honor i can't answer that question with a percentage i would say simply do it by acres by in some way what percent you know what's available yes and like i said your honor i can answer that in offender your honor it wasn't by design to say that we don't want people living here simply because of the acreage at the ordinance was specific to talk about the safety the public welfare in the children regulations of the state patrol board they have to approve the residence if the person is released as i understand it and suppose he comes back over she comes back so well i have a brother who is a police officer and he has said that i can move into his place unfortunately his place is two thousand of feet from a school and they check with the police department and the man has an impeccable reputation the brother and everybody swears by or i gather that under this ordinance well if the floorboards are poor this is really ideal and by the way i was once in you in the case ok and in the end the parole board is very frustrated because we have an ideal side up that twenty four hour supervision but a lot of supervision and yet they can't sometimes a residence restriction does occur it's occurring even under the parole board for instance if there's a order concerning that particular inmate that they can't be near the victim if for instance in that area that's not irish or them it's not our issue but it's but it's an example that the parole board runs into these problems your honor on other levels not just simply because of this yes your honor and that happens with parole that i believe that parole parolees would remain within the prison system but but yes if a parolee does not have an acceptable place to go under the parole board then they cannot release them and they have not released them are can that be mr mayor bitch with how can that be consistent with statewide standards one of the things that is pointed out to us is that there is a pennsylvania law a requirement to establish by regulation uniform statewide standards if the county of allegheny decides in effect you know we just don't want you here how can the state consistent with its own statutory mandate to have uniformity across a state permit the county to do that honor i was speaking on what a parole board is doing an approved board has different elements that it needs to address this would just be a supplement supplemental element to that well so they are still being able to go through their test to see if any inmate is eligible for parole well and this is whoa hold on because i'm not sure i'm communicating if if the if the very same parolee who want who had a residence in you know some other county in western pennsylvania pick one i don't know or middle pennsylvania eastern district anyplace else bucks county said ok fine you can go but that same parole board said well we would really soon allegheny but we can't because of the allegheny ordinance hasn't the allegheny ordinance made the state parole system less than uniform are i don't believe that it's made it less than uniform simply because they're still able to and minister and go through an elemental test but if one of the elements is we would release you but we can't because allegheny county has got its own weren't in place and the fact that they've got a checklist doesn't make it uniform if they can't go through the checklist with the same level of discretion in each case right i mean what you're what you seem to be acknowledging i think you have to acknowledge is allegheny county so we're going to cabins the discretion that the parole board has doesn't they can't do things they would otherwise do because if they're going to comply with your ordinance it impinges on their ability to do what they might do in another county isn't that just the way it would operate as a matter of fact well you know i don't think that it cabins at the say that the person cannot be released in the allegheny county since there are still opportunities to have the residence in allegheny county it's simply just another element of fact that for instance i can't maybe move to if i was i couldn't move to st eighth street if the victim lived on a street well i could move to twenty ninth street if the victim wasn't there in that was one of the elemental factors this is just adding another five hundred have different doesn't have different distance requirements in fact under under the state law and of an offender could live near an institution as long as notice were given but under the allegheny ordinance they couldn't live within a certain distance or half mile or something like that right you know it's on it's a completely different criteria for whether you can or can't live near one of the designated institutions isn't well yes sure there's an added supplemental range there that there is a two thousand or  five hundred feet restriction on that one of the problems that it and that's actually in the ordinance one of the problems that was occurring in allegheny county was that the notice requirement wasn't being met and there were complaints concerning the sex offenders being too close to the schools or the part of us so this ordinance attempted to address that issue we're we're not we're not suggesting that there might not be frustrations for people in looking at the operation of the current state law and certainly every resident of allegheny county has a right to petition the state government to see that the laws of the state are in force and they and they have every good reason to want to see that the laws are enforced but setting that aside because that's not the issue in front of us our only issue and it is looking at those two things side by side can be can be be said to co exist and still we a uniform state system under the state law because if it's not uniform would you acknowledge that that that's a problem your honor yes it certainly can be a problem if it's not uniform on that this preemption if i may your honor i think that the test here has to a rational basis test and that can't be simply ignored or not favored in for for the callee because we're coming into a preemption i know argument time is up but lower court and i believe i saw a quote that says that it is not ruling under field preemption ok all right thank you thank you your hon i certainly think him i certainly think it's all three i think it's expressed express preemption express preemption has been determined where the state has taken regulation of this subject matter onto itself and indicated that that regulation in the serious to be exclusively at a uniform statewide level we don't think it can be clear that they have done that in this case that was the case with liquor control similar language that the legislature indicated that it is the liquor control board that is to regulate liquor and pennsylvania we also think that you preemption applies here for a couple of reasons one because of the manifest need for statewide uniformity even if the if the legislature had not expressed intent that there should be exclusive statewide supervision through regulation at the state level the need for uniformity is manifest here the court below and to the high squits of two other states have looked at this precise issue and determined that that there is a menace manifest need for for uniformity otherwise this system is going to break down it's just not work offenders who who apparently cannot be what what what are we supposed to do i mean somebody could say keep them in jail forever but we can't do that well there are tools available these days primarily it starts with individual eyes to cessnock thorough investigation valuation risk assessment imposition of treatment close monitoring g p s is available now to minimum twenty five year me i'm sorry and mandatory twenty five year minimum sentence for a real offense but this state goes through a process right now has a sexual offender assessment board made up of psychologist and and criminal justice experts who do a closer valuation not just at the time of sentencing but again before release on parole and and there is a process to determine who is at risk or who presents a greater risk he wanted you to push the racist yes but you could have occurred to me that you could have raised the federal issues as an additional basis to affirm yes and it's not a fact your honor we did raise the federal issues that there is authority that supports each of those do you think  which should pennsylvania's supreme court be the one to decide that why should the united states court of appeals for the third circuit say whether pennsylvania law preempts pennsylvania counties ordinance on that subject it's obviously of great moment to the residents of allegheny county and the rest of pennsylvania that's correct your honor and i can only answer that by the jurisdiction that the federal courts have been given to accept supplemental jurisdiction and to rule on on those issues that implicates state right but i think it's a we have before us now is strictly the strictly the state in a mechanism to allow the sovereign commonwealth of pennsylvania to deal with its own internal conflict of wa if is one as you say so why wouldn't it be right to let the commonwealth take care of this problem itself your honor i do not think i'm not disagreeing that it would  be reasonable and appropriate for the pennsylvania supreme court to rule on this and the ordinance is enjoined right now right i mean there's a status quo that means there is no problem with the delay while they consider certification and then decide the case because things are operating as you want them to now graphically well that is that is it is the case to an extent in allegheny county unfortunately and this is not yes your honor that the the new jersey supreme court i believe it was in the spring june i think termed the superior court of new jersey and a very very similar fact situational thing that we can't really put it right this well i believe that they allegheny county would pay very due respect to the ruling of this court and not proceed in that fashion and i also believe that the pennsylvania courts would pay a great deal of respect to the square of course it's not the final determine are but it has been given the opportunity and perhaps the responsibility to predict pence venture group court would rule on this i think it was a close question there may be more reason for that but in this instance because of the clarity of the decisions that have been rendered and and the the various reasons for conflict or for preemption in this case including some expressed preemption very express reactionless this kind of express counties but you know very direct right clear you can't legislate we're regularly in this area here it wasn't that  legislature talked about you or me or anything like that it means expressed preemption means i expressly say you or is that i'm wrong about that you're on i thought that was the case too because there is a  a a ruling a recent ruling by the pennsylvania supreme court i think it was the huntley decision where it described express preemption as including where the the legislature has has more than simply said that this is to be a uniform and exclusive system statewide system of regulation but went the next step and said not only that but but municipalities or local political subdivisions  honor just a couple of additional things in response the the one of the most important things here and one of the bases for preemption is obstructive obstruction to the achievement of state objectives purposes and objectives and proposition in this case i think it's pretty clear that that not only is there struction but but these objectives are actually undermined there is virtually no part of allegheny county where a sex offender could reside unless they happen to have a family in a more remote area and a more affluent area but the areas though again a county that were were left open generally are unbuildable hillside areas industrially zoned unfordable areas there's no went to housing there's no transportation access from each of the city of pittsburgh is left open there are there are some locations in the city of pittsburgh hillside locations in the city of pittsburgh that may be open but one of the examples of how stream this ordinance is there was one of the name plaintiffs who  found a residents along the river in a fairly industrial area was approved by his parole agent moved into that home put down a security deposit this was after being forced to move from so families moved into this home and was told that he had to move again because across the allegheny river there was a pork it would take much more than half a mile to get to that park but because of the ordinances as the crow flies he was notified that he had to move from that yes the pennsylvania were institutional what project represents those who are institutionalized primarily those who are in prisons and jails in this instance and again this is not of  despite having gone through a vigorous assessment ordinances because subordinate's is yes yes and not only not only prisons but jails and also halfway houses some who are able to get into what's called community corrections centers  not able to get out of community corrections centers because they couldn't get approved home plans one of the name plaintiffs was in that situation and it was only after the ordinance was suspended that that individual was able to move into a family residence that he had but but it's gotten more stream now that individuals can even get into the community corrections centers because they clog the community corrections centers because they can't transition then into the community and it's clear here that if this ordinance did stay into effect that surrounding counties beaver county butler county whatever surrounding counties would very soon realize that they're not going to accept a sexual offender some allegheny county with thank you judge jordan if i can address one thing that you brought up earlier on the express preemption i agree with you your honor that this is not express preemption and i don't believe that the lower court intended that to be a truly if it was expressed exemption we would easily be able to turn to megan's law or the honor yes if i can our address that to say that it is under conflict preemption from how the lower court addressed the issue i do not and the lower court i do not believe address that to say it is and that is pretty clear because we could turn and say megan's law says this don't do it or the parole or says this don't do it judge  turf i may address your your question earlier and now if it was implied or field no it is not implied or field based on the being there is limited fields and i believe you said that before your honor it deals with alcoholic beverages interstate strip mining and banking also and i said that i could try and i looked through the lower court opinion  on the lower court opinion it's frost vs county of allegheny six twelve f's up second six five one at the bottom of page six five for the court wrote implied or feel preemption is very rare in pennsylvania and is limited to areas not relevant to this case such as alcoholic beverages anthracite strip mining and banking so i believe that it's pretty clear that the lower court did not find preload field preemption was to position you represent the county of allegheny yes sure what is the position allegheny county with respect to certification of this issue in the pennsylvania well your honor based on this case going as far as it has and the amount of time that this is taking with the court and it being a ripe issue i think that that would be appropriate in this case well here