Batson challenges the constitutionality of RCW
9A.44.128(10)(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
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. The trial court sentenced Batson to
prison, and ordered him to register as a sex offender while
living in Arizona.
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
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 ....
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 16,  Batson's
conduct did not meet the definition of a sex offense.
2010, the Legislature amended RCW 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
Laws of 2010, ch. 267, §1 (emphasis
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."l3O(6)(b). The failure to
report constitutes failure to register and is a felony. RCW
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.
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 ...