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NC: Process for adding out of state convictions to state registry is unconstitutional

[floridaactioncommittee.org – 11/23/18]

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.

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  1. matthew

    Oh wow.

  2. TS

    @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.

    • AJ

      @TS:
      I apparently don’t have to say it. It’s already in your head! But yes, once again NC loses, we win. You gotta give NC credit for tenacity, though at some point you’d hope and think they’d relent. Then again, this is a corollary to a line from a comedian years back: “you can’t make anything idiot-proof because nature keeps making better idiots.” So goes the NC legislature.

      • TS

        @AJ

        As long as they’re leading the way in setting useful precedents for registrants to use in cases…you get the point.

  3. AJ

    @Lovecraft:
    This is the case I had in mind as being the one you referenced.

    • Lovecraft

      @AJ

      Yep you guessed right. This win really opens a can of worms especially for awa/sorna. I love the judges response, all in all a good win. It will be interesting to see how this plays into future cases…

      • E

        Can you spell out that can of worms for those of us who need some help? How do you see this impacting AWA??

    • TS

      Does this get appealed to NCCoA or not?

      • CR

        This is a US District Court judgement. If appealed, it would go to the US Circuit Court of Appeals (4th circuit), not to a NC state court.

        The judgement was dated 6 November. It must be appealed within 30 days.

        • TS

          Thanks @CR for the judicial system correction here. Read one, thought of another. Oops. Then, one wonders if it is going to the Fourth then. Found out soon enough in 12-13 days.

  4. Chris f

    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.

    • CR

      @Chris f — “… nc can change its process to a judicial one …” and “This means to be put on the list in the first place should also require due process by a judge”

      Due process applies to actions of the government against an individual that result in a deprivation of life, liberty or property, recognized rights and statuses. It is required of all branches of the government. It doesn’t have to be judicial, or involve a judge. Due process must also be served by the laws enacted by the legislature and the procedures conducted by the executive.

      NC can make their process for determining whether an out-of-state conviction is “substantially similar” to a reportable conviction without making it a judicial procedure.

      • Chris F (@CR)

        But the amount of due process has to be appropriate for the liberties infringed on. That is why it takes a judicial trial to civilly commit someone. With the amount of liberty lost by someone placed on the registry I do not see how less than a full blown judicial involvement would suffice. I am very interested in opinions on this to let me know what I am missing.

  5. mike r

    @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)

    • Chris F

      The case is interesting but may rely too much on the extra protections of the Hawaii constitution. Definately great references cited within though.

      They say he waived challenging privacy regarding “compilation alone infringes on his privacy rights” by not bringing that up in his violation of privacy challenge. This means challenges to privacy need to cite that old case about rap sheets being made public violating privacy because even if each piece is available somewhere public it is the government consolidation and ease of access all at once that infringes.

      While I agree that it is more about what comes after registration that needs to be challenged, I dont think initial registration can still be looked at like a drivers licence or price club. Initial registration instantly subjects someone to IML and housing assistance denial, shelter denial, as well as banishment from facebook and next door…not to mention all of the other restrictions and banishments by other states.

  6. CR

    “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.

  7. mike r@Chris

    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.

  8. TS

    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/

  9. Edie

    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…..

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