NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-2036
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CHARLES FROSS; M. DOE; D. DOE;
SHAWN CZERWIEN; CHARLES METER;
CHRISTOPHER HAIGH
v.
COUNTY OF ALLEGHENY,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 2-08-cv-01405)
Honorable Gary L. Lancaster, District Judge
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Argued December 16, 2009
BEFORE: SLOVITER, JORDAN, and GREENBERG, Circuit Judges
(Filed: July 19, 2011)
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Donald Driscoll (argued)
PA Institutional Law Project
1705 Allegheny Building
429 Forbes Avenue
Pittsburgh, PA 15219
Witold J. Walczak
American Civil Liberties Union of Pennsylvania
313 Atwood Street
Pittsburgh, PA 15213
Edwin J. Strassburger
Strassburger, McKenna, Gulnick & Gefsky
Suite 2200, Four Gateway Center
444 Liberty Avenue
Pittsburgh, PA 15222
Attorneys for Appellees
George M. Janocsko
Assistant County Solicitor
Caroline P. Libenguth
Assistant County Solicitor
Craig E. Maravich (argued)
Assistant County Solicitor
Michael H. Wojcik
County Solicitor
Office of Allegheny County
Law Department
445 Fort Pitt Boulevard
300 Fort Pitt Commons Building
Pittsburgh, PA 15219
Attorneys for Appellant
Andrew A. Chirls
Matthew A. Fry
Haines & Associates
1835 Market Street
Suite 2420
Philadelphia, PA 19103
Attorneys for Amicus
Curiae Association for The
Treatment of Sexual Abusers
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OPINION OF THE COURT
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GREENBERG, Circuit Judge.
I. INTRODUCTION
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This matter comes on before this Court on an appeal brought by Allegheny
County, Pennsylvania, from an order entered in the District Court on March 20, 2009,
granting summary judgment to the six appellees, each of whom had been convicted of
committing a sex offense requiring registration as a sex offender under Pennsylvania=s
Megan=s Law, in this action in which appellees challenged the validity of Allegheny
County Ordinance, No. 39-07-OR, entitled AResidence Requirements, Registered Sex
Offenders,@ on various federal grounds and the state law ground that Pennsylvania law
preempts the ordinance. The ordinance limits the places where sex offenders can reside
within the County by precluding them from residing within 2,500 feet of child care
facilities, community centers, public parks, recreation facilities, or schools. The District
Court held that the ordinance conflicts with Pennsylvania statutory law establishing a
statewide system for supervising sex offenders following their release from prison. Thus,
the Court held that state law preempted the ordinance and it did not decide the federal
questions. Fross v. County of Allegheny, 612 F. Supp. 2d 651 (W.D. Pa. 2009).
Consequently, under the District Court=s opinion and order, the ordinance is not
enforceable.
Following the entry of the summary judgment, the County advised appellees that it
intended to appeal. Consequently, appellees sought and obtained an order on April 2,
2009, from the District Court permitting it to file an application for counsel fees and costs
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within 30 days of the exhaustion of all appeals. 1 The County then appealed. The District
Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367 and we have jurisdiction
under 28 U.S.C. § 1291. We exercise plenary review of the District Court’s order, see
Santos ex rel. Beato v. United States, 559 F.3d 189, 193 (3d Cir. 2009), subject, however,
to the binding effect of the opinion of the Supreme Court of Pennsylvania that we
describe below.
After having read the briefs and submissions of the parties, considering their oral
arguments, and reviewing applicable Pennsylvania law, we concluded that the appeal
raised important and unresolved questions of the enforceability of county and local
ordinances restricting the places at which sex offenders may reside within jurisdictions
adopting such ordinances. We also concluded that the case, though dealing with an
ordinance effective in only one county, was of state-wide importance inasmuch as other
counties and municipalities might adopt similar ordinances, particularly if the County
prevailed on this appeal. Furthermore, we concluded that even though we had
jurisdiction to decide the appeal, we could not issue an opinion that would be binding on
courts throughout Pennsylvania but that it was important that such an opinion be
rendered. We recognized, however, that the Supreme Court of Pennsylvania could issue
an opinion that would be binding on a state-wide basis. Accordingly, we certified the
question of whether Pennsylvania law preempts the ordinance to the Supreme Court of
1
That order did not affect the finality of the order of March 20, 2009, for appeal purposes.
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Pennsylvania pursuant to the certification procedure outlined in this Court=s Local
Appellate Rule Misc. 110 and Internal Operating Procedure 10.9 and the Supreme Court
of Pennsylvania=s Internal Operating Procedure Rule 10 and requested that the Supreme
Court of Pennsylvania grant the petition for certification. In particular, we certified the
question to the Supreme Court in the following form:
Is Allegheny County Ordinance No. 39-07-01 entitled ‘Residence
Requirements; Registered Sex Offenders’ preempted by Pennsylvania
statutory law and the procedures of the Pennsylvania Board of Probation
and Parole?
At that time, notwithstanding the certification, we retained jurisdiction of the appeal
pending resolution of our petition. On June 3, 2010, the Supreme Court granted the
petition for certification and thus we have continued to retain jurisdiction over the appeal
without deciding it.
On May 25, 2011, the Supreme Court of Pennsylvania answered the certified
question in an opinion which, after a comprehensive review of Pennsylvania law,
concluded as follows:
The County’s legislative effort in this instance undermines the General
Assembly’s policies of rehabilitation, reintegration, and diversion from
prison of appropriate offenders, and significantly interferes with the
operation of the Sentencing and Parole Codes. For these reasons, we agree
with the federal district court that the County’s Ordinance stands as an
obstacle to accomplishing the full purposes [and] objectives of the General
Assembly and is, therefore, preempted.
Fross v. County of Allegheny, 20 A.3d 1193, ____ (Pa. 2011).
See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717 (1988).
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When we received the Supreme Court opinion our Clerk directed the parties to file
letter briefs commenting on the effect of the Supreme Court’s decision. The parties have
filed those briefs and are in agreement that the Supreme Court’s decision should lead us
to affirm the District Court’s decision and order of March 20, 2009, and we agree with
them on this point. Furthermore, the parties agree that we can remand the issue of
appellees’ request for attorneys’ fees and costs for the proceedings in the District Court to
that Court for resolution, though appellees contend that alternatively we could retain
jurisdiction over the attorneys’ fees and costs issue and decide it ourselves. We reject
appellees’ alternative suggestion because the District Court is more familiar than are we
with the proceedings in that Court and thus it should pass on the attorneys’ fees and cost
issues in the proceedings before it.
For the foregoing reasons we will affirm the order of March 20, 2009, and will
remand the case to the District Court for resolution of the attorneys’ fees and costs issues
for the proceedings in that Court. We, however, will tax costs against the County in this
Court.
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