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AWA Loses in Pennsylvania’s Highest Court

By Larry Neely . . . What follows was composed utilizing portions of an analysis written by Aaron Marcus of the Defender Association of Philadelphia. We will endeavor to answer some of the most common questions that arise after a favorable decision has been handed down.

The Pennsylvania Supreme Court held that the current (2012) version of Pennsylvania’s Sex Offender Registration and Notification Act, hereinafter referenced as “SORNA,” is punishment and cannot be applied retroactively. See Commonwealth v. Muniz

The challenge was brought by Jose M. Muniz who was convicted in 2007 of indecent assault of a minor in violation of 18 Pa.C.S. § 3126(a)(7). Sentencing was scheduled for May 8, 2007; however, Mr. Muniz failed to appear. Had he appeared, he would have been ordered to register as a sex offender with the Pennsylvania State Police for a period of ten (10) years pursuant to Megan’s Law III (SORNA’s Predecessor), which was the statutory scheme in effect at that time. During his absence from the state, the Pennsylvania General Assembly passed SORNA, which greatly expanded the duration of registration and obligations imposed on those subject to sex offender registration. When Mr. Muniz was finally sentenced, the current version was in effect, and he was classified as a lifetime registrant. He challenged SORNA, asserting that the law was punitive and cannot apply retroactively. After years of litigation, five justices on the state’s high court agreed.The Court declared that SORNA’s registration provisions constitute punishment under Article 1, Section 17 of the Pennsylvania Constitution — Pennsylvania’s Ex Post Facto Clause. The Court held:

  • SORNA’s registration provisions constitute punishment notwithstanding the General Assembly’s identification of the provisions as nonpunitive;
  • retroactive application of SORNA’s registration provisions violates the federal ex post facto clause; and
  • retroactive application of SORNA’s registration provisions also violates the ex post facto clause of the Pennsylvania Constitution.

This decision is a significant departure from prior Pennsylvania decisions as well as the Supreme Court’s decision in Smith v. Doe, 538 U.S. 84 (2003). The reasoning of the justices to get to this result is a little convoluted because several in the majority did not believe that the court needed to address the federal constitutional claim. Complicating the opinion slightly is how the five justices reached this single conclusion. Three justices concluded that SORNA is punitive under the federal Constitution’s Ex Post Facto Clause. They applied the United Supreme Court’s 7-prong test established in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), which was the framework relied upon in Smith v. Doe. The three justices held that despite the Legislature’s expressed intent that SORNA be civil and non-punitive, the law imposes too many restrictions on individual liberty by requiring that registrants report in-person, potentially hundreds of times, and is too akin to historical punishments such as shaming and probation. Additionally, the court found that because SORNA imposes severe consequences on those “who in fact do not pose the type of risk to the community that the General Assembly sought to guard against” and includes “those convicted of offenses that do not specifically relate to a sexual act,” the law is excessive and over-inclusive. Thus, SORNA is “punishment” and cannot constitutionally be applied retroactively.

Those same three justices also concluded that although the same test is applied under Pennsylvania law, Pennsylvania’s ex post facto provision is broader and provides greater protection than the federal clause, thus ensuring that SORNA’s retroactive application independently violates state law as well.

Two justices concurred in the result and in much of the lead opinion’s reasoning but got there in slightly different ways. Two justices concluded that there was no reason to render a decision under the federal Constitution and believed that the same result could be obtained under the state Constitution exclusively. The likely effect of the decision is that the registration terms of thousands of registrants across Pennsylvania (whose periods of registration increased dramatically on the date SORNA took effect) may be returned to their original terms. This means that hundreds could suddenly find that they have completed their original registration terms and will now be removed from Pennsylvania’s registry altogether.

This is a big win for registrants, and when combined with the Sixth Circuit’s analysis in Does v. Snyder, 834 F.3d 696 (6th Cir. 2016), there is an unambiguous message to legislators that they cannot continue: (1) adding more and more restrictions within their registration schemes; and (2) increasing periods of registration at will. We caution everyone not to become too giddy because the court did not find that registration, in and of itself, is unconstitutional; rather, they found the 2012 version unconstitutional as applied to Mr. Muniz. And the Court’s ruling does not address whether SORNA is punitive as applied prospectively because Mr. Muniz did not have legal standing to assert that claim. It is noteworthy that since the highest court in PA has now found that SORNA is punishment, that may open the door to new challenges whether the current scheme can continue to be enforced prospectively.


This topic contains 40 replies, has 3 voices, and was last updated by  Anonymous 2 days, 5 hours ago.

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  • #19564 Reply


    (Awaiting moderation)

  • #19371 Reply


    Amendment 8 – Cruel and Unusual Punishment

    Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

  • #19360 Reply


    My question is…
    Has no one with the power of the people or voice of people contacted Colonel Tyree C. Blocker, Commissioner of the PA State Police or the PA Governor Tom Wolf to make them enforce what the Supreme Court already deemed as fact and law? They had no problem making AWA effective immediately back in Dec. 2012 under PA Governor Corbett so, why the delay now???

    This matter of fact has been decided and all appeals have been exhausted which is why it made it to the PA Supreme Court. Why has my eligible family member not been removed of the demon awful registry already? Enough of being harass, threaten, assaulted, bashed, diminished, insulted, prevent from obtaining work and plain & simple being able to live a productive life!!!

    The social stigma has been unbearable for almost 15 years for everyone involved and there has never been any more crimes of such committed (or any kind as humanly possible under our Faulted Human Laws)!!! This family has been destroyed because of politicians bent on votes and not on caring for anyone, but themselves and their “buddies & secret memberships”. How about upholding the sacred U.S. and States Constitutions!!!

    Amendment 5 – Trial and Punishment, Compensation for Takings

    “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

  • #17631 Reply


    Single, isolated offense (no sex involved, bried inappropriate contact) occured January ’97. Sentenced in April ’98 to 15 years probation, released from supervision after 11 years. Prior to being sentenced, attorney said I did not quality for SO registration and public & community notification requirements, would not have to register, and entered guilty plea based on his advice. State waited until after 30 day appeal period passed, then told me I was designated as an RSO, had to have my photograph taken for RSO website and prospectively register as an SO, and the public and community notifications started. Attorney later admitted that he misrepresented me in court, and that I would have to register for an additional 25 years once I was released from supervison…so 11 years of probation + an additional 25 years, even though he told my wife and me prior to sentencing that I didn’t qualify for SO registration at all. There was no such thing as SO probation at the time I was sentenced. Additionally, under statutes in ’98, 25 year registration AFTER being released from supervision…not lifetime as it is now. Initially, after being sentenced, never had to report to Sheriff’s office, and an officer came by maybe once per year to verify address. Then state started adding more and more restrictions, probation kept trying to apply them to me, attorney kept going to court, restrictions kept getting thrown out by circuit judge on ex post facto grounds.

    THEN ALONG CAME SORNA…and all its Nazi, Colonial-era measures and restrictions were retroactively applied.

    Was automatically assigned Tier II based on conviction alone…no hearing…no due process…no equal protection…after several years of not having a Tier level at all or having to report to the Sheriff’s office. All the restrictions kicked in. Was told I had to start reporting once every 6 months to Sheriff’s office in person or face arrest and prison. Cops started coming by once every 3 months even though they’re only required to come by only once per year. (Ironically, registered sexual predators have to report in once every 3 months, so it’s as if they are, in effect, treating me like an RSP except, in the reverse, they are coming to me instead of me going to them). And, even though have not been on probation since January 2009, the cops act just like probation officers when they come by every quarter, with their line of questioning, etc. And Florida has continued to add more and more restrictions retroactively and has been labeled as one of the harshest states in the union for RSO’s. I know I am not alone but to even begin to describe the harassment my family and I have been continuously subjected to, not even so much by the general public but mainly by cops, is a horror story and nightmare in and of itself! They sometimes come in groups after midnight, always without a search warrant, repeatedly ringing our doorbell and banging on the door, waking up my family from sleep, yelling and demanding us to open the door. They often come after dark, 3 – 6 squad cars at a time, with their all their lights on, making a spectacle in front of our neighbors, shining their ultra bright led lights in my face, practically blinding me. Sometimes they will stand out by the street and yell across the yard to me so all the neighbors can hear: “WE’RE HERE TO DO A SEX OFFENDER CHECK!” “YOU’RE A REGISTERED SEX OFFENDER AND WE’RE HERE TO VERIFY THAT YOU STILL LIVE AT THIS ADDRESS!” And they will keep repeating it over and over, screaming it across the yard for all of our neighbors to hear. They constantly threaten to arrest me if I do not answer their questions when they come by or show them my ID. They have threatened to shoot our dog without justification. They will drive by and turn their sirens and/or lights on just as they’re passing my home then turn them off right after they pass…they do this all the time. I’ve seen them throwing trash in our yard, and I’ve caught them parked in my driveway at 1am or 2am in the morning after my dog would alert us, then they will take off real fast when I step outside to see what the dog is barking at. They leave these large, bright yellow placards hanging on our fence, front door or garage door with big, bold black letters “SEX OFFENDER UNIT”, with a note demanding that I call them if I wasn’t home when they came by, and any visitors to our home can see those signs. They’ve even taped those yellow signs on our fence facing the street so that passing cars and neighbors can see them. They have followed my family and me around, stalking us at the county fair, at the park, in a restaurant, at public events, etc. My son has been jogging with his friends and they will stop him, asking him for ID, and make comments in front of his friends about his dad being an RSO. Or, if he gets stopped for a basis traffic intraction, they will surround him with 4 – 5 sqaud cars and make a poing of referring to him as “the son of that sex offender”. The list of harassment goes on and on…years of this hell on earth! The very public servants that are supposed to be examples of “lawfully abiding” are the very ones violating the spirit of the law by harassing and stalking my family and me. They are extremely aggressive with me, always trying to cause a provocation, seemingly as if trying to come up with an excuse to shoot me..I’m not even joking!

    How can SORNA or the myriad of new state statutes NOT be punishment and ex post facto violations? It truly is as if probation never ended…just changed hands from probation office to sheriff’s office, is all. If you fail to adhere to the constant, new and increasing retroactve restrictions, then you are faced with arrest and imprisonment, thus increasing the penalities from the original sentence. This is insanity!

  • #17240 Reply

    John W

    I’ve already heard all this before. We went through the same thing in Missouri.
    –1996, I had to register, even though I was released from probation in 1991.
    –2006, Mo. SC ruled that the registration was a “new duty”, so I no longer had to register. My name and information was still published though, because the State said that I voluntarily submitted all my information to them. (Really?)
    — 2007, Mo. SC ruled that the independent registration requirement under SORNA operates irrespective of any allegedly retrospective state law that has been enacted. (Allegedly?)
    –2011, Mo. SC upheld that a suspended imposition of sentence (SIS) requires registration under SORNA. (The United States Government, does not, and will not, recognize any plea agreement or settlement from a state court!)
    –2012, Mo. SC upheld the duration of registration in Missouri is “lifetime”, whether registering because of a Missouri, Federal, Out of State, Tribal, Military or Foreign registration requirement.
    And just in case sometime in the future, an intelligent person would find a persuasive argument in favor of a sex offender concerning the Missouri Constitutional Ex Po Facto law:
    –2013 Mo. SC ruled the restriction under 566.150 RSMo. can be applied retroactively and does not violate Article I, section 13 of the Missouri constitution.
    The ruling goes on to state the prohibition against laws retrospective in their operation does not apply to criminal laws.
    What all of this really means is every single person, whether he/she be a US citizen or not, within or outside the borders of the US, no matter the age, religion, race, creed, color, gender (known or not), have been granted inalienable rights, except, for the “sex offender”. All 3 branches of our government have declared that it is my “civil duty”, under the threat of imprisonment, to voluntarily submit myself, (as well as the few people who may love or care for me), to a life of ridicule, intimidation, disdain, hate, and worst of all, hopelessness. I guess I should be glad that those things aren’t considered punishment.

  • #17089 Reply


    Can someone enlighten me as to how this DA can appeal to SCOTUS a decision that rests on Pa.state constitutional grounds, as well as federal? I was under the impression that regardless of the federal Ex post fact consideration, this ruling in state constitutional grounds is final and not appealable…

    Is this small DA just trying to save face, or does he have a case?

  • #17082 Reply


    This- from the prosecuting DA in the Muniz case.

    Can someone enlighten me as to how this DA can appeal both the federal and state aspect of the Muniz case to SCOTUS?

    I was under the impression that because the Pa Supreme Court opinion held that
    Sorna violated BOTH the US and Pa constitutions, there would be no way for this DA to attempt to change the outcome…

    • #17086 Reply


      Every decision of a state’s highest appellate court (in PA’s case, the “supreme court”) can be appealed to the nation’s highest court on the basis of a federal constitutional claim. Whether or not the PA Supreme Court correctly applied its own state’s constitution is only reviewable insofar as it may conflict with the federal. How DA Freed “connects that up” remains to be seen. Seeking the federal Supreme Court’s review of the case will follow the typical custom of a Petition for Writ of Certiorari in this instance.

      • #17367 Reply

        Paul B

        I would assume that if this goes to SCOTUS NARSOL and NCROSL would file a Petition for Writ of Certiorari on the plaintiff side.

        • #17393 Reply


          I would hope not. The plaintiff would be the state of Pennsylvania.

  • #17054 Reply

  • #16597 Reply


    If the PSP delays removal of registrants whose conviction dates preclude their being on the registry, shouldn’t the have recourse to sue the state for each day they remained after the court’s ruling? Seems like that might get the PSP motivated to expedite matters a bit.

    • #16879 Reply


      Another way of looking at it: since registration is an unfunded mandate to the PSP, it’s in their best interest to shed the thousands of registrants this applies to, which would reduce the administrative burden and free up resources for actual law enforcement, rather than being bookkeepers and nannies. Hopefully that will motivate then to move quickly, since it’s essentially a monetary benefit to them.

    • #16602 Reply


      My thoughts exactly, DW.

      If registrants are required to report changes within 3 days, I would proffer that the state likewise has 3 days within which to act upon the ruling. But you know that they will drag their feet and try to throw up barriers to prevent the mass removal of registrants who have *already completed their original punishment* (since we can call it punishment now) under Megan’s Law.

      I also have a fear that even more websites will pop up endeavoring to quickly record all of the names on the registry as-is, thus truly handing down a lifetime punishment for thousands of low-risk offenders. People who serve their time need to be given the ability to move on and rebuild — not be tied permanently to Draconian standards of punishment. “But how can victims rebuild? They’re scarred for a lifetime,” you might say. I understand that viewpoint, but we’re talking about what the law spells out for us. We can’t decide willy-nilly what we want as punishment. Hell, I think there should be an equivalent list for animal abusers, elder abusers, and murderers (if anything to show that not everyone is an angel and is, in fact, a likely hypocrite), but just because I think it should happen doesn’t mean that it will. That’s for the system to decide based on the letter and spirit of the law. And, in this case, they did just that.

      • #16615 Reply


        All you points are well taken Miss Dee. My guess is that we don’t see the kind of scrutiny applied to say, DUI offenders (much more likely to kill entire families, let alone harm children) than anyone on the SOL. No doubt it’s a bill of attainder as I understand the Constitution to describe the same. I’m not a lawyer. Don’t even play one on TV, but I can read. The semantics used to justify applying this thing retroactively, or at all for that matter, was done so by folks who would be most effected by posting all criminal/immoral/civil crimes on the internet. Pandering politicians.

        Pray America gets back to her roots as a free republic bound by a Constitution, even when it is most unpopular to do so.

  • #16164 Reply


    I was on another site almost like this, one person talked to a lawyer and they said it would cost them (the lawyer’s price) to file a motion to be removed from the list. I would like to know if there was something else I would/could do, I went from 10 years to 25 to 15. I was supposed to be removed from the list in 2013 but it got extended to Tier II then dropped down to Tier I. Is it the PSP’s responsibility to remove those needed to be removed or are we the ones responsible to get ourselves removed. Also does the state actually have the ability to and would they appeal to the Federal court? That one has me worried.

    • #16610 Reply



      My husband was slated to be removed in 2014 after ten years but was updated to 2019 after SORNA took effect. We contacted a lawyer about filing a motion due to a ruling in PA last year that says that my husband might be able to get off the list because he met some criteria (I can’t think of it right now). They said it would cost 5k (told to us this February). Eric,

      My husband was slated to be removed in 2014 after ten years but was updated to 2019 after SORNA took effect. We contacted a lawyer about filing a motion due to a ruling in PA last year that says that my husband might be able to get off the list because he met some criteria (I can’t think of it right now). They said it would cost 5k (told to us this February). However, my understanding is that now the state itself will have to remove registrants whom they have now unlawfully kept on the registry past their “expiration date.” We are expecting them to announce that they will be removing registrants, but who knows when. Probably months. We will not be paying a lawyer to maybe possibly have slight chance maybe of removing him from the list., my understanding is that now the state itself will have to remove registrants whom they have now unlawfully kept on the registry past their “expiration date.” We are expecting them to announce that they will be removing registrants, but who knows when. Probably months. We will not be paying a lawyer to maybe possibly have slight chance maybe of removing him from the list.

    • #16246 Reply


      *It would cost them (the lawyer’s price) $5,000.00…

      • #16427 Reply


        PSP would be the one’s who could remove people from the list, but they don’t have to. They can simply say what they have been saying to people, “get a court order.” I would expect that at some point, they will start the process of removing people from the registry, and no doubt that process will be lengthy.


        • #16579 Reply


          If the courts ruled it unconstitutional, how can they not have to remove those effected?

  • #16018 Reply

    Jennie Henzel

    What does AWA stand for?

    • #16763 Reply

      Darrin Swait

      Not only that, Robin, but it also prevents some registrants from sponsoring their spouses or fiances into the country. I am currently dealing with that issue right now and it’s breaking her heart. This is good news, though. It’s progress

    • #16024 Reply


      AWA is the acronym for Adam Walsh Act, the most recent federal attempt to standardize sex offender registry requirements among the states.

  • #15897 Reply


    The double Jeopardy clause in the US constitution states you can only be punished once for any crime if SORNA is punishment then SORNA violates the double jeopardy clause making it unconstitutional regardless of weather or not it was applied to the offender after their sentence or not. Anyone who was already punished for a sex crime is therefore disqualified from the SORNA punishment.

    • #16536 Reply


      That could be true for most people convicted before Megan’s Law. Since there was no registry then (excepting California’s), people could not be sentenced to register.

      HOWEVER, since the introduction of the registries, typically a person is told at the time of their conviction that they are required to register, so the justice system (namely SCOTUS) would treat the registration requirement as part of the sentence. Even the dissenting justices in Smith v. Doe said they would not deem a registration requirement to be unconstitutional if the requirement was ordered at sentencing. The same would be true for the restrictions that have been deemed “punishment” and therefore unenforceable ex post facto.

    • #16428 Reply


      The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.

  • #15800 Reply


    Excellent Article! And a positive outcome indeed!

  • #15616 Reply


    My prediction is that both Pennsylvania and the federal government will appeal this ruling to the Supreme Court asking for cert. I think SCOTUS will grant cert to both Snyder and the state case, and combine them since they are so similar. The petition by the federal government may very well stand alone as its own case.

    The beauty of this is that PA and US governments must petition for cert within a relatively short period of time. I suspect that the petition will have to be made either before SCOTUS reconvenes or very shortly after. So more than likely, the case would be heard next term. IF SCOTUS grants cert at all. I still think they will in Snyder, and IMO this ruling increases the chance. It would be fantastic if they did not, but I think they will.

    • #16429 Reply


      It won’t matter. The court held that it violates the Pennsylvania Constitution. The ruling will still apply.

    • #16072 Reply


      I’m a bit confused now. Did not 6 Justices affirm that SORNA violates the ex-post facto clause of the Constitution of the Commonwealth of Pennsylvania. If so how can the Commonwealth go to Federal court to overturn it? Does not the State Constitution
      affect this, as it was a State law in the first place. I believe that the Federal ex-post fatco issue is a separate but equally important issue, but should not invalidate the Pa Supreme Court ruling.

      Also, how long does the Commonwealth have to appeal anyway?

      • #16539 Reply


        I could be wrong. It’s happened once or twice that I remember.

    • #15741 Reply


      I just found out about this wonderful site via YOUTUBE video by watching “Mike Woodall: How the Sex Offender Registry has Broken My Family Apart” Which I have almost the same story…I was reading and found out about this news and blew me away! (in a good sense) I was already on the Megan’s law for 10’s and 5yrs probation for “child porn”, since 2009 and ended in 2014! Within my 2nd-3rd year being on probation my ex-wife took my 2 younger children to a therapist for a prior incident prior to the 2009 offence..(long story) either way, it happened to be when my ex and I made an agreement with custody of our 2 younger children aged 10 and 13. Realizing I would like to have more time with them then agreed upon, I called her, she didn’t like that, then within 2 days children and youth told me I couldn’t be with my children and then all hell broke lose! For a lesser offence of (1ct photographing, videotaping my Daughter and her friend nude)!No sexual contact, or sexual assault on either! 1ct Corruption of minors!
      With that said, In 2010-2011, I was ordered another 5 yrs probation and retroactive to a life time registration on Megan’s law!

      MY life has been hell, and I am in contact with my so called victim, whom My Daughter and I have been closer then ever since this whole thing has came to be revealed was not my daughters doing!

      I hope this will resolve my case up!

  • #15335 Reply


    What of those that signed plea agreements prior to December 2012 which were not “sexually violent Sorna crimes at the time”? (Those that happened to be on probation for a Sorna sexual offense when Sorna was passed in 2012).

    • #16430 Reply


      Simply put, if your conviction was prior to December 20, 2012, SORNA’s provisions shall not apply to you.

  • #15326 Reply


    I personally am affected by this ruling. I saw my requirements go from 10 yrs, I was sentenced in 2004, to lifetime, upon the enactment of SORNA. In February, I have received from PSP a letter stating that since my charge is a tier II I now would be required to register only until 2032. If I read this correctly, then I would be removed from the registry completely. Under pre-SORNA I would have been removed in March of 2017. So what next? How long will the wait be for us folks who were unjustly affected by some bureaucrat?

    This is wonderful news!!

    • #16664 Reply



      You’re right, this is wonderful news. If your original sentencing in 2004 was for ten years on the registry, shouldn’t you have been removed in 2014 and not 2017? My husband is in the same boat except his increased from ten to 15 years, so we have been biding our time and *trying* to move on, though much of our young adult lives (both his *and* mine as I’m collateral damage in this whole system) has been basically wasted in a paralytic anxiety and fear. We should have been able to start building our lives again in 2014, as I suspect was the same for you. Here is to the hope that things will revert to how they should have been and you’re removed from the list along with my husband and thousands of other people who have served their original punishment!

  • #15127 Reply


    Could some please explain what PSP will most likely have to do with pre SORNA registers. Will they have to do something soon? If you have two or more 10yr registration convictions, that were combined in one plea, pre SORNA. Combining two 10yr registrations to equal a life time registration was struck down. IF one was turned into tier three from a 10yr registration. So I believe both ways life time registration increased are now struck down. Anyone have input or current appeals?

    • #16483 Reply

      Carol S

      My son went from 10 years to lifetime following the passage/adoption of the Adam Walsh Act in PA. Now he will go back to 10 years and be done soon. We may spend the money for an attorney regarding his case (for other reasons as well) but I recall how QUICKLY the letters and change in status went out in PA. Let them use the same resources they used then to reverse the damage they did then.

      However, I don’t recall his plea agreement saying 10 years FROM WHEN? Does anyone know? From conviction date, offense date or from after release prison? That does not seem fair as sentences for his crime varied from probation to 5 to 10 years.

    • #16431 Reply


      Eventually they could start removing people, but it will be a lengthy process. If you want legal relief as soon as possible, you should hire a lawyer to file a motion seeking relief based upon the ruling in this case. I’d think it would require nothing more than a Writ of Mandamus [Action in Mandamus].

      • #16510 Reply


        Mike would it go to the lower court first the sentencing court? Do you think PSP will have to do something soon?

  • #14976 Reply


    Good analysis, Larry. It’s pleasing to see more and more courts willing to use the “P” word.

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