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DOE v. WARD

September 18, 2000

JOHN DOE, PLAINTIFF,
V.
WILLIAM F. WARD, IN HIS OFFICIAL CAPACITY AS THE CHAIRMAN OF THE PENNSYLVANIA BOARD OF PROBATION AND PAROLE; AND JEFFERY MILLER, IN HIS OFFICIAL CAPACITY AS THE COMMISSIONER OF THE PENNSYLVANIA STATE POLICE, DEFENDANTS.



The opinion of the court was delivered by: Cindrich, District Judge.

MEMORANDUM OPINION

This action arises from the application of the Pennsylvania Registration of Sexual Offenders Act, popularly known as "Megan's Law," 42 Pa.Cons.Stat. Sections 9791-9799.6 (also referred to herein as the "Original Act"), amended by S.B. No. 380, 184th Reg.Sess., Act No. 2000-18, 2000 Pa.Legis. Service. No. 2 at pp. 53-68 (referred to generally herein as the "Amended Act")*fn1, to plaintiff John Doe ("Doe").*fn2 Doe filed the instant complaint seeking preliminary and permanent injunctive relief in connection with the defendants' application of the Original Act to him to the extent that he has been subjected to community notification for an out-of-state conviction. Doe asserts the following claims in his complaint:

Count One: violation of right to travel, as guaranteed by the Equal Protection Clause of the Fourteenth Amendment and the Privileges and Immunities Clause of Article IV, Section 2 of the United States Constitution;
Count Two: deprivation of liberty and property interests without procedural due process in violation of the Fourteenth Amendment to the United States Constitution;
Count Three: punishment in violation of the Ex Post Facto Clause of Article I, Section 9, Clause 3 of the United States Constitution; and
Count Four: violation of right to travel, as guaranteed by the Privileges and Immunities Clause of the Fourteenth Amendment to the United States Constitution.

Simultaneous with the filing of the complaint, Doe also filed a motion for a temporary restraining order and/or a preliminary injunction. The parties later entered into an agreement which resolved this motion for immediate relief and thereafter indicated to the court that there were no genuine disputes of material fact and that the remaining issues could be decided on cross-motions for summary judgment. Pending before the court are the parties' cross-motions for summary judgment.

I. Background,

A. Pennsylvania's Megan's Law

The Original Act was signed into law on October 24, 1995. In general, the Original Act required (1) registration with the Pennsylvania State Police (the "State Police") by individuals convicted of certain predicate offenses enumerated in the Act and (2) community notification for such offenders who were later deemed to be a "sexually violent predator" as defined in the Act. The community notification provisions of the Original Act had an effective date of April 22, 1996. An amendment to the Original Act was passed on May 22, 1996, effective immediately, which added Section 9793(d) and substantially revised Section 9795(c), the two provisions which are the primary subject of Doe's complaint as they both deal with out-of-state offenders.

Subsequent to Doe's filing of the complaint, the Pennsylvania Supreme Court ruled in Commonwealth v. Williams, 557 Pa. 285, 733 A.2d 593 (1999) that the provisions of the Original Act which related to the designation of sexually violent predators were unconstitutional. In an apparent response to the Williams decision, the Pennsylvania legislature passed the Amended Act, which was signed into law by the governor on May 10, 2000 and took effect within sixty days of that date.

Although the out-of-state offender provisions previously codified at Sections 9793(d) and 9795(c) were substantially changed in the Amended Act, Doe's counsel argued in a letter to the court dated May 10, 2000 that the constitutional infirmities alleged in the complaint had not been cured by the Amended Act.*fn3 Still, the court deemed it necessary to give the parties an opportunity to submit supplemental briefs to address any issues that may have arisen as a result of the intervening legislation. Doe filed a supplemental brief indicating again that the case is ripe for decision. The defendants filed nothing.

As we explain in greater detail below, we agree with Doe that the potential harm which he alleges was not cured by the Amended Act. Our ruling on the parties' motions will be a ruling on the Amended Act, as any further community notification in connection with Doe would be done pursuant to the Amended Act and any issue arising under the Original Act are now moot.

1) Registration

Any one convicted of committing or attempting to commit one of the sex-related crimes listed at Section 9795.1 of the Amended Act is an "offender" subject to registration with the State Police. Act No. 2000-18 Section 9795.1. The term of registration, either ten years or lifetime, depends upon the particular crime of conviction and the number of convictions.

(i) Ten Year Registration-Section 9795.1(a)(1)

An individual who is convicted of committing or attempting to commit one of the following crimes, as listed at Section 9795.1(a)(1), is required to register with the State Police for a period of ten years:

— 18 Pa.C.S. Section 2901 (relating to kidnaping) where the victim is a minor;
— 18 Pa.C.S. Section 3126 (relating to indecent assault), where the offense is a misdemeanor of the first degree;
— 18 Pa.C.S. Section 4302 (relating to incest), where the victim is 12 years of age or older but under 18 years of age;
— 18 Pa.C.S. Section 5902(b) (relating to prostitution and related offenses), where the actor promotes the prostitution of a minor;
— 18 Pa.C.S. Sections 5903(a)(3), (4), (5), or (6) (relating to obscene and other sexual materials and performances), where the victim is a minor;
— 18 Pa.C.S. Section 6312 (relating to sexual abuse of children); and
— 18 Pa.C.S. Section 6318 (relating to unlawful contact or communication with a minor);

Act No. 2000-18 Section 9795.1(a)(1).

(ii) Lifetime Registration-Sections 9795.1(b)(1) and (2)

An individual with two or more convictions of committing or attempting to commit any of the offenses set forth in Section 9795.1(a)(1) is subject to lifetime registration with the State Police. Act No. 2000-18 Section 9795.1(b)(1).

An individual who is convicted of committing or attempting to commit one of the following crimes, as listed at Section 9795.1(b)(2), is also subject to lifetime registration with the State Police:

— 18 Pa.C.S. Section 3121 (relating to rape);

— 18 Pa.C.S. Section 3123 (relating to involuntary deviate sexual intercourse);
— 18 Pa.C.S. Section 3124.1 (relating to sexual assault);
— 18 Pa.C.S. Section 3125 (relating to aggravated indecent assault);
— 18 Pa.C.S. Section 4302 (relating to incest), when the victim is under 12 years of age.

Act No. 2000-18 Section 9795.1(b)(2).

(iii) Lifetime Registration — Section 9795.(b)(3)

An individual deemed to be a "sexually violent predator" is also subject to lifetime registration. Act No. 2000-18 Section 9795.1(b)(3). The Act defines a "sexually violent predator" as an individual who has been convicted of any criminal offense listed at either Section 9795.1(a)(1) or (b)(2) and who is also

determined to be a sexually violent predator under section 9795.4 (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses. The term includes an individual determined to be a sexually violent predator where the determination occurred in another state, territory, federal court, the District of Columbia, or by court martial.

Act No. 2000-18 Section 9792.

Section 9795.4 requires a court to order an assessment of every individual convicted of an offense listed at either Section 9795.1(a)(1) or (b)(2) prior to sentencing. Act No. 2000-18 Section 9795.4. The order for assessment is sent to the administrative officer of the State Sexual Offenders Assessment Board (the "Board"), which is comprised of Governor appointed psychiatrists, psychologists and criminal justice experts with an expertise in the behavior and treatment of sexual offenders. Act No. 2000-18 Section 9799.3. A board member is designated to conduct an assessment of the individual to determine if the individual should be classified as a sexually violent predator. Act No. 2000-18 Section 9795.4. The board member's assessment shall include, among other things, an examination of the facts of the current offense; the individual's prior offense history; and the individual's characteristics. Id.

The Board must then submit an assessment to the district attorney in a written report no later than 90 days from the date of conviction of the individual. Id. The district attorney may then seek to have the individual designated a sexually violent predator by filing a praecipe with the court. Id. The Commonwealth has the burden of proof by clear and convincing evidence in such proceeding. Id.

Upon the filing of a praecipe by the district attorney, the court must hold a hearing to determine whether the individual is a sexually violent predator. Id. The district attorney must serve a copy of the praecipe on defense counsel together with a copy of the Board's report. Id. Both the individual and the district attorney must be given an opportunity at the hearing to be heard; the right to call witnesses; the right to call expert witnesses; and the right to cross-examine witnesses. Id. The individual has the right to counsel and to have a lawyer appointed to represent him if he cannot afford one. Id. Based on the evidence presented at ...


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