In an opinion entered earlier this month. A North Carolina District Court Judge found the state’s process for adding people to their sex offender registry who had been convicted out of state, was unconstitutional.
In this case, the plaintiff’s case was out of Washington State. He moved to North Carolina, where he was originally told he did not have to register, but after moving within North Carolina, was told he did. The decision to place someone on the registry is not made by a judge. It’s made by a deputy in the Sheriff’s office.
Oh wow.
@AJ – are you going to say it about what the streak is of late out of this state? You do own it, you know.
Now, I must have missed it, but would hope someone here could help: How did he get from not having to register to being told he had to register after he moved, e.g. did someone look him up online and report him, did he get pulled over by a smokey, law changed, etc? I suppose it is in the original case filing, but I am not seeing the connection and it appears to me that is quite a leap for one county smokey to say no and another say yes without saying how it was brought to the second county’s attention and determination.
@Lovecraft:
This is the case I had in mind as being the one you referenced.
While this doesnt seem like much on the surface, since nc can change its process to a judicial one to dexide inclusion, you have to look at what didnt happen to see the gold here.
They didnt quote connecticut dps v doe 2003 and say that no process is due because it is not part of the statatory scheme to add someone to a list that is civil and doesnt imply dangerousness or trigger disabilities.
This means to be put on the list in the first place should also require due process by a judge and connecticut dps v doe no longer applies, as it shouldnt have as soon as the first restrictions of liberty were applied to those on the list.
@Chris. This is incredibly important and I must point out that there is no constitutional or fundamental right not to be initially registered, therefore no due process required. The Guirdy court was clear and like I stated it has been cited 27 times as good law. And they address Conn v. Doe directly. It is the heightened pleading standard again, your photo, info and everything associated does not happen until after that initial registration occurs. It is the ongoing violation of rights that is the trigger. Makes perfect sense since initial registration does nothing to you if you think about it. Nothing on the face of the statute is unconstitutional. It is no different than a price club membership, a vehicle registration, or a drivers license application. Nowhere in any procedural due process case would you find such a constitutional right to be free from any type of registration or obligation if it is in the public interest. Think about it, you must register you car to drive on the highways, you must register and have a drivers license, you must register your home for tax purposes, you must register and have a SS# in order to work, you must register a firearm. All these are fundamental rights but are dependent. As long as it is in the public interest registration alone will not trigger a constitutional violation… It is so obvious on its face but unless you really read into it and take it literally you will not see it. No wonder SCOTUS was so nonchalant and unanimous in its decision in Conn v Doe. and parroted in Smith as no worse than a price club membership. Perfect sense… Cannot challenge the law on its face and have to be specific that it is not a challenge to mere initial registration like the court keeps referring to and no one seems to get.
“In Bani, this court held that “Bani has established that the public notification provisions of HRS chapter 846E implicate a liberty interest protected by the due process clause of the Hawaii Constitution.” 97 Hawaii at 294, 36 P. 3d at 1264. This court concluded that Bani demonstrated that the public notification provisions of HRS chapter 846E will likely cause harm to his reputation, and to “tangible interests” in his personal and professional life, employability, associations with neighbors, and choice of housing. Id. As these interests are not implicated by mere initial registration alone, we must analyze registration anew.”
State v. Guidry, 105 Hawaii 222, 96 P.3d 242, 251-52 (2004)
“Is it hereby ORDERED, ADJUDGED, and DECREED that defendants, their successors, agents, servants, employees, and all persons in active concert or participation with them who receive actual notice hereof are permanently ENJOINED and RESTRAINED from:
(1) Placing plaintiff on the North Carolina Sex Offender Registry without first affording him prior notice and an opportunity to be heard;
(2) Prosecuting plaintiff for any failure to comply with any North Carolina, federal, or other
law or regulation applicable solely to registered sex offenders without first affording him
prior notice and an opportunity to be heard on whether his previous out-of-state offense is
“substantially similar” to a reportable North Carolina conviction.”
It shouldn’t be too difficult for NC to provide due process.
Chris, yes it is based on the state constitution and mostly state court judgement, but I think I can work it into a usable procedural due process claim even though in Conn v Doe the court said it would be a bootless issue even if it implicated a liberty interest.
From the national office comes this piece written with a bit more detail on this case:
NARSOL’s attorney wins important procedural due process case
https://narsol.org/2018/11/narsols-attorney-wins-important-procedural-due-process-case/
Interestingly, despite California’s harsh SO laws, this out of state conviction issue is being practiced here…..at least I think. My son, with an out of state conviction, has been registering for nearly 15 months, and still, he does not appear on Megan’s website. His confirmation paperwork even listed “out of state conviction” in lieu of details pertaining to his alleged crime, conviction, and incarceration dates. Janice told me “Well, the DOJ can sometimes take up to a year to catch up”. Well, they haven’t and I’m beginning to hope and believe that they don’t at all. What do you all know about how out of state convictions are handled in CA??? The whole registry is so bogus it turns my stomach…..
just a general question,if anyone can give me a answer, I plead guilty to a sex charge in ny in 1985, I was off parole in 1990.im living in Nevada now,since I was a tier one,ab579 changed me to a tier 3, would I have to register with state of nc and or federal law? thx for advise