R.C. v. Commissioner of the PA State Police, R. Evanchick

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

R.C., :
Petitioner :
:
v. : No. 223 M.D. 2019
: Argued: February 8, 2021
Commissioner of the Pennsylvania :
State Police, Robert Evanchick, :
Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: March 17, 2021

Presently before the Court are Preliminary Objections (POs) in the nature of
demurrers filed by the Commissioner of the Pennsylvania State Police, Robert
Evanchick (PSP), to the Amended Petition for Review (Amended Petition) in the
nature of mandamus and declaratory relief filed by R.C. (Petitioner) in our original
jurisdiction. Petitioner avers that the irrebuttable presumption that sexual offenders
pose a high risk of recidivism1 and the internet registration notification system in the
most recent enactment of the Sexual Offender Registration and Notification Act, Act

1
The General Assembly declared that “[s]exual offenders pose a high risk of committing
additional sexual offenses . . . .” Section 9799.11(a)(4) of the Act of February 21, 2018, P.L. 27,
No. 10, as amended by the Act of June 12, 2018, P.L. 140, No. 29, 42 Pa.C.S. § 9799.11(a)(4).
of February 21, 2018, P.L. 27, No. 10 (Act 10), 42 Pa.C.S. §§ 9799.10-9799.75, as
amended by the Act of June 12, 2018, P.L. 140, No. 29 (Act 29) (collectively, Act
29),2 violate procedural and substantive due process and that Act 29 violates his right
to reputation under article I, section 1 of the Pennsylvania Constitution without due
process.3 Upon review, we overrule PSP’s POs and order PSP to file an answer to
Petitioner’s Amended Petition.

I. Background
Petitioner avers the following, as was set forth in R.C. v. Commissioner of the
Pennsylvania State Police, Robert Evanchick (Pa. Cmwlth., No. 223 M.D. 2019,
filed December 5, 2019) (R.C. I). In R.C. I, Petitioner was challenging the previous

2
The parties refer to Acts 10 and 29 alternatively as Acts 10/29 and Act 29. For clarity,
we will refer to them as Act 29. Act 29 was enacted in response to the Supreme Court’s decision
in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), wherein the Supreme Court determined
that the Sexual Offender Registration and Notification Act (SORNA), formerly 42 Pa.C.S. §§
9799.10-9799.41, violated the ex post facto clauses of the United States and Pennsylvania
Constitutions. 42 Pa.C.S. § 9799.51(b)(4). With Act 29, the General Assembly modified
subchapter H to address registration requirements for individuals who committed offenses on or
after December 20, 2012, the effective date for SORNA, for which the individual was convicted.
See 42 Pa.C.S. § 9799.11(c). Through subchapter I, the General Assembly also created new
registration requirements for individuals who committed offenses between April 22, 1996, and
December 20, 2012, whose registration periods had not expired, and offenders who were required
to register under a pre-SORNA statute between April 22, 1996, and December 20, 2012, whose
registration had not yet expired. See 42 Pa.C.S. § 9799.52. It is undisputed that subchapter I is
the applicable subchapter in Petitioner’s case.
3
While Petitioner’s Amended Petition refers to article I, section 9 of the Pennsylvania
Constitution, it is clear from the allegations and arguments that Petitioner meant to refer to the
right to reputation as protected by the Pennsylvania due process clause in article I, section 1.
Article I, section 1 of the Pennsylvania Constitution, Pennsylvania’s due process clause, provides,
“All men are born equally free and independent, and have certain inherent and indefeasible rights,
among which are those of enjoying and defending life and liberty, of acquiring, possessing and
protecting property and reputation, and of pursuing their own happiness.” PA. CONST. art. I, § 1
(emphasis added).

2
iteration of the Sexual Offender Registration and Notification Act (SORNA),
formerly 42 Pa.C.S. §§ 9799.10-9799.41. There, we explained as follows:

Petitioner was convicted on August 3, 2001, of involuntary deviate
sexual intercourse and “related offenses” for an incident occurring on
October 24, 2000. (Petition [(Pet.)] ¶ 5.) Petitioner was released from
custody in 2007, completed serving his entire sentence in 2011, and is
no longer under court supervision. PSP notified Petitioner in December
2012 that he was required to comply with SORNA. Following that,
Petitioner filed a petition for review with this Court in April 2013,
averring that SORNA was an ex post facto punishment and seeking
injunctive relief. This Court denied that relief with one exception, and
the Supreme Court affirmed. Coppolino v. Noonan, 102 A.3d 1254 (Pa.
Cmwlth. 2014), aff’d, 124 A.3d 1196 (Pa. 2015). The Supreme Court’s
subsequent decision in [Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017)] was directly contrary to Coppolino. Accordingly, Petitioner
filed another petition for review with this Court in October 2017[,
which was docketed with this Court at 457 M.D. 2017.] . . . [Petitioner
discontinued this petition] in February 2018 after receiving notice from
PSP that it was removing Petitioner’s name from the list of SORNA
registrants. However, PSP [then] notified Petitioner that it [was] []
resuming its enforcement of the registration requirement against
Petitioner under Act [29].

R.C. I, slip op. at 2-3.
Petitioner then filed another petition for review with this Court, requesting
declaratory and mandamus relief and arguing that this enforcement was “without
due process and without just cause” and illegally punitive as applied to Petitioner.
(Pet. ¶ 4.) PSP filed POs in the nature of demurrers, but because there existed, at
that time, pending litigation as to the punitive effect of Act 29, if any, before the
Supreme Court in Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020), this Court
overruled PSP’s POs with respect to Petitioner’s ex post facto claim that Act 29 was
punitive. R.C. I, slip op. at 19. We also overruled the POs with respect to PSP’s
claim that mandamus was not proper, but we sustained PSP’s POs as to Petitioner’s

3
claim that Act 29 did not apply to him. Id. Finally, we sustained PSP’s POs with
respect to Petitioner’s due process claim but granted Petitioner leave to amend his
Petition to develop his due process claims. Id.
In his Amended Petition,4 Petitioner now requests declaratory and injunctive
relief and asserts “that he has a federal and state constitutional right, as a matter of
due process of law, to his reputation and to preserve the same in his community, and
that Act 29 . . . constitutes a substantive and procedural deprivation of his right to
due process of law.” (Amended Petition (Am. Pet.) ¶ 14.) Focusing on his
procedural claim, Petitioner “submits that his right to procedural due process has
been abridged by [Act 29’s] irrebuttable presumption that all sex offenders [pose] a
high risk of reoffending.” (Id. ¶ 14(e).) Most retroactive registrants, Petitioner
avers, pose “no higher risk to commit a future sexual crime than people not currently
on the [sex offender registry (]Registry[)]” and “that the Registry fails to achieve its
purpose of protecting the public and likely makes residents of the Commonwealth
of Pennsylvania less safe.” (Id. ¶ 14(a), (b).) Additionally, Act 29, Petitioner
alleges, imposes “progressively rigid conditions” that “label a broad number of
people as high risk recidivists” and “leaves . . . Petitioner without any reasonable
means of proving that he is not worthy of such monitoring and supervision . . .
thereby further depriving him of procedural due process of law.” (Id. ¶ 14(f).)
Petitioner further avers “that the public distribution of his personal
information on the global internet website” and Act 29’s “internet notification
provisions and . . . irrebuttable presumption . . . violate [] Petitioner’s right to
substantive due process of law.” (Id. ¶ 14(c), (d).) Finally, Petitioner “contends that

4
In his Amended Petition, it appears that Petitioner incorporates the factual averments from
his original petition for review, as the paragraph numbering begins at 14, sequentially following
the final paragraph from his original Petition.

4
[Act 29] infringes upon his constitutionally protected reputational interests” under
article I, section 1 of the Pennsylvania Constitution “because this law is not narrowly
tailored to advance a compelling state interest.” (Id. ¶ 15.) Petitioner requests that
this Court “grant him the declaratory and injunctive relief requested in his original
Petition for Review,” (Am. Pet., Wherefore Clause), which is to “direct [PSP] to
remove [Petitioner’s] name from the list of offenders required to comply with the
provisions of [Act 29],” (Pet., Wherefore Clause).
In response to Petitioner’s Amended Petition, PSP filed POs in the nature of
demurrers. PSP’s first demurrer challenges Petitioner’s claim, as set forth in
paragraph 14(e) of the Amended Petition, that Act 29’s irrebuttable presumption that
sex offenders pose a high risk of recidivism violates procedural due process. PSP
argues that Petitioner’s claim should fail because the irrebuttable presumption
doctrine is not applicable here or, in the alternative, that Petitioner cannot satisfy the
doctrine’s three-part analysis. PSP’s next demurrer challenges Petitioner’s claim, as
set forth in paragraph 14(d) of the Amended Petition, that the public distribution of
his personal information on the internet violates substantive due process. PSP argues
that substantive due process is not the proper analytical framework to address
Petitioner’s claims and that his right to reputation was not infringed because the
challenged provisions survive under either intermediate scrutiny, which PSP argues
applies under these circumstances, or strict scrutiny. PSP’s final demurrer
challenges Petitioner’s requested injunctive relief that his name be removed from
the Registry. PSP argues that Petitioner is under an independent federal obligation
to register as a sex offender, and, therefore, “mandamus relief [is] a futile exercise.”
(POs ¶ 48.) We note that PSP has not specifically challenged Petitioner’s claims in
his Amended Petition that Act 29’s internet notification provisions and irrebuttable

5
presumption violate substantive due process or that Act 29 violates article I, section
1 of the Pennsylvania Constitution, which protects the right to reputation. (See Am.
Pet. ¶¶ 14(c), 15.)
In Petitioner’s Answer, he argues that this Court should overrule PSP’s POs
because he has stated a claim upon which relief could be granted, and, taking his
allegations regarding his right to reputation as true, this claim is properly before this
Court.

II. Discussion
When ruling on POs in the nature of a demurrer, this Court must “accept as
true all well-pleaded material allegations” in the Amended Petition and any
inferences that can be drawn therefrom, but we are not required to accept as true
legal conclusions, unwarranted factual inferences, argumentative allegations, or
expressions of opinions. Armstrong Cnty. Mem’l Hosp. v. Dep’t of Pub. Welfare, 67
A.3d 160, 170 (Pa. Cmwlth. 2013). Because sustaining a demurrer results in the
dismissal of a petition, POs “in the nature of a demurrer should be sustained only in
cases that clearly and without a doubt fail to state a claim upon which relief may be
granted.” Bell v. Twp. of Spring Brook, 30 A.3d 554, 557 n.7 (Pa. Cmwlth. 2011).
Any doubt as to whether the POs should be sustained must be resolved in favor of
overruling them. Pa. State Lodge, Fraternal Ord. of Police v. Dep’t of Conservation
& Nat. Res., 909 A.2d 413, 416 (Pa. Cmwlth. 2006). With these standards in mind,
we turn to PSP’s POs.

A. Irrebuttable Presumption Doctrine under Due Process
1. Parties’ Arguments
PSP’s first demurrer challenges Petitioner’s due process claim as to Act 29’s
irrebuttable presumption that sex offenders pose a high risk of reoffending. PSP

6
contends that Petitioner’s due process rights have not been violated because Act 29
does “not implicate the [i]rrebuttable [p]resumption [d]octrine.” (POs ¶ 8; PSP’s
Brief (Br.) at 4.) “The first step in any due process analysis,” PSP submits, “is to
determine whether an interest that is protected by due process is involved at all.”
(POs ¶ 9 (citing Am. Mfrs. Mut Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999)).) “If so,
the next question is whether the presumption is not universally true, and, finally,
whether reasonable alternative means exist for ascertaining the presumed fact.” (Id.
¶ 10 (citing In re J.B., 107 A.3d 1, 15-16 (Pa. 2014)).) PSP asserts that Petitioner’s
pleadings are legally insufficient to establish any of these elements.
PSP argues that, under Connecticut Department of Safety v. Doe, 538 U.S. 1,
7 (2003), the first element is not satisfied. PSP asserts no due process rights are
implicated here because “[d]ue process does not entitle [a petitioner] to a hearing to
establish a fact that is not material under the [] statute,” (POs ¶ 14), and compliance
under Act 29’s registration and notification requirements is “not based upon an
individualized assessment of the continuing dangerousness of any particular sex
offender or how likely they are to reoffend,” (id. ¶ 15 (quotations omitted)). PSP
submits that because “a sex offender’s potential dangerousness is immaterial to the
statutory scheme,” “due process is not implicated” and “the first element of the
[i]rrebuttable [p]resumption [d]octrine” cannot be satisfied. (Id. ¶ 16.) Even if due
process and the irrebuttable presumption doctrine are implicated, PSP posits, the
second element, “whether the presumption is universally true,” is not satisfied. (Id.
¶ 17.) On this point, PSP argues that Petitioner’s averments suggest that there is not
a consensus that sexual offenders are likely to reoffend, (id. ¶ 19), which, PSP
contends, requires “‘[the courts] defer to the General Assembly’s findings.’” (Id.
¶ 20 (quoting Muniz, 164 A.3d at 1217).) Finally, PSP submits that the third

7
element, “whether there exists reasonable alternative means of ascertaining the
presumed fact,” (id. ¶ 23), is not satisfied. PSP argues that this policy determination
should be left to the General Assembly because the “judiciary is poorly equipped to
make such assessments.” (Id. ¶¶ 24-25 (citing Tosto v. Pa. Nursing Home Loan
Agency, 331 A.2d 198, 202 (Pa. 1975)).) And, for these reasons, PSP argues
“Petitioner’s procedural due process challenge on the basis of an irrebuttable
presumption must be dismissed.” (Id. ¶ 26.)
In response, Petitioner asserts that “[t]he irrebuttable presumption created by
Act 29 violates due process because it is not universally true and a reasonable
alternative means of ascertaining that presumed fact is available.” (Petitioner’s Br.
at 6.) Petitioner requests that this Court apply the irrebuttable presumption doctrine
analysis from J.B. because Act 29 “brands every registrant with the same ‘indelible
mark of dangerousness’” that was held by the Supreme Court to be unconstitutional
as applied to juveniles in that case. (Id. (quoting J.B., 107 A.3d at 19).) According
to Petitioner, “there is overwhelming evidence that relatively few people empirically
assess at high risk and in fact most become almost no risk after a period of 15 years
from the date of the crime.” (Id.) Petitioner further asserts that “an individualized
risk assessment would provide a reasonable alternative means to determine whether
[Petitioner] presents a high risk of recidivism.” (Id. (citing J.B., 107 A.3d at 19).)
In its reply brief, PSP asserts that Petitioner’s reliance on J.B. is misguided
because “juvenile offenders are fundamentally different from adult offenders” and
“have a low level of recidivism[] as compared to adult offenders . . . .” (PSP’s Reply
Br. at 1.) PSP posits that Petitioner’s argument “ignores the findings and intent of
the General Assembly,” which “found that, as a cohort, adult sexual offenders are at
a high risk to re-offend, and sexual offender registration laws, such as Act 29, help

8
to protect the Public from these offenders.” (Id.) PSP asserts that “[b]ecause there
is no attempt to ‘predict’ the likelihood of any individual offender’s reoffending,
there is no need for an individualized assessment.” (Id.)
The Court directed the parties to prepare a memorandum of law discussing
any effect that the Supreme Court’s recent decision in Commonwealth v. Torsilieri,
232 A.3d 567 (Pa. 2020), decided after the parties here filed their briefs, may have
on our decision. In his memorandum, Petitioner emphasizes that the Supreme Court
in Torsilieri

acknowledged that the [d]efendant had presented “colorable
constitutional challenges” through scientific research . . . and that []
remand was necessary in order to allow the parties “to present
additional argument and evidence to address whether a scientific
consensus has developed to overturn the legislative determinations in
regard to adult sexual offenders’ recidivation rates and the effectiveness
of a tier-based registration and notification system as they relate to the
prongs of the irrebuttable presumption doctrine.”

(Petitioner’s Memorandum of Law (Memo) at 3 (quoting Torsilieri, 232 A.3d at 587-
88).) Petitioner further argues that this Court should apply the Torsilieri holding in
a similar manner as applied in Commonwealth v. Muhammad, 241 A.3d 1149 (Pa.
Super. 2020),5 in that this Court should find that Act 29 creates an impermissible
“stigma” that Petitioner is “a dangerous adult who is likely to commit further sexual
offenses.” (Petitioner’s Memo at 4.) As to the reasonable alternatives element of
the irrebuttable presumption doctrine, Petitioner also emphasizes that the appellant
in Muhammad proffered two such alternatives. Therefore, Petitioner asserts,
because this same stigma “of disgrace [applies to Petitioner and] profoundly affects

5
In general, Superior Court decisions are not binding on this Court, but they may be offered
for their persuasive value. Lerch v. Unemployment Comp. Bd. of Rev., 180 A.3d 545, 550 (Pa.
Cmwlth. 2018).

9
[Petitioner’s] ability to obtain employment, education, and housing, which in turn
impedes [Petitioner’s] ability to function as a productive member of society,” this
Court should overrule PSP’s POs. (Id. at 4-5 (quoting Muhammad, 241 A.3d at
1158).)
In its memorandum, PSP argues that “Torsilieri does not support Petitioner’s
arguments regarding the irrebuttable presumption doctrine.” (PSP’s Memo at 1.)
PSP posits that, under Torsilieri,

Petitioner must demonstrate either (1) a consensus of scientific
evidence rebutting the presumption that sexual offenders, as a cohort,
are at a high risk of reoffending (thus rebutting the General Assembly’s
legislative findings), or (2) the clearest proof to rebut the General
Assembly’s unequivocal declaration that Acts 10 and 29 are non-
punitive.

(Id. at 2 (quotations omitted).) As to Act 29’s presumption, the Supreme Court, PSP
argues, “has repeatedly reaffirmed that it defers to the General Assembly’s findings
regarding the high rates of recidivism of adult sexual offenders as a cohort.” (Id. at
3 (citing Lacombe, 234 A.3d at 625; Muniz, 164 A.3d at 1189).) Because of the
General Assembly’s findings as to this presumption and the Supreme Court’s
holding in Lacombe that Act 29 is non-punitive, the “Amended Petition necessarily
fails.” (Id. at 2-3.)
PSP additionally relies on W.W. v. Pennsylvania State Police (Pa. Cmwlth.,
No. 239 M.D. 2020, filed January 15, 2021),6 in arguing that “the presumption that
adult sex offenders as a cohort pose a higher risk of recidivism is still accepted as
universally true” and that “a declaratory and mandamus petition[,] such as that

6
W.W. is unreported, and while unreported opinions may be cited for their persuasive
values, they do not constitute binding precedent. See Pennsylvania Rule of Appellate Procedure
126(b), Pa.R.A.P. 126(b); Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code § 69.414(a) (unreported opinions do not constitute binding precedent).

10
brought here[,]” is not the “proper mechanism for challenging that presumption.”
(Id. at 4.) Finally, PSP argues that Petitioner’s reliance on Muhammad is misplaced
because the defendant there was convicted of non-sexual offenses, and, therefore,
the reasoning does not apply to Petitioner who was convicted of multiple sexual
offenses. Therefore, Muhammad “should not serve as a basis to grant [] Petitioner
relief in this mandamus petition.” (Id. at 5).

2. Analysis
Article I, section 1 of the Pennsylvania Constitution states that “[a]ll men are
born equally free and independent, and have certain inherent and indefeasible rights,
among which are those of enjoying and defending life and liberty, of acquiring,
possessing and protecting property and reputation, and of pursuing their own
happiness.” PA. CONST. art. I, § 1 (emphasis added). In Pennsylvania, the right to
reputation is fundamental and “cannot be abridged without compliance with state
constitutional standards of due process.” Taylor v. Pa. State Police, 132 A.3d 590,
605 (Pa. Cmwlth. 2016). Here, Petitioner claims a violation of this provision
through Act 29’s improper use of an irrebuttable presumption.
The origins of the irrebuttable presumption doctrine

derive[] from a series of United States Supreme Court cases in the
1970s involving statutes that infringed upon protected interests or
denied benefits by utilizing presumptions that the existence of one fact
was statutorily conclusive of the truth of another fact. The High Court
concluded that, absent a meaningful opportunity to contest the validity
of the second fact, the statutory irrebuttable presumptions deprived the
citizenry of due process of law.

11
J.B., 107 A.3d at 14 (collecting cases). In Department of Transportation, Bureau of
Driver Licensing v. Clayton, 684 A.2d 1060, 1063 (Pa. 1996),7 our Supreme Court
analyzed the irrebuttable presumption doctrine under due process generally and
adopted the federal framework, holding that “such irrebuttable presumptions are
violative of due process where the presumption is deemed not universally true and a
reasonable alternative means of ascertaining that presumed fact are available.”
At issue here is the General Assembly’s finding that “[s]exual offenders pose
a high risk of committing additional sexual offenses . . . .” 42 Pa.C.S. §
9799.11(a)(4). Our courts have addressed, though not yet fully resolved, the issue
of whether SORNA’s and Act 29’s presumption is an irrebuttable presumption that
violates due process. As these cases guide our resolution of the parties’ arguments,
we begin with a review thereof.
The Supreme Court in J.B. examined the irrebuttable presumption doctrine as
it applied to SORNA’s presumption with respect to juvenile offenders and their right
to reputation. In reviewing the petitioners’ claims, the Court set forth the following
three-element analysis: (1) “whether [petitioners] have asserted an interest protected
by the due process clause that is encroached by an irrebuttable presumption[;]” (2)
“whether the presumption is not universally true[;]” and (3) “whether a reasonable

7
In Clayton, the Supreme Court stated it did not “believe it wise to pigeonhole whether an
analysis of an irrebuttable presumption is solely one of substantive or procedural due process,” as
the United States Supreme Court cases analyzed did not “discuss[] whether the analysis being
employed was strictly substantive or that of procedural due process.” 684 A.2d at 1064. The
Court reasoned “it may be that an analysis of such presumptions by its very nature eludes such
precise cataloguing,” as the presumption “is the substance of the statute or regulation at issue,
which presumption necessarily implicates process given its conclusiveness.” Id. (emphasis in
original); see Torsilieri, 232 A.3d at 581. While Petitioner in this case asserts his claim under both
procedural and substantive due process, and PSP maintains that it is properly brought only under
procedural due process, we follow the Supreme Court’s lead in Clayton and will analyze it
generally under due process without pigeonholing the claim as one solely cognizable under
procedural or substantive due process.

12
alternative means exists for ascertaining the presumed fact.” J.B., 107 A.3d at 15-
16. Applying this framework to the facts in J.B., the Court first “recognized that the
right to reputation, although absent from the federal constitution, is a fundamental
right under the Pennsylvania Constitution.” Id. at 16 (collecting cases). In
concluding that the petitioners had “asserted a constitutionally protected interest in
their reputation that ha[d] been encroached by the use of [the] irrebuttable
presumption,” the Court explained that

[w]hile a juvenile offender is provided an opportunity to be heard
regarding the adjudication of delinquency for the relevant crime, the
delinquency hearing does not consider the relevant question of whether
the juvenile offender is at risk of reoffense. Instead, the juvenile
offender is automatically designated a sexual offender solely as a result
of the delinquency adjudication under [SORNA] with the attendant
presumption of a high risk of reoffense.

Id. at 17. Because the juvenile offenders had not had the opportunity to challenge
the universality element in the analysis, the Supreme Court held that the “process
which eliminates consideration of the paramount factor, in this case the likelihood
of committing additional sexual offenses, does not provide procedural due process,
as it blocks the opportunity to be heard on the relevant issue.” Id.
Following J.B., this Court addressed an adult offender’s claim that SORNA’s
irrebuttable presumption violated procedural due process under the Pennsylvania
Constitution in Taylor, 132 A.3d at 590.8 PSP filed POs arguing, as here, that the
petitioner’s irrebuttable presumption claim failed under Doe and that the petitioner
could not satisfy the universality factor of the irrebuttable presumption doctrine. We
overruled PSP’s POs, holding that the petitioner had sufficiently alleged, through

8
SORNA likewise provided the exact legislative finding as in Act 29 that “[s]exual
offenders pose a high risk of committing additional sexual offenses . . . .” Former 42 Pa.C.S.
§ 9799.11(a)(4).

13
supporting studies, that the presumption was not universally true under the second
element of J.B.’s framework. “Just as the petitioners in J.B. were entitled to prove
their allegations with regard to recidivism rates in juvenile offenders,
notwithstanding previous judicial findings to the contrary, [the p]etitioner must be
afforded an opportunity to present his proof.” Id. at 607. Furthermore, we also
explained the flaw in PSP’s reliance on Doe, 538 U.S. at 8, that petitioners “who
assert a right to a hearing under the Due Process Clause[, PA. CONST. art. I, § 1,]
must show that the facts they seek to establish in that hearing are relevant under the
statutory scheme.” Taylor, 132 A.3d at 607. We determined that “the question of
whether the facts [the petitioner] seeks to challenge are relevant to SORNA’s
statutory scheme is inextricably linked to the merits of [the petitioner’s] claim that
SORNA’s irrebuttable presumption violates his procedural due process rights.” Id.
Therefore, we overruled PSP’s POs and permitted the petitioner the opportunity to
prove his contentions.
This Court subsequently examined this issue as it applies under Act 29 in Cao
v. Pennsylvania State Police (Pa Cmwlth., No. 512 M.D. 2015, filed October 16,
2019). In Cao, the petitioner brought the same claim as Petitioner in this case, that
Act 29’s internet notification requirements infringe on his right to reputation and
that the irrebuttable presumption violates due process. PSP filed a PO arguing that
the petitioner’s due process claim fails because he failed to allege an interest
protected by either federal or Pennsylvania due process. This Court applied Taylor’s
reasoning to Act 29’s irrebuttable presumption and held that the petitioner had stated
a colorable claim as to the irrebuttable presumption doctrine and, as such, overruled
PSP’s PO as to this issue, as well as overruling PSP’s PO that the petitioner failed
to state a claim under substantive due process.

14
 As previously mentioned, our Supreme Court recently addressed this issue
under Act 29 in Torsilieri. In Torsilieri, the Supreme Court considered the
Commonwealth of Pennsylvania’s (Commonwealth) direct appeal from a trial
court’s decision finding that Subchapter H of Act 29 violated due process through
the use of an unconstitutional irrebuttable presumption infringing on the right of
reputation.9 The trial court had applied the three-element analysis of J.B. to the
evidence presented and, finding all three elements satisfied, held Act 29 was
unconstitutional “due to the legislature’s use of the irrebuttable presumption that all
sexual offenders pose a high risk of sexual recidivism.” Torsilieri, 232 A.3d at 586.
On appeal, the Supreme Court declined to render a decision on the merits of
the case and remanded for further proceedings. The Court explained that

[g]iven the procedures leading to this point, the importance of the
underlying issue, and our deference to legislative policy
determinations, we decline to render a conclusion on the basis of the
record before us. Instead, we conclude that remand is necessary to
allow the parties to present additional argument and evidence to address
whether a scientific consensus has developed to overturn the
legislative determinations in regard to adult sexual offenders’
recidivation rates and the effectiveness of a tier-based registration
and notification system as they relate to the [elements] of the
irrebuttable presumption doctrine.

Id. at 587-88 (emphasis added). With regard to the Commonwealth’s argument that
deference be given to the legislature’s policy assessment, as the Supreme Court had
done in Muniz, and the existence of conflicting studies as to sexual offenders’
recidivism, the Court emphasized that

9
Although Subchapter H of Act 29 applied to the petitioner in Torsilieri, the irrebuttable
presumption that sexual offenders pose a high risk of recidivism in Subchapter H is the same as
that employed in Subchapter I, which is applicable to Petitioner in the present case. Accordingly,
it follows that the Supreme Court’s analysis as to the irrebuttable presumption applies here.

15
 all cases are evaluated on the record created in the individual case.
Thus, a court need not ignore new scientific evidence merely
because a litigant in a prior case provided less convincing evidence.
Indeed, this Court will not turn a blind eye to the development of
scientific research, especially where such evidence would demonstrate
infringement of constitutional rights.

Torsilieri, 232 A.3d at 595-96 (emphasis added). However, the Court also
emphasized that “it will be the rare situation where a court would reevaluate a
legislative policy determination, which can only be justified in a case involving the
infringement of constitutional rights and a consensus of scientific evidence
undermining the legislative determination.” Id. at 596 (emphasis added). And,
therefore, it cautioned that although Pennsylvania

courts are empowered to enforce constitutional rights, they should
remain mindful that “the wisdom of a public policy is one for the
legislature, and the General Assembly’s enactments are entitled to a
strong presumption of constitutionality rebuttable only by a
demonstration that they clearly, plainly, and palpably violate
constitutional requirements.”

Id. (quoting Shoul v. Dep’t of Transp., Bureau of Driver Licensing, 173 A.3d 669,
678 (Pa. 2017)) (emphasis added).
Nevertheless, because it was “apparent from the trial court findings” that “the
evidence presented by [Torsilieri] provide[d] a colorable argument to debunk the
settled view of sexual offender recidivation rates and the effectiveness of tier-based
sexual offender registration systems underlying the General Assembly’s findings,”
the Supreme Court held remand was proper to “provide both parties an opportunity
to develop arguments and present additional evidence,” which the trial court should
weigh to determine whether Torsilieri had refuted the relevant legislative findings.
Torsilieri, 232 A.3d at 596.

16
 Following Torsilieri, the Superior Court has also remanded multiple cases for
evidentiary hearings to address the issue of Act 29 and the irrebuttable presumption
doctrine. See Commonwealth v. Asher (Pa. Super., No. 1133 MDA 2019, filed Dec.
21, 2020) (vacating and remanding for a hearing to present evidence for and against
Act 29’s legislative determination under Torsilieri); Commonwealth v. King (Pa.
Super., No. 2636 EDA 2019, filed Nov. 10, 2020) (same as applied to a Subchapter
I registrant); Commonwealth v. Mickley, 240 A.3d 957 (Pa. Super. 2020) (same). As
noted by the parties, the Superior Court in Muhammad has also affirmed a trial
court’s finding, in an as-applied challenge, that Act 29’s irrebuttable presumption
violated due process. In that case, the Superior Court held that a remand was not
necessary to address the as-applied challenge to the irrebuttable presumption
because the record had been sufficiently developed to show that the appellant had
proven that, as applied to her, Act 29’s “provision that sexual offenders pose a high
risk of recidivating [was] an irrebuttable presumption that clearly, palpably, and
plainly violates [the a]ppellant’s constitutional right to reputation.” Muhammad,
241 A.3d at 1159 (emphasis added). Accordingly, the Superior Court granted the
requested relief and vacated the order directing the appellant to register as a sex
offender. PSP argues Muhammad is distinguishable because the petitioner was
convicted of offenses that PSP describes as non-sexual. However, these offenses,
while arguably not inherently sexual in nature, are qualifying offenses under Act 29
for purposes of requiring registration as a sexual offender. And, as such, Act 29’s
presumption applies to individuals convicted of those offenses in the same manner
as those convicted of inherently sexual offenses. That the petitioner had the
opportunity and was able to show that the presumption was not universally true, as
applied to her, is the same opportunity that Petitioner here seeks.

17
 From these cases, a principle has developed. Where a petitioner raises a
colorable due process violation under the irrebuttable presumption doctrine, all three
Pennsylvania appellate courts have concluded that the petitioner must be given the
opportunity to present evidence in an effort to rebut the legislative finding with
respect to an adult sexual offender’s recidivation rates and the effectiveness of a tier-
based registration and notification system. Applying this principle to Petitioner’s
allegations and PSP’s POs in this case, we reach the same conclusion—Petitioner
has stated a colorable claim for a violation of due process as a result of Act 29’s
irrebuttable presumption and must be provided the opportunity to present evidence
rebutting the relevant legislative findings.
The first step in applying the irrebuttable presumption doctrine framework
from J.B. is to determine “whether [Petitioner] ha[s] asserted an interest protected
by the due process clause that is encroached by an irrebuttable presumption.” J.B.,
107 A.3d at 15-16. Petitioner argues “that he has a . . . state constitutional right, as
a matter of due process of law, to his reputation,” (Am. Pet. ¶ 14), that “[i]t is well
settled that a citizen of Pennsylvania has the right to protect his reputation” that
“cannot be abridged without due process of law,” and “that sex offender registration
can substantially harm a citizen’s reputation,” (Petitioner’s Br. at 4 (citing J.B., 107
A.3d at 15-16)). Relying on Doe, 538 U.S. at 1, PSP argues that the irrebuttable
presumption doctrine is not applicable to Petitioner because “[u]nder Act 29, a sex
offender’s potential dangerousness is immaterial to the statutory scheme” and,
therefore, no due process rights are implicated. (POs ¶ 16.) However, PSP
previously asserted this argument in Taylor, 132 A.3d at 607, which this Court
rejected, explaining that such reliance was misplaced because “the question of
whether the facts [the petitioner] seeks to challenge are relevant to SORNA’s

18
statutory scheme is inextricably linked to the merits of [the petitioner’s] claim that
SORNA’s irrebuttable presumption violates his procedural due process rights.” Id.
While Taylor involved SORNA, not Act 29, the same presumption is utilized in
both statutes, and PSP offers no reason for treating Act 29 differently from SORNA.
Moreover, it is well-settled that “reputation is among the fundamental rights that
cannot be abridged without compliance with state constitutional standards of due
process.” Taylor, 132 A.3d at 605; see also Muniz, 164 A.3d at 1221; J.B., 107 A.3d
at 16 (recognizing that “the right to reputation, although absent from the federal
constitution, is a fundamental right under the Pennsylvania Constitution”). Indeed,
all three Pennsylvania appellate courts addressing this issue, as discussed above,
have found this right implicated. Accordingly, Petitioner has asserted an interest
protected by this Commonwealth’s constitutional due process clause that is
encroached by an irrebuttable presumption, satisfying the first element of the
analysis.
Our recent opinion in W.W., slip op. at 7-10, does not compel a contrary result.
The Court stated that, in that case, the irrebuttable presumption doctrine and due
process were not implicated by Act 29’s presumption, and, in a footnote, summarily
concluded that Torsilieri did not alter its analysis. Importantly, as the petition was
filed before Torisilieri and its progeny had been written, the petitioner in W.W.
alleged no factual averments as to the universality or reasonable alternative means
elements that would bring it within the recent case law in order to satisfy elements
of the irrebuttable presumption doctrine. Rather, the petitioner pled one conclusory
sentence that the irrebuttable presumption violated due process but provided no
factual support for this contention. Unlike in W.W., here, Petitioner raised the issue
and specifically alleged that “most retroactive registrants are no higher risk to

19
commit a future sexual crime than people not currently on the Registry.” (Am. Pet.
¶ 14(a).) We believe this is enough to support a colorable claim. In its
memorandum, PSP cites W.W. for the proposition that declaratory and mandamus
relief are not the proper mechanisms in which to review this issue. We note that the
Court’s decision in W.W. was directed at a request for mandamus relief, rather than
a request for declaratory and injunctive relief as is requested here. Although there
is a statement in footnote seven that “in the context of a petition seeking declaratory
and mandamus relief, [the petitioner] cannot establish a clear legal right [to relief,]”
W.W., slip op. at 10 n.7, the case cited for this proposition, Allen v. Department of
Corrections, 103 A.3d 365, 369 (Pa. Cmwlth. 2014), did not involve a request for
declaratory relief, only mandamus. Because the Court in W.W. did not specifically
analyze this issue under the standards for declaratory relief, and because Petitioner
here also requests injunctive relief, the mandamus argument is not determinative.
Finally, we note that this case was unreported and is therefore not binding on our
decision here. Accordingly, we find that this case is distinguishable from W.W. on
these bases.
The second step in the analysis is to determine “whether the presumption is
not universally true.” J.B., 107 A.3d at 16. Petitioner avers that most retroactive
registrants pose “no higher risk to commit a future crime than people not currently
on the Registry” and that “the Registry fails to achieve its purpose of protecting the
public and likely makes the residents of the Commonwealth of Pennsylvania less
safe.” (Am. Pet. ¶ 14(a), (b).) Petitioner further asserts that “there is overwhelming
evidence that relatively few people empirically assess at high risk and in fact most
become almost no risk after a period of 15 years from the date of the crime.”
(Petitioner’s Br. at 6.) PSP argues that if Petitioner’s averments are true, then there

20
is no consensus on the universality of the presumption in Act 29, and this Court
should defer to the General Assembly’s findings as to the policy determination that
sexual offenders pose a high risk of recidivism.
Although our Supreme Court in Torsilieri cautioned that Pennsylvania courts
should remain mindful that “the wisdom of a public policy is one for the legislature,
and the General Assembly’s enactments are entitled to a strong presumption of
constitutionality,” it explained that the courts’ “deference to legislative
determination is not boundless” and those determinations are “subject to the limits
of the Constitution.” 232 A.3d at 583 (emphasis added and quotation omitted). The
Supreme Court confirmed that, while the General Assembly establishes public
policy, the “courts are empowered to enforce constitutional rights” where there is “a
demonstration that [the policy] clearly, plainly, and palpably violate[s] constitutional
requirements.” Id. at 596. Therefore, in arguing in its memorandum that “Petitioner
cannot rebut the consensus regarding the high rate of recidivism” because
Petitioner’s “bald assertion” that adult sexual offenders pose no higher risk to
commit a future sexual crime than others not on the Registry fails to demonstrate a
consensus of scientific evidence to find the presumption not universally true, PSP
misconstrues Torsilieri’s holding. At this stage of the proceedings, Petitioner
needed not to have proven his case under the irrebuttable presumption doctrine, but
only to have stated a colorable claim in order to have an opportunity to prove this
claim. Here, like the registrants in Taylor and Cao, and similar to the registrant in
Torsilieri and the registrants in the recent Superior Court decisions cited above,
Petitioner’s averments, if accepted as true, state a colorable claim as to the scientific
consensus regarding Act 29’s irrebuttable presumption, and Petitioner should be

21
given the opportunity to prove his contentions through scientific studies or
comparable evidence that would satisfy this element of the analysis.
The third element of the analysis is to determine “whether a reasonable
alternative means exists for ascertaining the presumed fact.” J.B., 107 A.3d at 16.
Petitioner argues that “an individualized risk assessment would provide a reasonable
alternative means to determine whether [Petitioner] presents a high risk of
recidivism.” (Petitioner’s Br. at 6 (citing J.B., 107 A.3d at 19).) Similar to the
second element, PSP alleges that this, too, is a policy decision that should be left to
the General Assembly’s wisdom. However, as stated, our “deference to [the General
Assembly’s] legislative determination is not boundless,” and the courts “will not
turn a blind eye to the development of scientific research, especially where such
evidence would demonstrate infringement of constitutional rights.” Torsilieri, 232
A.3d at 583, 595-96. Petitioner provides “a colorable argument to debunk the settled
view of sexual offender recidivation rates and the effectiveness of tier-based sexual
offender registration systems,” and, therefore, should be given the opportunity to
“develop arguments and present additional evidence” in support of that argument,
that, if accepted as true, would satisfy the third element of the analysis. Id. at 595-
96.
Accepting as true Petitioner’s allegations regarding recidivism and the
efficacy of Act 29’s registration and notification system as compared to individual
assessments, it cannot be said at this early procedural stage that Petitioner has clearly
and without a doubt failed to state a claim upon which relief should be granted. Such
doubt must be resolved in favor of overruling PSP’s PO. Therefore, consistent with
the holdings of the recent decisions of all three Pennsylvania courts on this issue, we
overrule PSP’s PO.

22
 B. Substantive Due Process
1. Parties’ Arguments
PSP’s next demurrer challenges Petitioner’s substantive due process claim
that the dissemination of his information on the internet violates his fundamental
right to reputation. PSP first argues that substantive due process is not the proper
analytical framework to address Petitioner’s claims as it should be analyzed under
procedural due process. (POs ¶ 29 (citing Albright v. Oliver, 510 U.S. 266, 271
(1994); Graham v. Connor, 490 U.S. 386, 395 (1989)).) Though, “even if
substantive due process were [sic] the correct analytical framework,” PSP asserts,
“the Petitioner’s right to reputation was not unconstitutionally infringed upon.” (Id.
¶ 30.) PSP argues that while, “[o]rdinarily, the right to reputation is fundamental
under the Pennsylvania Constitution, which would suggest strict scrutiny . . . [t]he
application of strict scrutiny . . . depends on [the] context . . . .” (PSP’s Br. at 12
(citing Grutter v. Bollinger, 539 U.S. 306, 327 (2003)).) PSP then draws
comparisons to the Second Amendment right to bear arms under the United States
Constitution10 as to why intermediate, rather than strict, scrutiny should apply. (Id.)
It argues that although “[t]he Second Amendment right to bear arms is []
fundamental . . . [,] courts have held that the core right to bear arms is only enjoyed
by ‘law abiding, responsible citizens.’” (Id. (quoting United States v. Carter, 669
F.3d 411, 416-17 (4th Cir. 2012); Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol,
Tobacco, Firearms, & Explosives, 700 F.3d 185, 205 (5th Cir. 2012)) (emphasis
omitted).) As with the right to bear arms, PSP argues “the right to a protected
reputation generally available to the law-abiding citizenry cannot be a core right to
those convicted criminals who have already besmirched their reputations by their

10
The Second Amendment to the United States Constitution provides, in relevant part, that
“the right of the people to keep and bear Arms shall not be infringed.” U.S. CONST. amend. II.

23
own actions.” (PSP’s Br. at 12-13.) PSP asserts that intermediate scrutiny is
satisfied because there is a reasonable fit between the presumption in Act 29 and the
General Assembly’s asserted objective of protecting public safety. (Id. at 13.) In
the alternative, PSP argues that “even under strict scrutiny, Act 29 is narrowly drawn
to accomplish a compelling governmental interest” of protecting public safety. (Id.
(quotations omitted).) PSP again compares the strict scrutiny analysis here with that
under the right to bear arms, though admitting that “[t]his analysis has not [] yet been
applied in the context of sexual offender registration and notification statutes.” (Id.
at 14.) Finally, PSP compares the right to reputation to other fundamental rights
which “lose that character when applied in certain circumstances,” such as the First
Amendment, U.S. CONST. amend. I, right to speech and content-neutral statutes. (Id.
at 15.)
Petitioner argues that PSP’s arguments fail to address this Court’s decision in
Cao, which “overruled [PSP]’s [PO] that the [p]etitioner had failed to state a claim
upon which relief could be granted because, if the [p]etitioner’s averments regarding
[Act 29’s] effect upon his right to reputation were true, this would be a claim that
could properly proceed before the Commonwealth Court.” (Petitioner’s Answer to
POs at 2.) Petitioner further asserts “that a violation of his right to reputation
requires the Court to apply . . . strict scrutiny, which requires narrow tailoring to a
compelling state interest. (Petitioner’s Br. at 4 (citing Nixon v. Commonwealth, 839
A.2d 277, 287 (Pa. 2003)).) Petitioner asks this Court to reject PSP’s argument
regarding any comparison to firearm restrictions in which intermediate scrutiny
applies and submits that “no cases have held that intermediate scrutiny shall apply
to challenges to [Act 29].” (Id. at 5.)

24
 2. Analysis
Petitioner claims that the dissemination of his personal information to the
public under Act 29 violates substantive due process. As discussed above, a person’s
right to reputation, while not protected by the federal constitution, is protected by
the Pennsylvania Constitution. Muniz, 164 A.3d at 1221; J.B., 107 A.3d at 16. Our
Court has recognized that “reputation is among the fundamental rights that cannot
be abridged without compliance with state constitutional standards of due process.”
Taylor, 132 A.3d at 605. “The substantive component of the Due Process Clause
provides protection against government interference with certain fundamental rights
and liberty interests.” Id. at 608 (citing Khan v. State Bd. of Auctioneer Exam’rs,
842 A.2d 936, 946 (Pa. 2004)). Where a fundamental right is implicated, “strict
judicial scrutiny is applied and the statute ‘may only be deemed constitutional if it
is narrowly tailored to a compelling state interest.’” Id. at 609 (quoting Nixon, 839
A.2d at 287).
In Taylor, we explained that

[a]n extensive review of the law has shown that courts of this
Commonwealth have not specifically addressed whether SORNA’s
registration and notification provisions are narrowly tailored to meet
the government’s compelling interest in protecting the public.[] Nor
have courts assessed whether the public distribution of a sexual
offender’s personal information on a government website violates
substantive due process. Further, the United States Supreme Court has
not addressed this issue. See [Doe], 538 U.S. at 8 [] (addressing
Connecticut’s Megan’s Law[11] and “express[ing] no opinion as to
whether Connecticut’s Megan's Law violates principles of substantive
due process”).

11
Conn. Gen. Stat. §§ 54-250–54-261.

25
132 A.3d at 609 (footnote omitted). Likewise, in Cao, this Court again recognized
that the fundamental right to reputation requires adherence to due process
requirements. Because courts, at that time, had not yet assessed whether Act 29’s
dissemination of sexual offenders’ information on the internet violates due process,
we overruled PSP’s POs as to that issue. Cao, slip op. at 16.
PSP does not address these cases, particularly Cao, and has not pointed us to
any decision addressing this issue differently. After our own review, it appears that
courts have still yet to decide whether Act 29’s dissemination of a registrant’s
information on the internet violates substantive due process. Instead, PSP presents
the novel argument that we should not in these situations treat reputation as a
fundamental right, subject to strict scrutiny, but should instead apply the analysis
employed for violations of the right to bear arms under the Second Amendment to
the United States Constitution, which, it contends, would lead to the application of
intermediate scrutiny. However, as PSP concedes, “[t]his analysis has not [] yet
been applied in the context of sexual offender registration and notification statutes
. . . .” (PSP’s Br. at 14.) This concession, and that PSP asks this Court to employ a
novel legal analysis, belies its position that this issue is properly resolvable as a
demurrer, which is granted only where it is clear and without doubt that the
petitioner has failed to state a claim upon which relief may be granted. Bell, 30 A.3d
at 557 n.7. We conclude that it is not clear and without doubt that Petitioner has
failed to state a claim that Act 29’s distribution of his personal information on the
internet violates substantive due process. Accordingly, we overrule PSP’s PO.

26
 C. Independent Federal Obligation
1. Parties’ Arguments
In this PO, PSP contends that, even if Petitioner is successful in challenging
his registration requirements under state law, he would still have “to register as a sex
offender under federal law, making mandamus relief a futile exercise.” (POs ¶ 48
(citing Thomas v. Blocker, 799 F. App’x 131, 135 (3d Cir.), cert. denied, 141 S. Ct.
164 (2020) (emphasis in original)).) PSP argues that the federal duty to register is
independent of Pennsylvania law. Petitioner responds that the federal issues are still
in litigation. PSP replies that this litigation is with regard to criminal repercussions
for failing to register and then crossing state lines and, therefore, the ongoing
litigation has no bearing on this issue.

2. Analysis
In order to sustain a demurrer, it must be “clear[] and without [] doubt” that
the petition “fail[s] to state a claim upon which relief may be granted.” Bell, 30 A.3d
at 557 n.7. Furthermore, any doubt must be resolved in favor of overruling the
preliminary objections. Pa. State Lodge, 909 A.2d at 416. At this early procedural
posture, the Court cannot sustain this PO asserting an independent federal obligation
to register, particularly when PSP bases its argument upon a nonprecedential circuit
court opinion interpreting a federal statute that Petitioner contends is still being
litigated. Accordingly, we overrule this PO.12

12
We interpret the Amended Petition as requesting injunctive relief, rather than mandamus
relief, as PSP appears to argue. The Amended Petition is titled as “Amended Petition for Review
Seeking Declaratory and Injunctive Relief,” as compared to the title of the original Petition, which
was couched under declaratory and mandamus relief. Therefore, it is not clear PSP’s PO addresses
the claims before the Court.

27
 III. Conclusion
Based on the foregoing, we overrule PSP’s POs. PSP is ordered to file an
answer to the claims in Petitioner’s Amended Petition within 30 days.

_____________________________________
RENÉE COHN JUBELIRER, Judge

28
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

R.C., :
Petitioner :
:
v. : No. 223 M.D. 2019
:
Commissioner of the Pennsylvania :
State Police, Robert Evanchick, :
Respondent :

ORDER

NOW, March 17, 2021, the Preliminary Objections of the Commissioner of
the Pennsylvania State Police, Robert Evanchick (PSP) are OVERRULED. The
PSP is ORDERED to file an answer to the Amended Petition for Review within 30
days.

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

R.C., :
:
Petitioner :
:
v. : No. 223 M.D. 2019
: Argued: February 8, 2021
Commissioner of the Pennsylvania :
State Police, Robert Evanchick, :
:
Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

CONCURRING OPINION
BY JUDGE WOJCIK FILED: March 17, 2021

Respectfully, I concur. I write separately to express my concern that
the judiciary, and not the legislature, is now setting public policy regarding the risk
of recidivism. Our Supreme Court has cautioned that

the wisdom of a public policy is one for the legislature,
and the General Assembly’s enactments are entitled to a
strong presumption of constitutionality rebuttable only by
a demonstration that they clearly, plainly, and palpably
violate constitutional requirements.
Commonwealth v. Torsilieri, 232 A.3d 567, 584 (Pa. 2020) (quoting Shoul v.
Department of Transportation, Bureau of Driver Licensing, 173 A.3d 669, 678 (Pa.
2017). Although the Supreme Court noted that our “deference to legislative
determination is not boundless,” the Court admonished that “it will be the rare
situation where a court would reevaluate a legislative policy determination, which
can only be justified in a case involving the infringement of constitutional rights and
a consensus of scientific evidence undermining the legislative determination.” Id.
at 583, 596 (emphasis added).
The Supreme Court determined that such a rare situation had presented
itself in Torsilieri. There, the challenger presented a colorable claim that the
legislative finding that “sexual offenders pose a high risk of committing additional
sexual offenses”1 infringed on his constitutional right to reputation and that this
finding was debunked by new scientific evidence. Torsilieri, 232 A.3d at 596.
Consequently, the Supreme Court concluded that the proper remedy was a remand
“to provide both parties an opportunity to develop arguments and present additional
evidence” regarding the settled view of sexual offender recidivation rates and the
effectiveness of tier-based sexual offender registration systems underlying the
General Assembly’s findings supporting the challenged registration and notification
provisions. Id.
Since then, the courts have entertained numerous challenges to the
irrebuttable presumption that adult sex offenders pose a high risk of committing
additional sex offenses. Where a colorable claim was presented, our courts have
afforded petitioners an opportunity to present scientific evidence to rebut the settled
view of sexual offender recidivation rates and the effectiveness of tier-based sexual
offender registration systems. See, e.g., Commonwealth v. Rohn (Pa. Super., No.
1858 EDA 2019, filed February 19, 2021); Commonwealth v. Haapala (Pa. Super.,
No. 258 WDA 2020, filed January 25, 2021); Commonwealth v. Westover (Pa.

1
See 42 Pa. C.S. §9799.11(a)(4).
MHW-2
Super., No. 2851 EDA 2019, filed January 13, 2021); Commonwealth v. Cruz (Pa.
Super., No. 3040 EDA 2019, filed January 13, 2021); Commonwealth v. Labar (Pa.
Super., No. 3412 EDA 2019, filed January 5, 2021); Commonwealth v. Popovich
(Pa. Super., No. 796 MDA 2019, filed January 4, 2021); Commonwealth v. Arrigo
(Pa. Super., No. 1014 MDA 2018, filed December 31, 2020); Commonwealth v.
Smith (Pa. Super., No. 2456 EDA 2019, filed December 31, 2020); Commonwealth
v. Miller (Pa. Super., No. 2513 EDA 2019, filed December 30, 2020);
Commonwealth v. Asher, __ A.3d __ (Pa. Super., No. 1133 MDA 2019, filed
December 21, 2020); Commonwealth v. King, 242 A.3d 403 (Pa. Super. 2020);
Commonwealth v. Mickley, 240 A.3d 957 (Pa. Super. 2020); Commonwealth v.
Torres, 240 A.3d 127 (Pa. Super. 2020).2 The issue has not yet been resolved.
As our Supreme Court guided, “a court need not ignore new scientific
evidence merely because a litigant in a prior case provided less convincing
evidence.” Torsilieri, 232 A.3d at 596. It emphasized that “all cases are evaluated
on the record created in the individual case.” Id. at 595-96 (emphasis added). As a
result, the courts will likely face continuous litigation of this issue until the
presumption is successfully rebutted.
Such duplicative litigation of a substantial policy consideration is not
only burdensome for the courts, but onerous on individual offenders who must put
forth “scientific evidence” to prevail.3 Torsilieri, 232 A.3d at 596. “[T]he General
Assembly’s ability to examine social policy issues and to balance competing

2
This list does not include the multitude of cases proceeding at the court of common pleas
level.

3
The unintended inequitable ramification is that those with the financial wherewithal to
compile such scientific evidence will have a meaningful opportunity to challenge the presumption,
but those without will not.
MHW-3
considerations is superior to that of the judicial branch.” Torsilieri, 232 A.3d at 583
(quoting Commonwealth v. Hale, 128 A.3d 781, 785-86 (Pa. 2015)). I echo Justice
Mundy’s sentiment that we should defer to the General Assembly’s findings in
matters “concerning ‘complex societal issues’ such as the efficacy of sex offender
registration laws in preventing recidivism . . . especially where there is a lack of
consensus among authorities.” Torsilieri, 232 A.3d at 609 (Mundy, J., dissenting)
(citing Commonwealth v. Muniz, 164 A.3d 1189, 1217 (Pa. 2017)); see Basehore v.
Hampden Industrial Development Authority, 248 A.2d 212, 217 (Pa. 1968)
(“[C]ourts are not in a position to assemble and evaluate the necessary empirical data
which forms the basis for the legislature’s findings.”).
Nevertheless, in light of Torsilieri and the colorable claim presented in
this case, I agree with the Majority’s disposition to deny the preliminary objections
and allow the case to move forward. However, I would urge the General Assembly
to reexamine whether the scientific evidence continues to support its statutory public
policy declaration that sexual offenders pose a high risk of committing additional
sexual offenses and settle this issue by the appropriate legislative means.

MICHAEL H. WOJCIK, Judge

MHW-4