W.W. v. Pa. State Police

247 A.3d 1191 (Table)

W.W., Petitioner

v.PENNSYLVANIA STATE POLICE, Respondent

No. 239 M.D. 2020

Commonwealth Court of Pennsylvania.

Argued: October 15, 2020

Filed: January 15, 2021

MEMORANDUM OPINION BY JUDGE WOJCIK

Before this Court in our original jurisdiction are Respondent Pennsylvania State Police's (PSP) Preliminary Objections (POs) to Petitioner W.W.’s Petition for Review (Petition), in which W.W. challenges his sex offender registration obligations under Subchapter I of the current version of the law requiring registration of sexual offenders, the Act of June 12, 2018, P.L. 140, No. 29, 42 Pa. C.S. §§ 9799.10 - 9799.75 (commonly known as "Act 29").² The PSP objects on the grounds that W.W.’s claims cannot stand against the PSP based upon binding precedent. Upon review, we sustain the PSP's POs and dismiss W.W.’s Petition.

I. Background

On September 7, 2004, W.W. pled guilty to aggravated indecent assault and indecent assault of a person less than 13 years of age. At the time of his plea and sentence, Megan's Law II was in effect. Megan's Law II mandated lifetime registration based on W.W.’s conviction for aggravated indecent assault. See former 42 Pa. C.S. § 9795.1(b)(2)(i). W.W. has been registering as a sex offender since 2008 when he was released from incarceration.

On April 10, 2020, W.W. filed a two-count Petition seeking: (1) a declaration under the Declaratory Judgments Act (DJA)³ that Subchapter I of Act 29 does not apply to him because it is an unconstitutional ex post facto law as applied to him and deprives him of his procedural due process, substantive due process, and contractual rights; and (2) a writ of mandamus to compel the PSP to permanently remove his name from the sexual offender registry. More particularly, W.W. claims that Subchapter I and any future iteration of Pennsylvania's sex offender registration scheme is an unconstitutional ex post facto law as applied to him under the Pennsylvania Supreme Court's decision in Commonwealth v. Muniz , 164 A.3d 1189 (Pa. 2016), cert. denied , 138 S. Ct. 925 (2018). He asserts that Act 29 deprives him of substantive due process because it does not narrowly tailor its punishment by the least restrictive means available. He maintains that Act 29 deprives him of procedural due process by creating an irrebuttable presumption that he is incapable of rehabilitation, which encroaches upon his fundamental right to reputation, without any mechanism for proving otherwise. He claims that the PSP has violated his contractual rights by applying Act 29 to him when this law was enacted long after he entered his guilty plea.

In response, the PSP filed POs. The PSP objects to W.W.’s ex post facto , substantive due process, procedural due process, and contractual claims on the ground that he has failed to state a claim upon which relief may be granted based on binding precedent. The PSP also demurs on the ground that the existence of an independent federal obligation to register precludes the mandamus relief requested in this matter.⁴ Both parties filed briefs in support of their respective positions.⁵

II. Issues

First, the PSP argues that W.W.’s ex post facto claim fails as a result of the Pennsylvania Supreme Court's recent decision in Commonwealth v. Lacombe , 234 A.3d 602 (Pa. 2020). Second, the PSP argues that W.W.’s substantive due process claim similarly fails under Lacombe . Third, the PSP contends that W.W.’s procedural due process claim fails because Acts 10 and 29 do not implicate the irrebuttable presumption doctrine. Fourth, the PSP maintains that W.W.’s Petition should be dismissed because W.W.’s contract claim cannot lie against the PSP based on Dougherty v. Pennsylvania State Police , 138 A.3d 152 (Pa. Cmwlth. 2016), because the PSP was not a party to W.W.’s plea agreement. Finally, the PSP argues that W.W.’s mandamus count fails because, even if the Court was to grant relief under state law, W.W. still has an independent obligation under federal law to register as a sexual offender. Consequently, he is not entitled to have his name permanently removed from the registry.

III. Discussion

A. Ex post facto

First, the PSP argues that the Supreme Court's decision in Lacombe is binding precedent that fatally undercuts many of W.W.’s arguments, particularly his ex post facto claim. We agree.

In Lacombe , the Supreme Court determined that Subchapter I of Act 29 is nonpunitive and its retroactive application does not violate the constitutional prohibition against ex post facto laws. Lacombe ; see T.S. v. Pennsylvania State Police (Pa., No. 34 MAP 2020, filed December 22, 2020) (per curiam order). In Lacombe , the petitioners argued that, because their offenses were completed before Act 29 took effect, retroactive application of Act 29 constituted an ex post facto violation under Muniz . However, Act 29 was enacted after Muniz to address the constitutional infirmities identified therein. The General Assembly declared its intent that Act 29 is nonpunitive. 42 Pa. C.S. § 9799.51(b)(2). To achieve its dual goals of ensuring public safety without creating another unconstitutionally punitive scheme, the General Assembly made a number of material changes. In this new statutory scheme, the General Assembly eliminated a number of crimes that previously triggered registration requirements and reduced the frequency with which an offender must report in person to the PSP. Lacombe , 234 A.3d at 615.

In determining whether Subchapter I of Act 29 constitutes criminal punishment, the Lacombe Court applied the two-part test espoused in Muniz . That test considers whether the General Assembly's intent was to impose punishment and, if not, whether the statutory scheme is nonetheless so punitive either in purpose or effect as to negate the legislature's nonpunitive intent. Lacombe , 234 A.3d at 614. The parties conceded that the legislative intent was nonpunitive. Id. The issue then turned on its effect.

For this, the Supreme Court relied on the following Mendoza-Martinez⁶ factors: (1) whether the law involves an affirmative disability or restraint; (2) whether the legislative requirements have been historically regarded as punishment; (3) whether the law comes into play only on a finding of scienter; (4) whether operation of the law promotes traditional aims of punishment; (5) whether the behavior to which the law applies is already a crime; (6) whether there is an alternative purpose to which the law may be rationally connected; and (7) whether the law is excessive in relation to the alternative purpose assigned. Lacombe , 234 A.3d at 606 n.3. The Court found that three of the five factors (nos. 1, 6 and 7) weighed in favor of finding Subchapter I nonpunitive. Id. at 626. The Court gave little weight to the fact that Subchapter I promotes traditional aims of punishment, scienter and whether the behavior is already a crime (nos. 3, 4, 5).Id. The Supreme Court gave significant weight to the fact that Subchapter I is narrowly tailored to its nonpunitive purpose of protecting the public and legislative intent. Id. Balancing these factors, the Court held that "Subchapter I is nonpunitive and does not violate the constitutional prohibition against ex post facto laws." Lacombe , 234 A.3d at 605-06.

Insofar as W.W.’s claims are predicated on the argument that Subchapter I is punitive in nature, such claims are no longer viable based on Lacombe . This clearly includes W.W.’s ex post facto claim. Thus, we sustain the PSP's PO to W.W.’s ex post facto claim.

B. Substantive Due Process Claim

Next, the PSP argues that Lacombe also renders meritless W.W.’s substantive due process claim because Subchapter I is nonpunitive. Notwithstanding, the PSP alternatively argues that substantive due process is not the proper analysis. Although the right to reputation is a fundamental right, Act 29 is not making a determination as to W.W.’s likelihood to reoffend but to sex offenders as a cohort. Even if this Court was to address the merits of W.W.’s substantive due process claim, Act 29 satisfies constitutional muster under both intermediate and strict scrutiny. Unlike its predecessors, Act 29 allows offenders an opportunity to be removed from the registry after 25 years.

The Lacombe Court noted that, while a substantive due process challenge to Subchapter I was not squarely before it, this claim would be dependent upon a finding that Subchapter I is punitive. The Court opined, "given our ultimate holding that Subchapter I is nonpunitive, the claim[ ] would fail in any event." Lacombe , 234 A.3d at 608 n.5. Because Subchapter I is nonpunitive, W.W.’s substantive due process claim likewise fails. See id. Therefore, we sustain the PSP's PO in this regard.

C. Procedural Due Process Claim

Next, the PSP argues that, to the extent that Lacombe does not cast aside W.W.’s procedural due process claim, this claim fails for other reasons. Contrary to W.W.’s assertions, Act 29 does not implicate the irrebuttable presumption doctrine. Therefore, no due process is required at all. Even if the doctrine applies, the presumption that adult sex offenders as a cohort have a high likelihood of reoffending is still accepted as universally true and any policy-related arguments to the contrary should be rejected by the Court. There is no reasonable alternative for assessing the dangerousness of sexual offenders as a cohort.

The Lacombe Court did not comment upon the merits of a procedural due process claim. Since W.W.’s procedural due process claim is not predicated upon his argument that Subchapter I is punitive, we examine his claim under the irrebuttable presumption doctrine.

Under the irrebuttable presumption doctrine, the presumption violates due process if "the presumption is deemed not universally true and a reasonable alternative means of ascertaining that presumed facts are available." In re J.B. , 107 A.3d 1, 14 (Pa. 2014). In J.B ., the Supreme Court determined that SORNA as applied to juvenile sex offenders violated due...