IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tommy Lee Jackson, :

Petitioner :

:

v. :

:

Commonwealth of Pennsylvania, : No. 388 M.D. 2014

Respondent : Argued: June 6, 2016

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY

SENIOR JUDGE PELLEGRINI FILED: July 7, 2016

Before this Court, in our original jurisdiction, are cross-applications 

for summary relief filed by Tommy Lee Jackson (Jackson) and the Pennsylvania 

State Police (PSP) on Jackson’s Petition for Review in the Nature of a Writ of 

Mandamus1(Petition). In his Petition, Jackson asks this Court to direct the PSP to 

 

1

“The writ of mandamus exists to compel official performance of a ministerial act or 

mandatory duty. Mandamus cannot issue to compel performance of a discretionary act or to 

govern the manner of performing the required act. [Courts] may issue a writ of mandamus 

where the petitioners have a clear legal right, the responding public official has a corresponding 

duty, and no other adequate and appropriate remedy at law exists. . . . Thus, we have held that 

mandamus will lie to compel action by an official where his refusal to act in the requested way 

stems from his erroneous interpretation of the law.” Fagan v. Smith, 41 A.3d 816, 818 (Pa. 

2012). (Citations and internal quotes omitted.) While just styled as a mandamus action, 

Jackson’s Petition requests this Court to declare that SORNA, as applied to Jackson, is 

unconstitutional because it violates the Equal Protection Clause of the United States Constitution 

and, therefore, Jackson is no longer required to register with the PSP as a sex offender. This 

claim asserting that SORNA is unconstitutional sounds in declaratory and injunctive relief, not 

mandamus.
2

remove his name from the list of offenders required to comply with the provisions 

of the Act known as Megan’s Law IV or the Sexual Offender Registration and 

Notification Act (SORNA)2because he completed his registration period prior to 

the law’s enactment or, in the alternative, hold that the application of SORNA to 

Jackson violates the Equal Protection Clause of the United States Constitution. For 

the following reasons, we grant Jackson’s application on equal protection grounds 

and deny the cross-application of the PSP.

I.

The following facts are taken from the parties’ joint stipulation of 

facts. In October 1990, Jackson was charged with violation of Texas Penal Code 

§21.11, Indecency with a Child by Contact. On or about April 12, 1991, Jackson 

 

2

Sections 9799.10-9799.41 of the Sentencing Code, 42 Pa. C.S. §§9799.10-9799.41. 

SORNA is the fourth iteration of Megan’s Law. Megan’s Law I, the Act of October 24, 1995, 

P.L. 1079 (Spec. Sess. No. 1), was enacted on October 24, 1995, but because it was largely ruled 

unconstitutional by our Supreme Court in Commonwealth v. Williams, 733 A.2d 593 (Pa. 1999), 

Megan’s Law II, the Act of May 10, 2000, P.L. 74, No. 18, was enacted. “Our Supreme Court 

held that some portions of Megan’s Law II were unconstitutional in Commonwealth v. Gomer 

Williams, 574 Pa. 487, 832 A.2d 962 (Pa. 2003), and the General Assembly responded by 

enacting Megan’s Law III on November 24, 2004. The United States Congress expanded the 

public notification requirements of state sexual offender registries in the Adam Walsh Child 

Protection and Safety Act of 2006, 42 U.S.C. §§16901-16945,” and the states were required to 

implement its provision or lose certain federal funding. Taylor v. Pennsylvania State Police, 132 

A.3d 590, 595 n.7 (Pa. Cmwlth. 2016). In response, our General Assembly passed SORNA on 

December 20, 2011, with the declared purpose of “bring[ing] the Commonwealth into substantial 

compliance with the Adam Walsh Child Protection and Safety Act of 2006.” 42 Pa. C.S. 

§9799.10(1). “SORNA went into effect a year later on December 20, 2012. Megan’s Law III 

was also struck down by our Supreme Court for violating the single subject rule of Article III, 

Section 3 of the Pennsylvania Constitution. Commonwealth v. Neiman, 624 Pa. 53, 84 A.3d 603, 

616 (Pa. 2013). However, by the time it was struck down, Megan’s Law III had been replaced 

by SORNA.” Taylor, 132 A.3d at 595, n.7.
3

pleaded guilty to one count of Indecency with a Child by Contact and was 

sentenced to ten years’ probation. In May 1993, Jackson violated his probation by 

failing, inter alia, to report to the probation office and pay court costs. He was 

subsequently resentenced to ten years imprisonment, for which he served five 

years in prison and the remaining five years on parole. Jackson was discharged 

from all supervision on January 15, 2003.

Pursuant to Texas’ version of Megan’s Law,

3

Jackson registered as a 

sexual offender in the State of Texas in 1997, 2000, 2001 and 2002. Jackson 

moved to the State of Delaware in 2002 where he was likewise required to register 

as a sexual offender, and then moved to the Commonwealth of Pennsylvania in 

June 2004. By the time he moved to Pennsylvania, Jackson had been registering as 

a sex offender in his previous states of residence for approximately six years.

When Jackson moved to Pennsylvania in 2004, Megan’s Law II4was 

in effect and Jackson’s Texas conviction for Indecency with a Child by Contact 

required him to register with the PSP for ten years.5 In 2008, Jackson requested a 

 

3

See Act of May 26, 1991, 72d Leg., ch. 572 §1, 1991 Tex. Gen. Laws 2029. The 

Commonwealth’s first sexual offender registration statute, referred to as Megan’s Law I, Act of 

October 24, 1995, P.L. 1079 (Spec. Sess. No. 1), was not enacted until October 24, 1995, and 

became effective 180 days thereafter.

4 Act of May 10, 2000, P.L. 74, formerly 42 Pa. C.S. §§9791-9799.7.

5

The PSP categorized Jackson’s Texas conviction for Indecency with a Child by Contact 

as being similar to the Pennsylvania crime of Indecent Assault, 18 Pa. C.S. §3126, graded as a 

first-degree misdemeanor and carrying a ten-year registration period. See Section 9795.1(a) of 

Megan’s Law II, formerly 42 Pa. C.S. §9795.1(a).
4

review of his sexual offender registration status to which the PSP responded that 

his period of registration began on June 25, 2004, when he ostensibly first 

registered with the PSP after moving to Pennsylvania, and would run until June 25, 

2014.

SORNA was enacted on December 20, 2011, and went into effect a 

year later, establishing a three-tier classification system for sexual offenders. See

Section 9799.14 of SORNA, 42 Pa. C.S. §9799.14. On or about December 3, 

2012, the PSP notified Jackson that pursuant to SORNA, he was now classified as 

a Tier III offender and would have to register quarterly every year for the rest of 

his life. Jackson is no longer on probation or parole for his Texas conviction and is 

still currently registering with the PSP as a sexual offender pursuant to SORNA.

II.

Both parties filed applications for summary relief.6Jackson’s 

application for summary relief asserts that under Megan’s Law III,

7

he was entitled 

to credit for the six years he registered as a sex offender out-of-state prior to

moving to Pennsylvania. Jackson contends that under that version of Megan’s 

 

6

Pa. R.A.P. 1532(b). An application for summary relief may be granted “[a]t any time 

after the filing of a petition for review in an appellate or original jurisdiction matter . . . if the 

right of the applicant thereto is clear.” Id. The application will be denied where there are 

material facts in dispute or it is not clear that the applicant is entitled to judgment as a matter of 

law. Brown v. Department of Corrections, 932 A.2d 316, 318 (Pa. Cmwlth. 2007).

7

Section 9795.2(b)(4) of Megan’s Law III, formerly 42 Pa. C.S. §9795.2(b)(4). This 

provision of Megan’s Law III expired on December 20, 2012, per Section 9799.41 of SORNA, 

42 Pa. C.S. §9799.41.
5

Law, his ten-year registration period expired prior to the enactment of SORNA on 

December 20, 2012, and he is no longer required to register as a sex offender. In 

the alternative, Jackson asserts that the PSP’s application of SORNA discriminates 

against him by not giving him credit for the years he complied with his out-of-state 

registration requirements, and he is treated differently than those sexual offenders 

who began their registration period in Pennsylvania.

The PSP’s cross-application for summary relief asserts that Jackson is 

classified under SORNA as a Tier III sexual offender based on his Texas criminal 

conviction, which is the equivalent of the Tier III Pennsylvania offense of Indecent 

Assault, 18 Pa. C.S. §3126(a)(7).8The PSP argues that application of SORNA to 

Jackson does not violate equal protection because Jackson is treated the same as 

any Megan’s Law II offender whose ten-year registration period was unexpired on 

the date SORNA went into effect. The PSP also asserts that SORNA is reasonably 

related to the legitimate state interests of promoting public safety and 

accountability by ensuring that foreign sex offenders do not move to Pennsylvania 

to avoid registering.

 

8

The PSP also asserts that Jackson was required to register as a sex offender for life in 

Texas (Respondent’s Brief at 6), a representation that Jackson’s Counsel disputed at oral 

argument. More importantly, the PSP’s assertion is in direct contravention of the Stipulation of 

Facts and a letter that it sent to Jackson regarding his registration requirement, stating that he 

only had to register for ten years.
6

III.

A.

Jackson contends that he should not be required to register under 

SORNA because he completed his ten-year registration requirement prior to 

SORNA’s effective date because he should be given credit for the approximate six 

years he registered in Texas and Delaware before moving to the Commonwealth. 

Megan’s Law III did give credit “as a result of prior compliance with registration 

requirements” to sex offenders convicted in another jurisdiction and who met

certain criteria. Section 9795.2(b)(iii) of Megan’s Law III, formerly 42 Pa. C.S. 

§9795.2(b)(iii). However, Megan’s Law III, including this provision that Jackson 

relies upon, was declared unconstitutional for violation of the single subject rule of 

Article III, Section 3 of the Pennsylvania Constitution. See Commonwealth v. 

Neiman, 84 A.3d 603 (Pa. 2013).

Megan’s Law II was in effect when Jackson moved to Pennsylvania in 

2004 making it the operable statute. Under Megan’s Law II, sex offenders entering 

the Commonwealth were required to register with the PSP: (1) if they were 

convicted of an offense that was similar to an enumerated Pennsylvania Megan’s 

Law predicate offense, or (2) if they were convicted of an offense that required 

them to register as a sex offender in their originating jurisdiction. See section 

9795.2(b)(1) of Megan’s Law II, formerly 42 Pa. C.S. §9795.2(b)(1).

Jackson stipulates that neither Megan’s Law II nor SORNA provide 

“credit” to sex offenders for the time period in which they properly registered in 

another jurisdiction. Jackson also admits that in October 1990, he pleaded guilty to 
7

the charge of Indecency With a Child by Contact in the state of Texas and that this 

offense is similar to the Pennsylvania offense of Indecent Assault, as the victim 

was under the age of 13, 18 Pa. C.S. §3126(a)(7), which, in 2004, was graded as a 

first degree misdemeanor. Under Megan’s Law II, a conviction for Indecent 

Assault graded as a first degree misdemeanor required individuals to register with 

the PSP for a period of ten years. See section 9795.1(a)(1) of Megan’s Law II, 

formerly 42 Pa. C.S. §9795.1(a)(1).

Because Jackson was convicted of an offense similar to an 

enumerated Pennsylvania Megan’s Law predicate offense, he was required to 

register as a sex offender with the PSP for ten years. If Jackson is not given credit 

for the time he registered out of state, his ten-year period of required registration 

under Megan’s Law II would not have expired until 2014. SORNA states that

individuals “who had not fulfilled [their] period of registration as of December 20, 

2012” were subject to its provisions, including the lifetime registration 

requirement. See section 9799.13(3)(i) of SORNA, 42 Pa. C.S. §9799.13(3)(i). 

Jackson would fall under this provision of SORNA because he had not completed 

his ten-year period of registration prior to December 20, 2012, unless he was 

unconstitutionally denied credit for the years he registered in other states.9

 

9

Jackson has not raised the issue that the PSP’s failure to give him credit for the time he 

spent registering out-of-state violates the Full Faith and Credit Clause of the United States 

Constitution, nor does he claim that the PSP improperly classified him as a Tier III offender 

under SORNA or that SORNA is an ex post facto law. We will not address issues which have 

not been specifically raised because “[i]t is not our role to invent arguments for” a petitioner, 

Bruce L. Rothrock Charitable Foundation v. Zoning Hearing Board of Whitehall Township, 651 

A.2d 587, 591 n.9 (Pa. Cmwlth. 1994), especially when that petitioner is represented by counsel.
8

B.

Jackson argues that even if he is subject to SORNA, its application to 

him violates the Equal Protection Clause of the Fourteenth Amendment to the 

United States Constitution.10 Jackson asserts that as an out-of-state offender, he is 

being treated differently than Pennsylvania offenders because SORNA does not 

provide credit for time spent registering in another jurisdiction, requiring him to 

 

10 Equal Protection requires that all:

Persons in like circumstances will be treated similarly. However, 

it does not require that all persons under all circumstances enjoy 

identical protection under the law. The right to equal protection 

under the law does not absolutely prohibit the Commonwealth 

from classifying individuals for the purpose of receiving different 

treatment, and does not require equal treatment of people having 

different needs. The prohibition against treating people differently 

under the law does not preclude the Commonwealth from resorting 

to legislative classifications, provided that those classifications are 

reasonable rather than arbitrary and bear a reasonable relationship 

to the object of the legislation. In other words, a classification 

must rest upon some ground of difference which justifies the 

classification and have a fair and substantial relationship to the 

object of the legislation. Judicial review must determine whether 

any classification is founded on a real and genuine distinction

rather than an artificial one. A classification, though 

discriminatory, is not arbitrary or in violation of the equal 

protection clause if any state of facts reasonably can be conceived 

to sustain that classification. In undertaking its analysis, the 

reviewing court is free to hypothesize reasons the legislature might 

have had for the classification. If the court determines that the 

classifications are genuine, it cannot declare the classification void 

even if it might question the soundness or wisdom of the 

distinction.

Doe v. Miller, 886 A.2d 310, 315 (Pa. Cmwlth. 2005) (quoting Curtis v. Kline, 666 A.2d 265, 

267 (Pa. 1995) (footnote and internal citations omitted)).
9

register for a longer period of time than an individual who committed his predicate 

offenses in the Commonwealth.

The PSP, in essence, is saying that if you are convicted of an offense 

in another state, are required to register in that state for ten years, complete that 

registration, and then move to Pennsylvania, you are still required to register in the 

Commonwealth for another ten years or a lifetime, depending on how that offense 

is now classified under SORNA.

In general, economic and social legislation, including legislation 

creating classifications or categories among criminal offenders, receives rational 

basis review. Doe v. Miller, 886 A.2d 310, 315 (Pa. Cmwlth. 2005). Under this 

standard, we must first determine whether the challenged statute seeks to promote 

a legitimate state interest or public value. Id. at 316 (citing Commonwealth v. 

Albert, 758 A.2d 1149 (Pa. 2000)). If so, we “must next determine whether the 

classification adopted in the legislation is reasonably related to accomplishing that 

articulated state interest or interests.” Miller, 886 A.2d at 316.

The question here then becomes is there a rational basis for requiring 

Jackson to register for a lifetime when a Pennsylvania offender who committed the 

same act, on the same day, and who registered for ten years with the PSP is not 

subject to a lifetime registration requirement under SORNA because he is 

considered to have completed his registration period prior to the law’s enactment. 

More simply, is there a rational basis for this difference in registration 
10

requirements based solely on the fact that Jackson’s offense occurred in another 

state.

When enacting Megan’s Law I, the General Assembly stated that:

It is hereby declared to be the intention of the General 

Assembly to protect the safety and general welfare of the 

people of this Commonwealth by providing for 

registration and community notification regarding

sexually violent predators who are about to be released 

from custody and will live in or near their neighborhood. 

It is further declared to be the policy of this 

Commonwealth to require the exchange of relevant 

information about sexually violent predators among 

public agencies and officials and to authorize the release 

of necessary and relevant information about sexually 

violent predators to members of the general public as a 

means of assuring public protection and shall not be 

construed as punitive.

Section 9791(b) of Megan’s Law I, formerly 42 Pa. C.S. §9791(b); see also 

Commonwealth v. Gaffney, 733 A.2d 616, 619 (Pa. 1999). Megan’s Law II 

contains identical language in that statute’s declared purpose. See Commonwealth 

v. Gomer Williams, 832 A.2d 962, 969, 972 (Pa. 2003). Relying solely on this 

statutory language, our Supreme Court, in both Gaffney and Williams, determined 

that the General Assembly’s purpose in enacting the respective statutes was not 

retribution, but to protect public safety.11

 

11 Courts within the Commonwealth have held that the various iterations of Megan’s Law 

sought to promote the legitimate state interest of protecting public safety and welfare. See 

Gaffney, 733 A.2d at 621 (regarding Megan’s Law I); Williams, 832 A.2d at 986 (regarding 

Megan’s Law II); Miller, 886 A.2d at 316 (regarding Megan’s Law II); Coppolino v. Noonan, 

102 A.3d 1254 (Pa. Cmwlth. 2014) (regarding SORNA).
11

In carrying out that purpose, our General Assembly in Megan’s Law 

II classified individuals differently based on their perceived potential danger to the 

community. Specifically, sexually violent predators were required to register for 

their lifetime whereas individuals who were convicted of lesser offenses, referred 

to as merely sexual offenders, were only required to register for ten years. See

Section 9795.1 of Megan’s Law II, formerly 42 Pa. C.S. §9795.1. Presumably 

under this classification system, sexual offenders were considered less of a danger 

to the community and, if not convicted of another like offense for ten years, the 

statute’s registration and notification requirements were no longer needed to 

protect public safety. See Miller, 886 A.2d at 316 (stating “courts are free to 

hypothesize reasons why the legislature created the particular classification at 

issue” and hypothesizing that Megan’s Law II identified the class of sexual 

offenders as “deserving of attention because of the character of the predicate 

offenses, the difficulties in rehabilitating offenders, and the consequent concern for 

re-offense.”).

Jackson was classified a sexual offender when he moved to 

Pennsylvania in 2004 and the PSP admits that he was only required to register for 

ten years. We can assume then that the PSP did not consider Jackson to pose the 

same risk to the citizens of the Commonwealth as individuals classified as sexually 

violent predators who were required to register for life. Because Pennsylvania 

sexual offenders who completed their ten-year registration period before SORNA 

was enacted are not required to register for the rest of their lives, requiring Jackson 

to now register for the rest of his life under SORNA and not count all the years that 

he has registered in other states, merely because his offense was committed in 
12

another state, is not reasonably related to enhancing public safety and welfare. 

This fact was recognized in Megan’s Law III, although that statute was found 

unconstitutional for other reasons. Consequently, the PSP’s decision not to credit 

Jackson for the approximately six years he spent registering out-of-state is arbitrary 

and not reasonably related to the object of the Commonwealth’s sex offender 

legislation; therefore, the PSP’s application of the law violates the Equal Protection 

Clause of the United States Constitution.12

Jackson’s ten-year registration period should have expired sometime 

in 2008 and there are no allegations that he has committed any new sexual offenses 

since his 1991 Texas conviction. Because Jackson had successfully completed his 

registration period prior to SORNA’s effective date in December 2012, he was not 

subject to the act and the PSP erred in mandating that he continue to register as a 

sexual offender under SORNA.

For the foregoing reasons, we grant Jackson’s application for 

summary relief, deny the PSP’s cross-motion, and order that Jackson’s name be 

removed from the list of offenders required to register under SORNA.

 

DAN PELLEGRINI, Senior Judge

 

12 Jackson has not raised an equal protection claim under the Pennsylvania Constitution. 

However, we note that “[t]he equal protection provisions of the Pennsylvania Constitution are 

analyzed under the same standards used by the United States Supreme Court when reviewing 

equal protection claims under the Fourteenth Amendment.” Love v. Borough of Stroudsburg, 

597 A.2d 1137, 1139 (Pa. 1991).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tommy Lee Jackson, :

Petitioner :

:

v. :

:

Commonwealth of Pennsylvania, :

Respondent : No. 388 M.D. 2014

O R D E R

AND NOW, this 7

th day of July, 2016, we hereby grant Tommy 

Lee Jackson’s application for summary relief, deny the Pennsylvania State Police’s

cross-application for summary relief, and hold that Jackson is no longer required to 

register as a sexual offender.

 

DAN PELLEGRINI, Senior Judge