[00:00] Introduction: Welcome to Registry Matters, an independent production. Our opinions are our own, and we’re thankful for the support of our patrons. You make what we do here possible. And always remember, F.Y.P.
[00:17] Andy: Recording live from FYP Studios East and West, transmitted across the internet, this is episode 386 of Registry Matters. Larry, Saturday again, what are you up to?
[00:29] Larry: I’m enjoying another toasty weekend in the land of enchantment. And toasty triple digits? No, we’re staying around a comfortable temperature.
[00:40] Andy: 97 to 99. A stone’s throw from that. Do us a favor and press like and subscribe in your favorite podcast app. It helps because everything these days is about algorithms. When you do that, it tells people this program is worthwhile. Considering there are around 750,000 BFRs out there, wouldn’t you agree, Larry? And if you want to be generous, head over to Patreon. We have a couple dozen patrons listening live here on a Saturday night at 7:11 p.m. East Coast time. What are we doing tonight?
[01:38] Larry: Well, we have a case from the North Carolina Supreme Court and an update of another case pending in the United States District Court for the Eastern District of North Carolina. This is North Carolina night. In that case, it’s a win, at least for now. We also have a question from a senior gentleman incarcerated in South Dakota named Craig. He sent it in last minute, so I added it here.
[02:10] Andy: Well, let’s begin there.
[02:11] Guest 1: In Florida, one county let 39 businesses call themselves parks—a clothing store. Suddenly, almost 99% of housing is off-limits. A new federal lawsuit takes that on, and it will take years.
[02:37] Andy: I hope to submit my commutation this coming week so I can be paroled in less than two years. I’ve just learned the Department of Corrections requires us to attend three different sex offender classes once a week. They’re referred to as therapy classes. I assume, and I’m hoping, Medicare or Medicaid will cover the $50 to $90 a week cost. The first class is 12 weeks long and no cost, but it’s required along with a lie detector test in order to get out. The lie detector test costs $100 if paid before parole, but $325 if you don’t have the money before parole. I’m sensing a money machine. The second class can be taken while still in prison and is 12 months long. I wish I knew that earlier. This is also weekly. You may recall my cellmate, 93-year-old Don, had to have his wife drive him one hour to Sioux Falls, South Dakota each week until he died. If you don’t attend or are late, you risk being sent back to prison. Violator! And the third class, I have no information on; maybe they never got to number three. Somewhere in the required courses, we are required to share with our fellow inmates our private and personal sexual experiences and fantasies. So I’m watching TV news, and a woman’s $40 million was awarded TikTok for violating privacy laws. Now, as I grew up believing, what happens in your home is your business. I’m going to assume that since this is therapy, it’s okay to share our experiences and fantasies with non-professionals, as well as the instructors. Obviously, I haven’t personally experienced this, but my roommates have. I personally believe this part of the course is an intrusion of our private lives. It just reeks of porn so others can learn how to be more deviant. There’s no other form of crime that I am aware of—maybe drugs or alcohol—that requires this level of intrusion. Are you aware of these courses?
[04:56] Larry: No, I’m not aware specifically of South Dakota’s courses and their structure there, but I do know that these are common things that happen. The treatment, I think we’ve referred to it through the years as a collaborative fishing expedition. Do you remember that term? I haven’t used it in a while. I think it’s an incredibly good term. That’s what I see it as being. Now, with the exception of one state on the eastern seaboard that starts with an M—midway up the Atlantic coast—they are purest wind-driven snow.
[05:31] Andy: I’m trying to think of a state on the eastern seaboard that starts with an M, but I’ve drawn a blank. And purest wind-driven snow.
[05:41] Larry: Yes, Maryland. Now, everything that goes on there is perfect with the best of intentions, but I don’t know about this. The laugh track was because I’m doubting that Medicare or Medicaid will pay for this, but I’m not 100% sure. I know the states, the ones that believe the federal government is too large and too overreaching and too vast and enormous, those states are the first to put their paws out to get federal dollars. So I have heard that they can access Medicaid funding for people at some stage of their incarceration. As far as Medicare, I’m not sure that I’ve ever heard of it paying for anything while a person’s incarcerated. But again, I don’t know that. It’s not a question. It comes up. But I wouldn’t count on Medicare or Medicaid because while you’re under incarceration, your Social Security has been suspended. And Medicare comes with age or blindness or disability, but I’m not sure if it’s going to pay for that. So if I were Craig, I would be looking for other options because if they don’t cover it, then it’s going to need to be covered according to his narrative. Would you agree with that? If you’ve got to do it to get out.
[07:01] Andy: totally. If that’s part of your check on the boxes to say so that you can get out, sounds like a thing you’d have to do.
[07:09] Larry: It does. But I’m asking our vast audience that stretches not only coast to coast but even internationally. I’m asking our vast audience to help us with these particular classes because the disclosures are quite common. They will ask you for a sexual history disclosure and then they’ll polygraph you against your answers. The problem is, a person who is 79 years old isn’t going to remember every sex episode they’ve ever had unless they’ve only had one episode in their life. How would you remember that? How would you document all that?
[07:46] Andy: In one of my classes, there was a guy whose instructor acknowledged he had a really bad memory. The instructor said, “I can’t trust your polygraph results because you might not even acknowledge what you did.” So the instructor told him to take a plethesmograph instead. I was like, What? Seriously?
[08:09] Larry: Can you please enlighten our audience about how that test is conducted and what exactly it measures, as well as its accuracy?
[08:19] Andy: Can almost guarantee you the accuracy is going to be poor. First of all. But as far as what it is, if you imagine that you go to the doctor and they put the blood pressure cuff on your arm, can you imagine going to another area that under certain circumstances may show an increase in blood pressure? Did I work that out right?
[08:43] Larry: An increase in blood pressure. Let’s see. What could that be? What part of the anatomy is that on?
[08:51] Andy: I mean, let’s just say it’s male specific. External plumbing specific. And it’s about mid-region.
[08:58] Larry: Roughly. Okay, I think I’m getting the picture now. It measures something. So I think I’ve heard of that test before. They stimulate you with visual images and then measure your reaction through some kind of device. What’s the name of the device again?
[09:18] Andy: Oh, the plethysmograph? How do you pronounce that? Plethysmograph. I can’t even pronounce it. It’s almost like plasma graph, but then plethesma. I spend a lot of time trying to figure out what this stupid word means. I had to look it up and was like, oh my God, they put the tiniest blood pressure cuff around your man junk and show you naughty pictures to see if you get aroused by them. Seriously? And what does that even prove? So let’s say hypothetically, Larry, that you are aroused by pictures of people under whatever age you want to pick. That doesn’t mean you’re going to act on it. So what does it prove?
[10:04] Larry: Well, theoretically, I would guess it could be useful in directing impulse control urges and so-called treatment if it were legitimate. But the problem is that nothing is used legitimately. It’s like the GPS system. When they devised it to monitor offenders, they said we’d empty our prisons because we can track people all the time. We’ll save a whole bunch of money. Well, that didn’t happen. Very few people got out of prison because of GPS monitoring who wouldn’t have gotten out anyway. And now everybody on pre-trial supervision has GPS monitoring. They created a new regime of supervision and revenue. Same thing with this device. It could be useful in the right circumstances, but it’s not used that way.
[11:18] Andy: Okay. So by comparison, let’s say we take Jeffrey Dahmer and show him pictures of doing terrible things to people. Does that mean the person is going to act on that information? Or if you show a drug addict pictures of drugs after they’ve been clean for a while, does that prove they’re going to relapse?
[11:45] Guest 2: It’s
[11:46] Larry: thought crime. It doesn’t prove they’re gonna relapse, but it would help you create an impulse control barrier around the individual. We know you’ve got urges in that area. If we were really trying to treat you and prevent recidivism rather than collectively trying to put you back into prison, we would help you with treatment. It’s kind of like the guy who came to a class and said, I just can’t help myself when I drive home past the park; I cast my eyes at the people in the park. And many of them were minors. He called the probation department because he thought it was a help number. But calling that number could end up with him getting sent back to jail.
[12:37] Andy: I have urges. And they immediately put him in someplace safe and secure, right?
[12:42] Larry: Exactly what they did. But if it were real treatment, they would have said, okay, let’s deal with those urges. What are you thinking?
[12:50] Andy: I don’t think that’s how generally treatment goes in this arena. That is not how it works. If you were having private treatment that you selected the treatment provider and it was one-on-one, that would be a very different situation. But sitting in a classroom with 12 of your best friends, no, that is not what this is about.
[13:09] Larry: Nope, it is not. And the sooner we realize that society is getting taken for a ride, but they don’t care. That’s what I tell people. They still don’t care. They say, we’re going to save money. Got a guy up in Colorado trying to get a bunch of PFRs off the registry. He said, what’s your strongest argument? I said, go save money. I said, that doesn’t do anything. Keep going. What else do you have?
[13:31] Andy: Okay. Also, are you completely familiar with the laws and all that stuff in South Dakota?
[13:40] Larry: No, but I’m appealing to the audience. If anyone can provide any help, shoot us an email or make a phone call and we’ll pass it on to him. I’m actually in communication with him regularly and will pass along reliable information.
[13:59] Guest 3: Well, cameras on your street photograph every car that passes, and a private company owns the pictures. Police have used those systems to hunt people by status and by protest.
[14:25] Andy: All right, well then, let’s cover this North Carolina church case. Very good? Sounds good. On October 6th, 2025, about nine months ago, Reese’s Chapel Missionary Baptist Church, which we’ll call Reese’s Chapel from now on, and John Doe, whom we’ll call Doe, filed a complaint against Asa Buck in his official capacity as sheriff of Carteret County, North Carolina. That was a mouthful. So what is this about?
[15:08] Larry: This action arises from Doe’s desire to attend religious services at the Reese’s Chapel worship hall, which is within 300 feet of areas used for minors and by minors. North Carolina restricts such attendance by registered offenders who committed an offense against a minor. The plaintiffs assert three claims under 42 United States Code Section 1983 and the First Amendment: freedom of speech as count one, free exercise of religion as count two, and the right to associate as count three. Now, this is what I’ve been dreaming for—a church that actually wants a person to be with them. Unfortunately, NARCIL had the case mistakenly referred out, but it’s been handled by another entity. But this is exactly what I’ve been hoping for.
[16:06] Andy: Now, I just want to chime in because my legal prowess here is going to shine. Isn’t a 1983 claim like a constitutional claim?
[16:15] Larry: Yes, that’s how you seek redress in the federal court system. And it’s a big deal because it’s going to pay attorney’s fees when the final decision against the county is made. They’re going to have to pony up and they’ll laugh about it and keep doing what they’re doing.
[16:31] Andy: Now, this is also the state that did something similar-ish with Packingham with the First Amendment claim and the guy on Facebook.
[16:38] Larry: That is correct.
[16:40] Andy: Okay, so they’re taking another swing at it.
[16:43] Larry: This is the state that believes in individual freedom. I keep harping on that because the people who vote for these folks claim to be freedom lovers, but yet they vote for people who take their freedoms away.
[16:55] Andy: All right, well then, all right, set this up. January 13th, 2026, Buck moved to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim and filed a memorandum on March 7th, 2026. Plaintiffs responded in opposition. What happened next? Well,
[17:17] Larry: the court denied Buck’s motion to dismiss the complaint. Reese’s Chapel is a religious organization that offers religious services in Newport, North Carolina. Reese’s Chapel has a small play area and an area used for religious education of minors within 300 feet of its worship hall. Buck considers Reese’s Chapel to be a place with religious purposes. In recent years, he has reaffirmed the importance of the church on various levels. He stated that he will arrest any person subject to the statute covered person for being present at Reese’s Chapel for any purpose. Now that’s my kind of sheriff.
[18:15] Andy: Very well. All right. The plaintiffs allege that Reese’s Chapel’s core activities are worship, teaching, and evangelizing, that these activities are inherently expressive, that Reese’s Chapel and its members, like Doe, presently seek to associate for the express purpose of these activities, and that the challenged statutes severely burden their ability to associate and engage in these activities. See, whatever, the First Amendment, excuse me, what is CID? I don’t know what that means.
[18:44] Larry: No, that shouldn’t have been there. It’s basically a citation that I didn’t take out.
[18:50] Andy: God. See, I asked you if there were any traps. You said no. Anyway. The First Amendment guarantees all Americans the rights to speak, worship, publish, assemble, and petition their government freely, and each of these rights necessarily carries with it a corresponding right to associate with others. This would seem to be the type of activity a core conservative would support. We’re all about some constitutional stuff, damn it,
[19:15] Larry: right? Well, it would be, except for, you remember we got a little hypocrisy clip. I have one. I have one. Oh my God, I got to find it. I got to find it. That’s all right. For you to come back and call bigots my admirers is a farce. It’s an act of hypocrisy. Hypocrisy. But again, I’m just keep begging the audience, why don’t you call these people out on that? These are the things that they claim they’re for. But government actions tending to curtail the freedom to associate weren’t subject to the closest scrutiny under the First Amendment. The judge stated, quote, to dismiss count three for failure to state a claim. And some, the court denies defendant’s motion to dismiss plaintiff’s complaint for lack of subject matter jurisdiction or failure to state a claim. So guess what, Buck? You got to defend this now. Does the buck stop here? Sorry, I couldn’t resist that one. It will stop when he’s crushed. And we will probably never have this table set the same way again with a church after what happened in the South Carolina church. That we’ve been wanting to cover but we haven’t gotten quite ready to be there. But after they arrested everybody that was running the church and filed unconstitutional charges, guess what? We’ll probably never have another church do this. But this was my dream. And it’s going to
[20:43] Andy: win. And to restate that, because I don’t think we covered that, this is a church that is actually saying they welcome at least this PFR into their church. They’re actually kind of standing up for the PFR, which doesn’t typically happen.
[20:57] Larry: They joined the complaint. I think there’s a relationship between them; I think it’s a son or something. But anyway, this is what we needed, folks. And we finally got a church that said, “We want it. It ain’t none of your business who’s in our congregation.” And they will just lose this one, yes? I don’t see any way they can turn this ship around. They shot everything. Everything that they filed, they will file again. You know, making the same arguments that they made in a motion to dismiss. But briefing on this, you really don’t need it. This is one of those where you’re not going to hear me complain about it; there’s no trial needed on this. This is actually a good case for summary judgment.
[21:37] Andy: Oh, but would it be at all beneficial to take it to court? Would there be something more to gain from it?
[21:44] Larry: I’d have to really look at it more carefully, but I can’t see any need. There’s no record needing to be developed. All the facts are straightforward. We know the dimensions of the building. We know how far the property, the offending property is that causes the church to be interfered with. And we know the separation of church and state is already there. We know it’s none of the damn government’s business about who’s in the church pews. We already know this stuff. We don’t need to develop the record here.
[22:09] Andy: I gotcha. And no matter what, the decision at the end would then be able to be used elsewhere?
[22:16] Larry: Absolutely, because Buck— That’s a 1983 claim, right? Well, it wouldn’t have jurisdiction outside of that federal district, but he is going to appeal if he’s anything like the Butts County Sheriff in Georgia. Yeah, because he’s just—the name and the way he’s coming across when I did my analysis of the complaint. He’s one of those hardheads that—he’ll have to go—he’ll have to be taught a lesson, and he’ll probably never learn even after he loses. He’ll just say the Coets messed him up is what he’ll say. Those federal judges appointed for life are taking over. That’s his state, and he don’t like it, and that’s why he needs to be in office. That’s what he’ll say.
[22:56] Andy: And they will say, thank you, Sheriff Buck, for keeping us safe.
[23:01] Larry: That’s exactly what they’ll have. They’ll vote for him in a landslide.
[23:02] Andy: Is what they’ll do. Just like Buck. And maybe we could capture him saying, I’ll take it all the way to the Supreme Court, and we could have them overlaid on top of each other saying what Gary Long said, and then this guy saying we could have them in harmony saying the same thing.
[23:23] Guest 2: A registered cook sent out 40 applications. Then his probation officer decided restaurants hire teenagers, which quietly made every kitchen in California off-limits. Larry explains why that reading goes way past what the statute actually says. At higher patron levels, you can even get one-on-one time with Larry yourself. Become a patron at patreon.com/slash/registrymatters.
[23:45] Andy: Very well. All right. Well, then, so here we are. We have this case from North Carolina Supreme Court. The case is State of North Carolina versus William David Lingerfeld. And this sounds like a criminal case. It is. What was your first clue? Well, it’s the state of North Carolina that they’re suing. Well, they’re the prosecutor or whatever. Wait, I don’t know. It’s pretty difficult, but the name gave me a clue, I guess. So why are we using FYP’s valuable time for this? Now, I’ve read it, and I was pressure washing dog poo from underneath my lawnmower while I was reading it. But it doesn’t seem like it’s a win to me. It’s not. Do we only discuss successful cases here at FYP? Generally, since you’re Mr. Doom and Gloom, but we prefer to. So tell us what this case is about.
[24:40] Larry: A divided panel on the North Carolina Court of Appeals affirmed an order denying Lingerfeld’s petition for termination of his duties. The order denying his removal petition was entered on May 22nd, 2023 by Judge Thomas Davis in Superior Court of McDowell County. So that’s what this case is about. He would like to get off the registry. Can you imagine that? Weird.
[25:08] Andy: We have some people that try to go and register to stay on the registry, but here we also have people that try to get off. Especially in North Carolina. Isn’t that where we talked about the guy that went to the office three times?
[25:20] Larry: That’s right.
[25:21] Andy: Why does everything happen in North Carolina? All right, let me set this up. In 2003, defendant William David Lingerfeld pleaded guilty to two counts of sexual activity by a substitute parent. As a result, Lingerfeld was required to register under North Carolina law. When can a person filing for removal request it in North Carolina?
[25:44] Larry: Well, under state law in North Carolina, a person cannot petition to be removed from the PFR list until they meet the requirements of the Federal Sex Offender Registration and Notification Act, known as SORNA. Under SORNA, offenders convicted of a Tier 1 offense cannot petition for removal until after 15 years. And those convicted of Tier 2 offenses must wait 25 years before seeking removal. Now, let me just clarify because I did a cut-and-paste job: the Tier 1 is not exactly correct. It’s 15 years base, but there’s a provision for five years earlier if they’ve had no arrests, completed treatment and several other requirements. So you can actually apply at year 10 after completion of 10 years.
[26:34] Andy: That’s fine. I just wanted to ask you a quick question. Are we going to – oh, yeah. Well, what tier is Lingerfeld?
[26:42] Larry: He is a Tier 2. He had sought removal in 2019, but the trial court denied the petition. The petition determined that Lingerfeld was a Tier 2 offender, meaning that he had to wait 25 years from his initial 2003 registration to seek removal. Very critical here: Lingerfeld did not appeal this ruling, although it was a final appealable judgment. But he chose not to appeal it. And it makes a big difference how this case goes.
[27:13] Andy: I do want to ask you a quick question about tiers versus levels. So tiers are based on your crime, not based on an evaluation?
[27:28] Larry: No, you’ve got it correct. The tiers are terminology related entirely to the Adam Walsh Act of 2006. Prior to that act, many states had individualized assessments where they gave people risk levels. Arkansas did, Nebraska did, and a whole bunch of other states did as well. But the federal government said they preferred basing it on the severity of the offense. So when you hear the term tier, it’s talking about a categorical tie-in based on what you’ve done and how it aligns with the criteria. When you’re talking about a level, you’re usually referring to an assessment where they analyze your risk. Risk can change over time, but a tier designation does not.
[28:31] Andy: Gotcha. So then going back to Lingerfeld, a person can petition for removal after 15 years unless their tier designation requires a longer period of time. Did I explain that right? You did, correct. But the problem
[28:46] Larry: is that North Carolina law is very contradictory. They can request removal after 10 years, yet the General Assembly attached their removal process to federal law. His offense is a tier two under federal law. Thus, he cannot be removed until he has been registered for a minimum of 25 years required under federal law.
[29:06] Andy: Actually, this is true. You are making my head spin. That does – so you have insisted for years that the states control registration. Now, all of a sudden, you’re saying that’s not true. You say he can’t be removed because of federal law? Can you help me square that around?
[29:24] Larry: I was afraid you were going to ask me to do that. Oh, yeah,
[29:26] Andy: Yeah, yeah, yeah.
[29:31] Larry: So this ought to get Big Mike excited because this is good stuff. I can explain. The states do control it until such time as they decide to defer the control to the big, bad federal government. North Carolina chose to do that. And under Section 14-208.12a, the state has decided that the federal government is in control. It reads in pertinent part, the court may grant the relief if, one, the petitioner demonstrates to a court that he or she has not been arrested for any crime that would require registration on this article since completing the sentence. Or two, the requested relief complies with the provision. The state has decided that the federal government has amended the provisions of the Federal Jacob Wetterling Act as amended and any other federal standards applicable to termination of a registration requirement are required to be met as a condition of receipt of federal funds by the state. So they want that money from the government that’s too big and too bloated. They want that money. So they decided to put into their statutory scheme, of course, that keeps the bloated registry alive, which justifies funding for all the registries. And even if some law enforcement are doing that, remember, these are the people trying to keep the government small and taxes low, right? But yeah, that’s what they’ve done here. They’ve handed that control off to the federal government by statute.
[30:56] Andy: Now, I have an observation that I need to make here. So are you ready? Can I be honest with you for a second? Sure. You should have been a lawyer because you can rationalize anything regardless of how nonsensical it is.
[31:10] Larry: Well, I’m not rationalizing it at all. It’s the people of North Carolina that made the law. Don’t blame me or the courts. Okay,
[31:18] Andy: then let’s move on. Lingerfeld did not give up. In 2023, he petitioned again to be removed from the registry. The trial court again denied the petition because he was a tier two offender and not yet eligible. This time, though, Lingerfeld appealed, arguing that he was a tier one offender, not a tier two offender, and thus was eligible to be removed under SORNA. What was his basis then, Larry? What was his basis for claiming to be?
[31:46] Larry: In my opinion, he is properly a tier two under federal criteria. So I’d say he’s either crazy or he doesn’t understand that tiers are categories based on your offense and they are static. They do not morph over time. You don’t become a tier three. If you commit another tier two offense while you’re a tier two offender, then yes, you can move up to tier three. But otherwise, if you don’t commit any more crimes, you don’t morph down or up. You are what you are unless the laws change.
[32:14] Andy: Is what you are. So, but is that what the court actually said?
[32:19] Larry: No, they didn’t actually say that. That’s me saying that the dispositive question for the court is whether the failure to appeal the 2019 order bars Lingerfeld from contesting the legal ruling that he is a tier two offender. As explained below, we hold that successive petitions to terminate sex offender registration are all parts of the same underlying case and subject to the doctrine of law of the case.
[32:50] Andy: I don’t understand what these words mean. But they went on to say, applying that doctrine here, Lingerfeld is procedurally barred from challenging his designation as a tier two offender because he failed to appeal the first judgment in this case addressing that legal question. As a result, the trial court properly denied his successive petition. We therefore modify and affirm the court of appeals decision on this basis without addressing the remainder of the court’s analysis. Now, does that mean he might have had a chance had he appealed the 2019 order?
[33:32] Larry: Not in my opinion, because I think he is rightfully a tier two offender. To be a tier one offender, you have to have committed an offense that carries a maximum potential exposure of less than a year. If it goes over a year, it’s automatically defaulted to tier two.
[33:50] Larry: Well, those are generally misdemeanors, and there aren’t many misdemeanor sexual offenses. And then the misdemeanor exception applies if it’s an offense targeted against a minor. So even if it were a misdemeanor, which I didn’t do the research on, but even if it were a misdemeanor, it sounds like to me it was against a minor. So he would be properly a tier two offender. So he’s either crazy or he doesn’t understand.
[34:20] Andy: Well, you’re piling on more confusion as we go, but that’s okay. I’ll take that on myself here. But then on page six, it says importantly, the registration statute expressly anticipates successive petitions to terminate registration. Following the denial of a petition, the offender may again petition the court for relief one year from the date of the denial of the original petition to terminate the registration requirement. So if the law permits successive petitions, how can they say that he should have appealed the original denial?
[34:53] Larry: Well, it’s easy. And they explain that they said the one-year refiling provision advances the statute’s purpose because the ultimate decision—the ultimate decision to grant a petition to terminate registration in that scenario turns on whether the trial court is satisfied that the petitioner is not a current potential threat to public safety. Meaning the court is sitting as a mini tribunal, looking at how risky you are and how much treatment you’ve got. If the offender is unable to persuade the court on that issue, the statute provides a one-year period which the offender can make life changes that might address the court’s concerns. That’s a whole separate thing than what we’re dealing with here. He’s trying to say the law didn’t categorize him correctly. He’s not a tier two. Being removed from the registry for merit is a different analysis—it’s are you a threat to the community? So I don’t see any conflict at all.
[35:50] Andy: Idea it’s hogwash? Tell me what they went on to say.
[35:54] Larry: Well, they went on to say it follows them that a trial court’s ruling on whether an offender is a threat to public safety is not subject to issue preclusion, which is what this was. That issue was precluded because it was the law of the case. If you applied the law of the case doctrine to removal petitions, once you’d been denied, you’d never be able to get off. So there’s no issue. There’s no issue of preclusion there. The General Assembly intended to give PFRs the ability to return to court after at least one year has passed and in effect seek reconsideration of trial court’s early determination that the offender is a threat to public safety because this is discretionary, fact-based determination is by its nature a matter over which reasonable jurists could reach different results. An early determination denial does not bar a court from reaching a different determination in the future.
[36:46] Andy: And you can say all of this and keep a straight face and say that this is logical?
[36:52] Larry: I can. Why would I not be able to? They explain the difference. But the same is not true for the determination of an offender’s tier level under SORDA. Unlike determining whether an offender is a threat to public safety, calculating the offender’s tier level under SORDA is a legal question with only one objectively correct answer. And they cited Stone v. Moore, M-O-I-R 26, a 2016 decision from the North Carolina Supreme Court. More hogwash! You’re on the warpath tonight with this hogwash, aren’t you? Yes, I am. Yes, because this is poppycock. You sounded like the Narsil paralegal when he read this. Yes. And they further explained it. They said, In the American legal system, we do not tolerate conflicting answers to pure legal questions. One of the principal reasons we have appellate courts is to prevent divergent development of legal issues by creating a system that can establish a single precedential answer. Applying this principle here, the trial court’s calculation of Lingerfield’s tier level under SORDA is subject to issue preclusion. It’s not possible for the trial court to correctly rule that Lingerfield is a tier 2 offender in one petition but a tier 1 offender in a successive petition. You see, can you not see that logic? You can’t do what he’s wanting to do. And you believe this is nonsense? I believe it because it makes sense. To you?
[37:50] Andy: Guys, they eloquently explained it. They said, This is a legal question, so one of two rulings is a legal error. Can you agree with that? If it’s a legal question, there can’t be but one answer.
[38:38] Andy: No, no, no. You could take 10 attorneys into a room and ask them a question, and you’re going to get 50 answers.
[38:45] Larry: But this is black letter law. They looked at the Walsh Act, and they said, This is a tier 2. You can look at it 400 different ways. It’s still a tier 2. If Lingerfield believed the trial court’s first ruling was an error, he was required to appeal that ruling to avoid its preclusive effect in future petitions. He cannot accept the ruling, decline to appeal, and then insist that a future court can rule a different way on the same question of law. And they cited Calvin. He said, All right,
[39:17] Andy: well, let me read what they said on page 11. It says, In sum, Lingerfeld’s 2023 petition for removal from the registry was barred by law of the case. In 2019, the trial court entered a final, appealable order ruling that Lingerfeld was a tier 2 offender not eligible for removal from the registry until 25 years after his initial 2003 registration. Lingerfeld did not appeal that order, rendering it the law of the case. See Summers v. North Carolina at 622. As a result, that ruling cannot be challenged in a successive termination petition because that petition is part of subsequent proceedings in the same case. I am confused because I read that the state did not raise the law of the case doctrine during the appeal.
[40:12] Larry: Yes. And I was confused about that, too, but I went digging and the court stated, we acknowledge that the state did not assert the law of the case argument at the Court of Appeals because the state failed to do so. Lingerfeld insists that the argument is abandoned before this court. This is incorrect because the state is the appellee. Appellee review of a lower court ruling is strictly limited to the arguments presented by the appellant. Absolute certain non-waiverable issues such as subject matter jurisdiction, which you’ve heard me upon. You can’t waive that. It is not the role of the appellate courts to create an appeal for an appellant. As a result, an appellate court will only review the issues the appellant presents to it, even if there appear to be other unraised grounds that render the lower judgment infirm. But this principle does not apply to arguments of the appellee. A reviewing court is not constrained to uphold a lower court ruling solely on legal grounds presented by the appellee. Where otherwise, it would compel an appellate court to reverse a judgment that’s legally sound, in effect permitting litigants to stipulate what the law is, and the result permitting them to force an appellate court to invalidate a proper trial court judgment. We do not allow this. End of quote. They explained it, why they couldn’t do that. And ultimately, he’s SOL? Well, he’s close to the 25-year mark, so he’s not SOL, but he is until he reaches that mark. Which comes in 2028, if you add 25 to 2003, and then if they don’t count the time he was in prison or on probation, it may be longer, but he’s getting closer.
[41:54] Andy: I do know that you generally don’t care for dissenting opinions, and you don’t really consider them very relevant, but I noticed that on page 10, they stated, the majority reasons that the successive petitions are all part of the same case, therefore, excuse me, same case, therefore the issue of tier level is precarious. By an earlier court’s determination, and the law of the case doctrine applies to that issue. To the contrary, both Lingerfeldt and the state essentially argue that the law of the case doctrine is preempted by the fact that the General Assembly has expressly allowed defendants to file a new petition to terminate their registration from PFR registration one year from a denied petition. Furthermore, both point to an absence in the statute of any language that suggests that rulings in earlier petition proceedings are not subject to the law of the case doctrine.
[42:59] Larry: In other words, both point to an absence in the statute of any language that suggests that rulings in earlier petition proceedings are not subject to the law of the case doctrine.
[43:38] Andy: The law of the case doctrine. In other words, both point to an absence in the statute of any language that suggests that rulings in earlier petition proceedings are not subject to the law of the case doctrine.
[44:20] Larry: Both point to an absence in the statute of any language that suggests that rulings in earlier petition proceedings are not subject to the
[44:30] Andy: law of the case doctrine.
[44:42] Larry: In other words, both point to an absence in the statute of any language that suggests that rulings in earlier petition proceedings are not subject to the law of the case doctrine. It’s not for the courts to determine that Mr. Lingenfeld should not be a registrant. The people of North Carolina determined that he is, and he’s got to wait 25 years with whatever time that they don’t count. I don’t think they count all the time. I think incarceration and supervision may not count, but he’s got to wait until the people have allowed him the opportunity to get off.
[45:38] Andy: Well, yeah. Okay.
[45:42] Larry: You don’t believe in legislating from the bench, really? When I want to, I do. Yeah. Well, that’s what this program exists for. We all believe in legislating from the bench. I’m just being consistent, saying, hey, if you like it in some scenarios, you should like it in more scenarios, and people like it when it suits their purposes. I like it when I win. Sure. You like summary judgment when it works. And this is a good case for that.
[46:08] Andy: I gotcha.
[46:10] Larry: Okay. And we’ve got some new patrons, a returning patron, and a new patron that came in at Stemius level.
[46:18] Andy: Pretty close to it. Yes, yes, yes. Kevin and Charles. Thank you. Jeepers. I sent that to you today, Kevin. Thank you very much. That was incredibly generous. Welcome back, Charles. Charles is a former longtime patron from across the pond. Charles is a very nice
[46:39] Larry: individual. I’m glad to have him back with us. Is he listening tonight? Is he on with us?
[46:46] Andy: I don’t know. I don’t think so. No, I don’t think he’s here.
[47:01] Larry: So anything else? You know, we’re at 45 minutes. I’ll give you five minutes of soapboxing. No, we’ve done enough. I want to get out of this hot box.
[47:03] Andy: Head over to Registry Matters for show notes and links everywhere you need to go. Email at registrymatterscast@gmail.com. Leave old-fashioned voicemail messages at 747-227-4477. And please, very kindly and very generously, support us over at patreon.com/registrymatters. You can join us on a Discord server; there’s a link in every page to get you over there. If you want some cool swag, we did talk about the Kabuki machine, but I missed my chance to reference it. We have a very cool Kabuki machine shirt that you can almost see on my shoulder there. So anyway, that’s at fypeducation.org/shop. You can get some cool merch there. That’s all I got, my friend. Well, we’ll see you tomorrow morning at seven. Please don’t do that. I hope you have a good night. Stay cool and have a good rest of your weekend. I’ll talk to you soon, my friend. Good night.
[48:06] Introduction: You’ve been listening to FYP.