                       [J-121B-2016] [OAJC: Dougherty, J.]
                  IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


COMMONWEALTH OF PENNSYLVANIA,               :   No. 47 MAP 2016
                                            :
                    Appellee                :   Appeal from the Order of the Superior
                                            :   Court at No. 2169 MDA 2014 dated
                                            :   August 7, 2015 Affirming the Order of
             v.                             :   the Court of Common Pleas of
                                            :   Cumberland County, Criminal Division,
                                            :   at No. CP-21-CR-0000903-2006 dated
JOSE M. MUNIZ,                              :   October 14, 2014.
                                            :
                    Appellant               :   ARGUED: December 6, 2016


                                CONCURRING OPINION


JUSTICE WECHT                                               DECIDED: July 19, 2017
      I agree that the retroactive application of Pennsylvania’s Sex Offender

Registration and Notification Act (“SORNA”) violates Article I, Section 17 of the

Pennsylvania Constitution. I do not agree that “Pennsylvania’s ex post facto clause

provides even greater protections than its federal counterpart.”         See Opinion

Announcing the Judgment of the Court (“OAJC”) at 55.

      The Pennsylvania Constitution prohibits the General Assembly from enacting ex

post facto laws, one type of which are laws that retroactively increase the punishment

for a particular crime. See Calder v. Bull, 3 U.S. 386, 390 (1798); Commonwealth v.

Kalck, 87 A. 61, 62 (Pa. 1913).      To determine whether a specific law inflicts a

punishment, this Court traditionally has used the United States Supreme Court’s intent-

effects test. See Smith v. Doe, 538 U.S. 84, 92-102 (2003) (applying the intent-effects

test in the ex post facto context); Lehman v. Pa. State Police, 839 A.2d 265, 271-74

(2003) (same). Under that framework, as the lead opinion explains, we first determine
whether the General Assembly meant to impose a punishment. Smith, 538 U.S. at 92.

If so, our inquiry ends there. But if the General Assembly instead sought to create a

civil (non-punitive) regulatory scheme, we turn to Smith’s second prong, under which we

consider whether the law is “so punitive either in purpose or effect as to negate [the

legislature’s] intention to deem it civil.” Id. (quoting United States v. Ward, 448 U.S.

242, 248-49 (1980) (internal quotation marks omitted)). In making this assessment, the

seven Mendoza–Martinez1 factors serve as “useful guideposts,” Hudson v. United

States, 522 U.S. 93, 99 (1997), but they are “neither exhaustive nor dispositive.” Ward,

448 U.S. at 249.

      The lead opinion begins its analysis of SORNA using the intent-effects

framework and concludes that the General Assembly intended to create a non-punitive

statutory scheme. See OAJC at 27-29. The lead opinion then goes on to find that

SORNA’s punitive effect is so overwhelming that it negates the General Assembly’s

intent. See OAJC at 29-45. Because I agree with both of these conclusions, I also

agree that SORNA (as applied to Muniz) violates Article I, Section 17 of the

Pennsylvania Constitution.2

1
      See Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).
2
        I would resolve this case on state constitutional grounds, and decline to address
Muniz’s claim that SORNA also violates the ex post facto clause of the United States
Constitution. The lower federal courts disagree as to whether sex-offender registration
laws violate the federal ex post facto clause, and the United States Supreme Court may
accept review of one such dispute in the coming months. Does #1-5 v. Snyder, 834
F.3d 696 (6th Cir. 2016), petition for cert. filed, 2016 WL 7335854 (U.S. Dec. 14, 2016)
(No. 16-768); see Snyder v. Does #1-5, 580 U.S. ___, 137 S.Ct. 1395 (U.S. Mar. 27,
2017) (inviting the Acting Solicitor General to file a brief expressing the views of the
United States). Under these circumstances, I would simply hold that SORNA violates
Article I, Section 17 of the Pennsylvania Constitution—a determination for which this
Court is the final arbiter. Michigan v. Long, 463 U.S. 1032, 1041 (1983) (“If a state court
chooses merely to rely on federal precedents as it would on the precedents of all other
jurisdictions, then it need only make clear by a plain statement in its judgment or opinion
that the federal cases are being used only for the purpose of guidance, and do not
(continued…)

                        [J-121B-2016] [OAJC: Dougherty, J.] - 2
      Rather than stop here, the lead opinion goes one step further and concludes that

the ex post facto clause of the Pennsylvania Constitution provides greater protection

than its federal counterpart. As I explore in more detail below, there is little textual or

historical support for this conclusion, and this Court’s Article I, Section 17 decisions

make the lead opinion’s reasoning even less tenable. Thus, I simply would reiterate

here what this Court has said many times before: the United States Supreme Court’s

interpretation of the federal ex post facto clause is entirely consistent with our

understanding of Pennsylvania’s clause. See Commonwealth v. Young, 637 A.2d 1313,

1317 n.7 (Pa. 1993).

      To determine whether a particular provision of the Pennsylvania Constitution

protects individual liberty to a greater extent than an analogous clause in the United

States Constitution, we must evaluate: (1) the text of the Pennsylvania constitutional

provision; (2) the history of the provision, including Pennsylvania case law; (3) related

case law from other states; and (4) policy considerations, including unique issues of

state and local concern. Commonwealth v. Edmunds, 586 A.2d 887, 895 (Pa. 1991).

                                       I.     Text

      In addressing the first Edmunds factor, we must compare the text of Article I,

Section 17 of the Pennsylvania Constitution with that of Article I, Section 10 of the

United States Constitution.3 The former provides that “[n]o ex post facto law, nor any

law impairing the obligation of contracts, or making irrevocable any grant of special


(…continued)
themselves compel the result that the court has reached.”); Mullaney v. Wilbur, 421 U.S.
684, 691 (1975) (“[S]tate courts are the ultimate expositors of state law.”).
3
      The United States Constitution has two provisions that prohibit ex post facto
laws: one that restricts Congress (Article I, Section 9) and one that applies to the
several states (Article I, Section 10).



                        [J-121B-2016] [OAJC: Dougherty, J.] - 3
privileges or immunities, shall be passed.” PA. CONST. art. I, § 17. Similarly, the latter

directs that “[n]o State shall . . . pass any Bill of Attainder, ex post facto Law, or Law

impairing the Obligation of Contracts . . . .” U.S. CONST. art. I, § 10. In other words, as

the lead opinion observes, the current text of Article I, Section 17 is nearly identical to its

federal counterpart. OAJC at 49.

       Of course, identical language alone does not necessarily indicate identical

meaning. Edmunds, 586 A.2d at 895-96 (“[W]e are not bound to interpret the two

[constitutional] provisions as if they were mirror images, even where the text is similar or

identical.”). So a thorough examination of the history of the two provisions is necessary.

                                        II.     History

       To say that the rejection of ex post facto laws is of early lineage would be an

understatement. A presumption against such legislation was recognized in both the

Napoleonic Code and the Roman law codification of the Emperor Justinian. Kaiser

Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 855 (1990) (Scalia, J., concurring)

(“The principle that the legal effect of conduct should ordinarily be assessed under the

law that existed when the conduct took place has timeless and universal human

appeal.”) (citing, inter alia, Justinian Code, Book 1, Title 14, § 7 and 1 Code Napoleon,

Prelim. Title, Art. I, cl. 2 (B. Barrett trans. 1811)). And the great authorities on British

common law considered ex post facto laws to be void in and of themselves. 1 W ILLIAM

BLACKSTONE, COMMENTARIES       ON THE    LAWS   OF   ENGLAND *46 (stating that ex post facto

laws are “cruel and unjust”); Calder, 3 U.S. at 391 (discussing the similar views of

Blackstone’s successor, Richard Wooddeson). The Framers, too, had little regard for

ex post facto laws. Madison considered them to be “contrary to the first principles of the

social compact and to every principle of sound legislation,” THE FEDERALIST NO. 44, at

282 (James Madison) (Clinton Rossiter ed., 1961), and Hamilton described them as “the




                         [J-121B-2016] [OAJC: Dougherty, J.] - 4
favorite and most formidable instruments of tyranny.” THE FEDERALIST NO. 84, at 512

(Alexander Hamilton) (Clinton Rossiter ed., 1961).4

      Both the historical record and the Constitution’s text show that the other

delegates to the Constitutional Convention shared Madison and Hamilton’s hostility to

ex post facto laws. Sure, some of the delegates opposed Sections 9 and 10 of Article I.

But they did so on the belief that ex post facto laws were so unmistakably void that

explicitly prohibiting them would “impl[y] an improper suspicion” of the legislature. See

Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. CHI. L. REV. 1127, 1157-

58 (1987) (quoting James Madison’s notes from the Federal Convention of 1787). In

the end, those views did not prevail. The convention’s final draft included two ex post

facto clauses—a testament to the fact that the Framers “viewed, with some

apprehension, the violent acts which might grow out of the feelings of the moment.”

Fletcher v. Peck, 10 U.S. 87, 137-38 (1810).

      After the ratification of the United States Constitution, the citizens of this

Commonwealth adopted the Pennsylvania Constitution of 1790. That charter, much like

the United States Constitution, included a clause forbidding the enactment of ex post

facto laws.   As this Court has said in the past, the “same pre-revolutionary-war

concerns” that influenced the Framers of the United States Constitution also shaped

Pennsylvania’s ex post facto clause. See Commonwealth v. Gaffney, 733 A.2d 616,

621 (Pa. 1999); OAJC at 51.

4
       The Framers’ hostility toward ex post facto laws grew from the British
Parliament’s practice of enacting “bills of attainder” and “bills of pains and penalties,”
some of which would retroactively declare innocent acts to be criminal, while others
would simply increase the punishment for past offenses. Calder, 3 U.S. at 389 (stating
that the ex post facto clause “very probably arose from the knowledge . . . that the
Parliament of Great Britain claimed and exercised a power to pass such laws”).
Parliament justified these laws by insisting that they were necessary to preserve “the
safety of the kingdom.” Id.



                        [J-121B-2016] [OAJC: Dougherty, J.] - 5
        The 1790 ex post facto clause was a bit more concise than the present-day

version. It provided simply that “[n]o ex post facto law, nor any law impairing contracts,

shall be made.”       PA. CONST. of 1790, art. IX, § 17.          Later, the delegates to the

Constitutional Convention of 1873 proposed (and the electorate approved) minor

revisions to that language—substituting the verb “passed” in the place of the word

“made” and adding the phrase “the obligation of” before the word “contracts.” These

changes are modest, and they seem to reflect little more than a desire to mirror

language used in the United States Constitution.

        Indeed, records from the 1873 Convention reveal that the amended clause’s

resemblance to the federal ex post facto clause was no coincidence. See 5 DEBATES OF

THE   CONVENTION TO AMEND     THE   CONSTITUTION OF PENNSYLVANIA 631 (1873) (remarks of

Charles R. Buckalew, suggesting that the clause “was intended to follow the language

of the Constitution of the United States,” and questioning whether some words “were

dropped out by accident”); id. (remarks of Thomas MacConnell, chairman of the

Committee on the Bill of Rights, agreeing that the clause should “conform[ ] to the

national Constitution”); id. (another delegate, Wayne MacVeagh, correctly predicting

that “the desire to harmonize this instrument with the Constitution of the United States

will prevail”).   The same records confirm that the delegates were familiar with the

prevailing judicial interpretation of the United States Constitution’s ex post facto clause.

3 DEBATES    OF THE   CONVENTION    TO     AMEND   THE   CONSTITUTION   OF   PENNSYLVANIA 28, 30

(1873) (discussing various judicial decisions, including Calder v. Bull).               Yet, the

Convention vetoed a proposal to expand the scope of our clause beyond the limits that

courts had established. 5 DEBATES OF THE CONVENTION TO AMEND THE CONSTITUTION OF

PENNSYLVANIA 313-14 (1873) (rejecting a provision that would have barred all retroactive

legislation, whether civil or criminal).




                          [J-121B-2016] [OAJC: Dougherty, J.] - 6
      Despite this compelling evidence that Pennsylvania’s ex post facto clause means

the same thing that the federal clause does, the lead opinion concludes that this

Edmunds factor “militates in favor of holding the Pennsylvania clause is even more

protective than its federal counterpart.” OAJC at 52. Citing an amicus brief authored by

the Defender Association of Philadelphia and the Pennsylvania Association of Criminal

Defense Lawyers, the lead opinion finds that the “location of Pennsylvania’s clause

within the Declaration of Rights lends considerable force to the argument it provides

even more protection than its federal counterpart.” Id. at 48. As I understand it, the gist

of amici’s argument on this point is that Pennsylvania’s ex post facto clause must reach

further than the federal cause because it falls within our charter’s enumerated “rights

reserved and retained by the people,” whereas “[t]he federal clause is not contained

within the Bill of Rights.” Brief for Defender Association & PACDL at 37.

      Amici’s theory bases too much upon too little. The reason that the federal clause

does not appear in the Bill of Rights is that the clause predates the Bill of Rights.5 In

any event, I fail to see why the Bill of Rights—a collection of amendments that did not

limit the power of state governments until after the ratification of the Fourteenth

Amendment—would have been a more logical home for a provision that restricts the

legislative power of the states. If anything, the presence of a substantive restriction on

state police powers in Article I underscores that the Framers regarded the prohibition on

ex post facto laws as an important “bulwark in favor of personal security and private

rights.” THE FEDERALIST NO. 44, at 301 (James Madison) (Clinton Rossiter ed., 1961).



5
       It is important to remember that the original Constitution purposely did not
enumerate individual rights, since some delegates worried that such a list would be
construed to deny the public any unexpressed rights. Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 579 (1980).



                        [J-121B-2016] [OAJC: Dougherty, J.] - 7
       The lead opinion also asserts that this Court has “noted divergence between” the

state and federal ex post facto clauses in the past. OAJC at 51. Specifically, the lead

opinion highlights language from Commonwealth v. Lee, 935 A.2d 865 (Pa. 2007),

which suggests that the seventh Mendoza–Martinez factor, standing alone, could justify

the conclusion that a sanction is punitive.     Id. at 876 n.24 (stating in dicta that “a

showing of sufficient excessiveness in Megan’s Law II’s [registration, notification, and

counseling] provisions might warrant a finding that those provisions are punitive”). The

lead opinion evidently views this to be in conflict with the United States Supreme Court’s

oft-quoted warning that “no one [Mendoza–Martinez] factor should be considered

controlling as they ‘may often point in differing directions.’” Hudson, 522 U.S. at 101

(quoting Mendoza-Martinez, 372 U.S. at 169).         In my view, however, there is little

tension between these two instructions.

       As an initial matter, I fail to see how a court could ever conclude that a particular

sanction is “excessive in relation to the alternative purpose assigned” (the seventh

factor) without first identifying some “alternative purpose to which [the sanction] may

rationally be connected” (the sixth factor). Mendoza-Martinez, 372 U.S. at 168-69. The

fact that the seventh factor logically cannot stand alone renders academic any debate

about whether that factor would be sufficient in isolation.

       More importantly, the United States Supreme Court’s ex post facto jurisprudence

does not foreclose the possibility that a facially non-punitive law might constitute

punishment solely because it is excessive relative to its regulatory aim. The principle

that “no one [Mendoza-Martinez] factor should be considered controlling,” Hudson, 522

U.S. at 101, does not mean that the Mendoza-Martinez framework is an exercise in

arithmetic, or that at least two of the seven factors must be present before a law can be

deemed punitive. Rather, it simply reminds courts to consider all seven of the factors




                         [J-121B-2016] [OAJC: Dougherty, J.] - 8
before reaching a conclusion, since some factors may outweigh others, depending upon

the particular statute at issue. In this regard, the Court has emphasized that the seven

factors “are all relevant to the inquiry,” that they are “neither exhaustive nor dispositive,”

and that they are “useful guideposts.” Mendoza-Martinez, 372 U.S. at 169; Ward, 448

U.S. at 249; Smith, 538 U.S. at 97; see Erin Murphy, Paradigms of Restraint, 51 DUKE

L.J. 1321, 1349 (2008) (observing that Smith’s second prong “is not applied according

to any precise mathematical formulation, . . . and at various times the courts have

emphasized particular factors over others.”).

       Contrary to the lead opinion’s suggestion that our decisions indicate “divergence

between the clauses,” OAJC at 51, I believe that this Court has gone to great lengths to

align our own ex post facto jurisprudence with decisions from the United States

Supreme Court. For example, prior to Smith, we analyzed ex post facto challenges

using the Third Circuit Court of Appeals’ three-prong Artway/Verniero6 test. After the

United States Supreme Court adopted the intent-effects test in Smith, however, we did

the same—announcing that we would abandon the Artway/Verniero test “[i]n order to

promote consistency.” Lehman, 839 A.2d at 271.

       Nor should we ignore that this Court consistently has relied upon federal

precedent when resolving state ex post facto claims, see e.g., Young, 637 A.2d at 1317

(citing Calder, 3 U.S. at 390, and Collins v. Youngblood, 497 U.S. 37, 40-51 (1990));

Commonwealth v. Duffy, 96 Pa. 506, 513 (Pa. 1880) (defining “ex post facto laws”

consistent with Justice Chase’s definition in Calder); Kalck, 87 A. at 62 (noting that the

rule announced in Calder remains unchanged), occasionally even going so far as to

suggest that the resolution of an “appellant’s federal ex post facto claim disposes of his

6
      See Artway v. Att’y Gen. of N.J., 81 F.3d 1235 (3d Cir. 1996); E.B. v. Verniero,
119 F.3d 1077 (3d Cir. 1997).



                         [J-121B-2016] [OAJC: Dougherty, J.] - 9
state claim as well.” Young, 637 A.2d at 1317 n.7; accord Commonwealth v. Fisher,

741 A.2d 1234, 1238 (Pa. 1999) (“Our interpretation of the state constitutional

prohibition against ex post facto laws has been consistent with the United States

Supreme Court’s interpretation of the federal prohibition, and therefore the analysis of

Appellant’s federal ex post facto claim encompasses his state claim.”).7

                       III.   Related Case Law from Other States

       The next Edmunds factor involves consideration of related case law from other

jurisdictions.   Ordinarily, this includes a survey of states that have adopted federal

constitutional standards, states that have departed from federal constitutional

standards, and the reasons given for each adoption or departure. Yet, Muniz’s entire

argument on this Edmunds factor consists of quotations from three state courts that

have “expressed concern regarding the public’s perception and treatment of offenders.”

Brief for Muniz at 30 (quoting the Maryland, Alaska, and Indiana high courts). The lead

opinion finds these expressions persuasive, and concludes that this Edmunds factor

suggests Pennsylvania’s ex post facto clause provides more protection than its federal

analogue. Respectfully, I disagree.

       When a statute is challenged on state constitutional grounds, most state high

courts apply federal ex post facto doctrine (including the four categories from Calder,

7
        In at least one later case, the Court did undertake an Edmunds analysis, and
discerned no basis to conclude that the standards applicable to federal ex post facto
challenges are inadequate to safeguard the Pennsylvania constitutional right. Gaffney,
733 A.2d at 622 (“Appellant has failed to present any compelling reason for our
departure from the standards appropriate for determining whether an ex post facto
violation pursuant to the federal constitution has occurred and we find no independent
reasons for doing so.”); accord Commonwealth v. McElhenny, 478 A.2d 447, 450 (Pa.
Super. 1984) (rejecting the argument that Article I, Section 17 of the Pennsylvania
Constitution provides greater protection than the corresponding federal provision, and
noting that Pennsylvania courts “have, generally, interpreted the Pennsylvania clause
coterminously with the Federal clause”).



                          [J-121B-2016] [OAJC: Dougherty, J.] - 10
the intent-effects test from Smith, and the seven useful guideposts from Mendoza–

Martinez).8 Even among the state courts that have struck down retroactive sex-offender

registration laws on ex post facto grounds—a cross section that one would expect to

skew in favor of finding more robust state constitutional protections—most have

remained loyal to the United States Supreme Court’s ex post facto jurisprudence. See

e.g., Doe v. State, 111 A.3d 1077, 1090 (N.H. 2015) (holding that the New Hampshire

Constitution and the United States Constitution “afford the same protection against ex

post facto laws”); Starkey v. Oklahoma Dept. of Corr., 305 P.3d 1004, 1019 (Okla.

2013) (adopting “the analytical framework used in Smith v. Doe”); State v. Letalien, 985

A.2d 4, 14 (Me. 2009) (holding that “the ex post facto clauses of the Maine and United

States Constitutions are interpreted similarly and are coextensive”); Commonwealth v.

Baker, 295 S.W.3d 437, 442 (Ky. 2009), cert. denied, 559 U.S. 992 (2010) (treating the

ex post facto clauses of the Kentucky and United States Constitutions as one and the

same and applying Smith’s intent-effects test); Doe v. State, 189 P.3d 999, 1007



8
        See e.g., Riley v. N.J. Parole Bd., 98 A.3d 544, 552 (N.J. 2014) (“The New
Jersey Ex Post Facto Clause is interpreted in the same manner as its federal
counterpart.”); Rew v. Bergstrom, 845 N.W.2d 764, 795 (Minn. 2014) (“[W]e can discern
no principled reason, textual or otherwise, to treat the prohibition on ex post facto laws
in the Minnesota Constitution any differently than its federal counterpart[.]”); People v.
Earl, 845 N.W.2d 721, 725 n.1 (Mich. 2014) (treating the Michigan Constitution’s ex post
facto clause as coextensive with its federal counterpart); State v. Harris, 414 S.W.3d
447, 449 (Mo. 2013) (“The Missouri Constitution’s ban on ex post facto laws is
coextensive with the United States Constitution’s ban on ex post facto laws.”); In re
Interest of J.R., 762 N.W.2d 305, 316 (Neb. 2009) (construing Nebraska’s ex post facto
clause “to provide no greater protections than those guaranteed by the federal
Constitution”); People ex rel. Birkett v. Konetski, 909 N.E.2d 783, 800 (Ill. 2009) (“[T]he
ex post facto clause in the Illinois Constitution does not provide greater protection than
that offered under the United States Constitution.”); Kellar v. Fayetteville Police Dept., 5
S.W.3d 402, 405 (Ark. 1999) (“We have been given no reason why we should interpret
Arkansas’s ex post facto clause in a manner contrary to the ex post facto clause in the
United States Constitution.”).



                        [J-121B-2016] [OAJC: Dougherty, J.] - 11
(Alaska 2008) (holding that the United States Supreme Court’s “intent-effects test

provides an appropriate analytical framework” under the Alaska Constitution).

       As always, there are a few exceptions.       In 2013, a plurality of the Court of

Appeals of Maryland held that the ex post facto clause of that state’s constitution affords

Marylanders more protection than Article I, Section 10 of the United States Constitution

does. Doe v. Dept. of Pub. Safety & Corr. Servs., 62 A.3d 123, 130-37 (Md. 2013). The

court’s departure from federal law was prompted by a very specific doctrinal glitch that

arose from two nineteenth century Supreme Court cases. In the first of those cases,

Kring v. Missouri, 107 U.S. 221 (1883), the Supreme Court defined ex post facto laws to

include legislation that “alters the situation of a party to his disadvantage.” Id. at 235.

And in the second case, Thompson v. Utah, 170 U.S. 343 (1898), the Court held that a

particular retroactive law violated the ex post facto clause because it deprived criminal

defendants of “a substantial right.” Id. at 352.

       The language used in Kring and Thompson caused considerable confusion.

Some state courts, like the Court of Appeals of Maryland, for example, seemed to read

Kring and Thompson as alternatives to Calder’s four categories of ex post facto laws.

See Anderson v. Dept. of Health & Mental Hygiene, 528 A.2d 904, 909 (Md. 1987)

(stating that the ex post facto clause “embraces consequences affecting substantial

rights if they ‘disadvantage the offender’”); State v. Rowe, 181 A. 706, 709 (N.J. Sup.

1935) (listing six categories of ex post facto laws). Other courts continued to adhere to

the Supreme Court’s suggestion that the ex post facto clause does not turn on whether

the defendant has suffered some sort of “disadvantage.” See Dobbert v. Florida, 432




                        [J-121B-2016] [OAJC: Dougherty, J.] - 12
U.S. 282, 293 (1977) (“Even though it may work to the disadvantage of a defendant, a

procedural change is not ex post facto.”).9

      Eventually, the Supreme Court disavowed both Kring’s “disadvantage” standard

and Thompson’s focus on “substantial rights,” explaining that both approaches deviated

from the original meaning of the term ex post facto.         Collins, 497 U.S. at 50-52

(overruling Kring and Thompson).       Despite this clarification, the Maryland Court of

Appeals (or at least a plurality of the judges on the court) continues to adhere to the

now-abandoned “disadvantage” standard as a matter of state constitutional law. Doe,

62 A.3d at 132-33. In so holding, the plurality repudiated aspects of the court’s earlier

ex post facto decisions, some of which treated the state and federal clauses as

coterminous. See e.g., Sec’y, Dept. of Pub. Safety & Corr. Servs. v. Demby, 890 A.2d

310, 327 (Md. 2006) (“We have held that the ex post facto clause in the Maryland

Declaration of Rights has the same meaning as the federal clause.”); Khalifa v. State,

855 A.2d 1175, 1189 (Md. 2004) (“The Ex Post Facto Clauses of the United States

Constitution and Maryland Declaration of Rights have been viewed generally to have

the ‘same meaning’ and are thus to be construed in pari materia.”).

      Unlike the Maryland Court of Appeals, this Court has acknowledged that

references in our prior decisions to laws that either implicate “substantial rights” or

“disadvantage” a defendant “should not be read so as to enlarge the Calder categories

beyond their meaning at the time of the adoption of the Constitution.” Young, 637 A.2d

at 1317-18; see Fisher, 741 A.2d at 1238 (“[T]he Constitution does not prohibit every

retrospective law that alters a party’s situation to his disadvantage.”).       Thus, the


9
       See also Murphy v. Kentucky, 465 U.S. 1072, 1073 (1984) (White, J., dissenting
from denial of certiorari) (citing conflicting lower court decisions concerning the ex post
facto clause’s application to retroactive evidentiary and procedural rules).



                        [J-121B-2016] [OAJC: Dougherty, J.] - 13
Maryland court’s departure from the prevailing federal constitutional standards provides

no basis for this Court to follow suit.

       The Supreme Court of Indiana is another tribunal that has diverged from United

States Supreme Court precedent.           Although the Smith intent-effects test is the

“appropriate analytical framework for analyzing ex post facto claims under the Indiana

Constitution,” courts in that state do not subscribe to the view that only the clearest

proof of a statutory scheme’s punitive effect can negate the legislature’s assertedly non-

punitive intent. Compare Smith, 538 U.S. at 92 (“Because we ordinarily defer to the

legislature’s stated intent, . . . only the clearest proof will suffice to override legislative

intent and transform what has been denominated a civil remedy into a criminal

penalty.”), with Wallace v. State, 905 N.E.2d 371, 398 n.7 (Ind. 2009) (“[O]ur standard of

review for challenges to the constitutionality of a statute has never included a clearest

proof element.”).    Unlike the Supreme Court of Indiana, however, this Court has

embraced Smith’s “clearest proof” requirement. Lehman, 839 A.2d at 272 (“[O]nly the

clearest proof will suffice to override legislative intent and transform what has been

denominated a civil remedy into a criminal penalty.”); cf. Stilp v. Commonwealth, 905

A.2d 918, 939 (Pa. 2006) (“[A] legislative enactment will not be deemed unconstitutional

unless it clearly, palpably, and plainly violates the Constitution.”).

       The lead opinion is not swayed by the number of states that have adopted

federal constitutional standards for purposes of their own ex post facto clauses.

According to the lead opinion, the Pennsylvania Constitution warrants unique treatment

because, unlike some other state constitutions, ours protects the right to reputation.

OAJC at 52-53. Along these lines, the lead opinion finds persuasive the fact that a few

state high courts—in holding that retroactive sex-offender registration laws violate ex

post facto principles—have “found harm to the reputations of offenders to be a factor in




                         [J-121B-2016] [OAJC: Dougherty, J.] - 14
their constitutional analysis.”    Id.   Those courts have done so, the lead opinion

continues, “even in the absence of a constitutional provision like Pennsylvania’s to give

special protection to [reputation] interest[s].” Id.

       In my view, the fact that our state Constitution protects reputational rights (PA.

CONST. Art. 1, § 1) has little bearing on the question before us.10 As explained, the

critical inquiry for purposes of the ex post facto clause, as we have understood it for

more than two centuries, is whether the law at issue constitutes “punishment.” Harm to

reputation may help us to answer that question, but only because public ridicule and

vilification of those who commit crimes historically has been (and sometimes still is)

used as form of punishment. See Smith, 538 U.S. at 97 (“Some colonial punishments

indeed were meant to inflict public disgrace. Humiliated offenders were required ‘to

stand in public with signs cataloguing their offenses.’”) (quoting Adam Jay Hirsch, From

Pillory to Penitentiary: The Rise of Criminal Incarceration in Early Massachusetts, 80

MICH. L. REV. 1179, 1226 (1982)); Gaffney, 733 A.2d at 620 (distinguishing sex-offender

registries from the colonial-era punishments of “shame” and “ignominy” described in

Nathaniel Hawthorne’s The Scarlet Letter (1850)). This is why, as the lead opinion

notes, some courts will discuss a law’s impact on an offender’s reputation even in the

absence of an explicit constitutional right to reputation. But it is not a reason to depart

from federal constitutional standards, which already require courts to consider such

concerns. See e.g., Mendoza–Martinez, 372 U.S. at 168 (holding that courts must

analyze both whether a sanction “has historically been regarded as a punishment” and

whether it “will promote the traditional aims of punishment”).


10
       If anything, the very existence of a reputation clause suggests that the drafters of
our constitution believed that the right was not protected sufficiently by other provisions
of the Declaration of Rights.



                         [J-121B-2016] [OAJC: Dougherty, J.] - 15
      Given these points, the case law from other jurisdictions does not convince me

that the lead opinion’s interpretation of the Pennsylvania Constitution is warranted. To

the contrary, the experiences of our sister courts persuade me that we should err on the

side of restraint when considering a departure from federal constitutional standards.

Compare Miller v. State, 584 S.W.2d 758, 762 (Tenn. 1979) (holding that the ex post

facto clause of the Tennessee Constitution extends beyond the limits of its federal

counterpart), with State v. Pruitt, 510 S.W.3d 398, 416 (Tenn. 2016) (“There is simply

nothing in the text of our constitution nor in our history that supports the Miller Court’s

holding that the meaning of ‘ex post facto’ in Tennessee is more expansive than the

definition provided by Justice Chase in 1798.”).

                             IV.    Policy Considerations

      Muniz’s discussion of Edmunds’ policy prong is quite limited; he merely asserts

that the Commonwealth “has an interest in the finality of sentencing.” Brief for Muniz at

31.   Muniz does not explain why this alleged interest supports the view that

Pennsylvania’s ex post facto clause prohibits laws other than those which constitute

“punishment.”   Nor does he clarify why sentencing finality is an interest unique to

Pennsylvania.   (Surely, every state would have a similar “interest” in the finality of

criminal sentences.) And to make matters worse, Muniz has not even bothered to

discuss the ex post facto clause’s “application within the modern scheme of

Pennsylvania jurisprudence.” Edmunds, 586 A.2d at 901.

      In short, Muniz’s argument here “falls short of the kind of searching inquiry

required” to justify a departure from federal ex post facto precedent, Commonwealth v.

Russo, 934 A.2d 1199, 1212 (Pa. 2007), and the lead opinion does not supply any

pertinent policy concerns that Muniz may have overlooked.

                                   V.     Conclusion




                        [J-121B-2016] [OAJC: Dougherty, J.] - 16
       Neither Muniz nor the lead opinion offer much to undermine the perception that—

as the text and history of our Constitution seem to require, as those who wrote it

seemed to expect, and as our past cases have all suggested—the state and federal ex

post facto clauses are coterminous.        Nonetheless, as the lead opinion’s thorough

analysis makes clear, OAJC at 27-45, applying the federal ex post facto standards also

leads to the conclusion that SORNA is punitive and cannot be applied retroactively.

Thus, I join parts I-IV and VII of the lead opinion, and otherwise concur in the result.

       Justice Todd joins this concurring opinion.




                        [J-121B-2016] [OAJC: Dougherty, J.] - 17
