Doe v. Pennsylvania Bd. of Probation and Parole

AMBRO, Circuit Judge,

dissenting.

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

I. Rational Basis Review Applies

“The Fourteenth Amendment forbids the States to ‘deny to any person within [their] jurisdiction the equal protection of the laws,’ but does not prevent the States from making reasonable classifications among such persons.” W. & S. Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 656-57,101 S.Ct. 2070, 68 L.Ed.2d 514 (1981). As the Supreme Court has long recognized, “[ujnless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require *113only that the classification challenged be rationally related to a legitimate state interest.” City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976); see also Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (“[I]f a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.”). Conversely, classifications that discriminate against a suspect class or violate an individual’s fundamental constitutional rights receive strict scrutiny. Donatelli v. Mitchell, 2 F.3d 508, 513 (3d Cir.1993). Such fundamental rights include the right to marry, see, e.g., Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), the right to custody of one’s children, see, e.g., Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the right to vote, see, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), and the right to interstate travel. See, e.g., United States v. Guest, 383 U.S. 745, 757, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966).

Our first task, therefore, is to ascertain the proper level of constitutional review.11 Id. Doe asserts that the Pennsylvania statute burdens his fundamental right to interstate travel and that the Commonwealth’s classification therefore must satisfy strict scrutiny.12 Because Doe’s status, first as a probationer and then as an individual subject to parole supervision for life, necessarily limits his constitutional right to travel, I conclude that the Commonwealth’s alleged restrictions on that right are subject simply to rational basis review.

The Supreme Court’s most recent and comprehensive explanation of the right to interstate travel is found in Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999). The Court concluded that this right consists of three components: “[1] the right of a citizen of one State to enter and leave another State, [2] the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and [3], for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.” Id. at 500, 119 S.Ct. 1518.

Doe argues that, because under Megan’s Law II all out-of-state sex offenders paroled into Pennsylvania are subject to community notification but in-state sex offenders are only subject to community notification if they are deemed “sexually violent predator[s]” following a hearing, his “right to be treated equally in [his] new State of residence” has been violated. Id. at 505, 119 S.Ct. 1518. The Commonwealth concedes that Megan’s Law II treats differently sex offenders who committed their offenses out of state and are then transferred to Pennsylvania under the Compact and sex offenders who were convicted in *114the Commonwealth. It argues, however, that Doe’s status as a convicted sex offender subject to parole supervision for life necessarily limits his right to interstate travel. I conclude this contention is correct.

In Jones v. Helms, 452 U.S. 412, 101 S.Ct. 2434, 69 L.Ed.2d 118 (1981), the Supreme Court recognized that individuals who have committed crimes do not have an unqualified right to interstate travel: “Despite the fundamental nature of this right [to interstate travel], there nonetheless are situations in which a State may prevent a citizen from leaving. Most obvious is the case in which a person has been convicted of a crime....” Id. at 419, 101 S.Ct. 2434. The Court went on to hold that even if a person is not currently incarcerated for (or even charged with) a crime, that person’s criminal conduct “necessarily qualified his right” to interstate travel. Id. at 420-21, 101 S.Ct. 2434. Similarly, the Court has pointed out that probationers and parolees “do not enjoy ‘the absolute liberty to which every citizen is entitled, but only ... conditional liberty properly dependent on observance of special [probation] restrictions.’ ” Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)); see also United States v. Knights, 534 U.S. 112, 119, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (“Just as other punishments for criminal convictions curtail an offender’s freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.”).

Our Court likewise has recognized that “conditions of probation include restrictions on a defendant’s right to travel.” United States v. Warren, 186 F.3d 358, 366 (3d Cir.1999). And the courts of appeals to address directly the right to interstate travel for those on probation or parole have all concluded that the right is either limited or non-existent. See Williams v. Wisconsin, 336 F.3d 576, 581 (7th Cir.2003) (“Like prisoners, ... parolees ... have no right to control where they live in the United States; the right to travel is extinguished for the entire balance of their sentences.”); Barley v. Harvey, 718 F.2d 921, 924 (9th Cir.1983) (“[A]n individual’s constitutional right to travel, having been legally extinguished by a valid conviction followed by imprisonment, is not revived by the change in status from prisoner to parolee.”); Berrigan v. Sigler, 499 F.2d 514, 522 (D.C.Cir.1974) (holding that any rights parolees had to travel were necessarily limited because “those rights of necessity are conditioned by the situation in which their convictions placed them”).

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

Doe’s status as a probationer at the time he filed his suit, and as subject to lifelong supervised parole now, necessarily means that he was not, and is not now or ever, entitled to the full panoply of constitutional rights enjoyed by the average citizen. Doe contends that the cases recognizing the limits on parolees’ and probationers’ right to interstate travel do not apply because they do not involve the third compo*115nent of the right to travel recognized by Saenz — the right of those who elect to become permanent residents to be treated like other citizens. But Doe offers no reasons why this distinction matters, and I know of none. His status as a convicted sex offender on parole necessarily places restrictions not only on his freedom of movement but also on other rights of citizenship.13 Because Megan’s Law II applies the allegedly discriminatory requirement only to out-of-state sex offenders whose rights to travel have been reduced by probation or parole,14 it is less likely to be constitutionally suspect, obviating the need for strict scrutiny.

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

II. The Rational Basis Test is Satisfied

As our Court has observed, the rational basis test is a “very deferential standard.” English v. Bd. of Educ. of Boonton, 301 F.3d 69, 82 (3d Cir.2002). “Under rational basis review, ‘a classification must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.’ ” United States v. Walker, 473 F.3d 71, 77 (3d Cir.2007) (quoting Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993)). “A statute is presumed constitutional, and ‘[t]he burden is on the one attacking the legislative arrangement to [negate] every conceivable basis which might support it.’ ” Heller, 509 U.S. at 320, 113 S.Ct. 2637 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973)) (internal citations omitted). Thus, equal protection principles are met so long as a plausible policy reason explains the classification and the relationship of the classification to its policy goal is not so weak as to suggest that the distinction is arbitrary or irrational. Walker, 473 F.3d at 77 (citing Fitzgerald v. Racing Ass’n of Cent. Iowa, 539 U.S. 103, *116107, 123 S.Ct. 2156, 156 L.Ed.2d 97 (2003)). In this context, “equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993); see also Dukes, 427 U.S. at 303, 96 S.Ct. 2513 (“[T]he judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations. ...”). “The threshold for upholding distinctions in a statute under rational basis review is extremely low, and it is not within the purview of the courts to conduct anything but a limited review of the reasons that legislation subject to rational-basis review classifies among similarly situated persons.” United States v. Pollard, 326 F.3d 397, 408 (3d Cir.2003). “[E]ven if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous,” Romer, 517 U.S. at 632, 116 S.Ct. 1620, “[w]here there are ‘plausible reasons’ for [the legislature’s] action, ‘our inquiry is at an end,’ ” Beach Commc’ns, Inc., 508 U.S. at 313-14, 113 S.Ct. 2096 (quoting U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980)).

“Moreover, because we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.” Id. at 315, 113 S.Ct. 2096. In addition, “a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” Id. “Finally, courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends.” Heller, 509 U.S. at 321, 113 S.Ct. 2637.

What this means in practice is that “[a] classification does not fail rational-basis review because it ‘is not made with mathematical nicety or because ... it results in some inequality.’ ” Id. (quoting Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970)); see also Metropolis Theatre Co. v. Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 57 L.Ed. 730 (1913) (“The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.”).

I believe that Megan’s Law II passes the rational basis test.15 As the majority acknowledges and our Court has held, the Commonwealth unquestionably has a legitimate interest in protecting its citizens from sexual offenses. Maj. Op. at 108, 112; Artway v. Att’y Gen. of N.J., 81 F.3d 1235, 1267 (3d Cir.1996) (“Protecting vulnerable individuals from sexual offenses is certainly a legitimate state interest.”). It is not necessary to “explore all the reasons that the State advances in justification” of the different treatment, so long as any one of them provides a rational basis for the *117distinction. Dandridge, 397 U.S. at 486, 90 S.Ct. 1153.

Here, at least two of the Commonwealth’s justifications demonstrate that the different treatment of out-of-state sex-offenders is rationally related to its interest in protecting its citizens from sexual offenses. First, the Commonwealth argues that it would not be able to replicate adequately the proceedings that in-state offenders receive prior to community notification for out-of-state offenders and that the use of inadequate proceedings would not provide the level of protection it desires. Specifically, the Commonwealth notes that the hearings for in-state offenders take place close to the time of sentencing and are usually conducted by the same judge who presided over the offender’s trial. Any hearing that would be conducted for an out-of-state offender would necessarily be conducted by a judge who is unfamiliar with the offender and nearly always would take place at a time further removed from the conviction, increasing the likelihood that, as a general matter, there would be less relevant information available in an out-of-state offender’s hearing than in an in-state offenders’ hearing. This would make the results of out-of-state offenders’ hearings generally less reliable than those for in-state offenders. Such reasoning is rational.

The majority faults it, however, insisting that “in this digital age court records, transcripts, hearing records and pre-sen-tence reports can be transmitted interstate electronically.” Maj. Op. at 108. Even if the majority is correct that all the relevant information is readily available, which seems doubtful, this mistakes our judicial role. Under rational basis review, we do not pass on the “wisdom, fairness, or [even] logic” of legislative decisionmaking. Beach Commc’ns, Inc., 508 U.S. at 313, 113 S.Ct. 2096; see also Dandridge, 397 U.S. at 486, 90 S.Ct. 1153 (“[T]he Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy.”). As long as there is “any reasonably conceivable state of facts that could provide a rational basis for the classification,” we must uphold the statute against an equal protection challenge. Walker, 473 F.3d at 77. If the “question is at least debatable,” the Commonwealth’s classification survives rational basis review. Minnesota v. Clover Leaf Creamery, Co., 449 U.S. 456, 464, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981). Because it is debatable whether appropriate records may be obtained as readily from the courts of another state as from within the Pennsylvania court system, Megan’s Law II survives rational basis review.

A second rational basis for the different treatment can be found in the Commonwealth’s argument that Pennsylvania communities are likely to know more about instate offenders than out-of-state offenders because of local media coverage. The majority calls this reasoning “counter-intuitive and meritless.” Maj. Op. 109. I disagree. It is not irrational to think that, on the whole, Pennsylvania communities are more likely to be aware of in-state sexual offenders than out-of-state offenders. It may be true that residents of Philadelphia likely would know more from local media coverage about a sex offender in Camden, New Jersey than in Pittsburgh, and it may be true that many (or even most) sex offenders, both in-state and out-of-state, receive no publicity at all. However, when the legislature made a distinction between in-state and out-of-state offenders, “[e]ven if the classification involved here is to some extent both underinclusive and over-inclusive, and hence the line drawn by [the legislature] imperfect, it is nevertheless the rule that in a case like this ‘perfection is by no means required.’ ” Vance v. Brad*118ley, 440 U.S. 93, 108, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979) (quoting Phillips Chem. Co. v. Dumas Sch. Dist., 361 U.S. 376, 385, 80 S.Ct. 474, 4 L.Ed.2d 384 (1960)).

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

My colleagues also suggest that two global concerns undermine the specific reasoning discussed above. First, they conclude that “the Commonwealth’s approval and participation in the Interstate Compact invalidates any rational connection between the Compact’s stated goals and the Commonwealth’s disparate treatment of in-state and out-of-state offenders.” Maj. Op. 109-10. They claim that they do not second-guess the Commonwealth’s decision to join the Compact. Id. Instead, they “merely suggest that [the Commonwealth] must hold to its agreement.” Id. But how is this relevant to our equal protection analysis? We agree that Doe does not have a private right of action under the Compact. The Equal Protection Clause should not be construed to allow him a defacto right of action. Any alleged violation of the Compact is not properly before us and it is inappropriate for us to try to enforce it via the Equal Protection Clause.

Second, the majority reasons that the “Commonwealth’s arguments are further undercut by subsequent legislation.” Id. at 111. Megan’s Law III indeed may improve upon the former legislation.16 However, our rational basis inquiry does not require us to invalidate legislation that can be improved or that has been improved. Accordingly, I am unpersuaded that Megan’s Law II should be invalidated under rational basis review.17

‡ ‡ ‡ ‡ $ ‡

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

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

. While the majority acknowledges that "we must first determine the appropriate standard by which we are to review the claim," Maj. Op. at 107, it does not reach this question because it concludes that "the Commonwealth's restrictions would not survive rational basis review.” Maj. Op. at 107.

. Strict scrutiny is only triggered if the Commonwealth's law actually infringes a right to interstate travel. See Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 905, 106 S.Ct. 2317, 90 L.Ed.2d 899 (1986) ("[Ojnly where a State's law 'operates to penalize those persons ... who have exercised their constitutional right of interstate migration’ is heightened scrutiny triggered.”) (quoting Mem’l Hosp. v. Maricopa County, 415 U.S. 250, 258, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974)). There is no dispute that Doe has exercised his right to travel. However, the question remains whether that right is freighted with conditions such that strict scrutiny review does not apply.

. For example, the Supreme Court has held that states may, consistent with the Equal Protection Clause, deprive convicted felons of the right to vote even after they have completed their sentences and paroles. Richardson v. Ramirez, 418 U.S. 24, 56, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974).

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

. The majority reads my analysis as having an “undercurrent” implying that "under rational basis review, the government always wins.” Maj. Op. 112 n. 9. I do not suggest that "our review of issues under this standard [is] equivalent to no review at all.” Id. The Supreme Court has struck down statutes under this standard of review. See, e.g., Romer, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (striking down amendment to Colorado constitution barring the enactment of laws prohibiting discrimination on the basis of sexual orientation); City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (striking down zoning ordinance excluding homes for mentally disabled). However, the results of those cases stem from an arbitrariness and irrationality absent here. I certainly would not hesitate to join the majority had Pennsylvania’s law suffered from similar inadequacies.

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

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