Bunch v. Britton , 802 S.E.2d 462 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-181
Filed: 6 June 2017
Wake County, No. 15-CVS-1814
WILLIAM BUNCH, III, Plaintiff,
v.
LISA BRITTON, officially and MICHAEL PROCTOR, officially, Defendants.
Appeal by plaintiff from order entered 4 December 2015 by Judge Donald W.
Stephens in Superior Court, Wake County. Heard in the Court of Appeals 22 August
2016.
Tim, Fulton, Walker & Owen, PLLC, by S. Luke Largess, for plaintiff-appellant.
Attorney General Joshua H. Stein, by Assistant Attorney General J. Joy for
defendant-appellee Britton.
Womble Carlyle Sandridge & Rice, LLP, by Scott D. MacLatchie, for defendant-
appellee Proctor.
STROUD, Judge.
Plaintiff appeals a trial court order dismissing plaintiff’s action with prejudice.
Defendants each raised several defenses, and the trial court dismissed plaintiff’s
claims as to both defendants without stating the legal rationale for the dismissal.
Because plaintiff has asserted constitutional violations of liberty interests and equal
protection under Article I, Section 19 of the North Carolina Constitution, these claims
are not barred by sovereign or governmental immunity. Plaintiff also had standing
BUNCH V. BRITTON
Opinion of the Court
to bring all of his claims except his claim for injunctive relief. But plaintiff’s liberty
interest claim ultimately fails because he was afforded due process as to his sex
offender registration though he failed to exercise his statutory right in Michigan to
request removal from the registry before he moved to North Carolina. Plaintiff’s
equal protection claim fails because the State of North Carolina treated plaintiff
exactly as it treats all individuals who have final convictions that require sex offender
registration in other states. Because ultimately both of plaintiff’s claims fail on the
face of the complaint, we affirm the trial court’s order of dismissal.
I. Background
In February of 2012, “[a]fter consulting with the local sheriff,” plaintiff
compulsorily registered as a sex offender in Cleveland County, North Carolina. In re
Bunch, 227 N.C. App. 258, 259, 742 S.E.2d 596, 598 (2013) (“Bunch I”). Plaintiff then
petitioned “to terminate his registration requirement” and ultimately prevailed. Id.
Thereafter, plaintiff filed a civil action, this action, against two government
employees whom he alleged had wrongfully compelled his unnecessary registration.
To understand the background of plaintiff’s current appeal, we turn first to plaintiff’s
original action for termination of his registration as a sex offender. See generally In
re Bunch, 227 N.C. App. 258, 742 S.E.2d 596 (2013) (“Bunch I”).
A. Bunch I
In Bunch I
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[i]n April 1993, when he was seventeen years old,
petitioner pleaded guilty to third-degree criminal sexual
conduct in Wayne County, Michigan for sexual intercourse
with a female between the ages of thirteen and fifteen. In
Michigan, consensual sexual intercourse between a
seventeen-year-old and a person at least 13 years of age
and under 16 years of age constituted criminal sexual
conduct in the third degree. Petitioner has no other
convictions that could be considered reportable sexual
offenses.
Nine years later, in July 2002, petitioner’s son was
born. When his son was seven years old, the Circuit Court
for the County of Wayne, Michigan, awarded petitioner
sole custody of his child, by order entered 5 November
2009. On 18 January 2012, the Michigan court entered an
order allowing petitioner to change the domicile of his child
to North Carolina, and petitioner and his son moved to
North Carolina. After consulting with the local sheriff,
petitioner registered with the North Carolina Sex Offender
Registry on 8 February 2012. He then filed a petition to
terminate his registration requirement in superior court,
Cleveland County. On 7 June 2012, the superior court held
a hearing on his petition, wherein petitioner was
represented by counsel and the State was represented by
the elected District Attorney for Cleveland County.
At the hearing, petitioner presented the records of
his Michigan conviction and records relating to the custody
of his son and argued that he was never required to register
in North Carolina because the offense for which he was
convicted in Michigan is not a reportable conviction, or
even a crime, in North Carolina; was not a reportable
conviction in Michigan in 1993; and has not been a
reportable conviction in Michigan since 1 July 2011. In
addition, petitioner presented evidence that he met all
requirements under N.C. Gen. Stat. § 14–208.12A for
termination of registration other than ten years of
registration in North Carolina. The State presented no
evidence and made no argument. After considering the
documents and petitioner’s argument, the trial court
announced that it was granting the petition on the basis
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Opinion of the Court
that petitioner was never required to register in North
Carolina, rather than on the passage of time. Again, the
State registered no objection to the trial court’s decision. At
the close of the hearing, the trial court executed an order
on the preprinted form entitled Petition and Order for
Termination of Sex Offender Registration, AOC–CR–263,
Rev. 12/11 granting the petition, but also directed
petitioner’s attorney to prepare a more detailed order
including the court’s rationale as stated in the rendition of
the order in open court for allowing termination of
petitioner’s registration. The trial court entered its full
written order on 19 June 2012. The State filed written
notice of appeal from the 19 June order on 19 July 2012.
227 N.C. App. 258, 259–60, 742 S.E.2d 596, 597–98 (citations, quotation marks, and
brackets omitted).
This Court dismissed the State’s appeal because it had not preserved the issue
before the trial court. Id. at 259, 742 S.E.2d at 597. The State then petitioned the
Supreme Court for discretionary review which was denied. See In re Bunch, 367 N.C.
224, 747 S.E.2d 541 (2013). Thus, ultimately the trial court’s order was upheld for
plaintiff to be removed from the sex offender registry. See generally Bunch I, 227 N.C.
App. 258, 742 S.E.2d 596, disc. rev. denied, 367 N.C. 224, 747 S.E.2d 541. With this
background in mind, we turn to the action before us.
B. This Case
In August of 2015, plaintiff filed an amended complaint against Ms. Lisa
Britton, “supervisor or head administrator of the State’s sex offender registration
program[,]” for the State Bureau of Investigation in the Department of Public Safety
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Opinion of the Court
and Mr. Michael Proctor, “administrator of the sex offender registration program” for
the Cleveland County Sheriff’s Department, based upon his requirement to register
which was ultimately overturned in Bunch I. See id. Plaintiff alleged that when he
moved to North Carolina he was contacted by defendant Proctor. Defendant Proctor
informed plaintiff he would need to register as a sex offender. Plaintiff explained to
defendant Proctor that he did not believe he should have to register because “his
offense in Michigan was not a crime in North Carolina and was no long[er] a
mandatory sex registry offense in Michigan[.]” Defendant Proctor informed plaintiff
that if he did not register, he would be arrested.
To avoid arrest and criminal prosecution, on 8 February 2012, plaintiff
registered “under protest.” Thereafter, plaintiff was barred from going to his son’s
school and accompanying his son to the doctor and was required to move because his
apartment was too close to a daycare facility. Plaintiff brought these claims under
Article I, Section 19 of the North Carolina Constitution regarding violations of his
liberty interests and equal protection. Plaintiff requested damages in excess of
$10,000.00.
In September 2015, defendant Proctor answered plaintiff’s complaint and pled
the affirmative defenses of sovereign immunity based on allegations of the Sheriff’s
Office’s lack of liability insurance coverage; estoppel; plaintiff’s failure to mitigate
his damages; and failure to state a claim upon which relief could be granted. Also in
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Opinion of the Court
September 2015, defendant Britton filed a motion to dismiss plaintiff’s amended
complaint under North Carolina Rules of Civil Procedure 12(b)(1) for lack of subject
matter jurisdiction due to sovereign and governmental immunity and Rule 12(b)(6)
for failure to state a proper claim. In November of 2015, defendant Proctor filed a
motion for judgment on the pleadings, citing North Carolina Rule of Civil Procedure
12(c), “on the grounds the Amended Complaint on file herein fails to state a claim
upon which relief may be granted in that Plaintiff was properly advised of state law
requirements for sex offender registration upon relocating to North Carolina.” On 4
December 2015, the trial court allowed defendants’ motions to dismiss. Thus, all
claims were dismissed with prejudice. Plaintiff appeals.
II. Basis for Dismissal
The entire substance of the trial court’s order dismissing plaintiff’s claims
reads:
This matter is before the Court upon Defendant
Britton’s motions to dismiss pursuant to Rule 12(b)(1) and
12(b)(6). The Defendant’s motions are allowed and claims
against Britton are dismissed with prejudice.
This matter is also before the Court upon Defendant
Proctor’s motion for judgment on the pleadings pursuant to
Rule 12(c). The Defendant’s motion is allowed and claims
against Proctor are dismissed with prejudice.
So ordered this, the 1st day of December, 2015.
Thus, the trial court allowed defendant Britton’s motion under North Carolina Rule
of Civil Procedure 12(b)(1) and (b)(6) and defendant Proctor’s motion under North
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Opinion of the Court
Carolina Rule of Civil Procedure 12(c). Plaintiff makes several arguments on appeal,
but we first consider plaintiff’s last argument relating to dismissal based upon North
Carolina Rule of Civil Procedure 12(b)(1).
A. Dismissal for Lack of Subject Matter Jurisdiction under Rule 12(b)(1)
We first note that since the trial court did not specifically identify the legal
basis for the dismissal, and defendants raised several different grounds for dismissal,
we must consider each possible rationale. We will start with sovereign or
governmental immunity, since if defendants are protected by sovereign or
governmental immunity, the court has no subject matter jurisdiction over plaintiff’s
claims, and jurisdiction is the essential prerequisite for any claim. See Hentz v.
Asheville City Bd. of Educ., 189 N.C. App. 520, 522, 658 S.E.2d 520, 521–22 (2008)
(“Subject matter jurisdiction is a prerequisite for the exercise of judicial authority
over any case or controversy.”).
Plaintiff has sued both defendants in their official capacities, and not in their
individual capacities. “[A] suit against a defendant in his official capacity means that
the plaintiff seeks recovery from the entity of which the public servant defendant is
an agent.” Meyer v. Walls, 347 N.C. 97, 110, 489 S.E.2d 880, 887 (1997) (citation
omitted). We note that when a county or county agency is the named defendant, the
immunity is appropriately identified as governmental immunity; conversely, the
doctrine of sovereign immunity applies when suit is brought against the State or one
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Opinion of the Court
of its agencies. See id. at 104, 489 S.E.2d at 884. (“Under the doctrine of sovereign
immunity, the State is immune from suit absent waiver of immunity. Under the
doctrine of governmental immunity, a county is immune from suit for the negligence
of its employees in the exercise of governmental functions absent waiver of
immunity.” (citation omitted)).1
Only plaintiff’s last argument addresses the dismissal under Rule 12(b)(1),
based upon sovereign immunity. Plaintiff contends that he “[p]roperly [n]amed
[a]ppellees in [t]heir [o]fficial [c]apacities[.]” Defendant Britton argues that there
were actually three reasons the trial court properly dismissed pursuant to Rule
12(b)(1) because “[p]laintiff did not allege or identify any waiver of sovereign
immunity[,]” “failed to allege sufficient facts in the amended Complaint to establish
that there is no adequate remedy available to him such that a direct claim under the
Constitution would be allowable[,]” and “lacks standing to bring the amended
Complaint or request declaratory or injunctive relief.”
Rule 12(b)(1) permits a party to contest, by motion, the jurisdiction of the trial
court over the subject matter in controversy. See N.C. Gen. Stat. § 1A-1, Rule 12(b)(1)
(2015).
Rule 12(b)(1) of the Rules of Civil Procedure allows
for the dismissal of a complaint due to a lack of jurisdiction
1 Although both defendants raised the defense of sovereign or governmental immunity,
defendant Proctor did not address this argument on appeal, and thus we will not either. We are also
uncertain whether the trial court considered the defense of immunity as to defendant Proctor since
the order says only that his motion was allowed under Rule 12(c).
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Opinion of the Court
over the subject matter of the claim or claims asserted in
that complaint. The standard of review on a motion to
dismiss under Rule 12(b)(1) for lack of jurisdiction is de
novo.
State ex rel. Cooper v. Seneca-Cayuga Tobacco Co., 197 N.C. App. 176, 181, 676 S.E.2d
579, 583 (2009) (citation, quotation marks, and brackets omitted).
1. Sovereign Immunity
Defendant Britton argues that
[i]n the Complaint filed by Plaintiff, Defendant
Britton, an employee of the State Bureau of Investigation
(hereinafter ‘SBI’) was sued in her official capacity. As
such, in her official capacity Defendant Britton is immune
from suit absent a waiver. . . .
In order to withstand a motion to dismiss for failure
to state a cause of action against government actors, the
complaint must allege a valid waiver of immunity. . . . To
establish a waiver of sovereign immunity a plaintiff must
specifically allege a waiver in his complaint.
But our courts have thoroughly addressed similar issues and ultimately
determined that sovereign immunity is not a bar to a constitutional claim based upon
Article I of the North Carolina Constitution:
As a general rule, the doctrine of governmental, or
sovereign immunity bars actions against, inter alia, the
state, its counties, and its public officials sued in their
official capacity. Thus, a state may not be sued unless it
has consented by statute to be sued or has otherwise
waived its immunity from suit.
In the present case, defendants are state officials
sued in their official capacity. As they contend on appeal,
defendants have not expressly waived sovereign immunity.
Defendants further contend that there is no statutory
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Opinion of the Court
waiver applicable to plaintiff’s claim and that the common
law waiver of sovereign immunity identified by our
Supreme Court in Corum v. University of North Carolina,
330 N.C. 761, 413 S.E.2d 276 (1992), does not apply to
plaintiff’s claim in the present case. We disagree.
In Corum, our Supreme Court held that the doctrine
of sovereign immunity cannot stand as a barrier to North
Carolina citizens who seek to remedy violations of their
rights guaranteed by the Declaration of Rights of our
Constitution]. . . .
....
Following Corum, in Peverall v. County of Alamance,
154 N.C. App. 426, 573 S.E.2d 517 (2002), this Court noted
that it is well established that sovereign immunity does not
protect the state or its counties against claims brought
against them directly under the North Carolina
Constitution. In Sanders v. State Personnel Comm’n, 183
N.C. App. 15, 644 S.E.2d 10 (2007), this Court again held
that sovereign immunity is not available as a defense to a
claim brought directly under the state constitution.
However, relying on this Court’s opinion in
Petroleum Traders Corp. v. State, 190 N.C. App. 542, 660
S.E.2d 662 (2008), defendants argue that the holding in
Corum does not apply to plaintiff’s action in the present
case because plaintiff’s action arises under Article IX,
rather than Article I, of our Constitution. In Petroleum
Traders, we noted that our appellate courts have applied
the holding of Corum to find a waiver of sovereign
immunity only in cases wherein the plaintiff alleged a
violation of a right protected by the Declaration of Rights.
Our opinion in Petroleum Traders distinguished the
holdings in Sanders and Peverall, noting that the plaintiffs
in those cases, as in every other case waiving sovereign
immunity based on Corum, alleged a violation of a right
protected by the Declaration of Rights. Corum contains no
suggestion of an intention to eliminate sovereign immunity
for any and all alleged violations of the N.C. Constitution.
Accordingly, we concluded in Petroleum Traders that
Corum is properly limited to claims asserting violation of
the plaintiff’s personal rights as set out in the N.C.
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Constitution Declaration of Rights.
....
. . . [O]ur Supreme Court again addressed the issue
of waiver of sovereign immunity as against constitutional
claims in Craig v. New Hanover Cty. Bd. of Educ., 363 N.C.
334, 678 S.E.2d 351 (2009). In Craig, our Supreme Court
stated, [t]his Court could hardly have been clearer in its
holding in Corum: In the absence of an adequate state
remedy, one whose state constitutional rights have been
abridged has a direct claim against the State under our
Constitution. Our Supreme Court emphasized that Corum
clearly established the principle that sovereign immunity
could not operate to bar direct constitutional claims. In
Craig, our Supreme Court allowed the plaintiff to proceed
on his constitutional claims, including not only two claims
under Article I, but also one claim under Article IX of our
Constitution. Our Supreme Court expressed that to hold
otherwise would be contrary to our opinion in Corum and
inconsistent with the spirit of our long-standing emphasis
on ensuring redress for every constitutional injury.
Notably, our Supreme Court did not hold that the
defendant’s assertion of sovereign immunity in Craig
barred the plaintiff’s Article IX claim.
....
In light of this line of cases allowing constitutional
claims to proceed against the State under Article IX of our
Constitution, we have likewise uncovered no case in which
a plaintiff's Article IX constitutional claim was barred by
the defense of sovereign immunity. Moreover, in reviewing
the merits of the plaintiff school boards’ claims in these
cases, neither this Court nor our Supreme Court has
acknowledged the possibility that sovereign immunity
might bar the plaintiffs’ constitutional action under Article
IX, Section 7. . . .
....
Given the long line of cases in North Carolina
allowing local boards of education to pursue constitutional
claims under Article IX, Section 7 against the State and its
agencies as described herein, and in light of our Supreme
Court’s holding in Craig allowing a plaintiff to pursue an
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Article IX claim in addition to his Article I claims despite
the defendants’ assertion of sovereign immunity, we hold
plaintiff in the present case has sufficiently alleged a
common law waiver of sovereign immunity by the State
under the principle established by our Supreme Court in
Corum for plaintiff’s direct Article IX constitutional claim.
Richmond Cnty. Bd. of Educ. v. Cowell, 225 N.C. App. 583, 587–91, 739 S.E.2d 566,
569-71 (2013) (citations, quotation marks, ellipses, and brackets omitted).
Therefore, the trial court could not have properly dismissed plaintiff’s claims under
Article I of the North Carolina Constitution pursuant to 12(b)(1) based on sovereign
or governmental immunity. See id.
2. Adequate State Remedy
Defendant Britton also contends that plaintiff’s removal from the sex offender
registry was plaintiff’s remedy, and thus the Court now has no grounds upon which
to hear his current action. Even if we assume that removal from the registry was
one form of a remedy, we disagree that this was necessarily an “adequate state
remedy,” particularly where he has alleged monetary damages and requested other
relief. One possible alternative for plaintiff to recover monetary damages from
defendants would be our State’s tort law, but such a claim would be barred by
sovereign immunity and therefore, is not an adequate State remedy. See Craig v.
New Hanover Cty. Bd. of Educ., 363 N.C. 334, 339–40, 678 S.E.2d 351, 355 (2009)
(“Here, plaintiff’s remedy cannot be said to be adequate by any realistic measure.
Indeed, to be considered adequate in redressing a constitutional wrong, a plaintiff
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Opinion of the Court
must have at least the opportunity to enter the courthouse doors and present his
claim. Under the facts averred by plaintiff here, the doctrine of sovereign immunity
precludes such opportunity for his common law negligence claim because the
defendant Board of Education’s excess liability insurance policy excluded coverage
for the negligent acts alleged. Plaintiff’s common law cause of action for negligence
does not provide an adequate remedy at state law when governmental immunity
stands as an absolute bar to such a claim. But as we held in Corum, plaintiff may
move forward in the alternative, bringing his colorable claims directly under our
State Constitution based on the same facts that formed the basis for his common law
negligence claim.” (footnote omitted)).
Plaintiff here specifically pled he “has no remedy at common law for the
conduct complained of herein. A violation of the rights enumerated in Article I of
the state constitution, the Declaration of Rights, shall be brought against a
defendant in his or her official capacity and is not subject to governmental or
sovereign immunity under Corum[.]” As a constitutional claim is plaintiff’s only way
to seek redress without invoking immunity on the part of defendants, some other
form of an “adequate state remedy” will not serve as a basis for dismissal under Rule
12(b)(1).
3. Standing
Lastly, as to Rule 12(b)(1), defendant Britton argues “[p]laintiff lacks standing
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Opinion of the Court
to bring the amended Complaint or request declaratory or injunctive relief.”
The party invoking jurisdiction has the burden of
proving the elements of standing. As a jurisdictional
requirement, standing relates not to the power of the court
but to the right of the party to have the court adjudicate a
particular dispute. North Carolina courts began to use
the term “standing” in the 1960s and 1970s to
refer generally to a party’s right to have a
court decide the merits of a dispute. Standing
most often turns on whether the party has
alleged “injury in fact” in light of the
applicable statutes or caselaw. Here, we must
also examine the forms of relief sought. See
Friends of Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc., 528 U.S.
167, 185[,] 120 S. Ct. 693, 706[,] 145 L. Ed. 2d
610, 629 (2000) (“a plaintiff must demonstrate
standing separately for each form of relief
sought”).
Cherry v. Wiesner, ___ N.C. App. ___, ___, 781 S.E.2d 871, 876, disc. rev. denied, ___
N.C. ___, 792 S.E.2d 779 (2016) (citations omitted).
Plaintiff’s complaint requested three forms of relief: (1) a declaratory
judgment that his constitutional rights were violated, (2) “[a]n injunction requiring
defendant Britton, as supervisor of the registry, to establish a p[re]-deprivation
process to allow any person facing registration a meaningful opportunity to be heard
as to whether he or she has a reportable conviction before being compelled to
register” and (3) monetary damages. (Emphasis in original.)
Our Supreme Court has further specified that an
action may not be maintained under the Declaratory
Judgment Act to determine rights, status, or other
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Opinion of the Court
relations unless the action involves a present actual
controversy between the parties. A declaratory judgment
may be used to determine the construction and validity of
a statute, but the plaintiff must be directly and adversely
affected by the statute. Most recently, our Supreme Court
has explained that a declaratory judgment should issue (1)
when it will serve a useful purpose in clarifying and
settling the legal relations at issue, and (2) when it will
terminate and afford relief from the uncertainty, insecurity
and controversy giving rise to the proceeding.
Wake Cares, Inc. v. Wake Cty. Bd. of Educ., 190 N.C. App. 1, 11, 660 S.E.2d 217, 223–
24 (2008), aff’d, 363 N.C. 165, 675 S.E.2d 345 (2009) (citations, quotation marks, and
brackets omitted). If the trial court entered a declaratory judgment stating that
defendant’s wrongful placement on the sex offender registry violated his
constitutional rights that would indeed “clarify[] and settl[e]” one portion of “the
legal relations at issue” and “terminate and afford relief from the uncertainty,
insecurity and controversy giving rise to the proceeding[;]” thus, plaintiff had
standing to request a declaratory judgment. Id.
As to plaintiff’s request for an injunction,
[i]t is well established that ordinarily an injunction will not
lie to restrain the enforcement of a statute, since the
constitutionality, defects, or application of the statute may
be tested in a prosecution for the violation of the statute.
A party has no standing to enjoin the enforcement of
a statute or ordinance absent a showing that his rights
have been impinged or are imminently threatened by the
statute.
Commodities International, Inc. v. Eure, Sec. of State, 22 N.C. App. 723, 725, 207
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S.E.2d 777, 779 (1974) (citation omitted). Plaintiff’s claim for an injunction goes
beyond asking “to restrain the enforcement of a statute” but instead asks the trial
court to order the State to establish a new legal process applicable to all future
registrants. Id. We find no legal basis for a private party to have standing to require
a specific modification of our current statutes. See generally id. Plaintiff is
requesting that one state employee, defendant Britton, be ordered to modify how
individuals are placed on the sex offender registry. This change could only occur
through changes to our current statutes, and plaintiff does not have standing to
request this relief, particularly where his registration has already been terminated,
and he cannot benefit from any such future legal process. See generally id. Thus,
the trial court properly dismissed plaintiff’s request for an injunction pursuant to
Rule 12(b)(1).
Lastly, defendant Britton argues that “Plaintiff has failed to identify any
action taken by Defendant Britton that caused any harm to Plaintiff.” “As a general
matter, the North Carolina Constitution confers standing on those who suffer
harm[.]” Mangum v. Raleigh Bd. of Adjust., 362 N.C. 640, 642, 669 S.E.2d 279, 281
(2008). Plaintiff’s complaint has sufficiently alleged harm from his compelled
registration. Whether defendant Britton is liable for that harm is a different
question, but plaintiff has identified harm caused by his registration. See generally
id. Therefore, the trial court properly granted defendant Britton’s Rule 12(b)(1)
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motion as to plaintiff’s request for an injunction. Thus, from here on, we need only
consider the trial court’s dismissal of plaintiff’s requests for declaratory judgment
and monetary damages.
B. Dismissal as to Defendant Britton under Rule 12(b)(6)
Defendant Britton also based her motion to dismiss upon Rule 12(b)(6).
The standard of review of an order granting a
12(b)(6) motion is whether the complaint states a claim for
which relief can be granted under some legal theory when
the complaint is liberally construed and all the allegations
included therein are taken as true. On a motion to dismiss,
the complaint’s material factual allegations are taken as
true. Dismissal is proper when one of the following three
conditions is satisfied: (1) the complaint on its face reveals
that no law supports the plaintiff’s claim; (2) the complaint
on its face reveals the absence of facts sufficient to make a
good claim; or (3) the complaint discloses some fact that
necessarily defeats the plaintiff’s claim. On appeal of a
12(b)(6) motion to dismiss, this Court conducts a de novo
review of the pleadings to determine their legal sufficiency
and to determine whether the trial court’s ruling on the
motion to dismiss was correct.
Burgin v. Owen, 181 N.C. App. 511, 512, 640 S.E.2d 427, 428–29 (2007) (citations and
quotation marks omitted).
Although well-pleaded factual allegations of the complaint
are treated as true for purposes of a 12(b)(6) motion,
conclusions of law or unwarranted deductions of facts are
not admitted.
A complaint is not sufficient to withstand a
motion to dismiss if an insurmountable bar to
recovery appears on the face of the complaint.
Such an insurmountable bar may consist of
an absence of law to support a claim, an
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absence of facts sufficient to make a good
claim, or the disclosure of some fact that
necessarily defeats the claim.
Mitchell v. Pruden, ___ N.C. App. ___, ___, 796 S.E.2d 77, 81 (2017) (citations and
quotation marks omitted). Both of plaintiff’s claims are based upon Article I, Section
19 of the North Carolina Constitution which provides:
Law of the land; equal protection of the laws.
No person shall be taken, imprisoned, or disseized of
his freehold, liberties, or privileges, or outlawed, or exiled,
or in any manner deprived of his life, liberty, or property,
but by the law of the land. No person shall be denied the
equal protection of the laws; nor shall any person be
subjected to discrimination by the State because of race,
color, religion, or national origin.
N.C. Const. art. 1, § 19.
1. Liberty Interests – Law of the Land
Plaintiff’s first claim was for a violation of his liberty interests. Plaintiff
contends “that he was wrongly placed on the state’s sex offender registry by Britton
and Proctor, violating his protected interest in liberty without any pre-violation
opportunity to be heard.” Before we address the parts of plaintiff’s arguments that
are properly before this Court, we must address those that are not. First, plaintiff’s
brief often focuses on when an initial determination is made that allegedly violates a
defendant’s rights, but that is simply not what happened here nor is the reasoning
applicable. Here, the initial determination that defendant was subject to registration
was made in Michigan and Michigan conveyed that information to North Carolina.
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Thus, to the extent plaintiff’s arguments rely on law or reasoning regarding due
process for initial registration as a sex offender, we will not consider these arguments.
Secondly, much of plaintiff’s brief focuses on federal or out-of-state law that simply is
not binding upon this Court, and thus we will rely upon the law cited by plaintiff that
controls in this jurisdiction. See generally Herring v. Winston-Salem/Forsyth Cty.
Bd. of Educ., 188 N.C. App. 441, 449, 656 S.E.2d 307, 313 (2008) (“Plaintiff also cites
several out-of-state cases in support of her position. However, these cases are not
binding[.]”); Soderlund v. Kuch, 143 N.C. App. 361, 370, 546 S.E.2d 632, 638 (2001)
(“We recognize that with the exception of the United States Supreme Court, federal
appellate decisions are not binding upon either the appellate or trial courts of this
State.” (citation and quotation marks omitted)). Third, plaintiff focuses on arguments
as to why he has properly pled a deprivation of his fundamental liberty interests.
Again, we take the allegations of the complaint as true, see Burgin, 181 N.C. App. at
512, 640 S.E.2d at 428, and plaintiff undoubtedly suffered from the consequences of
his registration. Plaintiff was the sole caretaker of his son and due to his status on
the sex offender registry he was unable to go on school premises, attend school
functions and doctor’s appointments with his child, and was forced to move. But even
if we assume plaintiff has properly pled a loss of some fundamental liberty interests,
plaintiff would still need to tie the violation of that interest to the government, or
more specifically here, defendants Britton and Proctor:
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BUNCH V. BRITTON
Opinion of the Court
Our courts have long held that the law of the land
clause has the same meaning as due process of law under
the Federal Constitution. Due process provides two types
of protection for individuals against improper
governmental action. Substantive due process protection
prevents the government from engaging in conduct that
shocks the conscience, or interferes with rights implicit in
the concept of ordered liberty. Procedural due process
protection ensures that when government action depriving
a person of life, liberty, or property survives substantive
due process review, that action is implemented in a fair
manner.
Substantive due process is a guaranty against
arbitrary legislation, demanding that the law shall not be
unreasonable, arbitrary or capricious, and that the law be
substantially related to the valid object sought to be
obtained. Thus, substantive due process may be
characterized as a standard of reasonableness, and as such
it is a limitation upon the exercise of the police power.
The fundamental premise of procedural due process
protection is notice and the opportunity to be heard.
Moreover, the opportunity to be heard must be at a
meaningful time and in a meaningful manner.
In order to determine whether a law violates
substantive due process, we must first determine whether
the right infringed upon is a fundamental right. If the
right is constitutionally fundamental, then the court must
apply a strict scrutiny analysis wherein the party seeking
to apply the law must demonstrate that it serves a
compelling state interest. If the right infringed upon is not
fundamental in the constitutional sense, the party seeking
to apply it need only meet the traditional test of
establishing that the law is rationally related to a
legitimate state interest.
State v. Fowler, 197 N.C. App. 1, 20–21, 676 S.E.2d 523, 540–41 (2009) (citations,
quotation marks, and brackets omitted).
Plaintiff relies primarily upon In re W.B.M., 202 N.C. App. 606, 690 S.E.2d 41
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Opinion of the Court
(2010). In W.B.M., a mother reported to the New Hanover County Department of
Social Services that she believed her child was being sexually abused during
visitation with his father. Id. at 611, 690 S.E.2d at 46. In October of 2006, the father
was interviewed and denied the allegations. Id. at 612, 690 S.E.2d at 46. The father
was not contacted again until January 2007 when he was informed that the sexual
abuse allegations had been substantiated and he would be placed on the Responsible
Individuals List (“RIL”).2 Id. at 612, 690 S.E.2d at 46.
Within 30 days of being notified of his placement on
the RIL, [the father] requested that the DSS Director
review that decision. On 27 February 2007, the DSS
Director notified [the father] that he was upholding the
decision to place [him] on the RIL.
[The father] timely requested that the District
Attorney’s office review the decision of the DSS Director.
On 24 May 2007, New Hanover County Assistant District
Attorney Connie Jordan notified [the father] that she was
upholding the DSS Director’s decision to keep [him] on the
2 “The RIL procedures are triggered by reports of suspected child maltreatment made to the
department of social services. State law places an affirmative duty on all individuals and institutions
who have cause to suspect that any juvenile is abused, neglected, or dependent to report the case of
that juvenile to the director of the department of social services in the county where the juvenile
resides or is found. Upon receipt of a report, the director of the department of social services shall
make a prompt and thorough assessment in order to ascertain the facts of the case, the extent of the
abuse or neglect, and the risk of harm to the juvenile. Within five working days of completing an
investigative assessment response that results in a determination of abuse or serious neglect, the
director must notify DHHS of the results of the assessment and must give personal written notice to
the individual deemed responsible for the abuse or serious neglect. The notice to the responsible
individual must include the following: (1) A statement informing the individual of the nature of
the investigative assessment response and whether the director determined abuse or serious neglect
or both. (2) A statement summarizing the substantial evidence supporting the director’s
determination without identifying the reporter or collateral contacts. (3) A statement informing
the individual that the individual’s name has been placed on the responsible individuals list as
provided in N.C. Gen. Stat. § 7B–311[.] (4) A clear description of the actions the individual must take
to have his or her name removed from the responsible individuals list.” In re W.B.M., 202 N.C. App.
at 607-08, 690 S.E.2d at 44 (citations, quotation marks, ellipses, and brackets omitted).
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Opinion of the Court
RIL.
On 21 June 2007, [the father] filed a Petition for
Expunction from the RIL in New Hanover County District
Court. After a hearing on 23 August and 12 September
2007, Judge Corpening denied [the father’s] expunction
request and ordered DSS attorney Dean Hollandsworth to
prepare an order with detailed findings of fact.
Although N.C. Gen. Stat. § 7B–323(d) requires that
a written order containing findings of fact and conclusions
of law be entered within 30 days after conclusion of the
expunction hearing, as of 7 July 2008, no order had been
entered.
On 7 July 2008, [the father] filed a Motion to Remove
Kelly Holt’s Name from the Responsible Individual’s List,
alleging, inter alia, that N.C. Gen. Stat. § 7B–323 is
unconstitutional. On 30 July 2008, a written order denying
Petitioner’s Petition for Expunction was entered. Also on
that date, a hearing on Petitioner’s Motion to Remove was
held, and the trial court orally denied the motion. On 17
October 2008, the trial court entered a written order
denying Petitioner’s Motion to Remove and declining to
find at this stage of the proceeding that N.C. Gen. Stat. §
7B–323 is unconstitutional. From the 30 July and 17
October 2008 orders, [the father] appeal[ed].
Id. at 613, 690 S.E.2d at 46–47 (quotation marks and brackets omitted).
This Court analyzed the procedures by which an individual is placed on and
potentially removed from the RIL and noted there were three distinct stages of
review: DSS, district attorney, and the trial court. Id. at 607-10, 690 S.E.2d at 43-45.
At every level of review, the reviewer had the responsibility to review the facts and
the discretion to determine if the individual should be or remain on the list, id. at
608-10, 690 S.E.2d at 44-45, and though in W.B.M., this Court ultimately determined
that due process had been violated, id. at 623-24, 690 S.E.2d at 53, the review process
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Opinion of the Court
renders W.B.M. entirely distinguishable from this case. Contrast id., 202 N.C. App.
606, 690 S.E.2d 41. In W.B.M., three entities had the discretion and ability to either
place or leave the father on the RIL and remove him from it. Id. at 608-10, 690 S.E.2d
at 44-45. That is not the case here. See N.C. Gen. Stat. § 14-208.7(a) (2011).
Here, North Carolina General Statute § 14-208.7(a) mandates that
[a] person who is a State resident and who has a
reportable conviction shall be required to maintain
registration with the sheriff of the county where the person
resides. If the person moves to North Carolina from
outside this State, the person shall register within three
business days of establishing residence in this State, or
whenever the person has been present in the State for 15
days, whichever comes first.
Id. A reportable conviction is
[a] final conviction in another state of an offense, which if
committed in this State, is substantially similar to an
offense against a minor or a sexually violent offense as
defined by this section, or a final conviction in another state
of an offense that requires registration under the sex
offender registration statutes of that state.
N.C. Gen. Stat. § 14-208.6(4)(b) (2011) (emphasis added).
The trial court ultimately concluded that “no sex offender registration should
have ever been required in North Carolina[.]” Thus, the alleged violations of due
process against plaintiff occurred between the time he was required to register, in
February of 2012 until June of 2012, when the trial court ordered that his registration
be terminated. But unlike in W.B.M., no discretionary reviews took place between
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BUNCH V. BRITTON
Opinion of the Court
February and June of 2012. Contrast W.B.M., 202 N.C. App. 606, 690 S.E.2d 41.
Plaintiff’s own complaint admits he was aware he had to register as a sex
offender, that he did so in Michigan, and that when the Michigan law changed such
that his conviction would no longer require registration, he unsuccessfully attempted
to have his criminal conviction overturned in Michigan. Thus, plaintiff does not
dispute that he had “a final conviction in another state of an offense” which at one
time required registration under the statutes of Michigan. When the law in Michigan
changed and plaintiff was no longer required to be on the registry in Michigan,
plaintiff does not allege that he took the proper steps to be removed from the registry
in Michigan, and because of this failure, plaintiff’s complaint must fail.
While plaintiff seeks to lay the blame upon defendants Britton and Proctor for
his time on the sex offender registry, unfortunately for plaintiff, our law does not give
defendants any discretion in placing an individual on the sex offender registry. See
N.C. Gen. Stat. § 14-208.7(a). The portion of our statutes which required plaintiff’s
registration was mandatory. See id.; see also N.C. Gen. Stat. § 14-208.6(4)(b). But
plaintiff actually did have both the ability and most importantly for a due process
analysis, the opportunity to keep this hardship from taking place before his Michigan
registration reached North Carolina. See Fowler, 197 N.C. App. at 20, 676 S.E.2d at
540. Michigan law allows registrants such as plaintiff to petition to be removed from
the sex offender registry. Mich. Comp. Laws. Ann. §28.728C (2011). Plaintiff failed
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Opinion of the Court
to petition to be removed from the Michigan registry.
Plaintiff makes many broad arguments regarding our Constitution and the
fundamental rights of citizens to be heard before they are deprived of basic liberties,
but the facts here are really quite simple: Plaintiff was afforded due process when he
pled guilty to a crime in Michigan that required registration. Later, Michigan law
changed, plaintiff’s offense no longer required registration, and plaintiff had the
opportunity to request removal from the sex offender registry in Michigan. Plaintiff
then failed to exercise his statutory right in Michigan to request removal from the
registry and moved to North Carolina where the law requires him to register because
of his Michigan conviction and registration.3
We agree with the trial court that plaintiff failed to state a claim that his
liberty interests were violated by defendant Britton since the state of Michigan gave
plaintiff the opportunity to be heard and avoid any wrongful deprivation due to the
change in statute, but plaintiff failed to exercise that opportunity. Thus, plaintiff is
not entitled to a declaratory judgment that “his liberty interest” was violated by
defendant Britton nor is plaintiff entitled to monetary relief from defendant Britton,
who was performing a non-discretionary function of her job. See generally N.C. Gen.
Stat. § 14-208.7(a). This claim was properly dismissed as defendant Britton
demonstrated that plaintiff “fail[ed] to state a claim upon which relief [could] be
3 Under federal law, states routinely share information regarding residents on their sex
offender registries. See generally 42 U.S.C.A. § 16911 et. seq. (2013).
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BUNCH V. BRITTON
Opinion of the Court
granted.” N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2015).
2. Equal Protection
Plaintiff’s remaining claim was for equal protection.
The Equal Protection Clause of Article I, Section 19
of the North Carolina Constitution and the Equal
Protection Clause of Section 1 of the Fourteenth
Amendment to the United States Constitution forbid North
Carolina from denying any person the equal protection of
the laws, and require that all persons similarly situated be
treated alike.
Our state courts use the same test as federal courts
in evaluating the constitutionality of challenged
classifications under an equal protection analysis. When
evaluating a challenged classification, the court must first
determine which of several tiers of scrutiny should be
utilized. Then it must determine whether the statute meets
the relevant standard of review.
Fowler, 197 N.C. App. at 26, 676 S.E.2d at 543–44 (citations, quotation marks, and
brackets omitted).
Plaintiff dedicates only two pages of his brief to his equal protection argument.
Plaintiff’s main contention is that he was treated differently than other 17-year-olds
who have had consensual sex with 15-year-olds in the state and were not required to
register. But North Carolina did not convict plaintiff of the crime of which he
complains; Michigan did. North Carolina also did not determine plaintiff was
initially required to be placed on the sex offender registry; Michigan did. Here, the
State of North Carolina actually treated plaintiff exactly as it treats all individuals
who have a “final conviction in another state of an offense that requires registration
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BUNCH V. BRITTON
Opinion of the Court
under the sex offender registration statutes of that state.” N.C. Gen. Stat. § 14-
208.6(4)(b). To the extent that Michigan no longer required such registration,
plaintiff was afforded the opportunity in Michigan to be removed, but did not do so.
Again, we agree with the trial court that plaintiff was not entitled to a declaration
that “his right to equal protection” was violated nor is plaintiff entitled to monetary
relief for defendant Britton’s performance of her duties. This claim was properly
dismissed, and this argument is overruled because plaintiff “fail[ed] to state a claim
upon which relief [could] be granted.” N.C. Gen. Stat. § 1A-1, Rule 12(b)(6).
C. Dismissal as to Defendant Proctor under Rule 12(c)
Defendant Proctor made his motion for judgment on the pleadings under Rule
12(c).4
[I]n ruling upon motions under Rule 12(b)(6) and 12(c), the
trial court must take the factual allegations of the
complaint as true. . . . The standard of review for a Rule
12(c) motion is whether the moving party has shown that
no material issue of fact exists upon the pleadings and that
he is clearly entitled to judgment.
Affordable Care, Inc. v. N. Carolina State Bd. of Dental Examiners, 153 N.C. App.
527, 532, 571 S.E.2d 52, 57 (2002). Based on the same analyses as above, plaintiff is
4
Defendant Proctor’s brief addresses the trial court’s order as an order granting summary
judgment. We were unable to determine whether the trial court relied solely upon the pleadings, as
appropriate under Rule 12(c), or if the trial court considered other documents outside the pleadings,
which could require us to consider the order as a summary judgment order – and the record did include
other documents beyond the pleadings. But since we have no transcript of the motion hearing in the
record, we have treated the order according to its terms, as an order allowing a motion for judgment
on the pleadings under Rule 12(c).
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BUNCH V. BRITTON
Opinion of the Court
not entitled to a declaratory judgment that “his liberty interest” or “his right to equal
protection” were violated by defendant Proctor nor is plaintiff entitled to monetary
relief. Like defendant Britton, defendant Proctor was performing a non-discretionary
function of his job. See generally N.C. Gen. Stat. § 14-208.7(a). This claim was
properly dismissed as defendant Proctor demonstrated “that no material issue of fact
exists upon the pleadings and that he is clearly entitled to judgment.” Id. This
argument is overruled.
III. Conclusion
For the foregoing reasons, we affirm.
Affirmed.
Chief Judge McGEE and Judge INMAN concur.
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