How do you overcome the ax murderer taking care of Grandma problem?
Lawyer Peter H. “Tad” LeVan knows a thing or two about that.
A few weeks ago, the Pennsylvania Commonwealth Court, sitting en banc, ruled that the state's ban on former convicts working in elder care was unconstitutional.
LeVan gave me a recent interview about this litigation. It started with a challenge to the law's constitutionality on an individual basis; the Pennsylvania Supreme Court ruled that the law’s “employment ban was not rationally related to the Commonwealth’s legitimate interest in protection elderly citizens.” LeVan won that case in 2003. But then the Pennsylvania General Assembly never moved to amend the law after the court’s ruling.
So, in the spring of 2015, Levan, his co-counsel and his clients challenged the law on its face as unconstitutional.
It's always easier to attack the constitutionality of law by arguing that it’s unconstitutional “as applied” to particular plaintiffs, than arguing that the law is unconstitutional for everyone on its face.
The Pennsylvania Older Adults Protective Services Act was passed in the 1990s to create a lifetime ban on employment for convicted murderers and rapists in healthcare facilities; people convicted of felony drug violations and several other crimes were banned for a decade from working in healthcare facilities. The law, which was amended in 1997, required anyone who had been working at an eldercare facility for a year or less to be fired. However, people who had been working for a year or more could keep on working for their present employer.
By 2015, the social science had developed enough on reintegration and recidivism to support a challenge that the ban on people with criminal convictions working in elder care had zero “scope of rationality,” LeVan said.
“Social science research conducted subsequent to the [prior case] shows that the lifetime employment ban is built on a faulty premise because the risk of recidivism declines over time and eventually ‘loses any meaningful value in predicting future criminal conduct,’” Judge Mary Hannah Leavitt wrote for the Commonwealth Court.
The court ruled that the employment ban violates the Pennsylvania Constitution.
“There is simply no rational basis to treat those employed for a year in a facility providing services to older adults as of July 1, 1998, as having rehabilitated themselves following their criminal convictions solely because of the amount of time they worked in one facility such that they do not pose a threat to older adults, but treat all other employees and applications as incapable of rehabilitation and forever a threat to adults,” Leavitt opined.
The two sides also disagreed on the correct standard for considering the plaintiffs’ challenge to the constitutionality of the employment ban.
Lawyers for the Commonwealth of Pennsylvania argued that a law can be declared facially unconstitutional only if there is no set of circumstances under which the statute would be valid. LeVan argued on behalf of his clients that a statute is facially unconstitutional if a substantial number of its potential applications are unconstitutional.
The Commonwealth Court followed the U.S. Supreme Court’s ruling in Washington State Grange v. Washington State in State Republican Party in deciding that challengers who argue that a law is unconstitutional on its face need only demonstrate that a substantial number of the “‘challenged statute’s potential applications are unconstitutional.’”
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