# frxiJEV IN CLERKS OFFICE X 8UPRBECOURT.SBOEOFVWaWOTOM 

# Um7^_§§P_2j_j|gI ' -TOJWK CMIEFJUSTKE Thisopinion was fiied for record 

### at5<^on 9^1f 

# (-^IZZL(Xr'IX Susan L.Carlson Supreme Court Clark

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, Petitioner,

V. FRANK A.WALLMULLER, Respondent. NO. 96313-4

EN BANC 

### Filed SEP 2 li >(IHI

STEPHENS, J.—^The Court of Appeals held that a community custody condition barring a defendantfrom "places where children congregate"is inherently vague,in violation ofdueprocess,unless itis cabined by an exclusive list ofspecific prohibitedplaces. Weholdthatthis waserror. While an illustrative listof prohibited 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 ofa child and sexual exploitation ofa minor. He successfully appealed on grounds ofsentencing
error and imposition ofimproper 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 Nov. 17, 2015)(unpublished), http:// www.courts.wa.gOv/opinions/pdfiD2%2046460-8-II%20Unpublished%200pinion.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. Onremand,thetrial courtstruckthe challenged community custody conditions, 

### which related to pornography and businesses selling liquor,^ butreimposed 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 ofa responsible adult who is capable of protecting the child and is aware of the conviction, and contacthasbeen approved bythe Community Corrections Officerand the sexual offender's treatmenttherapist 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 ofAppeals held these conditions were insufficiently crime related in violation ofthe SentencingReform Actof1981,ch.9.94ARCW. Wallmuller,No.46460- 8-II,slip op.at 4-5.

-2-State V. Wallmuller,96313-4



### Clerk's Papers at 25 (boldface omitted). Wallmuller did not object to any ofthese 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 ofAppeals agreed and remanded for the trial courtto vacate 

### or modify the condition. State v. Wallmuller,4 Wn.App.2d 698,703-04,423P.3d 282 (2018). The majority reasoned that the phrase "places where children congregate" is vague because it givesrise to several questions: (1)Mustthe ehildrenjoin together in aformal group to "eongregate," or is it sufficient that ehildren be at the same place even ifthey are unconnected? (2)Similarly,mustthe ehildren intend tojoin together with other children to "eongregate," or can they end up atthe 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 mustthey have congregated there? Is one prior instance ofehildren congregating in a place sufficientregardless ofwhen 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 

### wouldhaveupheld the condition,observing thatthe condition would putan ordinary person on notice ofthe prohibited conduct. Id.at 714(Lee,J.,dissenting).

-3-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 

### appealand,wherethe challenge involves alegalquestion thatcan beresolved onthe 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 ofdiscretion. Id. (citing State v. Irwin, 191 Wn.App.644,652,364 P.3d 830 (2015)). A trial court necessarilyabusesitsdiscretion ifitimposesanunconstitutionalcommunitycustody condition,and we review constitutional questions de novo. Id. 

### Underthe due processprinciples ofthe Fourteenth Amendmentto 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 isnotunconstitutionallyvaguemerelybecause aperson 

### cannotpredictwith complete certaintythe exactpointatwhich his actions would be

-4-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 ofthe state constitution require[]thatcitizens have fair waming ofproscribed conduct.'" Sanchez Valencia, 169Wn.2d at791 (quotingBahl,164Wn.2d at752). Thatstandard issatisfied where "ordinarypeoplecan understand whatis and isnotallowed,and areprotected 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 ofthe 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, includingIrwin, 191 Wn.App.644,and State v.Norris, 1 Wn.App.2d 87,404P.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. 1257,1261-62,194L.Ed.2d387(2016) (boththeFifth andFourteenthAmendments prohibitgovernments "from imposing sanctions 'under a criminal law so vague thatit fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement'"{oyolmgJohnson v. UnitedStates,576U.S. ,135 S.Ct. 2551,2556, 192 L.Ed.2d 569(2015))).
-5-State V. Wallmuller,96313-4



### 83 (2017)rev'd inpart on other grounds by State v. HaiMink Nguyen, 191 Wn.2d 671,687-88,425 P.3d 847(2018). lulrwin,the courtheld unconstitutionally vague
a condition that read, '"Do not frequent areas where minor children are known to congregate,as defined bythe supervising [community corrections officer(CCO)].'" 

### 191 Wn. App. at 649 (alteration in original). It reasoned that "[wjithout some clarifying language or an illustrative listof prohibited locations . . .ordinarypeople cannotunderstand whatconductisproscribed. . .[and]the condition [is]vulnerable to arbitrary enforcement"bythe CCO.Id.at655(emphasisadded). 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 thatthe condition was vague underIrwin and struck the phrase "'and or any places,"' so that the condition would read, "'Do not enter any 

### parks/play

grounds/schools where minors congregate.'" Id. at 95-96. This revision to the condition suggests thatthe court was concerned with the alternative "and or" 

### phrasing that arguably leftthe phrase,"where children congregate"unmodified. Expressly relying on Irwin and Norris,the Court ofAppeals majority in this
caseheld thatthephrase "'placeswhere children congregate'"is so inherentlyvague that a "short [nonexclusive] list" of exemplifying places cannot render it

-6-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 cannotbe reconciled withNorris.
^ Wallmuller, 4 Wn. App. 2d at 703 (short list ofprohibited places cannot cure vagueness ofcondition that "contains the phrase 'such as'before its list").

-7-State V. Wallmuller,96313-4



### Second,in addition to its misalignmentwith the case itpurports to apply,the majority'sreasoning and holding conflicts with the overwhelming consensusamong 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 ofillustrative 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 appellantfrom having "'direct,or indirect, contact with children . . . [or] loitering in any place where children congregate, including butnot 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

-8-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 fr om '"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 notmandate conditions that "'describe every possible permutation,or . . .spell 

### out every last, self-evident detail.'" MacMillen, 544 F.3d at 76 (alteration in original)(quoting UnitedStatesv.Johnson,446F.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

-9-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 ofspecificity," City of Seattle 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 thatuse nonexclusive lists to elucidate 

### general phrases like "where children congregate." See Paul, 274 F.3d at 167 ('"conditions ofprobation 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 conditionprohibiting appellantfrom "residing near,visiting orbeing 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.

-10-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 ofprohibited 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 ofAppeals majority's decision in this case. The court inIrwin properly recognized thatthe phrase "where children



### . . .congregate" is vague standing on its own. 191 Wn.App.at 649,655. Under Johnson,such aphrase is sufficiently specific when modified by anonexclusive list ofplaces illustrating its scope. 4 Wn. App. 2d at 360. These holdings are both consistent with the myriad federal cases discussed herein. Norris is somewhat differentbecause itaddresses 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

-11-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. Atleast one federal courthas 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 ofthe provision at issue in Peterson"),cited in Johnson,4 Wn.App.2d at 360. Contrary to the Court ofAppeals'putative reliance on existing case law,the rule it announced does not rest on Irwin or Norris. On the one hand,it goes much fartherthan these cases and consistentfederalprecedentto 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

-12-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 ofWallmuller's sentence could be drafted,butreading this condition in a commonsense way and in the context ofthe 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 expectto encounter children,and it does not invite arbitrary enforcement. Accordingly, we reverse the Court of Appeals and uphold the condition.

-13-State V. Wallmuller, 96313-4

WE CONCUR:



### ac.

/✓ '

-14-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 standardsto protectagainstarbitrary 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 distinguishingstate 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 interpretand determine the constitutionality ofa sentencing condition,
we do notdon blinders and look only atthe challenged condition. See Bahl, 164Wn.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 underthe

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 havingstate 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 Wallmullerfrom loitering orfrequented 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 Wallmullerwith only 

### supposition about what this term might mean. Therefore, an ordinary person cannotstate 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 ofwhether the Court ofAppeals'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 <will do [such]things as counsel an immigrant on buying a second-hand car. . . > <a bag [such]as a doctor carries> <coarse fish, [such]as carp, catfish, and the like. . . .> 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 mustwonder 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 distinctfrom the list here. The lists in the federal cases cited by the majority closely resemble the 

### list approved of by our Court ofAppeals in State v. Johnson,4Wn.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. Asdiscussed above,the problem with condition 17 is that it prohibits Wallmuller 

### from entry into unspecified "places where children congregate."The boundaries ofthis

The list in United States v. Paul, 274 F.3d 155, 166-67 (5th Cir. 2001), excepted. 6state 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 norfrequent 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 partby 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 ofthe other conditions,an exclusive list need notlist 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 ofthis 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 ofthe community custody condition. But a closer look atthe language and a review ofour case law makes clear thatthe 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

r

10