State v. Wallmuller

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IN CLERKS OFFICE X
This opinion was
fiied for record
8UPRBE COURT.SBOE OF VWaWOTOM at 5<^on 9^1f
U m7^_§§P_2j_j|g I (-^IZZL(Xr'IX
'-TOJWK Susan L. Carlson
CMIEFJUSTKE Supreme Court Clark
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
NO. 96313-4
Petitioner,
V. EN BANC
FRANK A. WALLMULLER,
Filed SEP 2 li >(IHI
Respondent.
STEPHENS, J.—^The Court of Appeals held that a community custody
condition barring a defendant from "places where children congregate" is inherently
vague,in violation ofdue process, unless it is cabined by an exclusive list ofspecific
prohibited places. We hold that this was error. While an illustrative list ofprohibited
places serves to clarify and define such a condition, crafting an exclusive list is
neither constitutionally required nor practically possible. We reverse the Court of
Appeals and uphold the challenged condition.
State V. Wallmuller, 96313-4
FACTS
Frank Wallmuller pleaded guilty in 2014 to first degree rape of a child and
sexual exploitation of a minor. He successfully appealed on grounds of sentencing
error and imposition of improper community custody conditions, and the Court of
Appeals remanded for correction of those errors. State v. Wallmuller, No.
46460-8-II, slip op. at 4-5 (Wash. Ct. App. Nov. 17, 2015)(unpublished), http://
www.courts.wa.gOv/opinions/pdfiD2%2046460-8-II%20Unpublished%200pinion.
pdf. On remand,the trial court struck the challenged community custody conditions,
which related to pornography and businesses selling liquor,^ but reimposed three of
the original conditions relating to contact with children. Those conditions read:
(15) The defendant shall not have contact with minor children under the
age of 18 years unless in the presence of a responsible adult who is
capable of protecting the child and is aware of the conviction, and
contact has been approved by the Community Corrections Officer and
the sexual offender's treatment therapist in advance;
(16) The defendant shall not participate in youth programs, to include, but
not limited to, sports programs, scouting programs, and school
programs;
(17) The defendant shall not loiter in nor frequent places where children
congregate such as parks, video arcades, campgrounds, and shopping
malls.
^ The Court of Appeals held these conditions were insufficiently crime related in
violation ofthe Sentencing Reform Act of 1981, ch. 9.94A RCW. Wallmuller, No.46460-
8-II, slip op. at 4-5.
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State V. Wallmuller, 96313-4
Clerk's Papers at 25 (boldface omitted). Wallmuller did not object to any of these
conditions at the resentencing hearing. On appeal, however, he challenged the
condition in paragraph 17 on the ground that it is unconstitutionally vague.
A divided Court of Appeals agreed and remanded for the trial court to vacate
or modify the condition. State v. Wallmuller,4 Wn. App. 2d 698, 703-04,423 P.3d
282 (2018). The majority reasoned that the phrase "places where children
congregate" is vague because it
gives rise to several questions: (1)Must the ehildren join together in a formal
group to "eongregate," or is it sufficient that ehildren be at the same place
even ifthey are unconnected? (2) Similarly, must the ehildren intend to join
together with other children to "eongregate," or can they end up at the same
place by happenstance? (3) How many ehildren are required to congregate
to invoke the condition? Is two enough, or is some unstated larger number
- required? (4) How often must children congregate in a place to invoke the
condition? Is once enough, or is some unstated frequency required? (5)
Assuming that ehildren must have actually rather than potentially
congregated at a place to invoke the condition, how recently must they have
congregated there? Is one prior instance of ehildren congregating in a place
sufficient regardless of when it occurred?
Id. at 703. The court concluded that, because it was impossible to answer these
questions, the nonexclusive list of specific prohibited places in Wallmuller's
condition was insufficient to cure its inherent vagueness. Id. A dissenting judge
would have upheld the condition, observing that the condition would put an ordinary
person on notice ofthe prohibited conduct. Id. at 714(Lee, J., dissenting).
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State V. Wallmuller, 96313A
We granted the State's petition for review. State v. Wallmuller, 192 Wn.2d
1009,432P.3d794(2019).
ANALYSIS
Conditions of community custody may be challenged for the first time on
appeal and, where the challenge involves a legal question that can be resolved on the
existing record, preenforcement. State v. Padilla, 190 Wn.2d 672, 677, 416 P.3d
712(2018)(citing State v. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008)). An
appellate court reviews community custody conditions for abuse of discretion. Id.(citing State v. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830 (2015)). A trial court
necessarily abuses its discretion ifit imposes an unconstitutional community custody
condition, and we review constitutional questions de novo. Id.Under the due process principles ofthe Fourteenth Amendment to the United
States Constitution and article I, section 3 ofthe Washington Constitution,"[a] legal
prohibition, such as a community custody condition, is unconstitutionally vague if
(1)it does not sufficiently define the proscribed conduct so an ordinary person can
understand the prohibition or (2) it does not provide sufficiently ascertainable
standards to protect against arbitrary enforcement." Id.(citing Bahl, 164 Wn.2d at
752-53). [A]... condition is not unconstitutionally vague merely because a person
cannot predict with complete certainty the exact point at which his actions would be
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State V. Wallmuller, 96313-4
classified as prohibited conduct.'" Id. (internal quotation marks omitted)(quoting
State V. Sanchez Valencia, 169 Wn.2d 782, 793, 239 P.3d 1059 (2010)). Instead,
both '"the Fourteenth Amendment and article I, section 3 of the state constitution
require[] that citizens have fair waming ofproscribed conduct.'" Sanchez Valencia,
169 Wn.2d at 791 (quoting Bahl, 164 Wn.2d at 752). That standard is satisfied where
"ordinary people can understand what is and is not allowed, and are protected against
arbitrary enforcement." Id. (citing Bahl, 164 Wn.2d at 752-53 (quoting City of
Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693(1990)(citing Kolender v.
Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983)))). For
purposes of the vagueness doctrine, our cases do not distinguish between state and
federal protections, see, e.g., id., and the parties to this case do not argue any such
distinction.^
Several appellate decisions in recent years have considered vagueness
challenges to community custody conditions similar to the one at issue here,
including Irwin, 191 Wn. App.644, and State v. Norris, 1 Wn. App.2d 87,404 P.3d
^ The vagueness doctrine applicable to the federal government is mandated by the
Fifth Amendment's due process clause and is identical to the doctrine applicable to the
states through the Fourteenth Amendment. See Welch v. United States, U.S. , 136
S. Ct. 1257,1261-62,194 L.Ed.2d387(2016)(both the Fifth and Fourteenth Amendments
prohibit governments "from imposing sanctions 'under a criminal law so vague that it fails
to give ordinary people fair notice of the conduct it punishes, or so standardless that it
invites arbitrary enforcement'"{oyolmg Johnson v. United States, 576 U.S. ,135 S. Ct.
2551,2556, 192 L. Ed. 2d 569(2015))).
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State V. Wallmuller, 96313-4
83(2017)rev'd in part on other grounds by State v. Hai Mink Nguyen, 191 Wn.2d
671,687-88,425 P.3d 847(2018). lulrwin,the court held unconstitutionally vague
a condition that read,'"Do not frequent areas where minor children are known to
congregate, as defined by the supervising [community corrections officer(CCO)].'"
191 Wn. App. at 649 (alteration in original). It reasoned that "[wjithout some
clarifying language or an illustrative list ofprohibited locations ... ordinary people
cannot understand what conduct is proscribed...[and]the condition [is] vulnerable
to arbitrary enforcement" by the CCO. Id. at 655(emphasis added). Later, mNorris,
the court invalidated a condition that stated, "'Do not enter any
parks/playgrounds/schools and or any places where minors congregate.'" 1 Wn.
App. 2d at 95. With no explanatory analysis, the court accepted the State's
concession that the condition was vague under Irwin and struck the phrase "'and or
any places,"' so that the condition would read, "'Do not enter any
parks/playgrounds/schools where minors congregate.'" Id. at 95-96. This revision
to the condition suggests that the court was concerned with the alternative "and or"
phrasing that arguably left the phrase,"where children congregate" unmodified.
Expressly relying on Irwin and Norris, the Court of Appeals majority in this
case held that the phrase "'places where children congregate'" is so inherently vague
that a "short [nonexclusive] list" of exemplifying places cannot render it
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State V. Wallmuller, 96313-4
constitutional. Wallmuller,4 Wn. App. 2d at 703. The majority acknowledged that
Irwin was "arguably" distinguishable because it involved a condition with no list of
exemplifying places but concluded that, because the "short list" in the condition at
issue in Norris did not cure vagueness, Wallmuller's condition was
unconstitutionally vague under both Irwin and Norris. Id. This analysis is flawed
for two reasons.
First, the Court of Appeals majority purports to follow Norris, without
recognizing that the modified condition approved in Norris would suffer from the
same vagueness problem the majority identifies in Wallmuller's condition. That
vagueness inheres in the term "congregate," which the court describes as posing
unanswerable questions, such as "[h]ow many children are required to congregate
... [and][h]ow often must children congregate ... to invoke the condition?" Id.
The condition approved in Norris—"'[d]o not enter any parks, playgrounds, or
schools where minors congregate,'" 1 Wn. App. at 96—^begs all these questions. It
is therefore impossible to tell what rule the majority below actually applied in this
case. The majority's holding amounts to a rule against nonexclusive lists,^ which
may be consistent with Norris's (unexplained) result, but its reasoning suggests a
prohibition on the word "congregate," which cannot be reconciled with Norris.
^ Wallmuller, 4 Wn. App. 2d at 703 (short list of prohibited places cannot cure
vagueness of condition that "contains the phrase 'such as' before its list").
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State V. Wallmuller, 96313-4
Second, in addition to its misalignment with the case it purports to apply, the
majority's reasoning and holding conflicts with the overwhelming consensus among
federal courts addressing conditions similar to the one at issue here. These courts
uniformly uphold conditions that bar offenders from places where children
"congregate" and provide nonexclusive lists of illustrative examples. E.g., United
States V. Zobel,696 F.3d 558, 575 (6th Cir. 2012)(rejecting vagueness challenge to
probation condition stating that appellant '"shall be prohibited from loitering where
minors congregate, such as playgrounds, arcades, amusement parks, recreation
parks, sporting events, shopping malls, swimming pools, etc.'"); United States v.
Burroughs, 392 U.S. App. D.C. 68, 613 F.3d 233, 246 & n.3 (2010) (rejecting
vagueness challenge to condition barring appellant from having "'direct, or indirect,
contact with children ... [or] loitering in any place where children congregate,
including but not limited to residences, arcades, parks, playgrounds, and schools,"'
after clarifying that condition would be construed so as not to bar incidental or
unknowing contact (italics omitted)); United States v. MacMillen, 544 F.3d 71, 74
(2d Cir. 2008)(rejecting vagueness challenge to supervised release condition stating
that '"[t]he Defendant shall avoid and is prohibited from being on [sic] any areas or
locations where children are likely to congregate[,] such as schools, daycare
facilities, playgrounds,theme parks, arcades, recreational facilities, and recreational
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State V. Wallmuller, 96313-4
parks, unless prior approval has been obtained from the probation office'"
(alterations in original)); United States v. Taylor, 338 F.3d 1280, 1286 (11th Cir.
2003)(rejecting vagueness challenge to a provision that prohibited appellant from
'"entering into any area where children frequently congregate, including schools,
day care centers, theme parks, playgrounds, etc.'"); United States v. Ristine, 335
F.3d 692, 696 (8th Cir. 2003)(rejecting vagueness challenge to provision barring
appellant from '"places where minor children under the age of 18 congregate, such
as residences, parks, beaches, pools, daycare centers, playgrounds, and schools
without the prior written consent of the probation officer,"' and explaining that
provision will be interpreted consistent with its intent—to restrict access to
children—and therefore not to bar him from all residences); see also United States
V. Paul, 274 F.3d 155, 166-67 (5th Cir. 2001)(rejecting vagueness challenge to
condition barring appellant from "'places, establishments, and areas frequented by
minors'"). These courts reason that the vagueness doctrine requiresfair notice but
does not mandate conditions that "'describe every possible permutation, or ... spell
out every last, self-evident detail.'" MacMillen, 544 F.3d at 76 (alteration in
original)(quoting United States v. Johnson,446 F.3d 272,280(2d Cir. 2006)). They
uphold conditions with nonexclusive lists of prohibited places because they
recognize that "it would be impossible to list . . . every specific location that [an
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State V. Wallmuller, 96313-4
offender] is prohibited from frequenting." Paul, 21A F.3d at 167. This consensus
reflects the principle, long recognized by this court and the United States Supreme
Court, that due process does not require "impossible standards of specificity," City
ofSeattle v. Eze, 111 Wn.2d 22, 26-27, 759 P.2d 366(1988)(citing Kolender, 461
U.S. at 361). Instead, in the context of community custody, courts may enforce
"commonsense" restrictions, including those that use nonexclusive lists to elucidate
general phrases like "where children congregate." See Paul, 274 F.3d at 167('"conditions of probation can be written—and must be read—in a commonsense
way'" (quoting United States v. Gallo, 20 F.3d 7, 12 (1st Cir. 1994))); Wilfong v.
Commonwealth, 175 S.W.3d 84, 101 (Ky. Ct. App. 2004) (rejecting vagueness
challenge to condition prohibiting appellant from "residing near, visiting or being in
or about parks, schools, day care centers, swimming pools, beaches, theaters, or
other places where children congregate," and noting that "[a] commonsense reading
. . . suggests an interplay between the several places listed and the reference to
locations where children congregate," making the prohibition "sufficiently
precise").
Division Three joined this consensus in State v. Johnson, where it upheld a
community custody condition that required the appellant to avoid '"places where
children congregate to include, but not limited to: parks, libraries, playgrounds.
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State V. Wallmuller, 96313-4
schools, school yards, daycare centers, skating rinks, and video arcades.'" 4 Wn.
App. 2d 352, 360, 421 P.3d 969 (2018). The Johnson court correctly noted that,
consistent with federal precedent, a clarifying list of prohibited places need not be
exclusive (i.e., exhaustive) to survive a vagueness challenge. Id. (citing Paul, 21A
F.3d at 166-67). Citing no authority other than Irwin and Norris, the Court of
Appeals majority in this case rejected Johnson as "[unjpersuasive." Wallmuller, 4
Wn. App. 2d at 704. This was error.
Irwin, Johnson, and Norris are in fact consistent with one another and with
the federal consensus—^the only outlier is the Court of Appeals majority's decision
in this case. The court in Irwin properly recognized that the phrase "where children
. .. congregate" is vague standing on its own. 191 Wn. App. at 649, 655. Under
Johnson, such a phrase is sufficiently specific when modified by a nonexclusive list
of places illustrating its scope. 4 Wn. App. 2d at 360. These holdings are both
consistent with the myriad federal cases discussed herein. Norris is somewhat
different because it addresses a condition with "and or" connecting the "congregate"
clause and the list of prohibited places: '"Do not enter any
parks/playgrounds/schools and or any places where minors congregate.'" 1 Wn.
App. 2d at 95. While the opinion contains no analysis of the court's reason for
accepting the State's concession as to vagueness, its rewrite of the condition
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State V. Wallmuller, 96313-4
eliminates the "and or" and connects the "congregate" clause with the specified
locations. 1 Wn. App,2d at 95-96. At least one federal court has found a condition
with a similar disjunctive "or" to be vague on the ground that it is not clear whether
the list of specific places modifies the general "congregate" clause. See United
States V. Peterson, 248 F.3d 79, 86 (2d Cir. 2001) ("condition which prohibits
[appellant] from 'being on any school grounds, child care center, playground, park,
recreational facility or in any area in which children are likely to congregate'" is
vague because "[i]t is not clear whether the clause 'in which children are likely to
congregate' applies only to 'any area,' or to the other places listed"). This holding,
too, is completely consistent with the federal consensus, including the federal
precedent cited in Johnson, 4 Wn. App. 2d at 360. See Paul, 274 F.3d at 166(upholding condition with nonexclusive list because it "is not ambiguous in the
manner of the provision at issue in Peterson"), cited in Johnson, 4 Wn. App. 2d at
360.
Contrary to the Court of Appeals' putative reliance on existing case law, the
rule it announced does not rest on Irwin or Norris. On the one hand, it goes much
farther than these cases and consistent federal precedent to require sentencing courts
to specifically list every place a person convicted of victimizing children is
prohibited from loitering. On the other hand, it suggests that even such a list cannot
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State V. Wallmuller, 96313-4
cure the inherent vagueness in the term "congregate." This exceeds the mandate of
due process and the long-standing principle that the vagueness doctrine does not
require impossible precision. There are doubtless a number of ways that the
challenged community condition in paragraph 17 of Wallmuller's sentence could be
drafted, but reading this condition in a commonsense way and in the context of the
other conditions, an ordinary person can understand the scope of the prohibited
conduct.
CONCLUSION
The condition challenged here, including its nonexclusive list of "places
where children congregate," satisfies due process. It puts an ordinary person on
notice that they must avoid places where one can expect to encounter children, and
it does not invite arbitrary enforcement. Accordingly, we reverse the Court of
Appeals and uphold the condition.
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State V. Wallmuller, 96313-4
WE CONCUR:
ac.
/✓ '
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state V. Wallmuller(Frank A.), No. 96313-4
No. 96313-4
WIGGINS, J. (dissenting)—One of the community custody conditions Imposed
by the superior court was that defendant Frank A. Wallmuller "shall not loiter In nor
frequent places where children congregate such as parks, video arcades,
campgrounds, and shopping malls." The majority holds that this condition Is not
unconstitutionally vague. I respectfully disagree. This language does not "sufficiently
define the proscribed conduct so an ordinary person can understand the prohibition."
State V. Padilla, 190 Wn.2d 672, 677, 416 P.3d 712 (2018). The condition Is
unconstitutionally vague, and we should affirm the Court of Appeals. I would also
provide guidance to our trial courts to assist them In crafting community custody
conditions.
ANALYSIS
Due process requires that any legal prohibition "sufficiently define the
proscribed conduct so an ordinary person can understand the prohibition" and
"provide sufficiently ascertalnable standards to protect against arbitrary enforcement."
Padilla, 190 Wn.2d at 677. A prohibition that does not meet those standards Is
unconstitutionally vague under both the state and federal due process clauses. E.g.,
State V. Bahl, 164 Wn.2d 739, 752-53, 193 P.3d 678 (2008) (not distinguishing
state V. Wallmuller(Frank A.), No. 96313-4
Wiggins, J., dissenting
between federal and state constitutional protections); see also Kolender v.
Lawson, 461 U.S. 352, 357, 103 8. Ct. 1855, 75 L. Ed. 2d 903 (1983)(employing
essentially the same analysis we used in Padilla).
When we interpret and determine the constitutionality of a sentencing condition,
we do not don blinders and look only at the challenged condition. See Bahl, 164 Wn.2d
at 754. Rather, we consider the placement of the condition within the judgment and
sentence. See id. ("In deciding whether a term is unconstitutionally vague, the terms
are not considered in a 'vacuum,' rather, they are considered in the context in which
they are used."). Reading Wallmuller's challenge to condition 17 in the context of
Wallmuller's other community custody conditions reveals the relationship among
them;
(15) The defendant shall not have contact with minor children under the
age of 18 years unless in the presence of a responsible adult who
is capable of protecting the child and is aware of the conviction,
and contact has been approved by the Community Corrections
Officer and the sexual offender's treatment therapist in advance;
(16) The defendant shall not participate in youth programs, to include,
but not limited to, sports programs, scouting programs, and school
programs;
(17) The defendant shall not loiter in nor frequent places where children
congregate such as parks, video arcades, campgrounds, and
shopping malls;
(25) The defendant shall have no contact, either direct or indirect, with
the victim(s) . . . or members of the victim's immediate family,
including but not limited to contact in person, by mail,
telephonically, or through third parties (Lifetime).
Condition 25 protects the victims by prohibiting Wallmuller from contacting the
victims or their families by any means. Condition 15 prohibits Wallmuller from having
state V. Wallmuller(Frank A.), No. 96313-4
Wiggins, J., dissenting
contact with any iminor child unless in the presence of a responsible adult and the
contact is approved In advance by the community corrections officer and Wallmuller's
therapist. Condition 16 prohibits participation in youth programs, and condition 17
prohibits Wallmuller from loitering or frequented in places where children congregate,
giving four examples of such places.
Condition 25, limiting Wallmuller's contact with the victim, and condition 15,
limiting his contact with minors generally, are perhaps the most important conditions.
Condition 16 limits his participation in youth programs. Wallmuller, however, does not
challenge conditions 15, 16, or 25, instead limiting his challenge to condition 17.
I would hold that condition 17 is vague for two reasons:(1)the phrase "places
where children congregate such as" is vague and (2) the list following that phrase is
rendered vague by the "such as" clause.
First, the phrase "places where children congregate" is vague because it is
almost unlimited in scope and fails to provide sufficient guidance. Do "places where
children congregate" include schools, playgrounds, and the like? Does it include
bookstores that have children's sections? Does it include "'public parks, bowling
alleys, shopping malls, theaters, churches, [and] hiking trails'"—or does it exclude
them? State v. Irwin, 191 Wn. App. 644, 654-55, 364 P.3d 830 (2015)(holding that
the phrase "where children congregate" is unconstitutionally vague). The language
raises more questions than it answers. The condition thus leaves Wallmuller with only
supposition about what this term might mean. Therefore, an ordinary person cannot
state V. Wallmuller(Frank A.), No. 96313-4
Wiggins, J., dissenting
understand what this prohibits. Padilla, 190 Wn.2d at 677. The term is therefore
vague. See id.
The majority does not expressly analyze whether the language "places where
children congregate" is vague. See majority at 7. Instead, the majority criticizes the
Court of Appeals for holding that the phrase was vague because the word
"congregate" is vague. Id. But the question of whether the Court of Appeals' analysis
was wrong fails to resolve the question of whether the phrase itself is vague—which
it undoubtedly is.
Second, the illustrative list in the challenged condition is vague because the
term "such as" in the list of prohibited places is followed by a list of unrelated terms.
"Such as" means "of a kind or character about to be indicated, suggested, or
exemplified." Webster's Third New International Dictionary 2283 (2002).
Webster's gives examples:
la : of a kind or character about to be indicated, suggested, or
exemplified
Id.
In other words, phrases following a "such as" clause are meant not only to be
a list but also to have a discernable pattern. Otherwise, the listed terms become
random and unhelpful. See Sessions v. DImaya, 584 U.S. , 138 S. Ct. 1204, 1221,
200 L. Ed. 2d 549 (2018) (indicating that when a list is "too varied to provide . . .
assistance," the list is vague); Padilla, 190 Wn.2d at 680-81 (a vague definition does
not cure a vague term of its vagueness).
state V. Wallmuller(Frank A.), No. 96313-4
Wiggins, J., dissenting
Here, there is no such pattern In the items following the "such as" clause.
Therefore, It Is vague. For Instance, what Is something "such as" a campground? A
trailer park? A hotel? What Is something "such as" a shopping mall? A strip mall? A
department store? What about stores that are often, but not exclusively, found In
malls, like Old Navy? What Is something "such as" a video arcade? A movie theater?
What about an adults-only theater? And what Is something "such as" all of those
places combined? No common theme unifies these disparate terms. No pattern can
be discerned from this list to allow Wallmuller to predict where he may not go.
This problem Is worsened by the list's failure to Include commonsense places
such as schools and playgrounds. If schools are absent, one must wonder what other
places are absent as well? A list so truncated and devoid of what seems to be the
obvious areas where children do congregate Invites too much speculation on the part
of the person under Its proscription. (Indeed, a list Including only "places such as
schools and playgrounds" would provide more guidance than the list here.) An
ordinary person cannot predict what this list prohibits. It Is therefore vague. Padilla,
190 Wn.2d at 677.
Instead of analyzing the language of the community custody condition, the
majority argues that this list Is not vague because of what It calls the "federal
consensus." Majority at 11. This "federal consensus," the majority asserts, shows that
federal courts of appeals have repeatedly held that lists allegedly similar to the one
here are not vague. Id. at 8-9.
state V. Wallmuller(Frank A.), No. 96313-4
Wiggins, J., dissenting
However, the lists in the majority's "federal consensus" are largely distinct from
the list here. The lists in the federal cases cited by the majority closely resemble the
list approved of by our Court of Appeals in State v. Johnson,4 Wn. App. 2d 352, 360-
61, 421 P.3d 969 (2018),^ and that list was far more substantial than the list here.
Johnson dealt with a condition that commanded an individual to "'[ajvoid places where
children congregate to include, but not limited to; parks, libraries, playgrounds,
schools, school yards, daycare centers, skating rinks, and video arcades.'" Id. at 356.
The list here, by contrast, reads,"The defendant shall not loiter in nor frequent places
where children congregate such as parks, video arcades, campgrounds, and
shopping malls." The Johnson list and the federal lists that it resembles are longer
and provide discernible patterns, allowing ordinary people to understand what is
prohibited. But when, as here, a nonexclusive list fails to provide such guidance, the
list is vague.
The majority's approach not only Incorrectly resolves the question before us, it
also provides insufficient guidance to future courts and litigants, ensuring that the
Court of Appeals and this court will repeatedly encounter similar cases in the future.
Instead of interpreting community custody conditions on an ad hoc, individualized
basis, we should adopt a safe harbor rule that protects some community custody
conditions from vagueness challenges.
As discussed above, the problem with condition 17 is that it prohibits Wallmuller
from entry into unspecified "places where children congregate." The boundaries of this
The list in United States v. Paul, 274 F.3d 155, 166-67 (5th Cir. 2001), excepted.
6
state V. Wallrriuller(Frank A.), No. 96313-4
Wiggins, J., dissenting
prohibition are unclear because the list following the "such as" clause has no
discernible pattern and is nonexclusive. By contrast, if the list were exclusive, listing
only specific places Wallmuller must avoid, the potential for vagueness would be
greatly reduced. For example, condition 17 might be revised to read, "The defendant
shall not loiter in nor frequent parks, video arcades, campgrounds, and shopping malls
when children are present." The Court of Appeals adopted just such an approach in
State V. Norris, 1 Wn. App. 2d 87, 95, 404 P.3d 83 (2017), aff'd in part and reversed
in part by State v. Hai Minh Nguyen, 191 Wn.2d 671, 425 P.3d 847 (2018). In Norris,
the Court of Appeals accepted the State's concession that '"any
parks/playgrounds/schools and or any places where minors congregate'" was vague,
but the court approved of an alternative: '"any parks/playgrounds/schools where
minors congregate.'" Id. at 95. Under such an approach, instead of asking whether a
particular location is "such as" the four examples listed in condition 17, Wallmuller
would need only to consult the list to know where he can or cannot go.
One might question resort to exclusive lists on the ground that a trial court
cannot possibly list all the places Wallmuller might encounter children. This might be
a valid criticism were it not for the other community custody conditions also imposed
on Wallmuller, banning contact with minor children and prohibiting participation in
activities likely to bring him into contact with minor children. With the additional
backstop protection of the other conditions, an exclusive list need not list dozens upon
dozens of locations to secure the State's goal of protecting children.
state V. Wallmuller(Frank A.), No. 96313-4
Wiggins, J., dissenting
I would therefore hold that exclusive lists are not vague (unless the terms within
them are themselves vague). With this rule, courts and litigants would often be spared
the trouble of attempting to divine whether a community custody condition is vague.
Instead, they would know that a nonexclusive list is not vague, saving everyone time
and trouble.
These conclusions would fit with Court of Appeals precedent. As in Irwin, we
would hold the term "places where children congregate" is unconstitutionally vague,
absent an illustrative list. 191 Wn. App. at 655. As in Johnson, we would not prohibit
all illustrative lists, but we would imply that lists like that in Johnson remain
constitutional. 4 Wn. App. 2d at 361-62. Finally, we would clarify what the Court of
Appeals implied in InA/in and reaffirmed in Norris: when in doubt, an exhaustive,
nonexclusive list cures the vagueness of "places where children congregate." The
majority, by incorrectly tethering the outcome of this case to federal case law, ignores
the cases in the Court of Appeals that have already set the parameters of this issue.
The majority therefore provides little guidance to these courts but indicates only that
the condition before us today is not, in fact, vague. We can and should do more than
that.
state V. Wallmuller(Frank A.), No. 96313-4
Wiggins, J., dissenting
CONCLUSION
Today a majority of the court concludes that the community custody condition
restricting Waiimuiier's freedom of movement is not vague. The majority does so
without truly analyzing the language of the community custody condition. But a closer
look at the language and a review of our case law makes clear that the result should—
and must—be the opposite. Further, the majority does not provide adequate guidance
to future litigants and courts. I would hold that the phrase "places where children
congregate" in condition 17 is unconstitutionally vague and that the list following the
"such as" clause does not cure this phrase of vagueness. I would therefore strike the
condition as being void for vagueness and remand to the trial court for further
proceedings consistent with this opinion.
For those reasons, I respectfully dissent.
state V. Wallmuller(Frank A.), No. 96313-4
Wiggins, J., dissenting
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