New Legislation on Sex Offender Registration for Out-of-State Offenses

In a post last year, here, I discussed some of the issues related to sex offender registration for out-of-state offenses. Among other things, I noted a federal case in which a registrant challenged the constitutionality of North Carolina’s process (or, really, lack of process) for determining whether a conviction from another state is substantially similar to a North Carolina crime requiring registration. A subsequent case prompted a legislative change that is the main subject of today’s post.

The background rule at issue is in G.S. 14-208.6(4)b.—a conviction from another state is a reportable conviction in North Carolina if it is “substantially similar to an offense against a minor or a sexually violent offense,” which are the main categories of North Carolina crimes that require sex offender registration. A version of the same rule applies for federal convictions, including convictions by court martial. G.S. 14-208.6(4)c.

In general, when a person with an offense that potentially falls within those rules moves to North Carolina (or comes home to North Carolina after being convicted of an offense elsewhere), an employee of the county sheriff’s office makes a determination as to whether that offense is substantially similar to a North Carolina crime that requires registration. In Meredith v. Stein, 355 F. Supp. 3d 355 (E.D.N.C. 2018), a federal judge said that approach violated a registrant’s due process rights and enjoined the state from putting him on the registry without giving him notice and an opportunity to be heard.

A more recent case, Grabarczyk v. Stein, No. 5:19-CV-48-BO, 2020 WL 2441418 (May 12, 2020), applies the Meredith rule to a broader class of registrants. The class includes all persons placed on North Carolina’s registry solely for an offense committed in another state before December 1, 2006, who also moved to North Carolina before December 1, 2006. In Grabarczyk, the same federal judge who issued the injunction in Meredith rejected the defendant–Attorney General’s various procedural arguments (standing, jurisdiction, immunity, statute of limitations) and reached the same substantive conclusion he reached in Meredith: North Carolina provides “nothing at all” in terms of notice and a hearing on a determination that an out-of-state conviction requires registration here, and that violates the plaintiffs’ due process rights under the Fourteenth Amendment. The judge thus granted the plaintiffs’ motion for summary judgment. He ordered that all class members be removed from the North Carolina registry, enjoined the defendants from prosecuting the plaintiffs for failing to register based on prior determinations of substantial similarity, and awarded reasonable attorney fees.

The case is pending on appeal to the Fourth Circuit, but regardless of what follows from the federal courts, the General Assembly has already made changes to state law in response to Grabarczyk. Session Law 2020-83 (HB 593) enacts G.S. 14-208.12B, effective this weekend, creating a new type of court review for those who may be required to register based on an out-of-state conviction. Under the new law, when the sheriff believes a person may be required to register in North Carolina based on a conviction from another state or a federal conviction that is substantially similar to a North Carolina sexually violent offense or offense against a minor, the sheriff must serve that person with notice that he or she has the right to petition the court for a judicial determination of the requirement to register. G.S. 14-208.12B(a). The person then has 30 days to file a petition, using a form prepared by the Administrative Office of the Courts (AOC-CR-259), seeking a judicial determination as to whether he or she is required to register. That petition must be filed with the clerk of superior court in the county in which the person resides, and then served by the petitioner on the district attorney and the sheriff within 3 days of the filing with the clerk. If the person files a petition seeking court review, he or she does not have to actually register until the petition is heard. G.S. 14-208.12B(e). On the other hand, if the person does not file a petition within 30 days of receipt of the initial notification from the sheriff, he or she will be deemed to have waived judicial review and required to register. G.S. 14-208.21B(f), (g).

If filed, the petition must be calendared at the next regularly scheduled term of superior court. At the first setting the petitioner will be advised of the right counsel, including the right to appointed counsel if he or she cannot afford to retain counsel. G.S. 14-208.12B(b). At the hearing, the district attorney has the burden to prove by a preponderance of the evidence that the person’s out-of-state or federal conviction is substantially similar to a sexually violent offense or offense against a minor. The law says the court may review copies of the relevant law from the other jurisdiction to “compare the elements of the out-of-state or federal offense to those purportedly similar to a North Carolina offense.” G.S. 14-208.12B(c). If the presiding superior court judge determines that the offense is indeed substantially similar, he or she orders registration. If it’s not substantially similar, the judge indicates in an order that the person is not required to register based on the out-of-state offense.

The legislation that enacted new G.S. 14-208.12B included an uncodified provision designed to cure the lack of process for existing registrants falling within the Grabarczyk class (remember, that’s all persons placed on North Carolina’s registry solely for an offense committed in another state before December 1, 2006, who also moved to North Carolina before December 1, 2006). As originally written, that part of the law required the SBI to provide each district attorney with a list of all class members in his or her prosecutorial district, and then allowed the district attorney, or the attorney general, at the district attorney’s request, to pursue judicial review of the substantial similarity of the person’s out-of-state offense. S.L. 2020-83 (HB 593), section 11.5.(c). That portion of the law was amended by section 5.(a) of S.L. 2020-90 (HB 902), removing the part allowing each district attorney to ask the attorney general to handle the proceeding on his or her behalf. The amended text referenced in HB 902 doesn’t match the text from the relevant portion of HB 593, so that portion of the law may be in need of further clarification. But the general idea is to get the matter to court to have a judge, not the sheriff, decide whether the person’s out-of-state offense was truly substantially similar to a reportable North Carolina offense.

Another provision in HB 593, section 11.5.(d), requires the Department of Public Safety to give notice to anyone on the registry as of August 1, 2020, whose registration is solely based on a substantially similar determination for an out-of-state or federal conviction—regardless of whether they fall in the Grabarczyk class—informing them of their right to contest the registration requirement as provided in G.S. 14-208.12B.

The law is effective August 1, 2020, applicable to any individual notified of the right to contest registration on or after that date. Additional details may be forthcoming depending on subsequent litigation and legislative clarification.