Michael S. LEHMAN, Appellant, v. PENNSYLVANIA STATE POLICE, Appellee.
Supreme Court of Pennsylvania.
Argued Dec. 4, 2002. Decided Dec. 30, 2003.
839 A.2d 265
Before ZAPPALA, C.J., and CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR and EAKIN, JJ.
Justice EAKIN.
In 1962, appellant was convicted of larceny for stealing a case of beer worth $3.38.
Appellant contested the denial, but the PSP informed him his larceny conviction was a disqualifying offense under
(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
* * *
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Before the hearing, the Administrative Law Judge (ALJ) advised appellant, “[J]urisdiction is limited to a determination of the accuracy of your criminal record or record of mental health. Constitutional challenges ... are beyond the scope of the jurisdiction of the ALJ.” ALJ Letter, 6/21/00, at 1; R.R., at 7. During the hearing, appellant attempted to argue the GCA violated the Ex Post Facto Clause of the United States Constitution, but the ALJ refused to consider this argument:
For the record, Counsel, we should indicate to you that the jurisdiction of this body is to consider issues which relate to the accuracy of the records maintained by the Pennsylvania State Police in what is known legally as the Central Repository, which is the official record keeping body of Pennsylvania for criminal history record information.
We do not have jurisdiction to consider various constitutional issues, one of which you raised this morning, the ex post facto nature of the application of laws to a particular course of conduct in which your client may have engaged in many years ago.
Those arguments would be more appropriately made, if necessary, to the Commonwealth Court, since we do not have the mandate to consider constitutional issues. We simply are here to review the application of the Uniform Firearms Act and the Criminal History Record Information Act to instances where an individual challenges the accuracy of that criminal record, which in this case has been determined to be a disability for his application to purchase or carry a firearm.
On appeal to the Commonwealth Court, appellant contended the denial of his application to purchase a firearm: (1) violated the prohibition against ex post facto laws in Article I, § 17 of the Pennsylvania Constitution and Article I, § 10, Clause 1 of the United States Constitution; (2) violated substantive due process and equal protection under Article I, §§ 1, 21 of the Pennsylvania Constitution and the Fourteenth Amendment to the United States Constitution because, under strict scrutiny, the application of the GCA to appellant was fundamentally unfair; (3) violated his right to bear arms under Article I, § 21 of the Pennsylvania Constitution and the Second Amendment to the United States Constitution because his larceny conviction was not a crime of violence; (4) violated the proscription against cruel and unusual punishments in Article I, § 13 of the Pennsylvania Constitution and the Eighth Amendment to the United States Constitution because his right to bear arms had been forfeited for a single, non-violent act in 1962; and (5) violated his “equitable” rights as a citizen of Pennsylvania. He also contended the PSP failed to prove the firearm at issue traveled interstate so as to make relevant
A law may constitute a prohibited ex post facto provision in one of four ways:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.
Commonwealth v. Young, 536 Pa. 57, 637 A.2d 1313, 1317 (1993) (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798)). “[T]wo critical elements must be present for a criminal or penal law to be
In Brady, the Second Circuit Court of Appeals upheld
Similarly, in United States v. Mitchell, 209 F.3d 319 (4th Cir.2000), the Fourth Circuit Court of Appeals considered whether a conviction for possession of a firearm by a person with a prior misdemeanor conviction for domestic violence violated the Ex Post Facto Clause. See
These cases hold that prohibiting firearm possession by those with prior criminal convictions does not retroactively punish the prior crime; instead, the GCA punishes their subsequent possession of a firearm. Unlike the defendants in Brady and Mitchell, however, appellant has not been charged with violating the GCA. Rather,
The Ex Post Facto Clause speaks only to retroactive punishment. See Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 1146, 155 L.Ed.2d 164 (2003). Thus, the issue becomes whether the civil disability imposed on appellant—the inability to purchase firearms—constitutes punishment. In the past, the Third Circuit‘s Artway/E.B. v. Verniero, 119 F.3d 1077 (3d.Cir. 1997) three-prong test was used to evaluate ex post facto claims. See Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616 (1999).5 However, this Court, in Commonwealth v. Williams, 832 A.2d 962 (Pa.2003), adopted the two-prong analysis enunciated by the United States Supreme Court in Smith v. Doe. In order to promote consistency and minimize confusion, we are formally abandoning the Artway/Verniero test, adopting instead the Smith v. Doe test used in Williams.
This test first asks whether the legislature‘s intent was punitive; if so, the statute violates the Ex Post Facto Clause. If the intent is found to be civil and non-punitive, the inquiry continues, to determine whether the statute is “so punitive either in purpose or effect as to negate [Congress‘s] intention to deem it civil.” Smith v. Doe, at 1147 (internal quotes omitted). This second prong enlists seven factors the Supreme Court has found to be “useful guideposts” for determining whether a statute unconstitutionally imposes retroactive punishment. Id., at 1149; see Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). The “Mendoza-Martinez” factors are: 1) whether the sanction involves an affirmative disability or restraint; 2) whether it has historically been regarded as a punishment; 3) whether it comes into play only on a finding of scienter; 4) whether its operation will promote the traditional aims of punishment—retribution and deterrence; 5) whether the behavior to which it applies is already a crime; 6) whether the alternative purpose to which it may rationally be connected is assignable for it; and 7) whether it appears excessive in relation to the alternative purpose assigned. Id., at 168-69, 83 S.Ct. 554.
Here, appellant does not contend the intent behind the GCA is punishment; rather, he asserts the effect of disqualification is so harsh it constitutes punishment, manifested by the deprivation of his fundamental right, under the United States and Pennsylvania Constitutions, to own firearms. Appellant insists the disability imposed by the GCA, in light of the minor nature of his 1962 crime, offends the Ex Post Facto Clause because it “changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Brief for Appellant, at 20 (quoting Young, at 1317). In short, appellant claims the GCA retroactively punishes him now for a trivial offense committed long ago.
The legislative history behind
the disability imposed by
Because the legislation is civil and non-punitive, we move to the second prong of the Smith v. Doe test. The Mendoza-Martinez
The first factor to consider is whether the sanction involves an affirmative disability or restraint. Appellant is correct that there is an affirmative disability because he is prohibited from purchasing or possessing firearms; however, this factor is “neither exhaustive nor dispositive.” See Smith v. Doe, at 1149. One factor alone does not provide the “clearest proof”
The second factor is whether the sanction has historically been regarded as punishment. The disability imposed by the GCA is not one historically considered punishment. Disqualifying felons from purchasing or possessing firearms is no more punitive than disenfranchisement or occupational disbarment, sanctions which the United States Supreme Court has deemed non-punitive. See Lewis v. United States, 445 U.S. 55, 66, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) (citing Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974) (approving disenfranchisement of felons); De Veau v. Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960) (forbidding felons from working as union officials is not punishment); Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002 (1898) (prohibiting felons from practicing medicine is not punishment)). As noted earlier, the purpose of the GCA is not to punish felons, but to ensure firearms are kept out of the hands of unsuitable persons.
The third factor to consider is whether the sanction comes into play only on a finding of scienter. No finding of scienter is required for a person to be denied the ability to purchase a firearm. The disability is imposed on all those who have committed certain crimes in the past, regardless of intent or awareness of the statute.
The fourth factor is whether the sanction will promote the traditional aims of punishment—retribution and deterrence. In order for a statute to have a retributive effect, it must affix culpability for prior criminal conduct. See Kansas v. Hendricks, 521 U.S. 346, 361-62, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). Under
A statute with a deterrent effect may indicate it is punitive instead of civil in nature. Here,
The fifth factor is whether the behavior to which the disability applies is already a
The sixth factor is whether the alternative purpose to which the disability may rationally be connected is assignable for it. Stated another way, this factor asks whether the statute has a rational connection to a non-punitive purpose. See Smith v. Doe, at 1152. Prohibiting convicted felons from buying firearms is rationally connected to the remedial goal of protecting the public from the risk of firearms in the hands of convicted criminals. Appellant stresses his crime was relatively minor and non-violent, and contends the disability imposed by
The seventh and final factor is whether the sanction appears excessive in relation to the non-punitive purpose. Appellant contends disabling him from purchasing or possessing firearms is unduly harsh because firearm possession is expressly protected by the United States and Pennsylvania Constitutions.7 While the right to bear arms enjoys constitu-
tional protection, like many other constitutional rights, it is not beyond regulation. See Lewis, at 65 n. 8, 100 S.Ct. 915 (“These legislative restrictions [preventing convicted felons from possessing firearms] are neither based on constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties.“); see also Gardner v. Jenkins, 116 Pa.Cmwlth. 107, 541 A.2d 406, 409 (1988) (“The right to bear arms, although a constitutional right, is not unlimited and may be restricted in the exercise of the police power for the good order of society and protection of the citizens.“). The constitutional basis of firearm possession does not alter the nature of this disability.
The Mendoza-Martinez factors show that
Brady and Mitchell also suggest that the civil disability imposed on appellant by the GCA does not run afoul of the Ex Post Facto Clause. Those cases, which concern punishment imposed for actually violating
As to appellant‘s remaining constitutional claims, he contends the Commonwealth Court erred in finding those claims waived for his failure to raise them before the ALJ. Appellant argues he was denied the opportunity to raise them before the ALJ because the ALJ disavowed having jurisdiction to review constitutional claims. Essentially, appellant argues he was in a Catch-22: he could not raise the claims before the ALJ, yet the Commonwealth Court refused to consider any claims not so raised.
In general,
and the courts, respectively.9 The non-delegation doctrine preserves the separation of powers and circumscribes the jurisdiction of administrative agencies.
Here, the Commonwealth Court held constitutional issues, other than challenges to a statute‘s validity, must first be raised before the administrative agency or they are waived. In finding appellant‘s claims
The primary purpose of the exhaustion doctrine is to ensure claims will be addressed by the body having expertise in the area. Id. “This is particularly important where the ultimate decision rests upon factual determinations lying within the expertise of the agency, or where agency interpretations of relevant statutes or regulations are desirable.” Id. An exception to the exhaustion doctrine is where the constitutionality of a statutory scheme or its validity is challenged. Empire Sanitary Landfill v. Dep‘t of Envtl. Res., 546 Pa. 315, 684 A.2d 1047, 1054 (1996). Constitutional challenges are of two kinds: they either assail the statute on its face, or as applied in a particular case. To qualify for the exception to the exhaustion doctrine, “the attack must be made to the constitutionality of the statute or regulation as a whole, and not merely to the application of the statute or regulation in a particular case.” Giffin v. Chronister, 151 Pa.Cmwlth. 286, 616 A.2d 1070, 1073 (1992). In a facial challenge, a party is not required to exhaust administrative remedies because “the determination of the constitutionality of enabling legislation is not a function of the administrative agencies thus enabled.” Borough of Green Tree v. Bd. of Prop. Assessments, 459 Pa. 268, 328 A.2d 819, 825 (1974). Accordingly, facial challenges to a statute‘s constitutionality need not be raised before the administrative tribunal to be reviewed by an appellate court; challenges to a statute‘s application, however, must be raised before the agency or are waived for appellate review. As previously mentioned, requiring “as applied” challenges to be heard at the administrative level permits the agency to exercise its expertise and develop the factual record necessary to resolve the claim.
Given that constitutional challenges to a statute‘s application must be raised before the administrative agency, we turn to whether the agency must address such challenges. Section 703(a) notwithstanding, it makes little sense to require a party to raise and develop an issue in a forum powerless to address it merely for the sake of preservation. Ironically, agencies have authority to consider the validity of their regulations, see Tancredi v. State Bd. of Pharmacy, 54 Pa.Cmwlth. 394, 421 A.2d 507, 511 (1980) (waiver rule of
Appellee contends the Commonwealth Court has, in fact, distinguished between facial and “as applied” constitutional challenges, requiring the latter to be raised before the agency but permitting the former to be raised for the first time on appeal. Appellee points to Newlin Corp. v. Dep‘t of Envtl. Res., 134 Pa.Cmwlth. 396, 579 A.2d 996 (1990), and A.H. Grove & Sons v. Dep‘t of Envtl. Res., 70 Pa.Cmwlth. 34, 452 A.2d 586 (1982), as examples where parties failed to raise “as applied” constitutional challenges before the administrative agency, and the Commonwealth Court held those claims waived. Appellee cites Lucas v. Workers’ Comp. Appeal Bd., 727 A.2d 599 (Pa.Cmwlth.1999), rev‘d on other grounds, 561 Pa. 607, 752 A.2d 403 (2000), and Blanco v. State Bd. of Private Licensed Schools, 718 A.2d 1283 (Pa.Cmwlth.1998), as examples in which the Commonwealth Court permitted
It is both sensible and efficient to permit administrative agencies to address constitutional challenges to a statute‘s application. First, the agency is given an opportunity to interpret the statute it is charged with administering to avoid an unconstitutional application. Second, agencies currently decide challenges to the constitutionality of regulations; administrative competency is not an issue. Third, agencies are better situated than the courts to develop agency-specific issues, and to find facts. Fourth, refusing to consider constitutional challenges to a statute‘s application allows litigants to circumvent the exhaustion of administrative remedies doctrine before seeking judicial review. In this case, the constitutional claims appellant raised concerned the application of the GCA to appellant‘s case.11 Accordingly, the ALJ had jurisdiction to consider appellant‘s claims. However, appellant first raised these issues before the Commonwealth Court, which deemed them waived.
The PSP acknowledges appellant‘s constitutional claims relate to the application of the GCA to his case rather than a facial challenge to the statute as a whole; consequently, the PSP argues appellant‘s failure to raise the issues before the ALJ means they are waived. While ordinarily this would be correct, it overlooks two inconvenient facts: the distinction between facial and “as applied” challenges under
The order of the Commonwealth Court is affirmed in part and reversed in part. The case is remanded to the Commonwealth Court with directions to remand to the ALJ for proceedings consistent with this opinion. Jurisdiction relinquished.
Former Chief Justice ZAPPALA did not participate in the consideration or decision of this case.
Chief Justice CAPPY files a concurring opinion.
Justice NIGRO files a concurring opinion.
I join the majority opinion to the extent that it relies on federal law in conducting its ex post facto analysis. Appellant challenges the constitutionality of
Justice NIGRO, Concurring.
As Appellant‘s only constitutional challenge to