Standley v. Town of Woodfin , 186 N.C. App. 134 ( 2007 )

ELMORE, Judge.

David Standley (plaintiff) appeals a judgment of the Buncombe County Superior Court entered 7 August 2006. For the reasons stated herein, we affirm the decision.

Plaintiff resides with his mother in the Town of Woodfin (Woodfin) in Buncombe County. In 1987, while living in Florida, plaintiff was convicted of attempted sexual battery and aggravated assault against a woman, making him subject to the North Carolina Sex Offender & Public Protection Registry (the Registry). The Registry requires individuals who have committed an offense against a minor or a sexually violent offense to register as sex offenders. N.C. Gen. Stat. §§ 14-208.6(4), 14-208.7(a) (2005). Plaintiff served three and a half years of his nine-and-a-half-year sentence; the remaining six years of his sentence were suspended and he was placed on supervised probation. In 1995, plaintiff was convicted of solicitation of prostitution. As a result, his probation was revoked. In 1999, plaintiff was unconditionally released. In 2004, he moved to Buncombe County, where he registered with the Registry at the sheriffs office as required by N.C. Gen. Stat. § 14-208.7.

Plaintiff suffered a stroke in 1998, as a result of which he never travels without his mother. Plaintiff frequented the Woodfin Riverside Park, always with his mother and sometimes with other family members as well.

Plaintiff challenged an ordinance, enacted on 19 April 2005, that prohibits registered sex offenders from knowingly entering any public park owned and operated by defendant-appellee Woodfin (the ordinance). The ordinance states, in relevant part,

It shall constitute a general offense against the regulations of the Town of Woodfin for any person or persons registered as a sex offender with the state of North Carolina and or any other state or federal agency to knowingly enter into or on any public park owned, operated, or maintained by the Town of Woodfin.

Woodfin, N.C., Ordinances § 130.03 (19 April 2005). Prior to the enactment of the ordinance, two incidents of sexual offenses occurred in or near two of the three public parks in Woodfin. Plaintiff and Woodfin¹ filed motions for judgment on the pleadings and summary judgment. The Buncombe County Superior Court granted Woodfin’s motion for summary judgment. Plaintiff appeals.

We review the trial court’s decision de novo. Magnolia Mfg. of N.C. v. Erie Ins. Exch. Ins., 179 N.C. App. 267, 277, 633 S.E.2d 841, 847 (2006) (citing Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004)). “Alleged errors of law are subject to de novo review on appeal.” Falk Integrated Tech., Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 574 (1999) (citation omitted). Rulings on motions for judgment on the pleadings under N.C. Gen. Stat. § 1A-1, Rule 12(c) are also reviewed de novo. Toomer v. Branch Banking & Tr. Co., 171 N.C. App. 58, 66, 614 S.E.2d 328, 335 (2005) (citations omitted).

Plaintiff first argues that the ordinance violates his fundamental right to travel through “public spaces,” protected by the due process clause of the Fourteenth Amendment. He also argues that the ordinance denies him his constitutional freedom to intrastate travel as recognized in Williams v. Fears, 179 U.S. 270, 274, 45 L. Ed. 186, 188 (1900) (finding that “the right, ordinarily, of free transit from or through the territory of any state is a right secured by the 14th Amendment”).

Substantive due process is not a blanket protection. In Doe v. City of Lafayette, Ind., the United States Court of Appeals for the Seventh Circuit found that the right to enter public parks for “innocent, recreational purposes” is not a fundamental right. 377 F.3d 757, 771 (7th Cir. 2004).

In Willis v. Town of Marshall, N.C., the United States Court of Appeals for the Fourth Circuit noted the division on the issue of whether intrastate travel is a fundamental right, but did not reach a conclusion. 426 F.3d 251, 265 (4th Cir. 2005) (comparing Lutz v. City of York, 899 F.2d 255, 259-68 (3d Cir. 1990) in which intrastate travel is a recognized fundamental right, with Doe, 377 F.3d at 770-71, which rejects sex offenders’ claim to a fundamental right to access public parks). However, the Willis court points to the general rule that courts “must be reluctant to expand the concept of substantive due process because guideposts ... in this uncharted area are scarce and open-ended,” and courts run the risk of turning the due process clause into a personal preference policy instrument forjudges. Willis, 426 F.3d at 266-67 (quotations and citations omitted).

The right to intrastate travel is a “right of function.” Johnson v. City of Cincinnati, 310 F.3d 484, 498 (6th Cir. 2002). We therefore hold that the right to enter parks is not encompassed by either the fundamental right of travel or the right to intrastate travel. The ordinance does not infringe upon plaintiff’s fundamental right to intrastate travel because it does not impair his daily functions. The ordinance does not prevent plaintiff from enjoying the open air with his mother and his friends in other locations if he so desires: it is restrictive only as to defendant’s public parks.

Plaintiff further argues that the ordinance is not rationally related to a legitimate government interest and thus violates his substantive due process rights. He claims that although the intent of the ordinance is to protect children who use Woodfin’s park system, the ordinance prohibits all registered sex offenders from entering those parks. The town minutes from a meeting to consider the ordinance recognize child safety as one of the concerns, but do not definitively point to the safety of children as the main purpose of the ordinance. Plaintiff argues that he has never committed a crime against a child, nor has he been accused of engaging in any kind of indecent behavior directed at a child or anyone else while visiting any park in Woodfin.

“[N] arrow tailoring is required only when fundamental rights are involved. The impairment of a lesser interest . . . demands no more than a ‘reasonable fit’ between governmental purpose . . . and the means chosen to advance that purpose.” Reno v. Flores, 507 U.S. 292, 305, 123 L. Ed. 2d 1, 18 (1993). Substantive due process serves to protect individuals from arbitrary government actions that lack “reasonable justification in the service of a legitimate government objective.” Dobrowolska v. Wall, 138 N.C. App. 1, 14, 530 S.E.2d 590, 599 (2000) (quotations and citation omitted).

In State v. Stewart, this Court found overbroad a North Carolina law prohibiting motorists from shining light into the area past a roadway during certain hours, effectively prohibiting cars from having their headlights on during those times. 40 N.C. App. 693, 696-97, 253 S.E.2d 638, 640-41 (1979). The law constituted an “arbitrary interference with otherwise innocent conduct and lack[ed] any rational . . . relation to the . . . general welfare.” Id. at 697, 253 S.E.2d at 641. Having found the law overbroad, this Court did not consider whether or not intrastate travel was a fundamental right. Id. at 698, 253 S.E.2d at 641.

Plaintiff’s assertion that the intended purpose of the ordinance is the protection of children is tenuous. The text of the resolution adopting the ordinance suggests a broader reach:

Whereas the Town of Woodfin maintains a park system that is meant for the peaceful enjoyment of children and other citizens, and;

Whereas it is in the interest of promoting the general welfare and safety of the people of Woodfin ....

Thus, plaintiff’s claim that the ordinance was intended only to protect children is unpersuasive. Even if we were to find that the right to access public parks is a fundamental right, which we expressly decline to do, the ordinance is rationally related to the legitimate government interest it aims to address.

The United States Supreme Court has specifically recognized the inherent danger of reintegrating sex offenders into society. In Conn. Dep’t of Pub. Safety v. Doe, the Court stated that “[s]ex offenders are a serious threat in this Nation. The victims of sex assault are most often juveniles, and when convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sex assault.” 538 U.S. 1, 4, 155 L. Ed. 2d 98, 103 (2003) (quotations and citations omitted).

By restricting only registered sex offenders from entering public parks, which are frequented by children and other citizens, the ordinance promotes the general welfare and safety of Woodfin’s citizens, which is a legitimate government purpose. Thus, we find the ordinance to be rationally related to a legitimate government purpose.

Plaintiff next argues that the ordinance is punitive in a way that would violate the ex post facto clause, and relies on the five-part test adopted in Smith v. Doe: (1) whether it “promotes the traditional aims of punishment”; (2) whether the law was “regarded in history and tradition as punishment”; (3) whether it “imposes an affirmative disability or restraint”; (4) whether it “has a rational connection to a nonpunitive purpose”; or (5) whether it “is excessive with respect to [that] purpose.” Smith v. Doe, 538 U.S. 84, 97, 155 L. Ed. 2d 164, 180 (2003) (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 9 L. Ed. 2d 644, 661 (1963) (considering two additional factors not considered in Smithy).

The Mendoza-Martinez factors should only be used in the absence of conclusive evidence of legislative intent. Mendoza-Martinez, 372 U.S. at 169. 9 L. Ed. 2d at 661. “[W]e will reject the legislature’s manifest intent only where a party challenging the statute provides the clearest proof that the statutory scheme is so punitive either in purpose or effect as to negate the State’s intention.” Kansas v. Hendricks, 521 U.S. 346, 361, 138 L. Ed. 2d 501, 515 (1997) (internal quotations, citations, and alterations omitted). As previously noted, the town meeting minutes reveal a non-punitive intention to maintain the parks for the enjoyment and safety of the people of Woodfin.

Plaintiff argues that despite its lack of punitive intent, the ordinance is punitive in effect. Plaintiff focuses mainly on the assertion that the ordinance promotes deterrence and retribution. He also argues that the ordinance has the effect of banishing him from pub-. lie spaces, which he argues has been traditionally regarded as punishment throughout history. However, the case upon which he relies for this assertion refers to banishment in terms of “forfeiture of citizenship,” which is not at issue here. See Mendoza-Martinez, 372 U.S. at 168 n.23, 9 L. Ed. 2d at 661.

Plaintiff also reiterates that the ordinance is not narrowly tailored to serve its nonpunitive purpose. He reasons that it could create a false sense of security because children may be molested by someone that they know. However, in Smith, the Supreme Court found that “[a] statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance.” Smith, 538 U.S. at 103, 155 L. Ed. 2d at 183 (finding that a statute requiring registration of sex offenders was nonpunitive, serving the purpose of public safety).

Restrictions on a person’s activities may be imposed without being punitive. The ordinance does not subject registered sex offenders to affirmative disability or restraint; they may still travel freely and attend to their daily functions. Thus, plaintiffs arguments that the ordinance is punitive in effect are not convincing. The ordinance, being neither punitive in intent nor effect, does not violate the ex post facto clause.

“The police power of the State is broad enough to sustain the promulgation and fair enforcement of laws designed to restore the right of safe travel by temporarily restricting all travel, other than necessary movement reasonably excepted from the prohibition.” State v. Dobbins, 277 N.C. 484, 499, 178 S.E.2d 449, 458 (1971). This police power “extends to all the compelling needs of the public health, safety, morals and general welfare.” Id. at 497, 178 S.E.2d at 457. Though a city does not have inherent police power, this power is delegated by statute to cities in North Carolina: “A city may by ordinance define, prohibit, regulate, or abate acts . . . detrimental to the health, safety, or welfare of its citizens . . . .” N.C. Gen. Stat. § 160A-174 (2005). This Court has held that municipalities may regulate within their boundaries for the purpose of protecting public property. Slavin v. Town of Oak Island, 160 N.C. App. 57, 60, 584 S.E.2d 100, 102 (2003); see also Euclid v. Amber Realty, 272 U.S. 364, 395, 71 L. Ed. 303, 314 (1926) (“[Bjefore the ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.”) (citations omitted).

The North Carolina Supreme Court held in Dobbins that although individuals have “the right to travel upon the public streets of a city” as protected by the due process clause, this freedom may be regulated “when reasonably deemed necessary to the public safety, by laws reasonably adapted to the attainment of that objective.” Dobbins, 277 N.C. at 497, 178 S.E.2d 456. The Court balances the police power of the State with the right to travel

by the process of locating many separate points on either side of the line. So long as this Court sits, it will be engaged in that process, but it is not necessary or appropriate in the present instance to attempt to draw sharply, throughout its entire length, the line between the right of the individual to travel and the authority of the State to limit travel.

Id. at 497-98, 178 S.E.2d 457. Here, as in Dobbins, the ordinance falls on the side of a reasonable restriction.

We also note that “[a] facial challenge to a legislative Act is ... the most difficult challenge to mount successfully.” United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 707 (1987). “The presumption is that any act passed by the legislature is constitutional, and the court will not strike it down if [it] can be upheld on any reasonable ground.” Ramsey v. Veterans Commission, 261 N.C. 645, 647, 135 S.E.2d 659, 661 (1964). Similarly, “[a] municipal ordinance is presumed to be valid-” Currituck County v. Willey, 46 N.C. App. 835, 836, 266 S.E.2d 52, 53 (quotations and citation omitted).

“[T]he burden is upon the complaining party to show its invalidity or inapplicability. And a municipal ordinance promulgated in the exercise of the police power will not be declared unconstitutional unless it is clearly so, and every intendment will be made to sustain it.” Id. Plaintiff is required to show that “ ‘the ordinance does not rest upon any reasonable basis, but is essentially arbitrary;’ and ‘[i]f any state of facts reasonably can be conceived that would sustain the ordinance, the existence of that state of facts at the time the ordinance was enacted must be assumed.’ ” Id. (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 55 L. Ed. 369, 377 (1910)) (alterations omitted). Here, plaintiff has not met his burden of proof.

Because we find the ordinance to be rationally related to its intended purpose of protecting the health and safety of the citizens of Woodfin, we hold that defendant acted within its delegated police power to enact and enforce an ordinance restricting sex offenders from entering Woodfin’s public parks for the purpose of promoting citizen safety.

The order of the trial court is therefore affirmed.

Affirmed.

Judge TYSON concurs. Judge GEER dissents by separate opinion.

1 . Brett Hollomon, Chief of Police, is also a party to this case in his official capacity. Hereinafter, references to defendant-appellee Woodfin implicitly include Hollomon.