Pennsylvania’s Sex Offender Notification Statute must apply equally to in-state and out-of-state sex offenders

In Doe v. Pennsylvania Bd. of Probation, No. 05-4200 (3d Cir. Jan. 23, 2008), a Court of Appeals panel, affirming the decision of District Court Judge Louis Pollak, held in a 2-1 decision that a provision in Pennsylvania’s sex offender notification statute that treated out-of-state sex offenders differently from in-state sex offenders violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

The anonymous plaintiff, John Doe, brought an action under 42 USC § 1983, claiming that Pennsylvania’s Registration of Sexual Offender’s Act, 42 Pa. C.S. § 9791 et. seq. ("Megan’s Law"), violated the Equal Protection Clause. Doe is a Pennsylvania resident who was convicted of a sexual offense in New Jersey and sought to return to Pennsylvania to serve his parole. Pennsylvania’s Megan Law provides that an out-of-state offender seeking to transfer supervision to Pennsylvania must register with state and local police, and also be subject to community notification. In contrast, an in-state offender would not be subject to community notification unless designated, after a civil hearing, as a "sexually violent predator due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses." Id. at § 9792. Doe claimed that this disparate treatment of out-of-state offenders was unconstitutional.

Circuit Judge Nygaard’s majority opinion, joined by Circuit Judge McKee, ruled that the disparate treatment of in-state and out-of-state offenders violated the Equal Protection Clause, finding that the Commonwealth’s interest in protecting citizens from sex offenses committed by repeat offenders did not provide a rational basis for discriminating between in-state and out-of-state offenders. Because the Court concluded that the statute did not survive rational basis review, the Court did not determine whether the higher threshold of strict scrutiny review should apply to Doe’s claim.

In dissent, Circuit Judge Ambro concluded that the statute should be reviewed under the rational basis standard, and that the out-of-state offender classification satisfied that review standard. Judge Ambro stated that the Commonwealth’s legitimate interest in protecting its citizens from sexual offenses was rationally related to different treatment of out-of-state sex offenders, in light of, first, the Commonwealth’s asserted inability to replicate adequately for out-of-state offenders the proceedings that in-state offenders receive prior to community notification, and second, the likelihood that Pennsylvania communities would know more about in-state offenders than out-of-state offenders because of local media coverage.

Posted by Ronald A. Krauss at Thursday, February 7