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
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 Nov. 17, 2015) (unpublished), http://
Opinion. 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
(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.
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.
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 children join
together in a formal group to "congregate, " or is
it sufficient that children be at the same place even if they
are unconnected? (2) Similarly, must the children intend to
join together with other children to "congregate, "
or can they end up at the same place by happenstance? (3) How
many children 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 children 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 children 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.,
granted the State's petition for review. State v.
Wallmuller, 192 Wn.2d 1009, 432 P.3d 794 (2019).
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
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 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 warning 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
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 83 (2017)
rev'd in part on other grounds by State v. Hai Minh
Nguyen, 191 Wn.2d 671, 687-88, 425 P.3d 847 (2018). In
Irwin, 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
"[w]ithout 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, in
Norris, 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.
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 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.
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 ...