Bunch v. Britton

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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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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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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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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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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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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Opinion of the Court

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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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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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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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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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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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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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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