       IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


STATE OF WASHINGTON,                           )         No. 78341-6-I

                      Respondent,              )         DIVISION ONE

              v.                               )         PUBLISHED OPINION

BENJAMIN BATSON,                               )
                     Appellant.
                                               )         FILED: August 12, 2019
       ANDRUS, J.    —   Benjamin Batson challenges the constitutionality of RCW

9A.44. 128(1 0)(h) to the extent it imposes a duty to register as a sex offender based

on an out-of-state conviction for which there is no comparable Washington crime.

We conclude that the sex offender registration statute contains an unconstitutional

delegation of the legislative function to another state and reverse Batson’s

conviction for failing to register.

                                        FACTS

       On November 14, 1984, while living in Arizona, Batson was convicted of

two counts of sexual conduct with a 16 year old, a felony in Arizona.1 The trial




         Arizona Revised Statutes (ARS) §13-1405(A) makes it a crime to engage in sexual
conduct with a minor, which is defined as any person under the age of 18.
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court sentenced Batson to prison, and ordered him to register as a sex offender

while living in Arizona.2

            Batson moved to Washington in 2008.                  At the time, Washington’s

registration statute did not require Batson to register as a sex offender because

his Arizona conviction was not legally comparable to a crime in Washington.

Former RCW 9A.44. 130(1 )(a)(2008) provided:

        Any adult    .   whether or not the person has a fixed residence, or
                         .   .


        who is a student, is employed, or carries on a vocation in this state
        who has been found to have committed or has been convicted of any
        sex offense or kidnapping offense        shall register with the county
                                                   .   .   .


        sheriff for the county of the person’s residence          .




Former RCW 9A.44.130(10)(a)(iv) defined “sex offense” as “[a]ny federal or out-

of-state conviction for an offense that under the laws of this state would be

classified as a sex offense under this subsection.”                   Because the comparable

Washington statute only criminalized sexual contact with minors under the age of

1 6,~ Batson’s conduct did not meet the definition of a sex offense.

        In 2010, the Legislature amended ROW 9A.44.128, modifying the definition

of “sex offense” to include:

        Any federal or out-of-state conviction for: An offense for which the
        person would be required to register as a sex offender while residing
        in the state of conviction; or, if not required to register in the state of
        conviction, an offense that under the laws of this state would be
        classified as a sex offense under this subsection, unless a court in
        the person’s state of conviction has made an individualized
        determination that the person should not be required to register.
        2  ARS §13-3821(A)(4) provides that anyone convicted of sexual conduct with a minor in
violation of ARS §13-1 405 must register with the sheriff of the county of residence.
        ~ RCW 9A.44.089, Washington’s child molestation statute, makes it unlawful for a person
to have sexual contact with a minor at least 14 years of age but under the age of 16, if the
perpetrator is at least 4 years older than the victim. Thus, the age of consent in Washington is 16
years of age.

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LAws OF 2010, ch. 267, §1 (emphasis added).4

        The amended statute required Batson to register as a sex offender in

Washington because he was required to register in Arizona. Because Batson is

homeless, he must also report weekly to the sheriff of the county of registration

and maintain an “accurate accounting” of each location he stayed during the week.

RCW 9A.44.130(6)(b). The failure to report constitutes failure to register and is a

felony. RCW 9A.44.132.

        Batson was convicted of felony failure to register as a sex offender on June

21, 2011. He was again convicted of felony failure to register in 2014, but this

court reversed that conviction because the State failed to prove that Batson lacked

a fixed residence during the charging period. State v. Batson, 194 Wn. App. 326,

339, 377 P.3d 238 (2016). Batson challenged the constitutionality of the statute in

that appeal, but this court declined to reach Batson’s constitutional challenge

because it reversed his conviction on other grounds. Id. at 328.

        On November 14, 2017, the State charged Batson a third time with felony

failure to register. CP 1, 17. The trial court convicted Batson of this offense and

sentenced him to 9 months in jail followed by 36 months in community custody.

Batson appeals his conviction, again raising a constitutional challenge to RCW

9A.44. 128(1 0)(h).


“A 2011 amendment removed federal offenses from the statute. LAWS OF 2011, ch. 337, §2. The
statute now reads:

        Any out-of-state conviction for an offense for which the person would be required
        to register as a sex offender while residing in the state of conviction; or, if not
        required to register in the state of conviction, an offense that under the laws of this
        state would be classified as a sex offense under this subsection.

RCW 9A.44.128(h). This is the current version of the statute.

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                                      ANALYSIS

       Batson claims that the sex offender registration is unconstitutional. We

review a statute’s constitutionality de novo. State v. Bassett, 192 Wn.2d 67, 77,

428 P.3d 343 (2018). Statutes are presumed constitutional, and the defendant

has the burden of proving otherwise. Id.

       Batson claims that RCW 9A.44.128(10)(h) is an unconstitutional delegation

of the legislative function because it allows another state’s legislature to define

“sex offense,” an element of the crime of felony failure to register. We agree.

       Article Il, section 1 of the Washington State Constitution vests all legislative

powers in our state senate and house of representatives. It is unconstitutional for

the Legislature to “abdicate or transfer its legislative function to others.” Brower v.

State, 137 Wn.2d 44, 54, 969 P.2d 42 (1998). This legislative duty requires that

all statutes be complete when they leave the Legislature. Diversified mv. P’ship v.

Dep’t of Soc. & Health Servs. (Diversified), 113 Wn.2d 19, 24, 775 P.2d 947 (1989).

To meet the rule of completeness, the Legislature must define all elements of any

crime and may not transfer that legislative function to others. State v. Douciall, 89

Wn.2d 118, 123, 570 P.2d 135 (1977); State v. Ramos, 149 Wn. App. 266, 276,

202 P.3d 383 (2009).

       The Legislature may make the operative effect of a statute contingent on its

ongoing harmony with federal law to ensure, for example, ongoing federal funding

of certain state programs. Diversified, 113 Wn.2d at 26. But it may not attempt to

adopt by statute future laws enacted by other legislative bodies. Douciall, 89 Wn.2d

at 123; see also State ex rel. Kirschner v. Urciuhart, 50 Wn.2d 131, 135-37, 310


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No. 78341-6-1/5

P.2d 261 (1957) (Legislature cannot pass licensing law that declares that

accredited medical schools shall be those thereafter established by private medical

societies); Nostrand v. Balmer, 53 Wn.2d 460, 471-72, 335 P.2d 10 (1959) (statute

unconstitutionally delegated to United States Attorney General the task of defining

“subversive” organizations, the membership in which was prohibited), vacated in

part on other cirounds, Nostrand v. Little, 362 U.S. 474, 80 S. Ct. 840, 4 L. Ed. 2d

892 (1960).

        The State contends that the sex offender registration statute merely makes

its operative effect contingent on another state’s statute and thus is permissible

under Diversified. Batson, however, argues that the portion of the statute that

makes sex offender registration contingent on the future laws of another state

violates the non-delegation holding of Douqall. We conclude that Douqall controls

here.

        In Doucjall, the defendant was charged with possession of Valium after a

federal order published in the Federal Register designated it as a controlled

substance under federal law. 89 Wn.2d at 122. The Washington Legislature did

not designate or reschedule Valium as a controlled substance under the state

Uniform Controlled Substances Act, chapter 69.50 RCW, but under RCW

69.50.201(d), Valium automatically became a controlled substance under state law

30 days from the date of the federal order’s publication in the Federal Register, if

the Washington State Board of Pharmacy did not object to its designation. Id. at

120.




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No. 78341-6-1/6

       Our Supreme Court concluded that              RCW 69.50.201(d) was an

unconstitutional delegation of legislative authority to the federal government

because it attempted to incorporate into state law future federal rules. ki. at 123.

It held that the statute was unconstitutional because it permitted future federal

designation, rescheduling, or deletion of controlled substances in the Federal

Register to become controlled substances under the Uniform Controlled

Substances Act by means of Board inaction or acquiescence. ki.

       A person commits the crime of felony failure to register as a sex offender if

the person has a duty to register under RCW 9A.44.130 for a felony sex offense

and knowingly fails to comply with any of the requirements of RCW 9A.44.130.

RCW 9A.44.132(1). RCW 9A.44.130(1)(a) in turn requires any adult convicted of

a sex offense to register with the county sheriff for the county of the person’s

residence. RCW 9A.44.128(10)(h) then defines those “sex offenses” for which

registration is mandatory. The provision provides:

    Any out-of-state conviction for an offense for which the person would be
    required to register as a sex offender while residing in the state of
    conviction; or, if not required to register in the state of conviction, an
    offense that under the laws of this state would be classified as a sex
    offense under this subsection.

(emphasis added).

      The duty to register thus is an element of Batson’s crime.           See 11

WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:                CRIMINAL

49C.02 (4th ed. 2016). The State had to establish that Batson had this duty during

the period he was charged with violating RCW 9A.44.132.          The only way to

establish this element of the crime was to prove that during any alleged charging


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No. 78341 -6-1/7

period, Batson “would be” required to register under Arizona law if he lived in that

state. The definition of an out-of-state “sex offense” does not link the duty to

register to any specific point in time in the past but instead conditions that duty on

whether Arizona law imposes a duty to register in the future. Batson’s duty to

register in this state is thus completely dependent on whether the Arizona

Legislature retains or removes his crime of conviction on its list of registrable

crimes, If the Arizona Legislature eliminates Batson’s crime of conviction from this

list, any duty to register in Washington evaporates.        If, however, the Arizona

Legislature then reinstates the registration requirement, Batson’s duty under

Washington law would be resuscitated. As in Douqall, the sex offender registration

statute permits future Arizona law to define an element of the crime.

       Diversified is not analogous. In that case, the Legislature passed a statute

that provided if any part of chapter 74.46 RCW, which established a nursing facility

Medicaid payment system, was found to conflict with federal law, the conflicting

state statute would become inoperative pending further review by the Legislature.

113 Wn.2d at 24. Diversified challenged the constitutionality of this provision,

arguing it attempted to adopt future federal law in violation of the Douqall standard.

k1. at 25. Our Supreme Court distinguished the Medicaid statute from the criminal

statute in Douqall, concluding that the Legislature may determine when a law,

substantively complete in itself, will take effect and when it will be repealed. Id. at

26.   The Medicaid statute merely conditioned its operative effect on a future

specified event, whereas the controlled substance statute at issue in Dougall




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 No. 78341 -6-1/8

transferred power to define an element of a crime to the federal government. lcL

at 28-29.

        The sex offender registration statute does not provide that it becomes

ineffective or inoperative if some event occurs in the future. Instead, it transfers to

Arizona the power to define whether Batson has an ongoing duty to register in

Washington. See State v. Green, 156 Wn. App. 96, 230 P.3d 654 (2010) (duty to

register is an ongoing obligation; failure to register is ongoing course of conduct).

This obligation depends entirely on Arizona law at any given point in the future.

Thus, the duty to register as the result of an out-of-state conviction for which

registration would be required while residing in the state of conviction is an

unconstitutional delegation of the legislative function and violates article II, section

1   of the Washington State Constitution.6                We do not invalidate RCW

9A.44.128(10)(h) in its entirety, but do so to the extent it imposes a duty to register

based on an out-of-state conviction that would not be classified as a sex offense

under the other provisions of RCW 9A.44.128(10).

        Reversed.




WE CONCUR:



___                                                       CL~j

          Batson also argues the statute is an ex post facto law, violates double jeopardy and
violates equal protection under the federal and state constitutions. Because we invalidate the
statute under article II, section 1, we need not reach these additional constitutional claims.

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