Full Text of Fross v. Allegheny County, PA Supreme Court

Below is the full opinion of the Pennsylvania Supreme Court in Fross v. County of Allegheny, the decision striking down Allegheny County's sex offender residency restriction Ordinance.

IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
CHARLES FROSS, M. DOE, D. DOE,
SHAWN CZERWIEN, CHARLES METER,
AND CHRISTOPHER HAIGH
Appellees
v.
COUNTY OF ALLEGHENY,
Appellant
:::::::::::::
No. 17 WAP 2010
Certification of Question of Law upon
Petition of the United States Court of
Appeals for the Third Circuit
ARGUED: October 19, 2010
OPINION
MR. CHIEF JUSTICE CASTILLE DECIDED: MAY 25, 2011
Upon certification by the U.S. Court of Appeals for the Third Circuit, we accepted for
review the issue of whether Allegheny County Ordinance No. 39-07-OR (the “Ordinance”),
which imposes residency restrictions on certain offenders, is preempted by the
Pennsylvania Prisons and Parole Code, 61 Pa.C.S. § 101 et seq., (“Parole Code”) and/or
by the Pennsylvania Sentencing Code, 42 Pa.C.S. § 9701 et seq. (“Sentencing Code”).
The Ordinance applies to offenders subject to the registration requirements of those
provisions of the Sentencing Code collectively known as Megan’s Law. See 42 Pa.C.S. §§
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9791-9792; 9795.1-9799.4; 9979.4-9979.9.1 For the reasons that follow, we hold that the
Ordinance impedes the accomplishment of the full objectives of the General Assembly, as
expressed in the Sentencing and Parole Codes, and is, therefore, invalid pursuant to our
conflict preemption doctrine.
Pennsylvania’s current version of Megan’s Law requires individuals convicted of,
inter alia, kidnapping, indecent assault, or promoting prostitution, to register for ten years
following release on probation or from prison. Persons convicted of two or more offenses
subject to ten-year registration, sexually violent predators, and persons convicted of, inter
alia, rape, involuntary deviate sexual intercourse, or aggravated indecent assault, are
subject to lifetime registration upon release. 42 Pa.C.S. § 9795.1(a)-(b); see 42 Pa.C.S. §
9792 (defining “sexually violent predator”). In addition to requiring the registration of these
offenders (“sex offenders” or “registrants”), the act also provides for notification of
community members that such an offender will live in or near their neighborhood and
mandates counseling for released sex offenders. 42 Pa.C.S. § 9791(b) (declaration of
legislative policy). According to the General Assembly, Megan’s Law facilitates community
access to information regarding the presence in the neighborhood of sexually violent
predators and other sex offenders, in recognition that these offenders pose a high risk to
re-offend upon release and, thus, to endanger public safety. See 42 Pa.C.S. § 9791(a)
(legislative findings). Safety of the public, according to the Legislature, is of “paramount
concern.” 42 Pa.C.S. § 9791(a)(3). A secondary interest is the effective operation of
government. 42 Pa.C.S. § 9791(a)(5).
1 Acceptance of certification from the Third Circuit on a question of law is a matter of
judicial discretion. Supreme Court I.O.P. § 10(B). Thus, we accept certification for “special
and important reasons,” including if the question of law at issue “is one of first impression
and is of such substantial public importance as to require prompt and definitive resolution
by this Court.” Id. at § 10(B)(1).
[J-79-2010] - 3
Pursuant to Megan’s Law, a registering sex offender must provide to the
Pennsylvania State Police information regarding “all current or intended” residences,
employment, and school enrollment. 42 Pa.C.S. § 9795.2(a). After the initial registration,
the offender is to update the information within forty-eight hours of any change in the nature
or location of residency, employment, or student status. Id. The State Police is charged
with a duty to verify the residence of registered offenders either quarterly (for sexually
violent predators) or annually (for other offenders). 42 Pa.C.S. § 9796. For every
registrant, the State Police provides the information collected to local law enforcement
officials where the registered offender resides, works, or is enrolled in school; the State
Police also notifies the offender’s victim(s) and makes information about the offender
available on the Internet. 42 Pa.C.S. §§ 9795.2(c), 9797, 9798.1. Local law enforcement is
responsible for notifying the public regarding the presence of a sexually violent predator in
a community, as provided in 42 Pa.C.S. § 9798.2
The release from custody of a Megan’s Law registrant is conducted pursuant to the
provisions of the Pennsylvania Sentencing and Parole Codes, generally applicable to all
offenders within the Commonwealth’s jurisdiction. Sentencing courts and the Pennsylvania
Board of Probation and Parole (the “Board”) share duties of implementing the two statutes
within their respective spheres.
In this context, the primary role of the court is to determine an appropriate sentence
in each case, including confinement, probation, or intermediate punishment. A court must
consider in selecting a sentence “the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the rehabilitative
2 The General Assembly assigned to the State Police responsibility for the registration
system’s administration but charged courts with informing a sex offender of his/her
obligation to supply the required data to the State Police, and the Pennsylvania Board of
Probation and Parole with collecting the data from sex offenders prior to release, for entry
into the system. 42 Pa.C.S. §§ 9799.1, 9795.3, 9799.2(2)-(3).
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needs of the defendant.” 42 Pa.C.S. § 9721(a), (b). The sentencing court may attach to
probation reasonable conditions tailored to each offender. See 42 Pa.C.S. § 9754(c)
(probation). For offenders who remain under the jurisdiction of the sentencing court, see
infra n.3, the order of probation may be modified by the sentencing court at any time. 42
Pa.C.S. § 9771. Until termination of the sentence, probationers remain under the
supervision of county probation and parole officers. 42 Pa.C.S. §§ 9911, 9912.
Within the same system, the Board’s function is the administration of probation and
parole in Pennsylvania. 61 Pa.C.S. § 6111(a). The Board operates the parole system with
the primary purpose of protecting the public, but also with the twin goals of supplying an
“opportunity for the offender to become a useful member of society” and of diverting
appropriate offenders from prison. 61 Pa.C.S. § 6102(1)-(2). It must also “ensure that
parole proceedings, release and recommitment are administered in an efficient and timely
manner.” 61 Pa.C.S. § 6102(3).3
The Board exercises discretionary parole authority, but must generally balance in
making its decision the “best interests” of the offender which justify or require parole, and
the interests of the Commonwealth that would be injured by the offender’s release on
3 The Board has “exclusive” power “[t]o parole and reparole, commit and recommit for
violations of parole and to discharge from parole” any persons sentenced to imprisonment
in state or county correctional institutions for a maximum term of more than two years or
any persons placed under Board supervision by a court; sentencing courts have residual
authority to parole persons sentenced to a maximum of less than two years. 61 Pa.C.S. §
6132; 42 Pa.C.S. § 9776(a); accord 61 Pa.C.S. § 6134.1(c). Further, the Board supervises
any person placed on probation by special order of the sentencing court. 61 Pa.C.S. §
6133(a). Otherwise, like probationers, parolees are supervised by county probation and
parole officers. 42 Pa.C.S. § 9776. County probation and parole officers are subject to
certain “uniform [s]tatewide standards” established by the Board regarding qualifications,
minimum salaries, and quality of services. 42 Pa.C.S. §§ 9756(b)(3), 9775, 9776(d), 9911;
61 Pa.C.S. § 6131(a)(5) (uniform standards); accord Timothy P. Wile, “County” parole, 12
WEST’S PA. PRAC., Law of Probation & Parole § 3:2 (2010 ed.).
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parole. 61 Pa.C.S. § 6137(a).4 For these purposes, the Board has a duty to investigate
and consider the individual nature and circumstances of the offender and his offense, the
victim’s wishes, and recommendations from the sentencing judge and prosecuting attorney.
61 Pa.C.S. §§ 6134; 6135(a). The Parole Code requires that, if an offender is eligible for
parole, the Board “shall approve” parole upon a determination that the offender’s reentry
plan is “adequate” and that there is no reasonable indication of the offender posing a risk to
public safety. 61 Pa.C.S. § 6137(g)(4).
Probationers and parolees are subject to general and individual rules of conduct and
supervision described at sentencing and/or in the parole agreement. Wilson v. Marrow,
917 A.2d 357, 363 (Pa. Cmwlth. 2007); see 42 Pa.C.S. § 9754 (order of probation); 61
Pa.C.S. § 6141 (general and specific rules for parolees); 37 Pa. Code §§ 63.4-63.5; 65.4-
65.6; 67.1-67.3 (conditions of parole). For probationers, the order at sentencing may
incorporate conditions to “reside in a facility established for the instruction, recreation, or
residence of persons on probation,” to meet family responsibilities, to obtain employment,
and to attend a drug rehabilitation program. 42 Pa.C.S. § 9754(c). The purpose of Section
9754 of the Sentencing Code is to “insure [sic] or assist the defendant in leading a lawabiding
life.” 42 Pa.C.S. § 9754(b). Similarly, parolees must have their residence
approved by the Board at release, live there, and not change residence without written
permission from the parole supervision staff. 37 Pa. Code § 63.4(2). Other requirements
4 According to the Parole Code, the Board and other paroling entities are also to
consider parole guidelines articulated by the Pennsylvania Commission on Sentencing. 61
Pa.C.S. §§ 6134.1(c), 6102(3); see 42 Pa.C.S. § 2154.5. The General Assembly tasked
the Commission to adopt such guidelines in 2009. Act No. 81 of Sept. 25, 2008, P.L. 1026,
§ 4, effective in 60 days. But, the Commission has yet to publish guidelines, and the Board
has utilized its own informal parole rules since at least 1981. Timothy P. Wile, Parole
guidelines, 12 WEST’S PA. PRAC., Law of Probation & Parole § 8:13 (2010 ed.). See, e.g.,
Appellees’ Brief at 5 (citing Board’s pamphlet “State Parole and Parole Release Plans:
What Inmates and their Families Need to Know,” which provides restrictions on residency
of sex offenders within two blocks of a playground, school, or day care facility).
[J-79-2010] - 6
include maintaining regular contact with supervisory staff, and refraining from violating
criminal laws, from using or possessing illegal drugs, and from owning or possessing
weapons. 37 Pa. Code §§ 63.4(3)-(5); 65.4(3)-(5).5
In this comprehensive legal context, the political subdivision at issue, Allegheny
County (the “County”) amended its County Code to add a new chapter entitled “Residence
Requirements; Registered Sex Offenders,” which became effective March 1, 2008. In
relevant part, the Ordinance states:
It shall be unlawful for any Sex Offender to establish a
Permanent Residence or Temporary Residence within 2,500
feet of any Child Care Facility, Community Center, Public Park
or Recreational Facility, or School for the duration of his or her
registration under the terms of Megan’s Law, 42 P[a.C.]S. §
9791 et seq.
Ordinance § 275-02(A) (Residency Restriction/Prohibition). “Sex Offender” is defined to
include all Megan’s Law registrants. Ordinance § 275-01 (definitions). According to the
Ordinance, upon determining that a Megan’s Law registrant resides within the prohibited
area, s/he will be notified of the violation and will have forty-five (45) days to move from his
or her residence to a new location, which complies with § 275-02(A). Ordinance § 275-
03(A)-(B). With limited exceptions, each day beyond the forty-five (45) day grace period
that the sex offender resides in a prohibited location constitutes a separate violation of the
Ordinance. Ordinance § 275-03(C); § 275-04 (exceptions); § 275-05 (exemptions).
Violation of the Ordinance constitutes a summary offense subject to a maximum term of
imprisonment of forty-five (45) days and a fine of up to $500, plus the costs of prosecution.
Ordinance § 275-07 (penalties). According to the County, the purpose of the Ordinance is
5 The Board’s regulations also provide that the released offender must “[c]omply with
municipal, county, State and Federal criminal statutes, as well as the Vehicle Code and the
Liquor Code.” 37 Pa. Code §§ 63.4(4); 65.4(4).
[J-79-2010] - 7
“to augment the provisions of Pennsylvania’s Megan’s Law and [to] better provide for safety
of the County’s residents.”
In adopting the Ordinance, the Allegheny County Council made several legislative
findings based on a 2007 report of the Pennsylvania Attorney General regarding Megan’s
Law compliance, a 2003 U.S. Department of Justice publication on sex offender recidivism,
and similar reports from sister states. The Council also noted that Allegheny County was
joining many other municipalities to adopt sex offender residency restrictions. “White Oak
Borough became the first of the over 130 municipalities within Allegheny County to pass a
residency restriction within the last six months, and it appears that other municipalities are
considering the possibility as well.” Ordinance Preamble.
In relation to the Ordinance, the County published a map depicting the restrictions
on residency imposed by the Ordinance. According to the district court’s unchallenged
finding, “the vast majority of Allegheny County falls within the restricted zone, with
permissible areas generally confined to outlying, suburban communities such as Sewickley
Heights, Bell Acres, South Fayette, Collier, and West Deer. The map does not indicate the
topography of the permissible areas, nor whether residential housing is permitted or
available in them.” Fross v. County of Allegheny, 612 F. Supp. 2d 651, 653 (W.D. Pa.
2009).
Appellees Charles Fross, Shawn Czerwien, Charles Meter, Christopher Haigh, and
two unidentified parties (“appellees”) are all convicted sex offenders subject to the
registration requirements of Megan’s Law and the residency restrictions of the Ordinance.
On October 6, 2008, appellees filed suit in federal court against Allegheny County,
challenging the Ordinance on both federal and state law grounds. In relevant part,
appellees asserted that the Ordinance was preempted by the Sentencing Code and the
precursor to the current Parole Code, and requested a declaration that the Ordinance was
invalid, an order enjoining enforcement of the Ordinance, and payment of litigation costs
[J-79-2010] - 8
and attorneys’ fees.6 The County responded that the Ordinance was a permissible
exercise of its powers and valid.7
The Honorable Gary L. Lancaster of the U.S. District Court for the Western District of
Pennsylvania consolidated appellees’ requests for preliminary and merits relief, and
directed the parties to file cross-motions for summary judgment addressing only the state
law preemption issue. On March 20, 2009, Judge Lancaster granted appellees’ motion for
summary judgment, holding that the Ordinance was invalid pursuant to the doctrine of
conflict preemption. Fross, 612 F. Supp. 2d at 660.
The federal district court agreed with appellees and concluded that the Ordinance
was “an obstacle” to fulfilling the “full purposes and objectives” of Megan’s Law and of the
repealed precursor to the Parole Code. Fross, 612 F. Supp. 2d at 658. According to the
court, the Ordinance forbade what state law allowed and, therefore, conflicted with state
law “in terms of both policy and operational effect.” Id. The court based its conclusions on
findings: (1) that “[r]ehabilitation and reintegration depend on the creation and maintenance
of a stable environment and support system, close to family ties, employment, and
treatment options;” (2) that the Board denied the release on parole of “many” eligible
offenders because housing compliant with the Ordinance was not available; and (3) that a
sex offender seeking parole and approval of a “home plan” in Allegheny County was
subject to a different standard for release than similarly situated offenders in other parts of
the Commonwealth. Id. at 658-69 (citing G.H. v. Twp. of Galloway, 951 A.2d 221, 236 (N.J.
6 At the time appellees filed their federal action, probation and parole in Pennsylvania
were governed by Act 323 of August 6, 1941, P.L. 861, as amended. 61 P.S. §§ 331.1-
331.34a. That act was repealed and essentially reenacted in August 2009. See 61
Pa.C.S. § 101 Historical & Statutory Notes.
7 The County agreed to delay enforcement of the Ordinance pending resolution of this
case. Independently, however, the Board apparently has been requiring that residency
plans comply with the Ordinance. See Fross, 612 F. Supp. 2d at 652 n.1.
[J-79-2010] - 9
Super. 2008) (local sex offender residency ordinance preempted because New Jersey
Legislature intended to exclusively regulate field)). The district court noted that, currently,
the Board’s statewide policy is to reject the home plan of a sex offender whose victim was a
minor if the proposed residence was located within “two blocks” of a school, day care
center, or playground. But, the Allegheny County Ordinance adopted a residency
restriction which applied to all offenders, regardless of whether the victim was a minor, and
within a radius of 2,500 feet from any school, public park, community or recreational center,
and child care facility. Id. at 658. Judge Lancaster concluded that, by placing strict
restrictions on where sex offenders could reside, essentially prohibiting any sex offender
from living throughout most of Allegheny County, the Ordinance directly interfered with the
goals of the Parole Code’s precursor, namely inmate rehabilitation and reintegration,
avoidance of unnecessary incarceration, and the establishment of a uniform system of
supervising persons on parole and probation. According to the court, “[t]he conflict with
state law is evident: where the state has decided that the offender is ready to return to his
community, the County has placed a nearly insurmountable obstacle in the way of that
return.” Id. at 659.
The district court also underscored that the Ordinance was likely to have
ramifications throughout the state as neighboring communities reacted to a real or
perceived influx of “undesirable residents.” Id. at 660. According to Judge Lancaster, the
Ordinance and similar local regulations interfere with the proper functioning of the Board
and courts, and cumulatively could prevent the effective operation of the Commonwealth’s
probation and parole system. Id. Ultimately, the district court found that the Ordinance was
invalid and unenforceable.8
8 The district court rejected appellees’ alternative field preemption theory as
inapplicable on the ground that this Court, to date, has only recognized a legislative intent
(continued…)
[J-79-2010] - 10
The County appealed. In January 2010, a panel of the Third Circuit referred the
case for review to this Court, by petitioning for certification of the following legal question
involving Pennsylvania law:
Is Allegheny County Ordinance No. 39-07-[OR] entitled
“Residence Requirements; Registered Sex Offenders”
preempted by Pennsylvania statutory law and the procedures
of the Pennsylvania Board of Probation and Parole?
Petition for Certification at 15. The panel offered no opinion on whether it agreed with the
district court’s preemption conclusions. Third Cir. Op. at 11. On June 3, 2010, this Court
granted the Petition for Certification.
In its brief to this Court, the County argues that we should reject appellees’ various
theories of preemption and find the Ordinance valid.9 The County emphasizes its status as
a home rule county, whose locally-tailored legislation is entitled to deference. The County
claims that the Ordinance conflicts neither with Megan’s Law nor with the Parole Code.
According to the County, the Ordinance shares with the two statewide acts the goal of
protecting public safety, albeit by different means specific to the necessities and concerns
of Allegheny County. Thus, the County argues that the Ordinance regulates where sex
offenders may reside, a subject different from the concerns of Megan’s Law -- registration
and public notification. County’s Brief at 22 (quoting Commonwealth v. Williams, 832 A.2d
962, 973 (Pa. 2003) (Megan’s Law does “not significantly restrain registrants, who remain
‘free to live where they choose, come and go as they please, and seek whatever
(…continued)
to fully preempt local legislation in three areas: alcoholic beverages, banking, and
anthracite mining. 612 F. Supp. 2d at 654-55.
9 Although the question certified by the U.S. Court of Appeals for the Third Circuit
concerns the effect of the current legislative scheme on the Ordinance, the County has
inexplicably referenced the repealed act in its arguments. We, of course, answer only the
question properly before us, the question certified by the Third Circuit.
[J-79-2010] - 11
employment they may desire.’”). Similarly, with respect to the Parole Code, the County
claims that there is no conflict arising from the Ordinance because, although the Parole
Code grants the Board exclusive power over parole decisions and seeks to establish a
uniform statewide system of parole through detailed regulation, by its plain language, the
Ordinance does not seek “to regulate or intrude upon” these prerogatives. County’s Brief at
25 (citing 61 P.S. § 331.17).
The County also asserts that the parole legislative scheme and the Board’s
regulations generally cannot trump the well-established right of municipalities to adopt local
laws regarding the health, safety, and welfare of their residents. Id. at 28 (citing 37 Pa.
Code § 63.4(4) (offender must comply with municipal and county criminal statutes);
Commonwealth v. Ogontz Area Neighbors Ass’n, 483 A.2d 448 (Pa. 1984) (“Ogontz”) (state
agency must conform to local zoning scheme). Finally, the County concludes that the
Ordinance should be upheld as a mere supplement to existing statutes and as a valid
exercise of the County’s legislative power. According to the County, because the
Ordinance is a valid County Council action in response to a recognized health and safety
concern, we should direct the Board to operate within the regulatory environment created
by the Ordinance.
Appellees, however, urge this Court to find that the Ordinance interferes with the
purposes of the General Assembly in adopting Megan’s Law and the Parole Code and,
therefore, that it is invalid pursuant to the conflict preemption doctrine. Appellees
emphasize that the supervision of sex offenders on probation and parole is highly regulated
in Pennsylvania through comprehensive and detailed statutes. According to appellees,
Megan’s Law, “expressly contemplates residency by sex offenders within residential
neighborhoods and proximate to schools and day care facilities following assessment and
with monitoring, treatment[,] and notification.” Appellees’ Brief at 26. The release into the
community of sex offenders is based on individualized assessments by criminal justice and
[J-79-2010] - 12
mental health professionals, and is controlled down to “every aspect of [the offenders’]
existence, including specifically where they may or may not live.” Appellees’ Brief at 17,
25.10 The Board’s policy is to prohibit sex offenders whose victims were minors from living
within two blocks of the same schools and day care centers; but, the County created a
restriction that vastly exceeds in scope the Board’s prohibition. According to appellees, the
County usurps the Board’s power to approve a sex offender’s residence by essentially
excluding all sex offenders from Allegheny County and thus limiting the discretion of courts
and of the Board in sentencing and paroling, or in exempting a sex offender from
notification requirements where appropriate. According to appellees, the Ordinance
essentially prohibits residency in areas of Allegheny County that state law allows and
“unduly” restricts the liberty of sex offenders on parole. Appellees claim the Ordinance is a
blunt instrument that fails to take into account individual circumstances and the professional
judgment of experts who assess individual sex offenders and their residency requirements.
Moreover, appellees argue that the Ordinance thwarts the express purposes of the
Sentencing and Parole Codes to ensure public safety, the rehabilitation and integration of
sex offenders in the community, and a reduction in the prison population. Appellees note
that greater access to treatment, employment, family, and other familiar community
supports are generally identified with a decreased risk of recidivism and successful
rehabilitation and reintegration of sex offenders into the community. But, the Ordinance
deprives sex offenders seeking to return to Allegheny County of these advantages by
“single-mindedly focusing on excluding sex offenders from living in the most habitable
portions of the County.” Appellees’ Brief at 29 (citing 61 Pa.C.S. § 6102(1)). Appellees
10 The Association for the Treatment of Sexual Abusers (“ATSA”) filed an amicus
curiae brief on behalf of appellees. ATSA essentially reasserts appellees’ arguments,
claiming among other things that residency of offenders is a critical matter in probation and
parole decisions, with which individuals counties should not be permitted to interfere.
ATSA Brief at 11, 14.
[J-79-2010] - 13
conclude that, although allegedly intended to reinforce the Commonwealth’s objective of
ensuring public safety, the Ordinance in actuality has the opposite effect. Id. at 31 (citing
G.H., 951 A.2d at 236). According to appellees, the Ordinance conflicts with both the
ameliorative approach of the General Assembly and its goal of protecting the public.
Further, by blocking efforts to release and reintegrate sex offenders into the community, the
Ordinance interferes with the Board’s duty to divert appropriate offenders from prison and
to administer parole release “in an efficient and timely manner.” Id. (citing 61 Pa.C.S. §
6102(3)).
Finally, appellees contend that the Ordinance is not legislation legitimately targeted
toward specific local concerns and they reject any suggestion that, pursuant to Ogontz,
supra, the Ordinance is not subject to preemption. Id. at 21, 27-28 (citing G.H., 951 A.2d at
226; City of Northglenn v. Ibarra, 62 P.3d 151, 156 (Colo. 2003) (local ordinance
preempted because “state’s interest in fulfilling its statutory obligations to place and
supervise delinquent children in state-created foster care families in a uniform manner
overrides any city interest in regulating land uses”). Appellees also insist that the Board did
not relinquish any statutory authority by adopting Regulation 63.4(4), which directs parolees
to comply with municipal and county criminal codes. According to appellees, the Ordinance
is a local public safety regulation inconsistent with the comprehensive state legislative
scheme and it is, therefore, invalid. Id. at 33-34 (citing Range Res. Appalachia, LLC v.
Salem Twp., 964 A.2d 869 (Pa. 2009)).11
11 The parties also argue, and disagree on, whether the Ordinance is invalid pursuant
to the field preemption doctrine. Thus, appellees argue that the general tenor of the Parole
Code reflects a legislative intention that it should not be supplemented at a local level.
According to appellees, the General Assembly directed the Board to promulgate
regulations establishing “uniform Statewide standards” for supervision of probationers
governing every aspect of an offender’s life, including residency, and provided the Board
“exclusive power” over the parole system. Appellees also emphasize a “special need for
uniformity” in the areas of probation and parole. In response, the County argues that there
(continued…)
[J-79-2010] - 14
The application of the doctrine of preemption to invalidate Allegheny County’s
Ordinance raises a pure question of law. Our review of a question of law certified by the
U.S. Court of Appeals for the Third Circuit is plenary. Official Comm. of Unsecured
Creditors of Allegheny Health Educ. & Research Found. v. PriceWaterhouseCoopers, LLP,
989 A.2d 313, 327 (Pa. 2010).
Pennsylvania counties are creations of the state with no powers of their own, except
those powers expressly granted to them by the Constitution of the Commonwealth or by the
General Assembly, and other authority implicitly necessary to carry into effect those
express powers. Huntley & Huntley, Inc. v. Borough Council of Borough of Oakmont, 964
A.2d 855, 862 (Pa. 2009) (“Huntley”) (citing City of Phila. v. Schweiker, 858 A.2d 75, 84
(Pa. 2004)). Pursuant to the Constitution, counties may frame and adopt home rule
charters. PA. CONST. Art. IX, § 2 (municipalities may adopt home rule), § 14 (municipality
includes county). Any county which has adopted a home rule charter has the general
authority to adopt ordinances “as may be required” and “may exercise any power and
perform any function not denied by this Constitution, by its home rule charter or by the
General Assembly at any time.” PA. CONST. Art. IX, § 2; 53 Pa.C.S. § 2961 (general
(…continued)
is no precedent for finding field preemption with respect to the regulation of probation and
parole, and that this Court has only recognized field preemption with respect to regulation
of alcoholic beverages, banking, and anthracite mining. Because we conclude that the
Ordinance is preempted pursuant to the conflict preemption doctrine -- which was the
ground for decision of the District Court -- we do not reach the issue of field preemption and
express no opinion as to its operation here.
Similarly, we decline the invitation to decide the County’s claim that, because the
Ordinance is not preempted, this Court must view it “under rational basis” review.
According to the County, the Ordinance is an appropriate exercise of the County’s police
powers in response to the safety and health risk that sex offenders pose to the public at
large. County’s Brief at 32 (citing Conn. Dep’t of Public Safety v. Doe, 538 U.S. 1, 4
(2003)). To the extent that this argument regarding the constitutionality of the Ordinance is
developed, it is not within the scope of our certification order and we will not address it.
[J-79-2010] - 15
powers of home rule municipalities), § 2901 (part applies to all municipalities except
Philadelphia).
Although liberally construed in favor of the county, the grant of power to a home rule
county is not absolute. Holt’s Cigar Co. v. City of Phila., 10 A.3d 902, 907-08 (Pa. 2011)
(“Holt’s”); Nutter v. Dougherty, 938 A.2d 401, 411 (Pa. 2007); see 53 Pa.C.S. § 2961. Acts
of the General Assembly may circumscribe, either expressly or impliedly, the power of a
home rule county to legislate in a particular arena, which may give rise to conflicts between
local and statewide legislation. 53 Pa.C.S. § 2961 (county to exercise power not denied
“by statute”). The preemption doctrine has developed to establish “a priority between
potentially conflicting laws enacted by various levels of government.” Huntley, 964 A.2d at
862. Preemption may be express or implied, in the form of field or conflict preemption.
Nutter, 938 A.2d at 411.
This Court recently addressed the doctrine of conflict preemption in Holt’s. Although
sharply divided on the outcome, the entire Court agreed that a local ordinance is invalid if it
stands “as an obstacle to the execution of the full purposes and objectives” of the General
Assembly, as expressed in a state law. Holt’s, 10 A.3d at 907; accord id. at 917 (Castille,
C.J., joined by Todd, J. and Orie Melvin, J., dissenting).12 To determine whether the county
has created such an obstacle, we assess the effect of the challenged ordinance on the
proper functioning and application of the state enactment. See Holt’s, 10 A.3d at 907;
accord Cellucci v. Gen. Motors Corp., 706 A.2d 806, 810 (Pa. 1998) (federal preemption
case; “stands as an obstacle” means state law interference with “methods” by which federal
statute was designed to reach its goal) (quoting Int’l Paper Co. v. Ouellette, 479 U.S. 481,
12 A local ordinance may also be preempted if it is in direct and irreconcilable conflict
with a state enactment, i.e., if simultaneous compliance with both the local and state
enactments is impossible. See, e.g., Mazzo v. Bd. of Pensions & Retirement, 611 A.2d
193, 195-97 (Pa. 1992) (invalidating ordinance that inserted additional requirement and
prohibited reinstatement of pension benefits on conditions devised by state).
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494 (1987)). If the local ordinance impedes the operation of the state statute, the
ordinance is preempted. County legislation tailored to the particular locality is permitted, if
the enactment merely aids and furthers the goals of the state statute. Holt’s, 10 A.3d at
907 (quoting Mars Emergency Med. Servs., Inc. v. Twp. of Adams, 740 A.2d 193, 195 (Pa.
1999) (“Mars EMS”)); id. at 918 (Castille, C.J., joined by Todd, J. and Orie Melvin, J.,
dissenting) (same). But, “local legislation cannot permit what a state statute or regulation
forbids or prohibit what state enactments allow.” Huntley, 964 A.2d at 862; see Mars EMS,
740 A.2d at 195 (local ordinance is invalid to extent it contradicts or is inconsistent with
state statute).
The parties agree here that neither the Sentencing Code nor the Parole Code
expressly prohibits the County from adopting ordinances with respect to released sex
offenders. Further, there is no dispute that the County’s authority to adopt local legislation
must be liberally construed. But, even construed in the most liberal light, the Ordinance
here clearly interferes with the statewide operation of the Sentencing and Parole Codes
and with the General Assembly’s policies in these arenas.
The General Assembly has expressly listed among its purposes for adopting the
Sentencing and Parole Codes the rehabilitation, reintegration, and diversion from prison of
appropriate offenders. See 42 Pa.C.S. §§ 9721(b) (court to consider rehabilitative needs of
defendant in determining sentence); 9754(c) (court to impose conditions of probation that
assist defendant in leading law-abiding life); 61 Pa.C.S. § 6102(1); accord Morrissey v.
Brewer, 408 U.S. 471, 484 (1972) (“Society has a stake in whatever may be the chance of
restoring [a parolee] to normal and useful life within the law.”); Commonwealth v. Walton,
397 A.2d 1179, 1184 (Pa. 1979) (“conditions of probation, though significant restrictions on
the offender’s freedom, are primarily aimed at effecting, as a constructive alternative to
imprisonment, his rehabilitation and reintegration into society as a law-abiding citizen”);
Commonwealth v. Basinger, 982 A.2d 121, 128 (Pa. Super. 2009) (conditions of probation
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“must be constructive measures directed at rehabilitation through behavioral modification”).
The General Assembly has made a determination that Megan’s Law registrants/sex
offenders, as a class, are eligible for parole and may benefit from these Commonwealth
policies. See 61 Pa.C.S. § 6137(a)(1) (subject to conditions, Board may release on parole
any inmate except “inmate condemned to death or serving life imprisonment”); accord
Poulson v. Pa. Bd. of Prob. & Parole, --- A.3d ---, --- (Pa. 2011) (per curiam); see, e.g.,
Nieves v. Bd. of Prob. & Parole, 995 A.2d 412 (Pa. Cmwlth. 2010). The primary means of
implementing this policy is to offer released sex offenders, like other offenders, familiar and
stable environments, i.e., promote family and community ties, and provide access to
employment, counseling, and supervision. 42 Pa.C.S. § 9754(c); 37 Pa. Code § 63.1(d);
see, e.g., Worthington v. Bd. of Prob. & Parole, 784 A.2d 275, 276 (Pa. Cmwlth. 2001)
(parolee released to community corrections center “for a minimum period of six months and
until his home, employment and drug/alcohol treatment stabilized”); Commonwealth v.
Sharpe, 665 A.2d 1194, 1196-97 (Pa. Super. 1995) (probation was conditional “upon
[probationer] living with his brother, obtaining employment and attending a drug treatment
program”); McCauley v. Bd. of Prob. & Parole, 510 A.2d 877, 879 nn. 4-7 (Pa. Cmwlth.
1986) (parolee’s conditions for release included attending marriage counseling, drug and
alcohol abuse therapy, weekly notifications to parole office of employment status, living at
address approved by Board, and regularly reporting to parole officer).
The Ordinance fails to acknowledge, and effectively subverts, these goals of the
General Assembly. The Ordinance banishes many sex offenders from their preadjudication
neighborhoods and support systems. The Ordinance also consigns all
offenders to isolated suburban areas of Allegheny County that presumably will provide less
access to transportation, employment, counseling, and supervision. Moreover, it is not
even apparent, from the record provided, whether there is appropriate residential housing
available in the areas to which registrants would be banished; what we do know is that
[J-79-2010] - 18
those areas, even if residential, are isolated from other aspects of most residential
communities, such as parks and community and recreation centers. The Ordinance
appears to attempt to ensure public safety, in certain parts of Allegheny County, by
isolating all Megan’s Law registrants in localized penal colonies of sorts, without any
consideration of the General Assembly’s policies of rehabilitation and reintegration.
In formulating its Ordinance, the County also disregarded the General Assembly’s
preference for balancing the best interests of the public and of the offender with respect to
the offender’s release on probation or parole. Although public safety may be the weightier
issue in the calculation of the General Assembly, see 42 Pa.C.S. § 9791(a)(2) and 61
Pa.C.S. § 6102(2), it is not preferred to the exclusion of all other interests which may be
reasonably accommodated. SeeWalton, supra. Even Megan’s Law, which addresses sex
offenders specifically, does not single out these offenders for a heightened standard of
release on probation or parole. The County, however, rejected any balancing approach in
favor of a policy of exclusion and isolation.
The Ordinance also discounts the General Assembly’s policy determination to
facilitate diverting offenders from prison and the Commonwealth’s interest in the timely and
effective administration of probation and parole. See 42 Pa.C.S. § 9791(a)(5); 61 Pa.C.S.
§ 6102(1), (3). Thus, the County’s residency restrictions limit the options available to sex
offenders in designing adequate plans upon release for approval by sentencing courts or
the Board. For example, a sex offender who has a strong family support structure in
Pittsburgh may well have difficulty devising a plan for parole that would both meet the
restrictions of the Ordinance and the Board’s criteria for an adequate release plan.
Considerations of whether the sex offender can meet family responsibilities and receive
family support in return are often weighty in formulating a plan for release. These
relationships contribute to emotional and financial stability, as family may assist the
offender in seeking and maintaining employment and attending counseling. See, e.g.,
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Commonwealth v. Sheridan, 502 A.2d 694, 696 (Pa. Super. 1985) (in resentencing inmate
to probation, trial court highlighted that: “(1) Appellee has a supportive family; (2) Appellee
has an eight year old child, with special medical needs, to support; (5) Appellee’s remorse
for her involvement with drugs and her fear of losing custody of her child would act as
deterrents to future misconduct.”).
The added level of difficulty in devising adequate plans for release in this one
County following the adoption of the Ordinance will likely equate to either probation or
parole being granted under conditions less likely to maximize rehabilitation and
reintegration potential, additional, and significant delays in processing the release of eligible
offenders, or a greater number of otherwise eligible offenders simply being denied parole.
See, e.g., Nieves, 995 A.2d at 415 & n.2 (Board may postpone release on parole pending
available opening for residency at community corrections center, part of parolee’s approved
home plan). Where either probation or parole is granted, the placement of a large number
of offenders in fewer and sparsely populated areas of a County is also likely to overtax
available resources in those areas and decrease the quality of services. It cannot be
seriously disputed that the Ordinance will interfere with the “efficient and timely”
administration of the parole system and significantly affect the quality of the
Commonwealth’s probation and parole systems. See 61 Pa.C.S. §§ 6102(3); 6131(a)(5).
These administrative deficiencies may well also produce an unintended effect of
threatening public safety, by depriving sex offenders of access to resources which have
been shown to reduce the risks of recidivism. The Ordinance, therefore, inhibits the
accomplishment of the General Assembly’s administrative policies in addition to its goals of
rehabilitation and reintegration.
The Ordinance relatedly obstructs the operation of the Sentencing and Parole Codes
in several respects. First, although acknowledging the high risk of recidivism among sex
offenders, the General Assembly has generally rejected the option of simply excluding
[J-79-2010] - 20
released offenders from entire communities as the primary or even preferable means of
protecting the public. 42 Pa.C.S. § 9791(a)(2), (b). The General Assembly adopted
instead a calibrated regulatory scheme of registration, notification, and counseling for sex
offenders -- Megan’s Law. See 42 Pa.C.S. §§ 9795.1, 9795.2, 9797, 9798, 9798.1, 9799.4.
Residency restrictions are not excluded but they play a far more limited role in the state’s
legislative scheme than in the scheme adopted by the Ordinance. Thus, the Board’s
guidelines prohibit a Megan’s Law registrant whose victim was a minor from residing within
two blocks from a school, playground, or day care center.
Generally, however, sentencing courts and the Board assess individual sex
offenders (like all other offenders) regarding their suitability for probation or parole, and
impose conditions tailored to the offender. See Walton, 397 A.2d at 1184 (courts “are
traditionally and properly invested with a broader measure of discretion in fashioning
conditions of probation appropriate to the circumstances of the individual case”); Sheridan,
502 A.2d at 696 (“sentences must be imposed individually, taking into account not only the
offense but the characteristics of the offender”); see, e.g., Woodling v. Bd. of Prob. &
Parole, 537 A.2d 89, 89 (Pa. Cmwlth. 1988) (sex offender whose victim was a minor was
subject to condition of probation “that he not associate with minors (under age eighteen)
who were not close relatives (first degree) without his parole agent’s prior approval”). For
example, a parolee’s residency is subject to approval by the paroling entity; and
probationers may be required to live in a facility established for probationers. 37 Pa. Code
§ 63.4(2); 42 Pa.C.S. § 9754(c)(5); see, e.g., Worthington, supra. The Ordinance,
however, establishes a blanket prohibition against residency within 2,500 feet of “places
where children congregate,” on all Megan’s Law registrants. Moreover, the Ordinance
minimizes all Megan’s Law registrants’ contact with children, regardless of whether the
offender’s victim was a minor or the offender is determined to be a threat to minors. The
Ordinance would thus obstruct the operation of the statewide statutory scheme by requiring
[J-79-2010] - 21
courts and the Board to abandon the tailored and proportionate approach of the General
Assembly and attempt to devise new approaches that would satisfy the County’s widerreaching
restrictions. To stand down to the Ordinance, in essence, is to allow the County
to “opt-out” of the statewide plan.
The County nonetheless would have it that the Ordinance, by its plain terms, neither
interferes with the probation and parole systems of the Commonwealth nor touches upon
the operative clauses of Megan’s Law, which provide solely for the registration of sex
offenders and public notification. The main thrust of the County’s argument is that the
Ordinance is an exercise of its home rule powers to devise legislation tailored to the public
health, safety, and welfare of its inhabitants. According to the County, its Ordinance merely
regulates where Megan’s Law registrants may reside and “augments” the statute in
response to local concerns. But, the County’s assessment is implausible. The County’s
legislative findings merely amount to a reiteration of the General Assembly’s conclusions in
relation to Megan’s Law supplemented by various generalized references to national,
statewide, and out-of-state (i.e., Minnesota and Arizona) studies, none of which identify
Allegheny County-specific concerns. In this instance, the General Assembly has already
weighed in on the policy priorities of the Commonwealth with respect to the reintegration of
offenders, including sex offenders, and has devised an approach for how to best
accomplish them. The County reveals no countervailing local concerns to justify its attempt
to opt-out of the General Assembly’s overall scheme of balancing public safety and the
offenders’ best interests, from its policies of rehabilitation, reintegration, and diversion from
prison, or from the means by which the Legislature sought to promote these policies.
Moreover, the County fails to articulate a cogent argument to support its claim that
the Ordinance somehow “aid[s] and further[s]” the public safety goal of Megan’s Law.
Thus, the County provides no explanation why broad exclusions of sex offenders from
population centers are preferable, in Allegheny County, to the statewide individually-tailored
[J-79-2010] - 22
residency plus registration--notification--counseling requirements of the General Assembly.
See, e.g., Dep’t of Licenses & Inspections v. Weber, 147 A.2d 326 (Pa. 1959) (stricter
regulation of beauty salons in Philadelphia appropriate because ensuring “health, safety,
welfare, and comfort of dwellers in urban centers” posed special challenges compared to
rest of state). Indeed, similarly to the district court, we are persuaded by the appellees’
arguments that the County’s Ordinance interferes with the goal of Megan’s Law to reduce
recidivism among sex offenders and improve public safety. Isolating all sex offenders from
their communities, support systems, employment, and treatment is an approach contrary to
that of the General Assembly, which requires individually tailored assessments and
assistance with rehabilitation and reintegration for appropriate offenders. The Ordinance
chooses the importance of residency over all other considerations expressly incorporated
into the probation and parole scheme by the General Assembly. And, finally, it is not hard
to imagine the effect on the statewide legislative scheme if all counties were to adopt
similar residency restrictions. The statewide scheme would be eviscerated.13
13 Wealso reject the County’s secondary argument premised on the notion that parole
regulations require offenders to abide by local ordinances. County’s Brief at 28-29 (citing
37 Pa. Code § 63.4(4)). Regulation 63.4(4) states that if parole is granted, the parolee
shall “[c]omply with municipal, county, State and Federal criminal statutes, as well as the
Vehicle Code and the Liquor Code.” The County suggests that the regulation gives the
Ordinance validity by recognizing that the Board does not have “blanket authority to
override validly enacted local laws dealing with local health, safety and welfare.” Id. at 28
(citing Ogontz, 483 A.2d 448). Setting aside the issue of whether the Ordinance is criminal
legislation (and also any Apprendi concerns), the County’s argument is not persuasive.
See Commonwealth v. Lee, 935 A.2d 865, 873 (Pa. 2007) (citing Apprendi v. New Jersey,
530 U.S. 466 (2000) (statutory scheme that is punitive in purpose or effect entitles
defendant to full panoply of due process protections)). In Ogontz, this Court held that a
Commonwealth agency was permitted to acquire property but the agency’s use of the
property as a mental health facility was subject to the municipality’s zoning ordinance.
Ogontz, 483 A.2d at 455. The Court explained that the contest in Ogontz was “between
two [equal] instrumentalities of the state,” the Commonwealth agency and a home rule
municipality. Id. at 452. Here, however, the direct conflict is between the General
(continued…)
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