On May 30, 2018, Judge Biggs ordered the plaintiffs to submit a more definite statement clearly identifying the factual allegations that support each claim for relief, the specific statutory provision(s) of which plaintiffs complain, and the specific claim(s) alleged against each defendant named in the complaint.

In response, on July 6, 2018, plaintiffs’ attorney removed certain allegations of constitutional harm contained in the original complaint and filed them as a new case in the Federal District Court for the Middle District of North Carolina. That case (styled NCRSOL v. Stein) is currently before Judge William Lindsay Osteen, Jr.

On the same day, plaintiffs’ attorney filed an amended complaint that left in place all the underlying facts and legal arguments presented as Ex Post Facto claims in the original complaint.

Then we heard birds chirping by day and crickets chirping by night for more than a year. From time to time, someone would send an email or post a comment inquiring about the status of the North Carolina cases. The state got so bored it replaced its attorney. There was much wringing of hands and chattering of teeth.

Finally, on July 30, 2019, we got some long awaited and positively good news. The state’s motion to dismiss was denied. So now the hard work begins. The case moves into the discovery phase in preparation for trial.

The state’s motion to dismiss relied, as expected, primarily upon some important procedural rules included in the Federal Rules of Civil Procedure (FRCP), specifically Rule 12(b)(1), Rule 12(b)(2), and Rule 12(b)(6). So what are these rules?

Yes, this is going to sound a lot like legal mumbo jumbo. If this frustrates you, then stop reading right here! You’ve been fairly warned.

Rule 12(b)(1) states that a defendant may move a federal court to dismiss a plaintiff’s claim on the basis that the court lacks subject matter jurisdiction. In other words, the court can’t really “hear” the claim because it doesn’t have any authority over the matter being presented for consideration. This is where you may have heard it said that a plaintiff lacks standing to sue.

It is under Rule 12(b)(1) where attorneys representing the state usually include an Eleventh Amendment defense, as well. It normally comes in several forms ranging from, “The federal courts should defer to the state’s understanding of its own regulatory laws,” to, “The federal courts should not intervene in a legal dispute where there has been no fair adjudication of the matter by state-level courts,” to “The state’s statute of limitations precludes a federal court from considering a legal challenge that exceeds the time bar imposed by state law.” In most of these cases, the federal courts will often agree. But, when it comes to claims against state laws that are alleged to be unconstitutional, federal courts are duty bound to consider a challenge which alleges an ongoing violation of federal law.

Rule 12(b)(2) states that a defendant may move a federal court to dismiss a plaintiff’s claim on the basis that the court lacks personal jurisdiction. In other words, no matter what the claim is and no matter whether the court could actually “hear” the claim, the court doesn’t have any authority to enforce a judgment against the people who are named as defendants in the lawsuit. Sometimes you will hear this spoken about as immunity.

Rule 12(b)(6) states that a defendant may move a federal court to dismiss a plaintiff’s claim on the basis that the plaintiff has not presented a claim upon which relief can be granted. This rule is the kitchen sink of federal procedural rules. There are really two practical parts to it. When using Rule 12(b)(6), a defendant is trying to say one of two things, and sometimes both. The defendant is either saying that the plaintiff has not made what’s called a “cognizable claim” or that the plaintiff has not articulated any facts that support the “cognizable claim.” But, most of the time, the defendant is saying both. It’s laws and facts. And both are necessary to withstand a motion to dismiss under this procedural rule.

So what is a “cognizable claim”? A cognizable claim is one that meets the basic criteria of viability for being tried or adjudicated before a federal court and is also within the power or jurisdiction of the court to adjudicate. Simply put, your complaint has to present a claim that the court has the constitutional authority to “hear.”

What are articulated facts? These are really the most important things to demonstrate, and they are also what are most lacking, many times, in efforts to bring serious constitutional claims on behalf of the registered population. Put simply, it is not enough to say, “This is unfair,” or, “I feel bad,” or, “I don’t understand how they could do this,” because these are not articulated facts of anything. They are merely conjectural statements about feelings.

An articulated (well stated) fact looks something like this:

Plaintiff, a registered sex offender, states that he had a well-paying job with full medical benefits while working for his former employer. The state then passed a law restricting anyone on the sex offender registry from working within 300 feet of any facility where children are schooled, instructed, or cared for. As a consequence, plaintiff lost his job and his medical insurance. He is now unemployed and recently discovered he suffers from hypertension. But for the effects caused by the state’s new law, plaintiff would still have lucrative employment and the necessary insurance to seek the medical care he needs.

There’s nothing there about feelings or fairness or conjectural harm. The harm is real, the causation is obvious, and the facts are “articulated.”

You probably expected that I might spend more time explaining the state’s motion to dismiss in the NARSOL v. Stein case and walk you through the reasons why the Court saw fit to deny it. But instead, I’ve decided to write something a bit more instructional as a guide to assist you in reading through the Court’s decision to deny the state’s motion. You will understand the process—and the Court’s reasoning—a lot better if you take the time to read Judge Biggs’ Memorandum Opinion and Order.

Otherwise, the good news is that the NARSOL v. Stein case will now move forward into the most critical phase of its development, discovery. This is where we will have an opportunity to further develop the facts, provide additional statistical support, interview possible witnesses (including expert witnesses), and frustrate the state’s efforts at preparing for battle. It should be great fun!

And thank you for your patience! “The night may seem long, but it is the part of fidelity to watch and wait for the morning” (Jeff Davis, 1866).

The decision is an especially important one, possibly signaling, in Mark Stern’s words over on Slate, that “the judiciary has finally begun to view draconian sex offender laws as the unconstitutional monstrosities they obviously are.”

Here’s the case, in a nutshell. The Michigan SORA is typical of the schemes in place in all of the 50 states. Beginning in the mid-’90s, states (with federal encouragement and financial assistance) began requiring all those who had been convicted at any point in the past of having committed a “sex offense” — typically defined, as in the federal statute (42 USC 16911), as “a criminal offense that has an element involving a sexual act or sexual contact with another”** — to provide a wide range of identifying information (names, addresses, places of employment, schools being attended, vehicle make and model, etc.) to law enforcement officials. This information was then placed in state-operated, publicly accessible sex offender registry databases.

** Definitions of the “sex offenses” that require registration vary state by state. While a number of truly heinous and deplorable crimes — rape, assault, child molestation — are included, so too, as detailed in a survey by Human Rights Watch, are many lesser crimes, such as soliciting or providing adult prostitution services (five states), public urination (13 states), consensual sex between teenagers (29 states) and exposing genitals in public (32 states).

Several of these early SORAs were challenged on ex post facto grounds, on the theory that the registration and public notification schemes imposed additional punishment retroactively, i.e., on individuals whose crimes had been committed, and who had been convicted, before the SORA legislation had taken effect (and, indeed, on individuals who had completed serving whatever period of punishment and probation or parole had been imposed upon them, and who therefore, at least in theory, possessed the same constitutional rights as you or me).

The Supreme Court, however, disagreed. In Smith v. Doe, 538 US 84 (1999), the Court held that the registration and public notification provisions of Alaska’s SORA didn’t constitute ex post facto imposition of punishment because they were not “punitive,” but rather “regulatory”: “clearly intended as a civil, non-punitive means of identifying previous offenders for the protection of the public.” The “stigma and adverse community reactions” that could result from registration did not render the Act punitive because “the dissemination of the registration information, which was largely a matter of public record, did not constitute the imposition of any significant affirmative disability or restraint.”

Please see David’s full analysis at The Volokh Conspiracy in the Washington Post.

The new law bans offenders whose victims were under 18, or anyone legally deemed a threat to children, from many places kids may gather. It replaces a previous law a judge deemed too vague in 2009.

Haywood County leaders say the new law lays out specific places sex offenders can’t go.

“It would prevent people who are registered sex offenders from going into libraries, from going to schools, from going to the fairgrounds when the fair is on,” County Manager Ira Dove said.

“I think it’s good. They need to stay away,” parent Amber Williams said.

“I think once you’ve committed a crime against children, there’s no going back,” parent Heather Russell said.
The law is named after Jessica Lunsford, a 9-year-old girl from Gastonia, who was killed by a sex offender after she moved to Florida in 2005.

The new law also bars sex offenders from going within 300 feet of places like shopping centers or other public places used mainly for the care or supervision of minors.

Not everyone thinks the law is fair. The North Carolina president of “Reform Sex Offender Laws” said it’s overly restrictive, narrowly interprets “sex offender,” and calls the restrictions “unconstitutional deprivations of liberty.”

“There must be some scrutiny, some level of scrutiny that protects people who are no longer under any court order, who are no longer serving any kind of time,” Robin Vanderwall, President of the North Carolina chapter of Reform Sex Offender Laws, said.
“I understand it in that perspective. But, I still don’t think…I mean…doing better or not…they still did what they did,” Russell said.

Opponents of the law plan to fight it.

“Our essential hope, legally speaking, is to finally put the state up against the wall when it comes to the presumption of dangerousness,” Vanderwall said.

Parents remain resolved.

“No kid needs to be around that. It’s awful. It is,” Williams said.

Please see full news video on WLOS News ABC 13

Judge Alice M. Batchelder wrote for the court, joined by Judges Gilbert S. Merritt and Bernice B. Donald. Her opinion for the court begins.

Like many states, Michigan has amended its Sex Offender Registration Act (SORA) on a number of occasions in recent years for the professed purpose of making Michigan communities safer and aiding law enforcement in the task of bringing recidivists to justice. Thus, what began in 1994 as a non-public registry maintained solely for law enforcement use . . . has grown into a byzantine code governing in minute detail the lives of the state’s sex offenders . . . Over the first decade or so of SORA’s existence, most of the changes centered on the role played by the registry itself. In 1999, for example, the legislature added the requirement that sex offenders register in person (either quarterly or annually, depending on the offense) and made the registry available online, providing the public with a list of all registered sex offenders’ names, addresses, biometric data, and, since 2004, photographs. . . . Michigan began taking a more aggressive tack in 2006, however, when it amended SORA to prohibit registrants (with a few exceptions . . .) from living, working, or “loitering”1 within 1,000 feet of a school. . . . In 2011, the legislature added the requirement that registrants be divided into three tiers, which ostensibly correlate to current dangerousness, but which are based, not on individual assessments, but solely on the crime of conviction. . . . The 2011 amendments also require all registrants to appear in person “immediately” to update information such as new vehicles or “internet identifiers” (e.g., a new email account). . . . Violations carry heavy criminal penalties.

The Plaintiffs in this case—identified here only as five “John Does” and one “Mary Doe”—are registered “Tier III” sex offenders currently residing in Michigan. It is undisputed on appeal that SORA’s 2006 and 2011 amendments apply to them retroactively. That law has had a significant impact on each of them that reaches far beyond the stigma of simply being identified as a sex offender on a public registry. As a result of the school zone restrictions, for example, many of the Plaintiffs have had trouble finding a home in which they can legally live or a job where they can legally work. These restrictions have also kept those Plaintiffs who have children (or grandchildren) from watching them participate in school plays or on school sports teams, and they have kept Plaintiffs from visiting public playgrounds with their children for fear of “loitering.” Plaintiffs are also subject to the frequent inconvenience of reporting to law enforcement in person whenever they change residences, change employment, enroll (or unenroll) as a student, change their name, register a new email address or other “internet identifier,” wish to travel for more than seven days, or buy or begin to use a vehicle (or cease to own or use a vehicle).

Read full story in the Washington Post blog Volokh Conspiracy

You may also be interested in the AP story published in The Detroit News

Seven-year-old Megan Kanka left her New Jersey home on July 29, 1994, for a summer afternoon bike ride around her neighborhood, but she never returned.

Instead, neighbor Jesse Timmendequas lured her into his home by promising her a puppy. He then raped and murdered her, dumping her body in a nearby park.

The murder sparked national outrage, not least because Kanka’s parents had never been told their neighbor had two previous convictions for sexual offences against small children. It also sparked a New Jersey law and then a 1996 federal law – Megan’s Law – requiring states to notify the public about sex offenders living in their neighborhoods.

Twenty years later, the names, pictures and addresses of registered sex offenders – including 218 who live, work or attend school in Lebanon County – can be found at the Pennsylvania State Police Megan’s Law Website. Such databases remain popular: a 2013 YouGov poll found that 71 percent of women and 52 percent of men believe it is “very important” to log all sex offender’s homes in the U.S.

However, advocates for offenders say registries continue to punish them even after they have served their sentence and even advocates for victims are lukewarm in their support.

“The intent of the Megan’s Law registry is commendable,” said Jenny Murphy-Shifflet, executive director of the Sexual Assault Recourse and Counseling Center of Lebanon County (SARCC). “I understand that its goal was to reduce sexual violence. The reality is that we haven’t seen any outcomes indicating that these goals have been reached.”

False sense of security

One out of every 728 Lebanon County residents is a registered Megan’s Law offender, and most have committed violent sexual crimes like rape, indecent assault or sexual abuse of children. Those offenders are required to have their address and place of work listed on the registry for 15 years to life depending on the crime and amount of offenses.

If that seems like a scarily high number, Murphy-Shifflet said it’s probably far lower than the actual number of sexual offenders, many of whom have never been caught. In fact, that’s one of the shortcomings of Megan’s Law, she said – it can create a false sense of security to residents who don’t live near offenders.

“Megan’s Law is almost like the Scarlet letter. They think it’s going to be easy to identify (sexual offenders),” agreed Kristen Houser, chief public affairs officer for the Pennsylvania Coalition Against Rape. “The reality is, most offenders hide in plain sight.” (Read the rest of the article in the Lebanon Daily News)

In an apparently unprecedented series of events, the Kansas Supreme Court on Friday overruled three of its own opinions, also released Friday, regarding the state’s sex offender registration laws.

In three separate opinions issued Friday, the court found 2011 changes to the sex offender registry law cannot be applied retroactively to offenders convicted before the law took effect.

But then in a fourth opinion, also released Friday, the court found that those rulings were incorrect.

Attorneys across the state said they couldn’t recall a situation where the court reversed itself in rulings issued on the same day.

“We continue to study today’s peculiar group of Kansas Supreme Court decisions involving the offender registration act,” Kansas Attorney General Derek Schmidt said in a written statement. “In the coming days, we will endeavor to discern what the court actually has done and will assess all options for next steps.”

The highly unusual circumstance appear to be the result of a one-justice change in the makeup of the court.

The panel that decided the three cases concerning the 2011 changes included a senior district court judge, who sided with the majority in the 4-3 decisions. That interim judge was serving on the court while there was a vacancy.

But for the fourth case, the newest Supreme Court justice, Caleb Stegall, replaced the district court judge. That case also was decided 4-3, with Stegall casting the deciding vote.

The three justices who were part of the majority in the first three opinions became the minority in the fourth opinion.

The upshot was a finding that the Kansas law requiring lifetime registration for convicted sex offenders did not constitute additional punishment for a crime.

Therefore, the law does not violate federal or Kansas constitutional protections against cruel and unusual punishment, the court ruled in that fourth case.

In the three other cases, the court ruled that the law did constitute an additional punishment and said offenders convicted of crimes before 2011 could not have their 10-year registration periods extended to 25 years because the 25-year law took effect after they committed their crimes.

But those rulings apparently apply only to those three offenders.

Others will be governed by the fourth ruling Friday.

“While I’m happy that my client may get relief, it’s unfortunate that others similarly situated will not,” said attorney Meryl Carver-Allmond, who represented one of the men covered by the rulings on the 2011 law change.

She said it was “ludicrous” to say that the offender registry requirement is not punishment.

“The court had it right in the first instance,” said Carver-Allmond. “And it’s disappointing that the recent change in personnel steered them off course.”

Jeff Dazey, the attorney for one of the other men covered by the opinions in the 2011 law change, said he was “pleased, disappointed and somewhat perplexed” by the rulings.

“Virtually every year the Kansas legislature has modified the law to make registration more difficult and more expensive, while simultaneously increasing the penalties for failing to register and increasing the time that a person has to register,” Dazey said. “I firmly believe that applying these draconian terms and conditions on people whose initial registration duties expired is unconstitutional.”

Christopher Joseph, attorney for the third man covered by the 2011 change in the law, said it was an area of the law that is evolving.

Joseph said he “has little doubt” that courts across the country, including the U.S. Supreme Court, will ultimately agree that offender registration laws are “punitive.”

Source: The Kansas City Star