Fross v. County of Allegheny

Decision Date25 May 2011
Citation20 A.3d 1193
PartiesCharles FROSS, M. Doe, D. Doe, Shawn Czerwien, Charles Meter, and Christopher Haigh, Appelleesv.COUNTY OF ALLEGHENY, Appellant.
CourtPennsylvania Supreme Court

OPINION TEXT STARTS HERE

George M. Janocsko, Michael Henry Wojcik, Craig Eliot Maravich, Allegheny County Law Department, Caroline P. Liebenguth, Pittsburgh, for County of Allegheny.Andrew A. Chris, Matthew A. Fry, Haines & Associates, for Amicus Curiae, the Treatment of Sexual Abusers.Edwin J. Strassburger, Strassburger, McKenna, Gutnick & Gefsky, Donald F. Driscoll, Community Justice Project, Pittsburgh, Witold J. Walczak, for Charles Fross, et al.Marcia Mary Waldron, U.S. Court of Appeals, 3rd Circuit, for Participant, United States Court of Appeals for the Third Circuit.CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

OPINION

Chief Justice CASTILLE.

Upon certification by the U.S. Court of Appeals for the Third Circuit, we accepted for review the issue of whether Allegheny County Ordinance No. 39–07–OR (the Ordinance), which imposes residency restrictions on certain offenders, is preempted by the Pennsylvania Prisons and Parole Code, 61 Pa.C.S. § 101 et seq. , (“Parole Code”) and/or by the Pennsylvania Sentencing Code, 42 Pa.C.S. § 9701 et seq. (“Sentencing Code”). The Ordinance applies to offenders subject to the registration requirements of those provisions of the Sentencing Code collectively known as Megan's Law. See 42 Pa.C.S. §§ 9791–9792; 9795.1–9799.4; 9979.4–9979.9.1 For the reasons that follow, we hold that the Ordinance impedes the accomplishment of the full objectives of the General Assembly, as expressed in the Sentencing and Parole Codes, and is, therefore, invalid pursuant to our conflict preemption doctrine.

Pennsylvania's current version of Megan's Law requires individuals convicted of, inter alia, kidnapping, indecent assault, or promoting prostitution, to register for ten years following release on probation or from prison. Persons convicted of two or more offenses subject to ten-year registration, sexually violent predators, and persons convicted of, inter alia, rape, involuntary deviate sexual intercourse, or aggravated indecent assault, are subject to lifetime registration upon release. 42 Pa.C.S. § 9795.1(a)-(b); see 42 Pa.C.S. § 9792 (defining “sexually violent predator”). In addition to requiring the registration of these offenders (“sex offenders” or “registrants”), the act also provides for notification of community members that such an offender will live in or near their neighborhood and mandates counseling for released sex offenders. 42 Pa.C.S. § 9791(b) (declaration of legislative policy). According to the General Assembly, Megan's Law facilitates community access to information regarding the presence in the neighborhood of sexually violent predators and other sex offenders, in recognition that these offenders pose a high risk to re-offend upon release and, thus, to endanger public safety. See 42 Pa.C.S. § 9791(a) (legislative findings). Safety of the public, according to the Legislature, is of “paramount concern.” 42 Pa.C.S. § 9791(a)(3). A secondary interest is the effective operation of government. 42 Pa.C.S. § 9791(a)(5).

Pursuant to Megan's Law, a registering sex offender must provide to the Pennsylvania State Police information regarding “all current or intended” residences, employment, and school enrollment. 42 Pa.C.S. § 9795.2(a). After the initial registration, the offender is to update the information within forty-eight hours of any change in the nature or location of residency, employment, or student status. Id. The State Police is charged with a duty to verify the residence of registered offenders either quarterly (for sexually violent predators) or annually (for other offenders). 42 Pa.C.S. § 9796. For every registrant, the State Police provides the information collected to local law enforcement officials where the registered offender resides, works, or is enrolled in school; the State Police also notifies the offender's victim(s) and makes information about the offender available on the Internet. 42 Pa.C.S. §§ 9795.2(c), 9797, 9798.1. Local law enforcement is responsible for notifying the public regarding the presence of a sexually violent predator in a community, as provided in 42 Pa.C.S. § 9798. 2

The release from custody of a Megan's Law registrant is conducted pursuant to the provisions of the Pennsylvania Sentencing and Parole Codes, generally applicable to all offenders within the Commonwealth's jurisdiction. Sentencing courts and the Pennsylvania Board of Probation and Parole (the “Board”) share duties of implementing the two statutes within their respective spheres.

In this context, the primary role of the court is to determine an appropriate sentence in each case, including confinement, probation, or intermediate punishment. A court must consider in selecting a sentence “the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(a), (b). The sentencing court may attach to probation reasonable conditions tailored to each offender. See 42 Pa.C.S. § 9754(c) (probation). For offenders who remain under the jurisdiction of the sentencing court, see infra n.3, the order of probation may be modified by the sentencing court at any time. 42 Pa.C.S. § 9771. Until termination of the sentence, probationers remain under the supervision of county probation and parole officers. 42 Pa.C.S. §§ 9911, 9912.

Within the same system, the Board's function is the administration of probation and parole in Pennsylvania. 61 Pa.C.S. § 6111(a). The Board operates the parole system with the primary purpose of protecting the public, but also with the twin goals of supplying an “opportunity for the offender to become a useful member of society” and of diverting appropriate offenders from prison. 61 Pa.C.S. § 6102(1)-(2). It must also “ensure that parole proceedings, release and recommitment are administered in an efficient and timely manner.” 61 Pa.C.S. § 6102(3).3

The Board exercises discretionary parole authority, but must generally balance in making its decision the “best interests” of the offender which justify or require parole, and the interests of the Commonwealth that would be injured by the offender's release on parole. 61 Pa.C.S. § 6137(a).4 For these purposes, the Board has a duty to investigate and consider the individual nature and circumstances of the offender and his offense, the victim's wishes, and recommendations from the sentencing judge and prosecuting attorney. 61 Pa.C.S. §§ 6134; 6135(a). The Parole Code requires that, if an offender is eligible for parole, the Board “shall approve” parole upon a determination that the offender's reentry plan is “adequate” and that there is no reasonable indication of the offender posing a risk to public safety. 61 Pa.C.S. § 6137(g)(4).

Probationers and parolees are subject to general and individual rules of conduct and supervision described at sentencing and/or in the parole agreement. Wilson v. Marrow, 917 A.2d 357, 363 (Pa.Cmwlth.2007); see 42 Pa.C.S. § 9754 (order of probation); 61 Pa.C.S. § 6141 (general and specific rules for parolees); 37 Pa.Code §§ 63.4–63.5; 65.4–65.6; 67.1–67.3 (conditions of parole). For probationers, the order at sentencing may incorporate conditions to “reside in a facility established for the instruction, recreation, or residence of persons on probation,” to meet family responsibilities, to obtain employment, and to attend a drug rehabilitation program. 42 Pa.C.S. § 9754(c). The purpose of Section 9754 of the Sentencing Code is to “insure [sic] or assist the defendant in leading a law-abiding life.” 42 Pa.C.S. § 9754(b). Similarly, parolees must have their residence approved by the Board at release, live there, and not change residence without written permission from the parole supervision staff. 37 Pa.Code § 63.4(2). Other requirements include maintaining regular contact with supervisory staff, and refraining from violating criminal laws, from using or possessing illegal drugs, and from owning or possessing weapons. 37 Pa.Code §§ 63.4(3)-(5); 65.4(3)-(5).5

In this comprehensive legal context, the political subdivision at issue, Allegheny County (the County) amended its County Code to add a new chapter entitled “Residence Requirements; Registered Sex Offenders,” which became effective March 1, 2008. In relevant part, the Ordinance states:

It shall be unlawful for any Sex Offender to establish a Permanent Residence or Temporary Residence within 2,500 feet of any Child Care Facility, Community Center, Public Park or Recreational Facility, or School for the duration of his or her registration under the terms of Megan's Law, 42 P[a.C.]S. § 9791 et seq.

Ordinance § 275–02(A) (Residency Restriction/Prohibition). “Sex Offender” is defined to include all Megan's Law registrants. Ordinance § 275–01 (definitions). According to the Ordinance, upon determining that a Megan's Law registrant resides within the prohibited area, s/he will be notified of the violation and will have forty-five (45) days to move from his or her residence to a new location, which complies with § 275–02(A). Ordinance § 275–03(A)(B). With limited exceptions, each day beyond the forty-five (45) day grace period that the sex offender resides in a prohibited location constitutes a separate violation of the Ordinance. Ordinance § 275–03(C); § 275–04 (exceptions); § 275–05 (exemptions). Violation of the Ordinance constitutes a summary offense subject to a maximum term of imprisonment of forty-five (45) days and a fine of up to $500, plus the costs of prosecution. Ordinance § 275–07 (penalties). According to the County, the purpose of the Ordinance is “to augment the provisions of Pennsylvania's Megan's Law and [to] better provide for safety of the County's...

To continue reading

Request your trial
28 cases
  • United States v. JDT
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 12, 2014
    ...playground, public library, or daycare center may result in “total exclusion” or “near-total exclusion”); Fross v. Cnty. of Allegheny, 610 Pa. 421, 20 A.3d 1193, 1199 (2011) (observing that similar restrictions “essentially prohibit[ ] any sex offender from living throughout most of Alleghe......
  • Robinson Twp. v. Pa. Pub. Util. Comm'n
    • United States
    • Pennsylvania Supreme Court
    • December 19, 2013
    ...as the Commonwealth states, political subdivisions are “creations of the state with no powers of their own.” Fross v. County of Allegheny, 610 Pa. 421, 20 A.3d 1193, 1202 (2011). Municipalities have only those powers “expressly granted to them by the Constitution of the Commonwealth or by t......
  • Hoffman Mining Co. v. Zoning Hearing Bd. of Adams Twp.
    • United States
    • Pennsylvania Supreme Court
    • November 23, 2011
    ...terms was not irreconcilable with a statute providing that a mayor shall be eligible for reelection); Fross v. County of Allegheny, 20 A.3d 1193, 1203 n. 12 (Pa.2011). In addition, under the doctrine of conflict preemption, a local ordinance will be invalidated if it stands “as an obstacle ......
  • A.S. v. Pa. State Police
    • United States
    • Pennsylvania Supreme Court
    • August 15, 2016
    ...the offender's ability to earn a livelihood, his housing arrangements and options, and his reputation. See also Fross v. County of Allegheny, 610 Pa. 421, 20 A.3d 1193 (2011).The “two or more convictions” language in subsection (b) seems clear and unambiguous on the surface. But if Section ......
  • Request a trial to view additional results
1 books & journal articles
  • Adam Walsh Act Compliance in Pennsylvania
    • United States
    • Criminal Justice Policy Review No. 26-3, April 2015
    • April 1, 2015
    ...policy initiative? Criminal Justice Policy Review, 21, 31-49. doi:10.1177/0887403409338565Fross v. County of Allegheny, 610 Pa. 421, 20 A.3d 1193 (Pa. 2011).Kerlik, B. (2010, November 15). Allegheny District Attorney keeping closer watch on sex offenders. Pittsburgh Tribune-Review. Availabl......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT