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 [...]