Filed Washington State Court of Appeals Division Two
February 4, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 51630-6-II
Respondent, consolidated with
v.
BRADLEY LEWIS REYNOLDS,
Appellant. In the Matter of the Personal Restraint No. 52376-1-II Petition of
BRADLEY LEWIS REYNOLDS, PUBLISHED OPINION
Petitioner.
MAXA, C.J – In a consolidated appeal and personal restraint petition (PRP), Bradley
Reynolds challenges his conviction for failure to register as a sex offender.
In Washington, a person convicted of a “sex offense” is required to register as a sex
offender. RCW 9A.44.128(10)(h) defines “sex offense” to include “an offense for which [a]
person would be required to register as a sex offender while residing in the state of conviction.”
In 1990, Reynolds was convicted of third degree rape in Oregon. Under Oregon law in effect at
that time, that conviction required Reynolds to register as a sex offender in Oregon. Therefore,
Reynolds was required to register as a sex offender in Washington based on the definition in
RCW 9A.44.128(10)(h). No. 51630-6-II / 52376-1-II
Reynolds argues that RCW 9A.44.128(10)(h) is unconstitutional based on the recent
decision of Division One of this court in State v. Batson, 9 Wn. App. 2d 546, 550-54, 447 P.3d
202, review granted, 194 Wn.2d 1009 (2019). The court in Batson held that RCW
9A.44.128(10)(h) is an unconstitutional delegation of the legislative function because it allows
another state’s legislature to define an element of the crime of failure to register as a sex
offender. Id. at 553. We agree with the holding in Batson. Accordingly, we reverse and vacate
Reynolds’s conviction.1
FACTS
In 1990, Reynolds was convicted of third degree rape in Oregon. Third degree rape
is a felony sexual offense in Oregon, ORS § 163.355, for which registration as a sex
offender is required. ORS §§ 163A.010, 163A.015. At some point, Reynolds moved to
Washington. He subsequently was convicted of failure to register as a sex offender in
Washington in 2005, 2008, 2014, and July 2017.
In January 2018, Reynolds again was convicted of failure to register as a sex
offender. He appealed his conviction. Later, Reynolds also filed a timely PRP. This court
consolidated Reynolds’s PRP with his direct appeal.
ANALYSIS
RCW 9A.44.128(10)(h) defines “sex offense” for purposes of sex offender
registration to include “[a]ny out-of-state conviction for an offense for which the person
1 Reynolds argues in the alternative that the State did not present sufficient evidence to prove that he was required to register in Oregon because the Oregon court failed to notify him at sentencing of his duty to register as a sex offender. He also argues in his PRP that the trial court erred in failing to analyze whether his 1990 Oregon conviction was comparable to a Washington offense. Because of our holding, we do not address these issues.
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would be required to register as a sex offender while residing in the state of conviction.”2
Reynolds argues that this provision is an unconstitutional delegation of legislative function.
We agree.
A. LEGAL PRINCIPLES
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 a defendant challenging the
statute “has the burden to prove otherwise beyond a reasonable doubt.” Id.
Article II, section 1 of the Washington Constitution vests legislative powers in the
state legislature. Therefore, 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).
One of the legislature’s functions is to define the elements of crimes under Washington
law. See State v. Torres Ramos, 149 Wn. App. 266, 276, 202 P.3d 383 (2009). The legislature
cannot delegate to another entity the ability to determine what constitutes a crime in Washington.
See State v. Dougall, 89 Wn.2d 118, 122-23, 570 P.2d 135 (1977).
These principles are implicated when the legislature refers to the laws of another state or
the federal government in defining a crime. In Dougall, the court invalidated a statue providing
that a drug would become a controlled substance under Washington law once that drug was
designated as a controlled substance under federal law. Id. at 120, 123. The court stated, “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
2 RCW 9A.44.128(10)(h) also states that a “sex offense” includes an out-of-state conviction for “an offense that under the laws of this state would be classified as a sex offense under this subsection.” This provision is inapplicable here because the State does not argue that an Oregon conviction of third degree rape is comparable to a Washington “sex offense.”
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an unconstitutional delegation of legislative power and thus void.” Id. at 122-23. The statute in
that case was unconstitutional because it allowed a future federal designation to determine the
law in Washington. Id. at 123.
Conversely, the legislature acts within its authority when it conditions “the operative
effect of a statute upon the happening of a future specified event.” Diversified Inv. P’ship v.
Dep’t of Soc. & Health Servs., 113 Wn.2d 19, 28, 775 P.2d 947 (1989) (emphasis added). In that
situation the legislature itself is determining the event that will trigger operation of the statute.
Id. at 28-29.
B. BATSON DECISION
In Batson, Arizona law required Batson to register as a sex offender in Arizona
based on a conviction in that state. 9 Wn. App. 2d at 547-48. After he moved to
Washington, Batson was required to register as a sex offender in Washington based on his
duty to register in Arizona under the definition of “sex offense” in RCW 9A.44.128(10)(h).
Id. at 549. Batson was convicted of failing to register in Washington. Id. The court noted
that the duty to register was an element of Batson’s crime and the only way the State could
establish that element was to show that Batson would be required to register in Arizona if
he lived in that state. Id. at 552.
Division One emphasized that RCW 9A.44.128(10)(h) focuses not on what Arizona
law provided at a fixed point in the past, but on what Arizona law may provide at some
time in the future. Id. The court stated,
Batson’s duty to register in [Washington] 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 Dougall, the sex
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offender registration statute permits future Arizona law to define an element of the crime.
Id.
The court concluded that RCW 9A.44.128(10)(h) was unconstitutional because “it
transfers to Arizona the power to define whether Batson has an ongoing duty to register in
Washington.” Id. at 553. Batson’s obligation to register as a sex offender “depends entirely on
Arizona law at any given point in the future.” Id. The court invalidated RCW 9A.44.128(10)(h)
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 Washington law. Id. at 553-54.
C. ANALYSIS
We agree with the analysis in Batson. As the court stated in Dougall, the legislature may
adopt existing laws from other jurisdictions. 89 Wn.2d at 122. But RCW 9A.44.128(10)(h) does
not define “sex offense” based on the law of another state as it existed at some fixed time in the
past. Instead, the definition of “sex offense” in RCW 9A.44.128(10)(h) depends on the law of
another state that may change in the future. If the legislature of a person’s state of conviction
decides that the conviction requires sex offender registration in that state, the person can be
convicted of failure to register in Washington. But if the legislature of a person’s state of
conviction subsequently decides that the conviction does not require sex offender registration in
that state, the person cannot be convicted of failure to register in Washington.
The language of RCW 9A.44.128(10)(h) itself contemplates an obligation that may
change over time. Whether an offense is a sex offense depends on whether a person “would be
required to register as a sex offender while residing in the state of conviction.” RCW
9A.44.128(10)(h) (emphasis added).
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In addition, it is significant that registration as a sex offender is an ongoing obligation. If
a person was required to register only one time, defining “sex offense” in reference to the
applicable law at that time may constitute the adoption of existing law that Dougall stated was
permissible. 89 Wn.2d at 122. But because a sex offender’s obligation to register is ongoing,
RCW 9A.44.128(10)(h) allows that obligation to be determined by laws that may change in the
future.
Here, Oregon law required Reynolds to register as a sex offender in Oregon because of
his third degree rape conviction. Under RCW 9A.44.128(10)(h), that meant that he was a “sex
offender” and was required to register in Washington. But if Oregon law changed and third
degree rape no longer required registration as a sex offender, Reynolds no longer would be
required to register in Washington. And if Oregon law changed yet again to require registration,
Reynolds once again would be required to register. In other words, Reynolds’s ongoing
obligation to register in Washington is “completely dependent” on whether the Oregon
legislature “retains or removes his crime of conviction on its list of registrable crimes.” Batson,
9 Wn. App. 2d at 552.
Oregon has not changed the sex offender registration requirement for third degree rape
since Reynolds’s conviction, but that fact does not save the constitutionality of the statute. Just
because Oregon has not exercised its delegated ability to determine when Reynolds is obligated
to register in Washington does not mean that no delegation occurred.
The legislature has delegated its authority to the Oregon legislature to determine at some
point in the future whether people like Reynolds can be convicted of a Washington crime. This is
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an unconstitutional delegation of the Washington legislature’s authority to define what
constitutes a crime in Washington.3
The State argues that RCW 9A.44.128(10)(h) simply represents an acknowledgement that
Washington will honor the laws of other states. The State analogizes RCW 9A.44.128(10)(h) to
RCW 46.20.342(1)(c)(v), which makes it unlawful for a person to drive when that person’s
license has been suspended in another state, even when that suspension is based on an out-of-
state offense that would not be grounds for suspension if committed in Washington. The State
also analogizes RCW 9A.44.128(10)(h) to RCW 9.94A.525(3), which provides that out-of-state
and federal convictions should be classified according to the comparable Washington offense for
purposes of determining offender scores.
However, these statutes involve a one-time suspension of a driver’s license or a one-time
computation of an offender score based on an out-of-state or federal offense under existing laws.
As noted above, sex offender registration is an ongoing obligation. This ongoing obligation is
contingent on the future laws of another state.4
We hold that RCW 9A.44.128(10)(h) contains a delegation of the legislative function in
violation of article II, section 1 to the extent that the statute imposes a duty to register based
solely on an out-of-state conviction for an offense (1) for which the person would be required to
register as a sex offender under the current law of that state and (2) that would not be classified
3 We agree with the dissent that the definition of “sex offense” technically is not an element of the crime of failing to register as a sex offender. But because the commission of a “sex offense” is an element, the meaning of “sex offense” necessarily defines the element. 4 We emphasize that our delegation analysis is limited to the application of RCW 9A.44.128(10)(h) to establish an element of the offense of failure to register as a sex offender. We express no opinion regarding the constitutionality of other statutes applicable in other contexts.
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as a sex offense under the other provisions of RCW 9A.44.128(10). Accordingly, Reynolds’s
conviction based on that unconstitutional provision must be reversed.
CONCLUSION
We reverse and vacate Reynolds’s conviction of failure to register as a sex offender.
MAXA, C.J.
I concur:
GLASGOW, J.
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MELNICK, J. (dissent) — I respectfully dissent from the majority’s opinion. First, the
majority incorrectly decides that the definition of the term “sex offender” is an element of the
crime. Because the term “sex offender” is a definition, there is no unlawful legislative delegation.
Second, as applied to Bradley Reynolds, the statutory provision at issue is valid.
Based on a 1990 Oregon conviction for rape in the third degree,5 Reynolds was required to
register as a sex offender. ORS §§ 163A.010 and .015. He has never been relieved of that duty.
Reynolds subsequently moved to Washington and, from 2005–17, he had four convictions for
failing to register as a sex offender in violation of RCW 9A.44.130. In January 2018, the State
once again charged Reynolds for failing to register as a sex offender. He was convicted.
The majority now reverses Reynolds fifth and latest conviction for failing to register. It
does so on the basis that the Washington Legislature violated the rule of completeness and
unconstitutionally and improperly delegated its legislative function to another state’s legislature.
The majority arrives at this conclusion because it believes the definition of “sex offense” contained
in RCW 9A.44.128(10)(h) “allows another state’s legislature to define an element of the crime of
failure to register as a sex offender.” Majority at 2.
This conclusion rests on a false premise. The definition of “sex offense” is not an element
of the crime of failure to register.6 It is a definition of an element. There is no improper delegation.
There is no violation of the rule of completeness.
5 ORS § 163.355. 6 The majority opinion recognizes that the definition of a sex offense is not “technically” an element of the crime. Majority at 7 n.3. Although it acknowledges this error, its entire analysis is based on the legislature unlawfully delegating to another state the authority to state what elements constitute the crime of failing to register. I do not know what the majority means by its use of “technically” in the footnote. The definition of “sex offense” is not an element and the majority provides no support to the contrary.
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Statutes are presumed constitutional. State v. Watson, 160 Wn.2d 1, 10, 154 P.3d 909
(2007). “‘[T]he presumption in favor of a law’s constitutionality should be overcome only in
exceptional cases.’” Watson, 160 Wn.2d at 11 (quoting City of Seattle v. Eze, 111 Wn.2d 22, 28,
759 P.2d 366 (1988)). A person challenging the constitutionality of a statute has the burden to
prove its unconstitutionality beyond a reasonable doubt. State v. Bassett, 192 Wn.2d 67, 77, 428
P.3d 343 (2018).
State v. Batson, 9 Wn. App. 2d 546, 550, 447 P.3d 202 (internal quotation marks omitted)
(quoting Brower v. State, 137 Wn.2d 44, 54, 969 P.2d 42 (1998)), review granted, 452 P.3d 1225
(2019), explained the rule of completeness:
Article II, 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.” This legislative duty requires that all statutes be complete when they leave the Legislature. To meet the rule of completeness, the Legislature must define all elements of any crime and may not transfer that legislative function to others.
The Washington Legislature has defined all of the elements of failing to register. They are
as follows: (1) Reynolds was convicted of a felony sex offense; (2) Because of the conviction,
Reynolds was required to register in the State of Washington; (3) Reynolds failed to comply with
a requirement of sex registration. RCW 9A.44.130; 11 WASHINGTON PRACTICE: WASHINGTON
PATTERN JURY INSTRUCTIONS: CRIMINAL 49C.02, at 1078 (4th ed. 2011).
The definition of “sex offense” is in a wholly separate section of chapter 9A.44 RCW. It
is not an element of the crime, but it is a definition clarifying the meaning of an element. RCW
9A.44.128(10)(h). Definitions of crimes are not elements. State v. Allen, 176 Wn.2d 611, 229-
30, 294 P.3d 679 (2013).
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It is well settled that “to convict” instructions must contain all elements of the charged
crime. State v. Lorenz, 152 Wn. 2d 22, 31-32, 93 P.3d 133 (2004) (definitional term “sexual
gratification” not an element but clarification of the element “sexual contact”). However,
definitional terms that clarify the meaning of an element are not elements of the crime. Lorenz,
152 Wn.2d at 36; Allen, 176 Wn.2d at 629-30.
In State v. Smith, 159 Wn.2d 778, 785-86, 154 P.3d 873 (2007), the court concluded that
the common law definitions of assault did not create alternative means of committing the crime
because they were not elements of the crime. Rather, they “merely elaborate upon and clarify the
terms ‘assault’ or ‘assaults’” as used throughout chapter 9A.36 RCW. Smith, 159 Wn.2d at 786.
They are definitions, not elements.
In State v. Laico, 97 Wn. App. 759, 764, 987 P.2d 638 (1999), we concluded that “the
definition of ‘great bodily harm’ [did] not add elements to the first degree assault statute, but rather
[was] intended to provide understanding.” Similarly, in State v. Marko, 107 Wn. App. 215, 219-
20, 27 P.3d 228 (2001), we decided that defining the term “threat” did not create additional
elements to the crime of intimidating a witness.
In the present case, the majority relies on Batson’s determination that the definition of “sex
offense” permits future Arizona law to define an element of the crime. However, this language
conflates two distinct concepts. It combines elements of crimes with definitions and does not
recognize their distinguishing characteristics. Here, Washington is not allowing Arizona, or any
other jurisdiction, to define the elements of the crime of failure to register. Rather, it is defining
when Washington’s failure to register statute applies to a particular individual residing in this state.
In addition, it must be remembered that not all delegations by the legislature are
unconstitutional. It must be remembered that the legislature has never defined the term “assault.”
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State v. Chavez, 163 Wn.2d 262, 273, 180 P.3d 1250 (2008). Rather it has acquiesced to the courts,
which are the source of the common law, to define the term. Chavez, 163 Wn.2d at 274. But,
“[t]he Legislature has an established practice of defining prohibited acts in general terms, leaving
to the judicial and executive branches the task of establishing specifics.” State v. Wadsworth, 139
Wn.2d 724, 743, 991 P.2d 80 (2000) (local judiciary could designate areas weapons prohibited).
This type of action is not an unconstitutional legislative delegation.
The majority’s reliance on State v. Dougall, 89 Wn.2d 118, 570 P.2d 135 (1977), is also
misplaced. There, the Federal Register published an order designating diazepam (valium) as a
controlled substance under federal law. The defendant challenged the statute7 that authorized a
substance to be designated or rescheduled merely by publishing it in the Federal Register and
having the Washington State Board of Pharmacy acquiesce to it. The court concluded this
procedure provided insufficient notice of the proscribed conduct. Dougall, 89 Wn.2d at 120. In a
short secondary holding, it stated that allowing the “future federal designation, rescheduling or
deletion of controlled substances in the Federal Register to become controlled or deleted
substances under the Uniform Controlled Substances Act by means of Board inaction or
acquiescence” constituted an unconstitutional delegation of legislative authority. Dougall, 89
Wn.2d at 123.
However, we should bear in mind that the identity of a controlled substance is an element
of the crime of possession. State v. Sibert, 168 Wn.2d 306, 311, 318, 230 P.3d 142 (2010)
(plurality opinion, but eight justices agreed on this point); State v. Gonzalez, 2 Wn. App. 2d 96,
106, 408 P.3d 743, review denied, 190 Wn.2d 1021 (2018). On the other hand, the definition of
“sex offense” is not an element. When the legislature delegates to another body the authority to
7 Former RCW 69.50.201(d) (1998).
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define the elements of a crime, it is illegal. However, because the identity of the controlled
substance is an element of the crime, Dougall is clearly distinguishable from the present situation.
If the majority is correct, it must be remembered that at all times relevant to this case,
Reynolds was required to register as a sex offender. At no time did his status as a sex offender
change. As applied to him, there is no error.
Statutes may be facially unconstitutional or they may be unconstitutional as applied. To
successfully make a facial challenge, a defendant must show that no circumstances exist in which
the statute, as currently written, can be constitutionally applied. City of Redmond v. Moore, 151
Wn.2d 664, 668-69, 91 P.3d 875 (2004). “The remedy for holding a statute facially
unconstitutional is to render the statute totally inoperative.” Moore, 151 Wn.2d at 669.
“An as-applied challenge to the constitutional validity of a statute is characterized by a
party’s allegation that application of the statute in the specific context of the party’s actions or
intended actions is unconstitutional.” Moore, 151 Wn.2d at 668-69. “Holding a statute
unconstitutional as-applied prohibits future application of the statute in a similar context, but the
statute is not totally invalidated.” Moore, 151 Wn.2d at 669.
In this case, the majority completely invalidates a provision of the statute that defines “sex
offense.” However, I believe that as applied to Reynolds, the statutory provision at issue is valid.
As pointed out by the majority, Oregon has not changed the sex offender registration
requirement for third degree rape since Reynold’s original conviction for the crime. Therefore,
assuming the majority is correct in its ruling on the rule of completeness, as applied to Reynolds,
there is no unconstitutional infirmity.
Reynolds has not met his burden to prove beyond a reasonable doubt that the legislature
unconstitutionally delegated its authority. He has also failed to prove beyond a reasonable doubt
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that, as applied to him, the definition of “sex offense” is unconstitutional. Therefore, I would
affirm Reynolds conviction for failing to register.
Melnick, J.