LORETTA C. BIGGS, District Judge.
Plaintiffs bring this action,
Plaintiffs in this action are John Doe,
"Defendant Joshua Stein is the Attorney General of the State of North Carolina," who is "charged with defending the interests of the State in all criminal and civil suits." (Id. ¶¶ 13-14.) Defendants Lorrin Freeman, Pat Nadolski, and Kristy Newton (collectively, "Individual DA's") are North Carolina district attorneys for Judicial Districts 10, 15A, and 16A, respectively, each of whom "are responsible for the prosecution of crimes in their respective judicial districts." (Id. ¶ 18.) All defendants have been sued in their official capacities. (Id. ¶¶ 13, 18.)
According to Plaintiff's Complaint, North Carolina passed its first set of statutes pertaining solely to registered sex offenders (the "registry law") in 1995. (Id. ¶¶ 8 n.1, 59.) The registry law is a group of statutes "codified at Article 27A of the North Carolina Criminal Code," N.C. Gen. Stat. § 14-208.5 through § 14-208.45. (Id. ¶ 8 n.1.) "Th[e] initial registry law did no more than create a database of persons who had been convicted of a relatively small number of qualifying offenses." (Id. ¶ 60.) Under this registry law, among other things: (i)"[r]egistration terminated automatically after ten (10) years and a person could petition for removal from the registry"; (ii) "[t]he registry was maintained by the local sheriff and was available to the public only upon request by a member of the public regarding a specific individual"; (iii) "[r]egistrants were required to mail in notification of any change of address"; (iv) "[v]iolation of the registry law was a Class 3 misdemeanor"; and (v) the law "applied to all persons committing a qualifying offense or who were released from a penal institution after the effective date." (Id. ¶¶ 61-64, 66 (citing 1995 N.C. Sess. Laws 545).) Since that time, the North Carolina legislature has passed a number of amendments to the registry law. (See id. ¶¶ 68-116.)
In this action, Plaintiffs challenge the constitutionality of the following amendments to the registry law:
(Id. ¶¶ 8a.-8e.) Plaintiffs allege that the retroactive application of each of the above amendments violate the Ex Post Facto Clause of the United States Constitution. (Id. ¶¶ 277-281.) Defendants move to dismiss Plaintiffs' Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
Under Rule 12(b)(1), a party may seek dismissal based on the court's "lack of subject-matter jurisdiction." Fed. R. Civ. P. 12(b)(1). Subject-matter jurisdiction is a threshold issue that relates to the court's power to hear a case and must be decided before a determination on the merits of the case. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 479-80 (4th Cir. 2005). A motion under Rule 12(b)(1) raises the question "whether [the plaintiff] has a right to be in the district court at all and whether the court has the power to hear and dispose of [the] claim." Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012). The burden of proving subject-matter jurisdiction rests with the plaintiff. McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). When evaluating a Rule 12(b)(1) motion to dismiss, a court should grant the motion "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). On a motion to dismiss for lack of standing, a court must construe the complaint in the plaintiff's favor, accepting as true the factual allegations in the complaint. Warth v. Seldin, 422 U.S. 490, 501 (1975).
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure "challenges the legal sufficiency of a complaint," including whether it meets the pleading standard of Rule 8(a)(2). Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). Rule 8(a)(2) requires a complaint to contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), thereby "giv[ing] the defendant fair notice of what the . . . claim is and the grounds upon which it rests," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
"A district court should dismiss a complaint pursuant to Rule 12(b)(6) if, accepting all well-pleaded allegations in the complaint as true and drawing all reasonable factual inferences in the plaintiff's favor, the complaint does not allege `enough facts to state a claim to relief that is plausible on its face.'" Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 539 (4th Cir. 2013) (quoting Twombly, 550 U.S. at 570). A claim is plausible when the complaint alleges facts sufficient to allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Johnson v. Am. Towers, LLC, 781 F.3d 693, 709 (4th Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A complaint may fail to state a claim upon which relief can be granted in two ways: first, by failing to state a valid legal cause of action, i.e., a cognizable claim, see Holloway, 669 F.3d at 452; or second, by failing to allege sufficient facts to support a legal cause of action, see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013).
While a court's evaluation of a Rule 12(b)(6) motion to dismiss is "generally limited to a review of the allegations of the complaint itself," a court may properly consider documents "attached to a complaint as exhibits." Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016). Therefore, in addition to considering the Complaint, the Court will also consider the exhibits attached to the Complaint. See id.
Defendants first argue that Plaintiffs' lawsuit is barred by the Eleventh Amendment. (See ECF No. 42 at 4-6.) Because the Eleventh Amendment acts as a jurisdictional bar, courts must resolve the issue of Eleventh Amendment sovereign immunity before reaching the merits of a case. See Edelman v. Jordan, 415 U.S. 651, 677-78 (1974).
Section 1983 provides a cause of action for the deprivation of a constitutional or federal statutory right by a "person" acting under color of state law. See 42 U.S.C. § 1983. However, "the doctrine of sovereign immunity under the Eleventh Amendment
Moreover, at the motion to dismiss stage, the Court "need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law." Constantine, 411 F.3d at 496 (quoting Verizon Md., Inc. v. Pub. Serv. Comm'n, 535 U.S. 635, 645 (2002). See S.C. Wildlife Fed'n v. Limehouse, 549 F.3d 324, 332 (4th Cir. 2008) ("For purposes of Eleventh Amendment analysis, it is sufficient to determine that [the plaintiff] alleges facts that, if proven, would violate federal law and that the requested relief is prospective."). In so doing, the Court "do[es] not consider the merits of [Plaintiffs'] claims; it is enough that the complaint alleges an ongoing violation of federal law." Constantine, 411 F.3d at 496. See D.T.M. ex rel. McCartney v. Cansler, 382 F. App'x 334, 338 (4th Cir. 2010) ("[I]t is sufficient for Plaintiffs' suit to allege an ongoing violation of federal law; actually proving such an ongoing violation is unnecessary [at the motion to dismiss stage].")
Plaintiffs' Complaint alleges the following:
If true, these claims allege ongoing violations of the Ex Post Facto Clause
Even where the Complaint alleges an ongoing violation of federal law, in order for the Ex parte Young exception to apply, a "special relation" must exist "between the state officer sued and the challenged statute to avoid the Eleventh Amendment's bar." Waste Mgmt., 252 F.3d at 331 (quoting Ex parte Young, 209 U.S. at 157). See Lytle v. Griffith, 240 F.3d 404, 412 (4th Cir. 2001) ("The [Ex parte] Young exception is limited . . . by its requirement that named state officials bear a special relation to the challenged statute."). This "special relation" "requires proximity to and responsibility for the challenged state action." Wright v. North Carolina, 787 F.3d 256, 261-62 (4th Cir. 2015) (quoting S.C. Wildlife Fed'n, 549 F.3d at 333).
The Court concludes that Plaintiffs have sufficiently alleged that Defendants have a special relation to the enforcement of the challenged provisions of the registry law. In the Complaint, Plaintiffs specifically allege that a violation of the challenged provisions of the registry law is a felony offense. (ECF No. 33 ¶¶ 88, 131, 168, 221, 244.) With respect to the Attorney General, Plaintiffs allege that he has statutory authority, "through special prosecutors, to bring or assist in criminal suits upon request of a district attorney." (Id. ¶ 13-17.) As this Court stated in Does 1-5 v. Cooper, "Ex parte Young itself held that the state attorney general's duties, which included the right and the power to enforce the statutes of the state, sufficiently connected him with the duty of enforcement to make him a proper party to an action challenging a state statute's constitutionality." 40 F.Supp.3d 657, 673 (M.D.N.C. 2014) (citing Ex parte Young, 209 U.S. at 158-61). Here, as alleged by Plaintiffs, the Attorney General has the statutory authority to prosecute or assist in the prosecution of criminal actions. (See ECF No. 33 ¶¶ 14-16; see also N.C. Gen. Stat. §§ 114-2, 114-11.6.) Plaintiffs have thus sufficiently alleged that the Attorney General has enough of a connection to the enforcement of North Carolina criminal laws to satisfy the special relation requirement of Ex parte Young and thereby avoid the Eleventh Amendment bar. See Does 1-5, 40 F. Supp. 3d at 674 (finding that the Attorney has statutory authority to enforce a violation of the challenged statute and, "[a]s such, [the] Attorney General . . . is a proper defendant in th[e] lawsuit"); but see McBurney, 616 F.3d at 399-401 (affirming dismissal of Virginia's Attorney General, in part, because the Attorney General lacked any specific statutory authority to enforce the challenged statute).
Similarly, with respect to the Individual DA's, Plaintiffs allege that the Individual DA's "each have statutory authority under N.C. [Gen. Stat.] § 7A-61 to prosecute individuals for violations of registry laws," and that "[t]he State has not disclaimed any intention of enforcing [the challenged] provisions of the registry law against either the individual Plaintiffs or the affected members of NC RSOL." (ECF No. 33 ¶¶ 19, 21.) The Court concludes that such allegations are sufficient to show that the Individuals DA's have proximity to and responsibility for enforcement of the challenged provisions of the registry law. See Wright, 787 F.3d at 261-62.
In light of the above, the Court finds that the Ex Parte Young exception to Eleventh Amendment immunity applies in this action. Accordingly, Defendants' motion to dismiss on this basis will be denied.
Defendants next argue that "[t]his action nevertheless should be dismissed pursuant to Rule 12(b)(1) because Plaintiffs lack standing to sue." (ECF No. 42 at 6.) Under Article III of the United States Constitution, the jurisdiction of a federal court is limited to cases and controversies. U.S. Const. art. III, § 2. Standing to sue, therefore, "ensure[s] that federal courts do not exceed their authority." Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016). To establish Article III standing at the motion to dismiss stage, Plaintiffs must plausibly allege that they have: "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Id. (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). Plaintiffs bear the burden of establishing these elements. Lujan, 504 U.S. at 561. "Where, as here, a case is at the pleading stage, [Plaintiffs] must `clearly . . . allege facts demonstrating' each element." Spokeo, 136 S. Ct. at 1547 (quoting Warth, 422 U.S. at 518). "The standing requirement must be satisfied by individual and organizational plaintiffs alike."
Defendants argue that Plaintiffs' Complaint lacks "any concrete allegations or facts implicating that [Plaintiffs] are facing prosecution, but instead . . . only bald statements in the complaint." (ECF No. 42 at 8.) Defendants also argue that "Plaintiffs have failed to plead facts sufficient to allege a credible threat of prosecution by Defendants." (Id. at 5.)
To satisfy the first element of standing—injury-in-fact—"a plaintiff must show that he or she suffered `an invasion of a legally protected interest' that is `concrete and particularized' and `actual or imminent, not conjectural or hypothetical.'" Spokeo, 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560). "The injury-in-fact requirement ensures that plaintiffs have a `personal stake in the outcome of the controversy.'" Kenny v. Wilson, 885 F.3d 280, 287 (4th Cir. 2018) (quoting Warth, 422 U.S. at 498). Where, as here, Plaintiffs "seek declaratory and injunctive relief, they must establish an ongoing or future injury in fact." Id. The Supreme Court has "repeatedly reiterated that `threatened injury must be certainly impending to constitute injury in fact,' and that `[a]llegations of possible future injury' are not sufficient." Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409 (2013) (alteration in original) (quoting Whitmore v. Ark., 495 U.S. 149, 158 (1990)). See Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) ("[W]e have permitted pre-enforcement review under circumstances that render the threatened enforcement sufficiently imminent.").
As explained by the Fourth Circuit, a plaintiff's "allegations of a fear and risk of future arrest can satisfy the injury-in-fact requirement for prospective relief . . . if [1] [P]laintiffs allege `an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute[;] and [2] there exists a credible threat of prosecution thereunder.'" Kenny, 885 F.3d at 288 (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)). Applying this standard, the Court finds that Plaintiffs have sufficiently alleged an injury-in-fact. First, Plaintiffs have sufficiently alleged an intention to engage in conduct currently proscribed by the challenged provisions of the registry law. In particular, Plaintiffs allege the following:
(ECF No. 33 ¶¶ 20, 27-28, 40-41, 55-56, 163-67.) Given these allegations that Plaintiffs intend to engage in conduct proscribed by the challenged provisions of the registry law, Plaintiffs have satisfied the first prong necessary to allege injury-in-fact.
With respect to the second prong of alleging such an injury-in-fact—whether Plaintiffs face a credible threat of prosecution—"it is not necessary that [Plaintiffs] first expose [themselves] to actual arrest or prosecution to be entitled to challenge a statute that [they] claim[ ] deters the exercise of [their] constitutional rights." Steffel v. Thompson, 415 U.S. 452, 459 (1974). Thus, Defendants' argument that Plaintiffs fail to allege that they are "facing prosecution," (ECF No. 42 at 8), is unavailing. "[T]here is a credible threat of future enforcement so long as the threat is not imaginary or wholly speculative, . . . or wholly conjectural." Kenny, 885 F.3d at 288 (citations and internal quotation marks omitted). Moreover, the "[t]hreat of prosecution is especially credible when defendants have not `disavowed enforcement' if plaintiffs engage in similar conduct in the future." Id. (quoting Driehaus, 573 U.S. at 165). Failure to comply with the provisions of the registry law is a felony. N.C. Gen. Stat. §§ 14-208.11, 14-208.18(h). (See also ECF No. 33 ¶¶ 88, 131, 168, 221, 244.) Here, Plaintiffs specifically allege that "[t]he State has not disclaimed any intention of enforcing the[ ] [challenged] provisions of the registry law against either the individual Plaintiff[ ] or the affected members of NC RSOL." (Id. ¶ 21.) Further, Defendants do not contend that they will not enforce the challenged provisions of the registry law, and this Court "see[s] no reason to assume otherwise," Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 393 (1988). Thus, Plaintiffs face a credible threat of future arrest or prosecution should they fail to comply with the provisions of the registry law. Plaintiffs have, therefore, "alleged an actual and well-founded fear that the [challenged provisions of the registry] law will be enforced against them." Id. Accordingly, the Court finds that Plaintiffs have sufficiently alleged an injury-in-fact. See Does 1-5, 40 F. Supp. 3d at 671-72 (concluding that "where the State has not disclaimed any intention of enforcing [the challenged provision of the registry law], Plaintiffs need not actually violate [that statute], or be proactively threatened with prosecution prior to violation, in order to have standing to challenge its constitutionality.").
Having sufficiently alleged an injury-in-fact, the Court finds that Plaintiffs clear the other two hurdles for standing—namely, causation and redressability. To satisfy the causation requirement, there must be a "causal connection between the injury and the conduct complained of that is `fairly traceable,' and not `the result of the independent action of some third party not before the court.'" Cooksey v. Futrell, 721 F.3d 226, 238 (4th Cir. 2013) (quoting Frank Krasner Enters., Ltd. v. Montgomery Cty., 401 F.3d 230, 234 (4th Cir. 2005)). Redressability is satisfied "where there is a non-speculative likelihood that the injury would be redressed by a favorable judicial decision." Id. (internal quotation marks omitted).
Here, despite Defendants' argument to the contrary, there is a causal connection between the injury about which Plaintiffs complain—i.e., the fear and risk of future prosecution by Defendants—and the conduct of which Plaintiffs complain—i.e., the alleged retroactive punishment in violation of Ex Post Facto clause. With respect to redressability, a favorable decision from this Court would enjoin Defendants from enforcing the challenged provisions against anyone, including Plaintiffs. Under such a scenario, Plaintiffs would be able to engage in conduct proscribed by the challenged provisions of the registry law without fear of prosecution. The Court therefore concludes that, in addition to having plausibly alleged an injury-in-fact, Plaintiffs have also alleged sufficient facts to establish causation and redressability and, thus, standing to sue. As a result, Defendants' motion to dismiss for lack of standing will be denied.
Defendants next argue that "[t]he three year statute of limitations for claims brought under 42 U.S.C. § 1983 bars the Ex Post Facto claims alleged by the [P]laintiffs." (ECF No. 42 at 12 (emphasis added).) Plaintiffs argue, in response, that "[w]hile the statute of limitations may work to bar suit claiming a discreet deprivation of rights, it does not insulate the State from a general constitutional challenge." (ECF No. 44 at 11.)
The applicable statute of limitations for Section 1983 actions is three years. See Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th Cir. 1996) ("[B]ecause the state limitations period governing a claim for damages for personal injuries applies to a § 1983 action, regardless of the allegations in the complaint, the three-year statute of limitations set forth in N.C. Gen. Stat. § 1-52(5) . . . controls); Lewis v. Richmond City Police Dep't, 947 F.2d 733, 735 (4th Cir. 1991) ("There is no federal statute of limitations for § 1983 claims, so the state limitations period which governs personal injury actions is applied."); N.C. Gen. Stat § 1-52(16) (establishing three-year statute of limitations for personal injury).
Although the applicable limitations period is dictated by state law, the accrual of a Section 1983 claim is governed by federal law. Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir. 1995). "Under federal law[,] a cause of action accrues when the plaintiff possesses sufficient facts about the harm done to him that reasonable inquiry will reveal his cause of action." Id. Pursuant to this rule, it would appear that, consistent with Defendants' argument, Plaintiffs' claims began to accrue in 2006, 2008, and 2009—the effective dates for four of the challenged amendments to the registry law—and, as such, "[t]he three year statute of limitations for Plaintiffs' claims [as to those challenged amendments] expired in 2009, 2011, and 2012, respectively." (ECF No. 42 at 12.) However, as "an exception to the ordinary accrual rule[,] . . . the clock on any challenge to the constitutionality of a statute, whose continued application works an ongoing constitutional violation, starts to run anew, every day that the statute applies." Wallace v. New York, 40 F.Supp.3d 278, 302 (E.D.N.Y. 2014). As recognized by the Fourth Circuit, "[t]he continued enforcement of an unconstitutional statute cannot be insulated by the statute of limitations." Va. Hosp. Ass'n v. Baliles, 868 F.2d 653, 663 (4th Cir. 1989) (alteration in original) (citation omitted). See Poe v. Lynchburg Training Sch. & Hosp., 518 F.Supp. 789, 794 (W.D. Va. 1981) ("Since the alleged deprivation is of a continuing nature, the action . . . is obviously not time barred." (citing Williams v. Norfolk & W. Ry. Co., 530 F.2d 539, 542 (4th Cir. 1975))). Therefore, because Plaintiffs in this action are seeking prospective relief for the continued enforcement of allegedly unconstitutional amendments to the registry law, the statute of limitations does not bar Plaintiffs' claims. Defendants' motion to dismiss on this basis will be denied.
Defendants next argue that "[t]his Court should abstain from ruling on the constitutionality of the challenged state laws and dismiss the complaint." (ECF No. 42 at 14.) Plaintiffs, on the other hand, contend that this case presents no grounds for the Court to abstain. (ECF No. 44 at 12.)
The Supreme Court has "often acknowledged that federal courts have a strict duty to exercise the jurisdiction that is conferred upon them by Congress." Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996) (citing cases). See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (explaining that federal courts have a "virtually unflagging obligation . . . to exercise the jurisdiction given them"). However, "a federal district court is vested with discretion" to abstain from exercising its jurisdiction "in deference to state court resolution of underlying issues of state law." Harman v. Forssenius, 380 U.S. 528, 534 (1965). "Abstention doctrines constitute `extraordinary and narrow exception[s]' to a federal court's duty to exercise the jurisdiction conferred on it." Martin v. Stewart, 499 F.3d 360, 363 (4th Cir. 2007) (alteration in original) (quoting Quackenbush, 517 U.S. at 716, 728). It is therefore well-settled that "[a]bstention from the exercise of federal jurisdiction is the exception, not the rule." Colorado River, 424 U.S. at 813; Gannett Co. v. Clark Constr. Grp., Inc., 286 F.3d 737, 741 (4th Cir. 2002). The Supreme Court has "carefully defined" the circumstances under which abstention is permissible. Martin, 499 F.3d at 363 (quoting New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 359 (1989)). The two abstention doctrines which Defendants appear to contend
Pullman abstention may be invoked where: (1) there is "an unclear issue of state law presented for decision"; and (2) the resolution of that unclear issue of state law "may moot or present in a different posture the federal constitutional issue such that the state law issue is potentially dispositive." Educ. Servs., Inc. v. Md. State Bd. for Higher Educ., 710 F.2d 170, 174 (4th Cir. 1983) (internal quotation marks omitted). See Nivens v. Gilchrist, 444 F.3d 237, 245 (4th Cir. 2006) ("Pullman abstention requires federal courts to abstain from deciding an unclear area of state law that raises constitutional issues because state court clarification might serve to avoid a federal constitutional ruling."). As explained by the Supreme Court, "[b]y abstaining in such cases, federal courts will avoid both unnecessary adjudication of federal questions and `needless friction with state policies.'" Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 236 (1984) (quoting R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 500 (1941)).
Burford abstention applies in circumstances where "there exists (1) a state-created regulatory scheme which would be disrupted by federal court review[,] and (2) a specially-created forum with specialized competence in that particular area." Stewart v. Hunt, 598 F.Supp. 1342, 1349 (E.D.N.C. 1984) (citing Burford v. Sun Oil Co., 319 U.S. 315, 327 (1943)). "The primary consideration is whether the provision, statute or action to be reviewed in federal court requires such highly specialized expertise so that it would be better to defer to the state adjudicative bodies specifically created for handling such matters." Id.
The Court finds that neither the Pullman nor Burford abstention doctrine is applicable here. First, with respect to the Pullman abstention doctrine, Plaintiffs' lawsuit raises no issue requiring an interpretation or clarification of an unclear state law. Plaintiffs do not contend that the challenged provisions of the registry law are unclear or ambiguous. Rather, Plaintiffs mount a facial challenge to the constitutionality of certain provisions of the registry law. (See ECF No. 33.) "Thus, abstention is not indicated if the state law is clear on its face." 17A Charles Alan Wright, et al., Federal Practice and Procedure § 4242, at 331-32 (3d ed. 2007). The Supreme Court has explained that "[w]here there is no ambiguity in the state statute, the federal court should not abstain but should proceed to decide the federal constitutional claim." Wisconsin v. Constantineau, 400 U.S. 433, 439 (1971). Defendants appear to argue, in part, that abstention is appropriate here because Plaintiffs' "specific challenge to the North Carolina registry laws has not been previously litigated in North Carolina." (ECF No. 42 at 13.) However, "when a statute is not ambiguous, there is no need to abstain even if state courts have never interpreted the statute." City of Houston v. Hill, 482 U.S. 451, 469 (1987). In essence, "[s]ince the naked question" before this Court, "uncomplicated by ambiguous language," is whether the challenged provisions of the registry law are facially unconstitutional, abstention from federal jurisdiction is not required. Haw. Hous. Auth., 467 U.S. at 237 (internal quotation marks omitted).
The Court further notes that in a Section 1983 action, "Congress has deliberately afforded the [S]ection 1983 plaintiff an alternative federal forum." Pittman v. Cole, 267 F.3d 1269, 1286 (11th Cir. 2001) (quoting Duke v. James, 713 F.2d 1506, 1510 (11th Cir. 1983)). To that end,
Id. (quoting Duke, 713 F.2d at 1510). Given that, as previously stated, this action does not involve an unclear or ambiguous issue of state law, the resolution of which could potentially dispose of Plaintiffs' federal constitutional claim, Pullman abstention is not warranted.
Second, Defendants appear to argue that Burford abstention is appropriate because the "issues raised in the [Complaint] are based on a constitutional challenge to specific North Carolina statutory laws which are of substantial importance to the safety of the citizens in North Carolina and to the State's ability to exercise its police powers." (ECF No. 42 at 14.) "For Burford abstention to be appropriate, however, a `complex state regulatory scheme . . . for which impartial and fair administrative determinations subject to expeditious and adequate judicial review are afforded' must also be present." Meredith v. Talbot Cty., 828 F.2d 228, 232 (4th Cir. 1987) (quoting Browning-Ferris, Inc. v. Baltimore Cty., 774 F.2d 77, 79 (4th Cir. 1985)). Here, Plaintiffs' challenge to the constitutionality of certain amendments to the registry law does not implicate a state administrative proceeding. See Gracious Living Corp. v. Colucci & Gallagher, PC, 216 F.Supp.3d 662, 671 (D.S.C. 2016) ("Federal courts usually utilize when they sit in diversity jurisdiction to hear challenges to state agency proceedings." (citing Browning-Ferris, 774 F.2d at 77). Nor does the Court find that its adjudication of the federal claim in this action matter would "unduly intrude upon [a] complex administrative process[ ]," Martin, 499 F.3d at 364, particularly in this case where "[t]he right alleged is . . . plainly federal in origin and nature," McNeese v. Bd. of Educ., 373 U.S. 668, 674 (1963). Under these circumstances, the Court concludes that Burford abstention is not applicable. Accordingly, Defendants' motion to dismiss on abstention grounds will be denied.
Finally, Defendants argue that "Plaintiffs fail to plead plausible facts to establish the legal sufficiency of their Ex Post Facto claims as well as fail[ ] to state a claim for which relief may be granted and therefore the [Complaint] should be dismissed." (ECF No. 40 at 2 (emphasis added).) The enactment of Ex Post Facto laws is prohibited by the United States Constitution. See U.S. Const. art. I § 10, cl. 1 ("No State shall . . . pass any . . . ex post facto Law."). An Ex Post Facto law is a "retrospective" law that applies "to events occurring before its enactment" and which "disadvantage[s] the offender affected by it . . . by altering the definition of criminal conduct or increasing the punishment for the crime." Lynce v. Mathis, 519 U.S. 433, 441 (1997) (internal quotation marks omitted).
In this action, Plaintiffs have alleged that the retroactive application of the challenged amendments to the registry law violate the Ex Post Facto clause. (See ECF No. 33 ¶¶ 277-281.) Defendants argue that the Complaint fails to state a claim for relief because the challenged amendments are regulatory and do not impose additional punishment. (See ECF No. 42 at 14-22.) In support of their position, Defendants primarily rely on Smith v. Doe, 538 U.S. 84 (2003). (See generally ECF No. 42 at 14-20.)
In Smith, the Supreme Court considered, for "the first time," whether "a sex offender registration and notification law constitute[d] retroactive punishment forbidden by the Ex Post Facto Clause." Smith, 538 U.S. at 92. There, the Court held that sex offender registration laws do not violate the Ex Post Facto clause if they establish a civil regulatory scheme rather than criminal punishment. Smith, 538 U.S. at 92-93. The Supreme Court in Smith established the framework for considering such Ex Post Facto challenges by adopting a two-part test: (1) whether the intent of the legislature was to impose punishment; and (2) if not, "whether the statutory scheme is `so punitive either in purpose or effect as to negate [the State's] intention' to deem it `civil.''' Id. at 92 (alteration in original) (quoting Kansas v. Hendricks, 521 U.S. 346, 361 (1997)).
With respect to the first prong, the Court in Smith noted that "`only the clearest proof' will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." Id. (quoting Hudson v. United States, 522 U.S. 93, 100 (1997)). Plaintiffs argue that they have alleged facts "supporting the inference that the challenged statutes were passed with punitive intent." (ECF No. 44 at 15-16.) Specifically, Plaintiffs allege the following:
Defendants argue, however, that the State's legislative intent in enacting the sex offender registry laws was to develop a civil regulatory reporting system for public safety. (ECF No. 42 at 16.) In support of this argument, Defendants cite two decisions from the North Carolina Court of Appeals—In re Hall, 768 S.E.2d 39 (N.C. Ct. App. 2014) and State v. Pell, 712 S.E.2d 189 (N.C. Ct. App. 2011)—in which that court reiterated that N.C. Gen. Stat. § 14-208.5 et seq., which governs the sex offender registration process, is a "non-punitive, civil regulatory scheme," and therefore, its application does not violate the Ex Post Facto clause.
As Plaintiffs allege, the challenged provisions of the registry law are codified as part of Article 27A of the North Carolina General Statutes which states, in pertinent part:
N.C. Gen. Stat. § 14-208.5. On its face, this purpose does not reflect an intent by the State that its registry laws impose criminal punishment. Given that "considerable deference must be accorded to the intent as the legislature has stated it," Smith, 538 U.S. at 93, the Court finds that Plaintiffs' allegations fail to satisfy the first prong of the Ex Post Facto inquiry.
Having concluded the Plaintiffs have failed to allege a clear legislative intent to impose additional punishment, the Court must next consider whether Plaintiffs have plausibly alleged that the effect of the statutory scheme is so punitive that it negates the State's intention to deem it civil. See id. at 92. In analyzing the effects of the challenged provisions of the registry law, the Supreme Court has instructed the Court to consider five factors: (i) whether the law "has been regarded in our history and traditions as a punishment"; (ii) whether the law "imposes an affirmative disability or restraint"; (iii) whether the law "promotes the traditional aims of punishment"; (iv) whether the law "has a rational connection to a non-punitive purpose"; and (v) whether the law "is excessive with respect to this purpose." Id. at 97. These factors are "neither exhaustive nor dispositive . . . but are useful guideposts." Id. (citations and internal quotation marks omitted).
Defendants argue that "Plaintiffs have . . . failed to allege facts, as there exist no facts, that would render the effect of these laws so punitive as to make them in violation of the Ex Post Facto Clause." (ECF No. 42 at 17 (emphasis added).) Plaintiffs' Complaint alleges, among other things, that the challenged provisions of the registry law:
Accepting Plaintiffs' allegations as true, as the Court must at this stage,
Based on the above, the Court concludes: (i) that this action is not barred by Eleventh Amendment immunity, per the Ex parte Young exception; (ii) that Plaintiffs have sufficiently alleged an injury-in-fact, causation, and redressability and thus have standing to sue; (iii) that the three-year statute of limitations typically applicable to Section 1983 actions does not bar Plaintiffs' claims here seeking prospective relief for the continued enforcement of allegedly unconstitutional amendments to the registry law; (iv) that neither the Pullman abstention doctrine nor the Burford abstention doctrine is applicable in this case; and (v) that Plaintiffs have stated a plausible claim for relief for an alleged violation of the Ex Post Facto clause of the United States Constitution.
For the reasons outlined herein, the Court enters the following:
IT IS THEREFORE ORDERED that Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint, (ECF No. 40), is DENIED.
