State v. Batson

196 Wash.2d 670

478 P.3d 75

STATE of Washington, Petitioner,

v.Benjamin BATSON, Respondent.

No. 97617-1

Supreme Court of Washington.

Filed: December 24, 2020

Gavriel Gershon Jacobs, King County Prosecutor's Office, 516 3rd Ave., Ste. W554, Seattle, WA, 98104-2362, for Petitioner.

Jessica Constance Wolfe, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-1683, for Respondent.

Cristina Marie Hwang Sepe, Peter B. Gonick, Office of the Attorney General, Po Box 40100, Olympia, WA, 98504-0100, for Amicus Curiae on behalf of State of Washington.

David Ventura Montes, King County Department of Public Defense, 710 2nd Ave. Ste. 250, Seattle, WA, 98104-1765, La Rond Baker, Katherine Elizabeth Hurley, King County Department of Public Defense, 710 2nd Ave. Ste. 200, Seattle, WA, 98104-1703, for Amicus Curiae on behalf of King County Department of Public Defense.

YU, J.

¶ 1 This case concerns whether the state legislature may impose a duty to register as a sex offender in Washington where an individual would be required to register in the state of conviction. The answer is yes. We reverse the Court of Appeals’ holding that RCW 9A.44.128(10)(h) is an unconstitutional delegation of legislative authority and remand Benjamin Batson's other challenges for consideration by the Court of Appeals.

BACKGROUND

¶ 2 In 1984, Batson pleaded guilty in an Arizona court to two counts of sexual conduct with a minor. As a result of his conviction, Arizona law required Batson to register as a sex offender for life. ARIZ. REV. STAT. § 13-382l(A)(4), (M).

¶ 3 At some point prior to April 6, 2009, Batson moved to Washington. At that time, the State required individuals to register as sex offenders only if their out-of-state offense would have been classified as a sex offense in Washington. Former RCW 9A.44.130(10)(a)(iv) (2006); State v. Howe , 151 Wash. App. 338, 343, 212 P.3d 565 (2009). Since Batson's Arizona conviction arose from sexual contact with a 16-year-old, his offense would not have been a crime in Washington, which limits criminal liability for sexual contact to minors younger than 16. RCW 9A.44.079. Batson was therefore not required to register as a sex offender.

¶ 4 But in June 2010, the state legislature amended the sex registry statute to require registration for "[a]ny federal or out-of-state conviction for: [a]n offense for which the person would be required to register as a sex offender while residing in the state of conviction." LAWS OF 2010, ch. 267, § 1(6)(d); see also RCW 9A.44.128(10)(h). This change required Batson to register as a sex offender in Washington since he would have been required to register in Arizona.

¶ 5 In March 2018, Batson was convicted of failure to register as a sex offender from August 2016 through November 2017.¹ Batson appealed his conviction to the Court of Appeals. The Court of Appeals reversed Batson's sentence, holding that RCW 9A.44.128(10)(h) was an unconstitutional delegation of legislative power to the State of Arizona to decide whether Batson had a duty to register in Washington. State v. Batson , 9 Wash. App. 2d 546, 553-54, 447 P.3d 202 (2019). The State appealed, and we granted review. State v. Batson , 194 Wash.2d 1009, 452 P.3d 1225 (2019).

ANALYSIS

¶ 6 Washington requires individuals convicted of sex offenses to register as sex offenders. RCW 9A.44.130(1)(a). The legislature defines "sex offense" broadly to include convictions from other jurisdictions: federal, military, foreign county, or tribal. RCW 9A.44.128(10)(i)-(l ). It also includes convictions from other states:

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).

¶ 7 Batson contends that RCW 9A.44.128(10)(h) is an unconstitutional delegation of legislative power. Suppl. Br. of Resp't at 5-7.

¶ 8 Statutes are presumed constitutional. State v. Watson , 160 Wash.2d 1, 11, 154 P.3d 909 (2007). " ‘Wherever possible, it is the duty of this court to construe a statute so as to uphold its constitutionality.’ " State v. Abrams , 163 Wash.2d 277, 282, 178 P.3d 1021 (2008) (quoting State v. Reyes, 104 Wash.2d 35, 41, 700 P.2d 1155 (1985) ). We review the constitutionality of a statute de novo. State v. Hunley , 175 Wash.2d 901, 908, 287 P.3d 584 (2012).

¶ 9 The Washington Constitution vests legislative authority in the state legislature. WASH. CONST. art. II, § 1. "[I]t is unconstitutional for the Legislature to abdicate or transfer its legislative function to others." Brower v. State , 137 Wash.2d 44, 54, 969 P.2d 42 (1998). It is the function of the legislature to "define the elements of a specific crime." State v. Wadsworth , 139 Wash.2d 724, 734, 991 P.2d 80 (2000).

¶ 10 In State v. Dougall , 89 Wash.2d 118, 120, 570 P.2d 135 (1977), we held unconstitutional a statute that "authorize[d] a substance to be designated or rescheduled as a controlled substance by the mere act of final publication in the Federal Register and acquiescence therein by the" Washington State Board of Pharmacy. Thus, the former statute criminalized the possession of certain substances based solely on the future judgment of the federal government, without any independent judgment by our legislature. Id. at 123, 570 P.2d 135. This court concluded that deference to the future discretion of the federal government was unconstitutional:

While the legislature may enact statutes which adopt existing federal rules, regulations, or statutes, legislation which attempts to adopt or acquiesce in future federal rules, regulations, or statutes is an unconstitutional delegation of legislative power and thus void.

Id. at 122-123, 570 P.2d 135 (citing State ex rel. Kirschner v. Urquhart , 50 Wash.2d 131, 137, 310 P.2d 261 (1957) ).

¶ 11 Batson insists that Dougall controls his case. Suppl. Br. of Resp't at 6. He argues that by requiring him to register as a sex offender in Washington, on the basis that Arizona law requires him to register, the legislature has "abdicate[d] its duty to define the elements of a crime to the ever-shifting laws of other states." Id . at 5-7.²

¶ 12 Batson is incorrect. The legislature has not permitted the State of Arizona to define criminal conduct or the elements of a crime in the State of Washington. RCW 9A.44.132 states that it is a crime to knowingly fail to comply with applicable sex offender registration requirements. To convict a person of this crime, a jury must find that (1) the person has a prior conviction for a sex offense, (2) the prior conviction triggered Washington's sex offender registration requirements, and (3) the person knowingly failed to comply with those requirements. RCW 9A.44.132 ; 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 49C.02, at 1078 (4th ed. 2016). Contrary to Batson's assertion, "sex offense" is not an element of RCW 9A.44.132. Rather, it is a definitional term. A definition is not an element of the crime simply because it clarifies the meaning of an essential element. See State v. Lorenz , 152 Wash.2d 22, 34-35, 93 P.3d 133 (2004).

¶ 13 The statute at issue in Dougall deferred to the federal government's determination of what conduct constitutes a Washington criminal offense. Here, RCW 9A.44.128(10)(h) merely sets the circumstances under which the obligation to register as a sex offender becomes operative. Once those obligations are triggered, a Washington criminal offense occurs only when a person knowingly fails to comply with them. We have previously held that the legislature may "[c]ondition[ ] the operative effect of a statute upon the happening of a future specified event" and this is "distinguish[able] from a statute which attempts to adopt future federal law." Diversified Inv. P'ship v. Dep't of Soc. & Health Servs. , 113 Wash.2d 19, 28, 775 P.2d 947 (1989).

¶ 14 The legislature expressly designed RCW 9A.44.128(10)(h) to address a "future specified event." Prior to 2010, convictions from other jurisdictions qualified as sex offenses for registration purposes only if "the legal definitions of the crimes and the facts underlying the convictions" were comparable to Washington sex offenses. Howe , 151 Wash. App. at 343, 212 P.3d 565. Thus, in 2009, the Court of Appeals held that a person with a "California conviction for lewd acts on a child" was not required to register as a sex offender in Washington because "the California statute is broader than the Washington statute" and the record did not contain "any documents setting out facts underlying the lewd acts conviction." Id. at 341, 348, 212 P.3d 565 ; see also State v. Werneth , 147 Wash. App. 549, 197 P.3d 1195 (2008) (Georgia conviction for child molestation not comparable to Washington offense).

¶ 15 In response to Howe and Werneth , the legislature enacted the 2010 amendment, defining sex offense in part as "[a]ny federal or out-of-state conviction ... for which the person would be required to register as a sex offender while residing in the state of conviction." LAWS OF 2010, ch. 267, § 1(6)(d). Legislative testimony supporting this change stated that it was "an important fix for law enforcement because [under existing law] they spend a good deal of time analyzing the out-of-state offense to determine its comparability," and further noted that such uncertainty meant that "[t]he current sex offender registration law is fraught with traps for persons trying to comply with the law." S.B. REPORT ON S.B. 6414, at 5, 61st Leg., Reg. Sess. (Wash. 2010). The amendment solved these problems by bringing uniformity to Washington law, allowing law enforcement and the public to better understand sex offender registration requirements, and preventing sex offenders from avoiding existing registration requirements by moving to our state.

¶ 16 ...