IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tyrone Peake, Joan Grey, Charles Ford, : Desmond Lowe, Rudolph Jainlett, and : Resources For Human Development, : Inc., :

Petitioners :

: v. : No. 216 M.D. 2015 : Argued: September 16, 2015 The Commonwealth of Pennsylvania, : Department of Human Services of the : Commonwealth of Pennsylvania, : Department of Aging of the : Commonwealth of Pennsylvania, and : Department of Health of the : Commonwealth of Pennsylvania, :

Res pondents :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Jud ge HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE LEAVITT FILED: December 30, 2015

Tyrone Peake, Joan Grey, Charles Ford, Desmond Lowe, Rudolph Jainlett, and Resources For Human Development, Inc., have filed a petition for
review in this Court’s original jurisdiction seeking declaratory and injunctive
relief. The petition lodges a constitutional challenge to a provision in the Older2

Adults Protective Services Act 1 (Act) that prohibits persons with even one conviction of a list of enu merated crimes to be employed in the care of older
adults

. Petitioners have moved for summary relief. The Commonwealth , by the Department s of Aging, Human Services and Health, has moved to dismiss the petition for review. Because we conclude that the Act’s lifetime employment ban is unconstitutional on its face, we grant summary relief to Petitioners.
Background In 1987, the General Assembly , recognizing that Pennsylvania’s older adults require protection from exploitation, neglect and abuse , enacted t he Act, which states, in relevant part, as follows:

It is the intent of the General Assembly to provide for the detection and reduction, correction or elimination of abuse, neglect, exploitation and abandonment, and to establish a program of protective ser vices for older adults in need of them.

Section 102 of the Act, 35 P.S. § 10225.102. To that end, the Act established a network of agencies in the Commonwealth to provide protective services for older adults, including those who reside in long

- term care nu rsing facilities , receive services in their own homes or attend older adult daily living centers . Section 103 of the Act, 35 P.S. §10225.103. 2

1 Act of November 6, 1987, P.L. 381, as amended , 35 P.S. §§10225.101

- 10225.5102.
2 Section 103 defines a “Facility” as Any of the following: (1) A domiciliary care home as defined in section 2202

- A of the act of April 9, 1929 (P.L. 177, No. 175), known as The Administrative Code of 1929. (2) A home health care agency. (Footnote continued on the next page . . .)3 In December 1996, the General Assembly amended the Act to add Chapter 5 entitled “Criminal History for Employees .” 3 35 P.S. §§10225.501

- 5 08. Chapter 5 required all applicants seeking employment in a facility covered by the
Act , as well as employees who had been employed in an Act

- covered facility for less than two years, to submit to a criminal history records check. 35 P.S. §§10225.502, 10225.508. 4 Section 502 states, in relevant part, as follows:

( a) General rule.

— Facility shall require all applicants to submit with their applications, and shall require all administrators and any operators who have or may have direct contact with a recipient to submit, the following information obtained within the preceding one

- year period: (1) Pursuant to 18 Pa.C.S. Ch. 91 (relating to criminal history record information), a report of

(continued . . .)

(3) A long

- term care nursing facility as defined in section 802.1 of the act of July 19, 1979 (P.L. 130, No. 48), known as the Health Care Facilities Act. (4) An older adult daily living center as defined in section 2 of the act of July 11, 1990 (P.L. 499, No. 118), known as the Older Adult Da ily Living Centers Licensing Act. (5) A personal care home as defined in section 1001 of the act of June 13, 1967 (P.L. 31, No. 21), known as the Public Welfare Code. 35 P.S. §10225.103.
3 Chapter 5 was added by the Act of December 18, 1996, P.L. 1125, No. 169, §5, effective July 1, 1998 (Chapter 5).
4 In 1996, Section 508 of the Act stated, in relevant part, as follows: This chapter shall apply as follows: (1) An individual who on the effective date of this chapter has continuously for a period of two year s been an employee of the same facility shall be exempt from section 502 as a condition of continued employment. Former Section 508(1), 35 P.S. §10225.508(1).4 criminal history record informa tion from the State Police or a statement from the State Police that their central repository contains no such information relating to that person. The criminal history record information shall be limited to that which is dissem inated pursuant to 18 Pa.C. S. § 9121(b)(2) (relating to general regulations). (2) Where the applicant is not and for the two years immediately preceding the date of application has not been a resident of this Commonwealth, administration shall require the applicant to submit with the application for employment a report of Federal criminal history record information pursuant to the Federal Bureau of Investigation’s appropriation under the Departments of State, Justice, and Commerce, the Judiciary, and Related Agencies Appropriation Act , 1973 (Public Law 92

- 544, 86 Stat. 1109).
35 P.S. §10225.502(a)(1), (2).

The 1996 amendments established two categories of past criminal
convi ctions: ( 1) those criminal convictions that disqualified an individual from obtaining or continuing employment r egar dless of the date of the conviction , and ( 2) those criminal convictions that disqualified an individual where the conviction had occurred within the past ten years. Section 503 of the Act, 35 P.S. §10225.503 , amended June 9, 1997

. 5 The first category included murder, rape and

5 Former Section 503 of the Act stated as follows: Grounds for denying employment. (a) General ru le.

– In no case shall a facility hire an applicant or retain an employee required to submit information pursuant to section 502(a) if the applicant’s or employee’s criminal history record information indicates the applicant or employee has been convicted under one or more provisions of 18 Pa. C.S. (relating to crimes and offenses): Section 2502(a) or (b) (relating to murder). (Footnote continued on the next page . . .)5

(continued . . .) Section 3121 (relating to rape).

Section 3122.1 (relating to statutory sexual assault). Section 3123 (relating to involuntary deviate sexual intercourse). Section 3124.1 (relating to sexual assault). Section 3125 (relating to aggravated indecent assault). Section 3126 (relating to indecent assault). Section 4302 (relating to incest). Section 6312 (relating to sexual abuse of chil dren). (b) Other offenses.

– In no case may a facility hire an applicant or retain an employee required to submit information pursuant to section 502(a) if the applicant’s or employee’s criminal history record information indicates the applicant or employe e has been convicted within ten years immediately preceding the date of the report of one or more of the following offenses: (1) An offense designated as a felony under the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act. (2) An offense under one or more of the following provisions of 18 Pa. C.S.: Chapter 25 (relating to criminal homicide) except for section 2502(a) and (b). Section 2702 (relating to aggravated assault). Section 2901 (relating to kidnapping). Section 2902 (relating to unlawful restraint). Section 3301 (relating to arson and related offenses). Section 3502 (relating to burglary). Section 3701 (relating to robbery). A felony offense under Chapter 39 (relating to theft and related off

enses) or two or more misdemeanors under Chapter 39. Section 4101 (relating to forgery). (Footnote continued on the next page . . .)6

sexual assault. Id. A conviction of a category one offense imposed a lifetime ban on, or immediate discharge from , employment in an Act

- covered facility. The
second category of crimes included, inter alia , felony drug violations; aggravated assault; kidnapping; arson; robbery; and felony or misdemeanor theft offenses. Section 503(b) of the Act , 35 P.S. §10225. 5 03 (b) . A conviction of a category two
criminal offense imposed an employment ban for a period o f ten years.

In June 1997, before the effective date of Section s 502 and 503, the General Assembly amended Chapter 5 to expand the employment ban. 6 Specifically, the 1997 amendment provided as follows:

(continued . . .) Section 4304 (relating to endangering welfare of children). Section 4305 (relating to dealing in infant children). Section 4953 (relating to retaliation against witnes s or victim). A felony offense under section 5902(b) (relating to prostitution and related offenses). Section 5903(c) or (d) (relating to obscene and other sexual materials and performances). Section 6301 (relating to corruption of minors). (3) A Federal o r out

- of

- State offense similar in nature to those crimes listed in paragraphs (1) and (2). (c) Immunity.

– An administrator or a facility shall not be held civilly liable for any action directly related to good faith compliance with this section. Former 35 P.S. §10225.503.
6 Act of June 9, 1997, P.L. 160, No. 13, §2, effective in 180 days

.7 (a) General rule.

—

In no case shall a facility hire an applicant or retain an employee required to submit information pursuant to section 502(a) if the applicant’s or employee’s criminal history record information indicates the applicant or employee has been convicted of any of the following offenses : (1) A n offense designated as a felony under the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act. (2) An offense under one or more of the following provisions of 18 Pa.C.S. (relating to crimes and offens es): Chapter 25 (relating to criminal homicide). Section 2702 (relating to aggravated assault). Section 2901 (relating to kidnapping). Section 2902 (relating to unlawful restraint). Section 3121 (relating to rape). Section 3122.1 (relating to statutory
sex ual assault). Section 3123 (relating to involuntary deviate sexual intercourse). Section 3124.1 (relating to sexual assault). Section 3125 (relating to aggravated indecent assault). Section 3126 (relating to indecent assault). Section 3127 (relating to indecent exposure).8 Section 3301 (relating to arson and related offenses). Section 3502 (relating to burglary). Section 3701 (relating to robbery). A felony offense under Chapter 39 (relating to theft and related offenses) or two or more misdemeanors under Chapter 39. Section 4101 (relating to forgery). Section 4114 (relating to securing execution of documents by deception). Section 4302 (relating to incest). Section 4303 (relating to concealing death of child). Section 4304 (relating to endangering welfare of children). Section 4305 (relating to dealing in infant children). Section 4952 (relating to intimidation of witnesses or victims). Section 4953 (relating to retaliation against witness or victim). A felony offense under section 5902(b) (relating to pro stitution and related offenses). Section 5903(c) or (d) (relating to obscene and other sexual materials and performances). Section 6301 (relating to corruption of minors).9 Section 6312 (relating to sexual abuse of children). (3) A Federal or out

- of

- State o ffense similar in nature to those crimes listed in paragraphs (1) and (2). (b) Deleted. (c) Immunity.

— An administrator or a facility shall not be held civilly liable for any action directly related to good faith compliance with this section.

35 P.S. §10225.503 (emphasis added)

. The 1997 amendment effected the current version of the Act, which is the subject of the instant petition for review.

The 1997 amendment also revised the scope of the ban . It now required all applicants and employees , who had been working at a n Act

- covered facility for less than one year before the effective date of Chapter 5 , i.e. , July 1,
1998 , to submit a criminal history record report. Section 508(1) of the Act, 35 P.S. §10225.508(1). 7 Where the report disclosed a disqualifying conviction, the facility was required to discharge an employee who had less than one year of employment as of July 1, 1998. The facility was not required to discharge a n employee with

7 Section 508 of the Act states, in relevant part, as follows: This chapter shall apply as follows: (1) An individual who, on the effective date of this chapter, has

c ontinuously for a period of one year been an employee of the same facility shall be exempt from section 502 as a condition of continued employment.

*** (3) If an employee who is exempt under paragraph (1) seeks employment with a different facility, the emp loyee and the facility shall comply with section 502. 35 P.S. §10225.508(1), (3).10

more than one year of employ ment, but that person was banned from being hired by another facility . 35 P.S. §10225.508(3). A facility that fails to comply with the requirements in Chapter 5 faces civil and criminal penalties. Section 505 of the Act, 35 P.S. §10225.505.

The Act’s em ployment ban prompted a constitutional challenge. See
Nixon v. Commonwealth , 789 A.2d 376 (Pa. Cmwlth. 2001) ( Nixon I )

. The petitioners in Nixon had been convicted of one of the enumerated types of criminal offenses that would not have been disqualifying under the pre

- 1997 version of the
Act. 8 H owever, the 1997 amendments permanently barred them from employment
in an Act

- covered facilit y

. The petitioners argued that the Act violated their due

process right s by arbitrarily infringing on their righ t to pursue a lawful occupation

. Noting that the Commonwealth had stipulated that each of the named petitioners “would make excellent care workers for older Pennsylvanians,” this Court held that the criminal history provisions of the Act were “arbitrary and ir rational” and
that “no rational relationship exists between the classification imposed upon Petitioners and a legitimate governmental purpose.” Id . at 382. Accordingly, we
declared that the criminal history provisions of the Act were unconstitutional as applied to the individual petitioners in that case.

T he Pennsylvania Supreme Court affirmed for a different reason

. See
Nixon v. Commonwealth , 839 A.2d 277 (Pa. 2003) ( Nixon II ) . The Supreme Court recognized that an employment ban may be desirable in som e circumstances, explaining: There is no question that protecting the elderly, disabled, and

infirm from being victimized is an important interest in this

8 As in the instant case, Resources for Human Development, Inc. was also one of the petitioners.11 Commonwealth and that the General Assembly may enact laws that restrict who may work with these indiv iduals. Further, barring certain convicted criminals from working with these citizens may be an effective means of protecting such citizens from abuse and exploitation.

Nixon II , 839 A.2d at 288. However, the Court found the Act’s employment ban

was not rationally related to the Commonwealth’s legitimate interest in protecting elderly citizens because the immediate effect of the statute was to prohibit the employment of those employed less than a year before the effective date of Chapter 5 while permitting

innumerable individuals with disqualifying criminal records to continue working with the purportedly protected [older adult] population solely because they had maintained a job in a covered facility for the year prec eding the effective d ate of the chapter.

Id . at 289. 9 The Supreme Court concluded that there was no rational basis for treating the latter group as capable of rehabi litating themselves and the form er
group as not capable of rehabilitation

. Id

. Accordingly, it held that Ch apter 5

does not bear a real and substantial relationship to the Commonwealth’s interest in protecting the elderly, disabled, and infirm from victimization, and therefor e unconstitutionally infringes on the [petitioners’] right to pursue an occupation.

Id . at 290. The Court ordered that the individual petitioners be able “to seek employment in a covered facility.” Id

.

9 The Supreme Court noted that because the Act’s “criminal records chapter [ did] not create an absolute bar on the employment of convicted criminals” who were grandfathered into their employment, the Court did not need to address the issue of whether such a bar would be constitutionally permissible. Nixon II , 839 A.2d at 288.12 In response to Nixon II , the Department of Aging adopted an “Interim Policy , ” based on the premise that “ legislative action in the near future ” would take place. Petition for Review, ¶4. The Department announced that u ntil the
enactment of this anticipated legislation, Act

- covered facilities would be expected to comply with the Department’s Policy, not Chapter 5. Id. The Interim Policy provides that a person with a disqualifying criminal record can become eligible for employment by working five years in dependent

- care work after the conviction or release from prison, whichever occurs later. Id

. Further, t he Interim Policy permits Act

- covered facilities to make hiring decisions on a case

- by

- case basis. Petition for Review, ¶63.

T he General Assembly has neither repealed nor significantly amended the Act’s criminal history provisions. The statutory lifetime employmen t prohibition remains intact as does the Act’s differentiation between new applicants and those employed 11 months and 29 days in an Act

- covered facility on July 1, 1998, and those who had been employed at an Act

- covered facility for 12 months on July 1, 1 998.

Petition for Review

Petitioners are five individuals and a non

- profit social service provider. Petition for Review, ¶1. I n April 2015, they filed a p etition for r eview in this Court’s original jurisdiction challenging the constitutionality of the Ac t’s lifetime employment ban provisions. The individual Petitioners aver that they are all fully qualified for employment in Act

- covered facilities. Petition for Review, ¶6. As was the case for the Nixon petitioners, they all have convictions for crimes that disqualify them from obtaining employment in Act

- covered facilities. Petition13

for Review, ¶¶8

- 36. 10 Resour ces for Human Development, Inc. (Resources) , the
other P etitioner, operates facilities for those with mental illness, mental retardation
and che mical dependency issues. Petition for Review, ¶¶37

- 38. It hires hundreds of new employees each year. Petition for Review, ¶38. Prior to the passage of Chapter 5 of the Act, Resources hired persons with criminal convictions who had
rehabilitated themsel ves and found these persons to be valuable employees.

10 Tyrone Peake, age 52, rode with friends in a stolen vehicle when he was 18 years old. He was convicted of attempted theft of an automobile and served three years of probation. This single brush with the law over thirty years ago precludes Peake from obt aining employment in an Act

covered facility. Petition for Review, ¶¶8

- 13. Joan Grey, age 60, has a degree as a Licensed Practical Nurse and over 20 years of caregiving experience. In 1998, she was convicted of possession of drugs with intent to deliver. She served a short jail term and completed a drug treatment program, and she has had no further involvement with the criminal justice system . Because of this 17

- year

- old conviction, Grey has been rejected for employment by several Act

- covered facilities . Petition for Review, ¶¶14

- 19. Charles Ford, age 55, has over 30 years of experience as a cook. In 1980, when he was 20 years old, Ford was convicted of robbery, attempted theft by unlawful taking, aggravated assault and simple assault all stemming from an altercation at a neighborhood basketball court. Two years later, he was convicted of disorderly conduct. Ford struggled with substance abuse issues but has been sober for 24 years. Because of his 30

- year old convictions, Ford has been denied a posit ion in food services in an Act

- covered facility. Petition for Review, ¶¶20

- 26. Desmond Lowe, age 48, has experience working in maintenance, cleaning and food services at a nursing home and the Children’s Hospital of Philadelphia. In 1999, when he was 33 years old, he borrowed a car from a friend, was pulled over by police and learned that the car had been stolen. Fearful that a protracted trial would cause him to miss work and lose his job, Lowe pled guilty to one charge of theft by receiving stolen prop erty. He was sentenced to two years of probation, which he served, and has had no further trouble with the law. When Lowe was let go from his latest job at Walmart in 2014, he applied for his former position as a kitchen worker with the nursing home, but was told he could not be hired because of the Act’s employment ban. Petition for Review, ¶¶27

- 31. Rudolph Jainlett, age 39, has experience providing elder and child care for family members and friends. In 1996, he was convicted of writing bad checks ; in 1997, he was convicted of auto theft after he borrowed a car from his cousin that turned out to be stolen. Jainlett served a total of five years’ probation for these offenses and had no further legal troubles. Because of his criminal record from near ly two decades ago, Jainlett cannot obtain employment in an Act

- covered facility. Petition for Review, ¶¶32

- 36.14

Petition for Review, ¶39. Because of the Act’s lifetime employment ban,
Resources has been forced to refuse employment to qualified job candidates that it
wished to hire or to retain as employees. Pe tition for Review, ¶¶38

- 39. This employment ban has negatively impact ed Resources’ ability to provide the best possible services to its clients. Petition for Review, ¶39.

The Petition for Review aver s that social science research conducted subsequent to the Nixon case shows that the lifetime employment ban is built on a faulty premise because the risk of recidivism declines over time and eventually “loses any meaningful value in predicting future crimi nal conduct.” Petition for Review, ¶61. I n 2012, the United States Equal Employment Opportunity Commission (EEOC) issued a guidance policy noting that criminal history employment exclusions have a disparate racial impact and recommending that prospective employers assess employment eligibility by considering the nature of the crime, the time elapsed, and the nature and requirements of the particular job. Petition for Review, ¶62.

Petitioners contend that the Act is unconstitutional as applied to them
for the reasons found in Nixon I and Nixon II . Petition for Review, ¶¶69

- 70. They
also raise a facial constitutional challenge to the lifetime employment ban so as to “avoid the need for continuous piecemeal litigation consisting of numerous as

applied chal lenges brought by similar groups of aggrieved individuals.” Petition for Review, ¶71. They seek a declaration that the lifetime employment ban found in Section 503(a) of the Act, 35 P.S. §10225.503(a), violates several constitutional precepts. First, it violates Article I, Section 1 of the Pennsylvania Constitution 11 by

11 It states: (Footnote continued on the next page . . .)15

unreasonably and arbitrarily excluding the individual Petitioners and other similarly aggrieved individuals from lawful employment for w hich they are otherwise qualified. Petition for Review, ¶72. Second, Section 503(a) of the Act violates the right to substantive due process inherent in Article I, Section 1 of the Pennsylvania Constitution by unreasonably and irrebuttably presuming that the individual Petitioners and other similarly aggrieved individuals are unqualified for employment in Act

- covered facilities. Petition for Review, ¶73. Third, Section 503(a) of the Act violates the right to equal protection set forth in Article I,
Sect ions 1 and 26 of the Pennsylvania Constitution 12 by unreasonably and arbitrarily precluding the individual Petitioners and similarly aggrieved individuals from lawful employment while allowing other individuals with similar convictions to remain employed, d epending solely upon their employment status as of July 1, 1998. Petition for Review, ¶74. Fourth, Section 503(a) of the Act violates the substantive due process rights of Resources by arbitrarily and unreasonably interfering with its right to conduct la wful business and to hire the employees who best serve its clients. Petition for Review, ¶75. T he p etition for r eview seeks a

(continued . . .) All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoyi ng and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness. P A

. C ONST

. art. I, §1.
12 Article I, Section 26 states: Neither the Commonwealth nor any political subdivision thereof s hall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right. P A

. C ONST

. art. I, §26.16

permanent injunction against the enforcement of the Act’s lifeti me employment
ban.
On April 16, 2015, Petitioners filed a m otion for s ummary r elief asserting that they are entitled to judgment because there are no material facts in dispute and the ir right to relief is clear. 13 The Commonwealth filed preliminary objections to the p etition for r eview. We address Petitioners’ motion and the Commonwealth’s preliminary objections together.

Issues Petitioners argue that the Act’s lifetime employment ban is facially
unconstitutional because it violates substantive due process in two ways. First, as established by the Supreme Court in Nixon II , the Act’s distinction between individuals employed at a single Act

- covered facility for a year as of July 1, 1998,
and those who are not, is facially irrational and not related to a legitimate state

purpose. Second , the ban violates due process by establishing an irrebuttable presumption of unfitness for employment , which has been declared
unconstitutional in numerous court decisions. Petitioners also argue that the Act’s lifetime employment ban is unconstitutional as applied to them because the ir
situation s are factually identical to those of the petitioners in Nixon

.

13 Petitioners filed their motion for summary relief under Rule 1532(b) of the Pennsylvania Rules of Appellate Procedure, which states: (b) Summary relief. At any time after the filing of a petition for review in an appellate or original jurisdiction matter the court may on application enter judgment if the right of the applicant thereto is clear. P A

. R.A.P . 1532(b). The court may grant a motion for summary relief if a party’s right to judgment is clear and there are no material issues of fact in dispute. Jubelirer v. Rendell , 953 A.2d 514, 521 (Pa. 2008).17 The Commonwealth responds that Petitioners ’ facial challenge must fail because they cannot show that the lifetime employment ban is per se unconstitutional in every possible applic ation

. A t a minimum, there exist disputes
on the material facts. The Commonwealth also argues that Petitioners cannot
sustain their as

- applied challenge to the Act because the Department of Aging’s Interim Policy provides a mechanism for all persons , inc luding Petitioners, to gain employment in Act

- covered facilities

. Analysis

An act of the General Assembly is presumed to be valid and will not be declared unconstitutional unless it clearly, palpably and plainly violates the
Constitution. Johnson v. Alleg heny Intermediate Unit , 59 A.3d 10, 16 (Pa. Cmwlth. 2012). A party challenging the constitutionality of a statute bears a very heavy burden to overcome this presumption. Nixon II , 839 A.2d at 286. 14 There are two types of constitutional challenges, facial and as

- applied. Commonwealth v.
Brown , 26 A.3d 485, 493 (Pa. Super. 2011).

A facial attack tests a law’s constitutionality based on its text alone and does not consider the facts or circumstances of a particular case. An as

- applied attack, in contrast, does not contend that a law is unconstitutional as written but that its application to a particular person under particular circumstances deprived that person of a constitutional right.

14 A challenge to the constitutionality of a statute presents a pure question of law, over which the court’s standard of review is de novo and the scope of review is plenary. Commonwealth v. Omar , 981 A.2 d 179, 185 (Pa. 2009). In determining the constitutionality of a law, the courts may not question the propriety of the public policies adopted by the General Assembly for the law. The inquiry is limited to examining the connection between those policies and the law. Nixon II , 839 A.2d at 286.18

Id . at 493 (qu oting United States v. Marcavage , 609 F.3d 264, 273 (3d Cir. 2010)).

a. Standard for Facial Constitutional Challenge

T he parties disagree on the proper standard for a facial constitutional challenge. Relying on Clifton v. Allegheny County , 969 A.2d 1197 (Pa. 2009), the Commonwealth argues that a statute can be declared facially unconstitutional only
if there is no set of circumstances under which the statute would be valid. Petitioners rejoin that “no set of circumstances” is not the correct standard. R ather, they contend a statute is facially unconstitutional if a substantial number of its potential applications are unconstitutional.

At issue in Clifton was “the constitutionality of Pennsylvania’s property assessment laws.” Clifton , 969 A.2d at 1200

- 01. In that context, our Supreme Court considered “ the standard by which facial challenges are evaluated, or the facial challenger’s corresponding burden of proof. ” Id. at 1222. The Supreme Court began with a review of relevant precedent. For example, i n United
States v. Salerno , 481 U.S. 739 (1987), the U.S. Supreme Court stated that a facial constitutional challenge would succeed only upon a showing that there were no set
of circumstances under which the statute would be valid. However , in Washington State Grange v. Washington State Republican Party , 552 U.S. 442 , 449 (2008), the U.S. Supreme Court settled on a “ plainly legitimate sweep ” standard. Under the latter standard, “the challenger need only demonstrate that a ‘ substantial number ’ of the challenged statute’s potential applications are unconstitutional. ” Clifton , 969 A.2d at 1223 n.36. The Pennsylvania Supreme Court observed in Clifton that :

Even under the “plainly legitimate sweep” standard, a statute is only facially invalid when its invalid applications are so real and substantial that they outweigh the statute’s “plainly legitimate sweep.” Stated differently, a statute is facially19 invalid when its constitutional deficiency is so evident that proof of actual unconstitutional applications is unnecessary.
Clifton , 969 A.2d at 1223 n.37. Without fixing a standard for all facial constitutional challenges, the Pennsylvania Supreme Court applied the “plainly legitimate sweep ” standard and held that the facial challenge raised by the petitioners must fail

. Clifton , 969 A.2d at 1224.

Because our Supreme Court applied the plainly legitimate sweep
standard in Clifton , and this is the most recent pr onouncement on how to evaluate a facial challenge, we believe it is the appropriate standard. Further, this conclusion
is consistent with the Pennsylvania Supreme Court ’s earlier decision in
Commonwealth v. Ickes , 873 A.2d 698 (Pa. 2005).

In Ickes , the Pennsylvania Supreme Court observed that the “no set of
circumstances test” was based on obiter dicta from the U

. S

. Supreme Court’s
Salerno decision and “is not controlling for state courts.” Ickes , 873 A.2d at 702. Instead, our Supreme Court cited to th e “plainly legitimate sweep” test and held
that: This Court may invalidate a statute for vagueness or for

overbreadth even if it is possible the statute may be applied lawfully in some circumstances

.
Id . at 702 (emphasis added). Our Supreme Court explaine d that this is so because

e very statute that is unconstitutional by reason of being overbroad is capable of at
least one constitutional application

. b. Lifetime Employment Ban Having determined that the standard for a facial constitutional challenge is the “plainly legitimate sweep” test, we consider the lifetime employment ban in Section 503(a) of the Act. Petitioners argue that the Act’s20

lifetime employment ban is facially unconstitutional because it applies only to individuals not employed in an A ct

- covered facility for at least one year as of July 1, 1998, and establishes an impermissible irrebuttable presumption of unfitness for employment in an Act

- covered facility for anyone ever convicted of an enumerated
crime. Petitioners assert that these standards violate due process

.

Article I of the Pennsylvania Constitution guarantees individual s a wide range of rights , including due process. “The touchstone of due process is protection of the individual against arbitrar y action of the government.” Nixon II , 839 A.2d at 287 (quoting Wolff v. McDonnell , 418 U.S. 539, 558 (1974)). The General Assembly may, under its police power, limit the rights of the Commonwealth’s citizens by enacting laws to protect the public health , safety and welfare, but these limits are subject to judicial review using a substantive due process analysis. Nixon II , 839 A.2d at 286. Under this analysis, courts weigh the rights infringed upon by the law against the interest the legislature sought to achieve, and “scrutinize the relationship between the law (the means) and that interest (the end).” Id . at 286

- 87.

In Nixon II , the Supreme Court held that Chapter 5 infringe d upon the right of individuals to engage in lawful health care occupations , which is a right protected by the due process right established in Article I, Section 1. Nixon II , 839
A.2d at 288

. However, the right to engage in a particular occupation is not a fundamental right that implicates strict scrutiny ; rather, the Court analyzed the constitutionality of Chapter 5 using the “ rational basis test.” Id. Accordingly, t he state can lawfully deprive an individual of the ability to work at a particular job so long as the deprivation is reasonably related to the state interest sought to be protected. Id

.21 Due process challenges under the Pennsylvania Constitution are analyzed “more closely” under the rational basis test than due process challenges
under the United States Constitution. 15 Nixon II , 839 A.2d at 287

- 88 n.15. In
Gam bone v. Commonwealth , 101 A.2d 634 (Pa. 1957), the Pennsylvania Supreme Court succinctly defined the rational basis test applicable to substantive due process challenges brought under the Pennsylvania Constitution as follows:

[A] law which purports to be a n exercise of the police power must not be unreasonable, unduly oppressive or patently beyond the necessities of the case , and the means which it employs must have a real and substantial relation to the objects sought to be attained. Under the guise of pr otecting the public interests the legislature may not arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations

.
Gambone , 101 A.2d at 637 (emphasis added). 16 In Nixon II , our Supreme Court
reaffirmed that for “substantive due process challenges brought under the Pennsylvania Constitution, the rational basis test is that announced by this Court in
Gambone .” Nixon II , 839 A.2d at 277

- 78 n.15. This means that t he legislature can curtail the right to en gage in a chosen occupation for an important reason, but it may not do so in a way that is overly broad , i.e. , “patently beyond the necessities
of the case.” Gambone , 101 A.2d at 637. As discussed supra ,

15 In the rational basis test used in equal protection and due process challenges brought under the United States Constitution, “a court must uphold a statute as rational if it can conceive of any plausible reason fo r the statute.” Nixon II , 839 A.2d at 287

- 88 n.15. In those challenges, it matters not whether a statutory classification will have some inequitable results. Id

. 16 At issue i n Gambone was a statute prohibiting the display of any sign larger than twelve inches showing the price of liquid fuel on premises where the fuel was sold or adjacent thereto. The Supreme Court held that the statut e was unconstitutional because the size restriction bore no rational relation to protecting the public health, safety, morals or welfare and , therefore , impermissibly infringed on fuel vendors’ due process rights.22 [a] n overbroad statute violates substantive due pr ocess by depriving a person of a constitutionally protected interest through means which are not rationally related to a valid state objective because they “sweep unnecessarily broadly.”
Pennsylvania Medical Society v. Foster , 608 A.2d 633, 636 (Pa. Cmwlth . 1992) (citing Adler v. Montefiore Hospital Association of Western Pennsylvania , 311 A.2d 634, 640 (Pa. 1973)).

Relying on the holding in Nixon II , Petitioners argue that the Act’s lifetime employment ban does not comport with substantive due process because it applies to certain individuals with a criminal record but not others with the same record, depending on their employment status as of July 1 , 1998 . This different
treatment is not rationally related to the legitimate state purpose of protecting older persons from abuse, neglect and exploitation. Petitioners also challenge the Act’s
use of an irrebuttable presumption to effect its employment ban.

Statutory irrebuttable presumptions are “created as a means of achieving an end result found desirable by the legislature.” Department of Transportation, Bureau of Driver Licensing v. Clayton , 684 A.2d 1060, 1063 (Pa. 1996). Irrebuttable presumptio ns often run afoul of due process protections because they infringe upon protected interests “by utilizing presumptions that the existence of one fact [is] statutorily conclusive of the truth of another fact.” In the Interest of J.B. , 107 A.3d 1, 14 (Pa. 2014). In Clayton , our Supreme Court explained that an irrebuttable presumption is not constitutional where: ( 1) it encroaches on an interest protected by the due process clause; ( 2) the presumption is not universally true; and ( 3) reasonable alternative means exist for ascertaining the presumed fact. Clayton , 684 A.2d at 1063

.

Clayton involved a Department of Transportation regulation that
mandated the suspension of a driver’s license for a period of one year where the23

licensee experienced a seizure, r egardless of whether that licensee’s physician determined the person competent to drive. The Supreme Court concluded that this irrebuttable presumption made the license suspension “a foregone conclusion” and, thus, violated due process. Id. at 1065. 17

In J.B. , 107 A.3d 1, the Supreme Court declared unconstitutional a provision of the Sex Offender Registration and Notification Act 18 requiring lifetime registration of juvenile sex offenders. The Court rejected the Act’s irrebuttable presumption that juvenile sexual offenders pose a high risk of
recidiv ism , holding that the presumption was not universally true

. The Court
found a reasonable alternative means of ascertaining the presumed fact that a juvenile offender poses a high risk of recidivism, i.e

. , an individualized risk

assessment. Id. at 17

- 19. 19

This Court’s precedent on employment bans is also instructive. In Warren County Human Services v. State Civil Service Commission (Roberts) , 844 A.2d 70 (Pa. Cmwlth. 2004), Warren County dismissed an em ployee who had a 1980 conviction for aggravated assault , which he had di sclosed when he was hired
as a caseworker. One year later, his employer realized that it had violated the

17 The Supreme C ourt explained that a statutory irrebuttable presumption implicates both substantive and procedural due process, stating: The presumption, it seems, is the substance of the statute or regulation at issue, which presumption necessarily implicates process given its conclusiveness. Clayton , 684 A.2d at 1064 (emphasis in original).
18 42 Pa. C.S. §§9799.10

- 9799.41.
19 In D.C. v. Sc hool District of Philadelphia , 879 A.2d 408 (Pa. Cmwlth. 2005), this Court declared unconstitutional a provision of the Public School C ode of 1949 employing an irrebuttable presumption that students adjudicated delinquent or convicted of certain crimes had to first return to an alternative education setting because they were not fit to immediately return to a regular classroom.24

Child Protective Services Law’s ban on hiring anyone ever convicted of

aggrav ated assault. 20 The employer discharged the employee notwithstanding his exemplary performance as a caseworker. This Court held that the statute’s lifetime
ban was unconstitutional because it foreclosed consideration of whether a
conviction , remote in tim e, was determinative of whether a person could act as a
child caseworker. This created “ limitations that have no temporal proximity to the time of hiring.” Id . at 74. W e advised that:

At a minimum, the [Child Protective Services Law] should be fine

- tune d to provide for specific time limitations for each crime depending on its egregiousness.

Id . at 74 n.9. Finally, this Court considered a lifetime employment ban of individuals convicted of homicide offenses in Section 111(e)(1) of the Public
School Code o f 1949 21 in Johnso n v. Allegheny Intermediate Unit , 59 A.3d 10 (Pa. Cmwlth. 2012). In Johnson , t he Allegheny Intermediate Unit hired an employee
with a 10

- year old felony voluntary manslaughter conviction

. A t the time of hire , the Public School Code precluded the hiring of persons with a manslaughter conviction less than five years old. In 2011, the legislature amended the Public
School Code to make this employment ban of lifetime duration

. The Allegheny
Intermediate Unit disc harged the employee in spite of an exemplary 20

- year work record. This Court held that the lifetime employment ban was “unreasonable,

20 23 Pa. C.S. §6344(c)(2). The employer had relied on an older pre

- amendment version of the law which allowed the hiring of someon e convicted of aggravated assault more than five years prior to applying for the position.
21 Act of March 10, 1949, P.L. 30, added by the Act of July 1, 1985, P.L. 129, as amended , 24 P.S. §1

- 111(e)(1). The Public School Code’s lifetime employment ban was very similar to the one found in Section 503(a) of the Act at issue in the case sub judice

.25

unduly oppressive and patently beyond the necessities of the offense” and “impose[d] unusual and unnecessary restrictions ” upon lawful employment and, as such did “not bear a real and substantial relationship to the Commonwealth’s interest in protecting children.” Johnson , 59 A.3d at 25.

In sum, the General Assembly may enact laws that limit an individual’s right to pursue a lawful occupation in order to achieve an important government interest , such as protecting school children or older adults from abuse and neglect . However, the means employed to reach the desired end cannot be “unreasonable, unduly oppressive or patentl y beyond the necessities of the case ; ” rather, they “must have a real and substantial relation to the objects sought to be
attained.” Gambone , 101 A.2d at 637. Clayton and its progeny further teach that a statutory irrebuttable presumption is not an appr opriate means because there are reasonable alternative means for ascertaining the presumed fact. A n irrebuttable presumption is unnecessarily broad and facially unconstitutional under the “plainly legitimate sweep” standard. Ickes , 873 A.2d at 702.

Here, Petitioners do not challenge all of Chapter 5 ; they do not suggest that they should not be subject to a criminal history check. Petitioners challenge the lifetime employment ban, which encompasses convictions for crimes ranging from murder and rape to mi sdemeanor theft convictions , and treats all
these enumerated crimes the same. As pointed out by Petitioners, Chapter 5 makes no provision for consideration of any other factor, such as the nature of the crime, the facts surrounding the conviction, the tim e elapsed since the conviction, evidence of the individual’s rehabilitation, and the nature and requirements of the job. Employers are stripped of discretion in these respects

. The employee’s26

criminal history is the single and overriding factor that a po tential employer may
consider. Applying the above

- discussed principles , we hold that the Act’s lifetime employment ban provision is unconstitutional on its face. As explained by our Supreme Court in Nixon II , the means employed by the General Assembly, i.e. ,

a lifetime employment ban at Act

- covered facilities for anyone convicted of an enumerated offense at any time , with a grandfather clause for employees with identical convictions employed for one year at a facility as of July 1, 1998, does
not bear a real and substantial relation to the stated goal of protecting older adults from “abuse, neglect, exploitation and abandonment.” Section 102 of the Act, 35 P.S. §10225.102. There is simply no rational basis to treat those employed for a year in a facilit y providing services to older adults as of July 1, 1998, as having rehabilitated themselves following their criminal convictions solely because of the amount of time they worked in one facility such that they do not pose a threat to older adults, but treat all other employees and applicants as incapable of
rehabilitation and forever a threat to older adults.

Further, the Act’s irrebuttable presumption of unfitness for employment is impermissible under Clayton’s three prong test. First, the lifetime employm ent ban infringes on an interest protected by the due process clause of the Pennsylvania Constitution. Second, the statutory irrebuttable presumption is not universally true, as evidenced by the fact that the General Assembly has opted to
allow certain in dividuals with criminal records to continue to work in Act

- covered facilities, apparently deeming it safe to do so if they were so employed on July 1,
1998 . Indeed, it defies logic to suggest that every person who has at any time been convicted of any of the crimes listed in Section 503 of the Act, including27

misdemeanor theft , presents a danger to those in an Act

- covered facility. Third, a reasonable alternative means for ascertaining the presumed fact is present in this
case. As in J.B. , 107 A.3d 1, fac ilities subject to the Act can perform
individualized risk assessments and evaluate applicants with criminal records on a

case

- by

- case basis. Prior to the passage of Chapter 5, Resources did so. Act

covered facilities should not be required to employ a p erson with a criminal record, but they should have the opportunity to assess the situation and exercise their discretion to employ an applicant found to be sufficiently rehabilitated and a good fit for the job. The Act’s lifetime employment ban, like thos e in Johnson , 59 A.3d 10, and Warren County Human Services , 844 A.2d 70, violates due process and is
therefore unconstitutional.

This Court is mindful of the Supreme Court’s pronouncement in
Nixon II that

the General Assembly may enact laws that restrict who may

work with [older adults and] barring certain convicted criminals from working with these citizens may be an effective means of protecting such citizens from abuse and exploitation.

Nixon II , 839 A.2d a t 288. However, as we explained in Warren County Human
Services , 844 A.2d at 74 n.9, the Act must be “fine

- tuned” to relate the particular criminal conviction to particular employment

. The Act’s current blanket prohibition lacks fine

- tuning because it tr eats all the enumerated crimes , regardless of their vintage or severity, as the same even though they present very different
risks of employment

.

In any case, the lifetime employment ban is unconstitutional as applied to Petitioners

. Nixon I and Nixon II are dispositive . Petitioners all have criminal convictions between 15 and 34 years ago for infractions such as theft,28

drug possession, writing bad checks, assault and disorderly conduct. Since those convictions, all have had clean criminal record s

.

The Commonwealth does not argue that the Act’s employment ban is constitutional as applied to Petitioners, only that the Commonwealth is not applying the ban to them because it is operating under the Department of Aging’s Interim Policy . This policy provides the individual Petitioners a pathway to qualify for employment in Act

- covered facilities and allows Resources to make hiring decisions on a case

- by

- case basis. We reject this argument.

T he Interim Policy is irrelevant because it is not legally binding and , i n fact, is inconsistent with Chapter 5

. At any time it could be abandoned. T he Department of Aging lacks the authority to excise the lifetime ban, or parts of it, from Chapter 5. As our Supreme Court has held, “an administrative agency can only ex ercise those powers which have been conferred upon it by the Legislature in clear and unmistakable language.” Commonwealth, Human Relations Commission v. Transit Casualty Insurance Company , 387 A.2d 58, 62 (Pa. 1978). Further, an agency is bound by the l anguage of the statute it is charged to enforce; accordingly, the agency’s regulations “must be consistent with the statute under which they are promulgated.” Pelton v. Department of Public Welfare , 523 A.2d 1104, 1107 (Pa. 1987). This is also the case f or an agency’s statement of policy, which does not
have the force of law. Central Dauphin School District v. Department of
Education , 608 A.2d 576, 581 (Pa. Cmwlth. 1992). Because the Interim Policy is not valid, it does not reduce the risk to employers, such as Resources, that remain exposed to the sanctions in Chapter 5 if they do not follow the dictates in Chapter
5.29 The statutory employment ban in the Act is the operative law . It is unconstitutional for the reasons previously discussed. 22
Conclusion The lifetime employment ban contained in Section 503 (a) of the Act, 35 P.S. §10225.503(a), violates due process guaranteed by Article I, Section 1 of the Pennsylvania Constitution because it goes beyond the necessities of the case and is not substantially related to the Act’s stated objective of protecting older adults. The statutory ban does not have a plainly legitimate sweep because a substantial number of its applications are invalid, making it unconstitutional on its face. Accordingly, summary relie f is granted to Petitioners and the Commonwealth’s preliminary objections are overruled.

______________________________ MARY HANNAH LEAVITT, Judge

22 The Commonwealth argues that Petitioners’ motion for summary relief should not be granted because there are material facts in dispute including whether a substantial number of the Act’s applications are unconstitutional. We disagree. The constitutionalit y of the Act’s lifetime employment ban is a pure question of law. Commonwealth v. Omar , 981 A.2d at 185. The employment ban sweeps unnecessarily broadly and is therefore unconstitutional.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tyrone Peake, Joan Grey, Charles Ford, : Desmond Lowe, Rudolph Jainlett, and : Resources For Human Development, : Inc., :

Petitioners :

: v. : No. 216 M .D. 2015
: The Commonwealth of Pennsylvania, : Department of Human Services of the : Commonwealth of Pennsylvania, : Department of Aging of the : Commonwealth of Pennsylvania, and : Department of Health of the : Commonwealth of Pennsylvania, :

Respondents :

O R D E R

AND NOW, this 30 th day of December , 2015, the preliminary objections filed by the Commonwealth of Pennsylvania are OVERRULED and the motion for summary relief filed by Petitioners Tyrone Peake, et al ., in the above

captioned matter is GRANTED. Section 503 (a) of the Older Adults Protective Services Act, 35 P.S. §10225.503 (a) , is hereby declared unconstitutional and unenforceable, and the Commonwealth is hereby enjoined from enforcing the lifetime employment ban contained there in.

______________________________ MARY HANNAH LEAVITT, Judge