3d Cir: Interstate Compact not enforceable

The Third Circuit held that the Interstate Compact Concerning Parole and Probation is not privately enforceable by probationers under 42 U.S.C. § 1983. Doe v. Pennsylvania Bd. of Probation and Parole, --- F.3d ---, 2008 WL 183732 (3d Cir. Jan. 23, 2008) (No. 05-4200).

The court also held that, under common law contract principles, probationers are not intended third-party beneficiaries of the Compact. Finally, the court held 2:1 that Pennsylvania’s “Megan’s Law” violated the Equal Protection Clause by its differential treatment of in-state and out-of-state sex offenders.

 

                The anonymous plaintiff (styled John Doe), is a Pennsylvania resident who pled guilty to a sex offense in New Jersey. He received probation on the ground that he was “unlikely to commit another offense.” Pennsylvania refused to transfer his probation because he “refused to consent to community notification without some assessment to determine whether he posed any danger to the community.” Under Pennsylvania law, in-state offenders are subject to such notification only after such a hearing, but notification is automatic for out-of-state offenders, 61 Pa. Stat. § 331.33. Doe alleged that this requirement violated his constitutional rights to equal protection and due process, and also his statutory rights under the Interstate Compact, 61 Pa. Stat. § 324, under which States promise to treat in- and out-of-state parolees and probationers equally.

 

                The court considered the Interstate Compact claim first, on the ground that “we must avoid deciding a constitutional question if the case may be disposed of on some other basis.” It decided that the Compact was both a state and a federal law, due to its explicit approval by Congress, 4 U.S.C. § 112. The court then considered whether the Compact, as federal law, is enforceable through § 1983 under Gonzaga Univ. v. Doe, 536 U.S. 272 (2002). The court stated that under Gonzaga, a statute “rights-creating” language, i.e., language that “is explicit in conferring a right directly on a class of persons that includes the plaintiff in a particular case.” By contrast, “general regulatory language” is not privately enforceable. Finally, the court asked “whether the statutory structure evinces an internal enforcement scheme.”

 

                The court held that the Compact is not privately enforceable:

The language of the Compact itself creates rights for the various states who are signatories to it. It does not create rights for probationers or parolees. Notably, the title under which Congress approved the Compact-“An act granting the consent of Congress to any two or more states to enter into agreements or compacts for cooperative effort and mutual assistance in the prevention of crime and for other purposes”-supports our inference that Congress approved the Compact as a means of aiding the states in crime prevention, not as a vehicle to provide procedural rights for probationers and parolees.

The court added in a footnote that specific language in the compact that “may be perceived” as “rights-creating” is in fact not. Section 321(7) states that “[t]he duties and obligations hereunder of a renouncing state shall continue as to parolees or probationers residing therein at the time of withdrawal until retaken or finally discharged by the sending state.” The court held that this language “does not qualify as the ‘unambiguous confer[ral]’ of rights required under Gonzaga.”

 

                The court further stated that the language of the Compact “focuses upon the State entities regulated by the standards, “‘rather than the individuals protected,’” quoting Alexander v. Sandoval, 532 U.S. 275, 289 (2001). Finally, the court noted that “the Compact has no mechanism by which to enforce the alleged “rights” of probationers or parolees,” and stated that this reinforced its conclusion.

 

                The court next stated that “[i]nterstate compacts are formal agreements between states, and hence, are contracts subject to the principles of contract law.” To determine whether Doe was a third-party beneficiary of the Compact-as-contract, the court applied federal common law, but noted that both federal and Pennsylvania law rely on the Restatement (Second) of Contracts § 302. Applying that section, the court held that Doe was not a third-party beneficiary, because 1) the Compact does not specifically indicate that probationers or parolees are third-party beneficiaries, and 2) the Compact’s stated purposes, § 324.1, are to promote public safety and efficient and fair cooperation between states, not to provide any benefit to probationers or parolees.

 

                Finally, the court held that Pennsylvania’s differential treatment of out-of-state offenders like Doe violated Equal Protection under the rational basis test. The court rejected Pennsylvania’s arguments about cost and feasibility by citing the Interstate Compact, reasoning that the Commonwealth had already decided that equal treatment would be feasible and economical and could not now argue the contrary. The court further rejected the argument that the State knew more about in-state offenders, pointing to the availability of electronic exchange of states’ court records. The court also rejected the argument that the community is already aware of in-state offenders through local media, reasoning that lack of awareness of local offenders was in fact the impetus for Megan’s Law.

 

                The dissent agreed that the Interstate Compact is not enforceable through § 1983 or through a third-party contract theory, but contended that the Pennsylvania law passed rational basis review. Judge Ambro criticized the court’s reliance on the Compact in its Equal Protection analysis, arguing that the one is unaffected by the other. He emphasized that even if the Commonwealth’s justifications were empirically weak, there were sufficient to survive rational basis review.