IN THE COMMONWEALTH COURT OF PENNSYLVANIA

A.D.H., :

Petitioner :

: v. : No. 315 M.D. 2022
: Submitted: October 10, 2023 Pennsylvania State Police, :

Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE LORI A. DUMAS, Judge HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE DUMAS FILED: June 3, 2024

Presently before this Court
, in our original jurisdiction, is an application for summary relief in which A.D.H. (Petitioner), a convicted sexual offender, seeks removal from the sexual offender registry website (Registry) and a declaration that Subchapter I of the Sex Offender Regist ration and Notification Act 1 (SORNA), 42 Pa.C.S. §§ 9799.10

- 9799.75, is unconstitutional. Upon review, we deny Petitioner summary relief.
I. BACKGROUND 2

In 2010
, Petitioner was found guilty of Rape of a Ch ild , Indecent Assault, and Corruption of Minors. 3 He is incarcerated, serving a 13

- to 30

- year

sentence

. The Sexual Offender Assessment Board did not find Petitioner to be a

1 Act of February 21, 2018, P.L. 27 No. 10 (Act 10), 42 Pa.C.S. §§ 9799.10

- 9799.75, as amended by the Act of June 12, 2018, P.L. 140 No. 29 (Act 29).

2 We discern the following facts from Petitioner’s petition. See Pet. for Rev

. , 6/6/22.
3 18 Pa.C.S. §§ 3121(c), 3126(a)(7), and 6301(a)(1)(ii), respectively.2

sexually violent predator (SVP) , but Petitioner is subject to registration under Subchapter I of SORNA.

In June 2022, Petitioner pro se commenced this litigation, asserting that the General Assembly has utilized an unconstitutional irrebuttable presumption that
sexual offenders have a reduced expectation of privacy to justify the registration and reporting requirements set forth in Subchapter I of SORNA. 4 See generally Pet. for
Rev. 5 Petitioner seeks an order directing the Pennsylvania State Police ( PSP ) to

remove Petitioner’s name from the Registry. See id. Further, Petitioner seeks a declaration that the Registry provisions in SORNA violate principles of due process, that those provisions are not severable, and that the entirety of Subchapter I is facially unconstitutional. See id.

The parties filed responsive pleadings

. Thereafter, in August 2022, Petitioner sought summary relief. 6

4 In its legislative findings and declaration of policy
, the General Assembly declared that “[p]ersons found to have committed a sexual offense have a reduced expectation of privacy because of the public’s interest in public safety and in the effective operation of government.” 42 Pa.C.S. § 97 99.51(a)(5).

5 Although styled as a petition seeking mandamus relief, Petitioner also seeks a declaration that SORNA is facially unconstitutional. See Pet. for Rev

. , Wherefore clause; see also Taylor v. Pa. State Police , 132 A.3d 590, 598

- 600 (Pa. Cmwlth. 2016) (instructing that reviewing courts should not elevate form over substance).

6 Although PSP has filed a respondent’s brief in this matter, PSP did not file a response to Petitioner’s application. See Pa.R.C iv .P. 1035.3; Pa.R.A.P. 1532(b) (noting the Pennsylvania Rules of Civil Procedure regarding summary relief). In his application for summary relief, Petitioner expands his prayer for relief, additionally seeking a declaration from this Court that Subchapter H of SORNA is unconstitutional. See Appl. for Summ. Relief, 8/19/22, Wherefore clause. Such relief is beyond the scope of Petitioner’s p etition

. See Pet. for Rev

. Further, Petitioner is not subject to the registration and reporting requirements set forth in Subchapter H. See 42 Pa.C.S. § 9799.13; 42 Pa.C.S. § 9799.53. Thus, as noted by PSP, Petitioner lacks standing to challenge the constitutionality of Subchapter H. See Resp’t’s Br. at 8

- 9. To establish standing, an aggrieved party must establish a substantial, direct, and immediate interest in the outcome of the litigation. See Fumo v. City of Phila. , 972 A.2d 487,3 II. ISSUES Petitioner contends that the General Assembly’s legislative finding that sexual offenders have a reduced expectation of privacy constitutes an
unconstitutional irrebuttable presumption. See Pet’r’s Br. at 3. Proceeding from this premise, Petitioner asserts a violation of his rights to due process and freedom
from unreasonable searches and seizures. See id. Further, a ccording to Petitioner, this presumption is so pervasive throughout the registration and reporting regime
that it is no t severable, and the entirety of SORNA must be declared unconstitutional.
See id.
III. DISCUSSION

This Court may grant an application for summary relief if the party’s right to judgment is clear as a matter of law and no material issues of fact are in dispute. Gregory v. Pa. State Police , 185 A.3d 1202, 1205 n.5 (Pa. Cmwlth. 2018); Pa.R.A.P. 1532(b). Further, “the moving party has the burden of proving that its right to relief is so clear as a matter of law that summary relief is warranted.” Naylor v. Dep’t of Pub. Welfare , 54 A.3d 429, 431 n.4 (Pa. Cmwlth. 2012), aff’d , 76 A.3d 536 (Pa. 2013).

In considering an application for summary relief, the record includes pleadings, depositions, answers to interrogatories, admissions, affidavits, and reports signed by expert witnesses. Summit Sch., Inc. v. Dep’t of Educ. , 108 A.3d 192, 195

- 96 (Pa. Cmwlth. 2015). We view the record “in the light most favorable to the nonmoving party, resolving all doubts as to the existence of disputed material facts against the moving party.” Marcellus Shale Coal

. v. Dep’t of Env’t Prot. , 216 A.3d 448, 458 (Pa. Cmwlth. 2019) ( en banc ).

496 (Pa. 2009). Because Subchapter H does not apply to Petitioner, he does not have such an interest.4 Petitioner asserts that 42 Pa.C.S. § 9799.51(a)( 5) creates an irrebuttable presumption that sexual offenders have a reduced expectation of privacy . Pet’r’s Br.
at 6. According to Petitioner , an individual’s privacy interests, enshrined within

a rticle I, s ection 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution, are entitled to the protections of due process. See generally id. at 6

- 15

. However, according to Petitioner, “there exists no mechanism for an individual to challenge [this] irrebuttable presumption . . . through a hearing, grievance process, appellate process or other avenue . . . .” Id. at 8. Therefore,
Petitioner concludes, Section 9799.51(a)(5) is unconstitutional. 7 See id. at 15.

The General Assembly may enact laws that limit constitutional rights to protect the health , safety, and welfare of society. In re J.B. , 107 A.3d 1, 14 (Pa. 2014) . However, “any restriction is subject to judicial review to protect the constitutional rights of all citizens.” Id. A party cha llenging a statute must demonstrate that “the statute clearly, palpably, and plainly violates the Constitution.”
Id. ; Nixon v. Dep’t of Pub. Welfare , 839 A.2d 277, 286 (Pa. 2003 ).

Essentially, the irrebuttable presumption doctrine safeguards protected interests limited by a statute that presumes that “ the existence of one fact [ is ] statutorily conclusive of the truth of another fact. ” In re J.B. , 107 A.3d at 14

. “[I ]rrebuttable presumptions are violative of due process where the presumption is deemed not universally true and a reasonable alternative means of ascertaining that presumed fact [is] available.” Id. at 14

- 15 (quoting Dep’t of Transp., Bureau of Driver Licensing v. Clayton , 684 A.2d 1060, 106 3 (Pa. 1996)). Thus, the test for an unconstitutional irrebuttable presumption considers whether the presumption (1)

7 PSP rejects Petitioner’s argument, reasoning that Section 9799.51(a)(5) constitutes a declaration of policy not subject to statistical or scientific data and, therefore, does not implicate due process. See Resp ’t’s Br. at 9

- 11.5

impacts a protected interest but (2) is not universally true
, and (3) there are reasonable alternatives to ascertain the presumed fact. Commonwealth v. Torsilieri
, 232 A.3d 567, 586 (Pa. 2020).

For example, in In re J.B. , the Pennsylvania Supreme Court rejected an irrebuttable presumption that juvenile sexual offenders pose a high risk of recidivism
and thus held that juvenile offenders’ lifetime registration requirements were
unconstitutional. 107 A.3d at 20

. In reaching this conclusion, the Court recognized (1) offenders have a fundamental right to reputation under the Pennsylvania
Constitution
, 8 id. at 16; (2) scientific evidence suggests that juvenile offenders
exhibit low levels of re cidivism, id. at 17

- 18; and (3) individualized risk assessment
is a reasonable alternative means of ascertaining the risk of juvenile recidivism. Id.
at 19. Critically, a challenger must submit evidence to establish that a presumption is not universally true. See, e.g. , id. at 17

- 19 (construing scientific and societal evidence suggesting acts of delinquency are a product of impulsivity and
sexual curiosity rather than irretrievable depravity); Torsilieri , 232 A.3d at 594

- 96 ( remanding for the parties to supplement the record
, thus enabling the trial court to
evaluate “a consensus of scientific evidence” ). This is a factual inquiry that necessarily precludes relief as a matter of law. See Torsilieri , 232 A.3d at 596 (observing that the challenger’s unrebutted evidence was adequate support for a “colorable argument” but, absent “the benefit of opposing science,” insufficient to overturn a legislative determination); Commonwealth v. Wolf , 276 A.3d 805, 813

8 See Pa. Const . art

. I, § 1; see also , e.g. , R. v. Dep’t of Pub. Welfare , 636 A.2d 142, 149 (Pa. 1994).6

(Pa. Super. 2022) ( with no evidence of record sufficient to demonstrate a scientific consensus, rejecting an offender’s request for relief as a matter of law). 9

Initially , we a gree with PSP that the premise of Petitioner’s claim is
flawed

. See Resp’t’s Br. at 9

- 11. In contrast to sexual offenders’ recidivism rate s , we find it unlikely that there is scientific consensus proving or disprov ing whether sexual offenders have a reduced expectation of privacy. Rather, it is a statement of policy in furtherance of the Commonwealth’s interest in public safety and effective operation of government. See In re J.B. , 107 A.3d at 14 ; Nixon , 839 A.2d at 286; 42 Pa.C.S. § 9799.51(a)(5).

Further , Petitioner has presented no scientific evidence in support of his
assertions

. See Wolf

, 276 A.3d at 813; cf. In re J.B. , 107 A.3d at 17

- 19 (finding in the juveniles’ favor because they presented evidence that the scientific consensus supported their position). Certainly, a bsent such evidence, Petitioner cannot establish a clear right to relief as a matter of law. See Naylor
, 54 A.3d at 431 n.4.

Finally, even if Petitioner could marshal evidence supporting his claim, such evidence would create a material issue of fact, and we would be constrained to view that evidence in the light most favorable to PSP. See Marcellus Shale Coal

. , 216 A.3d at 458; Gregory , 185 A.3d at 1205 n.5; Pa.R.A.P. 1532(b). Thus, under these circumstances, summary relief would be inappropriate.

9 “ Superior Court decisions are not binding on this Court, but they offer persuasive precedent where they address analogous issues. ” Lerch v. Unemployment Comp. Bd. of Rev. , 180 A.3d 545, 550 (Pa. Cmwlth. 2018) (citation omitted).7 For these reasons, Petitioner’s application for summary relief is
denied. 10
, 11

LORI A. DUMAS, Judge

10 Having rejected the premise of Petitioner’s request for summary relief, we need not address Petitioner’s further arguments challenging Subchapter I of SORNA

. See Pet’r’s Br. at 16

- 22. We note, however, that Subchapter I does not require the disclosure of offenders’ medical information, see generally 42 Pa.C.S. § 9799.56, and it is far from clear as a matter of law whether there exists a recognized privacy right in a person’s home, work , or school address that would protect this information from disclosure absent a warrant. See, e.g. , Commonwealth v. Duncan
, 817 A.2d 455, 469 (Pa. 2003) (finding no reas onable expectation of privacy in the name and address associated with a bank atm card).

11 PSP has not filed a cross

- application for summary relief. Thus, we lack a procedural vehicle through which to dismiss this action. See C.M. v. Pa. State Police , 269 A.3d 1280, 1282 n.3 (Pa. Cmwlth. 2022) ( en banc ).IN THE COMMONWEALTH COURT OF PENNSYLVANIA

A.D.H., :

Petitioner :

: v. : No. 315 M.D. 2022
: Pennsylvania State Police, :

Respondent :

O R D E R

AND NOW, this 3 rd day of June , 202 4
, the application for summary relief filed by A.D.H. is DENIED.

LORI A. DUMAS, Judge