In the Interest of: R.M., Minor

• Court: Superior Court of Pennsylvania
• Decided: February 13, 2015
• Docket: 666 EDA 2014
• Status: Unpublished

Opinion

J-S65031-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: R.M., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA

APPEAL OF: R.M., A MINOR

No. 666 EDA 2014

Appeal from the Dispositional Order December 5, 2013 in the Court of Common Pleas of Monroe County Juvenile Division at No.: CP-45-JV-0000190-2013

BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED FEBRUARY 13, 2015

Appellant, R.M., a minor, appeals from the juvenile court’s December

5, 2013 dispositional order, following the adjudication of delinquency dated

November 15, 2013 and filed November 21, 2013 for one count of rape, two

counts of involuntary deviate sexual intercourse, four counts of aggravated

indecent assault, and four counts of indecent assault.1 Appellant challenges

the weight and sufficiency of the evidence for the adjudication. We affirm on

the basis of the juvenile court’s January 28, 2014 opinion.2

____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 3125(a)(1) and (2), and 3126(a)(1) and (2), respectively. 2 On March 18, 2014, the court entered its Rule 1925(a) opinion in which it incorporated and attached as Appendix A its January 28, 2014 opinion (Footnote Continued Next Page) J-S65031-14

In its January 28, 2014 opinion, the juvenile court fully and correctly

sets forth the relevant facts and procedural history of this case. (See

Juvenile Court Opinion, 1/28/14, at 1-5). Therefore, we have no reason to

restate them here.

Appellant raises the following issues for our review:

I. Did the Commonwealth prove beyond a reasonable doubt that [Appellant] committed the delinquent acts of rape, involuntary deviate sexual intercourse, aggravated indecent assault, and indecent assault?

II. Was the evidence upon which the [juvenile] court adjudicated [Appellant] so tenuous, vague and uncertain that the adjudication shocks the conscience and [Appellant] is entitled to a new trial?

(Appellant’s Brief, at 7).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the juvenile court, we

conclude that there is no merit to Appellant’s issues. The juvenile court

properly disposes of all of the questions presented. (See Juvenile Ct. Op.,

at 5-10) (finding: (1) victim’s testimony credible, unwaivering and

consistent; (2) Commonwealth witnesses supported victim’s testimony of

time and location of attack; and (3) Appellant conceded victim’s testimony,

if believed, sufficient to support adjudication and disposition). Accordingly,

we affirm on the basis of the juvenile court’s January 28, 2014 opinion. _______________________ (Footnote Continued)

resolving Appellant’s post-dispositional motion. See Pa.R.A.P. 1925. Therefore, we will refer to the January 28, 2014 opinion.

-2- J-S65031-14

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/13/2015

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COURT OF COMMON PLEAS OF MONROE COUNTY FORTY-THIRD JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA JUVENILE COURT DIVISION

IN THE INTEREST OF: NO. 190 JV 2013

R.M.J., a minor APPEAL DOCKET No. 666 EDA 2014

OPINION IN SUPPORT OF ORDER PURSUANT TO Pa. R.A.P. 1925(a)

The Juvenile has filed an appeal to the Superior Court from the Order of

Disposition entered December 5, 2013, following his adjudication of delinquency for

Rape, two counts of Involuntary Deviate Sexual Intercourse, and four counts each of

Aggravated Indecent Assault and Indecent Assault.1 After the appeal was filed, we

directed the Juvenile to file a Statement of Errors Complained of on Appeal pursuant

to Pa. R.A.P. 1925(b). The Juvenile. complied. His statement raises only two

general, conclusory, boilerplate assignments of error:

a. The evidence was insufficient to sustain the juvenile's adjudication for Rape, Involuntary deviate Sexual Intercourse, Aggravated Indecent Assault, and Indecent Assault.

b. The finding of delinquency is against the weight of the evidence presented.

(Juvenile's Appeal Statement, Paragraph 7). We now issue this Opinion pursuant to

Pa. R.A.P. 1925(a).

1 The Commonwealth has also filed an appeal. However, because the Commonwealth is challenging our determination that the registration and reporting requirements of Megan's Law IV, 42 Pa. C.S.A. Section 9799.10 et. seq., are unconstitutional as applied to the Juvenile, its appeal was fi1ed directly to the Supreme Court of Pennsylvania pursuant to 42 Pa. C.S.A. Section 722 (7). On March 11, 2014, the Supreme Court issued an Order noting probable jurisdiction.

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Initially, we do not believe that the Juvenile's boilerplate assignments of error

are sufficient to preserve issues for appellate review. In this regard, the Juvenile

does not even attempt to explain how the adjudication was against the weight or the

sufficiency of the evidence. Thus, we believe he has waived his claims.

In the alternative, if the Juvenile's assertions will be reviewed on appeal, they

are completely without merit for the reasons stated in the Memorandum Opinion we

filed on January 28, 2014. A copy of the Memorandum Opinion is attached as

Appendix A and incorporated into this Opinion by reference. The weight and

sufficiency challenges cursorily raised by the Juvenile are adequately, properly, and

fully addressed in that Opinion.:

For the reasons stated in the Memorandum, the Order of Disposition should

be affirmed.

BY THE COURT:

DATE:

\i:- cc: Superior Court of Pennsylvania -~ Jonathan Mark, J 3: ...... District Attorney (MB) 0 -= C) r- § ::3 :I:) n, Public Defender (SA) ·o ::z:, :::0 rri ;;,,_ Juvenile Probation ~ C) c co 0 -,, f i c. 0 :z: ::0 I -! s= ::3 ,._. 0 c: zo I -0 r.:> -f re (J) :t> f ~ co CJ1

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COURT OF COMMON PLEAS OF MONROE COUNTY FORTY-THIRD JUDICIAL DISTRICT COMMONWEAL TH OF PENNSYLVANIA JUVENILE COURT DIVISION

IN THE INTEREST OF: : NO. 190 JV 2013

Palllf M••••••. a minor : APPEAL DOCKET No. 666 EDA 2014

APPENDIX A

To

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COURT OF COMMON PlEAS OF MONROE COUNTY FORTY-THIRD JUDICIAL DISTRICT COMMONWEAL TH OF PENNSYLVANIA JUVENILE COURT DIVISION

r•••••••iaminor MEMORANDUM

On January 15, 2014, we entered an order granting in part and denying in part

the Juvenile's post disposition motion. We denied the Juvenile's challenges to the

weight and sufficiency of the evidence, but granted his constitutional challenge to the

- provisions of-.Megan'.s-LawJV;A2-F.?a.-.C;S.A.--Section-9-'Z99.JO_ et. seq., that.required..

him to register as a Juvenile Offender for life based solely on his adjudication of

delinquency for specified sex offenses. Our order indicated that a statement 'of

reasons or an opinion would follow. We now issue this Memorandum.

Background

On November 6, 2013, the j_uvenile was arrested,' d~ta.ined, and charg~d-~i!_~ _

felony and misdemeanor sex offenses. A delinquency petition alleging that the

Juvenile had committed Rape, Involuntary Deviate Sexual. Intercourse, Aggravated

Indecent Assault and Indecent Assault was subsequently filed.1

I The Juvenile was charged with one count of Rape, 18 Pa.C.S. § 3123(a)(l), two counts of Involuntary Deviate Sexual Intercourse, 18 Pa.C.S. § 3125(a)(l), two counts of Aggravated Indecent Assault, 18 Pa.C.S. § 3125(a)(l), two counts of Aggravated Indecent Assault, 18 Pa.C.S, § 3125(a)(2), two counts of Indecent Assault, 18 Pa.C.S. § 3126(a)(l) and two counts of Indecent Assault, 18 Pa.C.S. § 3126(a)(2).

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On November 8, 2013, a detention hearing was held at which the victim

testified. At the conclusion of the hearing, we found that the Commonwealth had

established probable cause that the Juvenile had committed the delinquent acts

listed in the petition and determined that continued detention was warranted.

On November 15, 2013, an adjudication hearing was held at which the victim

testified and the Commonwealth called two additional witnesses. The Juvenile did

not·present evidence. Instead, through his attorney, he argued that the victim was

not credible.

After hearing the evidence and arguments of counsel, we found that the

Commonwealth had established beyond a reasonable doubt the elements of the

offenses with which the Juvenile had been charged. In doing so, we clearly stated

that we found the testimony of the victim and the other Commonwealth witnesses to

be credible. (N.T., November 15, 2013, pp. 65-66). Accordingly, . . we adjudicated - the

Juvenile delinquent of all eleven charges filed in the delinquency petition.

· On December 5, 2013, following a disposition hearing, we ordered that the

Juvenile be placed at Abraxas Academy Detention Center. During the course of the

and more than enough to sustain the delinquency adjudication. (N.T., 12/5/2013, pp.

18-19). Since the Juvenile had not yet raised his constitutional challenge to the

juvenile sex offender registration provisions, we classified the Juvenile as a "Juvenile

Offender" and notified him of his duty to comply with the reporting and registration

requirements of Megan's Law IV for the rest of his life. (N.T., 12/5/2013, pp. 24-37;

Order of Disposition, filed December 5, 2013).

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At the time, there were pending before this Court constitutional challenges to

Megan's Law IV filed by five other juveniles, each of whom, like· the Juvenile in this

case, had been. classified as a Juvenile Offender and directed to register for life

based on a delinquency adjudication for a specified sexual offense. The cases in

which the challenges had been raised were consolidated for hearing and decision.

For ease of reference, we will hereafter refer ·to those cases as the "consolidated

cases." The same attorney who represents the five juveniles in the consolidated

cases represents the Juvenile in this case. Counsel was given several opportunities

to assert a challenge on behalf of the Juvenile in this case. At one point counsel

asked us to hold off designating the Juvenile as a Juvenile Offender until a decision

had been made in the consolidated cases. However, we declined to do so in the

absence of a challenge being filed in this case. Since no challenge was filed before

disposition, theJuvenile was classified as a ~_uy_~_nile_ Oft:~~de3L_

On December 16, 2013, the Juvenile filed the instant post disposition motion.

As indicated, the Juvenile alleged that there was insufficient evidence to sustain the

delinquency adjudication and that the adjudication was against the weight of the ... -- ··-- . evidence. He also raised his constitutional challenge to Megan's Law IV.

A hearing on the motion was held on January 13, 2014. During the hearing,

counsel for the Juvenile and the attorney. for the Commonwealth argued their

respective positions. The Juvenile's attorney submitted a copy of In re J.B. et. al.,

No. 726 JUV 2010 et. al. (C.P. York, filed November 4, 2013) (Uhler, S.J.), an opinion

in which the Court of Common Pleas of York County had determined that Megan's

law IV is unconstitutional as applied to juvenile offenders. (N.T., 1/13/2014,

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Juvenile's Exhibit No. 1 ). The Commonwealth presented copies of several cases that

it believed supported its opposition to the Juvenile's challenge. At the end of the

hearing, we re-affirmed our credibility determinations and indicated that we would

deny the weight and sufficiency claims. We took the constitutional challenge under

advisement and informed the parties that we would issue an order, with an opinion to

follow, in the next two days in order to meet the 30-day decision period set forth in

Pa.R.J.C.P. 620(0)(1). Counsel for both parties were given permission to file of

record in this case the briefs they had submitted in the consolidated cases. In

addition, the attorneys were granted leave to file supplemental memoranda.

Counsel followed through and filed in this case copies of the briefs that had

been submitted in the consolidated cases. The Commonwealth supplemented its

oral and written arguments. Counsel for the Juvenile elected to stand on her oral

arguments, - -·. the . brief she had filed. in the consolidated ------·· cases, ... . and the. ..opinion - in In - re

J.B. et. al, supra.

On January 15, 2014, we issued the order that is the subject of this

Memorandum. As indicated, we denied the Juvenile's evidence-based challenges,

but sustained his challenge to the provisions of Megan's Law IV that required himfo ---

register as a Juvenile Offender. As a result, we vacated the portion of order of

disposition that required the Juvenile to register as a Juvenile Offender and to comply

with the registration and reporting requirements of Megan's Law IV and ordered the

Pennsylvania State Police to remove the Juvenile's name, photograph, and other

information from the Sexual Offender Registry.

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On January 16, 2014, President Judge Margherita Patti Worthington issued a

comprehensive opinion and order in the consolidated cases finding that Megan's Law

IV is unconstitutional as it applies to Juvenile Offenders who are not assessed to be

sexually violent delinquent children. Accordingly, like the Juvenile in this case, the

juveniles involved in the consolidated cases were all declassified as "Juvenile

Offenders" and the Pennsylvania State Police were directed to remove their names,

photographs, and other information from the sexual offender registry. In re BB et. al.,

No. 248 JUV 2012 et. al. (C.P. Monroe, filed January 16, 2014) (Worthington, P.J.).

A copy of President Judge Worthington's Opinion is attached as Appendix A and

incorporated into this opinion by reference.

Challenges to the Weight and Sufficiency of the Evidence

In his motion, the Juvenile asserted standard weight and sufficiency of the

evidence challenges. Both are without merit.

In our January 15, 2014 order, we indicated that the evidentiary challenges

were being, denied for the reasons stated on the record at the conclusion of the

November 15, 2013 adjudication hearing (N.T., 11/15/2013, pp. 64-66), during the -·-··--· .... ·-··-·----··· ---···· --- . --··. ----- -·------------- -·- ···-·····-··- ····-·- --·-·--·--···-------·-- December 5, 2013 disposition hearing (N.T., 12/5/2013, pp. 18-19), and during the

January 13, 2014 hearing on the Juvenile's Post-Disposition Motion. We continue to

believe that our on-record statements are sufficient to address these contentions, but

write additionally to amplify our reasoning and recite the standards that we used to

decide the weight and sufficiency claims.

The standard to be applied when reviewing a challenge to the sufficiency of

evidence is well-settled:

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When a juvenile is charged with an act that would constitute a crime if committed by an adult; the Commonwealth must establish the elements of the crime by proof beyond a reasonable doubt. When considering a · challenge to the sufficiency of the evidence following an adjudication of delinquency, we must review the entire record and view the evidence in the light most favorable to the Commonwealth.

In determining whether the Commonwealth presented sufficient evidence to meet its burden of proof, the test to be applied is whether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences therefrom, there is sufficient evidence to find every element of the crime charged. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by wholly circumstantial evidence.

The facts and circumstances established by the Commonwealth need not be absolutely incompatible with a defendant's innocence. Questions of doubt are for the hearing judge, unless the evidence is so weak that, as a matter of law, no probability of fact can be drawn from the combined circumstances established by the Commonwealth.

In re R.N., 951 A.2d 363, 366-67 (Pa. Super. 2008).

The existence of inconsistencies in the testimony of a witness does not alone

render evidence insufficient to support a verdict. Com. v. Lyons, 833 A.2d 245, 258

(Pa. Super. 2003), appeal denied, 879 A.2d 782 (Pa. 2004). It is the province of the

trier of fact to pass upon the credibility of witnesses and the weight to be accorded

A.WC., 951 A.2d 1174 (Pa. Super. 2008). While passing upon the credibility of

witnesses, the trier of fact is free to believe all, part, or none of the evidence. Com. v.

Dupre, 866 A.2d 1089 (Pa. Super. 2005). Finally, the uncorroborated testimony of

the complaining witness is alone sufficient to sustain a conviction for a sexual

offense. This is true even if contrary evidence is presented by the defense. Lyons,

833 A.2d at 258; Com. v. Bishop, 742 A.2d 178 (Pa. Super. 1999), appeal denied,

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758 A.2d 1194 (Pa. 2000); Com. v. Trimble, 615 A.2d 48, 50 (Pa. Super. 1992); Com.

v. Stoner, 425 A.2d 1145, 1148 (Pa. Super.1981); 18 Pa.C.S.A. § 3106.

The standard to be applied in deciding a weight challenge is equally well-

settled. A claim that the verdict was against the weight of the evidence is a more

narrow inquiry than a sufficiency of the evidence challenge. Com, v. Price, 616 A.2d

681, 684 (Pa. Super. 1992). A challenge to the weight of the evidence, in contrast to

a challenge to the sufficiency of the evidence, "concedes that there is sufficient

evidence to sustain the verdict." Com. v. Smith, 853 A.2d 1020, 1027 (Pa. Super.

2004) (citing Com. v. Bennett, 827 A.2d 469 (Pa. Super. 2003)). The trial court must

determine whether, notwithstanding all the facts, certain facts are clearly of greater

weight so that to ignore them or to give them equal weight with all the other facts is to

deny justice. Smith, 827 A.2d at 1027. A new trial or hearing should not be granted

because of a mere conflict in testimony or because a different conclusion may be •• • • • • - • • • ••• • > • • •••••

reached by another fact finder. See id. at 1028.

In an adjudication hearing, the juvenile court judge

sits as the finder-of-fact. . . . [W]here the credibility of witnesses is at issue, the weight to be assigned the testimony of the witnesses is within theexclusive "province ofthe fact-finder. ·- fhe head rig }Jcfge, as sole assessor of credibility, may believe all, part or none of the evidence presented. The hearing judge's findings will not be reversed ... unless it appears that he has clearly abused his discretion or committed an error of law.

In re Love, 646 A.2d 1233, 1237 (Pa. Super. 1994), appeal denied, 655 A.2d 511

(Pa. 1995), certiorari denied, Love v. Pennsylvania, 515 U.S. 1126 (1995). The

duties of a fact-finder include resolving all issues of credibility, resolving conflicts in

the evidence, making reasonable inferences from the evidence, and deciding which

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witnesses to believe. The weighing process by which a juvenile hearing judge

determines witness credibility is within the exclusive province of the judge as fact-

finder and is not subject to challenge or review by the disappointed party urging a re-

weighing of factors. See In re Interest of R.N., 951 A.2d at 372 n.7 (noting that, in

reviewing a weight challenge, the Superior Court "cannot re-weigh the evidence

presented to the fact finder" who determines witness credibility and assesses the

weight of the evidence presented). See also Com. v. Garcia, 535 A.2d 1186, 1188

(Pa. Super. 1988) (credibility determinations are generally not subject to review).

The appellate standard of review on a claim that the verdict or adjudication

was against the weight of the evidence

is very narrow. The determination of whether to grant a new trial because the verdict is against the weight of the evidence rests within the discretion of the trial court, and we will not disturb that decision absent an abuse of discretion. Where issues of credibility and weight of the evidence are concerned, it is not the function of the appellate court · · · to substitute its judgment based On ·-a . cofrf record "tor .thaf o(the .friaf court. The weight to be accorded conflicting evidence is exclusively for the fact finder, whose findings will not be disturbed on appeal if they are supported by the record. A claim that the evidence presented at trial was contradictory and unable to support the verdict requires the grant of a new trial only

when the verdict is so contrary "to the "evidence·as to shock one's sense . of justice.

Com. v. Lyons, supra at 259 (quoting Com. v. Griffin, 453 Pa. Super. 657, 684 A.2d

589, 596 (1996) (internal citations omitted)).

In this case, the victim unequivocally testified that she was orally and anally

raped by the Juvenile without her consent (N.T., 11/15/2013, pp. 10-12, 14.) She just

as clearly testified that the Juvenile 'used his fingers to penetrate her vagina. (Id. at

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12.) As we stated during the adjudication hearing, the disposition hearing, and the

hearing on the Juvenile's post-disposition motion, and as we now re-affirm, we

believed her. The victim's credible testimony standing alone was by itself enough to

establish the elements of the crimes charged and sustain the adjudication.

But the victim's testimony did not stand alone. While the other witnesses

called by the Commonwealth did not observe the sexual assault, their testimony

supported the victim's testimony regarding time frame and location of the attack,

demonstrated that the Juvenile was in the area at the time of the attack, and showed

that the Juvenile had opportunity. Even more significantly, the testimony of the other

witnesses demonstrated that the victim was consistent in her description of the

assault from the day it occurred up through the date of the adjudication hearing.

Simply, there was ample evidence to support the delinquency adjudication.

In - the proceedings before . this Court, . the Juvenile . conceded . . that the victim's

testimony, if believed, is sufficient to support the delinquency adjudication. His main

argument was and will in all likelihood continue to be that the victim was not credible

and we should therefore not have believed her.

There is no doubt that witness credibility was the key factor in the decision.

However, the victim was subject to rigorous cross-examination and remained

unwaivering and substantively consistent about the salient facts, especially the fact

that the juvenile orally and anally raped her without her consent. In fact, as noted,

the evidence showed that the victim has been consistent in her version of the sexual

assault from the time she first reported it up through the adjudication hearing. This

includes consistent recitations of the attack to her friend, her guidance counselor,

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and the police, as well as to this Court in her testimony during the detention hearing

and the adjudication hearing. There was no past relationship, sexual or otherwise,

between the Juvenile and the victim. There was no history between them or their

families which might be argued to have prompted a false allegation. There was not

even a hint as to reason or motive for the victim to lie. For all practical purposes, the

Juvenile and the victim were strangers. Moreover, the undersigned heard the.

testimony, observed the witnesses, and considered all evidence and all arguments

presented by both parties before adjudicating the Juvenile delinquent. As this Jurist

·stated at the conclusion of the adjudication hearing, as reiterated during both the

disposition hearing and the hearing on the Juvenile's post-disposition motion, and as

again confirmed in this Memorandum, I found the victim (and the other prosecution

witnesses) to be credible and no amount of urging by the Juvenile to reconsider or re-

weigh credibility factors will change my assessment.

In short, credibility assessments made by the undersigned were properly

based on sensory perceptions in the courtroom, the evidence presented, the·

testimonial demeanor of the victim, the consistency of her story, and other proper

factors. They are not subject to review. When all facts are considered, it is clear that

the delinquency adjudication is not contrary to the weight of the evidence, the

decision does not shock the conscience, and justice has not been denied.

Accordingly, the Juvenile's challenge to the weight of the evidence is baseless.

In sum, the adjudication was amply supported by and was not against the

weight of the evidence. The Juvenile's weight and sufficiency claims are devoid of

merit.

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Chaii~enge to Megan's law iV

In support of the portion of our order that granted the Juvenile's constitutional

challenge to Megan's Law IV and directed that he be removed from the registry, we

incorporate and adopt the holding and the thorough and cogent rationale of President

Judge Worthington in In re BB et. el., supra (Appendix A). For the reasons recited in

that opinion, we believe that, as applied to the Juvenile, the registration and reporting

requirements of Megan's Law IV are unconstitutional.

BY THE COURT: ,-...., ·= ,.....i= -• /1 c~n/L ~ (")

iy;I \., - 0 z ;:...,:, c., := :z: r rn ::u C..J :;;,,;; JO';(~~N MARK, J. rn N CX) 0 C) -n c, cc: Jonathan Mark, J District Attorney (MB) Public Defender (SA) 1/ {._,/ I ,:::-': •·· -~ . ··t :n 3 C.D C) 0 c :.jJ --l CJ) "l

- r ,~ Juvenile Probation )":·· w

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COURT OF COMMON PJLEA§ OF MONROE COUNTY FORTY-THilID JUDKCJfAL IDISTIDCT tOMMONWEAJLTH OJF lPENNSYJLVANJ!A

· IN 1RE KNTERJE§T OF : No. 2418 JV 2012 : B.B., : A Minor : lPETJfTJION TO AVOID - : MEGAN'S JLAW JREGJ[§TRY

IN THE INTEREST OF. . No. Jl.84 JV2011 : K.G., : A Minor PEUTHON TO A vote . .: ' l\1JEGAN'S JLAW REGISTRY

IN THE INTEREST OJF : No. 386 JV2009

J.M., .· .: .. ' AMhnoir JPETIIT[ON TO A VOID MEGAN'S LAW RIEGISTRY

IN THE INTEREST OF : No. ]!70 JV 2010 : N. S., : A Minor . PETKTION TO AVOID : MEGAN'S LAW REGISTRY

' KN THE INTEREST OF ! No. :!IA JV2011, : 18 JV2011 c.o., : A Minor .. PETITION TO AVOID : MEGAN'S JLAW_REGISTRY

. - Circulated 01/29/2015 02:4 . PM

OP:n:N.H:ON

The matter before us is a Petition, filed jointly by the juvenile offenders B.B.,

K.G., J.M .• N.S., and C.O. ("Juveniles" or "Petitioners"), in which they challenge the registration

requirements of the most-current version of Megan's Law ("Megan's Law IV").1 Megan's Law

IV is the first statute in Pennsylvania that requires juveniles to register as sexual offenders.

Registration is only required if a juvenile, fourteen years or older, is adjudicated delinquent for

one of three, enumerated sex offenses or an attempt, solicitation, or conspiracy to commit the

same. As applied to them, the Juveniles claim that the statute is retroactive and has a punitive

effect (Ex Post Facto Clause), that.the statute creates an irrebuttable presumption (Pa. Due

Process), that the statute imposes cruel and unusual punishment (8th Amend.), that the statute

impairs their fundamental right to reputation (Pa. Const. i'\rt I, § 1), and that the statute is in

conflict with certain provisions of the Juvenile Act (statutory interpretation).2

On October 16, 2012, the Honorable Judge Jonathan Mark issued orders

determining that K.G., J.M, and C.O, were 'juvenile offenders' for purposes ofregistration under

Megan's Law IV and would be required to comply with. the registration requirements. On

I . The current version of Megan's Law may be found at 42 Pa.C.S.A. § 9799.10 et. seq. Megan's Law IV was created by Act 111 of2011, which substantially rewrote the Registration of Sexual Offenders Law and amended various provisions· of the Crimes Code, the Judicial Code, the Juvenile Act, and the Sentencing Code. Act 11 I was adopted on December 20, 20 I I and later amended by Act 9 I of2012. Megan's Law JV became effective on December 20, 2012. of For Act 111 2011, a legislative history is available online at: http://www.Jegis.state.pa.us/cfdocs/bill lnfo/bill_history.cfm?syear~20 l I &sind=O&body-S&type=B&bn= I 183 (last accessed January 15, 2014). For Act 91 of2012, a legislative history is available online at: http://www.legis.state.pa.us!cfdocs/billlnfoibill historv.cfm?svear=201 l&sind=O&bodv-'-'H&type=B&bn=75 (last accessed January 15, 2014). · · · 2 The Petitioners expressly limit their challenges to Megan's Law registration as it applies to juvenile offenders who are not subject to a sexually violent delinquent child assessment. [Juvs.' Briefin Support, 4/22/13, pg. I 7, fn. zs.j This distinction is significant insofar as sexually violent delinquent children are afforded a hearing at which they may dispute whether they are mentally ill and dangerous. ·42 Pa.C.S.A. § 9799.12 (defining sexually violent delinquent child as one determined to be in need of involuntary treatment under Title 42); 42 Pa.C.S.A. § 6403 (hearing to determine if juvenile is in need of involuntary treatment),

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November 2, 2012, and December 20, 2012, Judge Mark issued similar orders for B.B. and N.S.,

respectively. On December 20, 2012, Megan's Law IV went into effect and the Juveniles were

required to register . . On February 18 or 19, 2013, the Juveniles, through their Assistant Public

Defender Syzane Arifaj, filed the instant "Motion For Nunc Pro Tune Relief."

On March 19, 201.3, the Juvenile Law Center entered its appearance as co-counsel

for the five juvenile registrants, and limited its representation to the review of the Motion for

Nunc Pro Tune Relief. On April 22, 2013, the Juveniles submitted a Brief in Support.

On April 23, 2013, we held a hearing on the Motion. The Commonwealth

presented no evidence at the hearing, electing to rely exclusively on legal argument Attached to

their Brief, the Juveniles submitted numerous exhibits from various medical and psychological

experts, along with various other documents regarding juvenile sexual offenders.

On May, 24, 2013, the Commonwealth filed a Brief in Opposition.

On June 13, 2013, the Juveniles filed a Reply Brief. The Juveniles raise five.

claims in the instant Motion and briefs.

First, the Juveniles claim that Megan's Law N is an ex post facto law.

Addressing whether the law is punishment, the Juveniles argue that Megan's Law IV is punitive

in effect ("Claim One"). The Juveniles distinguish prior case law by pointing to increased

reporting requirements, as well as the fact that the law has never been applied to juveniles before.

Moreover, they argue "when applied to juveniles, a population that is neither mature nor self-

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reliant, more amenable to rehabilitation and unlikely to recidivate, the punitive effects are t. j i amplified." [Juvs.' Brief in Support, 4/22/13, pg. 45.]

Second, the Juveniles claim that mandatory lifetime registration, without benefit

of a hearing, creates an irrebuttable presumption in violation of the Pennsylvania Constitution's

guarantee of due process ("Claim Two"). Specifically, the alleged presumption is: "that children

adjudicated delinquent of the enumerated offenses require lifetime registration based solely on

their juvenile adjudication, regardless of their rehabilitation following treatment, likelihood of

recidivism, natural maturation and desistance over time, or need to be placed on a registry." .

[Juvs.' Brief in Support, 4/22/13, pgs. 57-58.J

Third, the Juveniles argue that lifetime registration under Megan's Law is cruel ' '

and unusual punishment ("Claim Three"). The Juveniles rely, in part, on the recent U.S.

Supreme Court case of Miller v. Alabama to argue that the differences between an adult and a

child sexual offender amplifies the registry's effects and makes registration cruel and unusual.

[Juvs.' Brief in Support, 4/22/13, pg. 64.]

Fourth, the Juveniles argue that the statute imposes a stigma by labeling them as a

sexual offender for life, thereby infringing on their fundarri~ntal right to reputation ("Claim

Four"). The Juveniles' argument is based on the Pennsylvania Constitution,which contains an

explicit guarantee of a person's right to acquire, possess, and protect reputation.3

Fifth, and finally, the Juveniles claim that Megan's· Law is in conflict with certain

provisions of the Juvenile Act ("Claim Five"). This claim is, in turn, divided into two separate

arguments. First, the Juveniles argue that the Juvenile Court is without jurisdiction to impose a

punishment, i.e. Megan's Law registration, where that punishment extends past age twenty-one.

3 Pa. Const. Art. !, § 1.

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. :'

Second, the Juveniles argue that Megan's Law registration undermines the rehabilitative ·

purposes of the Juvenile Act.

In addition to responding to these arguments, the Commonwealth objects that the

Juveniles' Motion is untimely under Pa.R.J.C.P. 622. We will address this objection first.

Commonweail1tlll's Olbjectimn: '.fimeHiness oif Petiltioll'l urndter Pa.R.J.C.JP'. 622

The Commonwealth claims that the Juveniles' Motion is untimely under

Pa.R.J.C.P. 622 because it was not filed as soon as possible. Specifically, the Commonwealth

contends that the Juveniles filed their motion for relief sixty days after the effective date of

Megan's Law IV and that the Juveniles provide no explanation to justify the delay in their initial

filing. [Com. 's Brief, 5/24/13, pgs. 4-6.J The Juveniles responded that the effective date of

Megan's Law IV was the firstdate any alleged error was known. [Juvs.' Reply Brief, 6/13/13,

pgs. l-4.] The Juveniles point out that the legislature may have continued to amend Megan's

Law prior to its effective date 4 and that many juveniles across the state were released from

supervision prior to the imposition of registration, which would have rendered their claims moot.

[Juvs.' Reply Brief, 6/13/13, pgs. 1-4.J Furthermore, the sixty day delay was necessary because

it was caused, in part, by the Juveniles and their familiesrealization of the requirements of

registration as it occurred after the effective date, taking time to consult with their attorneys, and

waiting to file their petitions together in the interests of judicial economy. [Id.]

Pennsylvania Rule of Juvenile Court Procedure 622 states that:

A. Timing. A motion for nunc pro tune relief shall be filed by the juvenile with the clerk of courts in the court in which the alleged error occurred as soon as possible but no later than sixty days after the date that the error was made known.

Pa.R.J.C.P. 62i(effectiveApril 1, 2012).

4 One such amendment had already occurred. See fn. I, above.

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Initially, we do not believe that this case falls under the procedural rule we have

just quoted. As the Rule states, the juvenile's motion shall be filed "in the court in which the

alleged error occurred." Pa.R.J.C.P. 622. This implies that the error was a court order or at least

occurred in court. However, we discern no alleged error in court or by the Court. The Court's

prior orders did not make the Juveniles registrable and neither was it necessary to enter such

orders before they became registrable. See 42 Pa.C.S.A. § 9799.23(b )(1 ). Prior to providing

notice of the registration requirements, the Honorable Judge Jonathan Mark determined that the ·'

Juveniles met the definition of 'juvenile offenders' and so were subject to registration. Judge

Mark's orders were issued to provide the Juvenile's ample notice of the registration

requirements, prior to the effective date of December 20, 2012. These orders were entered

before any constitutional challenge was filed. The Juveniles do not challenge Judge Mark's

determinations that the statutory definition of 'juvenile offender' applies to them; instead, they

argue that Megan's Law registration is unconstitutional. In any case, the parties have not argued

the applicability of the Rule. Even if the Rule does apply, we find that the filing is not untimely.

Here, the alleged 'error' was known when Megan's Law IV registration went into

effect, i.e. December 20, 2012. The Juveniles obviously needed significant time to research and

prepare their complex legal claims, which required factual development in the form of expert

affidavits and raised novel legal theories. The Juveniles also took the time to file their motions

jointly. Undoubtedly, this joinder and the Juveniles' preparations significantly improved the

efficiency of these proceedings and saved the Court and the parties substantial time. Based on

the above, we find that the sixty day delay was "as soon as possible" in this case.

Additionally, we are unsure whether the actual delay was sixty days or sixty-one

days. After a review of the filings; the timestamp on the Juveniles' initial motion is illegible and

6 Clrculated 01/29/2015 02:47 PM

might read either February 18; 2013, i.e, exactly sixty days after December 20, 2012! or February

19,. 2013, sixty-one days thereafter. Both parties have proceeded believing that the Juveniles

filed within sixty days of the law's effective date. [Corn.'s Brief, 5/24/13, pg. 4; Juvs.' Reply

Brief, 6/13/13, pg. 3.] Considering that the parties have not disputed this issue; and we can

discern no prejudice to the Commonwealth from an additional delay of one day, we will give the

Juveniles the benefit of the doubt that they filed within the sixty day timeframe and we decline to

dismiss the petition under Pa.RJ.C.P. 622. Pdittn,rmer§1 CRaim Five: foeoID1sis~eirncy with the Juveirnile Ad

We first address the Petitioners' Fifth Claim because that claim raises non-

constitutional grounds. We could not reach the constitutional claims if the Petitioners' Motion

was disposable on statutory grounds. P.J.S. v. Pennsylvania State Ethics Comm'n, 723 A.2d 174,

176 (Pa. 1999) ("When a case raises both a coostitutionel and a non-constitutional issue, a court

should not reach the constitutional issue if the case can properly be decided on hon-constitutional

grounds"). First, the Petitioners 'argue that Megan's Law IV imposes "penalties or .conditions

. of disposition extending beyond the child's twenty-first birthday." [Juvs.' Brief in Support,

4/22/13, pg. 74.] Therefore, Megan's Law IV impennissibly extends the actions of the Juvenile

Court outside the scope of its jurisdiction. Second, the Petitioners argue that Megan's Law IV is

inconsistent with the rehabilitative purposes of the Juvenile Act. "The object of all interpretation and construction of statutes is to ascertain and

effectuate the intention of the General Assembly. Every statute shall pe construed, if possible, to

give effect to all its provisions." 1 Pa.C.S.A. § 1921. However, ''[w]henever the provisions of .

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two or more statutes enacted finally by different General Assemblies are irreconcilable, the

statute latest in date of final enactment shall prevail." 1 Pa.C.S.A. § 1936.

With respect to the Petitioners' first claim, they incorrectly believe that Megan's

Law IV requires the Court to exercise 'jurisdiction' over them. Nojudicial determination

subjects the Petitioners to registration. 5 At most, Megan's Law IV requires the Court to notify

the juveniles that they are subject to registration. 42 Pa.C.S.A. § 9799.20; 42 Pa.C.S.A. §

· 9799.23.6 This is not a disposition or an order subjecting them to registration, no more than if·

the Pennsylvania State Police informed the Petitioners of their obligation to register. As such,

the Petitioners' first argument fails.

The Petitioners' second argument invokes the purposes of the Juvenile Act and

argues that Megan's Law IV and the Juvenile Act are contradictory.

The Juvenile Act has undergone various iterations during its approximately one-

hundred year presence in Pennsylvania's lawbooks. See Com. v. Fisher, 62 A. 198 (Pa. 1905)

(discussing delinquency proceedings under Jaw passed in 1903). At its core, the law has

remained an alternative to criminal proceedings, aimed at rehabilitating children:

The proceedings in [Juvenile Court] are not in the nature of a criminal trial but constitute merely a civil inquiry or action looking to the treatment, reformation and rehabilitation of the minor child. Their purpose is not penal but protective,- aimed to check juvenile delinquency and to throw around a child, just starting, perhaps, on an evil course and deprived of proper parental care, the strong arm of the State acting as parens patriae. The State is not seeking to punish offender an but to salvage a boy who may be in danger of becoming one, and to safeguard his adolescent life. Even though the child's delinquency may result from the commission of a criminal act the State extends to such a child the same care and training as toone merely neglected, destitute or physically handicapped. No

5 See discussion above, regarding Judge Mark's prior orders. . 6 Certain members of the executive branch may also be required to notify the juveniles that they are subject to registration, "as appropriate." 42 Pa.C.S.A. § 9799.20. For the legislature to mandate this Court to act as its agent in providing the juveniles' notice is, perhaps, a violation of the separation of powers doctrine. However, this is irrelevant to the issues at bar considering that the notification is merely for informational purposes and does not actually subject the juveniles to registration.

suggestion or taint of criminality attaches to any finding of delinquency by a Juvenile Court.

In re Holmes, 109 A.2d 523, 525 (Pa. 1954).7

Policies underlying our juvenile system, while evolving, still emphasize

rehabilitation and protection of our youth. In re J.H., 737 A.2d 275, 278 (Pa. Super. Ct. 1999).

The current version of the Juvenile Act attempts to balance rehabilitation, preservation of the

family, and protection of the community. 42 Pa.C.S.A. § 6301. The Act is intended to provide

"supervision, care and rehabilitation ... [in order to further] the development of competencies to

enable children to become responsible and productive members of the community." 42

Pa.C.S,A. § 630l(b)(2).

In part, juvenile proceedings exchange certain criminal protections for diminished

consequences. See In Interest of J.F., 714 A.2d at 4 70 (no right to jury trial in juvenile

proceedings). "Juvenile proceedings, by design of the General Assembly, have always lacked

much of the trappings of adult criminal proceedings." In re T;P., 2013 PA Super 280 at *7 (Pa.

Super. Ct. Oct. 21, 2013). The juvenile proceedings are "intimate, informal and protective in

nature." Id.; 42 Pa.C.S.A. § 6336(a) (juvenile proceedings shall be conducted in an informal but

orderly manner).

The special treatment provided to criminal offenders by the Juvenile Act is not a

constitutional requirement Com. v. Cotto, 753 A.2d 217, 223 (Pa. 2000); Com. v. Hughes, 865

A.2d 761, 777 (Pa. 2004). Prior to the twentieth century, there were no juvenile courts in this

Commonwealth at all. Cotto, 753 A.2d at 224. 7 The appellate· courts have continued to cite Holmes with approval, despite subsequent versions 'of the Juvenile Act which have introduced the purpose of community protection and balanced and restorative justice. See In Interest of J.J:,, 714 A.2d 467, 473 (Pa. Super. Ct 1998) (discussing the language in Holmes and stating "[tjhe present scheme of the Act effectively retains this worthwhile goal, despite a greater emphasis on the protection of the public and the accountability of juvenile offenders, especially in regard to violent crimes"). Furthermore, juvenile proceedings are still considered to be "merely a civil inquiry or action looking to the treatment, reformation, and rehabilitation of the minor child." rn re J.B., 39 A.3d 421, 426 (Pa. Super. Ct. 2012).

9 Ci...,lated 01129/2015 02:47 rM

In short, the Juvenile Act represents the legislature's attempt to balance the needs

of juvenile rehabilitation and community protection. Treatment under the Juvenile Act is not

constitutionally guaranteed, but is a product of statute.

In comparison, the primary focus of Megan's Law IV is to protect th~ community.

42 Pa.C.S.A. §9799.11. The law identifies certain juvenile offenders and adds them to the .sexual

offender registry. 42 Pa.C.S.A. §9799.12 (defining juvenile offenders); 42 Pa.C.S.A. §

9799.15(a)(4) (requiring registration). This is aimed at the vital purpose of preventing sexual re-

offense. 42 Pa.C.S.A. 9799.lO(a).

While the Juvenile Act implies a different focus when it was drafted, this does not

preclude Megan's Law IV from taking effect. The General Assembly is free to change its mind·

as to what constitutes sound policy. So long as the General Assembly acts within the strictures ·

of the constitution, it may require additional protections from those children who have engaged

in criminal conduct. Nor is there reason to think that a provision of Megan's Law IV creates an

irreconcilable difference with the Juvenile Act. At most, Megan's Law IV constitutes a shift in

poliey which provides a different context in which to interpret the Juvenile Act.8 This shift in

policy is not different in kind than the shift which occurred through the amendments to the

Juvenile Act in 1995.

For the above reasons, the Petitioners' claims with respect to the Juvenile Act

fail. 9

We will now address the Petitioners' second and fourth claims, considering that

our disposition on those claims is dispositive of this petition.

8 Even if there was an irreconcilable difference with Megan's Law IV, the Juvenile Act would be superseded since the later-enacted statute takes priority. . · 9 Claim Five partly relies on whether Megan's Law IV constitutes punishment. However, we do not rule on this issue as it is not necessary to our disposition on this claim. ·

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The Petitioners claim that Megan's Law IV creates an irrebuttable presumption

that violates due process (Claim Two). Furthermore, the Petitioners claim that Megan's Law IV

infringes on their right to reputation without substantive due process (Claim Four). These issues

are interrelated. The Petitioners' right to reputation receives the highest level of judicial scrutiny

and will be analyzed first. · Building from that analysis, .we will briefly discuss the Petitioners'

irrebuttable presumption claim. .

Duly enacted legislation carries with it a strong presumption of constitutionality,

Com. v. Swinehart, 664 A.2d 957, 961 (Pa. 1995). The presumption of constitutionality will not

be overcome unless the legislation is clearly, palpably, and plainly in violation of the

. constitution. Id. A party may contest the constitutionality of a statute on its face or as-applied.

Com. v. Brown, 26 A.3d 485, 493 (Pa. Super. Ct. 2011).

A facial attack tests a law's constitutionality based on its text alone and does not consider 'the facts or circumstances of a particular case. An as-applied attack, in contrast, does not contend that a law is unconstitutional· as written but that its application to a particular person under particular circumstances deprived that person.of a constitutional right. ·

Id. citing U:S. v. Marcavage, 609 F.3d 264, 273 (3d Cir. 2010).

· "The touchstone of due process is protection of the individual against arbitrary

action of'the government." Wolffv. McDonneU, 418 U.S. 539, 558 (1974).

All men are born equally free and independent, and have certain inherent and . indefeasible rights, among which are those of enjoying and defending life and · liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness. .

Pa. Const. Art. I, § 1.

All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course oflaw, and right and justice administered without sale, denial or delay. Suits may be brought against

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the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct. ·

Pa. Const. Art. I, § 11.

'"Character' and 'reputation' are not synonymous terms. The former is what a

man is, the latter is what he is supposed to be." Hopkins v. Tate, 99A. 210, 212 (Pa. 1916)

( discussing the Rules of Evidence). Regarding reputation and character:

A man may, with or without his fault, have a bad reputation for honesty in the . neighborhood in which he then resides; but removing therefrom he may, after · living in another and distant place for several years and leading an honest and upright life, acquire a good reputation in the latter community. His character may not undergo a change, but bis reputation in the two places is not the same.

Hopkins, 99 A. at 212. . . Under the y.s. Constitution, reputation is not an interest which, standing alone, is sufficient to invoke the procedural protections of the Fourteenth Amendment's due process

clause. Paul v. Davis. 424 U.S. 693 (1976); see also Com. v. Maldonado, 838 A.2d 710, 714

(Pa. 2003) (Megan's Law case, noting that reputation is not sufficient to trigger due process

under Paul v. Davis); Com. v. Mountain, 711 A.2d 473, 478 (Pa. Super. Ct. 1998) (also citing

Paulv. Davis and stating that reputation alone is insufficient to trigger due process claims).

However, under the Pennsylvania Constitution, reputation is "a fundamental interest which

cannot be abridged without compliance with constitutional standards of due process and equal

protection." R. v. Com., Dep't of Pub. Welfare, 636 A.2d 142, 149 (Pa. 1994) citing Hatchard v.

Westinghouse Broadcasting Co., 532 A.2d 346, 350 (Pa. 1987).

Pennsylvania's Constitution requires the same due process analysis as the Federal

Constitution. Pennsylvania Game Comm'n v. Marich, 666 A.2d 253, 255 fn, 6 (Pa. 1995). Like

the due process clause in the Fourteenth Amendment of the Federal Constitution, Article I ·

Section 1 of the Pennsylvania Constitution guarantees certain inalienable rights. Nixon v. Com.,

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839 A.2d 277, 286 (Pa. 2003). "While the General Assembly may, under its police power, limit

those rights by enacting laws to protect the public health, safety, and welfare, any such laws are

subject to judicial review and a constitutional analysis." Nixon, 839 A.2d at 286 (citations

omitted). "The constitutional analysis applied to the laws that impede upon these inalienable.

rights is a means-end review, legally referred to as a substantive due process analysis." Id.

"Under that analysis, courts must weigh the rights infringed upon by the law against the interest . .

sought to be achieved by it, and also scrutinize the relationship between the law (the means) and

that interest (the end)." Id. at 286-87. Where an infringed right is considered fundamental, the means-end review is

known as the 'strict scrutiny' test. Nixon, 839 A.2d at 287. A law may only satisfy strict

scrutiny if it is narrowly tailored to a compelling state interest. Id. Because reputation is a

fundamental right, infringements of reputation undergo strict scrutiny. Pennsylvania Bar Ass1n

v. Com., 607 A.2d 850, 858 (Pa. Cmwlth. Ct. 1992). The existence of government records containing information that might subject a

party to negative stigmatization is a threat to that party's reputation. Pennsylvania Bar Ass'n v.

Com., 607 A.2d 850, 853 (Pa. Cmwlth. Ct. 1992) citing Wolfe v. Beal, 384 A.2d 1187, 1189 (Pa.

1978). An infringement on the right.to reputation necessarily implies that the stakeholder

will have a remedy. Carlacci v. Mazaleski, 798 A.2d 186, 190 fn. 9 (Pa. 2002) ("Where. there is

a right, there is a remedy"). For example, due process required a cause of action to stand for

petitioners to pursue expungement of certain records, even where no statutory right to

expungement existed. Carlacci v. Mazaleski, 798 A.2d 186, 190 (Pa. 2002) (PF A hearing);

Wolfe v. Beal, 384 A.2d 1187, 1189 (Pa. 1978) (involuntary commitment); but see Com. v.

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Charnik, 921 A.2d 1214, 1220 (Pa. Super. Ct. 2007) (records of convictions and PFA hearings

resulting in a finding of abuse do not require additional due process protections).

In Pennsylvania Bar Ass'n v. Com., the Commonwealth Court applied strict

scrutiny to examine reputational'harm done to certain attorneys. Pennsylvania Bar Ass'n v.

Com., 607 A.2d 850, 857 (Pa. Crnwlth, Ct. 1992). In that case, the General Assembly had

enacted legislation in an attempt to reduce the factors that contribute to higher vehicle insurance

costs for consumers. Id. at 852. Part of this initiative included the establishment of a "Motor

Vehicle Fraud Index Bureau" where insurers would submit all "suspected fraudulent claims" for

listing in the Index. Id. The Index listed both the name of the claimant and the claimant's ·

attorney. Id. ·The Index was then disseminated to law enforcement officers, member-insurers,

the Insurance Department, and similar fraud index bureaus. Id. at 853. The Pennsylvania Bar

Association petitioned the Court for declaratory and injunctive relief, arguing that the law

violated procedural and substantive due process in denying the attorneys their fundamental right

to reputation. Id. The Commonwealth Court agreed. Id. at 857-58. In examining substantive

due process, the Court applied the strict scrutiny test and noted that "while. some attorneys

reported to the Index Bureau might actually be involved in submitting fraudulent claims, all of

the attorneys reported will suffer an injury to their ri~t to protect their reputations without

benefit of due process." Id. at 858. Furthermore, the Commonwealth "[made] no argument

whichjustifie[d] the broad sweep of the attorney reporting requirements." Id. Consequently, the

Court held that "the requirement that attorney names be reported on the basis of an undefined

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suspicion [ was J unconstitutional as a violation of substantive due process." Pennsylvania Bar

Ass'n, 607 A.2d at 858.10.

· Even employing the rational basis test, the Court has sometimes held that a

conviction-based presuinption is unconstitutional. In Johnson v. Allegheny Intennediate Unit,

the Commonwealth Court applied rational basis review to a disqualification from employmen~

based upon a criminal conviction. Johnson v. Allegheny Intermediate Unit, 59 A.3d _IO (Pa.

Cmwlth, Ct. 2012). In that case, petitioner Johnson began employment for the Allegheny

· Intermediate Unit in 2004. Id. at 13-1,5. ·Johnson was trained as a "Fatherhood Facilitator" and

counseled juvenile fathers about child development and their role in child development. Id. In

2011, the General Assembly passed a law banning employment with school children for any

person convicted of felony homicide. Id. As it tum~d out, the petitioner had been convicted of

voluntary manslaughter twenty-eight years before. Id. The petitioner was fired in accordance

with the law and subsequently he brought suit, arguing that the lifetime ban violated his due

process rights. Id. at 15-16. As the law did not infringe on a fundamental right, the Court

employed the rational basis test. Id. at_ 21. · Allegheny argued that the purpose of the law was to.

regulate employment so that there would be a safe school environment for children. Id. at 22.

However, Johnson's work was exemplary and Allegheny admitted that Johnson would not have

been fired but for the law. Id. at 24-25. The Court considered the nature of the offending

conduct and its remoteness in time; such circumstances "must be considered where an agency

a seeks to revoke a professional license on the basis of conviction." Id. at 24. Considering the ' facts, the Court concluded "[because the law] creates a lifetime ban for a homicide offense that

has no temporal proximity to Johnson's present ability to perform the duties of his position, and it

JO The Court also examined procedural due process and likewise found that the law was unconstitutional. Pennsylvania Bar Ass'n. 607 A.2d at 857. The Court noted that there was no notice to the attorneys or opportunity for them to raise objections to the listing. Id.

15 Circulated01/29/2015 02:47 M ' t

does not bear a real and substantial relationship to the Commonwealth's interest in protecting

children, it is unreasonable, unduly oppressive and patently beyond the necessities of the . ·

offense." Id. at 25. Considering Johnson's diminishing risk over time as well as Johnson's

actual and current danger to children, the lifetime ban on employment was not rationally related

to a legitimate government interest. See id. (considering the facts and holding law

unconstitutional). For Megan's Law, the Courts have already considered various due process claims,

. including challenges to the sent~ncing enhancement provisions included in the statute. Compare

Com . v. G. Williams, 832 A.2d 962, 986 (Pa. 2003) (striking down Megan's Law II sentence

increase when it triggered after judge's finding that offender was a sexually violent predator)

with Com. v. Killinger, 888 A.2d 592, 596-97 (Pa. 2005) (upholding Megan's Law II sentence

increase when it only triggered after a criminal conviction afforded the protection of a jury trial).

Harm to RieJ!)lufation

Here, we must first determine whether the protections of due process trigger, i.e.

whether the Petitioners suffer any harm to their reputations because of Megan's Law IY

Focusing entirely on the trigger for strict scrutiny, the Commonwealth argues that Megan's Law

IV does not harm a juvenile offender's reputation. Specifically, the statute employs language

similar to common vocabulary and calls juveniles nothing worse than what their actions warrant.

All registrable juveniles have been found delinquent of Rape, I.D,.S.L, Aggravated Indecent

Assault, or an attempt, solicitation, or conspiracy to commit one of these crimes. 42 Pa.C.S.A. §

9799 .12 {defining 'juvenile offender'). One who rapes is a rapist, as the Commonwealth says,

and being called a rapist is no more stigmatizing than being called a sexual offender.

Furthermore, since registration is premised on what the juveniles have actually done, any

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l!'eputation~l harm is not the fault of the Commonwealth; thus, the Petitioners' right to reputation

has not been threatened by Megan's Law IV. After careful consideration, we disagree.

The Commonwealth essentially tells us that a juvenile offender has already

. damaged his reputation by his own acts and the state should not be held accountable for its

publication of these acts in pursuit of protecting· the community. While this argument has some

persuasive force, Megan's Law IV goes too far. The primary focus of our inquiry will be the harm to reputation, but we must keep

in mind the practical reasons that our commonwealth's constitution protects that reputation'. The.

Juveniles will almost certainly be shunned wherever their registration is known. Presence on a

sexual offender registry may impose limits on the Juveniles ability to obtain housing. [Juvs.'

Exh. F, Letter of Ineligibility from Johnstown Housing Authority.] Schools may refuse to admit

them. Businesses may refuse to employ them. At this point the precise effects of the law are

. unknown, but its negative consequences are highly likely. Thus, while the Juveniles are not

directly banned from a certain activity as per the plaintiff in Johnson, the informational effects of

Megan's Law IV are likely to be similar, broader, and more severe. Recognizing this, we

consider what Megan's Law IV says about the Juveniles. The term 'sexual offender' does not simply imply that the juvenile was

adjudicated delinquent. Megan's Law IV, like prior versions, contains a section.outlining the

legislature's findings which .state that 'sexual offenders' "pose a high risk of committing

additional sexual offenses." 42 Pa.C.S.A. § 9799.1 l(a)(4). To accomplish its legislative goal,

Megan's Law IV requires registration for someone adjudicated delinquent of a certain sexual

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offense. The law then designates the juvenile delinquent a 'sexual offender,' 11 i.e. someone at a

high risk for re-offense, and disseminates this information to various entities, 12 Megan's Law is

essentially a state-endorsed reputation rating. The premise that the 'sexual offender' is at a 'high

risk of re-offense' is essential to the statute's purpose. The dissemination of information about

these dangerous individuals is intended to allow government entities and communities to prepare

for them. 42 Pa.C.S.A. § 9799. l l(a)(6)-(8) (discussing same). Furthermore, that a juvenile who

has been adjudicated delinquent of a certain crime is at a "high risk of re-offense" is more than

you could reasonably infer based on the adjudication alone.

The Commonwealth cites federal precedent in response. Considering

Connecticut's Megan's Law statute, the U.S. Supreme Court has held that due process did not

require a hearing to determine if the adult registrants were "currently dangerous." Connecticut

Dep1t of Pub. Safety v: Doe, 538 U.S. 1, 4 (2003). Rather than creating a broad rule for due

process in Megan's Law cases, the Court's holding was limited to the particular statute. The

precise holding was that due process "does not require the opportunity to prove a fact that is not

material to the State's statutory scheme.". Id. Since the adult registrant's current dangerousness

11 a An adult registrant is designated as a 'sexual offender,' while juvenile registrant is both a 'juvenile offender' and a 'sexual offender.' See 42 Pa.C.S.A. § 9799.12 (defining sexual offender as "[a]n individual required to register under this subchapter"). · 12 Megan's Law IV provides that the Pennsylvania State Police shall make a sexual offender's information available to the following state, federal, and local entities: : !) a "jurisdiction" such as a state, where the offender: e . is required to register; or Ill has terminated his residence, employment or enrollment as a student 2) the United States Attorney General, theDepartment of Justice, and theUnited States Marshals Service, 3) the county's district attorney, the county's chief probation officer, and the municipalities' chieflaw enforcement officer; wherever the registrant: e establishes or terminates a residence, or is a transient; or 0 commences or terminates employment; or a enrolls or terminates enrollment as a student

42 Pa.C.S.A. § 9799.18(a). Furthermore, the federal authorities will include the registrant's infonnation-"in the National Sex Offender Registry, NCIC and any other database established by such Federal agencies." 42 Pa.C.S.A. § 9799.18(a)(3); see also 42 U.S.C.A. § 16919 (establishing National Sex Offender Registry) -,

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was immaterial to Connecticut's statute, no hearing was required. Id. However, the instant case

is distinguishable. Similar to Connecticut' s statute, Pennsylvania registration is triggered by

certain adjudications. However, Pennsylvania's statute makes clear that registration follows

from these adjudications because the registrant is currently dangerous. Even if Megan's Law

registration was only concerned with promulgating adjudication information, our State's

enhanced protection for reputation has unique implications for· due process in these

circumstances. Here, the reputation interests at stake are the actual focus of Megan's Law IV.

The law is intended to reduce the juvenile's reputation in the eyes of the public in order to ensure

protection. Our State's enhanced protection ofreputation requires limits on any interpretation

which blurs the line between adjudications and more fact-based inferences about those

adjudications. For these reasons, we find Connecticut Dep't of Pub. Safety to be

distinguishable.f

Our conclusion about the effect on the juveniles} reputations is not based only on

the legislative findings. It is probable that most laymen and government agents will not even be

aware of the provisions of Megan's Law IV which discuss how sexual offenders are dangerous.

However, we do not believe that this lessens the intended effect of the law. Common sense, as

well as our society's perception of Megan's Law registrants, would lead an average person of

reasonable intelligence to conclude that there is something dangerous about the registrant. Once

the public is aware of the juvenile's registration, the clear implication is that the Commonwealth

. thought it necessary to inform them that this person is a sexual offender and therefore dangerous.

Th.is is exactly the purpose of the law and we believe the law will be effective. A similar view

13 Since the dispositive issue in Connecticut Dep't of Pub. Safety was whether due process was even triggered, the Court's reasoning is largely unnecessary. Connecticut Dep't of Pub. Safety. 538 U.S. at 7 (conducting inquiry "assuming, arguendo, that respondent has been deprived of a liberty interest"). As we have said, federal Jaw does not protect reputation alone. See Paul v. Davis, 424 U.S. 693, 7 J 2 (] 976) (injury to reputation is not a liberty or property interest triggering due process protections).

19 Circulated01/29/2015 02:47 M

will be held by persons informed of the juvenile's registration for the rest of the juvenile's life,

despite the fact that a particular juvenile's character might be altered after a successful

rehabilitation, or simply after he matures and develops. Unlike adult registrants, the registrants

here committed these acts while they were children and this forms the most weighty

consideration in finding reputational harm.

Being a child implies a unique reputation in our society. For an adult sex

offender, there is debatable harm to reputation considering that adults are entirely culpable for

their own actions and do not readily alter their characters, if at all. But as a society we recognize

that children's characters are not fully-formed, that children are often subject to perverse

influences for which they do not yet have an escape, and that children generally bear less

culpability than adults owing to their age and circumstances. See Miller v. Alabama, 132 S. Ct. .

2455, 2464 (2012) (outlining scientific research supporting common sense regarding children).

Through its various iterations over one hundred years, Pennsylvania is juvenile justice system has

expressed society's differing perceptions of adults and children. The longstanding presence and

purpose of the Juvenile Act shows the general recognition by our society that juveniles are.

different. Juveniles are separated from adults because they are believed to be more capable of

rehabilitation and often more deserving of leniency due to a lesser degree of culpability. See In

re Holmes, 109 A.2d at 525 ("The State is not seeking to punish an off ender but to salvage a boy

who may be in danger of becoming one, and to safeguard his adolescent life"). Children's habits

are not solidified and this is contemplated in the law. See 42 Pa.C.S.A. § 630l(b),

(rehabilitation). Thus, they often will not need to be deterred or incapacitated as an adult·

offender would under the criminal justice system. In 1954, our Supreme Court stated that "[n]o

suggestion or taint of criminality attaches to any finding of delinquency by a Juvenile Court." In ·

20 Circulated 01/29/2015 02:47 M

re Holmes, 109 A.2d at 525. While such an absolute remark may not be true today, it is certainly

true that children who commit heinous crimes are perceived indulgently in comparison with

adults.

Megan's Law IV effectively replaces these considerations which usually soften

the judgments of society. Where a child's serious transgressions might have been looked on with

a more lenient eye, especially as time passed and wounds were healed, Megan's Law IV will

remind us that this person is a sexual offender and this reminder will persist for the rest of the

juvenile's life. When considering reputation, this kind of reminder is the exact interest at stake.

Furthermore, one of the most essential qualities of reputation is that it may be

improved. This situation is even more significant for juveniles because their character is often

not firmly set. Thus, a truly rehabilitated juvenile might eventually gain a good reputation to

match a good character. However, under Megan's Law IV, lifetime registration will hold the

juvenile's reputation in stasis. The law will imbue the juvenile with the reputation of a sexual

offender through formative stages of his life and continuing into old age. A juvenile who was

adjudicated delinquent when he was fourteen will continue to be known as a sexual offender

when he is seventy.

While Pennsylvania Bar Ass'n does notdeal with a situation as grave as sexual

crime, it still has obvious similarities to the current facts. In Pennsylvania Bar Ass'n, the Court

considered how some lawyers would justifiably be put on the list because they filed a fraudulent

claim, whereas other lawyers on the list did nothing blameworthy. Despite this variation, the

Court found a harm to reputation which triggered constitutional protections. Like Pennsylvania

Bar Ass'n, the juvenile offenders are placed on a list which bears a negative connotation for their

reputation and the list is then distributed. Some juveniles will deserve to be put on the Megan's

21 . Circulated 01/29/2015 02:47 M

Law registry because they are at high-risk to re-offend, whe~eas others will be mislabeled. Extending the Commonw~alth Court's reasoning to its logical conclusion, the inclusion of some

dangerous individuals on theMegan's Law registry does not lessen the harm to reputation for the

individuals who are not dangerous. Furthermore, an even greater burden to reputation occurs

here insofar as sexual offender registration will generally persist for life.

The instant facts have differences to those in Pennsylvania Bar·Ass1n, but these

differences are not significant enough to distinguish that case. Unlike Pennsylvania Bar Ass'n,

the Juveniles' injury to reputation is not grounded on a mere undefined suspicion, but results

after an adjudicatory hearing or admission where it is determined that the juvenile has committed

an offense. While the adjudicatory hearing undoubtedly provides a procedural protection, this

does not lead us to conclude that no reputational harm has occurred. The adjudication and

disposition itself is largely irrelevant because it does not consider the appropriateness of the

juvenile's presence on the Megan's Law registry. Pennsylvania Bar Ass'n does not imply that

there would be a contrary result if there were some grounds for the suspicion. As the Court said,

"while some attorneys reported to the Index Bureau might actually be involved in submitting

:fraudulent claims, all of the attorneys reported will suffer an injury to their right to protect their

reputations without benefit of due process." Pennsylvania Bar Ass'n, 607 A.2d at 858. Neither

does Pennsylvania Bar Ass'n deal with the distinct and heightened reputational concerns present

here, i.e. the high risk of re-offense designation and the peculiar situation of juveniles.

In sum, we hold that Megan's Law IV damages the juveniles' reputations and has

triggered strict scrutiny.

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NurowHy Tanforedl to a Comn:pelHhng §tall:e foll:ieiresll:

Megan's Law IV is concerned with protecting the public from the recidivism of

persons who have committed sexual offenses and are at a high risk to re-offend. As the law

states, "protection of the public from this type of offender is a paramount governmental interest."

42 Pa.C.S.A. § 9799.1 l(a)( 4). Safety or protection is a classic example of a compelling state

interest. See Denver Area Educ. Telecommunications Consortium, Inc. v. F.C.C., 518 U.S. 727,

· 754-55 (1996) (protecting physical and psychological well-being of minors was a compelling

state interest). Accordingly, we hold that Megan's Law IV clearly has a compelling state

interest.

The second step in strict scrutiny review ismore difficult and places the burden of

proof on the government to show that the law is narrowly-tailored to the compelling state

interest. Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 340 (2010) (state's burden of

proof). A statute is not narrowly tailored when a "less restrictive alternative [to accomplish the

legislative goal] is readily available." Boos v. Barry, 485 U.S. 312, 329 (1988) ( existence of a

less restrictive statute suggested that a challenged ordinance, aimed at the same problem, was

overly restrictive). Neither is a statute narrowly tailored if it is over-inclusive, covering

situations which are not pertinent to the legislative goal. See Simon & Schuster, Inc. v. Members

of New York State Crime Victims Bd., 502 U.S. 105, 118 (1991) (to compensate victims, statute

controlling literary endeavors of authors admitting to crime was over-inclusive, as it also applied

to authors never actually accused or convicted).

As we have already noted, the Commonwealth did not present evidence or

argument on how Megan's Law IV is narrowly-tailored, The Commonwealth elected to focus on

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whether the Petitioners' reputations were harmed. Thus, we are forced to rely primarily on the

Petitioner's evidence in assessing this prong.

In examining the narrowly tailored requirement, we first acknowledge the General

Assembly's difficulty in attempting to craft appropriate regulation for sex offenders. On the one

hand, both adult and juvenile sexual offenders might posea future danger to the public. Megan's

Law attempts to deal with this danger by essentially creating a government-managed reputation

system. However, among adults and juveniles the risk of re-offense is by no means the same.

The recidivism rate for adult sexual offenders has been estimated at 13% or higher, while the ·

most extensive study of juvenile sexual recidivism rates (collecting 63 studies and surveying

11,200 juveniles) concludes that juvenile offenders recidivate in 7.09% of cases. [Juvs.' Exh. J,

Aff. of Michael F. Caldwell, Psy.D.; Exh. I, Aff. of Dr .. Elena del Busto, M.D.] The real.

recidivism rate over a sexual offender's lifetime may be higher than these statistics reveal. Of

course, any study will be practically constrained to pick some point in time to stop research (on

average, the juvenile studies stopped collecting data 5 years after the initial adjudication). Thus,

any recidivism that occurred after that time is not accounted for. Furthermore, not all sexual re-

offenses are reported. This means that the actual recidivism rate for juveniles could be higher

than assessed and falls short of total accuracy.

Predictions for juvenile sexual offenders pose additional problems. For juvenile

sexual offenders, "it is extremely difficult to identify the small subgroup of offenders who pose a

. high risk of sexual re-offense." [Juvs.' Exh. J, Caldwell, Psy.D.J This is because juvenile sexual

recidivism is relatively low, for scientific purposes, and this makes identifying risk-increasing

elements more difficult. [Juvs.' Exh. J, Caldwell, Psy.D.J Nevertheless, Megan's Law IV uses

the fact of an adjudication alone to determine 1f a particular individual should be put on the

24 Circulated 01/29/2015 02:47 M

registry. We are unaware, and the parties do not suggest, What factual background or research

the legislature considered before enacting Megan's Law IV. But even if the legislature were to

preface its legislation with very extensive research it is hard to see how it would be possible to

create an adjudication-based registry to cover only those juveniles who are, in fact, dangerous.

Megan's Law IV does differentiate between adult and juvenile sexual offenders.

Adults and juveniles are subject to registration for different offenses and, unlike adults, juveniles

will not be registrable unless they are at least fourteen years of age at the time of the offense.

For a juvenile to be registrable he must: (1) be adjudicated delinquent of Rape, I.D.S.I.,

Aggravated Indecent Assault, or an attempt, solicitation, or conspiracy to commit the same; and

(2) be 14 years old or older when he engaged in the registrable conduct. 42 Pa.C.S.A. § 9799.12.

On the other hand, Megan's Law IV makes adult offenders registrable for approximately forty-

eight (48) different crimes. 42 Pa.C.S.A. § 9799.14. This tally does not account for similar

crimes in foreign jurisdictions, inchoate crimes, or repealed registrable offenses in this

Commonwealth. Presumably, the offenses which make a juvenile registrable imply a higher risk

ofre-offense. Megan's Law IV does not place a juvenile's information on the in-state public

website. 42 Pa.C.S.A. § 9799.28. t4 While Megan's Law IV provides no confidentiality

protections and disseminates the registrant's information to various parties, 15 public

dissemination of a juvenile's information will not necessarily occur. By these distinctions the

legislature has tried to balance the need to rehabilitate juvenile offenders, while also protecting

the community through registration.

14 Petitioners contend that, nevertheless, Megan's Law IV requires the juveniles' information to be disseminated to state and federal agencies that will include their registration information on line. Thus, argue the Petitioners, Megan's Law IV effectively places their information online. 15 See fn, 12, above, discussing who receives a registrant's information.

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Nevertheless, while Megan's Law implies an effort to limit juvenile registration,

it fails to be narrowly tailored. Megan's Law IV ismost problematic in that it is over-inclusive;

the Jaw requires registration by juveniles who are not at a high risk of re-offense. A juvenile

offender's circumstances may vary, even for the heinous crimes involved. The law's lack of any

individualized inquiry leaves significant questions unanswered pertaining to the juvenile's risk of

recidivism. For instance, what is thejuvenile's background? Was the initial adjudication born

of a momentary lapse or was it a continuing pattern of behavior? Were there significant

contributing factors in the juvenile's crime, such as peer pressure or a poisonous home

environment? . Was the juvenile previously subject to sexual or physical abuse? For howlong?

Has he now moved to a new and stable environment? Has he re-offended or been tempted to re-

offend? Has the juvenile shown signs of rehabilitation or recovery? Is he now married,

employed, in school, involved in his community, or engaged in other productive and supportive

roles which would diminish the risk of re-offense? Consideration of such questions is .analogous

to the murder sentencing factors. See 18 Pa. C.S.A; § 1102. l (for murder sentence, considering

particular circumstances of a juvenile before deciding eligibility for pa,role).16 · By spelling out

these considerations we do not mean to imply that the legislature must require some particular

set of questions or questionnaire before it could require registration. However, Megan's Law IV

is over-inclusive by not accounting for individualized circumstances, thereby ignoring a means

to avoid including non-dangerous persons on the registry. It would be no answer to say that the . . . future dangerousness of sexual offenders is = speculative and unknowable for determination at

the time of adjudication, for this is simply to acknowledge that the law will sweep up those who

are not dangerous.

16 This statute was passed in response Miller v. Alabama, 132 S. Ct 2455 (2012).

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Furthennore, other statutory provisions suggest that the adjudication-based

system for registration is not the least restrictive means that could have been chosen. l 7 The

legislature has tasked the court with judging whether a particular sexual offender should be

classified as a sexually violent predator "due to a mental abnormality or personality disorder that

makes the individual likely to engage in predatory sexually violent offenses." 42 Pa.C.S.A. §

9799.12 (definitions); 42 Pa.C.S.A. § 9799.24(e) (hearing for assessment). The Sexual Offender

Assessment Board is tasked with assisting the Court in examining whether the sexual offender is

a sexually violent predator. 42 Pa.C.S.A. § 9799.24(b). After a court order, the Board will

gather the following irtfonnation for the Court's review:

(1) Facts of the current offense, including: (i) Whether the offense involved multiple victims. (ii) Whether the individual exceeded the means necessary to achieve the offense. (iii) The nature of the sexual contact with the victim. · · (iv) Relationship of the individual to the victim. · (v) Age of the victim. (vi) Whether the offense included a display of unusual cruelty by the individual during the commission of the crime. · (vii) The mental capacity of the victim. (2) Prior offense history, including: (i) The individual's prior criminal record. (ii) Whether the individual completed any prior sentences. (iii)Whether the individual participated in available programs for sexual offenders. (3) Characteristics of the individual, including: (i) Age. (ii) Use of illegal drugs . (iii) Any mental illness, mental disability or mental abnormality. (iv) Behavioral characteristics that contribute to the individual's conduct. (4) Factors that are supported in a sexual offender assessment field as criteria reasonably relatedto the risk of reoffense.

42 Pa.C.S.A. § 9799.24(b).

17 We employ the U.S. Supreme Court's suggestion of considering similar provisions to determine if there is a less restrictive means available. Boos v. Barry, 4&5 U.S. 312, 329 ( 1988) (existence of a less restrictive statute suggested that a challenged ordinance, aimed at the same problem, was overly restrictive). 27 Circulated 01/29/2015 02:47 P

The Court then uses this information, in part, to determine whether the sexual offender is a

sexually violent predator. The legislature considered this level of individual analysis

appropriate, at least in these circumstances. While the legislature concluded that Megan's Law

IV needed to be "strengthened," strengthening the law did not mean excluding a sexually violent

predator assessment, which was already present in prior versions.18 Similarly, the legislature

also required a court hearing for "sexually violent delinquent children." 42 Pa.C.S.A. § 9799.12

(referring to § 6402 for definition of sexually violent delinquent child); 42 Pa.C.S.A. § 6402

(defining sexually violent delinquent child as one involuntarily committed under § 6403). The

. standard employed is deferential to the juvenile; it must be shown by "clear and convincing

evidence" that the juvenile "has a merital abnormality or personality disorder which results in

serious difficulty in controlling sexually violent behavior that makes the person likely to engage

in an act of sexual violence." 42 Pa.C.S.A. § 6403(d). Thus, the legislature has already

indicated that it believes the individualized consideration of circumstances is a reasonable means . . of carrying out the law's purpose; this supports the notion that adjudication-based registration is

over-inclusive.

Similar to Pennsylvania Bar Ass'n, the statute will include persons both relevant

. and irrelevant to the legislative aim. However, an unchallengeable, per se conclusion that all ·

juvenile offenders require Megan's Law registration for at least twenty-five years discards

reasonable, alternative protections which could be put in place, such as an individualized inquiry

into the risks of a particular juvenile.

We also consider the holding in Johnson. While Johnson only applied the rational

basis test, a considerably more deferential standard of review, the Court nevertheless struck

18 Specifically, the Court already conducted sexually violent predator assessments for adults pursuant to Megan's Law III. As we have said, this is the first time that juveniles have been required to register and, thus, no individual juvenile assessments occurred in prior versions of Megan's Law.

28 Circulated 01/29/2015 02.:47 P

down a law which presumed dangerousness based upon a criminal conviction. Here, Megan's

Law IV infringes on a fundamental right and presumes that the juvenile is dangerous throughout

. his life based upon an adjudication alone. But if a conviction-based presumption of

· dangerousness is not rationally related. to protection because it fails to account for individual

circumstances, it follows that neither is such a presumption narrowly tailored. The infringement

of a fundamental right must be more carefully justified to survive scrutiny. 19

Additionally, the legislature has historically selected certain crimes considered

heinous in nature for direct filing in the criminal division when committed by juveniles fifteen

years of age and over, thus, at a minimum, invoking constitutional protections when the potential

consequences are the same or similar to adult defendants. 42 Pa:C.S.A. § 6302 (defining

"delinquent act"); see also Com. v. Ramos, 920 A.2d 1253, 1257 (Pa. Super. Ct. 2007). We note

that the adjudicatory hearing does not encompass the full panoply of criminal protections. Such

hearings are conducted "in an informal but orderly manner"20 and the parties. often adopt a less

adversarial attitude than in the criminal setting. Thus, adjudications of delinquency enjoy less

procedural protections than adult registrants. Where the fundamental right to reputation is at

stake, however, the determination is of constitutional magnitude and should enjoy some

appropriate, heightened protection. We do not hold or imply that a jury trial, or other specific

criminal protections, are constitutionally required in juvenile proceedings: Neither do we hold

that criminal protections are required prior to ajuvenile's sexual offender registration. Rather, .

the lack of these constitutional protections is merely suggestive of how Megan's Law IV fails to

consider that the registration issues at stake are of constitutional magnitude for the Juveniles.

19 In assessing harm, we have noted how Johnson banned employment based upon the criminal proceeding, whereas Megan's Law N disseminates information after the adjudication. However, thisdissemination of information is likely to have similar practical effects on the Juveniles' employment, housing, and education. 20 42 Pa.C.S.A. § 6336(a) (Conduct of Hearings under Juvenile Act).

29 . Circulated 01/29/2015 02:47 P

., Before concluding, we also note that we have reviewed both the state and federal

legislative histories for reasoning or evidence which supports the premise that the adjudication-

based registration is closely tied to juveniles at a high risk of re-offense, We have found none.

As far as Pennsylvania's legislative record is concerned, we have found no

helpful discussion. Pennsylvania legislators indicated that Megan's Law IV extended

registration to transient offenders/I allowed for increased information sharing on national

registries,22 and brought Pennsylvania in compliance with the federal Adam Walsh Act of 2006.

Compliance with the AdamWalsh Act was necessary to avoid a $1.6 million reduction in a

federal grant,23 and also to make Pennsylvania less attractive to sexual offenders from foreign

jurisdictions who might otherwise elect to move to the state if Pennsylvania maintained lesser

reporting requirements. We have found no discussion of the appropriateness of juvenile

registration on the available record.24

Since Megan's Law IV was partly designed to comply with the Adam Walsh Act,

we have also reviewed the federal legislative record. The Adam Walsh Act of 2006 was broad·

ranging and addressed multiple issues for both adult and juvenile sexual offenders. In part, the

federal legislation sought to eliminate the disparity between registration for adult and juvenile

21 S.B. 1183, Legislative Journal-Senate, pg. 1203-04, November 15, 2011 (statement of Senator Orie). Available online at: http://www.legis.sMe.pa.us/WUOJ/LI/SJ/201l!O/Sj2011 I I 5.pclf#page==5. 22 S.B. 1183, Legislative Journal-House, pg. 255 I, December 13, 2011 (statement submitted by Representative Caltagirone). Available online at: http://www.legis.state.pa.us/WUO J/LJ/HJ/20 l li0/20 l l 1213.pdfflpage=l 5. · 23 S.B. 1183, Legislative Journal-House, pg. 2552, December 13, 201 I (statement submitted by Representative Marsico). 24 At most, the record reveals that two senators objected to the juvenile provisions before the final vote. S.B. I 183, Legislative Journal-Senate, pg. l3 73- 74, December 14, 2011 (statements of Senators White and Ferlo). Available online: at http:/iwww.legis.state.pa.us/WUO 1/LJ/SJ/20 I l/O/Sj20111214.pdfripage= I J.

30 Circulated 01/29/2015 02:47 P

offenders.25 It also was intended to create a uniform system ofregistration among the states in

order to enhance the accuracy and usefulness of Megan's Law registries."

After reviewing the congressional record, the limited registration of juvenile

offenders appears to have been part of a pragmatic compromise on the part of Congress, rather

than an attempt to limit juvenile registration to those who were at a high risk for re-offense, One

senator opined that:

[I]n order for the registry to be effective, it should be targeted toward those who represent the highest risk to our communities. The current version takes a more sweeping approach toward juvenile offenders by expanding their registration requirements. The Senate bill allowed each State to determine whether a juvenile should be included on the registry. This compromise allows some offenders over 14 to be included on registries, but only if they have been convicted of very serious offenses. For juveniles, the public notification provision in this bill is harsh given their low rate of recidivism, which is less than 8 percent according to the most recent studies. For this reason, it is especially important that the bill includes funding for treatment of juvenile offenders. These provisions recognize that juvenile offenders, who have much lower rates of recidivism and have been shown to be much more amenable to treatment than their adult counterparts, shouldn't be lumped together with adult offenders.27

The federal legislative record does not provide any indication that Pennsylvania's registrable

adjudications are tied to a high-risk of re-offense. As the Senator said, the Adam Walsh Act was

a compromise which included more juveniles than those who were high-risk. The federal

legislature was aware, however, that compliance with the Adam Walsh Act might very well

conflict with state constitutional protections. Recognizing this, they provided an accompanying

exception to the Adam Walsh Act in order to allow states the necessary leeway to abide by their

own governing documents without suffering a penalty in funding.

25 29 Cong. Rec. 677-.78 (March 8, 2006) (statement of Rep. Green). Available online at: l~ttp://www.gpo.gov/fdsys/pkg/C REC-2006-03-08/pdt!CREC-2006-03-08-pr I-PgH657 -2. pdf#page=2 l. 2 96 Cong. Rec. 8023 (July 20, 2006) (statement of Sen. Kennedy). Available online at: Ntp://www.gpo.gov/fdsys/pkg/CREC-2006-0 7-20/pdf'CREC-2006-07-20-pt l-PgSSO 12-2.pdf.iJ'page=l 2. 96 Cong. Rec. 8023 (July 20, 2006) (statement of Sen. Kennedy). Available online at: http://www.gpo.gov/fdsys/pkg/CREC-2006-07-20/pdf!CREC-2006-0 7: 20-pl I -PgS80 12-2 .pd f#puge= 12.

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Considering the legislative record, we can find no grounds on which to conclude

the juvenile's adjudication-based registration is narrowly tailored. Megan's Law IV juvenile

registration was simply not designed to only apply to those at a high risk of re-offense.

Accordingly, as applied to the Petitioners and for the reasons discussed above, we

hold that Megan's Law IV is not narrowly tailored to its legislative goal and is unconstitutional

under the Pennsylvania Constitution and in light of the protections in Art. I, § I.

Irrebutrable Priesumpfo:m ·

Considering our disposition of the Petitioner's reputation claim, we will briefly

analyze the related claim that Megan's Law IV creates an irrebuttable presumption.

While procedural due process is a flexible notion which calls for such protections

as demanded by the individual situation, the essential requirements are notice and a meaningful

opportunity to be heard. Soja v. Pennsylvania State Police, 455 A.2d 613, 615 (Pa. 1982) ("the

essential elements of due process are notice and opportunity to be heard and to defend in an

orderly proceeding adapted to the nature of the case before a tribunal having jurisdiction of the

cause"). Due process requires not just "any" hearing, but rnther an "appropriate" hearing. Fiore

v. Com. of Pa., Board of Finance and Revenue, 633 A.2d 1111, 1114 (Pa. 1993). With respect to

procedural due process, the U.S. Supreme Court has stated:

The hearing required by the Due Process Clause must be 'meaningful,' and 'appropriate to the nature of the case.' It is a proposition which hardly seems to need explication that a hearing which excludes consideration of an element essential to the decision whether licenses of the nature here involved shall be suspended does not meet this standard.

Bell v. Burson, 402 U.S. 535, 541-42 (1971) (citations omitted).

Sometimes, a legislative choice based on a categorical determination from a

criminal conviction is permissible. Compare De Veau v. Braisted, 363 U.S. 144, 157 (1960) (in

32 Circulated 01/29/2015 02:47 P

employment context, holding that law barring felony convicts from waterfront union office, if

they did not have a pardon or good conduct certificate, was reasonable, based on legislative

findings of corruption, and not an ex post facto law); with Johnson v: Alle.gheny Intennediate

Unit, 59 A.3d 10, 25 (Pa. Cmwlth. Ct. 2012) {lifetime ban on employment working with children

based on voluntary manslaughter conviction was not punishment under ex post facto clause;

however, applying the rational basis test, law violated due process because it did not account for

individual circumstances).

However, a statute may be unconstitutional if it is conditioned on an irrebuttable

presumption of some pertinent fact: See Com. Dep't ofTransp., Bureau of Driver Licensing v.

Clayton, 684 A.2d 1060, .1063 (Pa. 1996). "[Ijrrebuttable presumptions are violative of due

process where the presumption is deemed not universally true and a reasonable alternative means

of ascertaining that presumed fact [js] available."· Clayton, 684 A.2d at 1063 (holding statute

unconstitutional that rescinded license, without a pertinent hearing, following an epileptic seizure

which may or may not indicate dangerousness of driver).

Regarding the irrebuttable presumption doctrine, our court has observed that it is

"[un]wise to pigeonhole whether an analysis of an irrebuttable presumption is solely one of

substantive or procedural due process." Id. at 1064. This is because an irrebuttable presumption

· claim generally challenges both the statute, i.e. the substance, and the procedure employed by the

statute. Id.

In D.C. v. School Dist. of Philadelphi;;, the Commonwealth Court considered

whether it was an irrebuttable presumption for a statute to automatically exclude certain juvenile

delinquents from a school's regular classrooms. D.C. v. School Dist. of Philadelphia, 879 A.2d

4.08, 410 (Pa. Cmwlth, Ct. 2005). In that case, the General Assembly enacted legislation to

33 Circulated 01/29/2015 02:47 P . '. '

manage students who were adjudicated delinquent. Id. at 409. Any student adjudicated

delinquent would not be allowed in a regular classroom, but would be placed in a transition

center for one month. Id. 409- I 0. In accordance with the statute, the transition center would

then assign the juvenile to one of four various programs designed for disruptive students. Id. at

410. The four programs had no interscholastic sports and limited scholastic opportunities: Id.

Three students brought suit, challenging the statute on the basis of the irrebuttable presumption

doctrine. Id. at 416. The students were all adjudicated delinquent of non-violent crimes, but

behaved themselves in the rehabilitation program and when working with others. Id. at 410.

Finding that due process triggered, the Court considered that the adjudicatory hearing did not

· decide whether the student should be excluded from the regular classroom. Id. at 418. Instead,

the statute simply presumed a student must be excluded "regardless of whether the student

performed in an exemplary manner during juvenile placement or otherwise does not pose a threat

to the regular classroom setting." Id., 879 A.2d at 418. The statute provided no hearing for

students to challenge the classroom exclusion. Id. at 419. Accordingly, the statute created an

irrebuttable presumption and was stricken. Id.28

Reputational harm is enough to trigger the Pennsylvania Constitution's due

process protections. Compare R. v. Com., Dep't of Pub. Welfare, 636 A.2d at 149 (under

Pennsylvania Constitution, reputation is "a fundamental interest which cannot be abridged

without compliance with constitutional standards of due process and equal protection") with

Com. v. Mountain, 711 A.2d at 478 (citing federal precedent and stating "reputational damage

alone has been held to be insufficient to trigger a procedural due process claim"). As we

discussed above, Megan's Law IV harms the Juveniles' reputation and has triggered due process

28 The students also challenged the statute on the basis that it violated their fundamental right to reputation. The Court declined to address this claim because it had already granted relief on separate due process grounds. D.C. v. Sch. Dist. of Philadelphia, 879 A.2d 408, 419 (Pa. Cmwlth. Ct. 2005).

34 I Circulated 01/29/2015 02:47 P

protections. Thus, we will go on to determine if the law creates an irrebuttable presumption as

the Petitioners claim.

Megan's Law IV creates a presumption that the Petitioners are dangerous and

pose a high risk of re-offending, thus necessitating their placement on the sex offender registry.

This presumption is employed after an adjudicatory hearing where the Petitioners were

adjudicated delinquent of certain offenses. However, the Petitioners' registry and dangerousness

are not at issue in the hearing:

Apparently recognizing that Megan's Law IV will cover juvenile delinquents who

are not high risk, the legislature provides an opportunity for juvenile offenders to petition the

Court to withdraw from the registry. However, a juvenile's challenge to registration may only

occur after they have been subject to registration for 25,years. 42 Pa.C.S.A. § 9799.17(a)(l).

This challenge will be precluded if the juvenile has been convicted for any second degree

misdemeanor punishable by more than one year in prison, whether or not this conviction bears

any relationship to dangerousness, sexual offenses, or the requirements ofregistration. 42

Pa.C.S.A. § 9799.17(a)(2).29 The juvenile will also be on the registry for life if his court-ordered

supervision is not successfully completed without revocation, regardless of the reasons or the

number of years ago that occurred. 42 Pa.C.S.A. § 9799.17(a)(3). Considering the timing of this

hearing and the possibly irrelevant considerations involved, we do not believe that this hearing

provides a meaningful opportunity to challenge registration. Neither does Megan's Law IV

provide any notice prior to the requirement to register. See 42 Pa.C.S.A. § 9799.23(a)-(d)

29 For example, perhaps the juvenile, in the course of his employment, commits two violations of the Sewage System Cleaner Control Act within a two year period. The second violation will be a misdemeanor of the second degree and will preclude him from ever challenging his Megan's Law registry. 35 Pa.C.S.A. § 770.12(c).

35 Circulated 01/29/2015 02:47 P . ·.

(requiring notice at the time of adjudicatory hearing's disposition and also stating that failure to

notify "shall not relieve the sexual offender. from the requirements of this subchapter").

For these reasons, we hold that Megan's Law IV creates an irrebuttable

presumption in violation of the Pennsylvania Constitution's guarantee of due process.

ret.itiolfllern' Cfaims 0.nlle & Three: Ex-Post Faclto Cla1!llsie, Cruell aill.irll UKllusual JPamisllnment

Considering our disposition with respect to Claims Two and Four, we will not

address the additional constitutional grounds on which the Petitioners challenge Megan's Law

IV. The Petitioners' arguments regarding the ex post facto clause and the gth Amendment are

dismissed as moot.

SeverabiU.ty. .

Once a court declares part of a statute unconstitutional, it must determine whether

the statute should be struck in its entirety or whether some portion of the statute may be saved by

severing it. The Statutory Construction Act provides that:

The provisions of every statute shall be severable. If any provision of any statute or the application thereof to any person or circumstance is held invalid, the remainder of the statute, and the application of such provision to other persons or circumstances, shall not be affected thereby, unless the court finds that the valid provisions of the statute are so essentially and inseparably connected with, and so depend upon, the void provision or application, that it cannot be presumed the General Assembly would have enacted the remaining valid provisions without the void one; or unless the court finds that the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.

1 Pa.C.S.A. § 1925.

The court must find provisions severable unless "[the} valid provisions of [the statute] are so

dependent upon the [invalid] provisions that the General Assembly would not have enacted the

former without the latter." Com. v. G. Williams, 832 A.2d 962, 986 (Pa. 2003) (severing

unconstitutional penalty provisions from Megan's Law II). However, "[w]here a legislative

36 Circ~l~ted 01/29/2015. 02:47 PM

scheme is determined to have run afoul of constitutional mandate, it is not the role of this Court

to design an alternative scheme which may pass constitutional muster." Heller v. Frankston, 475

A.2d 1291, 1296 (Pa. 1984) (going on to find inseparable link making provision not severable).

Here, we have found Megan's Law IV unconstitutional insofar as it applies to

juvenile offenders who are not assessed to be sexually violent delinquent children. 'Megan's Law

IV primarily pertains to adult sexual offenders. Ruling that the law does not apply to select

juvenile offenders does not render the other provisions incomplete or incapable of being

executed in accordance with the legislature's intent. As such, the provisions are severable and

Megan's Law IV is not struck down in its entirety, but only insofar as it applies to juvenile

offenders who are not assessed to be sexually violent delinquent children.

CONCJLUSliON

In sum, as applied to the Petitioners, Megan's Law IV unconstitutionally infringes

on the fundamental right to reputation and creates an irrebuttable presumption in violation of the

Pennsylvania Constitution's guarantee of due process. Insofar as Megan's Law IV applies to

these juvenile offenders, the law is unconstitutional and cannot stand. We will, therefore, release

the Petitioners from Megan's Law registration.'

Accordingly, we enter the following order: