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National Association for Rational Sexual Offense Laws v. Stein

United States District Court, M.D. North Carolina

July 30, 2019

JOSHUA STEIN, Attorney General of the State of North Carolina; and DISTRICT ATTORNEYS LORRIN FREEMAN District 10; PAT NADOLSKI District 15A; and KRISTY NEWTON District 16A, Defendants.


          Loretta C. Biggs United States District Judge.

         Plaintiffs bring this action, [1] pursuant to 42 U.S.C. § 1983 (“Section 1983” or “§ 1983”), challenging the constitutionality of five amendments to Article 27A of Chapter 14 of the North Carolina General Statutes that pertain solely to registered sex offenders. (See ECF No. 33.) Before the Court is Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint. (ECF No. 40.) For the reasons stated below, the Court will deny Defendants' motion.

         I. BACKGROUND

         Plaintiffs in this action are John Doe, [2] an individual required to register as a sex offender in North Carolina, and two non-profit organizations that advocate for such individuals. (ECF No. 33 ¶¶ 23, 29, 31, 44, 46.) Plaintiff John Doe currently resides in North Carolina Judicial District 15A and was convicted for sexual assault in 2002. (Id. ¶¶ 22-23.) Plaintiff National Association for Rational Sexual Offense Laws (“NARSOL”) and Plaintiff NC RSOL (collectively “Organizational Plaintiffs”) are “voluntary membership organization[s]” whose “purpose is to advocate, both legislatively and legally, for the reform of state and national laws regarding sex offender registries and legal restrictions placed on registrants . . . and to seek to vindicate the constitutional rights of its members.” (Id. ¶¶ 29- 31, 44-46.) Organizational Plaintiffs' members include, among others, “current registrants subject to the provisions of the law challenged [in the Complaint] as violating the Ex Post Facto clause of the United States Constitution.” (Id. ¶¶ 32, 47.)

         “Defendant Joshua Stein is the Attorney General of the State of North Carolina, ” who is “charged with defending the interests of the State in all criminal and civil suits.” (Id. ¶¶ 13- 14.) Defendants Lorrin Freeman, Pat Nadolski, and Kristy Newton (collectively, “Individual DA's”) are North Carolina district attorneys for Judicial Districts 10, 15A, and 16A, respectively, each of whom “are responsible for the prosecution of crimes in their respective judicial districts.” (Id. ¶ 18.) All defendants have been sued in their official capacities. (Id. ¶¶ 13, 18.)

         According to Plaintiff's Complaint, North Carolina passed its first set of statutes pertaining solely to registered sex offenders (the “registry law”) in 1995. (Id. ¶¶ 8 n.1, 59.) The registry law is a group of statutes “codified at Article 27A of the North Carolina Criminal Code, ” N.C. Gen. Stat. § 14-208.5 through § 14-208.45. (Id. ¶ 8 n.1.) “Th[e] initial registry law did no more than create a database of persons who had been convicted of a relatively small number of qualifying offenses.” (Id. ¶ 60.) Under this registry law, among other things: (i)“[r]egistration terminated automatically after ten (10) years and a person could petition for removal from the registry”; (ii) “[t]he registry was maintained by the local sheriff and was available to the public only upon request by a member of the public regarding a specific individual”; (iii) “[r]egistrants were required to mail in notification of any change of address”; (iv) “[v]iolation of the registry law was a Class 3 misdemeanor”; and (v) the law “applied to all persons committing a qualifying offense or who were released from a penal institution after the effective date.” (Id. ¶¶ 61-64, 66 (citing 1995 N.C. Sess. Laws 545).) Since that time, the North Carolina legislature has passed a number of amendments to the registry law. (See Id. ¶¶ 68-116.)

         In this action, Plaintiffs challenge the constitutionality of the following amendments to the registry law:

a. 2006 N.C. Sess. Laws 247 (2005 N.C. HB 1896) mandating semi-annual, in-person reporting to the local sheriff, giving the local sheriff the authority to require the registrant to report at any time, mandating in-person reporting for any change in registry status, severely restricting where registrants can live, and banning them from jobs that involve the “instruction, supervision, or care of a minor”[ ];
b. 2008 N.C. Sess. Laws 117 (2007 N.C. HB 933) lengthening the registration requirement from ten (10) to thirty (30) years, shortening the time in which a registrant must report to the sheriff any changes of information, and banning registrants from a wide-range of public and private spaces; .
c. 2008 N.C. Sess. Laws 220 (2007 N.C. SB 1736) requiring registrants to notify the sheriff of any “online” identifiers and authorizing release of that information to companies;
d. 2009 N.C. Sess. Laws 491 (2009 N.C. HB 1117) barring any registrant from obtaining a “P” or “S” endorsement on their driver's license (“P” for “passenger” and “S” for “school bus”); and
e. 2016 N.C. Sess. Laws 102 (2015 N.C. HB 1021) reinstituting the ban on registrants from a wide range of public and private spaces after 2008 N.C. Sess. Laws 117 was . . . struck down on First Amendment grounds.

(Id. ¶¶ 8a.-8e.) Plaintiffs allege that the retroactive application of each of the above amendments violate the Ex Post Facto Clause of the United States Constitution. (Id. ¶¶ 277- 281.) Defendants move to dismiss Plaintiffs' Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.[3] (See ECF No. 40.)


         A. Rule 12(b)(1)

         Under Rule 12(b)(1), a party may seek dismissal based on the court's “lack of subject-matter jurisdiction.” Fed.R.Civ.P. 12(b)(1). Subject-matter jurisdiction is a threshold issue that relates to the court's power to hear a case and must be decided before a determination on the merits of the case. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 479- 80 (4th Cir. 2005). A motion under Rule 12(b)(1) raises the question “whether [the plaintiff] has a right to be in the district court at all and whether the court has the power to hear and dispose of [the] claim.” Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012). The burden of proving subject-matter jurisdiction rests with the plaintiff. McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). When evaluating a Rule 12(b)(1) motion to dismiss, a court should grant the motion “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). On a motion to dismiss for lack of standing, a court must construe the complaint in the plaintiff's favor, accepting as true the factual allegations in the complaint. Warth v. Seldin, 422 U.S. 490, 501 (1975).

         B. Rule 12(b)(6)

         A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure “challenges the legal sufficiency of a complaint, ” including whether it meets the pleading standard of Rule 8(a)(2). Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). Rule 8(a)(2) requires a complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), thereby “giv[ing] the defendant fair notice of what the . . . claim is and the grounds upon which it rests, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

         “A district court should dismiss a complaint pursuant to Rule 12(b)(6) if, accepting all well-pleaded allegations in the complaint as true and drawing all reasonable factual inferences in the plaintiff's favor, the complaint does not allege ‘enough facts to state a claim to relief that is plausible on its face.'” Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 539 (4th Cir. 2013) (quoting Twombly, 550 U.S. at 570). A claim is plausible when the complaint alleges facts sufficient to allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Johnson v. Am. Towers, LLC, 781 F.3d 693, 709 (4th Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A complaint may fail to state a claim upon which relief can be granted in two ways: first, by failing to state a valid legal cause of action, i.e., a cognizable claim, see Holloway, 669 F.3d at 452; or second, by failing to allege sufficient facts to support a legal cause of action, see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013).

         While a court's evaluation of a Rule 12(b)(6) motion to dismiss is “generally limited to a review of the allegations of the complaint itself, ” a court may properly consider documents “attached to a complaint as exhibits.” Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016). Therefore, in addition to considering the Complaint, the Court will also consider the exhibits attached to the Complaint. See id.


         A. Eleventh Amendment Immunity

         Defendants first argue that Plaintiffs' lawsuit is barred by the Eleventh Amendment. (See ECF No. 42 at 4-6.) Because the Eleventh Amendment acts as a jurisdictional bar, courts must resolve the issue of Eleventh Amendment sovereign immunity before reaching the merits of a case. See Edelman v. Jordan, 415 U.S. 651, 677-78 (1974).

         Section 1983 provides a cause of action for the deprivation of a constitutional or federal statutory right by a “person” acting under color of state law. See 42 U.S.C. § 1983. However, “the doctrine of sovereign immunity under the Eleventh Amendment[4] . . . prevent[s] a state from being sued by one of its own citizens without its consent.” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 329 (4th Cir. 2001) (footnote added). Thus, “neither a State nor its officials acting in their official capacities are ‘persons' under § 1983.” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). In Ex parte Young, 209 U.S. 123 (1908), the Supreme Court “created an exception to this general principle by asserting that a suit challenging the constitutionality of a state official's action in enforcing state law is not one against the State.” Green v. Mansour, 474 U.S. 64, 68 (1985) (citing Ex parte Young, 209 U.S. at 159-60). As explained by the Supreme Court, “[t]he theory of [Ex parte] Young was that an unconstitutional statute is void, and therefore does not ‘impart to [the official] any immunity from responsibility to the supreme authority of the United States.'” Id. (third alteration in original) (quoting Ex parte Young, 209 U.S. at 159, 160). Therefore, under the Ex parte Young exception to Eleventh Amendment immunity, a federal court may “issue prospective, injunctive relief against a state officer to prevent ongoing violations of federal law, on the rationale that such a suit is not a suit against the state for purposes of the Eleventh Amendment.” McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010). “The requirement that the violation of federal law be ongoing is satisfied when a state officer's enforcement of an allegedly unconstitutional state law is threatened, even if the threat is not yet imminent.” Waste Mgmt., 252 F.3d at 330.

         Moreover, at the motion to dismiss stage, the Court “need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law.” Constantine, 411 F.3d at 496 (quoting Verizon Md., Inc. v. Pub. Serv. Comm'n, 535 U.S. 635, 645 (2002). See S.C. Wildlife Fed'n v. Limehouse, 549 F.3d 324, 332 (4th Cir. 2008) (“For purposes of Eleventh Amendment analysis, it is sufficient to determine that [the plaintiff] alleges facts that, if proven, would violate federal law and that the requested relief is prospective.”). In so doing, the Court “do[es] not consider the merits of [Plaintiffs'] claims; it is enough that the complaint alleges an ongoing violation of federal law.” Constantine, 411 F.3d at 496. See D.T.M. ex rel. McCartney v. Cansler, 382 Fed.Appx. 334, 338 (4th Cir. 2010) (“[I]t is sufficient for Plaintiffs' suit to allege an ongoing violation of federal law; actually proving such an ongoing violation is unnecessary [at the motion to dismiss stage].”)

         Plaintiffs' Complaint alleges the following:

(i) that “[t]he provisions of the registry law challenged herein have been retroactively applied to” Plaintiffs, (ECF No. 33 ¶¶ 25, 38, 53);
(ii) that the burdens imposed by the registry law, along with tis history, “demonstrate the intent to punish and/or create the effect of punishment, ” (id. ¶ 218);
(iii) that the challenged provision of the registry law “inflict both directly and indirectly what has been regarded in our history and traditions as punishment, ” (id. ¶ 225);
(iv) that “[t]he provisions of the registry law challenged herein, both directly and indirectly, impose affirmative disabilities and restraints on registrants, ” (id. ¶ 240);
(v) that the “registry law is not reasonably related to a legitimate non-punitive purpose, ” (id. ¶ 260);
(vi) that “[t]he extent and duration of registry requirements are substantially greater than necessary to meet the legislature's avowed purpose, ” (id. ¶ 262); and
(vii) that the retroactive application of the challenged provisions of the registry law “make[s] more burdensome the punishment imposed for offenses committed prior to the enactment of that law, (id. ¶¶ 277-281).

         If true, these claims allege ongoing violations of the Ex Post Facto Clause[5] which “prohibits the application of laws that retroactively ‘increase the punishment for criminal acts.'” United States v. Rooks, 596 F.3d 204, 213 n.10 (4th Cir. 2010) (footnote added) (quoting United States v. O'Neal, 180 F.3d 115, 121 (4th Cir. 1999)). The Court therefore concludes that Plaintiffs' allegations satisfy the Court's “straightforward inquiry into whether the complaint alleges an ongoing violation of federal law.” Constantine, 411 F.3d at 496.

         Even where the Complaint alleges an ongoing violation of federal law, in order for the Ex parte Young exception to apply, a “special relation” must exist “between the state officer sued and the challenged statute to avoid the Eleventh Amendment's bar.” Waste Mgmt., 252 F.3d at 331 (quoting Ex parte Young, 209 U.S. at 157). See Lytle v. Griffith, 240 F.3d 404, 412 (4th Cir. 2001) (“The [Ex parte] Young exception is limited . . . by its requirement that named state officials bear a special relation to the challenged statute.”). This “special relation” “requires proximity to and responsibility for the challenged state action.” Wright v. North Carolina, 787 F.3d 256, 261-62 (4th Cir. 2015) (quoting S.C. Wildlife Fed'n, 549 F.3d at 333).

         The Court concludes that Plaintiffs have sufficiently alleged that Defendants have a special relation to the enforcement of the challenged provisions of the registry law. In the Complaint, Plaintiffs specifically allege that a violation of the challenged provisions of the registry law is a felony offense. (ECF No. 33 ¶¶ 88, 131, 168, 221, 244.) With respect to the Attorney General, Plaintiffs allege that he has statutory authority, “through special prosecutors, to bring or assist in criminal suits upon request of a district attorney.” (Id. ¶ 13- 17.) As this Court stated in Does 1-5 v. Cooper, “Ex parte Young itself held that the state attorney general's duties, which included the right and the power to enforce the statutes of the state, sufficiently connected him with the duty of enforcement to make him a proper party to an action challenging a state statute's constitutionality.” 40 F.Supp.3d 657, 673 (M.D. N.C. 2014) (citing Ex parte Young, 209 U.S. at 158-61). Here, as alleged by Plaintiffs, the Attorney General has the statutory authority to prosecute or assist in the prosecution of criminal actions. (See ECF No. 33 ¶¶ 14-16; see also N.C. Gen. Stat. §§ 114-2, 114-11.6.) Plaintiffs have thus sufficiently alleged that the Attorney General has enough of a connection to the enforcement of North Carolina criminal laws to satisfy the special relation requirement of Ex parte Young and thereby avoid the Eleventh Amendment bar. See Does 1-5, 40 F.Supp.3d at 674 (finding ...

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