513 F.3d 95 (3rd Cir. 2008), 05-4200, Doe v. Pennsylvania Bd. of Probation and Parole

Docket Nº:05-4200.
Citation:513 F.3d 95
Party Name:John DOE a/k/a D.T.C. v. The PENNSYLVANIA BOARD OF PROBATION AND PAROLE; State Police Commissioner Jeffrey B. Miller; Appointed Board Chair Catherine C. McVey Chairman of the Pennsylvania Board of Probation and Parole Catherine C. McVey; Commissioner of the Pennsylvania State Police Jeffrey B. Miller, Appellants.
Case Date:January 23, 2008
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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513 F.3d 95 (3rd Cir. 2008)

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


The PENNSYLVANIA BOARD OF PROBATION AND PAROLE; State Police Commissioner Jeffrey B. Miller; Appointed Board Chair Catherine C. McVey

Chairman of the Pennsylvania Board of Probation and Parole Catherine C. McVey; Commissioner of the Pennsylvania State Police Jeffrey B. Miller, Appellants.

No. 05-4200.

United States Court of Appeals, Third Circuit.

Jan. 23, 2008

Argued Oct. 4, 2006.

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 01-cv-03639) District Judge: The Honorable Louis H. Pollak.

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Sue A. Unger, Esq., (Argued), Office of the Attorney General of Pennsylvania, Philadelphia, PA, Counsel for Appellants.

Witold J. Walczak, Esq., (Argued), American Civil Liberties Union, Pittsburgh, PA, John J. Kerrigan, Jr., Esq., The Lofts at Oxford Valley, Langhorne, PA, Counsel for Appellee.

Before: McKEE, AMBRO, and NYGAARD, Circuit Judges.


NYGAARD, Circuit Judge.

John Doe, an anonymous plaintiff, sued under 42 U.S.C. § 1983, seeking declaratory and injunctive relief from aspects of Pennsylvania's Registration of Sexual Offenders Act ("Megan's Law"), 42 PA. CONS.STAT. §§ 9791 et seq. Pennsylvania's Megan's Law requires all convicted sex offenders to register with state and local police, and subjects certain offenders to community notification. The suit involves the application of these requirements to a Pennsylvania resident who was convicted of a sexual offense in New Jersey, and sought to return to his home state to serve his parole. Under the provisions of Pennsylvania's Megan's Law, any out-of-state sex offender who transfers his supervision to Pennsylvania is subject to community notification. By contrast, an individual who was convicted of the same offense in Pennsylvania would only be subject to community notification if, after a civil hearing, he had been designated a "sexually violent predator due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses." 42 PA. CONS.STAT. § 9792 (2000). The District Court concluded that the disparate treatment of out-of-state offenders violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution. The Commonwealth of Pennsylvania has appealed. We will affirm.


We have borrowed liberally from the well-stated factual background section, and the carefully reasoned opinion of Judge Pollak. See Doe v. McVey et al., 381 F.Supp.2d 443, 444-447 (E.D.Pa. 2005). John Doe, a Pennsylvania resident, was arrested for molesting an 11-year-old girl in New Jersey. He pleaded guilty to second degree sexual assault and was sentenced to five years' probation and parole supervision for life. In the sentencing report,

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the New Jersey judge found that "[d]efendant's sexual deviation is not compulsive nor repetitive and it appears was the result of an intoxicated condition on the evening of the offense" and that Doe was "unlikely to commit another offense."

Ordinarily under New Jersey's Megan's Law, Doe would then have a civil hearing to determine whether his likelihood of recidivism was sufficiently substantial as to warrant his being made a subject of community notification. However, because Doe intended to return to Pennsylvania to complete his sentence, New Jersey did not hold a community notification hearing. At sentencing, Doe requested that his supervision be transferred to Pennsylvania in accordance with the Interstate Compact Concerning Parole and Probation ("the Compact"), 61 PA. STAT. ANN. § 324 (2002), to which both New Jersey and Pennsylvania were signatories.1 Doe signed an "Application for Compact Services and Agreement to Return," consenting to some differences in probationary supervision in the two states.2 Doe was allowed to travel to Pennsylvania pending acceptance of his application to transfer his probation.

Upon receiving Doe's application, the Pennsylvania Board of Probation and Parole held an equivalency hearing in which it determined that, had Doe been convicted in Pennsylvania, he would have been guilty of indecent assault. 18 PA. CONS.STAT. § 3126(a)(7) (2000). Where, as here, the victim is under age thirteen, indecent assault constitutes a misdemeanor in the first degree and is designated a "sexually violent offense." See 42 PA. CONS.STAT. §§ 9792, 9795.1(a)(1) (2000).

Doe registered with the Pennsylvania State Police as a sex offender, but refused to consent to community notification without some assessment to determine whether he posed any danger to the community. As a result, the Pennsylvania Board of Probation and Parole denied Doe's application for transfer of probation and informed him that he had to leave the Commonwealth. Doe filed an administrative appeal of that decision, and without awaiting disposition of the administrative appeal, filed a Section 1983 action.3 Doe

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alleged that, by treating him differently from in-state offenders, the Board, Board Chairman William F. Ward, and State Police Commissioner Paul Evanko violated his constitutional right to equal protection and due process as well as his statutory rights under the Interstate Compact Concerning Parole.4 The Board has given Doe permission to remain in Pennsylvania pending resolution of his administrative appeal, and has stayed that appeal until his Section 1983 action is final.

The Commonwealth filed a motion for judgment on the pleadings. The District Court denied that motion without prejudice and ordered the parties to submit cross-motions for summary judgment limited to the claim that community notification, as applied to Doe, violated the Interstate Compact. Doe v. Pa. Bd. of Prob. & Parole, No. 01-3639, 2002 WL 31548998, 2002 U.S. Dist. Lexis 15067 (E.D.Pa. July 26, 2002). After the parties submitted those motions, the District Court granted the Commonwealth's Motion for Summary Judgment, and invited the parties to re-file their Motions for Judgment on the Pleadings on the constitutional claims in Doe's complaint. Doe v. Pa. Bd. of Prob. & Parole, No. 01-3639, 2003 U.S. Dist. Lexis 6795 (E.D.Pa. Mar. 31, 2003).


The District Court had federal question jurisdiction under 28 U.S.C. § 1331. We exercise jurisdiction over this appeal under 28 U.S.C. § 1291. Our standard of review for judgment on the pleadings is plenary. Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 220 (3d Cir. 2005) (citing Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 290 (3d Cir. 1988)).


Pennsylvania's "Megan's Law" has undergone three distinct enactments. The Act was first passed in 1995. The version of the law being challenged in this appeal was enacted in 2000 and is referred to as "Megan's Law II." A final revision of the law took effect in January of 2005, ("Megan's Law III") and requires that all offenders (both in-state and out-of-state) be listed on the Pennsylvania State Police website as a component of community notification. Pennsylvania's Megan's Law statute sets forth the purpose for registering sexual offenders:

It is hereby declared to be the intention of the General Assembly to protect the safety and general welfare of the people

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of this Commonwealth by providing for registration and community notification regarding sexually violent predators who are about to be released from custody and will live in or near their neighborhood.

42 PA. CONS.STAT. ANN. § 9791(b) (2000) (emphasis added). To accomplish this goal, Megan's Law II creates two separate levels of notification: 1) registration with the local law enforcement agencies, and 2) community notification. Doe does not challenge the law's registration provision and indeed, has registered with the appropriate authorities. This appeal challenges the manner is which the community notification provision is applied to out-of-state offenders.

The community notification provisions apply to in-state offenders who have been adjudicated as "sexually violent predators" and all out-of-state offenders (regardless of their offense and without adjudication) who have transferred their probation to the Commonwealth. 42 PA. CONS.STAT. ANN. § 9798 (2000). The community notification is carried out by the chief law enforcement officer in the particular jurisdiction by disseminating fliers that contain the offender's photo, name, address and some indication that he is a sex offender. These fliers are given to neighbors, school superintendents, school principals, day-care directors and college presidents, charging those individuals with the responsibility of informing individuals whose duties include "supervision of or responsibility for students." 42 PA. CONS.STAT. ANN. § 9798(a) and (b) (2000). A municipality's chief law enforcement officer is to make these fliers available to the general public upon request. 42 PA. CONS.STAT. ANN. § 9798(d) (2000).

Before ordering community notification in the case of an in-state offender, Megan's Law II provides a comprehensive assessment procedure to determine whether the offender is a sexually violent predator. First, the State Sexual Offenders Board evaluates the in-state offender. The Board reviews the nature of the offense, the circumstances surrounding the offense and the offender's character and history. The Board submits a written report containing its assessment to the district attorney. If upon reviewing the Board's assessment, the district attorney believes community notification is warranted, he must file a praecipe with the Court of Common Pleas, request a hearing, and serve the praecipe and the Board's report on defense counsel. An adversarial hearing, with full trial procedures, is held to determine whether the offender is a sexually violent predator. At this hearing, the Commonwealth bears the burden of proving...

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