The Wetterling Finding: Not an Unconstitutional Delegation

The court of appeals recently decided another case on petitions to terminate sex offender registration. Once again, the decision turned on what I have called the “Wetterling finding”—the rule in G.S. 14-208.12A(a1)(2) that a judge may not remove a person from the registry if doing so would not comply with “the federal Jacob Wetterling Act, as amended, and any other federal standards applicable to the termination of a registration requirement or required to be met as a condition for the receipt of federal funds by the State.” That law generates some difficult questions about the interplay between state and federal law, which I discussed here and here. The latest case is In re McClain. In McClain, a registrant petitioned for removal from the sex offender registry after 10 years of registration for his 2001 conviction for indecent liberties with a child. The trial court denied his petition, concluding that removing him from the registry would run afoul of federal standards. Even assuming his registration crime could be classified as a Tier I offense under federal law (which our appellate courts assumed to be true in In re Hamilton, __ N.C. App. __, 725 S.E.2d 393 (2012), and which the parties apparently agreed on here), McClain had subsequent felony convictions that rendered him ineligible for the “clean record” status that would reduce his minimum registration period from 15 years to 10. McClain appealed, arguing that incorporating federal standards into state law by way of G.S. 14-208.12A(a1)(2) is an unconstitutional delegation of legislative authority from the General Assembly to Congress—especially to the extent that the law purports to incorporate “future enactments to be promulgated by Congress.” Slip op. at 6. It’s an issue I discussed briefly in this 2009 post. The court of appeals disagreed and affirmed the trial court’s denial of McClain’s petition. The court concluded that the General Assembly did not improperly delegate the task of filling in the details of the state’s sex offender registration program. To the contrary, the state and federal programs exist “side-by-side,” and G.S. 14-208.12A(a1)(2) was, the court said, merely the legislature’s attempt to “substantially implement the Adam Walsh Act[].” There may be room for debate about whether G.S. 14-208.12A(a1)(2) was added to the law specifically to implement the Adam Walsh Act, or whether it was a broader attempt to keep us in line with evolving federal standards. The Wetterling provision in subdivision (a1)(2) was added to a bill (H 1896) before the Adam Walsh Act became law, and years before the U.S. Department of Justice issued its final guidelines. And in any event, the USDOJ does not view North Carolina as being substantially compliant with federal law—although that may have more to do with our laws on juvenile registration than on our minimum registration length for adults. Regardless, McClain is now the second case (along with Hamilton) indicating that the Wetterling finding essentially trumps the minimum registration periods described elsewhere in state law. That reality is reflected in this paper, which gives a finding-by-finding summary of the petition hearing process. I also recommend reviewing John Rubin’s summary of the registration termination process, available as part of his guide on Relief from a Criminal Conviction.