State v. Ramos
| Decision Date | 10 March 2009 |
| Docket Number | No. 36491-3-II.,36491-3-II. |
| Citation | 202 P.3d 383,149 Wn. App. 266 |
| Parties | STATE of Washington, Respondent, v. Domingo Torres RAMOS, Jr., Appellant. |
| Court | Washington Court of Appeals |
John A. Hays, Attorney at Law, Longview, WA, for Appellant.
Carol L. La Verne, Thurston County Prosecutor's Office, Olympia, WA, for Respondent.
¶ 1 Domingo Torres Ramos appeals his conviction of failure to report to the Thurston County Sheriff's Office as a registered sex offender, arguing that the delegated classification system is unconstitutional. Because he was not classified by any entity other than a sheriff, we agree that there is a violation of separation of powers under these facts. We reverse and remand with instructions to dismiss.1
¶ 2 In 1993, Ramos was convicted of two counts of sexual exploitation of a minor. The trial court sentenced him to 42 months' incarceration, and he completed his confinement in 1995. At the time of his conviction and at the time of his release, Washington did not require persons convicted of sexual exploitation of a minor to register as sex offenders. As a result, no government entity classified him as a level I, II, or III sex offender after his confinement.
¶ 3 The legislature later added sexual exploitation of a minor as a sex offense to the list of crimes requiring registration under RCW 9A.44.130. According to Detective Daryl Leischner, who is in charge of Thurston County's sex offender registration unit, Ramos knew of these changes and registered in 2001. In 2001, the Thurston County Sheriff's Office classified Ramos as a level II sex offender under RCW 4.24.550(6)(b). According to Leischner, level I offenders pose a relatively low risk of recidivism, level II offenders pose an intermediate risk, and level III offenders pose a high risk. Leischner testified that, although the sheriff's office is directed by statute to assign risk classifications to offenders, the statute "does not give the advice as to what the levels should consist of." Report of Proceedings at 122. Instead, the statute sets forth public notification requirements.
¶ 4 Effective September 1, 2006, the legislature enacted a law requiring level II or III sex offenders to report in person every 90 days to the sheriff of the county where the offender is registered. RCW 9A.44.130(7). On January 8, 2007, Ramos failed to report, as required by this law, to the Thurston County Sheriff. Law enforcement officers later arrested and charged him with violation of sex offender registration. RCW 9A.44.130. Following a bench trial, the court found him guilty of one count of failing to comply with the RCW 9A.44.130(7) reporting requirements. He appeals.
¶ 5 Ramos contends that by enacting RCW 4.24.550(6), the legislature improperly delegated authority to classify sex offenders to the county sheriffs. He argues that this improper delegation violates the separation of powers principles.2
¶ 6 We review the constitutionality of a statute de novo. State v. Jones, 159 Wash.2d 231, 237, 149 P.3d 636 (2006), cert. denied sub nom., Thomas v. Washington, 549 U.S. 1354, 127 S.Ct. 2066, 167 L.Ed.2d 790 (2007). We presume a statute constitutional with the burden on the challenging party to prove beyond a reasonable doubt its unconstitutionality. State ex rel. Peninsula Neighborhood Ass'n v. Dep't of Transp., 142 Wash.2d 328, 335, 12 P.3d 134 (2000).
¶ 7 A fundamental principle of our constitutional system is that governmental powers are divided among three separate and independent branches: legislative, executive, and judicial. State v. Osloond, 60 Wash.App. 584, 587, 805 P.2d 263 (1991); U.S. Const. arts. I, II, and III (defining legislative, executive, and judicial branches); Wash. Const. arts. II, III, and IV (establishing the legislative department, the executive, and judiciary). Washington's constitution does not contain a formal separation of powers clause, but Washington courts have presumed its vitality throughout our state history from the division of our state government into three separate branches. State v. Blilie, 132 Wash.2d 484, 489, 939 P.2d 691 (1997); Carrick v. Locke, 125 Wash.2d 129, 134-35, 882 P.2d 173 (1994).
¶ 8 When separation of powers challenges are raised involving different branches of state government, only the state constitution is implicated. Carrick, 125 Wash.2d at 135, 882 P.2d 173. But we rely on federal law principles regarding the separation of powers to interpret and apply the state's own separation of powers principles. Blilie, 132 Wash.2d at 489, 939 P.2d 691.
¶ 9 Separation of powers principles are violated when "`the activity of one branch threatens the independence or integrity or invades the prerogatives of another.'" State v. Moreno, 147 Wash.2d 500, 505-06, 58 P.3d 265 (2002) (internal quotation marks omitted) (quoting Carrick, 125 Wash.2d at 135, 882 P.2d 173). This separation ensures "the fundamental functions of each branch remain inviolate." Carrick, 125 Wash.2d at 135, 882 P.2d 173; In the Matter of the Salary of the Juvenile Director, 87 Wash.2d 232, 239-40, 552 P.2d 163 (1976).
¶ 10 Authority to define crimes and set punishments rests firmly with the legislature. State v. Wadsworth, 139 Wash.2d 724, 734, 991 P.2d 80 (2000). Specifically, the legislature is responsible for defining the elements of a crime. State v. Evans, 154 Wash.2d 438, 447 n. 2, 114 P.3d 627 (2005); Wadsworth, 139 Wash.2d at 734, 991 P.2d 80. "[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).
¶ 11 The Thurston County Sheriff classified Ramos as a level II offender under RCW 4.24.550(6), which provides in part:
Local law enforcement agencies that disseminate information pursuant to this section shall: (a) Review available risk level classifications made by the department of corrections, the department of social and health services, and the indeterminate sentence review board; (b) assign risk level classifications to all offenders about whom information will be disseminated.
As a result of his level II classification, Ramos's conviction arises from his failure to report on January 8, 2007, as required by RCW 9A.44.130(7):
All offenders who are required to register pursuant to this section who have a fixed residence and who are designated as a risk level II or III must report, in person, every ninety days to the sheriff of the county where he or she is registered.... Failure to report, as specified, constitutes a violation of this section and is punishable as provided in subsection (11) of this section.
Subsection 11 provides that a person who has been convicted of a felony sex offense and knowingly fails to register is guilty of a class C felony. RCW 9A.44.130(11)(a).
¶ 12 To convict Ramos, the State had to prove all necessary elements of this crime. Here, the trial court concluded, "The State has proven all elements of the crime of felony violation of sex offender registration beyond a reasonable doubt." Clerk's Papers (CP) at 67. Supporting its conclusion, the trial court found that Ramos "is a registered sex offender who has been classified as a Level II sex offender by the Thurston County Sheriff." CP at 65. Thus, the trial court considered his classification as a Level II sex offender an element of the crime.3
¶ 13 Under the current statutes, a local law enforcement agency determines the risk level of an offender already released into the community.4 This assignment is based on a review of the "classifications made by the department of corrections, the department of social and health services, and the indeterminate sentence review board." RCW 4.24.550(6)(a), (b). Here, however, the Thurston County Sheriff's Office became solely responsible for determining Ramos's sex offender risk level where none of the other entities listed in RCW 4.24.550(6)(a) assessed him.5
¶ 14 Citing State v. Melcher, 33 Wash.App. 357, 655 P.2d 1169 (1982), the State argues that classification of sex offenders under RCW 4.24.550(6) is administrative and not legislative and thus does not implicate separation of powers principles. Melcher argued that RCW 46.61.506(3) improperly delegated legislative authority because the law allowed the state toxicologist to approve methods of chemical analysis for determining breath or blood alcohol content levels and a driver's alcohol content level is one element of the crime of driving under the influence. Melcher, 33 Wash.App. at 359-60, 655 P.2d 1169.
¶ 15 Our Supreme Court, however, found the legislative delegation to be administrative because the statute adequately defined the element of the crime at question (permissible level of blood alcohol content) and properly delegated the duty of establishing measurement procedures for this objective standard to the state toxicologist. Melcher, 33 Wash. App. at 361, 655 P.2d 1169. This is not the case here. The legislature inadequately defined the element of the crime at question (risk of reoffense) and did not provide standards to assist law enforcement agencies in establishing measurement procedures of the risk of reoffense. As a result, the legislature has not made a sufficient administrative delegation in this case.
¶ 16 In the cases where Washington courts have found legislative delegation to the executive branch proper, the legislature provided adequate direction to the executive branch. For example, in Caffall Bros. Forest Prods. v. State, 79 Wash.2d 223, 228, 484 P.2d 912 (1971), our Supreme Court held that RCW 79.01.212 properly delegated legislative authority to the Commissioner of Public Lands to refuse to confirm sales of timber on public lands that were not in the "`best interests' of the state" because the statute contained criteria to guide the commissioner in determining the state's best interests.6
¶ 17 Similarly, in State v. Simmons, 152 Wash.2d 450, 458, 98 P.3d 789 (2004), our ...
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