Bunch v. Britton, COA16-181

• Decision Date: 06 June 2017
• Docket Number: No. COA16-181,COA16-181
• Court: North Carolina Court of Appeals
• Parties: William BUNCH, III, Plaintiff, v. Lisa BRITTON, officially and Michael Proctor, officially, Defendants.

802 S.E.2d 462

William BUNCH, III, Plaintiff,

v.Lisa BRITTON, officially and Michael Proctor, officially, Defendants.

No. COA16-181

Court of Appeals of North Carolina.

Filed: June 6, 2017

Tim, Fulton, Walker & Owen, PLLC, Charlotte, 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, Charlotte, 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 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

[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 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 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 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 1^st 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 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...