IN THE COURT OFAPPEALS FORTHE STATE OFWASHINGTON

STATE OFWASHINGTON, 

### ) 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)totheextent it imposes adutyto registeras asexoffenderbased
on an out-of-state conviction forwhich there is no comparable Washington crime. We concludethatthesexoffender registration statute contains an unconstitutional delegation of the legislative function to another state and reverse Batson’s conviction forfailing 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 conductwith a minor, which is defined as any person underthe age of 18.No. 78341 -6-1/2

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, orcarries on a vocation in this state who has been found to have committed orhas been convicted ofany sex offense or kidnapping offense

. . . shall registerwith the county sheriffforthe countyofthe person’s residence

. Former RCW 9A.44.130(10)(a)(iv) defined “sex offense” as “[a]ny federal or outof-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 underthe age of 16,~ Batson’s conduct did not meetthe definition ofa sexoffense. 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 wouldbe requiredto registerasa sexoffenderwhile residing in the state ofconviction; 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 underthis subsection, unless a court in the person’s state of conviction has made an individualized determination thatthe 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 ofARS §13-1 405 must registerwith the sheriff ofthe countyof residence.

~ RCW 9A.44.089, Washington’s child molestation statute, makes it unlawful fora 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 olderthan the victim. Thus, the age of consent in Washington is 16 years of age. -2-No. 78341-6-1/3

LAwsOF2010, 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” ofeach location he stayed duringtheweek. RCW 9A.44.130(6)(b). The failure to report constitutes failure to registerand is a felony. RCW 9A.44.132. Batson was convicted offelonyfailureto registeras a sexoffenderon June 21, 2011. He was again convicted of felony failure to register in 2014, but this court reversed thatconviction becausethe Statefailedto provethat 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 constitutionalityofthe statute in that appeal, but this court declined to reach Batson’s constitutional challenge because it reversed his conviction on othergrounds. 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).

“A2011 amendment removed federal offenses from the statute. LAWS OF2011, ch. 337, §2. The statute now reads: Any out-of-state conviction foran offense forwhich 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 offensethat underthe laws ofthis state would be classified as a sex offense underthis subsection. RCW 9A.44.128(h). This is the currentversion ofthe statute. -3-No. 78341-6-1/4 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 claimsthat RCW9A.44.128(10)(h) is an unconstitutional delegation of the legislative function because it allows another state’s legislature to define “sexoffense,” an element ofthe crime offelonyfailureto register. We agree. Article Il, section 1 oftheWashington State Constitution vests all legislative powers in ourstate senate and house of representatives. It is unconstitutional for the Legislatureto “abdicate ortransferits legislative function to others.” Browerv. State, 137 Wn.2d 44, 54, 969 P.2d 42 (1998). This legislative duty requires that all statutes be complete when they leavethe Legislature. Diversified mv. P’ship v. Dep’tofSoc. & Health Servs. (Diversified), 113Wn.2d 19, 24, 775 P.2d 947 (1989). To meetthe rule of completeness, the Legislature must define all elements of any crime and may nottransferthat legislative function to others. Statev. 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 makethe operative effect ofastatute contingenton its ongoing harmonywith federal lawto ensure, forexample, ongoing federal funding of certain state programs. Diversified, 113 Wn.2d at26. But it may not attemptto adopt bystatutefuture laws enacted byotherlegislative bodies. Douciall, 89Wn.2d at 123; see also State ex rel. Kirschner v. Urciuhart, 50 Wn.2d 131, 135-37, 310

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P.2d 261 (1957) (Legislature cannot pass licensing law that declares that accredited medical schoolsshall bethosethereafterestablished byprivate medical societies); Nostrandv. Balmer, 53Wn.2d 460, 471-72, 335 P.2d 10 (1959) (statute unconstitutionallydelegated to United StatesAttorney General thetaskofdefining “subversive” organizations, the membership in which was prohibited), vacated in part on othercirounds, Nostrand v. Little, 362 U.S. 474, 80 S. Ct. 840, 4 L. Ed. 2d 892 (1960). The State contendsthatthe sexoffender 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 underfederal 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 automaticallybecameacontrolled substance understate 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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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 futurefederal 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 oracquiescence. ki. A person commitsthe crime offelonyfailure to registeras a sex offender if the person has a dutyto 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 forwhich 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 underthis 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 dutyduring 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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period, Batson “would be” required to register underArizona law if he lived in that state. The definition of an out-of-state “sex offense” does not link the duty to registerto any specific point in time in the past but instead conditions that dutyon 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, IftheArizona Legislature eliminates Batson’s crime ofconviction fromthis list, any duty to register in Washington evaporates. If, however, the Arizona Legislature then reinstates the registration requirement, Batson’s duty under Washington lawwould be resuscitated. As in Douqall, thesexoffenderregistration statute permitsfutureArizona lawto define an element ofthe crime. Diversified is not analogous. In that case, the Legislature passed a statute that provided ifanypartofchapter74.46 RCW, which established a nursing facility Medicaid payment system, was found to conflict with federal law, the conflicting state statutewould become inoperative pending further review bythe Legislature. 113 Wn.2d at 24. Diversified challenged the constitutionality of this provision, arguing it attemptedto adoptfuturefederal law in violation ofthe Douqall standard. k1. at25. OurSupreme Court distinguished the Medicaid statutefrom the criminal statute in Douqall, concluding that the Legislature may determine when a law, substantivelycomplete in itself, will take effect and when itwill 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

-7-No. 78341 -6-1/8

transferred powerto 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 ifsome eventoccurs in the future. Instead, ittransfersto 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) (dutyto 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 ofthe legislativefunction 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, butdo sotothe extent it imposes adutyto register based on an out-of-state conviction that would not be classified as a sex offense underthe otherprovisions 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 underarticle II, section 1, we need not reach these additional constitutional claims. -8-