                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-23-2008

Doe v. PA Bd Probation
Precedential or Non-Precedential: Precedential

Docket No. 05-4200




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                                         PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ___________

                      No. 05-4200
                      ___________

                 JOHN DOE a/k/a D.T.C.

                            v.

 THE PENNSYLVANIA BOARD OF PROBATION AND
PAROLE; STATE POLICE COMMISSIONER JEFFREY B.
       MILLER; APPOINTED BOARD CHAIR
            CATHERINE C. MCVEY


Chairman of the Pennsylvania Board of Probation and Parole
Catherine C. McVey; Commissioner of the Pennsylvania State
                 Police Jeffrey B. Miller,
                        Appellants
                       ___________

      On Appeal from the United States District Court
         for the Eastern District of Pennsylvania

                   (D.C. No. 01-cv-03639)
       District Judge: The Honorable Louis H. Pollak
                        ___________
               ARGUED OCTOBER 4, 2006

               BEFORE: McKEE, AMBRO,
              and NYGAARD, Circuit Judges.


                  (Filed January 23, 2008)
                        ___________


Sue A. Unger, Esq. (ARGUED)
Office of the Attorney General of Pennsylvania
21 South 12th Street
Philadelphia, PA 19107

      Counsel for Appellants

Witold J. Walczak, Esq. (ARGUED)
American Civil Liberties Union
313 Atwood Street
Pittsburgh, PA 15213

John J. Kerrigan, Jr., Esq.
174 Middletown Boulevard
Suite C300
The Lofts at Oxford Valley
Langhorne, PA 19047

      Counsel for Appellee



                               2
                          __________

                  OPINION OF THE COURT
                       ___________


NYGAARD, Circuit Judge.

       John Doe, an anonymous plaintiff, sued under 42 U.S.C.
§ 1983, seeking declaratory and injunctive relief from aspects
of Pennsylvania's Registration of Sexual Offenders Act
("Megan's Law"), 42 P A. C ONS. S TAT. §§ 9791 et seq.
Pennsylvania's Megan's Law requires all convicted sex
offenders to register with state and local police, and subjects
certain offenders to community notification. The suit involves
the application of these requirements to a Pennsylvania resident
who was convicted of a sexual offense in New Jersey, and
sought to return to his home state to serve his parole. Under the
provisions of Pennsylvania's Megan's Law, any out-of-state sex
offender who transfers his supervision to Pennsylvania is subject
to community notification. By contrast, an individual who was
convicted of the same offense in Pennsylvania would only be
subject to community notification if, after a civil hearing, he had
been designated a "sexually violent predator due to a mental
abnormality or personality disorder that makes the person likely
to engage in predatory sexually violent offenses." 42 P A. C ONS.
S TAT. § 9792 (2000). The District Court concluded that the
disparate treatment of out-of-state offenders violates the Equal
Protection Clause of the Fourteenth Amendment to the
Constitution.     The Commonwealth of Pennsylvania has
appealed. We will affirm.

                                3
                                I.

        We have borrowed liberally from the well-stated factual
background section, and the carefully reasoned opinion of Judge
Pollak. See Doe v. McVey et al., 381 F.Supp.2d 443, 444-447
(E.D.Pa. 2005).      John Doe, a Pennsylvania resident, was
arrested for molesting an 11-year-old girl in New Jersey. He
pleaded guilty to second degree sexual assault and was
sentenced to five years' probation and parole supervision for life.
In the sentencing report, the New Jersey judge found that
“[d]efendant's sexual deviation is not compulsive nor repetitive
and it appears was the result of an intoxicated condition on the
evening of the offense” and that Doe was “unlikely to commit
another offense.”

       Ordinarily under New Jersey's Megan's Law, Doe would
then have a civil hearing to determine whether his likelihood of
recidivism was sufficiently substantial as to warrant his being
made a subject of community notification. However, because
Doe intended to return to Pennsylvania to complete his sentence,
New Jersey did not hold a community notification hearing. At
sentencing, Doe requested that his supervision be transferred to
Pennsylvania in accordance with the Interstate Compact
Concerning Parole and Probation (“the Compact”), 61 P A. S TAT.
A NN. § 324 (2002), to which both New Jersey and Pennsylvania
were signatories.1 Doe signed an “Application for Compact


       1.
       On June 19, 2002, the Interstate Compact for the
Supervision of Parolees and Probationers was repealed and
                                             (continued...)

                                4
Services and Agreement to Return,” consenting to some
differences in probationary supervision in the two states.2 Doe



       1.
         (...continued)
replaced by the Interstate Compact for the Supervision of Adult
Offenders, which provides for the “controlled movement of
adult parolees and probationers across state lines.” 61 P A. S TAT.
A NN.§ 324 (2002); N.J. S TAT. A NN. § 168-26 (2002). Both
compacts were approved by Congress. See 4 U.S.C. § 112 (“The
consent of Congress is hereby given to any two or more States
to enter into agreements or compacts for cooperative effort and
mutual assistance in the prevention of crime and in the
enforcement of their respective criminal laws and policies, and
to establish such agencies, joint or otherwise, as they may deem
desirable for making effective such agreements and compacts.”).


       2.
        The Commonwealth raised the issue whether Doe had
somehow waived his claim to the process afforded in-state
offenders when he applied for a transfer to Pennsylvania by
agreeing to comply with the conditions present in Pennsylvania.
The record makes clear that Doe was not informed that he would
be required to submit to community notification until several
months after he applied for the transfer and signed this
agreement. "Waivers of constitutional rights not only must be
voluntary but must be knowing, intelligent acts done with
sufficient awareness of the relevant circumstances and likely
consequences." Brady v. United States, 397 U.S. 742, 748
(1970). The District Court here found no waiver and neither do
                                                  (continued...)

                                5
was allowed to travel to Pennsylvania pending acceptance of his
application to transfer his probation.

        Upon receiving Doe's application, the Pennsylvania
Board of Probation and Parole held an equivalency hearing in
which it determined that, had Doe been convicted in
Pennsylvania, he would have been guilty of indecent assault. 18
P A. C ONS. S TAT. § 3126(a)(7) (2000). Where, as here, the
victim is under age thirteen, indecent assault constitutes a
misdemeanor in the first degree and is designated a “sexually
violent offense.” See 42 P A. C ONS.S TAT. §§ 9792, 9795.1(a)(1)
(2000).

       Doe registered with the Pennsylvania State Police as a
sex offender, but refused to consent to community notification
without some assessment to determine whether he posed any
danger to the community. As a result, the Pennsylvania Board
of Probation and Parole denied Doe's application for transfer of
probation and informed him that he had to leave the
Commonwealth. Doe filed an administrative appeal of that
decision, and without awaiting disposition of the administrative




        2.
           (...continued)
we. The application for parole transfer refers only to differences
in the "supervision" Doe would receive in the two states. It does
not make reference to community notification, Megan's Law, or
the waiver of any constitutional rights.

                                6
appeal, filed a Section 1983 action.3 Doe alleged that, by
treating him differently from in-state offenders, the Board,
Board Chairman William F. Ward, and State Police
Commissioner Paul Evanko violated his constitutional right to
equal protection and due process as well as his statutory rights
under the Interstate Compact Concerning Parole.4 The Board



       3.
        We are satisfied that Doe has properly brought this
action under Section 1983. For prisoners, the difference
between a civil rights action and a collateral attack is easy to
describe. Challenges to conditions of confinement fall under §
1983. Preiser v. Rodriguez, 411 U.S. 475, 500, (1973). Attacks
on the fact or duration of the confinement come under 28
U.S.C.A. § 2254. Id. However, for parolees and probationers,
the question of whether a claim should be made under Section
1983 or under federal habeas has been described as a more
“metaphysical” one, because the “conditions” of parole are the
confinement. Williams v. Wisconsin, 336 F.3d 576, 579 (7th Cir.
2003). Here, Doe is not challenging the actual conditions of his
confinement. Instead, he simply wishes to transfer those
conditions placed upon him by the State of New Jersey to the
Commonwealth of Pennsylvania. See Muhammad v. Close, 540
U.S. 749, 750 (2004) (per curiam) (citing Preiser, 411 U.S. at
500). An inmate's challenge to the circumstances of his
confinement may be brought under Section 1983.


       4.
        On September 30, 2004, the District Court entered
orders dismissing the Board on Eleventh Amendment grounds
                                             (continued...)

                               7
has given Doe permission to remain in Pennsylvania pending
resolution of his administrative appeal, and has stayed that
appeal until his Section 1983 action is final.

       The Commonwealth filed a motion for judgment on the
pleadings. The District Court denied that motion without
prejudice and ordered the parties to submit cross-motions for
summary judgment limited to the claim that community
notification, as applied to Doe, violated the Interstate Compact.
Doe v. Pa. Bd. of Prob. & Parole, No. 01-3639, 2002 WL
31548998, 2002 U.S. Dist. Lexis 15067 (E.D.Pa. July 26, 2002).
After the parties submitted those motions, the District Court
granted the Commonwealth’s Motion for Summary Judgment,
and invited the parties to re-file their Motions for Judgment on
the Pleadings on the constitutional claims in Doe's complaint.
Doe v. Pa. Bd. of Prob. & Parole, No. 01-3639, 2003 U.S. Dist.
Lexis 6795 (E.D.Pa. Mar. 31, 2003).

                               II.

      The District Court had federal question jurisdiction under
28 U.S.C. § 1331. We exercise jurisdiction over this appeal


       4.
         (...continued)
for lack of jurisdiction, and substituting Acting Board Chairman
Benjamin A. Martinez for Chairman Ward and State Police
Commissioner Jeffery B. Miller for Commissioner Evanko. By
order of July 21, 2005, Board Chair Catherine C. McVey was
substituted for former Acting Board Chairman Martinez.


                               8
under 28 U.S.C. § 1291. Our standard of review for judgment
on the pleadings is plenary. Sikirica v. Nationwide Ins. Co., 416
F.3d 214, 220 (3d Cir. 2005) (citing Jablonski v. Pan Am. World
Airways, Inc., 863 F.2d 289, 290 (3d Cir. 1988)).

                               III.

        Pennsylvania’s “Megan’s Law” has undergone three
distinct enactments. The Act was first passed in 1995. The
version of the law being challenged in this appeal was enacted
in 2000 and is referred to as “Megan’s Law II.” A final revision
of the law took effect in January of 2005, (“Megan’s Law III”)
and requires that all offenders (both in-state and out-of-state) be
listed on the Pennsylvania State Police website as a component
of community notification. Pennsylvania’s Megan’s Law statute
sets forth the purpose for registering sexual offenders:

       It is hereby declared to be the intention of the
       General Assembly to protect the safety and
       general welfare of the people of this
       Commonwealth by providing for registration and
       community notification regarding sexually violent
       predators who are about to be released from
       custody and will live in or near their
       neighborhood.

42 P A. C ONS. S TAT. A NN. § 9791(b) (2000) (emphasis added).
To accomplish this goal, Megan’s Law II creates two separate
levels of notification: 1) registration with the local law
enforcement agencies, and 2) community notification. Doe does
not challenge the law’s registration provision and indeed, has

                                 9
registered with the appropriate authorities. This appeal
challenges the manner is which the community notification
provision is applied to out-of-state offenders.

        The community notification provisions apply to in-state
offenders who have been adjudicated as “sexually violent
predators” and all out-of-state offenders (regardless of their
offense and without adjudication) who have transferred their
probation to the Commonwealth. 42 P A. C ONS. S TAT. A NN. §
9798 (2000). The community notification is carried out by the
chief law enforcement officer in the particular jurisdiction by
disseminating fliers that contain the offender’s photo, name,
address and some indication that he is a sex offender. These
fliers are given to neighbors, school superintendents, school
principals, day-care directors and college presidents, charging
those individuals with the responsibility of informing
individuals whose duties include “supervision of or
responsibility for students.” 42 P A. C ONS. S TAT. A NN. § 9798(a)
and (b) (2000). A municipality’s chief law enforcement officer
is to make these fliers available to the general public upon
request. 42 P A. C ONS. S TAT. A NN. § 9798(d) (2000).

        Before ordering community notification in the case of an
in-state offender, Megan’s Law II provides a comprehensive
assessment procedure to determine whether the offender is a
sexually violent predator. First, the State Sexual Offenders
Board evaluates the in-state offender. The Board reviews the
nature of the offense, the circumstances surrounding the offense
and the offender’s character and history. The Board submits a
written report containing its assessment to the district attorney.
If upon reviewing the Board’s assessment, the district attorney

                                10
believes community notification is warranted, he must file a
praecipe with the Court of Common Pleas, request a hearing,
and serve the praecipe and the Board’s report on defense
counsel. An adversarial hearing, with full trial procedures, is
held to determine whether the offender is a sexually violent
predator. At this hearing, the Commonwealth bears the burden
of proving by clear and convincing evidence that the offender is
a “sexually violent predator.” The offender has a right to be
heard, and to call and cross-examine witnesses, including expert
witnesses. He has a right to appointed counsel, if he cannot
afford a private attorney.

       By contrast, all out-of-state offenders who transfer parole
to Pennsylvania are subject to the community notification
provisions, regardless of their offense of conviction or their
potential danger to the community. The statute provides that
any “individual ... who is paroled to the Commonwealth
pursuant to the interstate compact or the supervision of parolees
and probationers shall, in addition to the [registration]
requirements..., be subject to the requirements of section 33 of
the act ...”. 42 P A. C ONS. S TAT. A NN. § 9795.4(e)(2) (2000).
The referenced provision provides that the parolee must “submit
to mandatory registration and public notification of all current
addresses.” 61 P A. S TAT. A NN. § 331.33(d)(3) (1941).

        Further, 42 Pa. Con. Stat. Ann. § 9798(e) mandates that
fliers be state-produced for all out-of-state offenders and given
by the local police department to neighbors, day-care centers,
school superintendents and various other individuals near the
sexual offender’s residence. 42 Pa. Cons. Stat. Ann. § 9798(e).
Under Megan’s Law II, these fliers are only published for in-

                               11
state individuals who are deemed to be “sexually violent
predators.” 42 Pa. Cons. Stat. Ann. § 9798(a).

       Under this statutory scheme, there is no procedure in
which it is determined whether an out-of-state offender poses a
danger to the community, thereby triggering the community
notification provisions. An in-state offender is given the benefit
of an extensive adjudicatory process to determine if he will be
subject to community notification. Doe, as an out-of-state
offender, was not given a hearing at all. Instead, without
judicial decision, or any other determination whatsoever that
Doe was a “sexually violent predator,” the Commonwealth
simply required Doe to submit to community notification.

                               IV.

       As a first inquiry, we must avoid deciding a
constitutional question if the case may be disposed of on some
other basis. Spicer v. Hilton, 618 F.2d 232, 239 (3d Cir. 1980);
see also Kelly v. Railroad Retirement Bd., 625 F.2d 486, 495 (3d
Cir. 1980) (Sloviter, J., concurring) (“We are constrained to
avoid passing upon a constitutional question if the case might be
disposed of on statutory grounds and we should not reach to
decide a constitutional issue, however intriguing.”)

       Thus, we begin by examining whether this issue may be
resolved under the Interstate Compact for Adult Offender
Supervision. Before doing so, however, we need to determine
whether we have jurisdiction to undertake such an examination.
Put another way, we must decide whether the Compact is a state
or federal law.

                               12
                             A.

The Parole Compact provides in pertinent part:

     Entered into by and among the contracting states,
     signatories hereto, with the consent of the
     Congress of the United States of America granted
     by an act, entitled ‘An act granting the consent of
     Congress to any two or more states to enter into
     agreements or compacts for cooperative effort and
     mutual assistance in the prevention of crime and
     for other purposes.’

     The contracting states solemnly agree:

     (1) That it shall be competent for the duly
     constituted judicial and administrative authorities
     of a state party to this compact (herein called the
     ‘sending state’) to permit any person, convicted of
     an offense within such state and placed on
     probation or released on parole, to reside in any
     other state party to this compact (herein called
     ‘receiving state’) while on probation or parole, if-

     (a) Such person is in fact a resident of or has
     family residing within the receiving state and can
     obtain employment there.

     (b) Though not a resident of the receiving state
     and not having his family residing there, the


                             13
       receiving state consents to such person being
       there.

       Before granting such permission, opportunity
       shall be granted to the receiving state to
       investigate the home and prospective employment
       of such person.

       A resident of the receiving state, within the
       meaning of this section, is one who has been an
       actual inhabitant of such state continuously for
       more than one year prior to his coming to the
       sending state, and has not resided within the
       sending state more than six continuous months
       immediately preceding the commission of the
       offense for which he has been convicted.

       (2) That each receiving state will assume the
       duties of visitation of, and supervision over,
       probationers or parolees of any sending state, and,
       in the exercise of those duties, will be governed
       by the same standards that prevail for its own
       probationers and parolees.

61 P A. S TAT. A NN. § 321.

       We have not, nor has the Supreme Court decided
whether the Interstate Parole Compact is federal or a state law.
We must now do so because federal courts do not have subject
matter jurisdiction to enjoin state officials on the basis of state
law. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89

                                14
(1984). In Doe v. Ward, 124 F.Supp.2d 900 (W.D. Pa. 2000),
the District Court held that the Interstate Compact on Probation
and Parole is both a state and federal law, explaining:

       [A]n interstate compact is transformed into
       federal law when 1) it falls within the scope of the
       Constitution’s Compact Clause, 2) it has received
       congressional consent, and 3) its subject matter is
       appropriate for congressional legislation. Cuyler
       [v. Adams 449 U.S. 433, 442 (1981)] The
       interstate compact satisfies each of these
       conditions.

       First the need to assert cross-border control of
       people subject to the jurisdiction of the criminal
       justice system, whether individuals with detainers
       or parolees, is a matter that falls within the scope
       of the Constitution’s Compact Clause. Second,
       the interstate parole compact has received
       congressional consent. In fact, the legislative
       source of the congressional consent is the same
       for both the IAD [Interstate Agreement on
       Detainers - the subject of Cuyler] and the
       interstate parole compact. Lastly, the subject
       matter is appropriate for congressional legislation,
       as the need for interstate cooperation to monitor
       and control parolees is the same as it is for
       inmates with detainers.

Id. at 911-912. Adopting the reasoning of the District Court in
Ward, supra, and applying the factors set forth in Cuyler, supra,

                               15
the District Court herein held that the Parole Compact, as a
congressionally-sanctioned interstate compact, is federal law as
well as state law. We agree.

                                B.

       The first avenue by which we may divert our decision
from Constitutional issues, is to see whether a private cause of
action (and remedy) exists within the Interstate Compact itself.
See Cannon v. Univ. of Chicago, 441 U.S. 677, 688 (1979)
(“[T]he fact that a federal statute has been violated and some
person harmed does not automatically give rise to a private
cause of action in favor of that person.”). The District Court
opined that Congress did not intend to create an enforceable
federal right under 42 U.S.C. § 1983 for probationers and
parolees through the Compact. We agree.

       In Gonzaga Univ. v. Doe, 536 U.S. 273 (2002), the
Supreme Court took up the question of whether the Family
Educational Rights and Privacy Act of 1974 (FERPA), 20
U.S.C. § 1232g, created an enforceable right under Section
1983. The Court held that an act of Congress must
“unambiguously confer” individual rights upon a particular class
of beneficiaries for a right of action under Section 1983 to exist.
Gonzaga, 536 U.S. at 282-283.

       To determine whether a statute creates enforceable rights,
we consider two indicia of legislative intent. First, we look to
statutory text for “rights creating language.” Alexander v.
Sandoval, 532 U.S. 275, 288 (2001). Such language has
generally “been the most accurate indicator of the propriety of

                                16
implication of a cause of action.” Cannon, 441 U.S. at 690 n.13.
Statutory language that is “rights-creating” is explicit in
conferring a right directly on a class of persons that includes the
plaintiff in a particular case. Id.; see also Gonzaga, 536 U.S.
283 (The statute’s text must be phrased in terms of the persons
benefitted.) (citations omitted). In contrast, general regulatory
language or “statutory language customarily found in criminal
statutes . . . and other laws enacted for the protection of the
general public” provide “far less reason to infer a remedy in
favor of individual persons.” Cannon, 441 U.S. at 693. That is
to say, “statutes that focus on the person regulated rather than
the individuals protected create ‘no implication of an intent to
confer rights on a particular class of persons.’” Sandoval, 532
U.S. at 289 (citations omitted).

        Absent “rights creating” language, we look to whether
the statutory structure evinces an internal enforcement scheme.
 The Supreme Court advises that, where a statute provides an
administrative review process, but does not provide judicial
sanctions, the “express provision of one method of enforcing a
substantive rule suggests that Congress intended to preclude
others.” Sandoval, 532 U.S. at 290; see also Karahalios v. Nat’l
Fed’n of Fed. Employees, 489 U.S. 527, 533 (1989) (“[I]t is . .
. ‘an elemental canon’ of statutory construction that where a
statute expressly provides a remedy, courts must be especially
reluctant to provide additional remedies.”) (quoting
Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19
(1979)).

       Because the Compact does not manifest either expressly
or indirectly an intent to create a federal right or remedy, we

                                17
hold that the Compact itself does not create an enforceable right.
The language of the Compact itself creates rights for the various
states who are signatories to it. It does not create rights for
probationers or parolees. Notably, the title under which
Congress approved the Compact — “An act granting the consent
of Congress to any two or more states to enter into agreements
or compacts for cooperative effort and mutual assistance in the
prevention of crime and for other purposes” — supports our
inference that Congress approved the Compact as a means of
aiding the states in crime prevention, not as a vehicle to provide
procedural rights for probationers and parolees.5

       At the second point of inquiry, the Probation Compact
regulates interactions among the states, delineating one state’s
rights and responsibilities to another. Regarding the strictures


       5.
         The District Court pointed out that Section 321(7) of the
Compact may be perceived as containing “rights-creating”
language, but concluded that such a perception is incorrect.
Section 321(7) provides that “[t]he duties and obligations
hereunder of a renouncing state shall continue as to parolees or
probationers residing therein at the time of withdrawal until
retaken or finally discharged by the sending state.” 61 P A.
S TAT. A NN. § 321(7). This section’s potential rights-creating
language does not qualify as the “unambiguous confer[ral]” of
rights required under Gonzaga. As the learned District Judge
observed, “Section (7) is too slender a reed to support the
conclusion that the Probation Compact includes the rights-
creating language necessary to give rise to an enforceable right
under Section 1983.” We agree.

                               18
imposed by one state on probationers from another, the Compact
described such requirements as duties that will be “governed by
the same standards that prevail for its own probationers and
parolees.” 61 P A. S TAT. A NN. § 321(2) (2002). As was the case
in Sandoval, the Compact here focuses upon the State entities
regulated by the standards, “rather than the individuals
protected.” Sandoval, 532 U.S. at 289. The Compact, we
conclude, creates “no implication of an intent to confer rights on
a particular class of persons.” Id.

       Lastly, the Compact has no mechanism by which to
enforce the alleged “rights” of probationers or parolees. The
Compact mentions neither court adjudication nor administrative
proceedings. These omissions further lead us to conclude that
Congress did not intend to create an enforceable federal right for
probationers or parolees under this Compact.

      We hold that Doe does not have a private right of action
under Section 1983 to enforce the provisions of the Interstate
Compact because one cannot be inferred from its terms.

                               C.

       However, that does not end our contractual inquiry.
Interstate compacts are formal agreements between states, and
hence, are contracts subject to the principles of contract law.6


       6.
       The authority for states to enter into such agreements
with one another arises from the Compact Clause of the United
                                                 (continued...)

                               19
“[A] Compact is, after all, a contract.” Petty v.
Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 285, (1959)
(Frankfurter, J., dissenting). It remains a legal document that
must be construed and applied in accordance with its terms.
Texas v. New Mexico, 462 U.S. at 564; West Virginia ex rel.
Dyer v. Sims, 341 U.S. 22, 28 (1951). Interstate compacts may
be considered contracts because of the manner in which they are
enacted: there is an offer (the presentation of a reciprocal law to
state legislatures), an acceptance (the actual enactment of the
law) and consideration (the settlement of a dispute or the
creation of a regulatory scheme). See Aveline v. Pa. Bd. Prob.
& Parole, 729 A.2d 1254, 1257 n.10 (Pa. Commw. Ct.1999).7

        Although a common law contract directly affects only the
rights and obligations of the individual parties to it, an interstate
compact may have a direct impact upon the larger population,
the economy, and the physical environment in the whole of the



       6.
        (...continued)
States Constitution, Article I, Section 10, Clause 3.

       7.
        For a thorough discussion of the history and contractual
nature of the Interstate Compact for Adult Offender
Supervision, see the website of the Interstate Commission for
Adult Offender Supervision, http://www.interstatecompact.org;
see also Michael L. Buenger and Richard L. Masters, The
Interstate Compact on Adult Offender Supervision: Using Old
Tools to Solve New Problems, 9 R OGER W ILLIAMS U. L. R EV. 71
(2003).


                                 20
compact area. Therefore, although Pennsylvania and New Jersey
are the obvious parties to the Compact, we must decide whether
Doe has any rights under this contract as a third-party
beneficiary. This is an issue of first impression.

        The Supreme Court has held that an interstate compact is
like a contract to the extent that it is “a legal document that must
be construed and applied in accordance with its terms,” Texas v.
New Mexico, 482 U.S. 124, 128 (1987). Because a compact is
a contract, and must be enforced according to its terms, we do
not have authority to provide relief that is inconsistent with its
terms. Texas v. New Mexico, 462 U.S. 554, 564 (1983). When
interpreting an interstate compact, we must address disputes
under the compact just as if we were addressing a federal statute
or a federal contract. Absent a federal statute making state
statutory or common law applicable, federal law controls, and
absent federal statutory guidance, the governing rule of decision
must be fashioned by the federal court in the mode of the
common law. Oneida Indian Nation v. County of Oneida, 414
U.S. 661, 674-679 (1974).

       In addition to the parties to a contract, “third-party
beneficiaries” of the contract can also enforce its terms. For
either Pennsylvania or federal law on third-party beneficiaries
we look to the Restatement of Contracts’ definition. See
R ESTATEMENT (S ECOND) OF C ONTRACTS § 302 (1981); see e.g.
Owens v. Haas, 601 F.2d 1242, 1250 (2d Cir.), cert. denied, 444
U.S. 980 (1979). Under the Restatement, a third party can claim
rights under a contract, even if not stated expressly, if it is
consonant with the intention of the contracting parties. Section
302 states as follows:

                                21
       Intended and Incidental Beneficiaries

       (1) Unless otherwise agreed between promisor
       and promisee, a beneficiary of a promise is an
       intended beneficiary if recognition of a right to
       performance in the beneficiary is appropriate to
       effectuate the intentions of the parties and either

                      (a) the performance
                      of the promise will
                      satisfy an obligation
                      of the promisee to
                      pay money to the
                      beneficiary; or

                      (b) the circumstances
                      indicate that the
                      promisee intends to
                      give the beneficiary
                      the benefit of the
                      p r o m i s e d
                      performance.

       (2) An incidental beneficiary is a beneficiary who
       is not an intended beneficiary.

Restatement (Second) of Contracts § 302 (1979).

        Thus, we have two tests for determining third-party
beneficiary status. The first one requires the parties to indicate
in the agreement itself that the third party is a beneficiary. The

                               22
second test does not require that the purported beneficiary be
adverted to directly in the contract; but, if not, third-party status
will be conferred only if circumstances compel us to recognize
such a status in order to effectuate the intention of the parties.

       The first test offers Doe no relief. The Interstate
Compact does not specifically indicate that Doe, or for that
matter any parolee, is a third-party beneficiary.8 Under the
second test he fares no better. Here, the “intentions of the
parties” must be discerned from the document itself. Langer v.
Monarch Life Ins. Co. 879 F.2d 75, 81 n.8 (3d Cir. 1989) (citing
Hutchison v. Sunbeam Coal Corp., 519 A.2d 385 (Pa.1986)).

       The parties to this Compact have set forth their intentions
quite clearly:

       It is the purpose of this compact and the Interstate
       Commission created hereunder, through means of
       joint and cooperative action among the
       compacting states: to provide the framework for
       the promotion of public safety and protection of
       the rights of victims through the control and
       regulation of the interstate movement of offenders
       in the community; to provide for the effective
       tracking, supervision, and rehabilitation of these


       8.
           It is well to note, however, that “the rehabilitation” of
the offender is a goal of the Compact. This, however, is too
tangential at the current stage of penal science to declare it a
“benefit.”

                                 23
       offenders by the sending and receiving states; and
       to equitably distribute the costs, benefits and
       obligations of the compact among the compacting
       states.

61 P A. S TAT A NN. § 324.1 (2002).

        The Compact speaks of cooperation between states,
protection of the rights of victims, regulation and control of
offenders across state borders and the tracking, supervision and
rehabilitation of these offenders. In short, no explicit third-party
obligation appears in the Compact and there is no compelling
evidence that, by entering into the Compact, Pennsylvania and
New Jersey implicitly intended to give legally enforceable rights
to Doe. Doe and similarly situated parolees are not beneficiaries
of this Compact; they are merely the subjects of it. Hence, we
may now turn to Doe’s Constitutional arguments, specifically
his assertion that the Commonwealth’s disparate treatment of in-
state and out-of-state offenders violated his rights to equal
protection.

                                V.

                                A.

       Doe does not challenge the registration requirements of
Pennsylvania’s Megan’s Law. Indeed, he has complied with
them since returning to the Commonwealth. He claims only that
the law’s community notification provisions violate the Equal
Protection Clause as they relate to him and other out-of-state
offenders. In reviewing a claim that government action violates

                                24
the Equal Protection Clause, we must first determine the
appropriate standard by which we are to review the claim.
Donatelli v. Mitchell, 2 F.3d 508, 513 (3d Cir. 1993). If state
action does not burden a fundamental Constitutional right or
target a suspect class, the “challenged classification must be
upheld ‘if there is any reasonably conceivable state of facts that
could provide a rational basis for the classification.’” Id.
(quoting FCC v. Beach Communications, Inc., 508 U.S. 307,
313 (1993)). If the challenged state action involves a “suspect”
classification based on race, alienage or national origin, or
infringes on a fundamental constitutional right, we must apply
the strict scrutiny standard. Id.

       The District Court did not decide whether Doe has a
fundamental right subject to strict scrutiny, deciding instead that
the Commonwealth’s disparate treatment could not survive the
lower threshold rational basis review. Because we also
conclude that the Commonwealth’s restrictions would not
survive the lower threshold of rational basis review, we likewise
do not reach the issue.

                                B.

       If a statute neither burdens a fundamental right nor
targets a suspect class, it does not violate equal protection so
long as it bears a rational relationship to some legitimate end.
Romer v. Evans, 517 U.S. 620, 631 (1996). A statute will be
considered constitutional under rational basis review if there is
“any reasonably conceivable set of facts that could provide a
rational basis for” it. FCC v. Beach Communications, 508 U.S.
307, 313 (1993). Although this is a low threshold, the Supreme

                                25
Court has nonetheless instructed that “even in the ordinary equal
protection case calling for the most deferential standards, we
insist on knowing the relation between the classification adopted
and the object to be obtained.” Id. at 632.

        Here, the Commonwealth argues that its interest in public
safety is a legitimate concern, and that its practice of treating in-
state and out-of-state offenders differently is rationally related
to its efforts at alleviating this concern. We readily agree that
protecting its citizens from sex offenses committed by repeat
offenders is a legitimate state interest. The question, however,
is whether the Commonwealth’s denial of equivalent process to
both in-state and out-of state parolees is rationally related to its
security concerns. We conclude it is not.

                                 C.

        The Commonwealth offers four rationales to explain how
its disparate treatment is rationally related to its public safety
goals. First, the Commonwealth argues it is impossible to
replicate the legal proceedings it provides in-state offenders for
out-of-state offenders. Second, the Commonwealth argues that
providing such proceedings to out-of-state offenders would
increase time and expense. The Commonwealth next argues
that the “harshness” of community notification differs for in-
state and out-of-state offenders. Finally, the Commonwealth
argues that the publicity given to a sex offender’s trial in
Pennsylvania rationalizes the disparate treatment of out-of-state
offenders whose trials are less likely to receive media attention
in the Commonwealth.


                                 26
                               D.

        Turning to its specific attempts to rationalize the
disparate treatment, the Commonwealth first argues that it
would be impossible to replicate the process it affords in-state
offenders for out-of-state offenders.        The Pennsylvania
legislature, contrary to this argument, has outlined its
responsibilities and obligations under the Interstate Compact,
and indeed has statutorily promised to the other signatory states
that it would provide Doe, and others similarly situated, with
“the same standards that prevail for its own probationers and
parolees.” 61 P A. S TAT. A NN. § 321.

         By signing the Interstate Compact, Pennsylvania has
agreed that, when accepting out-of-state probationers who
transfer their parole and their residence to the Commonwealth,
it will approximate the same procedures and standards it applies
to its own probationers. There is no evidence on this record that
the Commonwealth has even tried.

       Furthermore, the Commonwealth’s assertion that in
deciding whether an out-of-state parolee transferee is a sexually
violent predator, a Pennsylvania judge would have more
evidence about an in-state offender does not hold water. We
acknowledge, and Doe concedes, that judges who have presided
over an offender’s trial will most likely have more first-hand
information about a particular defendant, his criminal history
and other relevant circumstances.

       Nonetheless, other avenues of evidence are readily
available to the parties. For example, any pre-sentence

                               27
investigation and/or recommendation conducted by the
transferring state can be made available to the SOAS. Certainly
in this digital age court records, transcripts, hearing records and
pre-sentence reports can be transmitted interstate electronically.
There is no doubt that the Commonwealth can accomplish its
goal of ensuring the public safety of its citizens and yet assure
out-of-state probationers and parolees procedural rights
equivalent to that which it offers in-state offenders.

       The Commonwealth’s contention is that out-of-state
offenders may have benefitted from rehabilitative sexual
therapy, thereby placing in-state offenders at a disadvantage,
need not detain us long. Under Pennsylvania law, the goal of its
community notification program is to identify the sexually
violent predator and notify the community where the predator
resides. Whether a particular sexual predator has received
therapy or treatment is not germane to his identity and location.
Indeed, there is no evidence that the fliers used for community
notification purposes indicate whether the particular offender
has received treatment. The Commonwealth’s argument here
does not justify the disparate treatment at issue and is not
rationally related to its public safety goals.

        Interestingly, the difference in the “harshness” of the
community notification between in-state and out-of-state
offenders is also given by the Commonwealth as a rational
reason for its disparate treatment. This contention is not only
irrational but illogical. The Commonwealth argues that in-state
offenders who are determined to be sexually violent predators
are subjected to community notification for life whereas out-of-
state offenders are subjected to such notification for the length

                                28
of their supervision. First, New Jersey has sentenced Doe to
lifetime supervision, so the comparison is wholly misplaced.
Additionally, as Doe points out, the Commonwealth is
comparing the wrong group of offenders. We agree. A
comparison of in-state offenders not deemed sexually violent
predators and out-of-state offenders reveals that these in-state
offenders are excused from community notification whereas all
out-of-state offenders are subjected to such notification. Given
the opportunity, Doe would argue that he does not meet the
statutory definition of a sexually violent predator. He should
have that opportunity.

        Next, the Commonwealth argues that providing Doe an
opportunity to challenge his status as a sexually violent predator
would increase costs and time devoted to such a task. That,
while possibly true, is wholly irrelevant. The Commonwealth
promised to treat all parolees, in-state and out-of-state, the same
under the Compact. By agreeing to the dictates of the Interstate
Compact, the Commonwealth determined that the burden of
additional costs is outweighed by the benefits provided by the
Compact. Indeed, one of the stated purposes of the Interstate
Compact is to “equitably distribute the costs, benefits and
obligations of the Compact among the compacting states.” 61
P A. S TAT. A NN. § 324.1 (2002). It cannot now argue that
concerns about increased costs and expenses are rationally
related to its ultimate public safety goals — goals the Interstate
Compact seeks to reach through the equitable distribution of
costs and expenses.

    As a final rationalization for the disparate treatment, the
Commonwealth contends that Pennsylvania communities are

                                29
less likely to have information about a particular offense through
media coverage and general public discourse if that offense had
been committed outside the state. We conclude, as did the
District Court, that this geographic argument is counter-intuitive
and meritless. For certain, residents of local communities may
have limited — if any — information about an out-of-state
sexual offender. However, the same is likely to be true about in-
state offenders. This lack of general information is one of the
principal reasons Megan’s Law was enacted in the first place.
Indeed, the crime that inspired the first Megan’s Law was
committed by a twice-convicted, in-state sexual predator, a fact
unknown to his new neighbors. See Paul P. v. Farmer, 227 F.3d
98, 99 (3d Cir. 2000) (citing E.B. v. Verniero, 119 F.3d 1077,
1097 (3d Cir. 1997). Because any concerns over the public’s
lack of information about out-of-state sexual offenders applies
equally to in-state offenders, the Commonwealth’s proffer
simply does not rationalize Pennsylvania’s disparate treatment
of the two groups, nor does it correlate the illegitimate
procedural disparity to its legitimate public safety goal.

        The Supreme Court has cautioned that “equal protection
is not a license for courts to judge the wisdom, fairness, or logic
of legislative choices.” Beach Communications, 508 U.S. at 307.
We undertake no such exercise here. Indeed, we care not. We
are only requiring of it, the performance it agreed to. We do not
second-guess the actions of the Commonwealth in becoming a
signatory to the Interstate Compact — we merely suggest that it
must hold to its agreement. There are no exceptions in the
Compact to excuse non-performance, or partial performance.



                                30
       We conclude, that the Commonwealth’s approval and
participation in the Interstate Compact invalidates any rational
connection between the Compact’s stated goals and the
Commonwealth’s disparate treatment of in-state and out-of-state
offenders. As a signatory to the Interstate Compact, the
Commonwealth has agreed to abide by its terms, and it must.
Because the Commonwealth has agreed to adhere to the dictates
of the Interstate Compact, it cannot now argue that its reasons
for violating the Compact are rational.

        Although the Supreme Court has acknowledged that an
interstate compact is like a contract to the extent that it is “a
legal document that must be construed and applied in
accordance with its terms,” Texas v. New Mexico, 482 U.S. 124,
128 (1987), the Court has also recognized the unique features
and functions of such a compact. An interstate compact is one
“of two methods under our Constitution of settling controversies
between States,” Petty v. Tennessee-Missouri Bridge Comm'n,
359 U.S. 275, 279 n. 5 (1959), and it “performs high functions
in our federalism,” id. at 279. See also Felix Frankfurter &
James M. Landis, The Compact Clause of the Constitution-A
Study in Interstate Adjustments, 34 Y ALE L.J. 685, 691-95
(1925) (discussing history of Compact Clause). Put another way,
an interstate compact represents a political compromise between
“constituent elements of the Union,” as opposed to a
commercial transaction. Hess v. Port Auth. Trans-Hudson
Corp., 513 U.S. 30, 40, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994).
Such an agreement is made to “address interests and problems
that do not coincide nicely either with the national boundaries or
with state lines --- interests that may be badly served or not
served at all by the ordinary channels of National or State

                               31
political action.” Id. (internal quotation marks omitted). Here,
the Interstate Compact reflects the collective wisdom not only
of the Pennsylvania General Assembly and the New Jersey
Legislature, but also that of the other signatory states and the
United States Congress as to how best to deal with the interstate
movements of adult offenders. It is the stated purpose of the
Interstate Compact to “provide the framework for the promotion
of public safety and to protect the rights of victims through
control and regulation of the interstate movements of offenders
in the community.” 61 P A. S TAT. A NN. § 324.1 (2002)

       As we have previously indicated, the Commonwealth
requires every out-of-state probationer convicted of a sex
offense to submit to community notification under Megan’s Law
II. 61 P A. S TAT. A NN.. § 331.33(d)(3). In Pennsylvania,
submission to community notification is a prerequisite to the
acceptance of an out-of-state probationer’s transfer under the
Compact. Id. This prerequisite, however, changes the terms of
the Compact because it places additional conditions on the
transfer of parolees and probationers who otherwise satisfy its
other requirements. Having entered into this Compact, the
Commonwealth may not unilaterally change its terms. By
becoming a signatory to the Compact , Pennsylvania is required
to provide Doe with the same process it affords in-state
offenders before subjecting him to community notification.

       Once New Jersey granted permission for Doe to return to
Pennsylvania, Pennsylvania was required to assume supervision
over Doe and to treat him the same as in-state offenders. The
Commonwealth has not done so and in treating Doe and other
out-of-state parolees differently, it violates its own agreement

                               32
failing to do precisely what it promised: that out-of-state
offenders will be “governed by the same standards that prevail
for its own probationers and parolees.” 61 P A. S TAT. A NN.
§ 321(2).

                               E.

        The Commonwealth’s arguments are further undercut by
subsequent legislation. While the District Court’s decision was
pending, the General Assembly amended Megan's Law,
effective January 24, 2005 (“Megan’s Law III”). This version
of the statute altered the statutory scheme governing when out-
of-state sex offenders are subjected to community notification
fliers within the Commonwealth by amending its registration
requirements. Megan’s Law III requires registration of
individuals convicted of offenses specified in § 9795.1 — which
now includes “individuals currently residing in this
Commonwealth who have been convicted of [similar sexual
offenses] under the laws of . . . another state.” 42 P A. C ONS.
S TAT. A NN. § 9795.1 (2005). Because out-of-state offenders
are now specifically listed in § 9795.1, they are included in the
assessment procedures outlined later in the statute. Section
9797.4 of the statute provides that individuals who were
convicted of an offense listed in § 9795.1 (as out-of-state
offenders now are), shall, upon court order, be assessed by the
board to determine if they should be classified as a sexually
violent predator. See 42 P A. C ONS. S TAT. A NN. §§ 9795.1(a)(3),
9795.1(b)(4); 42 P A. C ONS. S TAT. A NN. §§ 9795.4(a), (b). This
“assessment” procedure makes no distinction between in-state
and out-of-state offenders, contemplating only those individuals
identified in § 9795.1.

                               33
        Under this provision, various enumerated factors are to
be reviewed before a determination is made as to the offender’s
“sexually violent predator status.” These factors include
whether the offense involved multiple victims, the nature of the
sexual contact with the victim, relationship of the individual to
the victim, the age of the victim, the offender’s prior offenses
and characteristics of the offender such as the offender’s age,
use of illegal drugs, mental illness and any other mental
disabilities or abnormalities. See 42 P A. C ONS. S TAT. A NN. §
9795.4(b)(1)-(4) (2005). Doe — as someone convicted of an
offense specified in § 9795.1 — would, upon court order, be
provided a hearing, notice, the right to call witnesses, the right
to counsel and to the assistance of expert witnesses — all to be
conducted before any determination of whether he, as an out-of-
state offender, could be classified as a sexually violent offender
and be subjected to community notification by police flier. 42
P A. C ONS. S TAT. A NN. § 9795.4(e).

       This essential difference is exactly what Doe seeks.
Inexplicably, the Commonwealth argues that what is rational for
an out-of-state offender today, cannot be applied to an
individual like Doe whose crimes were committed before 2005.

        Megan’s Law III is further support for Doe’s argument
that the reasons proffered by the Commonwealth to support its
disparate treatment of out-of-state offenders are meritless and,
hence, irrational. The Commonwealth argues that it cannot offer
full due process for out-of-state offenders. Yet, since January
24, 2005, it has been affording out-of-state offenders the
opportunity to challenge their status as sexually violent
offenders. It simply is not rational for the Commonwealth to

                               34
claim it cannot provide equal treatment to out-of-state offenders
under Megan’s Law II when it is practically doing so under
Megan’s Law III.9

                                VI.

       In summary, we note that Pennsylvania’s interest in
protecting its citizens from sexually violent predators is certainly
compelling. However, subjecting out-of state sex offenders to
community notification without providing equivalent procedural
safeguards as given to in-state sex offenders is not rationally




       9.
             An undercurrent to our dissenting colleague’s
argument is that under rational basis review, the government
always wins. That, quite simply, cannot be so. In fact, were that
the case, our review of issues under this standard would be
equivalent to no review at all. A necessary corollary to and
implication of rationality as a test is that there will be situations
where proffered reasons are not rational. That precise situation
is graphically presented here. Put simply, every reason
proffered by the Commonwealth for its disparate treatment of
Doe in this case is meritless, and hence irrational. No reason the
Commonwealth offers for disparate treatment can be considered
“rational” because each is contrary to the promises it made to
the other signatories when it signed- on to the Compact. Indeed,
in the several instances, the stated purposes of the Interstate
Compact itself contradict what the Commonwealth claims are its
reasons for the disparate treatment it gives to in-state and out-of-
state offenders.

                                 35
related to that goal. The judgment of the District Court will be
affirmed.


AMBRO, Circuit Judge, dissenting

        When the Pennsylvania legislature passed Megan’s Law
II, it decided to require community notification for all out-of-
state sex offenders subject to registration who are paroled into
the Commonwealth, but to require community notification for
in-state sex offenders only if they were deemed to be “sexually
violent predator[s]” following a hearing.          Because this
legislative decision is reviewed under the rational basis test and
because I believe it satisfies that easily met standard, I must
respectfully dissent.10

I.     Rational Basis Review Applies

       “The Fourteenth Amendment forbids the States to ‘deny
to any person within [their] jurisdiction the equal protection of
the laws,’ but does not prevent the States from making
reasonable classifications among such persons.” W. & S. Life


       10.
         I have no quarrel with much of the majority’s opinion.
I agree that Doe has no private right of action under the
Interstate Compact on Probation and Parole (the “Compact”)
and that he is not a third-party beneficiary of the Compact.
Thus, as the majority recognizes, the constitutional question
under review is properly before us.

                               36
Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 656–57
(1981). As the Supreme Court has long recognized, “[u]nless a
classification trammels fundamental personal rights or is drawn
upon inherently suspect distinctions such as race, religion, or
alienage, our decisions presume the constitutionality of the
statutory discriminations and require only that the classification
challenged be rationally related to a legitimate state interest.”
City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976); see
also Romer v. Evans, 517 U.S. 620, 631 (1996) (“[I]f a law
neither burdens a fundamental right nor targets a suspect class,
we will uphold the legislative classification so long as it bears
a rational relation to some legitimate end.”). Conversely,
classifications that discriminate against a suspect class or violate
an individual’s fundamental constitutional rights receive strict
scrutiny. Donatelli v. Mitchell, 2 F.3d 508, 513 (3d Cir. 1993).
Such fundamental rights include the right to marry, see, e.g.,
Loving v. Virginia, 388 U.S. 1, 12 (1967), the right to custody of
one’s children, see, e.g., Santosky v. Kramer, 455 U.S. 745, 753
(1982), the right to vote, see, e.g., Yick Wo v. Hopkins, 118 U.S.
356, 370 (1886), and the right to interstate travel. See, e.g.,
United States v. Guest, 383 U.S. 745, 757 (1966).

       Our first task, therefore, is to ascertain the proper level of
constitutional review.11 Id. Doe asserts that the Pennsylvania


       11.
        While the majority acknowledges that “we must first
determine the appropriate standard by which we are to review
                                               (continued...)

                                 37
statute burdens his fundamental right to interstate travel and that
the Commonwealth’s classification therefore must satisfy strict
scrutiny.12 Because Doe’s status, first as a probationer and then
as an individual subject to parole supervision for life,
necessarily limits his constitutional right to travel, I conclude
that the Commonwealth’s alleged restrictions on that right are
subject simply to rational basis review.

        The Supreme Court’s most recent and comprehensive
explanation of the right to interstate travel is found in Saenz v.
Roe, 526 U.S. 489 (1999). The Court concluded that this right
consists of three components: “[1] the right of a citizen of one
State to enter and leave another State, [2] the right to be treated


       11.
        (...continued)
the claim,” Maj. Op. at 24, it does not reach this question
because it concludes that “the Commonwealth’s restrictions
would not survive rational basis review.” Maj. Op. at 25.

       12.
         Strict scrutiny is only triggered if the Commonwealth’s
law actually infringes a right to interstate travel. See Attorney
General of New York v. Soto-Lopez, 476 U.S. 898, 905 (1986)
(“[O]nly where a State’s law ‘operates to penalize those persons
. . . who have exercised their constitutional right of interstate
migration’ is heightened scrutiny triggered.”) (quoting Mem’l
Hosp. v. Maricopa County, 415 U.S. 250, 258 (1974)). There is
no dispute that Doe has exercised his right to travel. However,
the question remains whether that right is freighted with
conditions such that strict scrutiny review does not apply.

                                38
as a welcome visitor rather than an unfriendly alien when
temporarily present in the second State, and [3], for those
travelers who elect to become permanent residents, the right to
be treated like other citizens of that State.” Id. at 500.

        Doe argues that, because under Megan’s Law II all out-
of-state sex offenders paroled into Pennsylvania are subject to
community notification but in-state sex offenders are only
subject to community notification if they are deemed “sexually
violent predator[s]” following a hearing, his “right to be treated
equally in [his] new State of residence” has been violated. Id.
at 505. The Commonwealth concedes that Megan’s Law II
treats differently sex offenders who committed their offenses out
of state and are then transferred to Pennsylvania under the
Compact and sex offenders who were convicted in the
Commonwealth. It argues, however, that Doe’s status as a
convicted sex offender subject to parole supervision for life
necessarily limits his right to interstate travel. I conclude this
contention is correct.

       In Jones v. Helms, 452 U.S. 412 (1981), the Supreme
Court recognized that individuals who have committed crimes
do not have an unqualified right to interstate travel: “Despite
the fundamental nature of this right [to interstate travel], there
nonetheless are situations in which a State may prevent a citizen
from leaving. Most obvious is the case in which a person has
been convicted of a crime . . . .” Id. at 419. The Court went on
to hold that even if a person is not currently incarcerated for (or

                                39
even charged with) a crime, that person’s criminal conduct
“necessarily qualified his right” to interstate travel. Id. at
420–21. Similarly, the Court has pointed out that probationers
and parolees “do not enjoy ‘the absolute liberty to which every
citizen is entitled, but only . . . conditional liberty properly
dependent on observance of special [probation] restrictions.’”
Griffin v. Wisconsin, 483 U.S. 868, 874 (1987) (quoting
Morrissey v. Brewer, 408 U.S. 471, 480 (1972)); see also United
States v. Knights, 534 U.S. 112, 119 (2001) (“Just as other
punishments for criminal convictions curtail an offender’s
freedoms, a court granting probation may impose reasonable
conditions that deprive the offender of some freedoms enjoyed
by law-abiding citizens.”).

         Our Court likewise has recognized that “conditions of
probation include restrictions on a defendant’s right to travel.”
United States v. Warren, 186 F.3d 358, 366 (3d Cir. 1999). And
the courts of appeals to address directly the right to interstate
travel for those on probation or parole have all concluded that
the right is either limited or non-existent. See Williams v.
Wisconsin, 336 F.3d 576, 581 (7th Cir. 2003) (“Like prisoners,
. . . parolees . . . have no right to control where they live in the
United States; the right to travel is extinguished for the entire
balance of their sentences.”); Bagley v. Harvey, 718 F.2d 921,
924 (9th Cir. 1983) (“[A]n individual’s constitutional right to
travel, having been legally extinguished by a valid conviction
followed by imprisonment, is not revived by the change in status
from prisoner to parolee.”); Berrigan v. Sigler, 499 F.2d 514,

                                40
522 (D.C. Cir. 1974) (holding that any rights parolees had to
travel were necessarily limited because “those rights of necessity
are conditioned by the situation in which their convictions
placed them”).

         When Doe initially sought permission to move to
Pennsylvania, he was serving a probationary sentence. His
sentence of probation ended in 2005, but, pursuant to New
Jersey law, as a convicted sex offender Doe’s sentence also
included “a special sentence of parole supervision for life.” N.J.
S TAT. A NN. § 2C:43-6.4. Under the statute, “[p]ersons serving
a special sentence of parole supervision for life remain in the
legal custody of the Commissioner of Corrections, shall be
supervised by the Division of Parole of the State Parole Board,
. . . and shall be subject to conditions appropriate to protect the
public . . . .” Id.

       Doe’s status as a probationer at the time he filed his suit,
and as subject to lifelong supervised parole now, necessarily
means that he was not, and is not now or ever, entitled to the full
panoply of constitutional rights enjoyed by the average citizen.
Doe contends that the cases recognizing the limits on parolees’
and probationers’ right to interstate travel do not apply because
they do not involve the third component of the right to travel
recognized by Saenz – the right of those who elect to become
permanent residents to be treated like other citizens. But Doe
offers no reasons why this distinction matters, and I know of
none. His status as a convicted sex offender on parole

                                41
necessarily places restrictions not only on his freedom of
movement but also on other rights of citizenship.13 Because
Megan’s Law II applies the allegedly discriminatory
requirement only to out-of-state sex offenders whose rights to
travel have been reduced by probation or parole, 14 it is less likely
to be constitutionally suspect, obviating the need for strict
scrutiny.


       13.
         For example, the Supreme Court has held that states
may, consistent with the Equal Protection Clause, deprive
convicted felons of the right to vote even after they have
completed their sentences and paroles. Richardson v. Ramirez,
418 U.S. 24, 56 (1974).

       14.
          While Doe contends that Megan’s Law II discriminates
between in- and out-of-state sex offenders, in fact the
community notification requirement only applies to out-of-state
sex offenders who are transferred to Pennsylvania while on
probation or parole.         See 42 P A. C ONS. S TAT. A NN.
§ 9795.2(b)(3) (2004) (“An individual subject to registration
under this subsection who is paroled to the Commonwealth
pursuant to the interstate compact for supervision of parolees
and probationers shall, in addition to the requirements of this
subchapter, be subject to [community notification].”) (emphasis
added), repealed by 2004, Nov. 24, P.L. 1243, No. 152 § 8,
effective Jan. 24, 2005. If a sex offender convicted in another
state is no longer subject to parole supervision in that state and
then moves to Pennsylvania, that individual, while still subject
to registration requirements, would not be subject to the
community notification requirement that Doe challenges here.

                                 42
        For this reason, although never directly addressed by the
Supreme Court or our Court, it appears uncontroversial that
someone who has been convicted of a sexual offense and who
continues to be subject to parole supervision has forfeited some
portion of his constitutional right to interstate travel—including
the right to be treated the same as the in-state sexual offenders
of the state in which he wishes to make his new home. Because
Doe as a probationer or parolee is not entitled to an unqualified
right to interstate travel, I conclude that restrictions on his
exercise of that right should be subject to rational basis review.
In other words, I would inquire whether the different treatment
of him and similarly situated sex-offenders who are citizens of
Pennsylvania is rationally related to a legitimate state purpose.

II.    The Rational Basis Test is Satisfied

        As our Court has observed, the rational basis test is a
“very deferential standard.” English v. Bd. of Educ. of Boonton,
301 F.3d 69, 82 (3d Cir. 2002). “Under rational basis review, ‘a
classification must be upheld against equal protection challenge
if there is any reasonably conceivable state of facts that could
provide a rational basis for the classification.’” United States v.
Walker, 473 F.3d 71, 77 (3d Cir. 2007) (quoting Heller v. Doe,
509 U.S. 312, 320 (1993)).             “A statute is presumed
constitutional, and ‘[t]he burden is on the one attacking the
legislative arrangement to [negate] every conceivable basis
which might support it.’” Heller, 509 U.S. at 320 (quoting
Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364

                                43
(1973)) (internal citations omitted). Thus, equal protection
principles are met so long as a plausible policy reason explains
the classification and the relationship of the classification to its
policy goal is not so weak as to suggest that the distinction is
arbitrary or irrational. Walker, 473 F.3d at 77 (citing Fitzgerald
v. Racing Ass’n of Cent. Iowa, 539 U.S. 103, 107 (2003)). In
this context, “equal protection is not a license for courts to judge
the wisdom, fairness, or logic of legislative choices.” FCC v.
Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993); see also
Dukes, 427 U.S. at 303 (“[T]he judiciary may not sit as a
superlegislature to judge the wisdom or desirability of legislative
policy determinations . . . .”). “The threshold for upholding
distinctions in a statute under rational basis review is extremely
low, and it is not within the purview of the courts to conduct
anything but a limited review of the reasons that legislation
subject to rational-basis review classifies among similarly
situated persons.” United States v. Pollard, 326 F.3d 397, 408
(3d Cir. 2003). “[E]ven if the law seems unwise or works to the
disadvantage of a particular group, or if the rationale for it
seems tenuous,” Romer, 517 U.S. at 632, “[w]here there are
‘plausible reasons’ for [the legislature’s] action, ‘our inquiry is
at an end,’” Beach Commc’ns, Inc., 508 U.S. at 313-14 (quoting
U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980)).

        “Moreover, because we never require a legislature to
articulate its reasons for enacting a statute, it is entirely
irrelevant for constitutional purposes whether the conceived
reason for the challenged distinction actually motivated the

                                44
legislature.” Id. at 315. In addition, “a legislative choice is not
subject to courtroom fact-finding and may be based on rational
speculation unsupported by evidence or empirical data.” Id.
“Finally, courts are compelled under rational-basis review to
accept a legislature’s generalizations even when there is an
imperfect fit between means and ends.” Heller, 509 U.S. at 321.

       What this means in practice is that “[a] classification does
not fail rational-basis review because it ‘is not made with
mathematical nicety or because . . . it results in some
inequality.’” Id. (quoting Dandridge v. Williams, 397 U.S. 471,
485 (1970)); see also Metropolis Theatre Co. v. Chicago, 228
U.S. 61, 69–70 (1913) (“The problems of government are
practical ones and may justify, if they do not require, rough
accommodations—illogical, it may be, and unscientific.”).

             I believe that Megan’s Law II passes the rational basis
        15
test.        As the majority acknowledges and our Court has held, the



             15.
         The majority reads my analysis as having an
“undercurrent” implying that “under rational basis review, the
government always wins.” Maj. Op. 35 n.9. I do not suggest
that “our review of issues under this standard [is] equivalent to
no review at all.” Id. The Supreme Court has struck down
statutes under this standard of review. See, e.g., Romer, 517
U.S. 620 (striking down amendment to Colorado constitution
barring the enactment of laws prohibiting discrimination on the
                                                   (continued...)

                                    45
Commonwealth unquestionably has a legitimate interest in
protecting its citizens from sexual offenses. Maj. Op. at 26, 35;
Artway v. Att’y Gen. of N.J., 81 F.3d 1235, 1267 (3d Cir. 1996)
(“Protecting vulnerable individuals from sexual offenses is
certainly a legitimate state interest.”). It is not necessary to
“explore all the reasons that the State advances in justification”
of the different treatment, so long as any one of them provides
a rational basis for the distinction. Dandridge, 397 U.S. at 486.

        Here, at least two of the Commonwealth’s justifications
demonstrate that the different treatment of out-of-state sex-
offenders is rationally related to its interest in protecting its
citizens from sexual offenses. First, the Commonwealth argues
that it would not be able to replicate adequately the proceedings
that in-state offenders receive prior to community notification
for out-of-state offenders and that the use of inadequate
proceedings would not provide the level of protection it desires.
Specifically, the Commonwealth notes that the hearings for in-
state offenders take place close to the time of sentencing and are
usually conducted by the same judge who presided over the



       15.
          (...continued)
basis of sexual orientation); City of Cleburne v. Cleburne Living
Center, 473 U.S. 432 (1985) (striking down zoning ordinance
excluding homes for mentally disabled). However, the results
of those cases stem from an arbitrariness and irrationality absent
here. I certainly would not hesitate to join the majority had
Pennsylvania’s law suffered from similar inadequacies.

                               46
offender’s trial. Any hearing that would be conducted for an
out-of-state offender would necessarily be conducted by a judge
who is unfamiliar with the offender and nearly always would
take place at a time further removed from the conviction,
increasing the likelihood that, as a general matter, there would
be less relevant information available in an out-of-state
offender’s hearing than in an in-state offenders’ hearing. This
would make the results of out-of-state offenders’ hearings
generally less reliable than those for in-state offenders. Such
reasoning is rational.

        The majority faults it, however, insisting that “in this
digital age court records, transcripts, hearing records and pre-
sentence reports can be transmitted interstate electronically.”
Maj. Op. at 27. Even if the majority is correct that all the
relevant information is readily available, which seems doubtful,
this mistakes our judicial role. Under rational basis review, we
do not pass on the “wisdom, fairness, or [even] logic” of
legislative decisionmaking. Beach Commc’ns, Inc., 508 U.S. at
313; see also Dandridge, 397 U.S. at 486 (“[T]he Fourteenth
Amendment gives the federal courts no power to impose upon
the States their views of what constitutes wise economic or
social policy.”). As long as there is “any reasonably conceivable
state of facts that could provide a rational basis for the
classification,” we must uphold the statute against an equal
protection challenge. Walker, 473 F.3d at 77. If the “question
is at least debatable,” the Commonwealth’s classification
survives rational basis review. Minnesota v. Clover Leaf

                               47
Creamery, Co., 449 U.S. 456, 464 (1981). Because it is
debatable whether appropriate records may be obtained as
readily from the courts of another state as from within the
Pennsylvania court system, Megan’s Law II survives rational
basis review.

        A second rational basis for the different treatment can be
found in the Commonwealth’s argument that Pennsylvania
communities are likely to know more about in-state offenders
than out-of-state offenders because of local media coverage.
The majority calls this reasoning “counter-intuitive and
meritless.” Maj. Op. 29. I disagree. It is not irrational to think
that, on the whole, Pennsylvania communities are more likely to
be aware of in-state sexual offenders than out-of-state offenders.
It may be true that residents of Philadelphia likely would know
more from local media coverage about a sex offender in
Camden, New Jersey than in Pittsburgh, and it may be true that
many (or even most) sex offenders, both in-state and out-of-
state, receive no publicity at all. However, when the legislature
made a distinction between in-state and out-of-state offenders,
“[e]ven if the classification involved here is to some extent both
underinclusive and overinclusive, and hence the line drawn by
[the legislature] imperfect, it is nevertheless the rule that in a
case like this ‘perfection is by no means required.’” Vance v.
Bradley, 440 U.S. 93, 108 (1979) (quoting Phillips Chem. Co.
v. Dumas Sch. Dist., 361 U.S. 376, 385 (1960)).




                               48
       The majority is correct that the driving force behind the
enactment here was a lack of available information about sex
offenders, but this does not mean Pennsylvania must forgo
deciding that, in the case of out-of-state sex offenders paroled
into the Commonwealth, it is going to demand the greater
protection afforded by community notification.                The
Pennsylvania legislature could have rationally believed that
overall there is likely to be a greater lack of public information
for out-of-state offenders than for in-state offenders. This is
sufficient to survive rational basis review.

        My colleagues also suggest that two global concerns
undermine the specific reasoning discussed above. First, they
conclude that “the Commonwealth’s approval and participation
in the Interstate Compact invalidates any rational connection
between the Compact’s stated goals and the Commonwealth’s
disparate treatment of in-state and out-of-state offenders.” Maj.
Op. 30. They claim that they do not second-guess the
Commonwealth’s decision to join the Compact. Id. Instead,
they “merely suggest that [the Commonwealth] must hold to its
agreement.” Id. But how is this relevant to our equal protection
analysis? We agree that Doe does not have a private right of
action under the Compact. The Equal Protection Clause should
not be construed to allow him a de facto right of action. Any
alleged violation of the Compact is not properly before us and
it is inappropriate for us to try to enforce it via the Equal
Protection Clause.



                               49
        Second, the majority reasons that the “Commonwealth’s
arguments are further undercut by subsequent legislation.” Id.
at 33. Megan’s Law III indeed may improve upon the former
legislation.16 However, our rational basis inquiry does not
require us to invalidate legislation that can be improved or that
has been improved. Accordingly, I am unpersuaded that
Megan’s Law II should be invalidated under rational basis
review.17

                           *****




       16.
         Megan’s Law III, 2004 Nov. 24, P.L. 1243, No. 152, §
7, established new rules and procedures for out-of-state
offenders, which Doe describes as bringing Pennsylvania closer
to other jurisdictions.     Doe explains that they subject
transferring probationers and parolees to community notification
if the offender would have been subject to community
notification in the state in which parole or probation was
imposed. Because these new rules are not at issue in this appeal,
we need not consider how Doe would be treated under them.

       17.
          Because the District Court did not reach Doe’s due
process claim, I would remand for that Court to address the
issue in the first instance. Berda v. CBS Inc., 881 F.2d 20, 28
(3d Cir. 1989) (“Generally, in the absence of ‘exceptional
circumstances,’ we decline to ‘consider an issue not passed upon
below.’”).

                               50
       I believe that Megan’s Law II passes the rational basis
test, the standard we apply. Because I believe the majority
misapplies that test, apparently concluding that there is no
conceivable set of facts that the Pennsylvania legislature could
have rationally believed to justify the different treatment here, I
respectfully dissent.




                                51
