MEMORANDUM OPINION AND ORDER
This matter is currently before the Court on a Motion for Preliminary Injunction [Doc. # 17], filed by Plaintiffs John Doe 1, John Doe 2, John Doe 3, John Doe 4, and John Doe 5 (collectively “Plaintiffs”). Also before the Court is an Amended Motion to Dismiss and Motion to Intervene as a Matter of Right [Doc. # 30] (“Defendants’ Motion” or “Motion to Dismiss”), filed by all Defendants (“Defendants” or “Attorney General Cooper and District Attorneys”), seeking dismissal pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6). This Court held a hearing on these Motions on August 8, 2014. For the reasons discussed below, the Court will grant in part and deny in part Defendants’ Motion to Dismiss, and the Court will deny Plaintiffs’ Motion for Preliminary Injunction.
I. BACKGROUND
The factual allegations of Plaintiffs’ First Amended Complaint [Doc. # 28] (“Amended Complaint”), taken as true for purposes of Defendants’ Motion, allege that Plaintiffs' are all residents of North Carolina who are required to register as sex offenders under North Carolina state law.
(1) On the premises of any place intended primarily for the use, care, or supervision of minors, including, but not limited to, schools, children’s museums, child care centers, nurseries, and playgrounds.
(2) Within 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors, including, but not limited to, places described in subdivision (1) of this subsection that are located in malls, shopping centers, or other property open to the general public.
(3) At any place where minors gather for regularly scheduled educational, recreational, or social programs.
N.C. GemStat. § 14-208.18(a) (2013) (emphasis added). A violation of any of these location restrictions is a Class H felony. Id. § 14-208.18(h).
This statute does allow some limited exceptions to these location restrictions. First, § 14-208.18 allows the following limited exceptions for those subject to the location restrictions who are parents or guardians of a minor:
(1) if the minor is in need of emergency medical care, the parent or guardian may take the minor to any location that can provide emergency medical care treatment;
(2) if the minor is a student enrolled in a school, the parent or guardian may be present on school property if all of the following conditions are met:
(a) either the purpose must be to attend a conference at the school with school personnel to discuss the academic or social progress of the child, or the presence of the parent or guardian must have been requested by the principal or his or her designee for any other reason relating to the welfare or transportation of the child; and
(b) the parent or guardian must comply with all of the following:
(i) Notice: The parent or guardian shall notify the principal of the school of his or her registration under this Article and of his or her presence at the school, unless he or she has permission to be present from the superintendent or the local board of education, or the principal has granted ongoing permission for regular visits of a routine nature. If permission is granted by the superintendent or the local board of education, the superintendent or chairman of the local board of education shall inform the principal of the school where the parent or guardian will be present. Notification includes the nature of the parent or guardian’s visit and the hours when he or she will be present at ■ the school. The parent or guardian is responsible for notifying the principal’s office upon arrival and upon departure. Any permission granted under this sub-subdivision shall be in writing.
(ii) Supervision: At all times that the parent or guardian is on school property, he or she shall remain under the direct supervision of school personnel. If no school personnel are reasonably available to supervise the parent or guardian on that occasion, the parent or guardian shall not be on school property even if the parent or guardian has ongoing permission for regular visits of a routine nature.
N.C. Gen.Stat. § 14-208.18(b), (d).
In addition to those limited exceptions for parents or guardians of minors, the following additional exceptions to the location restrictions are expressly provided for in § 14-208.18:
(1) those subject to the location restrictions who are eligible to vote may be present at an otherwise restricted location that is being used as a voting place as defined by G.S. 163-165 only for the purposes of voting and shall not be 'outside the voting enclosure other than for the purpose of entering and exiting the voting place; if the voting place is a school, then the sex offender shall notify the principal of the school that he or she is a registered sex offender;
(2) those subject to the location restrictions who are eligible under G.S. 115C-378 to attend public school may be present on school property if permitted by the local board of education pursuant to G.S. 115C-390.11(a)(2);
(3) a juvenile subject to the location restrictions may be present at a location described in that subsection if the juvenile is at the location to receive medical treatment or mental health services and remains under the direct supervision of an employee of the treating institution at all times.
Id. § 14-208.18(e)-(g). All five Plaintiffs are subject to the location restrictions of § 14-208.18.
Plaintiff John Doe 1 was convicted in 1995 to one count of receiving material involving the sexual exploitation of a minor in violation of 18 U.S.C. § 2252(a)(2), and served five years in federal prison for that conviction. While in prison, John Doe 1 voluntarily completed the Sex Offender Treatment Program (“SOTP”), which consists of months-long intensive therapy. As of 2003, he was no longer under any type of probation, parole, or supervised release. Prior to 2011, John Doe 1 attended his local church, which contains a monitored child-care center within 300 feet of the main congregation hall. His pastor was “aware of his history” and “approved of’
Plaintiff John Doe 2 was convicted in 2011 of misdemeanor sexual battery, in violation of N.C. General Statute § 14-27.5A, and was sentenced to 5 years of probation. “Per stipulation,” the terms of John Doe 2’s probation do not include any restriction on his ability to attend his minor son’s educational or recreational activities. (Am. Compl. [Doc. # 28] ¶ 62.) John Doe 2 desires to participate in these activities, but the State has informed John Doe 2 that § 14-208.18(a)’s proscriptions override the lack of restrictions in his probation terms. Furthermore, John Doe 2 is unsure of the meaning or extent of § 14-208.18(a)’s proscriptions. He has repeatedly asked his probation officer and the local sheriffs office for clarification, but they have pointed him to the verbatim text of § 14-208.18, “advisfing] him not to participate in many activities” and to avoid many locations just “to be on the safe side.” (Am. Compl. [Doc. # 28] ¶ 67-68.) John Doe 2 has asked whether he can attend his son’s activities remotely (e.g., via Skype), and received conflicting advice as to that question.
Plaintiff John Doe 3 was convicted in 2002 of committing indecent liberties with a minor, in violation of N.C. General Statute § 14-202.1, and served four years in prison in the North Carolina Department of Adult Corrections. While in prison, John Doe 3 volunteered for, and successfully completed, the state-administered Sex Offender Accountability and Responsibility (“SOAR”) program, which consists of approximately 600 hours of therapeutic treatment.
Plaintiff John Doe 4 was convicted in 2007 of attempted solicitation of a minor in violation of N.C. Gen.Stat. § 14-202.3. He received a suspended sentence of 30 months, served 10 weekends in prison as an intermediate punishment, and completed a 30-month term of probation. John Doe 4 has undergone sex offender treatment and has maintained steady employment since his conviction. He currently wants to attend church, but is highly concerned that doing so could subject him to arrest and conviction under § 14-208.18, because the church has Sunday School classes for children.
Plaintiff John Doe 5 was convicted in 2009 of two counts of misdemeanor sexual battery. He received two suspended 75-day sentences, and completed his 18-month supervised probation. The victim in John Doe 5’s case was a 30-year-old woman, and there have never been any allegations that John Doe 5 has ever en
On August 28, 2013, Plaintiffs commenced this action against North Carolina Governor Pat McCrory, North Carolina Attorney General Roy Cooper, and the District Attorneys in each prosecutorial district in North Carolina. The original Complaint brought claims pursuant to 42 U.S.C. § 1983, alleging that § 14-208.18 is overbroad and unconstitutionally vague, in violation of Plaintiffs’ rights under the First, Fifth and Fourteenth Amendments of the U.S. Constitution. (Compl. [Doc. # 1] ¶¶ 108-13.) The Complaint also alleged that § 14-208.18 violates their procedural due process rights under the Fifth and Fourteenth Amendments of the U.S. Constitution. (Id. ¶¶ 114-17.) It sought injunctive relief and a declaratory judgment that § 14-208.18 is unconstitutional. (Id. ¶ 118.)
Plaintiffs then requested and obtained leave to amend their Complaint, and filed their Amended Complaint [Doc. #28] on January 13, 2014. The Amended Complaint removes Governor McCrory as a defendant, amends factual allegations, and adds a claim for relief on equal protection grounds. (Am. Compl. [Doc. # 28].) After Plaintiffs filed their Amended Complaint, Defendants filed an Amended Motion to Dismiss [Doc. #30], seeking dismissal pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6).
In addition, Defendants contend that this case should be dismissed in its entirety for failure to state a claim. To the extent that any of Plaintiffs’ claims survive Defendants’ Motion to Dismiss, Defendant Roy Cooper seeks to intervene as a matter of right pursuant to Rule 24(a) of the Federal Rules of Civil Procedure, even though he also contends that this Court lacks jurisdiction over him as a defendant. Plaintiffs filed a Response [Doc. # 32] to
Finally, Plaintiffs have filed a Motion for Preliminary Injunction [Doc. # 17], seeking to enjoin § 14-208.18 “as it applies to prevent [Plaintiffs] from participating in religious worship services and other religious gatherings” and to enjoin enforcement of § 14—208.18(a)(3) on the grounds that it is unconstitutionally vague. Defendants filed a Response [Doc. #27], to which Plaintiffs did not file a Reply.
Both Motions are ripe for review, and this Court held a hearing in this matter on August 8, 2014. This Opinion will first consider Defendants’ Motion, and specifically, the subject matter jurisdiction contention, because if Defendants are correct that this Court lacks subject matter jurisdiction, then everything else before the Court becomes moot.
II. AMENDED MOTION TO DISMISS
A. Motion to Dismiss for Lack of Subject Matter Jurisdiction
Defendants contend that this Court lacks jurisdiction over this action, because Plaintiffs lack Article III standing. A party may aptly challenge another party’s lack of standing by a motion to dismiss for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1). Marshall v. Meadows,
The Declaratory Judgment Act provides that, “[i]n a case of actual controversy within its jurisdiction ... any court of the United States ... may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a) (2012). The U.S. Supreme Court has explained that the phrase “case of actual controversy” in the Declaratory Judgment Act refers to the type of “cases” and “controversies” that are justiciable under Article III. MedImmune, Inc. v. Genentech, Inc.,
Standing is an essential component of a justiciable “case” under Article III. Steel Co. v. Citizens for a Better Env’t,
Defendants contend that Plaintiffs lack standing because no enforcement action has been taken or threatened against Plaintiffs, and as such, Plaintiffs lack a sufficient injury. Plaintiffs, however, contend that they have alleged a sufficient injury, because they have been forced to choose between engaging in constitutionally protected activity and subjecting themselves to possible prosecution for violating what they contend is an unconstitutional statute. Plaintiffs further contend that the Court should consider the full scope of harms inflicted by not only those directly subject to the location restrictions, but also the harm to those who wish to include Plaintiffs in religious worship, association, and family life.
To satisfy the injury requirement, the party asserting jurisdiction must demonstrate an “ ‘injury in fact’ that is concrete and particularized, and actual or imminent, as opposed to conjectural or hypothetical.” Long Term Care Partners, LLC v. United States,
In a case challenging a Virginia law similar to that which is challenged in this case, the Fourth Circuit in Doe v. Virginia Dep’t of State Police affirmed the district court’s dismissal of several claims, in part because the harm alleged was hypothetical, as the plaintiff had not attempted to access school or church property.
In contrast, there is no such petition option or opportunity to obtain an individualized degree of access to restricted locations under § 14-208.18. While there is an exception that allows access by a parent to that individual’s child’s school, such access is only granted for limited purposes and it always requires permission and constant supervision. Unlike the Virginia law, there is no opportunity under § 14-208.18 to petition for a hearing in order to obtain a court order tailoring the location restrictions to an individual petitioner. As such, there is no comparable alternative avail
Furthermore, some of the Plaintiffs here allege that they have sought and obtained permission to attend a particular church, and would attend, but for the location restrictions. Indeed, Plaintiff John Doe 1 was arrested and charged with violating § 14-208.18 for attending a church where he had the pastor’s permission to attend. This charge was ultimately dropped against John Doe 1, and the District Attorney allowed him to attend church, subject to an ad hoc list of restrictions that apply only to Plaintiff John Doe 1 in that particular prosecutorial district.
In addition, with regard to Plaintiff John Doe 2, the terms of his probation “per stipulation” do not include any restriction on his ability to attend his minor son’s educational or recreational activities, he has been informed by his probation officer and the local sheriffs office that he should abide by the restrictions in § 14-208.18. In sum, Plaintiffs in this case have diligently exhausted the alternative options available to them, and in Plaintiff John Doe l’s case, even been arrested, unlike the plaintiff in Virginia Department of State Police.
In Steffel v. Thompson, the U.S. Supreme Court did not require the plaintiff to risk actual prosecution by distributing handbills before he could seek a declaratory judgment regarding the constitutionality of a state statute prohibiting such distribution.
Therefore, where the State has not disclaimed any intention of enforcing § 14-
B. Motion to Dismiss for Lack of Personal Jurisdiction
Defendants next contend that this Court lacks personal jurisdiction over Attorney General Roy Cooper and the District Attorneys sued by Plaintiffs.
i. Attorney General Roy Cooper
With regard to Attorney General Cooper, Defendants contend that Plaintiffs have not cited any legal authority for the proposition that Defendant Cooper has the authority to criminally charge an individual for violating the statute at issue, as required to sue a state official for injunctive relief under Ex parte Young,
Plaintiffs bring their claims pursuant to 42 U.S.C. § 1983. Section 1983 allows parties to sue a “person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983 (2012). Therefore, Defendants essentially contend that Attorney General Cooper is not a person who can be sued under § 1983, and as such, this Court lacks jurisdiction over him.
“Where a state law is challenged as unconstitutional, a defendant must have ‘some connection with the enforcement of the act’ in order to properly be a party to the suit.” South Carolina Wildlife Fed’n v. Limehouse,
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.
Although Defendants contend that District Attorneys who are enjoined from prosecuting a particular crime would not then be able to request that the Attorney General instead prosecute that crime, such a conclusion is not clear by the terms of § 114-11.6, which makes no such caveat to that effect. Therefore, there is no reason to conclude that Attorney General Cooper does not at the outset have the appropriate statutory authority to enforce a violation of § 14-208.18 in situations where the District Attorneys may be enjoined from such enforcement. As such, Attorney General Cooper is a proper defendant in this lawsuit, and the Court will therefore deny Defendants’ Motion to Dismiss Attorney General Cooper for lack of personal jurisdiction.
ii. District Attorneys
Similarly, Defendants contend that this Court does not have personal jurisdiction over the District Attorneys, because with one exception, the District Attorneys have not explicitly threatened any Plaintiffs with prosecution. Defendants imply that this Court lacks personal jurisdiction even over the District Attorney who charged John Doe 1 with violating § 14. 208-18 in 2011, because the charges were ultimately dismissed. In the alternative, Defendants ask that this Court limit the District Attorney defendants to only those in the counties where Plaintiffs reside (Cleveland County, Wake County, Forsyth County, and Alamance County), as opposed to all prosecutorial districts within the State.
However, Plaintiffs contend that, regardless of whether Plaintiffs have actually been prosecuted or explicitly threatened with prosecution, this Court has jurisdiction over all the District Attorneys, because they all have the statutory authority to enforce § 14. 208-18. Furthermore, Plaintiffs contend that there is no basis for limiting the Defendants to those in the prosecutorial districts in which Plaintiffs reside, as Plaintiffs may readily travel outside of the prosecutorial districts in which they reside.
As previously explained, Attorney General Cooper has the statutory authority to enforce the challenged statute, and thus, is a proper defendant in this lawsuit. Similarly, the District Attorneys each have the authority to prosecute individuals for violating the challenged statute. See N.C. Gen.Stat. § 7A-61 (“The district attorney shall ... prosecute in a timely manner in the name of the State all criminal actions and infractions requiring prosecution in the superior and district courts of his pros-ecutorial district....”). Furthermore, Defendants do not cite any authority for the Defendants’ alternative contention that only those District Attorneys in the counties where Plaintiffs reside should be required to remain in this lawsuit. Indeed,
C. Motion to Dismiss for Failure to State a Claim
In reviewing a motion to dismiss for failure to state a claim, pursuant to Rule 12(b)(6), the Fourth Circuit has directed that courts “ ‘take the facts in the light most favorable to the plaintiff,’ but ‘[they] need not accept the legal conclusions drawn from the facts,’ and ‘[they] need not accept as true unwarranted inferences, unreasonable conclusions, or arguments.’ ” Giarratano v. Johnson,
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly,
As previously explained, Plaintiffs are registered sex offenders who are subject to the location restrictions of § 14-208.18(a), which restrict where Plaintiffs can “knowingly be.” N.C. GemStat. § 14-208.18(a), (c). The North Carolina Court of Appeals has held that the three provisions within § 14-208.18(a) describe three separate and distinct criminal offenses. State v. Daniels,
In challenging § 14-208.18’s constitutionality under the U.S. Constitution,
Plaintiffs also claim that § 14-208.18 precludes them from attending worship services (because most churches have minor members and a Sunday school or day care area), going to the hospital (due to the presence of children’s units and day care centers), and protesting on the steps of the General Assembly (because children’s groups regularly enter the building for educational programs and the General Assembly is across the street from a museum with children’s programs). In addition, Plaintiffs contend that § 14-208.18 precludes them from participating in organized recreational activities (because such activities often take place at locations where youth recreational activities also occur) or taking classes at universities and community colleges (due to minors regularly attending educational programs at institutes of higher learning).
Plaintiffs also claim that those subject to § 14-208.18 are severely burdened in then-ability to work (because the work itself must not be in any place within the zones proscribed by § 14-208.18, and must not require the employee to ever enter those zones) and to travel (due to overlapping “off-limits” zones under § 14-208.18, which can “render[] the simple act of going to work or walking down a public street a legal minefield”). In addition, Plaintiffs contend that those subject to § 14-208.18 are severely limited in their ability to associate with others (because participation in any social group with minor members, or any social group that meets at or near a place used by minors, is proscribed, regardless of whether minors are present or not) and to participate in the education and social life of their own children (though Plaintiffs acknowledge that § 14-208.18 allows a registrant to go to his child’s school, the allowance is only for parent-teacher conferences or upon specific request by the school principal, as long as notice is given before the registrant enters the location and as long as the registrant is “under supervision”).
Defendants contend that all of Plaintiffs’ claiins should be dismissed for failure to state a claim, pursuant to Rule 12(b)(6). The Court will consider each claim in turn,
i. Overbreadth
Plaintiffs bring an overbreadth challenge, contending that § 14-208.18 infringes on their exercise of fundamental liberties, because it is not narrowly tailored to achieve a compelling state interest, Specifically, Plaintiffs contend that § 14-208.18 severely burdens the following rights and interests of Plaintiffs and other individuals required to register as a sex
In general, “[t]o succeed in a typical facial attack, [a party] would have to establish ‘that no set of circumstances exists under which [a statute] would be valid,’ or that the statute lacks any ‘plainly legitimate sweep.’ ” United States v. Stevens,
As a preliminary matter, it appears that Plaintiffs intend to bring both a facial and an as-applied overbreadth claim. (See Am. Compl. [Doc. # 28] ¶ 126 (“Section 14-208.18 is unconstitutional as applied to Plaintiffs’ exercise of fundamental liberties-”); Resp. to Mot. to Dismiss [Doc. # 13], at 10 (“With regard to Plaintiffs’ facial overbreadth challenge.... ”)). However, the Plaintiffs do not cite any authority supporting the application of the overbreadth doctrine to an as-applied challenge. Indeed, there is straightforward recent precedent suggesting that there is no such thing as an as-applied overbreadth challenge. E.g., Farrell v. Burke,
Furthermore, Plaintiffs make clear that their first cause of action is not a standard facial challenge to § 14-208.18. Indeed, Plaintiffs have repeatedly defined their first cause of action as one that is limited to an overbreadth challenge. (See Resp.
Because Plaintiffs’ first cause of action is limited to an overbreadth challenge, it is important to note that “the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when ‘judged in relation to the statute’s plainly legitimate sweep.’ ” City of Chicago v. Morales,
As such, to the extent that Plaintiffs attempt to invalidate § 14-208.18 as overbroad based on any other type of rights—fundamental or otherwise—aside from free speech rights, the overbreadth doctrine is not the appropriate vehicle for such a challenge. See id. at 118-19,
To prevail on an overbreadth challenge, the statute’s overbreadth must be both “real’’ and “substantial,” as assessed “in relation to the statute’s plainly legitimate sweep.” Hill v. Colorado,
However, the overbreadth doctrine operates to invalidate statutes, “not because [the plaintiffs’] own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Hill,
Here, § 14-208.18 precludes Plaintiffs and others who are subject to its proscriptions from protesting or even being in areas where free speech and expression is particularly important and common, including on the steps of the General Assembly, because children’s groups regularly enter the building for educational programs and the General Assembly is across the street from a museum with children’s programs. As such, Plaintiffs allege that the entire General Assembly is off-limits to those subject to § 14-208.18, with no ex
However, the three subsections of § 14-208.18 do not each result in an assessment of “real” and “substantial” overbreadth “in relation to the statute’s plainly legitimate sweep.” Although none of them allow for any of the exceptions discussed above, they do not all appear to reasonably extend to include speech in traditional public fora. Specifically, § 14-208.18(a)(l) forbids those subject to § 14-208.18’s restrictions from knowingly being “[o]n the premises of any place intended primarily for the use, Care, or supervision of minors, including, but not limited to, schools, children’s museums, child care centers, nurseries, and playgrounds.” Because this subsection is specifically limited to only those places intended primarily for the use, care, or supervision of minors, the overbreadth of this section will not be substantial.
In contrast, § 14-208.18(a)(2) criminalizes those subject to § 14-208.18’s restrictions from knowingly being “[w]ithin 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors, including, but not limited to, places described in subdivision (1) of this subsection that are located in malls, shopping centers, or other property open to the general public.” Such a restriction expressly applies to property open to the general public, and based on Plaintiffs’ allegations, this restriction may operate in practice to render the General Assembly and most traditional public fora off-limits to individuals who would otherwise like to exercise their right to free speech. Therefore, at this stage in the litigation, § 14-208.18(a)(2) appears to be substantially overbroad.
Similarly, § 14-208.18(a)(3) criminalizes those subject to § 14-208.18’s restrictions from knowingly being “[a]t any place where minors gather for regularly scheduled educational, recreational, or social programs.” Plaintiffs allege that minors gather for regularly scheduled educational
Therefore, Plaintiffs have stated a claim upon which relief may be granted that subsections (a)(2) and (a)(3) are overly broad. As such, to the extent that Plaintiffs raise a facial overbreadth challenge to § 14-208.18 based on their free speech rights, the Court denies Defendants’ Amended Motion to Dismiss [Doe. #30]. However, to the extent that Plaintiffs attempt to bring an as-applied overbreadth claim or an overbreadth challenge as to rights other than freedom of speech and expression, those claims are dismissed, for the reasons explained above.
ii. Vagueness
Plaintiffs’ second claim alleges that § 14-208.18(a)’s subsections are unconstitutionally vague. Specifically, piaintiffs contend that § 14-208.18(a)’s language is unclear, such that “people of ordinary intelligence could reasonably disagree about the law’s prohibitions, because it provides law enforcement, prosecutors, judges, and juries with an inadequate guide as to what conduct, specifically, is prohibited by the statute, and because it impermissibly interferes with and inhibits the exercise of fundamental liberties.” (Am. Compl. [Doc. # 28] ¶ 129.) Defendants respond that no part of § 14-208.18(a) is unconstitutionally vague, because “[a]ny individual of average intelligence could read [it] and understand what conduct is prohibited.” (Mot. to Dismiss [Doc. # 9], at 21.)
“It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits.... ” Morales,
“Vagueness may invalidate a criminal law for either of two independent reasons[: fjirst, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement.” Id. at 56,
Adequate notice is necessary in order “to enable the ordinary citizen to conform his or her conduct to the law.” Morales,
All three subsections of § 14-208.18 incorporate the term “place.” Beginning first with § 14-208.18(a)(l), this subsection criminalizes “knowingly be[ing]” “[o]n the premises of a place intended primarily for the use, care, or supervision of minors, including, but not limited to, schools, children’s museums, child care centers, nurseries, and playgrounds.” N.C.G.S. § 14-208.18(a)(1) (emphasis added). As the statute does not define “place,” the Court looks to Webster’s Third New International Dictionary, which defines “place” in relevant part as “a building or locality used for a special purpose.” Webster’s Third New International Dictionary 1727 (1993). Although the general definition of “place” is that of “a building or locality,” the general definition of “locality” does not seem to apply to the way “place” is used in this statute.
However, the inclusion of nurseries and playgrounds as enumerated examples included within this definition of “place” belies a definition that limits a “place” to an entire building. For example, it seems reasonable that a McDonald’s PlayPlace could be a prohibited “place” under § 14-208.18(a)(1), as it is likely qualifies as a “playground,” which is an enumerated example in § 14-208.18(a)(l). Indeed, the inclusion of “playground” as an enumerated example appears to include a playground at a park.- Therefore, although the general definition appears to limit a “place” to a building, the enumerated examples lead one to conclude that “place” is intended to be broader. As such, it seems plausible that the term “place” hypothetically could include a specific child-centric area that could occupy an entire building, a
Understanding what is meant by “place” is critical to understanding the statute’s restrictions, not just in the case of § 14-208.18(a)(1), but also as’ to § 14-208.18(a)(2) and § 14-208.18(a)(3) as well. Subsection 14-208.18(a)(2) incorporates “place” and the other two area-based terms used in this statute by restricting access “[wjithin 300 feet of any location. intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors, including, but not limited, to, places described in subdivision (1) of this subsection that are located in malls, shopping centers, or other property open to the general public.” N.C.G.S. § 14-208.18(a)(2) (emphasis added).
The questions about what exactly constitutes a “place” under this statute are not purely theoretical. Multiple North Carolina courts have held that various subsections of § 14-208.18 are unconstitutionally vague as applied to particular defendants. E.g., State v. Daniels,
Although such reasoning applies to all three subsections, the Court notes there appears to be an additional problem with regard to § 14-208.18(a)(3), which restricts access to “any place where minors gather for regularly scheduled educational, recreational, or social programs.” N.C.G.S. § 14—208.18(a)(3). Here, the “regularly scheduled educational, recreational, or social programs” language specific to § 14—208.18(a)(3) is also problematic in terms of notice. This limitation is not specific to regularly scheduled programs for minors. Rather, it appears to apply to all regularly scheduled educational, recreational, or social programs for which “minors gather.” There is no indication how often such programming must occur in order to be “regularly scheduled” or how many minors must gather to qualify. For example, it is unclear whether an annual Fourth of July program would qualify as “regularly scheduled” if it occurs in the same place every year. Furthermore, it is unclear how often minors must gather for such programming—whether minors should attend most of the time when such programming occurs or whether it is sufficient that two minors gathered once for such programming. Because of the uncertainty surrounding the meaning of this language, this language also operates to render § 14—208.18(a)(3) unconstitutionally vague.
Therefore, because the term “place” in all three subsections of § 14-208.18(a) and § 14-208.18(a)(3)’s “regularly scheduled educational, recreational, or social programs” result in a lack of adequate notice to ordinary people about where those subject to § 14-208.18 are prohibited from going, Plaintiffs have stated a claim that each subsection of § 14-208.18(a) is unconstitutionally vague.
iii. Equal Protection
Plaintiffs’ third cause of action alleges an equal protection claim. Defendants contend that this claim fails because the statute is rationally related to a legitimate state interest. The Equal Protection Clause of the Fourteenth Amendment provides, “No State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const.
Plaintiffs do not contend that they are part of a suspect classification that would call for heightened scrutiny. Indeed, Plaintiffs conceded at the August 8 hearing that rational basis review applies to this challenge. However, Plaintiffs contend that they have still stated an equal protection claim, because the sub-group of sex offenders who are subject to § 14-208.18’s location restrictions is not rationally defined, as members of this group “share no characteristic that is rationally related to the purpose of the statute.” (Am. Compl. [Doc. #28], U1Í131, 132; Resp. to Am. Mot. to Dismiss [Doc. # 32], at 2-4.)
“Under an Equal Protection analysis, courts generally hold that ‘legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a .legitimate state interest.’ ” Giarratano,
“ ‘[A] State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some “reasonable basis,” it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.” ’ ” Id. (quoting Dandridge v. Williams,
Plaintiffs acknowledge that “there is some evidence of a minor correlation between some ‘sex offenders’ and marginally increased rates of recidivism,” but contend that “there is no evidence of any statistical correlation” between the sub-group of sex offenders subject to § 14-208.18 and increased recidivism. (Resp. to Am. Mot. to Dismiss [Doc. #32], at 3.) The location restrictions of § 14-208.18 apply to those registered sex offenders who have either been convicted of an offense under Article 7A of Chapter 14 (collectively, “rape and
iv. Procedural Due Process
Finally, Plaintiffs contend that the application of these location restrictions to them throughout the period of registratioii,
In Connecticut Department of Public Safety, a sex offender argued that inclusion in an online registry that was publicly disposed without a hearing violated his procedural due process rights.
Plaintiffs here attempt to distinguish their claim from that raised in Connecticut Department of Public Safety, stating that “due process requires the State to evaluate their threat to minors at some point before their rights are stripped away, based on an arguable, and at best minor, statistical correlation between the
Unless respondent can show that that substantive rule of law is defective (by conflicting with a provision of the Constitution), any hearing on current dangerousness is a bootless exercise. It may be that respondent’s claim is actually a substantive challenge to Connecticut’s statute ‘recast in “procedural due process” terms.’.... But States are not barred by principles of ‘procedural due process’ from drawing such classifications. Such claims “must ultimately be analyzed” in terms of substantive, not procedural, due process.
In sum, the Court will grant in part and deny in part Defendants’ Amended Motion to Dismiss [Doc. #30], pursuant to Rule 12(b)(6). Specifically, the Court grants Defendants’ Motion as to Plaintiffs’ equal protection and procedural due process claims. The Court also grants Defendants’ Motion to the extent that Plaintiffs attempted to bring an as-applied over-breadth claim, an overbreadth claim based on rights other than those of free speech and expression, and an overbreadth claim as to § 14-208.18(a)(l). However, the Court denies Defendants’ Motion as to Plaintiffs’ overbreadth challenge to § 14-208.18(a)(2) and § 14-208.18(a)(3) with regard to free speech and expression. Finally, the Court also denies Defendants’ Motion as to Plaintiffs’ vagueness challenge to all three subsections of § 14-208.18(a), because the term “place” in all three subsections of § 14-208.18(a) and § 14-208.18(a)(3)’s “regularly scheduled educational, recreational, or social programs” result in a lack of adequate notice to ordinary people about where those subject to § 14-208.18 are prohibited from going.
III. MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs’ Motion for Preliminary Injunction [Doc. # 17] seeks to enjoin § 14-208.18 “as it applies to prevent [Plaintiffs] from participating in religious worship services and other religious gatherings” and to enjoin enforcement of only § 14-208.18(a)(3) on the grounds that it is unconstitutionally vague. Defendants contend that this Motion should be denied because Plaintiffs have not made a clear showing that they are likely to succeed on the merits, they have not made a clear showing that they will suffer irreparable harm in the absence of an injunction, and an injunction is not in the public interest.
Injunctive relief is an extraordinary remedy that may be awarded only upon a clear showing that the plaintiff is entitled to such relief. Mazurek v. Armstrong,
As previously discussed, Plaintiffs’ overbreadth claim only survives Defendants’ Amended Motion to Dismiss as a facial challenge to § 14-208.18(a)(2) and § 14-208.18(a)(3) based on free speech rights. As such, Plaintiffs cannot show a likelihood of success on the merits that they will prevail on their overbreadth claim that § 14-208.18 should be enjoined “as it applies to prevent [Plaintiffs] from participating in religious worship services and other religious gatherings.” (Mot. for Prelim. Inj. [Doc. # 17], at 1 (emphasis added).) Therefore, Plaintiffs’ Motion for Preliminary Injunction is denied as to this attempted as-applied overbreadth challenge based on Plaintiffs’ freedom to exercise their religion.
With regard to Plaintiffs’ - motion to enjoin only § 14-208.18(a)(3) on the grounds that it is unconstitutionally vague, even assuming, arguendo, that Plaintiffs have made the requisite showing as to the first three elements of a successful motion for preliminary injunction, the Court must deny Plaintiffs’ Motion if they have not made a clear showing that granting a preliminary injunction is in the public interest. Id. at 20,
IT IS THEREFORE ORDERED that Defendants’ Amended Motion to Dismiss and to Intervene as a Matter of Right [Doc. #30] is hereby GRANTED IN PART and DENIED IN PART. Specifically, Defendants’ Amended Motion to Dismiss pursuant to Rule 12(b)(6) is GRANTED as to Plaintiffs’ equal protection claim and procedural due process claims. Furthermore, Defendants’ Amended Motion to Dismiss pursuant to Rule 12(b)(6) is also GRANTED to the extent that Plaintiffs attempt to bring an as-applied overbreadth claim, an overbreadth claim based on rights other than those of free speech and expression, and an overbreadth claim as to § 14-208.18(a)(l).
However, Defendants’ Amended Motion to Dismiss pursuant to Rule 12(b)(6) is DENIED as to Plaintiffs’ overbreadth challenge to § 14-208.18(a)(2) and §' 14-208.18(a)(3) with regard to free speech and expression. Defendants’ Amended Motion to Dismiss pursuant to Rule 12(b)(6) is also DENIED as to Plaintiffs’ vagueness challenge to all three subsections of § 14-208.18(a). In addition, for the reasons stated herein, Defendants’ Amended Motion to Dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(2) is DENIED.
Finally, IT IS ORDERED that Plaintiffs’ Motion for Preliminary Injunction [Doc. # 17] is DENIED.
Notes
. N.C. General Statute § 14-208.7 requires that North Carolina residents with a "reportable conviction” register as sex offenders. N.C. Gen.Stat. § 14-208.7(a) (2013). N.C. General Statute § 14-208.6(4) defines “reportable convictions” to include the following:
a. A final conviction for an offense against a minor, a sexually violent offense, or an attempt to commit any of those offenses unless the conviction is for aiding and abetting. A final conviction for aiding and abetting is a reportable conviction only if the court sentencing the individual finds that the registration of that individual under this Article furthers the purposes of this Article as stated in G.S. 14-208.5.
b: 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.
c. A final, conviction in a federal jurisdiction (including a court martial) of an offense, which is substantially similar to an offense against a minor or a sexually violent offense as defined by this section.
d. A final conviction for a violation of G.S. 14-202(d), (e), (f), (g), or (h), or a second or subsequent conviction for a violation of G.S. 14-202(a), (al), or (c), only if the court sentencing the individual issues an order pursuant to G.S. 14—202(Z) requiring the individual to register.
e.A final conviction for a violation of G.S. 14-43.14, only if the court sentencing the individual issues an order pursuant to G.S. 14-43.14(e) requiring the individual to register.
N.C. Gen.Stat. § 14-208.6 (2013). The following offenses are defined as "sexually violent offenses” under § 14-208.6(5): first-degree rape; rape of a child by an adult offender; second-degree rape; first-degree sexual offense; sexual offense with a child by an adult offender; second-degree sexual offense; sexual battery; attempted rape or sexual offense; intercourse and sexual offense with certain victims; statutory rape or sexual offense of person who is 13, 14, or 15 years old where the defendant is at least six years older; human trafficking if the offense is committed against a minor who is less than 18 years of age or the offense is committed against any person with the intent that they be held in sexual servitude; subjecting or maintaining a person for sexual servitude; incest between near relatives; employing or permitting minor to
. The location restrictions of § 14-208.18(a) do not apply to all individuals required to register as sex offenders under North Carolina law. Rather, they apply only to those sex offenders who have committed any of the following offenses: (1) any offense in Article 7A of Chapter 14 of the N.C. General Statutes (this includes first-degree rape, rape of a child by an adult offender, second degree rape, first-degree sexual offense, sexual offense with a child by an adult offender, sexual battery, intercourse and sexual offenses with certain victims, and statutory rape or sexual offense of a person who is 13, 14, or 15 years old); or (2) any offense where the victim of the offense where the victim of the offense was under the age of 16 years at the time of the offense. N.C. GemStat. § 14-208.18(c).
. Plaintiffs allege that the rate of recidivism for SOAR graduates is significantly less than that of non-participants. (Am. Compl. [Doc. #28] V 48.)
. Although the Amended Motion to Dismiss [Doc. #30] renders the original Motion to Dismiss [Doc. # 8] moot, the Court notes that both Defendants’ Amended Motion to Dismiss Brief [Doc. #31] and Plaintiffs' Response [Doc. # 32] incorporate the arguments that parties previously made in the original Motion to Dismiss Brief [Doc. # 9] its original Response [Doc. # 13]. (Am. Mot. to Dismiss Br. [Doc. #31], at 1; Resp. to Am. Mot. to Dismiss [Doc. #32], at 1.) Therefore, the Court will consider the arguments and legal support from both the original Motion to Dismiss Brief and Response, even though the original Motion to Dismiss is now moot, and has been terminated as such.
. The Court notes that this conclusion does not rely in any part on Plaintiffs’ request that the Court also consider the harm also to those who wish to include Plaintiffs in religious worship, association, and family life. To the extent that Plaintiffs ask the Court to consider injury suffered by those who are indirectly affected by § 14-208.18, Plaintiffs do not appear to have standing to assert such an injury on behalf of these individuals, as all Plaintiffs are individuals who are subject to, and therefore, directly affected by, § 14-208.18’s proscriptions.
. Defendants originally also argued that this Court lacked personal jurisdiction over Governor Pat McCrory, but Plaintiffs removed Governor McCrory as a defendant in their Amended Complaint. Therefore, the issue of whether this Court has personal jurisdiction over Governor McCrory is now moot.
. The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend. XI. Although by its terms, the Eleventh Amendment applies to suits brought against a State by "Citizens of another State,” it is well established that "an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” Edelman v. Jordan,
. Because Attorney General Cooper is a proper party in this action, the matter of whether Attorney General Cooper may intervene as a matter of right, pursuant to Federal Rule of Civil Procedure 24(a), is moot.
. Plaintiffs have made clear that they are only bringing claims pursuant to the U.S.
. This limitation to the overbreadth doctrine makes sense in light of the overarching purpose of the overbreadth doctrine. The over-breadth doctrine exists because "there comes a point at which the chilling effect of an overbroad law, significant though it may be, cannot justify prohibiting all enforcement of that law—particularly a law that reflects ‘legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct.’ " Hicks,
. Indeed, these restrictions appear likely to extend to many areas that would constitute traditional public fora, where the government's ability to restrict speech is "very limited.” McCullen v. Coakley, - U.S. -,
. Webster's Third New International Dictionary offers the following area-based definitions for ''locality”: "(l)(a) the fact or condition of having a location in space or time; (b) restriction to a particular place; (2) a particular spot, situation, or location: as (a) the place from which something (as a sample of a mineral or a specimen of a plant) was obtained or is available, (b) a place having or considered in respect to a particular feature, (c) a political subdivision of a state; (3)(a) space or place reference: orientation in respect to space....” Third New International Dictionary 1327 (1993). None of these definitions appear to apply to the statute’s use of the term ''place.”
. The problems in defining “place” are compounded when considering that (a)(1) prevents anyone subject to it from knowingly being "on the premises” of such a place. “Premises” is defined in relevant part by Black's Law Dictionary as "[a] house or building, along with its grounds.” Black's Law Dictionary (9th ed.2009) (emphasis added). As such, it appears that § 14-208.18(a)(1) prevents those subject to § 14-208.18’s proscriptions from accessing not just the "place” itself, but the entire property grounds on which such a “place” is found. This does not seem particularly problematic in several of the enumerated examples, such as schools, children’s museums, or child care centers, where it is obvious that there is a forbidden place on the premises. However, this subsection also prevents access to the entire premises when the "place” would apparently be a smaller area than the entire building, such as a nursery or playground. Therefore, § 14-208.18(a)(1) appears to prohibit access to the entire McDonald's property in the PlayPlace example, or perhaps even access to an entire shopping center premises if the McDonald’s PlayPlace is located in such a shopping center.
. Based on the statutory context, the most logical reading is that "location” is used interchangeably with "place.” See N.C. Gen. Stat. § 14-208.18(a)(2) ("[w]ithin 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors....”). As such, the 300 foot perimeter appears to be drawn from the outer bounds of the smaller child-centric area—that is, the location or place—rather than the premises, if "place” is not just limited to an entire building.
. Because the Court reaches this conclusion, it need not consider whether § 14-208.18 is also vague for the independent reason that it violates "the requirement that a legislature establish minimal guidelines to govern law enforcement." See Morales,
. The period of registration is either 30 years or life. N.C. Gen.Stat. § 14-208.6A. If the applicable period of registration is 30 years, the registrant may, after 10 years of registration, petition a superior court for removal from the registry. Id.
. United States v. Kebodeaux, - U.S. -,