Fross v. County of Allegheny

• Citation: 612 F.Supp.2d 651
• Decision Date: 20 March 2009
• Docket Number: Civil Action No. 08-1405.
• Parties: Charles FROSS, et al., Plaintiffs, v. COUNTY OF ALLEGHENY, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

Page 651

612 F.Supp.2d 651

Charles FROSS, et al., Plaintiffs, v. COUNTY OF ALLEGHENY, Defendant.

Civil Action No. 08-1405.

United States District Court, W.D. Pennsylvania.

March 20, 2009.

E.J. Strassburger, Strassburger, McKenna, Gutnick & Gefsky, Donald Driscoll, Community Justice Project, Sara Rose, ACLU, Witold J. Walczak, ACLF of PA, Pittsburgh, PA, for Plaintiffs.

Caroline Liebenguth, George M. Janocsko, Michael H. Wojcik, Allegheny County Law Department, Craig E. Maravich, Pittsburgh, PA, for Defendant.

MEMORANDUM OPINION

GARY L. LANCASTER, District Judge.

This is a civil rights action challenging an Allegheny County of Pennsylvania ordinance that restricts the residency of registered sex offenders. Plaintiffs, a group of convicted sex offenders whose residency has been affected by the ordinance, allege that the ordinance violates various constitutional guarantees, the Fair Housing Act, and state law. Plaintiffs seek an order enjoining enforcement of the ordinance, as well as costs and attorneys' fees.

The County agreed not to enforce the ordinance until this matter was resolved.¹ Thereafter, the court consolidated resolution of plaintiffs' motion for a preliminary injunction with a ruling on the ultimate merits of the case. The court directed the parties to file cross motions for summary judgment on dispositive state law issues [doc, nos. 20, 21, 22, 23, 26, 27, and 29].² For the reasons set forth below, we find that the Allegheny County ordinance is preempted by state law and we grant plaintiffs' motion for summary judgment.

I. BACKGROUND

The County of Allegheny, Pennsylvania is a Second Class County, which has adopted home rule. 16 P.S. § 3101, et seq.; 53 Pa. Cons.Stat. § 2961, et seq. The fifteen member County Council exercises the legislative function of the County. On October 23, 2007, the County Council passed the residency restriction ordinance at issue in this case: No. 39-07-OR entitled Residency Requirements; Registered Sex Offenders. Under the ordinance, individuals required to register pursuant to what is commonly known as Megan's Law, 42 Pa. Cons.Stat. § 9791, et seq., cannot live within 2,500 feet (or approximately one-half mile) of any child care facility, community center, public park or recreation facility, or school. The purported purpose of the ordinance is to provide for the safety of Allegheny County residents, particularly children.

Megan's Laws were passed after 7 year old Megan Kanka was sexually assaulted and murdered in 1994 by a neighbor who, unknown to her family, had been previously convicted of sexual offenses against children. The crime gave impetus to laws for the mandatory registration of sex offenders and corresponding community notification. Smith v. Doe, 538 U.S. 84, 89, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). By 1996, every state, the District of Columbia, and the Federal Government had enacted some version of Megan's Law. Id. at 90, 123 S.Ct. 1140.

Pennsylvania's version of Megan's Law, among other things, requires persons convicted of certain enumerated crimes to report their residence and employment, and any changes thereto, to the Pennsylvania State Police. 42 Pa. Cons.Stat. §§ 9795.1, 9795.2. However, not all of the crimes listed in Pennsylvania's Megan's Law are sexual offenses against children. Rather, registration is required under Megan's Law for persons convicted of rape, sexual assault, indecent assault, or involuntary deviate sexual intercourse against any victim, regardless of age. 42 Pa. Cons.Stat. § 9795.1.

Returning to the provisions of the Allegheny County ordinance, the County published a map on its website depicting the areas where sex offenders could and could not reside. The map reflects that the vast majority of Allegheny County falls within the restricted zone, with permissible areas generally confined to outlying, suburban communities such as Sewickley Heights, Bell Acres, South Fayette, Collier, and West Deer. The map does not indicate the topography of the permissible areas, nor whether residential housing is permitted or available in them.

The ordinance, however, imposes no geographical restrictions on a registered sex offender's ability to work, conduct business, seek medical treatment, attend events, or socialize in these same places where children congregate. Moreover, the ordinance applies to any individual required to register pursuant to Megan's Law, without regard to whether that person's offense involved a minor, or whether Pennsylvania has deemed that person to be a "sexually violent predator" who is likely to reoffend.

II. LEGAL AUTHORITY

A. Home Rule

Municipalities are creatures of the state and have no inherent powers of their own. Naylor v. Twp. of Hellam, 565 Pa. 397, 773 A.2d 770, 773 (2001). Municipalities "possess only such powers of government as are expressly granted to [them] and as are necessary to carry the same into effect." Appeal of Gagliardi, 401 Pa. 141, 163 A.2d 418, 419 (1960). Therefore, a municipality ordinarily lacks the power to enact ordinances except as authorized by statute, and any ordinance not in conformity with its enabling statute is void. Taylor v. Abernathy, 422 Pa. 629, 222 A.2d 863, 865 (1966).

However, the Home Rule doctrine allows for autonomous self-governance relative to municipal affairs. City of Philadelphia v. Schweiker, 579 Pa. 591, 858 A.2d 75, 82 (2004). The Pennsylvania Constitution guarantees the right of home rule, which occurs pursuant to enabling legislation at the state level. Pa. Const. art. IX, § 2; 16 P.S. § 6101-C. "Under the concept of home rule, ... the locality in question may legislate concerning municipal governance without express statutory warrant for each new ordinance; rather, its ability to exercise municipal functions is limited only by its home rule charter, the Pennsylvania Constitution, and the General Assembly." Schweiker, 858 A.2d at 84. Grants of municipal power "shall be liberally construed in favor of the municipality." County of Delaware v. Twp. of Middletown, 511 Pa. 66, 511 A.2d 811, 813 (1986) (quoting 53 P.S. § 1-301, now 53 Pa. Cons.Stat. § 2961).

Thus, "[i]n analyzing a home rule municipality's exercise of power, ... we begin with the view that it is valid absent a limitation found in the Constitution, the acts of the General Assembly, or the charter itself, and we resolve ambiguities in favor of the municipality." Id. However, and of critical significance in this case, home rule municipalities cannot legislate in a way that contradicts a state statute. Holt's Cigar Co., Inc. v. City of Philadelphia, 952 A.2d 1199, 1202-03 (Pa. Commw.Ct.2008).

B. Preemption

The preemption doctrine establishes a priority between laws enacted at various levels of government. In Pennsylvania, a local ordinance may be preempted by a state law under one of three theories: express preemption, implied (or field) preemption, and conflict preemption. Nutter v. Dougherty, 595 Pa. 340, 938 A.2d 401, 404 (2007). Where a state statute contains language specifically prohibiting local authority over the subject matter, local ordinances are void under the doctrine of express preemption. Huntley & Huntley, Inc. v. Borough Council of The Borough of Oakmont, 964 A.2d 855, 863-64 (Pa.2009); Nutter, 938 A.2d at 404.

Preemption of local laws may also be implicit, as where the state regulatory scheme so completely occupies the field that it appears the General Assembly did not intend for supplementation by local regulations. This is also called field preemption. Huntley, 964 A.2d at 863-64; Nutter, 938 A.2d at 409-11. Implied, or field, preemption is very rare in Pennsylvania, and is limited to areas not relevant to this case, such as alcoholic beverages, anthracite strip mining, and banking. Clarke v. House of Representatives of Commonwealth, 957 A.2d 361, 369 (Pa. Commw.Ct.2008) (citing Mars Emergency Med. Servs., Inc. v. Township of Adams, 559 Pa. 309, 740 A.2d 193 (1999) and Nutter v. Dougherty, 595 Pa. 340, 938 A.2d 401 (2007)).

Finally, conflict preemption invalidates any local law that is contradictory to or inconsistent with a state statute. Huntley, 964 A.2d at 863-64; Nutter, 938 A.2d at 404. It mandates that a local ordinance may not stand as an obstacle to executing, or conflict with, the full purposes and objectives of the General Assembly. Huntley, 964 A.2d at 862-63. Conflict preemption applies where there is such an actual, material conflict between the state law and the local law that the interests of the wider constituency can only be protected by striking down the local law. United Tavern Owners of Philadelphia v. Sch. Dist. of Philadelphia, 441 Pa. 274, 272 A.2d 868, 871 (1971).

Under the doctrine, "local legislation cannot permit what a state statute or regulation forbids or prohibit what state enactments allow." Huntley, 964 A.2d at 862 (citing cases); see e.g., Range Resources-Appalachia, LLC v. Salem Twp., 964 A.2d 869, 876 n. 7 (Pa.2009) (finding a direct conflict between state law and a local ordinance where the ordinance forbade what the state law allowed); Pennsylvania Gaming Control Board v. City Council of Philadelphia, 593 Pa. 241, 928 A.2d 1255, 1270 (2007) (invalidating a local ordinance under conflict preemption because it permitted what state law forbade),

The considerations reflected in these three forms of preemption are alternatively summarized in the Pennsylvania Commonwealth Court's five-part Duff test, under which a reviewing court asks:

(1) Does the ordinance conflict with the state law, either because of conflicting policies or operational effect, that is, does the ordinance forbid what the legislature has permitted? [conflict preemption]

(2) Was the state law intended expressly or impliedly to be exclusive in the field? [express preemption or implied/field preemption]

(3) Does the subject matter reflect a need for uniformity? [implied/field preemption]

(4) Is the state scheme so pervasive or comprehensive that...