NARSOL’s attorney wins important procedural due process case
By Robin . . . Jonathan Merideth moved to North Carolina in 2004 after pleading guilty to a misdemeanor sexual offense in the state of Washington. Upon arriving, Merideth checked in with the sheriff’s office in his county of residence to find out if his out-of-state conviction would require him to register as a sex offender in North Carolina. After determining that his Washington state conviction was not “substantially similar” to a registerable offense in North Carolina, Merideth was advised that he did not have to register.
Merideth would go on to live registration free for 13 years in North Carolina where he found work, began a family, and settled into a productive, post-conviction life. In 2009, Merideth moved from Person County, NC, to Wake County, NC. Again, he paid a visit to the sheriff’s office to inquire about the possibility that he might have to register, since, by that time, NC had added the electronic solicitation of a minor to its list of registerable offenses. Still, Merideth was told by a Wake County Sheriff’s deputy that he did not need to register.
But, wait. That wasn’t the end of it after all. Merideth and his family’s lives were unalterably changed in June, 2017, when the Wake County Sheriff’s office informed him that he would have to register as a sex offender or face felony consequences for failing to do so.
Faced with the possibility of serious criminal consequences (much more serious than the out-of-state conviction for which he was now determined liable to registration), Merideth dutifully registered as a sex offender. He then contacted NCRSOL and spoke with me about his new and challenging circumstances. I promptly referred him to our attorney, Paul Dubbeling.
In October, 2017, with Dubbeling as his counsel, Merideth filed a complaint to the United States District Court for the Eastern Division of North Carolina. The case drew one of the most conservative federal judges in the nation, Terrence Boyle—a Reagan appointee and close, personal friend of the late senator and conservative stalwart, Jesse Helms.
In his complaint, Merideth alleged that his placement on NC’s sex offender registry after 13 years—having twice been informed by law enforcement in two separate counties that registration was unnecessary, and then informed by the latter county that it had changed its substantially related mind—was a violation of his Fourteenth Amendment right to procedural due process.
At issue in the case was a fairly simple question: When evaluating whether a person who was convicted in another state may be required to register as a sex offender in North Carolina (N.C. Gen. Stat. § 14-208.6(4)(c)), can local law enforcement agencies make determinations about the “substantial” similarity of another state’s statute and a comparable NC statute that is included in the list of registerable offenses without any procedural guidelines or legal process? In Judge Boyle’s estimation, the answer to that question is no.
The state’s attorneys moved for dismissal of the case in May, 2018. Their ace-in-the-hole (so they thought) was arranging to have Mr. Merideth removed from the registry in an effort to moot the case. Their argument fell flat and appeared only to exacerbate an already skeptical judge who wasn’t all too pleased by the state’s back door machinations to manipulate the Court’s jurisdictional authority. The motion to dismiss was summarily denied on grounds that the important constitutional issue raised by the complaint would continue to evade review and was likely to reoccur.
Both sides moved immediately for summary judgment on the pleadings as there were no material facts in dispute and both sides felt confident of prevailing on the merits of their arguments. The state moved for summary judgment in its favor, claiming that the plaintiff lacked standing (essentially a redux of its motion to dismiss) and that the defendants were all immune from suit under the Eleventh Amendment. In his opinion, Judge Boyle efficiently disposed of the state’s arguments and denied its motion for summary judgment outright.
In finding in favor of the plaintiff’s motion for summary judgment, Judge Boyle stated, “North Carolina’s process for requiring individuals who have committed out-of-state sex offenses to register as sex offenders in North Carolina (1) deprives plaintiff of a cognizable liberty interest and (2) the procedures protecting that interest were constitutionally inadequate.”
Judge Boyle held that it is “plainly true” that requiring an individual to register as a sex offender deprives him of substantial liberty interests as a matter of law, stating, “United States citizens have a protectable right not to be placed on the sex offender registry-not to have their legal status changed so abruptly and severely-without sufficient process,” and “Where there is no process, there can be no due process” [emphasis his].
The state’s attorneys attempted to overcome plaintiff’s motion for summary judgment by arguing that sufficient process had already been provided when Merideth was first convicted in Washington state, that the declaratory judgment he sought was inadequate to provide him relief, and that any additional process he might require was already available through the state’s registry removal options.
Judge Boyle wasn’t having any of that. “The essential components of due process are prior notice and the opportunity to be heard . . . North Carolina provides neither prior notice nor a hearing. In fact, North Carolina provides nothing at all.” Judge Boyle seemed most concerned about the arbitrary determinations of local sheriffs making legal judgments in lieu of any procedures or guidelines provided by the state. “[S]ubstantial similarity has been described as a ‘question of law’ State v. Springle, 781 S.E.2d 518, 522 (N.C. Ct. App. 2016).”
In his order, Judge Boyle granted Mr. Merideth an affirmative declaration of his right to procedural due process protection and permanently enjoined the state from:
(1) Placing plaintiff on the North Carolina Sex Offender Registry without first affording him prior notice and an opportunity to be heard;
(2) Prosecuting plaintiff for any failure to comply with any North Carolina, federal, or other law or regulation applicable solely to registered sex offenders without first affording him prior notice and an opportunity to be heard on whether his previous out-of-state offense is “substantially similar” to a reportable North Carolina conviction.
While the outcome of this remarkable case only applies to Jonathan Merideth at this time, the ramifications for a thousand or more North Carolina residents is palpable. Left to be seen is whether the state attorney general’s office will file a notice of appeal to the Fourth Circuit in Richmond. And until there is a final disposition, it’s too early to decide how best to provide relief for the rest of North Carolina’s sex offender population who were required to register for out-of-state convictions without any procedural protections.
Still, the Court’s judgment is an exceptional victory for registered sex offenders in North Carolina and provides a substantial foundation on which to build. It’s also an illustration about the important relationship between an affiliate organization and competent legal counsel to whom critical cases of opportunities such as this can be quickly referred. We owe a debt of gratitude to Mr. Merideth for his courage as a named plaintiff and to attorney Paul Dubbeling for his skilled representation and winning legal strategy. Well done!