 day sentence in a county
detention center and 10 years probation. S-9. Among the
conditions of probation imposed was a requirement that Doe
obtain psychological counseling and successfully complete
treatment; that he have no contact with the victim; that he
reimburse reasonable current and future therapy for the victim;
and that he have no contact with minors under 18 years of age
without supervision by an adult who is aware of his probation
and the nature of the charges. S-9. Prior to this incident,
Doe's criminal record consisted of one driving under the
influence charge in 1984, for which he was required to pay a
small fine and attend certain classes. S-4.
During the plea and sentencing, the court did not identify any
aggravating circumstances warranting a longer sentence but did
identify two mitigating factors to justify a downward departure
from the pertinent sentencing guidelines, (1) a legitimate
uncoerced plea bargain and (2) a victim that was a willing
participant of the incident. S-10. At no time during the plea
bargaining or during the sentencing did anyone mention Megan's
Law to Doe. S-10.
On April 28, 1997, Doe applied for a transfer of supervision
from State X to Pennsylvania pursuant to the Parole Compact.
S-11. Doe indicated in the application that he would comply with
the conditions of supervision as fixed by both State X and
Pennsylvania. S-11. The application did not mention, however,
public notification under Megan's Law. S-11. The Board later
received information from State X which identified Doe as a sex
offender on probation for a felony conviction and further
identified the judgment of guilt and the conditions of
The Board sent an investigation request to State X on or about
June 9, 1997 asking State X to advise Doe to report to a Board
district office within 24 hours of arrival and that Pennsylvania
Megan's Law sex offender registration would be required. S-12.
On June 13, 1997, Doe signed a "Special Conditions of Parole"
form acknowledging the conditions of his parole being
transferred to Pennsylvania including the requirement that he
check with the police jurisdiction where he is traveling in
order to comply with all state, county, municipal law and
ordinances regarding criminal registration in the community that
he was being given permission to visit. S-13.
The Megan's Law paperwork was completed on Doe on June 13,
1997, including the police registration paperwork. S-14. Doe
complied with the probation officer's instructions and
registered as a sex offender with the State Police.*fn13
S-14. Doe maintains that he was informed on this date that he
would not be subject to public notification pursuant to Megan's
Law because he was not a sexually violent predator, but that he
was aware of the registration requirement under Megan's Law a
day before he returned to Pennsylvania. S-14.
Doe also executed a "Conditions Governing Parole/Reparole"
form on June 13, 1997 relating to the conditions governing his
parole. S-16. The form contained preprinted language advising
Doe of his right to submit a complaint in writing to the Board's
district director and then to the Board's director of
supervision if he believed his rights were being violated as a
result of parole supervision. S-16. The Board has had a written
policy since at least September 30, 1991 governing general and
special conditions of parole and reparole. S-16. Appeals by a
person on probation regarding a general or special condition of
probation may be raised through this procedure. S-16. The form
did not mention, however, community notification under Megan's
The transfer of Doe's probation was approved on June 17, 1997.
S-15. Since returning to Pennsylvania, Doe has lived and worked
without incident. S-18. He has also complied with all conditions
of his probation, including the condition that he obtain
counseling and that he pay for Smith's therapy costs. S-17.
In May 1998, Doe made an inquiry to his probation officer as
to whether Megan's Law was only applicable to first degree
felons, rather than second degree felons. S-21. He was advised
in writing by a Board employee that Megan's Law also applied to
second degree felons. S-21.
On or about July 20, 1998, Doe received a letter from the
Board dated June 26, 1998 which indicated that he was subject to
community notification. S-25. Although the letter was dated June
26, 1998, the envelope was post marked July 16, 1998.
Additionally, the address on the envelope was incorrect. S-26.
Doe had notified his probation officer of the address change at
the time. S-26.
Doe testified that he saw his probation officer on July 21,
1998 and asked about the June 26, 1998 letter. S-27. Doe
testified that the officer did not really know what it meant and
thought it was some kind of form letter. S-27. At that
meeting, Doe also signed another "Conditions Governing
Parole/Reparole" form which again contained pre-printed language
about the right to file a complaint about any condition of
probation, but made no mention of community notification under
Megan's Law. S-27, 30.
Doe contacted the State Police immediately after he received
the June 26, 1998 letter indicating that he would be subject to
community notification. S-28. The State Police advised Doe to
look up the law. S-28. The June 26, 1998 letter was the only
notice of community notification that was provided to Doe. S-29.
Doe was aware of and agreed to comply with all conditions of
probation imposed by the receiving state when he applied to
return to Pennsylvania. S-30. He also understood that if he did
not so agree, his transfer of probation would not be accepted.
S-30. Doe was also aware that he could appeal the imposition of
any condition of probation and had done so in connection with
another matter two months earlier in May 1998. S-30. However,
Doe never submitted a complaint to the Board over the issue of
community notification. S-22.
On July 27, 1998, a local police officer distributed public
notification fliers to approximately 75 of Doe's neighbors.
S-31. The fliers contained Doe's name, photograph and current
address, which is that of a family member with whom he resided.
Exhibits to Stipulation of Facts ("Stip.Exs.") (Doc. No. 13)
(filed under seal) at Ex. W. The fliers were titled, in large
bold letters, "MEGAN'S LAW." Id. Beneath the title was the
OUT-OF-STATE OFFENDER COMMUNITY NOTIFICATION FLIER
This is to inform you that the below listed
individual has been designated for Community
Notification by the Pennsylvania Board of Probation
and Parole, as outlined in Title 42, Judiciary and
Judicial Procedure, of the Pennsylvania Consolidated
Statutes, Chapter 97, Subchapter H, Registration of
COMMUNITY NOTIFICATION IS REQUIRED FOR THIS DESIGNATION
The subject was convicted of Pennsylvania Crimes Code
Section or in the case of Out-of-State Offenders, the
appropriate equivalent: [18 Pa.Cons.Stat.Ann.
Section] 3125 [relating to aggravated indecent
Id. The flier provides no additional information about Doe's
The fliers were also distributed by the police officers to
local schools, day care centers, and licensed preschool programs
and made available to the general public. S-32, 33. The police
officers' actions were in accordance with state law. S-32.
Doe has looked exclusively to the U.S. Constitution for relief
community notification. "However, it is well established that
courts have a duty to avoid passing upon a constitutional
question if the case may be disposed of on some other ground."
Spicer v. Hilton, 618 F.2d 232, 239 (3d Cir. 1980) (citations
omitted). Without ruling on the constitutional issues raised by
Doe, we find that the Compact requires Pennsylvania to provide
Doe with the same process as is provided to in-state offenders
before subjecting him to community notification.*fn16
We first address the threshold issue of jurisdiction. Federal
courts lack subject matter jurisdiction to enjoin state
officials on the basis of state law. Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67
(1984) (Eleventh Amendment prohibits federal court from ordering
state officials to conform their conduct to state law). A
finding that the Parole Compact is federal law, therefore, is a
We have uncovered only one case, Warner v. Parke, 1996 WL
495040 (7th Cir. Aug. 29, 1996), an unpublished opinion from the
United States Court of Appeals for the Seventh Circuit, that has
spoken on the federal/state law status of the interstate parole
compact. The Seventh Circuit concluded in Warner that as an
interstate compact approved by Congress, the interstate parole
compact operates as both state and federal law. Id. at *3.
Although the court cited to Reed v. Farley, 512 U.S. 339, 347,
114 S.Ct. 2291, 129 L.Ed.2d 277 (1994), the court provided no
analysis for its conclusion.
The Supreme Court has never ruled on the issue of whether the
interstate parole compact is federal law. In Cuyler v. Adams,
449 U.S. 433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981), however, the
Court held that the Interstate Agreement on Detainers ("IAD"), a
substantially similar interstate compact, is a federal law
subject to federal court construction. The Court reaffirmed its
holding in Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct.
3401, 87 L.Ed.2d 516 (1985) (The IAD "is a congressionally
sanctioned interstate compact within the Compact Clause, U.S.
Const., Art. I, Section 10, cl. 3, and thus is a federal law
subject to federal court construction." (citing Cuyler)) and
Reed v. Farley, 512 U.S. 339, 114 S.Ct. 2291, 129 L.Ed.2d 277
(1994) ("While the IAD is indeed state law, it is a law of the
United States as well." (citing Carchman and Cuyler.))
The Court explained in Cuyler that an 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. Id. at 439-40, 101 S.Ct. 703.
The interstate parole compact satisfies each of these
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. See Cuyler, 449 U.S. at 442, n. 10, 101 S.Ct. 703.
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 and the interstate parole
compact. See Compacts between States for the Cooperation in
Prevention of Crime, 4 U.S.C. § 112. 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.
Accordingly, we hold that the Parole Compact, as a
congressionally sanctioned interstate compact, is a federal law
as well as state law. We further hold, therefore, that this
court has subject matter jurisdiction to interpret and apply the
B. Rules of Statutory Construction
The defendants have steadfastly maintained that the Board had
an unfettered right under the Parole Compact to reject Doe's
transfer to Pennsylvania. We disagree.
The Parole Compact provides in pertinent part as follows:
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
receiving state consents to such person being
Before granting such permission, opportunity
shall be granted to the receiving state to
investigate the home and prospective employment of
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 Pa.Stat.Ann. Section 321 (emphasis added).