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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 defendant from "places where children congregate" is inherently

vague, in violation of due process, unless it is cabined by an exclusive list of specific

prohibited places. We hold that this was error. While an illustrative list of 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 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 Nov. 17, 2015) (unpublished), http://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 of the 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 if they 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 of the 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

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 if it imposes an unconstitutional community custody

condition, and we review constitutional questions de novo. Id.

Under the due process principles of the Fourteenth Amendment to the United

States Constitution and article I, section 3 of the 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 of proscribed 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))).

-5-
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 of prohibited 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

-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 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 requires fair 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

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 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.

-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 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

-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. 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

-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 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.

-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 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 <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 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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