*3 CAPPY, C.J., Before CASTILLE, NIGRO, NEWMAN, SAYLOR, LAMB, EAKIN and JJ. THE
OPINION OF COURT Justice NIGRO.
This case involves an appeal from the December opinion and order of the Commonwealth Court declaring the criminal chapter, records §§ 10225.508,1 P.S. 10225.501— (the the Older Adults Protective Services Act “OAPSA”), 35 §§ 10225.5102,2 P.S. *4 applied unconstitutional as to 10225.101— Appellees Nixon, Earl Reginald Curry, Kelly Williams, Marie Martin, (the and Sharp Theodore “Employees”). affirm We the Commonwealth decision, Court’s although for different reasons. 18, 1996, 1125, 169,
1. Act of December by P.L. No. amended Act of 9, 1997, 160, June P.L. No. 13. 6, 1987, (35 2. Act of November P.L. §§ No. 79 P.S. 10211— 10224), by amended Act of December P.L. No. 169 10225.5102). §§ as amended at 35 P.S. {recodified 10225.101 — OAP- Assembly 1987, the General enacted In November SA, follows: declaring as Pennsylva- of of the Commonwealth policy
It is declared protect to capacity lack the who that older adults nia abuse, neglect, risk of imminent and are themselves and be shall have access or abandonment exploitation health, necessary protect with services provided place act to of this purpose not the It is safety and welfare. older liberty incapacitated of upon personal restrictions assure construed to liberally adults, act should be but this all older adults availability protective of services of rights safeguard the shall of Such services need them. abuse, them protecting while older adults incapacitated It is the intent and abandonment. neglect, exploitation and detection for the Assembly provide General abuse, exploi- neglect, reduction, correction or elimination program a abandonment, and to establish tation and in need of them. for older adults protective services objective, of this stated In furtherance § 10225.102. 35 P.S. in areas agencies a network establishes the OAPSA protective services provide throughout the Commonwealth facilities adults,3 patients as well as for older facilities”).4 (“covered 35 P.S. See by covered the OAPSA any person in the by the OAPSA An "older adult” is defined age See 35 P.S. years of or older. who is 60 Commonwealth § 10225.103. range for-profit by include a wide covered the OAPSA 4. The facilities who are organizations serve individuals non-profit business disabled, infirm, independently. live unable to elderly, or otherwise home, home “facility” domiciliary care as a defines a The OAPSA nursing facility, an older adult long-term agency, a care health care center, § 35 P.S. 10225.103. living personal care home. See daily or a other statutes. specifically in various are more defined These terms id. arrangement in the living domiciliary protected “a A care home is safe, residential supportive homelike community provides which domiciliary care who are unrelated to the setting or less adults for three community, who independently in the provider, who cannot live health § A home agency.” 71 P.S. 581-2. care placed an area are equipped to organization part thereof staffed agency or "[a]n persons who are therapeutic service to nursing one provide and at least disabled, place 35 P.S. injured in their of residence.” aged, or sick *5 10225403, 10225.301, §§ 10225.304. The pro- OAPSA further any person may report vides that area agencies these that services, an older adult is in need of agency must promptly investigate provide protective matter and ser- vices to the older adult if necessary.5 §§ 35 P.S. 10225.302— 10225.304. 1996,
In December Assembly General amended the by adding OAPSA a criminal records chapter. See 35 P.S. §§ chapter 10225.501—10225.508. This required any appli- cant seeking employment in a facility covered as well as employee who had at a facility worked for covered less than years two to submit a criminal records report facility. to the 10225.502(a); § See 35 P.S. see § also 35 P.S. 10225.508 (Pa.Stat.1996 1997). prohibited The also covered — hiring applicants facilities from or retaining employees whose reports that they revealed had been convicted of certain crimes, violent or sexual including first and degree second murder, rape, degrees various of sexual assault and indecent assault, and sexual abuse of § children. See 35 P.S. 10225.503 (Pa.Stat.1996 1997). addition, In chapter prohibited — hiring or persons retention of whose records revealed that they had been crimes, convicted other enumerated including § long-term nursing facility 448.802a. A facility provides is “[a] nursing either skilled or intermediate care or both levels оf care to two licensee, patients, or more who are unrelated period to the for a exceeding 24 daily living hours.” Id. An older adult center includes "[a]ny premises operated profit for not-for-profit or in which older daily living simultaneously adult provided services are for four or more adults who are operator.” not relatives of the § 62 P.S. 1511.2. A food, personal “any premises care home includes in which shelter and personal supervision provided assistance or period exceeding are for a twenty-four for hours four or more adults who are not relatives of the operator, require do who long-term services or of a licensed not. facility care require supervision but who do assistance or in such diet, dressing, bathing, management, matters financial evacuation of emergency residence the event of an prescribed or medication §
self administration.” 62 P.S. 1001. In Assembly the General mandatory reporting chapter added a OAPSA,requiring employees and administrators in covered report suspected patients facilities agencies, abuse of to area as well as abuse, to law enforcement officials in bodily cases of sexual serious injury, suspicious 10225.707, §§ or death. See 35 P.S.- 10225.701— Act of June P.L. No. 13. assault, arson, murder, kidnapping, aggravated degree third crimes, felony drug endanger- robbery, forgery, burglary, *6 children, years of the time that of within ten ing the welfare chapter, id. The background check was conducted. See 1,1998. however, July until was not to take effect year chapter one before the criminal records Approximately effect, Assembly amended certain was to take the General 9, 1997, Act of P.L. provisions chapter. of the June things, changed Among No. 13. other the amendments sec- employees require only applicants tion 508 to new those facility year than a who had been at a for less before the reports.6 effective date of the Act to submit criminal record 10225.508(1). addition, § In See 35 P.S. amendments category limitation on ten-year period removed the the second 503(a) chapter, listed in of the so as to offenses section fаcility hiring or retain- permanently prohibit covered they ing persons those whose criminal records established any had of the enumerated crimes. See been convicted one 10225.503(a). amended, Specifically, § section 35 P.S. provides:
a) facility applicant no case shall a hire an General rule. —In employee required [criminal or retain an to submit records reports] employee’s history if or criminal applicant’s 6. Section 508 states: apply This as follows: shall (1) who, chapter, An the effective date of this has individual on continuously period year employee an for a of one been same facility exempt requiring [the shall be from section 502 section employees checks] submit to criminal records as a condition of employment. continued (2) (1), employee paragraph employee exempt If an is not under facility year comply with section 502 within one and the shall chapter. effective date of this (3) (1) employee exempt paragraph employ- If an who is under seeks facility, employee facility ment with a different and the shall comply with section 502. (4) employee required An who has obtained the information under may facility super- 502 to another established and section transfer required to vised the same owner and is not obtain additional making reports before the transfer. §P.S.
35 10225.508. applicant employee or has information indicates the
record following offenses: convicted of been (1) ... designated felony An as a under The Con- offense Substance, Act. Drug, Device Cosmetic trolled (2) following provisions An under one or more offense offenses): (relating to crimes and of 18 Pa.C.S. homicide). (relating to criminal Chapter 25 assault). (relating aggravated 2702 Section (relating kidnapping). Section restraint). to unlawful (relating Section (relating rape). Section assault). statutory (relating 3122.1 sexual Section involuntary deviate sexual inter- (relating Section course). *7 assault). (relating 3124.1 to sexual
Section assault). (relating aggravated to 3125 indecent Section exposure). (relating 3127 to indecent Section offenses). (relating 3301 to arson and related Section (relаting burglary). 3502 to Section (relating robbery). 3701 to Section (relating 39 to and felony Chapter A offense under theft offenses) Chap- or two or more misdemeanors under related ter (relating forgery). 4101 to
Section (relating securing 4114 to execution of documents Section by deception). incest). (relating to
Section 4302 child). concealing (relating 4303 to death Section children). (relating endangering 4304 to welfare of Section children). in (relating dealing to infant Section to intimidation of or vic- (relating Section 4952 witnesses tims). (relating against to witness or
Section 4953 retaliation victim). 5902(b) felony (relating prostitu-
A under section to offense offenses). tion and related 5903(c) (d) (relating
Section or to obscene and other sexual performances). materials and minors). (relating corruption to
Section children). (relating Section sexual abuse of amendments, chapter, Id. The criminal records with these July 1,1998. went into on effect 8, 2000, August Employees
On Appellee and Resources (“RHD”), Development, nonprofit for Human Inc. corpora- a programs tion that administers several residential service OAPSA, are considered a covered facilities under the filed petition for in in complaint equity review the nature a Employees argued Commonwealth Court. The and RHD (1) petition chapter: the criminal records violated the Employees’ right process guaranteed to substantive due under I, Pennsylvania Article section 1 of the Constitution unrea- sonably arbitrarily infringing right pursue on their (2) occupation; right lawful Employees’ proce- violated the process guaranteed dural Pennsylvania due under the Consti- by irrebuttably presuming tution disqualified them to be (3) facilities; employment in the covered violated RHD’s right process by unreasonably interfering to substantive due right with its employ qualified employees. Employees The requested and RHD as a remedy a declaration that criminal records was applied unconstitutional as to the Employees. They sought preliminary permanent also injunction enjoin Appellants, the Commonwealth of Penn- *8 sylvania, Department Aging, Department the of of Public Welfare, (the Department and the of Health “Commonwealth Parties”),7 from enforcing against the criminal records or, Employees, alternatively, enforcing against it RHD or any facility other covered to employ wanted Employees.8 Welfare, Department Aging, Department
7. The of of Public and the Department agencies responsible administering of Health are the for 10225.504, 10225.505(a)(3). enforcing §§ and the OAPSA. See 35 P.S. review, injunctive requesting petition In addition to in relief for Employees separate petition preliminary RHD and filed a for a injunction with an attached memorandum of law. in multiple declarations and RHD filed Employees The for a separate petition for review support petition of their Employees of filed declara- Each preliminary injunction. field, in care history work the health averring to their tions to work records, inability to continue and their their criminal The chapter.9 to the criminal records in facilities due covered in the health that he worked averred in his declaration 9. Earl R. Nixon specialist and resident years as a direct care field for about ten сare manager patients, facility mentally a resident manager for retarded in a living manager community, of an assisted and the in a retirement 2000, manager assisted job facility. Nixon left his as In Mr. and, time, a able to obtain facility has not been living since that he he was Pennsylvania health care field because in the position in Nixon Mr. possession of a controlled substance. in 1971 of convicted Michigan. complex in manager a senior citizen's a for now works as Memo, Preliminary for Support Plaintiffs' Petition Law in of See A, (''Memo.”), Nixon. of Earl R. Injunction Exh. Declaration over that he worked for Reginald Curry in his declaration averred children, delinquent for six juvenile twenty years counselor for as a patients, for mentally for retarded years as a resident counselor spending next After years paratransit driver for seniors. three as a field, Curry returned to years health care Mr. outside of the seven and retardation patients with mental health in as a driver for field later, position Curry laid off from this year Mr. was issues. One convicted of indicated that he had been his criminаl record because Curry RHD stealing now works for larceny $30.00. Mr. in 1973 for Memo., B, Exh. Declaration assisting persons in shelters. See homeless Reginald Curry. years spent that she several Kelly in her declaration Williams averred facility and later working nursing in a correctional as a assistant physician group. In for a degree phlebotomy and worked obtained a hospital, which for a position phlebotomist a she took a as nursing patients’ blood. Six required homes to draw her to travel to later, position due to a 1976 from that Ms. Williams was laid off months working large for a robbery. Williams is now armed Ms. conviction for Memo., D, Kelly Williams. group. Exh. Declaration medical See began working in that she Martin averred in her declaration Marie duty as a private a nurse and then field in first as the health care nursing In she center. nursing in a rehabilitation assistant mentally working member at a home for a residential staff started position because she laid off from this adults. She was later disabled now works drug felonies in 1988. She of several had been convicted F, Memo., Jersey. Exh. Declaration nursing in New for a center Marie Martin. he has worked as a Sharp in his declaration that averred Theodore Although facility mentally patients since 1992. manager in ill case drugs Mr. possession in California convicted of he was year job held it for more than Sharp because he has not lost his criminal records chapter was enacted. The criminal records before the *9 aver- also submitted a declaration director of RHD associate had to chapter, RHD criminal records ring that because of the Employ- two of the twenty-five employees, including lay off Memo, Petition for Support in of Plaintiffs’ of Law See ees.10 J, of Dennis Rob- Injunction, Exh. Declaration Preliminary erts, 2-3. at of the 2000, Judge Pellegrini Dan Common- August
On preliminary for a hearing petition on the Court held wealth Parties hearing, During the Commonwealth injunction. the for petition in review averments the stipulated the factual including rele- injunction, for the petition preliminary and N.T., Employee and RHD. See background of each vant only agreed issue 8/31/2000, They also that chap- constitutionality of criminal records was the dispute Judge Pellegrini de- hearing arguments, See id. After ter. that injunction, finding request preliminary for a nied the for place been chapter had because the criminal records RHD hearing, Employees and years prior to the three if an suffering injunction harm not at risk of immediate were Nevertheless, Judge Pellegrini granted. at 6-7. was not Id. working Sharp ever at another prohibits Mr. nevertheless Memo., H, Sharp. facility. Exh. Declaration of Theodore covered See Employees from some of their RHD also filed declarations 10. The and professor public health present supervisors, a of at Columbia former or University, president drug organization, of a and alcohol service supervisors The who director a mental health association. and the of Employees that had declarations averred certain submitted work, them, Employees’ they for that were satisfied with worked Memo., they they Employees if could. See and that would rehire C, Murray Reginald Curry), Exh. Cheryl (regarding Exh. of Declaration G, Williams), E, (regarding Kelly Exh. Belser Declaration of Dr. Paul I, Martin), Kling (rеgarding Exh. of Marie Declaration Barbara Sharp). profes- (regarding The Brown Theodore Declaration Sharon studies, public he did not believe averred that based on his sor health likely See Employees additional crimes. that were commit K, Memo., Jeffrey president Fagan, The Exh. Ph.D. Declaration organization she drug attested that believes and alcohol service capable be and trust- people who have recovered from addiction can Memo., L, of Deb The worthy employees. Exh. Declaration Beck. See he hired has director of the mental health association averred them to be effective persons with criminal records has found good employees clients who are role models the association’s Memo., M, Joseph Rogers. Exh. fighting Declaration addiction. *10 preliminary
directed the Commonwealth Parties to their file objections petition to for parties the review and advised the , that the would an expedited Commonwealth Court schedule argument preliminary objections. on the at 21. Id. directеd,
As
the Commonwealth
subsequently
Parties
filed
objections,
preliminary
essentially
that
claiming
Employ-
the
ees and RHD had failed to state a claim which
relief could
granted.
Employees
be
The
and RHD
a
then filed motion for
summary
pursuant
Pennsylvania
relief
to
Rule
Appellate
1532(a), asserting
right
that
Procedure
to relief was
hearing argument,
clear. After
a
en banc
divided
Common-
opinion
order,
wealth Court entered an
and
overruling the
Commonwealth
preliminary objections,
Parties’
granting the
Employees
relief,
and
for summary
RHD’s motion
and declar-
ing
chapter
the criminal
applied
records
unconstitutional as
to
Commonwealth,
Employees.11
the
See
Nixon
789 A.2d
(Pa.Commw.2001).
assessing
In
constitutionality
chapter,
the
majori-
the
the
.
ty
right
engage
observed that
to
in
occupation
the
a common
by
I,
protected
is
1 of
Pennsylvania
Article
section
the
Consti-
such,
as
may only
legislative
tution and
be
restricted
action
that
a
reasonably
legitimate
is
related to
purpose.
state
See
id.
majority
questioned
at 380. The
then
whether the General
Assembly’s use of
thе criminal records chapter advanced
legitimate
citing
state
to
purpose,
this
in
Court’s decision
Secretary
Revenue v.
Vending Corp.,
John’s
453 Pa.
(1973),
proposition
A.2d 358
for the
that “remote convic-
12 Nixon,
tions
irrelevant
predicting
[are]
future behavior.”
majority
11. While
chapter
the Commonwealth Court
that the
stated
was
"Petitioners,”
applied
distinguishing
unconstitutional as
the
without
RHD,
Employees
appears
only
between the
and
it
it
that
meant
chapter
declare
applied
Employees.
the
unconstitutional
as
to the
First,
previously,
Employees
only sought
as noted
RHD
and
a
chapter
applied
declaration that
was unconstitutional
as
to the
Moreover,
Employees.
supra p.
finding
See
282.
in
uncon-
stitutional,
majority
analysis
exclusively
focused its
almost
on the
Nixon,
application
chapter’s
Employees.
to the
Judge Flaherty, joined by Judge McGinley, dissented. Ac- cording Judge Flaherty, the criminal chapter’s records prohibition on “the employment of individuals who have past displayed inability judgments, make sound ais reasonable means of achieving purpose of protecting state aged and disabled.” Id. at Judge Flaherty further found that although the imposed by restrictions the criminal chapter “may records inequitable be applied Em- [the ployees],” Assembly the General had decided not to take by creating exceptions risks for persons such Employ- as the ees, and the court was permitted “not legislate judicial exceptions.” Id.
The Commonwealth appealed Parties to this Court as of right pursuant § 723.14 They Pa.C.S. now argue that the Commonwealth Court in finding erred the criminal records chapter unconstitutional chapter’s because the employment rationally restrictions are related to the Assembly’s General legitimate in protecting interest the Commonwealth’s vulnera- citizens, particular, ble and in the elderly. disagree. We
Initially, we reiterate the well-established that a rule presumed law is to be constitutional and may only be found to be unconstitutional if party challenging the prove the law can “clearly, that it palpably, plainly” and violates the Constitu tion. Party Commonwealth, See Consumer Pa. v. 510 Pa. of 158, (1986) 323, 507 A.2d 331-32 (citing Pennsylvania Liquor Club, Control Bd. v. 364, The Athletic Spa 506 Pa. 485 A.2d 732, (1984)); 1922(3). 735 § see also 1 Furthermore, Pa.C.S. in determining constitutionality law, of a this may Court provision 14. jurisdiction This directs that this Court has "exclusive of appeals from final orders of the any Commonwealth Court entered in originally matter which was commenced in the Commonwealth Court.” § 42 Pa.C.S. 723.
399 by public policies adopted of question propriety not law, but rather is limited to examin- Assembly for the General policies and the law. See ing connection between those Bd., 136 Pa. Marketing Milk Pennsylvania Finucane v. (1990); 272, 1152, also Parker v. A.2d 1154 see Cmwlth. 582 Phila., 106, 932, 483 Pa. 394 A.2d 937 Hosp. Children’s of (1978) (“the as a judicial review must not be used power might judgment substitute by [their] which the courts means legislature”). for that of the public policy as to the I, Pennsylvania 1 Article Constitution section equally independent, “All born free and provides: men are rights, among have certain inherent and indefeasible and defending liberty, and enjoying are and life which those property reputation, and acquiring, possessing protecting Const, I, § happiness.” Pa. art. pursuing and of their own section, process clause in the Fourteenth This like the due Constitution, guarantees Amendment of the United States persons rights. in this certain inalienable See Commonwealth Commonwealth, 547, 101 634, v. 375 Pa. A.2d 636-37 Gambone Nebraska, 390, (1954); 399, 43 see also 262 U.S. S.Ct. Meyer (1923). 625, Assembly may, 67 1042 While the General L.Ed. police power, rights by enacting its limit those laws to under welfare, health, protect public safety, such laws subject judicial analysis. review and a constitutional are Gambone, 636; Krenzelak, 101 A.2d at Krenzelak v. 503 Pa. (1983). 373, 987, 469 A.2d analysis applied
The constitutional
to the laws that
review,
impede upon
rights
these inalienable
is means-end
legally
process analysis.
a substantive due
referred
Seе
Hosp.
Pennsylvania,
Adler v.
Ass’n Western
Montefiore
634,
(1973);
453 Pa.
311 A.2d
640-41
see also Moore v. City
500-05,
Cleveland, Ohio,
East
U.S.
S.Ct.
(1977).
analysis,
400
500-05,
Moore,
at
97
(1975);
431 U.S.
22,
see also
A.2d
26
Texas,
558,-,
123
1932;
v.
539
S.Ct.
Lawrence
U.S.
S.Ct.
McDonnell,
(2003);
418
v.
2472, 2477,
L.Ed.2d 508
156
Wolff
(1974) (“The
2963,
539, 558,
Alternatively, where laws restrict 1, 1, undeniably which are under Article section protected fundamental, Pennsylvania apply courts not important, but Adler, 640-41; Pa. State 311 A.2d rational basis test. See 487, Pastor, 272 A.2d 490-91 441 Pa. Pharmacy Bd. v. Foster, Pa. v. (1971); Society Medical Pennsylvania (1992); see also West Coast 608 A.2d 637-38 Cmwlth. Parrish, 379, 392, 81 L.Ed. 57 S.Ct. 300 U.S. Hotel Co. (1937) are not absolute (recognizing that most interests test). test, According subject to rational basis and are century ago, a law almost was defined this Court which unreasonable, patently or unduly oppressive not “must be it case, and the means which beyond the necessities relation to the a real and substantial employs have must
401
Gambone,
637;
objects sought to be attained.”15
101 A.2d at
Adler,
640; Pastor,
490-91;
see also
As
recognized,
the Commonwealth
Court below
one
rights guaranteed
1,
1
right
under Article
section
is the
pursue
Adler,
occupation.
640-41;
a lawful
311
See
A.2d at
Gambone,
Moreover,
101
at
agree
A.2d
636-37.
with
we
Commonwealth
chapter
Court
the criminal
in
records
fringes upon Employees’
right
in
continue
lawful
occupations.
health care
right
engage
particular
The
in a
however,
occupation,
is
right.
not a
e.g.,
fundamental
See
argue
15. The Commonwealth Parties
that the rational basis test to be
applied here
Assembly.
should be much more deferential to the General
Parties,
According to the
uphold
Commonwealth
a court must
a statute
any plausible
rational if it can conceive of
reason for the statute. See
Doe,
312,
Commonwealth
320,
(citing
Parties' Brf. at 15
to Heller v.
509 U.S.
2637,
(1993);
113 S.Ct.
403 applicants of all record checks criminal (requiring § 10225.508 for facility less a covered worked at who employees all who employees from checks exempting but year, than a such, As year). more than facility at a covered worked with individuals innumerable permitted chapter no doubt working with continue criminal records disqualifying they had solely because population protected purportedly year preceding facility for the joba in a covered maintained Moreover, many of these chapter. date of the the effective elderly, with the continue to work no doubt same individuals Assembly’s General disabled, today, spite and infirm unaccept- pose an criminals that convicted apparent conclusion population. risk to able among distinguish Assembly is free General
While the rational ex-criminals, satisfy the Gambone distinction must relationship to the and substantial by having a real basis test seeking to achieve. See Assembly is interest the General Barnes, 711 F.2d Mixon, (citing at 451 to Owens 759 A.2d denied, (3d Cir.1983), S.Ct. cert. U.S. (1983)). Here, that no such reаl it is clear 78 L.Ed.2d criminal goal If relationship exists. substantial allege, to Parties is, as the Commonwealth records from those citizens vulnerable the Commonwealth’s protect *16 them, there was for safely providing incapable deemed who convictions with distinguish caretakers simply no basis July job since single to hold a enough fortunate had been from chapter, 1997, ie., date of the year a the effective before industry for in the may successfully worked those who have in a job not one continuous year but had held more than 1, 1997.17 facility July covered since distinction between explanation for the only
The conceivable in a covered year completed a one tenure individuals who had barring distinction chapter also makes a The criminal records con- who have been only convicted criminals employment those crimes, permitting all other convicted specified while of certain victed See 35 P.S. employed in covered facilities. criminals to be However, rationality of this question the we do not § 10225.503. distinction here. facility and those who had previously had successful tenures facilities, covered but had not been at facility July one since 1997, is that Assembly General determined that those persons convicted of the disqualifying crimes who had been working at a facility covered for year presented more than a less of a risk they because proven had that they were not likely patient to harm population and had established a degree of trust with patients their management. Howev- er, if convicted criminals who had been working at a covered facility for year 1,1998, more than a July as of capable were essentially rehabilitating qualify themselves so as to them to working continue in a facility, covered there should be no why reason not, other convicted not, criminals were and are capable doing fact, also In according same. to the backgrounds factual provided by Employees, many of the Employees successfully worked in covered years. facilities for See n. 9. supra Similarly, gained almost all of them the trust supervisors their former at thе covered they facilities where worked, as apparent by the fact that supervisors submitted declarations in they which averred that they would Employees rehire the they if could under the OAPSA.18 See Thus, supra n. 10. it would seem that Employees, these like those convicted criminals who had worked facility covered year more than a July as of essentially have rehabilitated themselves and should be able to continue work- ing in covered facilities.
Accordingly, we hold that
the criminal
chapter,
records
particularly
regard
with
application
its
Employees,
to.
not
does
bear a real and substantial relationship to the Com-
monwealth’s
in protecting
interest
elderly, disabled,
victimization,
infirm from
and therefore
in-
unconstitutionally
fringes on
Employees’
right
pursue
occupation.
an
Gambone,
Chief Justice joins. NEWMAN Justice concurring opinion. files a
Justice CASTILLE dissenting opinion. EAKIN files Justice Cappy this Court concurring opinion, states that Chief Justice In his 508(1) to rely year exemption created in section the one should not on applied, as because find the criminal records unconstitutional exemption argue specifically that this Employees and RHD did not However, conducting a due pleadings. irrational in their was Em- chapter’s on the process analysis if the restrictions to determine rational, the Common- right employment indeed as ployees’ are necessary the entire effect of argue, it is to look at wealth Parties thus, exemption rationality year was of the one restrictions Moreover, acknowledged by Chief appropriate for consideration. during directly argued RHD Cappy, Employees and Justice based on the injunction hearing the Act was irrational preliminary itself, 8/31/2000, ("Then N.T., at 8. the Act year exemption. See one irrational, is it has we think the Act is and this is one of the reasons clause, says my though the Commonwealth grandfathering so even them great we can’t have are such a threat that clients and others okay society, for them working people of it’s with the most vulnerable society they were still at a people of if with the most vulnerable to work 1, 1998, i.e., July days year job they of the before were at for Act.”). Thus, part record argument was effective date of the this Court. before
CONCURRING OPINION Chief Justice CAPPY.
I concur in by the result majority. reached the As the equal protection approach by majority taken the was not by Appellees discussed the our before Court or raised in the below,11 filings do not believe that we should strike down the subject statute unconstitutional on this basis. believe, however,
I do that the is infirm statute on the basis by articulated Mr. Justice Castille in his concurring opinion— is, that the ban on employment has no rational lifetime relationship legitimate goal of protecting our older adults from harm. As by Appellees, stated is not as if “[I]t Assembly General made a imperfect reasoned but attempt rather, draw a line at point; some rational it chose not to any line draw favor of an outright, permanent, and absolute ban.” Appellees’ Brief 31. It is this absolute ban that renders the statute constitutionally Thus, join defective. I portion of Mr. Justice Castille’s concurring opinion that would affirm the Commonwealth Court on this bаsis. joins
Justice NEWMAN this concurring opinion. Specifically, grounds on majority which the approach bases its Review, Appellees were not original raised in their Petition for Preliminary Injunction, Petition for or the Memorandum of Law sub- argument mitted therewith. While orally mention of this was made in hearing Judge Pellegrini before Dan regarding the Petition for Preliminary Injunction, Transcript Proceedings, August p. Thus, it was not thereafter raised in the briefs to our Court. I do not believe that our Court should strike a statute aon basis that was not urged by Furthermore, complaining parties. Assembly the General simply could eliminate the majority distinction that leads the to find the by applying statute unconstitutional prohibition employment on employees just all and not who job those have not held a continuous herein, facility July a covered since 1997.. setAs forth I believe that there is a more infirmity fundamental with the statute that would lead unconstitutional, us to conclude that the statute is and one that was clearly by Appellees. raised CONCURRING OPINION CASTILLE. Justice applied
I is unconstitutional as agree the statute Majority join Nigro’s and I Mr. Justice learned appellees entirety. separately only briefly in its I write note Opinion that, infirmity in the my view in addition to the constitutional ban by Majority, so articulated the lifetime legislation well prior which from the broad class of convictions covered arises (OAP- *19 Adults Act by the amended Older Protective Services SA), relationship § has no rational to seq., 35 P.S. 10225.101et elderly, legitimate, protecting end of disabled desired and infirm from victimization. unquestionably are certain criminal offenses which
There severity persons might agree such that all are of reasonable type employment that a lifetime ban from this of is both and, indeed, required. society rational to cannot Some debts it a entirely repaid. be But is difficult discern rational deeming an automatically basis for ancient conviction for theft (see for a appellee Curry) simple possession or controlled (see appellees Sharp), example, substance Nixon and for eternally retroactively prohibiting qualified otherwise care in employment workers from continued thеse facilities.
In I regard, this would contrast the current version of the version, previous imposed ten-year statute with the which a ten-year limitation A upon background the criminal check. on collateral effects certain convictions is not restriction Thus, unknown in law. for Evi- example, the Rules of permit cri- impeachment dence evidence convictions of impeachment men but limit situations where not falsi elapsed than years more ten have “since the date of the conviction or of the release of witness from the confinement conviction, date,” imposed for that whichever is the later with exception permitted probative an if value the conviction 609(b). substantially outweighs prejudicial its effect. Pa.R.E. rationally undeniably legiti- To be deemed related to the further, Assembly sought mate interest the General be, be, legislation finely can much this area should more form of time including perhaps some tuning, Finer tuned. (or graduated time restrictions crimes limitation certain crime) particularly type of would seem particular to thе tied helpful I amicus brief regard, In this note the for here. called organizations, by no less than twelve diverse jointly filed advocating organizations, organizations including senior citizen women, Ami- organizations. and labor of abused the interests ci note: upon single based a employment lifetime bar on
OAPSA’s has time in an individual’s life criminal conviction petitioners providing from caregivers like the prevented fine convic- Pennsylvanians, even where those needy services bearing no on the individual’s decades old and have tions are jobs.... ability perform such OAP- character or present circum- any mechanism to consider the lacks [also] SA individu- surrounding an individual’s offense or the stances at rehabilitation. post-conviction al’s efforts provisions criminal record These deficiencies OAPSA’s consequences parties. for all affected Rehabili- grave have living. earning Service prevented workers are tated shortage many already of which are faced with providers, jobs pay wages low qualified applicants for often *20 work, opрortunity to deprived are involve difficult caregivers. they good whom to be employ persons believe deprived adults are of the excellent care Vulnerable many in this action and provided by appellees could be ex-offenders like them. other Alliance for Retired Amer- Pennsylvania of Amici Curiae Brief al., overly-blunt chosen to effectuate icans 12. The means et legislation may operate to create unnec- this well-intentioned designed protect. to very citizens it was essary dangers Assembly will revisit this area I am confident that the General worthy objective. its pointed find means achieve more OPINION DISSENTING EAKIN. Justice Assembly’s preclusion majority concludes the General The
. designated convicts in of enumerated employment of certain “no relationship” elder care facilities has real substantial provisions of the criminal records of the Older (OAPSA), Act Adults Protective Services and therefore finds legislation provisions pre- this unconstitutional. I find such cisely important governmental stated and effectuate the inter- protecting of adults of incapable safeguarding est older them- I respectfully selves. dissent. majority Assembly’s reasoning:
The notes the General policy It is Pennsylva- declared the the Commonwealth of nia that capacity protect older adults who lack the abuse, neglect, themselves and are at imminent risk of exploitation or abandonment shall have access to and be provided health, necessary protect with services safety and welfare.... It is the intent the General Assem- bly provide reduction, for the detection and correction or abuse, neglect, abandonment, elimination of exploitation and and to program protective establish a services for older adults need of them. 10225.102).
Majority Opinion, § at 279-80 (citing 35 P.S. Fol- lowing such acknowledgment, majority then concedes: question disabled,
There is no that protecting elderly, and infirm being from is important victimized an interest this and that Assembly Commonwealth the General may enact may laws that restrict who work with these individu- Further, als. barring certain convicted criminals from working with may, these citizens in fact, be an effective protecting means such citizens abuse and exploita- tion.
Id.,
added).
(emphasis
at 288
It
only
because there is not a
ban on existing employees that
majority
finds
legisla-
this
tion
However,
fails constitutional muster.
under “rational
review,1
basis”
legislature
is not required to substantiate
Pastor,
Citing
Pharmacy
Pa. State Bd.
441 Pa.
410 produce scheme, “obligation it have entire nor does rationality statutory of a classification.” to sustain the
evidence Doe, 320, 2637, 312, 125 L.Ed.2d v. 113 S.Ct. Heller 509 U.S. (1993). Indeed, assumptions could be that ‘[t]he 257 “[i]t erroneous, but the underlying these fact [are] rationales sufficient, review, on rational-basis they ‘arguable’ are choice from constitutional chal- [legislative] ‘immunize’ the ” Id., v. 333, (quoting 113 2637 FCC Beach lenge.’ S.Ct. Inc., 320, 2096, Communications, 307, 113 S.Ct. 124 508 U.S. (1993)). do unexpected, inequitable 211 Even results L.Ed.2d infirmity. form constitutional See Gondelman not the basis of (1989). 896, Commonwealth, 901 520 Pa. 554 A.2d v. Gondelman, Further, Court, adopted this the United States dealing with Supreme Court’s rational basis rationale when unintended, unjust, problems or “The potentially results: they if not government practical may justify, are ones do be, may it and un- require, rough illogical, accommodations A not be set if statutory scientific. discrimination will aside may it.” reasonably justify state of be conceived facts Williams, (quoting Dandridge Id. U.S. (1970)) (internal omitted). 1153, 25 citations
S.Ct.
L.Ed.2d
Here,
they
appellees
being
employment
claim
are
denied
convictions, and
discrimination
upon distant
such
bears
based
Relying
to a
concern.
on this Court’s
no relation
valid state
holding
Vending
Revenue v. John’s
Secretary
Corp.
(1973),
they
appellees argue
Pa.
sis. case does not to economic restrictions levied against protection local in need of more state than afforded businesses authority Consequently, the federal under federal constitution. pertaining to rational review in this area is still viable. basis *22 agreed Court where the Vending Moreover, unlike John’s bring his convictions not intend legislature did that ‘the by statute’, legislature, purview [the] within year look the ten removing in 1997 and amending [OAPSA] intention its clearly stated in has imposed period back crimes any of the enumerated anyone convicted facilities working for from life, precluded in is any time Act. by the covered (Pa.Cmwlth.2001) Commonwealth, 376, 384 A.2d
Nixon Clearly, J., dissenting). McGinley, J., by joined (Flaherty, Further, drug and some inapplicable here. Vending is John’s assuredly Act, will convictions, by the proscribed as deviant potential from other endeavors appellees block forever Const, against 2, § 7 (prohibition art. Pa. employments. See crime”); Hunt of “infamous for conviction office holder public 4, 419 Pa.Super. County, 277 Allegheny Authority er v. Port (1980) (“a employment against bar A.2d be reason probably would police officers convicted felons may be felony has committed a person ‘a who able since honesty that this or qualities of self-control thought to lack the ”). requires.’ job sensitive subjected some Assembly has not
Just because General does not mean summary workers to termination tenured has no relation place now hiring mechanism restrictive actuality, In objective. Assembly’s fulfilling the General certainly legislation this will majority, as referenced dangerous staff potentially and reduce the number detect Erecting a Pennsylvanians. working older with members criminal offenders proven inflow of hiring roadblock to the already beyond the others simply because not unconstitutional legislation this Eventually, not forced out. roadblock were of- for the enumerated convictions those with will eliminate often Wisdom working covered institution. fenses alike, the failure late, legislature to court and comes it not make less hired does petitioners it were enact when rational end. to a is a rational means legislation This wise. begin efforts legislative to other legislation This is similar 23 Pa.C.S. facilities. at-risk “cleansing” certain 6344(c)(2) § (regarding prospective personnel: child-care “In no case shall-an administrator applicant hire an if appli- history cant’s criminal record information appli- indicates the cant has been convicted of one or more of the following ----”); offenses § and 24 (public Pa.C.S. 1-111 private or employment school prohibition for applicants with convictions offenses). of enumerated proper It has a and rational basis supporting underlying *23 goal of more security for Common- wealth Accordingly, seniors. I would find legislation this constitutional and my offer dissent.
839A.2d 294 Pennsylvania, Appellee, COMMONWEALTH of OGROD, Appellant. Walter Supreme Pennsylvania. Court of
Argued May 2002. Decided Dec.