Lawsuit moves forward in twice-delayed hearing on Motion to Dismiss

By Robin Vander Wall . . . At a hearing in federal court (Middle District, NC) on Monday, April 16, 2018, NARSOL, NCRSOL, and two John Doe plaintiffs were represented by Attorney Paul Dubbeling to defend against the state of North Carolina’s Motion to Dismiss a lawsuit filed in January, 2017 seeking declaratory and injunctive relief under section 1983 of Title 42 of the U.S. Code (Civil Action for deprivation of rights). Forty six named defendants were represented by Attorney Lauren Clemmons of the N.C. Attorney General’s office.

At issue in this case are a variety of grievances presented by the complainants about the N.C. Sex Offender Registry and the prohibitions and restrictions that flowfrom them. Chief among them is that the registry laws are punitive and violate the federal constitution’s prohibition against the ex post facto effect of civil regulatory schemes that are burdensome and deprive citizens of liberty interests in accordance with an analysis first articulated by the U.S. Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) and applied by that Court in the seminal registry case of Smith v. Doe, 538 U.S. 84 (2003).

The lawsuit also seeks a judgment declaring that N.C.G.S. §§ 14-208.18 (a)(2) and (a)(3) (premises statute) are facially overbroad in violation of the First and Fourteenth Amendments by unconstitutionally burdening plaintiffs’ freedom of association and exercise of religion, and that section (a)(3) of the same statute is void for vagueness in failing to provide a reasonable person enough understanding about precisely what physical spaces he is restricted from accessing.

The lawsuit also seeks a declaratory judgment holding all of Article 27A (“the registry law”) unconstitutional in violation of the Fourteenth Amendment on the basis that the myriad laws burden plaintiffs’ fundamental right to direct the education and upbringing of their children, their right to pursue the common occupations of life, and their right to acquire useful knowledge.

Additional claims for relief are advanced in the original complaint that is 88 pages long and contains 657 paragraphs, a fact the state’s attorney has been keen to emphasize in its Motion for Dismissal. Among other reasons the state seeks dismissal is that the plaintiffs lack standing and that the Court lacks subject matter jurisdiction over the claims asserted. The state also moves for dismissal on grounds that the named defendants are not proper parties to the action in accordance with Rule 12(b)(1),(2), and/or (6) of the Federal Rules of Civil Procedure.

For additional insight into the written arguments proffered by opposing parties, please see the plaintiffs’ Response to the state’s Memorandum in support of the Motion to Dismiss, and the state’s Reply to Plaintiffs’ Response.

For those of us who were in the courtroom, we could not have been more pleased with the performance of our attorney during two hours of oral argument which was divided into three phases organized in view of Judge Loretta Biggs’ assessment of the subject matter. Several members of NARSOL and NCRSOL were in attendance and sat directly behind Mr. Dubbeling who occasionally utilized our presence as a rhetorical device. Aside from its attorney, there was nobody at the hearing in support of the state.

At the conclusion of the hearing, Judge Biggs thanked the counselors and assured each of them that she would make a decision in the forthcoming weeks, which we anticipate will be anywhere from one to six months. Because neither of the parties have moved for summary judgment, Judge Biggs is restricted to ruling on the state’s Motion to Dismiss, alone. The standard of review for the Court is to assume that all factual allegations contained in the complaint are true and to draw all reasonable inferences in favor of the plaintiffs.

Whatever the outcome of the case in federal district court, it’s important for everyone to understand that this case is headed to the Fourth Circuit Court of Appeals in Richmond, Virginia, which, by de novo standard (Latin term meaning “as if from the start”), is entitled to review all aspects of the complaint irrespective of the outcome before Judge Biggs.

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Robin Vander Wall

As vice chair of NARSOL, Robin is the managing editor of the Digest, director of development, and provides assistance to the webmaster in keeping our websites running smoothly. He also serves as founder and president of Vivante Espero, NARSOL's 501(c)(3) foundation and legal fund.

This topic contains 31 replies, has 2 voices, and was last updated by Avatar Glen 6 months, 3 weeks ago.

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  • #38857 Reply
    Robin Vander Wall
    Robin Vander Wall
    Admin

    By Robin Vander Wall . . . At a hearing in federal court (Middle District, NC) on Monday, April 16, 2018, NARSOL, NCRSOL, and two John Doe plaintiffs
    [See the full post at: Lawsuit moves forward in twice-delayed hearing on Motion to Dismiss]

  • #38858 Reply
    Avatar
    Lovecraft

    Sounds good Robin! Wish I could have been there….just curious, was the recividism study used at the hearing to add context? Well whatever the case we have an outstanding lawyer that really gets the civil plight(s) of RC’s and we are damn lucky to have him. I know he presented a strong, fact laden, logical case that should be easy for any judge to connect the dots. Ill have my fingers crossed!

    • #38873 Reply
      Robin Vander Wall
      Robin Vander Wall
      Admin

      Thanks, man. No, this hearing did not concern any evidentiary support outside of what was already contained in the complaint. And that’s to be expected. In a Motion to Dismiss for failure to state a claim (and I’m oversimplifying the breadth of the state’s motion merely to make my point), the court is supposed to evaluate whether the complaining party has stated a plausible claim for relief (assuming there are no other procedural bars forestalling a consideration of the claims, and each claim is generally evaluated separately). As it stands, we wait to see what claims are dismissed and what claims survive. The surviving claims will be set for trial and that’s when discovery begins (which is the point at which a full bevy of supporting evidence is introduced to support the surviving claims). Think of the Motion to Dismiss hearing in a civil matter as somewhat similar to a preliminary hearing in a criminal matter. A preliminary hearing is where a judge decides whether the state has met its burden to demonstrate probable cause that a crime was committed. In Monday’s hearing, the judge was determining which of the plaintiff’s claims state a “plausible” claim for the relief which is being sought, and the merits of the claim are evaluated in that light. Hope that helps.

  • #38860 Reply
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    Kerry

    God bless you for all the great work you are doing. thank you so much for working so hard to help all affected by these registries and public shamings.

  • #38861 Reply
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    Tod

    This case sounds exactly like the one currently in Appeals in the 10th circuit, it is still at least 6 months away from any decision on them, be nice if it was sooner – yep, like that would happen. IF the 10th rules in favor of judge Maitch, this case may have a great chance of winning as well, and another Circuit ruling against the registry, which would be 3 if I am correct, and may either go before SCOTUS or since they upheld the 6th, maybe, just maybe between these two, the registry or at least ex post facto will win! I am willing to bet this judge will look closely at Judge Maitch’s decision, and lets hope she AGREES with him and that this attorney used that case, which I would hope they did. I have a good feeling about this and may bring some major change, may not be the magic bullet, but huge nonetheless.

    • #39007 Reply
      Avatar
      Kendal

      Yes, it needs to be a lot sooner, cause my case won’t go until that one is finished. I sure hope that they side with Maitsch, cause then mine is pretty much a shoe in.

  • #38865 Reply
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    Chris

    This may be promising. Looking forward to what the outcome will be.

  • #38869 Reply
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    Dennis Shaffer

    I am so proud of all of you and I am praying for a great outcome for all of us and that this will spread across the country and bring justice to all thank you for your hard work Dennis Shaffer fighting the same cause in Kansas

  • #38874 Reply
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    Art B

    A big thank you and congratulations to Mr Dubbeling and all involved. Just curious…why is this case already headed to the Fourth Circuit Court of Appeals in Richmond if this motion to dismiss hasn’t been decided yet?

    • #38880 Reply
      Robin Vander Wall
      Robin Vander Wall
      Admin

      Thanks, Art. And the answer to your question is because it doesn’t matter which side loses on what claim, the losing side will appeal to a higher court. It’s inevitable.

  • #38875 Reply
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    WC_TN

    Forgive me for being a pessimist, but I think that the backroom politics will come into play.
    When a court has sound data entered into evidence, but still rules it’s still rational to base sex offender laws on known false information, I lose confidence in the courts as a whole. It’s as if the court was saying, “We could care less what the facts say. We and the rest of society can’t stand the idea of sex offenders being near children and we’re not going to let it happen because we have that power.”

    • #38921 Reply
      Robin Vander Wall
      Robin Vander Wall
      Admin

      The wonderful thing about the federal judiciary, generally speaking, is that the Framers were wise enough to insulate that branch of government from political influence by making judicial appointments last for life. Federal judges generally care very little about the political implications of their rulings. However, an argument CAN be made that, owing to the intense politicization of the U.S. Senate (especially due to the effect of the 17th Amendment), the judges who sit on the U.S. Supreme Court are more partisan than they’ve ever been. This has become a problem and there is no easy solution to it.

  • #38881 Reply
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    Terry

    Wow, this is major progress and I hope other states (i.e. Illinois) will take notice in due course. Although Illinois Voices has done extremely well getting the attention of State officals.

    • #38890 Reply
      Avatar
      Tod

      It’s easy to be pessimistic, I go down that path, but this case in particular is very similar to the case the the judge ruled that the registry basically as a whole was unconstitutional, not just ex post facto, that combined with the most recent US Supreme Court rulings, there is strong momentum. Yes, the odds are stacked against us, but there are judges all around the country that have enough courage to do the RIGHT thing, but also based on the very expert attorneys who have tons of EVIDENCE and FACTS to support it. If anything, there is less politics in a court room than with actual pathetic politicians – I have NO faith in that system, but I do have faith that eventually there will be many (more) judges seeing the light, eventually and hopefully scotus will agree (which they have in 2 or 3 cases already)

      • #39001 Reply
        Avatar
        TS

        @Tod

        Unless you’re in IL.

        “Judges are chosen by popular vote in partisan elections and serve 10-year terms, after which they must compete in uncontested, nonpartisan retention elections to continue serving. Unlike most states, supreme and appellate court justices in Illinois are elected to represent specific districts.” https://ballotpedia.org/Judicial_selection_in_Illinois

        • #39025 Reply
          Avatar
          TS

          @Tod

          Look up People v Pepitone 2018 (ILSC Docket No. 122034) decision from earlier this month and see what the consternation is with ILSC. You can read about it online too and see why folks are not pleased with the outcome. Sounds like politics and tunnel vision were in play.

  • #38886 Reply
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    Richard OToole MS

    Wonderful to read. This is the reason I just sent $250 to the legal fund. Win or lose it is still progress. Any action is better than allowing the state to continue irrational legislation without challenge. Congratulations to everyone who dedicate their time for real justice.

    • #38888 Reply
      Robin Vander Wall
      Robin Vander Wall
      Admin

      Thank you, Richard! And we greatly appreciate your generous support of our efforts.

  • #38889 Reply
    Avatar
    Saddles

    One tin soilder good song for this sex registry ordeal as a lot of this registry has been long overdue to comprend or understand. I do congradulate Narsol for bringing all this sex offender issue to the frontline, also the other folks that help advocate for rational sex offender laws. While a lot of this is about constiutional law its also about human rights and it does bare on human punishment and brands those for life. Talk about a sin issue.

    I mentioned on one my comments on here that I didn’t want to win as that was not my goal. Truth is my goal, yes even some lawyers lose and some win. Even some that go to battle lose. Sure I hope we all get true justice as set in the preamble to the constitution. Sure its not ethical to dupe others in a lot of this govermental scheme its also not ethical to deprive others of life, liberty, and the prusuit of happiness or to banish one of all their rights like they don’t have any ethical morals. A lot of it is about abuse of power. I wonder who has the ethical morals today in this society.

    Now this sex registry ordeal is going to the straw to break the camel’s back before its over and justice is going to wake up. People still try to justify themselves and even court systems. I’ve even noticed it on here at times but in the end truth wins.

  • #38891 Reply
    Avatar
    Laserbeam Larry

    Sounds like a similar Declaration I presented to Eric Holder and my State Execs. We wrote this whil in a TX DOJ facility. It was written by one of the head lawyers for the MCI/WorldCom debacle. I sent it in and got nothing but nasty replies from all the County and State as well as City agencies that were the Defendants.

    My County tried to tell me how much money it was going to cost me… literally a scare tactic. I spent considerable time assessing whether or not to move forward and finally filed for a Motion to Dismiss. The environment just was not ready. This was 2008. I have a copy of it still online. I was ho[ping someone else would approach the unconstitutionality of the Registry from any level, beit Federal or State. If you look closely at your State Constitutions you will find plenty to go on.

    The jurisdiction thing is a scapegoat for the courts. They will use it faster than lighting just to get the case off their desk.

    I am so glad NARSOL and friends are moving forward with this. It is about the Constitution 100%. You can discount the fact that there are just too many wrong factors that are associated with the registry and no one out side of the peeps that are on the registry want to admit it.

    I am also thrilled that the judgment also includes the registrants’ families as part of the pain and suffering inflicted which validates the registry as punitive. WomenAgainstRegisty has a strong lead on this approach and my feelings are that this is one of the few angles of which a judge and jury would look close enough at to see where the pain and suffering is effecting more than just the single registrant.

    Keep up the good work. My 42 U.S.C. § 1983 Complaint For Declaratory and Injunctive Relief is here for those who want to read/use it: http://sexoffense.org/243-2/

  • #38911 Reply
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    Tim L

    Standing will be the issue.

    I hope plaintiffs considered to consequences of entering into plea agreement knowingly waived right to contest civil action.

    The information provided via SOR regime is for the people’s use. That aspect is essentially civil in intent.
    IMHO the punitive outcome results from the people’s uses outside that aspect. The people clearly use the info to impose their own brand of affirmative disability and restraint, residency restriction, banishment and so forth. Putting legal bars around places ( presumptively where kids gather) is no different than placing offenders in jail or prison.

    • #38922 Reply
      Robin Vander Wall
      Robin Vander Wall
      Admin

      Tim, entering into a plea agreement in a criminal trial is never a waiver of one’s right to challenge the constitutionality of a law in a civil setting. I’m not sure where you’re getting that from.

      • #39045 Reply
        Avatar
        Tim L

        Robin,
        Anyone can raise a claim to injuries in civil court, to be sure. However entering into plea has consequences. The consequences are explained by courts to all defendants via colloquy. Waivers to process ARE part of that. Connecticut V. Doe. Where defendants lost 9-0. Those similarly situated were those who entered into plea and suffered conviction. All waived right to (more) process, including the option to advance appeals or contest usual civil action that may flow from the conviction.

        We will see what the judge has to say in this case, my guess is most claims will be dismissed for lack of standing. Time will tell.

        • #39047 Reply
          Robin Vander Wall
          Robin Vander Wall
          Admin

          Yes we will. The question before the court in Conn. Dep’t of Pub Safety v. Doe was very narrow and would not have turned on whether anyone pleaded to or was convicted of a crime. The question was whether or not plaintiffs had any constitutional protections against the fact of their convictions being published by the state. The Court said no. As part of its reasoning, the Court argued that plaintiffs had already been afforded Due Process protections as a part of their trials (whether they plead out or not).

  • #38912 Reply
    Avatar
    SW

    What sort of impact do these cases have nationally? Is there a possibility that one of them will make it to the federal supreme court?

    • #38923 Reply
      Robin Vander Wall
      Robin Vander Wall
      Admin

      Depending on the outcome, there are a number of impacts. If this lawsuit is successful in District Court, it will directly impact the state of North Carolina. If this lawsuit is successful in the Fourth Circuit Court of Appeals, it will directly impact NC, SC, VA, MD, and WV. If the lawsuit finds its way to the U.S. Supreme Court (and every federal action has the possibility of reaching the highest court, although statistically it’s not a high probability), then the outcome directly impacts every state and citizen in the entire nation.

      Along the way, there are the persuasive impacts to consider. Court’s take note of each other’s opinions. And lawyers are always looking for an application of law to a similar set of facts and circumstances in order to argue that court “A” should follow the holding in court “B”.

      What has no impact? Doing nothing.

      • #51220 Reply
        Avatar
        Glen

        Hi Robin,

        Hope all is well. Any recent updates regarding this case?

        I just read that SCOTUS denied cert for Bethea v NC (and Vasquez v Foxx too) and that is certainly disappointing. Was hoping there may have been some progress in this case but given SCOTUS’s decision not to hear Bethea, leads me to believe that this case may be negatively affected by that decision as well.

  • #38925 Reply
    Avatar
    Tammie Leigh Lawson

    Thank you all for all your hard work and dedication in seeking change. Special thanks to everyone involved attorneys who fight for our civil rights, Narsol for there hard work and research, The courts and the Judge for hearing the case. I can now hope that this will shed some light on a very dark situation for RSOs and their families. My prayers will be that this will cause our states to follow this lead if it is successful.

  • #38997 Reply
    Avatar
    Carol S

    Great job! No matter the outcome, more of us around the country need to file similar lawsuits–and over and over and over again until the courts get it right and follow our Constitution. I’m looking for someone do to something similar in PA.

  • #39032 Reply
    Avatar
    Saddles

    Yes something is better than nothing or those under this sex registry can just sit around wishing and hoping but in the end we should all stand up whether one gets justice in courts or the states take another look at this. In all its a cash cow just like the marijuana market which once was illegal now states either have it for recreational use or medical use.
    NARSOL has its strategic focus on their game plan to get relief for all in a lot of this unconstitutional game of cat and mouse.

  • #39738 Reply
    Avatar
    Elaine

    Thank you for all the hard work you all do , maybe one day our son can finally get to be able to do same thing as anyone else can , my hub had a past yes been on pro 9 years now , and since my hub on registry our son is affected in it , isolation , no family gatherings , no vacations , not one amusement park or park with his daddy ever to be present , oh and think of a lil boy wwho likes sports and wants to get into sports games , and gets to have his family watch him together as mom and dad watching their son at a game horaying him on , that’s my boy !!but instead Never once you can look over to see your dad do it ! ?
    Why cause your dad is on registry and he’s restricted from doing anything normal , going anywhere ? even with your child who is Not a victim but the Registry in Tn has made him a victim as in he don’t get to have that bond as a son and dad need , oh yah he can have his mom anywhere and all but what about his dad ? So yes this is Unconstituitional , ! To our families not just the registrant , we all live with the isolation outcast harassment be Littled , govt watch , rest our lives , no fun no family time all together ;( think of all the kids in this world not just those who don’t have someone on registry , freedom for all liberty for all and these restrictions are punitive , it takes a father away of his child who needs his presence at school at games enjoying family time , being online no friends no family completeness mom dad and child living normal , isolated restricted from doing as anyone else , no fun , think how the children feel think for one min how you’d feel as a child , and this is rest life !! Even 25 years after pro is over is considered life , my son will be 18 before we know it , will be graduating high school before we know it will get married etc before we know t and my hub can’t participate in none of that ! That’s Punishment for nothing he did , but Registry restrictions did to us all ! Yes this stuff affects not only the resgistrant , We go thru the pain hurt depression and isolation from world too , I’m praying the list won’t exist one day and restrictions won’t be so harsh on the families and we can do just like any family does out there and maybe one day my son can have his dad get to see him play sports or anything , see him graduate etc enjoy some life ,
    My prayer is this , my hub has cong heart failure and I pray one day before his time is up he can experience one day of freedom on earth before he’s called home to heaven and my son will get to have a great memory of getting to do stuff as family enjoying life together , even go to a park just to play basketball ! Please cont in the fight not just for the registrants but All Our Families ! In Jesus name I’m praying God will move this mountain of restrictions and they will find this unjust and unconstitutional laws and then we can be families again is my prayers before my hubby passes away of his heart condition , we are a family not just me and son but me Hub and son together as one !

  • #45042 Reply
    Avatar
    Joseph Park

    If anyone intends to file such a petition in Georgia, I volunteer to be a named plaintiff.

    I have what I consider to be the silver bullet to kill the sex offender registry in Georgia, which I will not reveal here and now because I don’t want to tip off the Georgia Legislators until it’s too late for them to do something about it. If no one has done anything in Georgia by the time my present case seeking the demise of the GPS monitor law for Sexually Dangerous Predators is finished, then I intend to take that next step with my own lawyer, Mark Yurachek. If anyone cares to share the expense, the more the merrier.

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