          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Arthur W. McElyea,                             :
                                               :
                              Petitioner       :
                                               :
               v.                              :    No. 539 M.D. 2014
                                               :
The Pennsylvania State Police of the           :    Argued: September 16, 2015
Commonwealth of Pennsylvania,                  :
                                               :
                              Respondent       :



BEFORE:        HONORABLE DAN PELLEGRINI, President Judge1
               HONORABLE BERNARD L. McGINLEY, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE MARY HANNAH LEAVITT, Judge2
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER3                                    FILED: January 14, 2016

      Before this Court in our original jurisdiction are the Preliminary Objections
(POs) in the nature of a demurrer of the Pennsylvania State Police (PSP) to Arthur

      1
         This case was assigned to the opinion writer on or before December 31, 2015, when
President Judge Pellegrini assumed the status of senior judge.

      2
          This case was assigned to the opinion writer before January 4, 2016, when Judge
Leavitt became President Judge.

      3
          This matter was reassigned to the authoring judge on December 8, 2015.
W. McElyea’s (Petitioner) “Amended Petition for Review in the Nature of a Writ
of Mandamus Seeking to Compel the [PSP] to Change Petitioner’s Sexual
Offender Registration Status in Accordance with the Law Addressed to the Court’s
Original Jurisdiction” (Petition for Review). Petitioner alleges that the current
registration and internet notification requirements imposed upon him by the Sexual
Offender Registration and Notification Act (SORNA)4 are unconstitutional.
According to Petitioner’s allegations, SORNA infringes on his protected right to
reputation without due process of law and is an ex post facto law because it
retroactively increases his registration period and, unlike previous enactments of
the law commonly referred to as Megan’s Law,5 provides no means of relief from


       4
          Sections 9799.10-9799.41 of the Sentencing Code, 42 Pa. C.S. §§ 9799.10-9799.41.
Courts have also referred to SORNA as the Adam Walsh Act. SORNA is the General
Assembly’s fourth iteration of the law commonly referred to as Megan’s Law. Megan’s Law I,
the Act of October 24, 1995, P.L. 1079 (Spec. Sess. No. 1), was enacted on October 24, 1995,
and became effective 180 days thereafter. Megan’s Law II was enacted on May 10, 2000 in
response to Megan’s Law I being ruled unconstitutional by our Supreme Court in
Commonwealth v. Williams, 733 A.2d 593 (Pa. 1999). Our Supreme Court held that some
portions of Megan’s Law II were unconstitutional in Commonwealth v. Gomer Williams, 832
A.2d 962 (Pa. 2003), and the General Assembly responded by enacting Megan’s Law III on
November 24, 2004. The United States Congress expanded the public notification requirements
of state sexual offender registries in the Adam Walsh Child Protection and Safety Act of 2006,
42 U.S.C. §§ 16901-16945, and the Pennsylvania General Assembly responded by passing
SORNA on December 20, 2011 with the stated purpose of “bring[ing] the Commonwealth into
substantial compliance with the Adam Walsh Child Protection and Safety Act of 2006.” 42 Pa.
C.S. § 9799.10(1). SORNA went into effect a year later on December 20, 2012. Megan’s Law
III was also struck down by our Supreme Court for violating the single subject rule of Article III,
Section 3 of the Pennsylvania Constitution. Commonwealth v. Neiman, 84 A.3d 603, 616 (Pa.
2013). However, by the time it was struck down, Megan’s Law III had been replaced by
SORNA.

       5
           Section 9795.5(a)(1) of Megan’s Law III, 42 Pa. C.S. § 9795.5(a)(1) (expired
December 20, 2012, pursuant to 42 Pa. C.S. § 9799.41), provided certain sexual offenders with
the right to petition sentencing courts to exempt them from the internet notification provision of
                                                                                  (Continued…)
                                                2
being listed on the PSP’s public website. The PSP objects, in five POs, to the
Petition for Review by alleging that Petitioner has failed to state a claim. For the
reasons set forth in this Court’s opinion in Taylor v. The Pennsylvania State Police,
___A.3d___ (Pa. Cmwlth., No. 532 M.D. 2014, filed January 12, 2016) (en banc),
which involved almost identical claims and POs, we sustain the POs in part and
overrule the POs in part.


       Petitioner was convicted of Indecent Assault of Person Less Than 13 Years
of Age6 and Corruption of Minors7 in 2002, “resulting in a sentence of eleven and a

Section 9798.1 of Megan’s Law III, 42 Pa. C.S. § 9798.1 (expired December 20, 2012, pursuant
to 42 Pa. C.S. § 9799.41), which

       provided [that] no less than 20 years have passed since the individual has been
       convicted in this or any other jurisdiction of any offense punishable by
       imprisonment for more than one year, or the individual’s release from custody
       following the individual’s most recent conviction for any such offense, whichever
       is later.

42 Pa. C.S. § 9795.5(a)(1).

       6
         Section 3126(a)(7) of the Crimes Code, 18 Pa. C.S. § 3126(a)(7). This offense is
defined as

       [a] person is guilty of indecent assault if the person has indecent contact with the
       complainant, causes the complainant to have indecent contact with the person or
       intentionally causes the complainant to come into contact with seminal fluid,
       urine or feces for the purpose of arousing sexual desire in the person or the
       complainant and: . . . (7) the complainant is less than 13 years of age.

Id.

       7
           Section 6301(a) of the Crimes Code, 18 Pa. C.S. § 6301(a). The offense is defined as:

       (1) (i) Except as provided in subparagraph (ii), whoever, being of the age of 18
       years and upwards, by any act corrupts or tends to corrupt the morals of any
                                                                                 (Continued…)
                                                 3
half (11½) to twenty-three (23) months incarceration and three years of probation.”
(Petition for Review ¶ 3.) The law in effect at the time of Petitioner’s sentencing,
Megan’s Law II, required Petitioner to register as a sexual offender for ten years
and Petitioner began registering as a sexual offender with the PSP in March 2004.
(Petition for Review ¶¶ 4-6.) On December 3, 2012, Petitioner was notified by the
PSP that, as a result of the enactment of SORNA, he was now classified as a Tier
III offender and was required to register as a sexual offender for life, register four
times each year, and have his registration information placed on the PSP’s website
for life. (Petition for Review ¶ 8.)


      Petitioner filed his initial Petition for Review on October 14, 2014 and filed
the amended version at issue here on January 27, 2015. Therein, Petitioner alleges
that: (1) SORNA is an ex post facto law as it retroactively increased the terms and

      minor less than 18 years of age, or who aids, abets, entices or encourages any
      such minor in the commission of any crime, or who knowingly assists or
      encourages such minor in violating his or her parole or any order of court,
      commits a misdemeanor of the first degree.

      (ii) Whoever, being of the age of 18 years and upwards, by any course of conduct
      in violation of Chapter 31 (relating to sexual offenses) corrupts or tends to corrupt
      the morals of any minor less than 18 years of age, or who aids, abets, entices or
      encourages any such minor in the commission of an offense under Chapter 31
      commits a felony of the third degree.

      (2) Any person who knowingly aids, abets, entices or encourages a minor younger
      than 18 years of age to commit truancy commits a summary offense. Any person
      who violates this paragraph within one year of the date of a first conviction under
      this section commits a misdemeanor of the third degree. A conviction under this
      paragraph shall not, however, constitute a prohibition under section 6105 (relating
      to persons not to possess, use, manufacture, control, sell or transfer firearms).

Id.

                                               4
period of his registration and imposes severe hardships upon him by placing him
on the PSP’s website with, unlike Megan’s Law III, no means to request exemption
from being listed on the website; (2) SORNA “is not tailored to meet the desired
government[al] interest” of protecting the population from recidivists; and (3)
SORNA infringes upon his constitutionally protected interest to reputation without
due process of law by utilizing an irrebuttable presumption that all sexual
offenders pose a high risk of re-offense that is not universally true and that
alternative means to assess sexual offenders’ recidivism risks exist. (Petition for
Review ¶¶ 9-12, 14-20.)         Petitioner seeks an order changing his registration
requirements, declaring that SORNA’s lifetime registration requirement is
unconstitutional, and exempting Petitioner from registering four times per year.
(Petition for Review, Wherefore Clause.)


       In its POs, the PSP first alleges that Petitioner has failed to state a claim
because SORNA applies to Petitioner and Petitioner was properly classified under
SORNA.8 (POs ¶¶ 27-36.) The PSP’s next two objections to the Petition for
Review, set forth in the same PO, are rooted in an understanding that Petitioner is
asserting a cause of action in mandamus.             (POs ¶¶ 37-48.)       The PSP’s first
objection in this regard alleges that mandamus will not lie against the PSP because
Petitioner’s claims are barred by the six month statute of limitations applicable to
these actions. The PSP cites to Curley v. Smeal, 41 A.3d 916, 919 (Pa. Cmwlth.
2012) (Curley I), aff’d but criticized sub nom., Curley v. Wetzel, 82 A.3d 418 (Pa.


       8
          Petitioner does not allege that SORNA does not apply to him or that he is improperly
classified. We shall, therefore, overrule this PO.



                                              5
2013) (Curley II), as standing for the proposition that actions against a government
officer “‘for anything he does in the execution of his office’” are subject to a six
month limitations period that begins to accrue “‘when the injury is inflicted and the
right to institute a suit for damages arises.’” (POs ¶ 38 (quoting Curley I, 41 A.3d
at 919).) According to the PSP, Petitioner’s right to institute a suit arose on
December 20, 2012, the date SORNA’s requirements became effective, and the
statute of limitations ran on June 20, 2013. (POs ¶¶ 41-42.) Because the instant
suit was originally filed on October 14, 2014, well after June 20, 2013, Petitioner’s
claims are barred by the six month statute of limitations. (POs ¶ 43.) The PSP’s
PO alleges, in the alternative, that even if Petitioner’s claims are not barred by the
statute of limitations, mandamus will not lie against the PSP because Petitioner
does not have a clear legal right to the relief sought, and the PSP lacks the duty and
authority to provide such relief. (POs ¶¶ 44, 46-47.)


      The PSP also objects to Petitioner’s constitutional challenges on their merits.
The PSP’s first allegation in this regard is that Petitioner has not stated a claim that
SORNA is an ex post facto law because the retroactive application of SORNA was
recently found to be non-punitive and constitutional by this Court in Coppolino v.
Noonan, 102 A.3d 1254 (Pa. Cmwlth. 2014), aff’d, __ A.3d __ (Pa., No. 132 MAP
2014, filed November 20, 2015) and by the Superior Court in Commonwealth v.
Perez, 97 A.3d 747 (Pa. Super. 2014). (POs ¶ 50.) Moreover, the PSP alleges that
previous versions of Megan’s Law were similarly upheld as non-punitive by the
Pennsylvania Supreme Court. See Commonwealth v. Gomer Williams, 832 A.2d
962 (Pa. 2003) (addressing Megan’s Law II); Commonwealth v. Gaffney, 733
A.2d 616, 621 (Pa. 1999) (addressing Megan’s Law I). (POs ¶ 51.)


                                           6
      The PSP demurs to Petitioner’s due process challenges under three theories.
First, the PSP alleges that the United States Supreme Court’s decision in
Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 8 (2003)
(Connecticut II), established that Petitioner does not have a procedural due process
right to challenge his registration requirement based on factors that “‘are [not]
relevant under the statutory scheme.’” (POs ¶¶ 53-59 (quoting Connecticut II, 538
U.S. at 8).) Alternatively, PSP alleges that “‘whether the additional sanctions
imposed under Megan’s Law II are punitive in nature is the threshold due process
inquiry.’” (POs ¶ 59 n.5 (quoting Gomer Williams, 832 A.2d at 970 n.13).)
Because this Court and the Superior Court, in Coppolino and Perez, respectively,
held that SORNA’s requirements are not punitive, Petitioner’s due process
challenge also fails. (POs ¶ 59 n.5.)


      Finally, the PSP alleges that SORNA’s irrebuttable presumption that all
sexual offenders required to register pose a high risk of recidivism poses no
constitutional concerns.    (POs ¶ 68.)       The PSP notes that the Pennsylvania
Supreme Court, in In re J.B., 107 A.3d 1 (Pa. 2014), recently struck down portions
of SORNA as applied to juvenile offenders, but alleges that the Supreme Court’s
holding in that case does not apply to adult sexual offenders. (POs ¶¶ 62-66.)
Furthermore, the PSP alleges that controlling authority from both the United States
and Pennsylvania Supreme Courts support the legislative finding that “‘[s]exual
offenders post a high risk of committing additional sexual offenses.’” (POs ¶ 67
(quoting Section 9799.11(a)(4) of SORNA, 42 Pa. C.S. § 9799.11(a)(4)).) The
PSP alleges that, because Petitioner cannot prove that it is not universally true that



                                          7
adult sexual offenders pose a high risk of recidivating, Petitioner’s due process
claims under the Pennsylvania Constitution fail as a matter of law. (POs ¶ 68.)


      We addressed and resolved nearly identical averments and corresponding
POs in Taylor9 and adopt the rationale set forth therein to resolve the POs in this
matter. In accordance with Taylor, we hold as follows: (1) the PSP’s PO in the
nature of a demurrer alleging that Petitioner failed to state a claim because
Petitioner is properly classified under SORNA is overruled; (2) the PSP’s PO in
the nature of a demurrer alleging that Petitioner’s claims are barred by the
applicable statute of limitations and that mandamus will not lie against the PSP
because the PSP is incapable of providing the relief requested is overruled; (3) the
PSP’s PO in the nature of a demurrer alleging that Petitioner has not stated a claim
challenging the internet notification provision set forth in Section 9799.28 of
SORNA, 42 Pa. C.S. § 9799.28, under the Ex Post Facto Clause of the
Pennsylvania Constitution is overruled; (4) the PSP’s PO in the nature of a
demurrer alleging, based on Connecticut II, that Petitioner does not have a right to
be heard on factual issues irrelevant to his classification status is overruled; (5) the
PSP’s PO in the nature of a demurrer alleging that Petitioner cannot state a due
process claim without first showing that the deprivation of his reputational interests
is punitive is overruled; (6) the PSP’s PO in the nature of a demurrer alleging that
Petitioner is incapable of proving that SORNA’s irrebuttable presumption is not
universally true and violates his procedural due process rights under the
Pennsylvania Constitution is overruled; (7) the PSP’s PO in the nature of a
demurrer to Petitioner’s substantive due process challenge under the Pennsylvania

      9
          The instant case was argued with Taylor and six other cases.

                                                8
Constitution is overruled; and (8) the PSP’s POs are sustained with regard to the
remainder of Petitioner’s claims and these claims are dismissed with prejudice.




                                         ________________________________
                                         RENÉE COHN JUBELIRER, Judge




                                         9
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Arthur W. McElyea,                      :
                                        :
                         Petitioner     :
                                        :
            v.                          :   No. 539 M.D. 2014
                                        :
The Pennsylvania State Police of the    :
Commonwealth of Pennsylvania,           :
                                        :
                         Respondent     :


                                      ORDER



      NOW, January 14, 2016, the Pennsylvania State Police’s (PSP) Preliminary
Objections to the Amended Petition for Review in the above-captioned matter are
OVERRULED, in part, and SUSTAINED, in part, as follows:


  (1) The PSP’s preliminary objection in the nature of a demurrer to the
      Amended Petition for Review alleging that Arthur W. McElyea
      (Petitioner) was properly classified under the Sexual Offender
      Registration and Notification Act (SORNA) is OVERRULED;


  (2) The PSP’s preliminary objection in the nature of a demurrer to the
      Amended Petition for Review alleging that the claims asserted are
      barred by the applicable statute of limitations is OVERRULED;
(3) The PSP’s preliminary objection in the nature of a demurrer to the
   Amended Petition for Review alleging that mandamus will not lie
   against the PSP is OVERRULED;


(4) The PSP’s preliminary objection in the nature of a demurrer to
   Petitioner’s ex post facto challenge to SORNA’s internet notification
   provision, 42 Pa. C.S. § 9799.28(a), under the Pennsylvania
   Constitution as set forth in the Amended Petition for Review is
   OVERRULED;


(5) The PSP’s two preliminary objections in the nature of a demurrer to
   Petitioner’s procedural due process challenges under the Pennsylvania
   Constitution in relation to SORNA’s irrebuttable presumption as set
   forth in the Amended Petition for Review are OVERRULED;


(6) The PSP’s preliminary objection in the nature of a demurrer to
   Petitioner’s substantive due process challenge under the Pennsylvania
   Constitution as set forth in the Amended Petition for Review is
   OVERRULED;


(7) The PSP shall file an Answer to Petitioner’s claims, set forth in
   Petitioner’s Amended Petition for Review, that SORNA violates
   procedural and substantive due process under the Pennsylvania
   Constitution, and that Section 9799.28(a) of SORNA is an ex post
   facto law under the Pennsylvania Constitution within thirty (30) days
   of the date of this Order;


(8) The PSP’s preliminary objections are SUSTAINED with regard to the
   remaining claims set forth in the Amended Petition for Review; and

(9) Petitioner’s   remaining    claims   are    DISMISSED        WITH
   PREJUDICE.


                                     ________________________________
                                     RENÉE COHN JUBELIRER, Judge
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Arthur W. McElyea,                         :
                          Petitioner       :
                                           :
                   v.                      :   No. 539 M.D. 2014
                                           :   Argued: September 16, 2015
The Pennsylvania State Police of the       :
Commonwealth of Pennsylvania,              :
                        Respondent         :


BEFORE:      HONORABLE DAN PELLEGRINI, President Judge
             HONORABLE BERNARD L. McGINLEY, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE MARY HANNAH LEAVITT, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED


CONCURRING AND DISSENTING
OPINION BY JUDGE LEADBETTER                    FILED: January 14, 2016


             For the reasons stated in Taylor v. Pennsylvania State Police (Pa.
Cmwlth., No. 532 M.D. 2014, filed January 12, 2016), I must respectfully dissent
in part from and concur in part in the decision of the majority.




                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Judge
