This month on SCOPAblog, the court issued 7 precedential opinions and 8 grants of allocatur. 

On the opinion side, I'm most interested in Torsilieri.  In that case, the court faced two challenges to Pennsylvania's sexual offender registration and notification regime: (1) a claim that the statute was predicated on an false, irrebutable presumption that sexual offenders are highly likely to reoffend; and (2) a claim that the statute imposed requirements that were essentially equivalent to probation, were punitive, and were imposed without criminal procedural protections and were cruel and unusual punishment.  A distinguishing factor of the case is that, unlike prior challenges to prior iterations of Pennsylvania's sexual offender registration regimes, the trial court in this matter decided in favor of Torsilieri.

In a majority opinion authored by Chief Justice Todd, the Court reversed the trial court's decision and rejected both claims.  Regarding the first, and noting that it had previously sanctioned a similar claim regarding juvenile sexual offenders who evidence showed were not more likely to reoffend than other juvenile offenders, the Court noted that Torsilieri's own experts conceded that adult sexual offenders were several times more likely to reoffend than other offenders.  Regarding the second, the Court applied the numerous and familiar factors for determining whether a sanction is civil or criminal in nature, and ultimately balanced the factors in favor of a finding that the requirements are civil in nature.  The majority opinion in this regard joined a number of similar opinions in its past sustaining the constitutionality of Pennsylvania's sexual offender regulation regimes.  Justice Mundy authored a concurrence, essentially disagreeing with a portion of the majority's analysis of the aforementioned factors, but agreeing with its analysis overall and its result.

Justices Wecht and Donohue disagreed.  Justice Wecht, for his part, explained his view that sexual registration and notification is the functional equivalent of probation, and, thus, if its requirements are to be imposed, should come with criminal procedural protections.  Justice Donohue put something of a finer point on it.  Regarding the first challenge, Justice Donohue highlighted in somewhat withering prose that the challenge was whether sexual offenders are highly likely to reoffend, not more likely than other offenders to reoffend.  And regarding the second, she underlined aspects of the degree to which sexual offenders are essentially on reporting probation for life.

Torsilieri is the latest in a constellation of challenges to sexual offender registration frameworks in Pennsylvania, and shows that the Court is in something of a moderate posture on the issue.  Torsilieri's showing notwithstanding, it was always an uphill battle to suggest that the General Assembly could not made a legislative determination that sexual offenders are sufficiently likely to reoffend that a registry is warranted, and earlier decisions of the Court essentially staked out a proverbial red line for how far the Legislature could go without risking registration requirements being designated as punitive.  The Court has dutifully enforced constitutional procedural requirements, and been willing to chip at the bluntest instruments of the law, such as registration for juvenile offenders, in the past, but likely believes it has decided the overall question of whether registry in the abstract is legal.  Indeed, the majority opinion is something of a case study in judicial minimalism, questioning but not outright challenging whether challenges to irrebutable presumptions remain viable, limiting its analysis of statistics to those in earlier cases, and saying the minimum regarding the aforementioned factors and how they apply.

Absent a major change in the Court's composition, or yet-further attempts by the Legislature to rachet up the onerousness of sexual offender registration, the issue would appear to be inert for the moment.  That said, future reformers, whatever branch of government they occupy, may find inspiration in the dissents.  The relative recidivism of various classes of reoffenders and whether that warrants such a significant regulatory scheme is certainly more complex than whether one criminal defendant's expert witnesses believe sexual offenders as a class are more recidivist than others.  Indeed, a cynical observer might be inclined to say that the creation of such registries had less to do with recidivism and more to do with political expediency.  And from a defendant's perspective, registering as a sexual offender is equally, if not more, tumultuous an experience than probation or parole, and is equally, if not more, deserving of criminal procedural protections.  But for now, it would appear that change must come from the General Assembly, if from anywhere.

Additionally, I would be remiss if I didn't mention N.W.M.  In that case, the Superior Court in addressing a claim that a guardian ad litem was entitled to quasi-judicial immunity. The Superior Court in rejecting the claim explained that, as an intermediate appellate court, it was not free to expand the doctrine and make policy decisions.  Although affirming, the Supreme Court reminded the Superior Court that it is well within its purview to address novel legal issues, including those that may implicate policy considerations.  Perhaps animating the Court's remark in this regard is the fact that it prefers to have a fulsome exploration of the issues coming before it.  Deciding a novel legal issue with the aid of the opinion of learned judges of an intermediate appellate court is easier.  And denying allocatur because they are correct is easier still.  Perhaps animating the Superior Court's reticence is its quite-cumbersome caseload.  In all events, advocates would do well to raise all their contentions to all of the courts they appear in, notions about what the court and cannot do in its institutional role notwithstanding.

On the allocatur side, I'm most interested in S.W. and Sitler, in which the Court will grapple with challenges to extant family-law doctrines.  In S.W., the question involves a prospective adoptive parent's right to participate in dependency proceedings, which appears to have been at least glancingly undermined by a legislative enactment, and in Sitler, a party has challenged the presumption of paternity outright as antiquated.  In the past, the court has been willing to give base hits, but not home runs, to attempts to modernize family law.  But either way, these cases are likely to impact family law cases considerably going forward.

 Precedential Opinions

MBC Development v. Miller, 1 MAP 2023 (Majority Opinion by Mundy, J.) (holding that a limited partner's challenge to a special litigation committee's report regarding the limited partner's potential claims against a general partner were not within the limited partnership's arbitration agreement)

• See also Concurring Opinion by Donohue, J.
• See also Dissenting Opinion by Wecht, J.

Commonwealth v. Womack, 110 MAP 2022 (Majority Opinion by Mundy, J.) (holding the Commonwealth demonstrated due diligence between the filing of an initial, intra-county complaint, and a second, multi-county complaint in a drug prosecution for purposes of Pa.R.Crim.P. 600)

• See also Concurring Opinion by Donohue, J.
• See also Concurring Opinion by Wecht, J.

Caldwell v. Jaurigue, 30 MAP 2023 (Majority Opinion by Dougherty, J.) (holding that a parent's paramour's gratuitous exercise of physical custody over a child does not render him a parent obligated to pay child support)

• See also Concurring Opinion by Wecht, J.

Commonwealth v. Torsilieri, 97 MAP 2022 (Majority Opinion by Todd, C.J.) (holding that the Sexual Offender Registration and Notification Act does not violate constitutional prohibitions on irrebutable presumptions and that registration is a collateral, civil consequence, rather than a direct, punitive consequence of conviction not subject to the prohibition on cruel and unusual punishments)

• See also Concurring Opinion by Mundy, J.
• See also Concurring and Dissenting Opinion by Wecht, J.
• See also Dissenting Opinion by Donohue, J.

N.W.M. v. Langenbach, 25 EAP 2022 (Majority Opinion by Wecht, J.) (holding that a guardian ad litem is not entitled to quasi-judicial immunity)

• See also Concurring Opinion by Brobson, J.

Commonwealth v. Dowling, 795 CAP (Majority Opinion by Wecht, J.) (holding that a petitioner pursuant to the PCRA failed to establish prejudice)

• See also Concurring Opinion by Donohue, J. 

Commonwealth v. Harris, 31 EAP 2022 (Majority Opinion by Dougherty, J.) (holding that the Commonwealth at a preliminary hearing may not establish the defendant's identity solely via inadmissible hearsay)

• See also Concurring Opinion by Donohue, J.
• See also Concurring Opinion by Wecht, J.
• See also Dissenting Opinion by Mundy, J.

Allocatur Grants

Commonwealth v. Malcolm, 418 EAL 2023 (granting review to consider whether and under what circumstances a defendant's videotaped interrogation is admissible and what curative efforts must be taken to avoid unfair prejudice)

PSP NE, LLC v. PWAB Pet of: BLLC, 232 MAL 2023 (granting review to consider several issues under the Prevailing Wage Act)

In the Interest of: S.W., 127 WAL 2024 (granting review to consider the continuing viability of the rule that prospective foster parents may participate in dependency proceedings in light of a subsequent legislative enactment)

Sitler v. Jones, 160 MAL 2024 (granting review to consider the continuing vitality of the presumption of paternity and the application of the doctrine of paternity by estoppel in the context of a third-party's apparent paternity)

Commonwealth v. Jenkins, 598 MAL 2023 (granting review to consider the legality of revocation of alternative rehabilitative disposition based on true, if less than candid, respones to application questions)

Simone v. Zakiul Alam, 502 MAL 2023 (granting review to consider whether a tenant in common of real property is an indispensable party in a premises liability case)

Yoder v. McCarthy Const.,127 EAL 2023 (granting review to consider several issues regarding the statutory employer doctrine in workers' compensation cases)

Coleman v. Parkland School District, 644 MAL 2023 (granting review to consider whether changes to an agenda are an exception to the Sunshine Act's notice requirements)