State v. J.H.-M.

566 P.3d 847

• Court: Washington Supreme Court
• Decided: April 10, 2025
• Docket: 102,635-8
• Status: Published

Opinion

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON APRIL 10, 2025

IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON SARAH R. PENDLETON APRIL 10, 2025 SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON STATE OF WASHINGTON, ) ) No. 102635-8 Respondent, ) ) En Banc v. ) ) Filed: April 10, 2025 J.H.-M., ) ) Petitioner. ) _______________________________________ )

MADSEN, J.—J.H.-M., a minor, was adjudicated guilty of rape by forcible

compulsion. The sentencing court imposed community custody conditions, one of which

prohibited J.H.-M. from engaging with, among other things, material depicting “sexually

explicit conduct” defined by former RCW 9.68A.011(4) (2010). 1 J.H.-M. challenges this

prohibition as unconstitutionally vague and overbroad. Because our prior case law

1 RCW 9.68A.011, as reflected on Washington State’s legislative website, lists “sexually explicit conduct” in subsection (7) rather than subsection (4). The code reviser notes that the definitions in this section have been alphabetized. RCW 1.08.015(2)(k). Current session law still codifies the definition for “sexually explicit conduct” in subsection (4). See LAWS OF 2024, ch. 88, § 1(4). For sake of consistency with the session law, we refer to subsection (4). Further, former RCW 9.68A.011 was in effect at the time of J.H.-M.’s adjudication and the statute was amended in 2024. See id. This amendment did not affect the definition of “sexually explicit conduct.” All references to this statute are to the former provision. State v. J.H.-M. No. 102635-8

defines “sexually explicit” and the condition at issue provides a list of qualifying conduct,

we hold that condition 5 is not vague. Accordingly, we affirm.

BACKGROUND

J.H.-M. was charged with second degree rape by forcible compulsion. After a

fact-finding hearing, the juvenile court adjudicated J.H.-M. guilty. The court imposed a

Special Sex Offender Disposition Alternative with 30-40 weeks of confinement. This

sentence was suspended for a 24-month supervision period. The court also imposed

conditions of supervision, such as maintaining employment and/or enrollment in school,

compliance with treatment requirements, and registration.

The court declined to order a condition prohibiting sexually explicit material

because the pro-tem sentencing judge considered it “vague.” Verbatim Rep. of Proc. at

376 (“I am not going to impose the do not possess, use, access, or view any sexually

explicit material. I believe that is vague.”). The court stated that the “treatment provider”

would condition J.H.-M.’s access to such material and directed J.H.-M. to follow the

provider’s recommendation if they found accessing sexually explicit materials

“inappropriate.” Id.

The court’s written order nevertheless included the prohibition. Clerk’s Papers

(CP) at 58. The condition states:

Do not possess, use, access or view any sexually explicit material as defined by RCW 9.68.130 or erotic materials as defined by RCW 9.68.050 or any material depicting any person engaged in sexually explicit conduct as defined by RCW 9.68A.011(4) unless given prior approval by your [Certified Sex Offender Treatment Provider].

2 State v. J.H.-M. No. 102635-8

Id. (condition 5) (emphasis added).

J.H.-M. appealed, asking the Court of Appeals to strike only the final clause of

condition 5 as vague and overbroad. 2 Initially, the State moved to concede error due to

the sentencing judge’s verbal statement declining to impose the condition. Mot. to

Concede Error (No. 84443-1-I) at 2-3. Division One denied the motion and directed the

parties to provide briefing on the merits. Order Denying State’s Mot. to Concede Error

(No. 84443-1-I). The court then affirmed the condition, concluding in a published

decision that the prohibition on accessing “‘any material depicting any person engaged in

sexually explicit conduct as defined by [former] RCW 9.68A.011(4)’” was not

unconstitutionally vague or overbroad. State v. J.H.-M., 28 Wn. App. 2d 757, 761-65,

538 P.3d 644 (2023) (quoting CP at 58).

In deciding J.H.-M.’s case, Division One declined to adopt Division Three’s

reasoning from In re Personal Restraint of Sickels, 14 Wn. App. 2d 51, 469 P.3d 322

(2020), and instead followed its own opinion in State v. Wolff, No. 82806-1-I (Wash. Ct.

App. Oct. 3, 2022) (unpublished), https://www.courts.wa.gov/opinions/pdf/828061.pdf.

J.H.-M., 28 Wn. App. 2d at 763. Sickels reasoned that State v. Padilla, 190 Wn.2d 672,

416 P.3d 712 (2018), controlled the definition of “sexually explicit conduct” in condition

5; thus it—like the condition in Padilla—was impermissibly vague. 14 Wn. App. 2d at

65-66. Wolff held that the same condition was not vague based on cases upholding the

2 J.H.-M. contests only the final clause of the provision referencing former RCW 9.68A.011(4). We confine our analysis to that portion of the condition.

3 State v. J.H.-M. No. 102635-8

constitutionality of the terms “sexually explicit material.” Wolff, No. 82806-1-I, slip op.

at 5-8.

Here, Division One determined that Sickels’s reliance on Padilla was misplaced.

The court reasoned that the condition in Padilla did not include a reference to former

RCW 9.68A.011(4), and that decision overturned a condition not merely for broadly

encompassing First Amendment material, but because it failed to adequately alert the

defendant of prohibited conduct. J.H.-M., 28 Wn. App. 2d at 763; U.S. CONST. amend. I.

In contrast to Padilla, Division One noted that former RCW 9.68A.011(4) listed acts that

are sufficiently clear to advise an ordinary person of proscribed conduct. Id. at 763-64.

Finding J.H.-M.’s First Amendment concerns were more properly viewed as an

“overbreadth challenge,” Division One held the condition was not overbroad. Id. at 764.

Limitations on fundamental rights are permissible if sensitively imposed and narrowly

tailored. Id. (citing State v. Johnson, 197 Wn.2d 740, 744-45, 487 P.3d 893 (2021)). A

juvenile court has broad authority to craft a resolution that advances rehabilitation by

imposing reasonable conditions that are related to the underlying offense of conviction.

Id. (citing State v. K.H.-H., 185 Wn.2d 745, 755, 374 P.3d 1141 (2016)). The court

reasoned that a condition limiting access to sexually explicit materials for adults or

children is related to the goal of rehabilitation. Id. at 765. Further, it is logical and

reasonable to conclude a person who cannot suppress sexual urges should be prohibited

from accessing “sexually explicit materials” meant only to invoke sexual stimulation. Id.

4 State v. J.H.-M. No. 102635-8

(citing State v. Hai Minh Nguyen, 191 Wn.2d 671, 686, 425 P.3d 847 (2018)). The court

upheld the condition. Id.

J.H.-M. sought review of the Court of Appeals decision here, which was granted. 3

State v. J.H.-M, 2 Wn.3d 1028 (2024).

ANALYSIS Community custody is one type of postincarceration supervision. State v. Geyer,

19 Wn. App. 2d 321, 325, 496 P.3d 322 (2021) (citing RCW 9.94A.030(5)). “‘When a

court sentences a person to a term of community custody, RCW 9.94A.703 requires that

it impose conditions of community custody.’” Id. (quoting Sickels, 14 Wn. App. 2d at

59). A trial court’s authority to impose conditions is rooted in statute. Id.; RCW

9.94A.701.

This court reviews the decision to impose a community custody condition for an

abuse of discretion and will reverse a condition if it is manifestly unreasonable. Nguyen,

191 Wn.2d at 678 (citing State v. Bahl, 164 Wn.2d 739, 753, 193 P.3d 678 (2008)).

Imposition of an unconstitutional condition is manifestly unreasonable. Id.

1. Overbreadth

The line between vagueness and overbreadth is not always clear. See Jordan v.

Pugh, 425 F.3d 820, 828 (10th Cir. 2005) (“Overbreadth and vagueness may overlap”);

3 The State noted that J.H.-M.’s probation ended the day after oral argument. Wash. Sup. Ct. oral arg., State v. J.H.-M., No. 102635-8 (Sept. 10, 2024), at 29 min., 48 sec., video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/washington-state- supreme-court-2024091124/?eventID=2024091124. The State asked that we retain and decide the case under the public interest exception to mootness. Id. at 38 min., 33 sec. We agree.

5 State v. J.H.-M. No. 102635-8

David Kwok, Is Vagueness Choking the White-Collar Statute?, 53 GA. L. REV. 495, 506

(2019) (“While overbreadth and vagueness are conceptually distinct, courts recognize the

close relationship between the principles and doctrines.”). As this court noted in Padilla,

a “vague definition does not save the condition from a vagueness challenge if it also

encompasses a broad range of speech protected by the First Amendment.” 190 Wn.2d at

680-81 (citing Bahl, 164 Wn.2d at 756). While recognizing that vagueness and

overbreadth may sometimes overlap, Padilla discussed the broad definition at issue there

in the context of vagueness rather than overbreadth. See id. Here, the Court of Appeals

concluded J.H.-M.’s argument was more properly analyzed as an overbreadth challenge

and concluded that the condition was not overbroad. In his petition for review to this

court, however, J.H.-M. does not specifically argue overbreadth. Rather, J.H.-M.

contends his overbreadth claim leads directly to a vagueness problem—that corrections

officers lack ascertainable standards. Wash. Sup. Ct. oral arg., State v. J.H.-M., No.

102635-8 (Sept. 10, 2024), at 39 min., 14 sec., to 40 min., 12 sec., video recording by

TVW, Washington State’s Public Affairs Network, https://tvw.org/video/washington-

state-supreme-court-2024091124/?eventID=2024091124. Because J.H.-M.’s claim is

rooted in Padilla’s reasoning on vagueness and J.H.-M. does not meaningfully argue

overbreadth, we address his claim of vagueness.

2. Vagueness

Citizens must be afforded fair warning of proscribed conduct. WASH. CONST. art.

I, § 3; U.S. CONST. amend. XIV; Bahl, 164 Wn.2d at 752. A community custody

6 State v. J.H.-M. No. 102635-8

condition is unconstitutionally vague if it (1) does not define the criminal offense with

sufficient definiteness that an ordinary person can understand what conduct is proscribed

or permitted or (2) does not provide ascertainable standards to protect against arbitrary

enforcement. Nguyen, 191 Wn.2d at 678 (quoting Bahl, 164 Wn.2d at 752-53).

“‘[I]f persons of ordinary intelligence can understand what the [law] proscribes,

notwithstanding some possible areas of disagreement, the [law] is sufficiently definite.’”

Id. at 679 (most alterations in original) (quoting City of Spokane v. Douglass, 115 Wn.2d

171, 179, 795 P.2d 693 (1990)). A condition that contains a definition may be

unconstitutionally vague if the definition is itself vague or overbroad. In re Pers.

Restraint of Ansell, 1 Wn.3d 882, 893, 533 P.3d 875 (2023) (plurality opinion) (citing

Padilla, 190 Wn.2d at 674-75). A condition is not “unconstitutionally vague merely

because a person cannot predict with complete certainty the exact point at which [their]

actions would be classified as prohibited conduct.” City of Seattle v. Eze, 111 Wn.2d 22,

27, 759 P.2d 366, 368 (1988). A stricter standard of definiteness applies, however, where

the community custody condition prohibits material protected by the First Amendment.

Bahl, 164 Wn.2d at 753.

To determine whether a condition is impermissibly vague, “the terms are not

considered in a ‘vacuum,’ rather, they are considered in the context in which they are

used.” Id. at 754. Conditions should be “‘read in a commonsense fashion in the context

of the judgment and sentence, and related documents that will be available to [the

community corrections officer].’” Ansell, 1 Wn.3d at 898 (quoting Johnson, 197 Wn.2d

7 State v. J.H.-M. No. 102635-8

at 748). Context includes statutes listed in the condition and a defendant’s judgment and

sentence. See id. at 895, 898 (quoting Johnson, 197 Wn.2d at 740); Nguyen, 191 Wn.2d

at 679; Bahl, 164 Wn.2d at 743, 756 (“‘[b]ecause of the inherent vagueness of language,

citizens may need to utilize other statutes and court rulings to clarify the meaning of a

statute’—‘[s]uch sources are considered presumptively available to all citizens’”

(alterations in original) (internal quotation marks omitted) (quoting State v. Watson, 160

Wn.2d 1, 8, 154 P.3d 909 (2007))). We presume the use of different terms in the same

condition are intended to have different meanings, view sections of a condition in relation

to each other, and, if possible, harmonize the conditions to give effect to each section.

See Densley v. Dep’t of Ret. Sys., 162 Wn.2d 210, 219, 173 P.3d 885 (2007) (“two

different terms in the same statute” are presumed to “have different meanings”); Millay v.

Cam, 135 Wn.2d 193, 199, 955 P.2d 791 (1998) (statutory provisions “must be viewed in

relation to each other and harmonized if possible”).

In this case, condition 5 uses three separate terms referencing three separate

statutes to describe prohibited material. Specifically, the condition forbids material that

is “sexually explicit” in RCW 9.68.130, “erotic” in RCW 9.68.050, and depicting

“sexually explicit conduct” in former RCW 9.68A.011(4). CP at 58.

We have considered and upheld the constitutionality of the terms “sexually

explicit” in prior cases. The Bahl court held that “sexually explicit” was not

unconstitutionally vague in the context of prohibiting access to businesses that specialize

in sexually explicit or erotic material. 164 Wn.2d at 758-59. After drawing a distinction

8 State v. J.H.-M. No. 102635-8

between “pornographic” material and “sexually explicit” material, id. at 757-58, Bahl

consulted the dictionary to define the phrase “sexually explicit,” meaning “‘clearly

expressed sexual’ materials or materials that are unequivocally sexual in nature.” Id. at

758-59. Bahl also looked to RCW 9.68.130(2) for the definition of “sexually explicit”—

pictorial material that displays specific sexual acts and exempts works of art or

anthropological significance. Id. at 759-60. Thus, the court held that the term “sexually

explicit,” when combined with its dictionary and statutory definitions, was sufficiently

definite. Id. at 760.

In Nguyen, we again affirmed a condition prohibiting engagement with “sexually

explicit material.” 191 Wn.2d at 679. Interpreting a different section of the same

community custody condition at issue here, Nguyen relied on Bahl’s definition of the

term “sexually explicit,” as well as the referenced statute (RCW 9.68.130(2)), to conclude

that “sexually explicit material” was not unconstitutionally vague. Nguyen, 191 Wn.2d at

680.

Nguyen and Bahl provide context to the challenged portion of condition 5, namely,

the definition for “sexually explicit.” Applied here, J.H.-M. is prohibited from engaging

with sexually explicit conduct, which means “clearly expressed sexual” conduct or

conduct that is “unequivocally sexual in nature.” Bahl, 164 Wn.2d at 759; see Nguyen,

191 Wn.2d at 680.

Further, condition 5 references former RCW 9.68A.011(4). As we noted in Bahl,

former RCW 9.68A.011 “lists a number of acts that constitute ‘sexually explicit conduct’

9 State v. J.H.-M. No. 102635-8

for the purposes of the chapter.” Bahl, 164 Wn.2d at 760 n.7 (emphasis added). The

statute identifies both acts alone and acts plus intent as examples of sexually explicit

conduct. In particular, subsections (a) through (d) list solely acts, and subsections (e)

through (g) include acts committed for the purpose of sexually stimulating the viewer.

Compare former RCW 9.68A.011(4)(c) (“‘Sexually explicit conduct’ means actual or

simulated: . . . Masturbation”), with (e) (“‘Sexually explicit conduct’ means actual or

simulated: . . . Defecation or urination for the purpose of sexual stimulation of the

viewer.”). In addition to requiring an intent (to sexually stimulate the viewer), subsection

(f) applies specifically to depictions of minors. RCW 9.68A.011(4)(f) (“Depiction of the

genitals or unclothed pubic or rectal areas of any minor, or the unclothed breast of a

female minor, for the purpose of sexual stimulation of the viewer.”).

Read in this context, the final section of condition 5 is sufficiently definite. The

condition explains that J.H.-M. cannot engage with material depicting “sexually explicit

conduct,” which Bahl defines as conduct that is “unequivocally sexual in nature.” 164

Wn.2d at 759. Qualifying conduct is found in the cited statute, former RCW

9.68A.011(4). This provision lists acts that, alone or when combined with the intent to

sexually stimulate the viewer, constitute “sexually explicit conduct.” Certain acts by

themselves are strictly prohibited; other acts are prohibited if committed for the purpose

of sexual stimulation of the viewer; and one act requires intent to sexually stimulate the

viewer and is applicable only to minors.

10 State v. J.H.-M. No. 102635-8

In short, the definition of “sexually explicit” limits applicable conduct to that

which is unequivocally sexual in nature. Former RCW 9.68A.011(4) further narrows the

scope of condition 5’s listed acts, including those committed for the explicit purpose of

sexual stimulation. See, e.g., former RCW 9.68A.011(4)(e) (“Defecation or urination for

the purpose of sexual stimulation of the viewer.”).

These limitations to the scope of former RCW 9.68A.011(4) also answer J.H.-M.’s

claim that condition 5 violates Padilla, 190 Wn.2d at 681. In Padilla, the court

considered a community custody condition prohibiting engagement with “pornographic

materials,” defined as “‘images of sexual intercourse, simulated or real, masturbation, or

the display of intimate body parts.’” 190 Wn.2d at 679. Padilla noted that the definition

broadly included movies and television shows that were not created to sexually gratify

the viewer, nor would such mainstream movies ordinarily be considered “pornographic

material.” Id. at 681. The court held that the condition and its definition were

unconstitutionally vague because they encompassed too much constitutionally protected

speech, did not provide adequate notice of proscribed conduct, and impermissibly

delegated authority to corrections officers to determine the boundaries of the condition.

Id. at 681-82.

J.H.-M. argues no difference exists between the definition of “pornographic

materials” in Padilla, 190 Wn.2d at 679, and “sexually explicit conduct” in former RCW

9.68A.011(4). Suppl. Br. of Pet’r at 13. Specifically, J.H.-M. reasons that both

conditions prohibit actual or simulated sexual intercourse or masturbation that occur in

11 State v. J.H.-M. No. 102635-8

“countless mainstream television shows and movies,” which is “precisely the

constitutional problem identified in Padilla.” Id. at 14. J.H.-M. focuses principally on

Padilla’s First Amendment analysis.

Padilla is distinguishable, however. Condition 5 and Padilla concern different

language: “sexually explicit conduct” and “pornographic materials” respectively. See CP

at 58; Padilla, 190 Wn.2d at 678. Padilla concluded the term “pornographic materials”

was vague despite the presence of a definition because, among other things, the definition

was itself vague. Id. at 681. The term “pornographic” is distinct from “sexually

explicit.” Nguyen, 191 Wn.2d at 680 (“In Bahl, we drew a distinction between the

two.”). Further, as noted, we have repeatedly upheld the term “sexually explicit

material” against vagueness challenges. Id.; Bahl, 164 Wn.2d at 760; Ansell, 1 Wn.3d at

894-96; see, e.g., United States v. Rearden, 349 F.3d 608, 619-20 (9th Cir. 2003). And

the presence of a statute, here former RCW 9.68A.011(4), “bolsters the conclusion that”

the term “sexually explicit material” is not unconstitutionally vague. Nguyen, 191 Wn.2d

at 680.

In practical terms, J.H.-M. must consult condition 5 in context—measuring

potential conduct against the prohibitions defined by case law and examples of such

conduct provided by statute. Scientific certainty for when actions constitute proscribed

conduct is not required. Ansell, 1 Wn.3d at 899 (“Due process does not require that

[defendants] should be able to ‘predict with complete certainty the exact point at which

[their] actions would be classified as prohibited conduct.’” (internal quotation marks

12 State v. J.H.-M. No. 102635-8

omitted) (quoting Padilla, 190 Wn.2d at 677)). All that is required is that a person of

ordinary intelligence can understand what conduct is prohibited. Padilla, 190 Wn.2d at

677. In this case, a person of ordinary intelligence can understand that condition 5’s final

clause is aimed at preventing J.H.-M. from accessing materials depicting conduct that is

unequivocally sexual in nature, with former RCW 9.68A.011(4) providing examples of

qualifying acts. 4

J.H.-M. further argues that condition 5 is vague because the definitions of sexually

explicit material in RCW 9.68A.130 and sexually explicit conduct in former RCW

9.68A.011(4) overlap, yet only section .130 exempts works of art and anthropological

significance. This discrepancy, J.H.-M. claims, results in vagueness because it is not

clear what is prohibited. We disagree.

Condition 5 uses three separate terms with three separate statutory definitions to

describe prohibited material: RCW 9.68.130 (defining “sexually explicit” material),

RCW 9.68.050 (defining “erotic” material), and RCW 9.68A.011(4) (defining “sexually

explicit conduct”). RCW 9.68.050(1) and (2) expressly involve erotic material depicting

minors. RCW 9.68.130 broadly concerns sexually explicit material, does not distinguish

between adults and minors, and includes an exception for works of art or anthropological

significance. Former RCW 9.68A.011(4) lists sexually explicit acts that relate to minors.

4 Subsections (e) through (g) provide the additional requirement that the enumerated acts must be committed “for the purpose of sexual stimulation of the viewer.”

13 State v. J.H.-M. No. 102635-8

More broadly, chapter 9.68A RCW concerns preventing the sexual exploitation

and abuse of children. RCW 9.68A.001. Former RCW 9.68A.011’s preamble explains

that the listed definitions apply throughout the chapter “[u]nless the context clearly

indicates otherwise.” A statute’s preamble can be “an important guide in determining the

intended effect of the operative sections.” Kilian v. Atkinson, 147 Wn.2d 16, 23, 50 P.3d

638 (2002). Former RCW 9.68A.011’s introductory language shows that lawmakers

intended the definitions be used with a measure of flexibility and in the context of sexual

crimes against minors.

Legislative findings are similarly germane. In RCW 9.68A.001, the legislature

found that “the prevention of sexual exploitation and abuse of children constitutes a

government objective of surpassing importance” and made extensive findings regarding

the deleterious impact of child exploitation. Significantly for this case, the legislature

provided that “[t]he definition of ‘sexually explicit conduct’ and other operative

definitions demarcate a line between protected and prohibited conduct and should not

inhibit legitimate scientific, medical, or educational activities.” RCW 9.68A.001

(emphasis added).

Finally, we view the condition in the context of related documents. Here,

J.H.-M.’s judgment and sentence reflect the facts of the underlying criminal offense. As

a minor, J.H.-M. raped another minor by forcible compulsion. The offender and victim

were under the age of 18, therefore they were legally children. All of this gives context

to the prohibitions that would apply.

14 State v. J.H.-M. No. 102635-8

In sum, condition 5 is sufficiently definite. J.H.-M.’s judgment and sentence

reflects violence by a minor against a minor. Former RCW 9.68A.011’s introductory

language states that its definitions may conform to context, the legislature explained that

the definitions in former section .011 relate to the protection of children from sexual

exploitation, and lawmakers expressed their intent that the definition of sexually explicit

conduct does not include conduct that would inhibit legitimate scientific, medical, or

educational activities. See RCW 9.68A.001.

That RCW 9.68.130 contains an explicit exemption for artistic materials that

former subsection .011(4) lacks does not render condition 5 vague. The legislative

findings make clear that the protection of children from “sexual exploitation can be

accomplished without infringing on a constitutionally protected activity” and stated the

definition of “sexually explicit conduct” in former subsection .011(4) does not preclude

accessing educational, medical, or scientific material. RCW 9.68A.001. The presence of

the statutory definition in former subsection .011(4) “bolsters the conclusion” that the

term “sexually explicit material” is sufficiently clear to give notice of what is prohibited.

Nguyen, 191 Wn.2d at 680.

CONCLUSION

This court’s prior case law defines, and therefore limits, the scope of condition 5’s

prohibition on “sexually explicit conduct” to that which is “unequivocally sexual in

nature.” Bahl, 164 Wn.2d at 759; see Nguyen, 191 Wn.2d at 680. The condition’s

reference to former RCW 9.68A.011(4) provides examples of specific prohibited acts.

15 State v. J.H.-M. No. 102635-8

The condition sufficiently notifies J.H.-M. of proscribed conduct and provides

ascertainable standards to prevent arbitrary enforcement. See Nguyen, 191 Wn.2d at 678.

Accordingly, we affirm the imposition of condition 5 and the Court of Appeals.

________________________________

WE CONCUR:

_______________________________ ________________________________

_______________________________ ________________________________

_______________________________ ________________________________

_______________________________ ________________________________ Price, J.P.T.

16 State v. J.H.-M., No. 102635-8 (Gordon McCloud, J., dissenting)

No. 102635-8

GORDON McCLOUD, J. (dissenting)— The majority does a detailed legal

analysis of the sex-related community custody conditions contained in J.H.-M.’s

adjudication. Majority at 7-15. It considers the conditions imposed in light of prior

legal decisions defining the terms used, in light of statutory definitions of some of

the terms used, in light of the statutory preamble, and in light of a court

document’s description of the criminal conduct, as if that might shed light on what

the condition (which does not incorporate prior legal decisions, statutes, or the

factual description of the criminal conduct) means. After that detailed legal

analysis, the majority concludes that on balance, the terms used in the juvenile

adjudication—when read in conjunction with this “context of related [court]

documents,” statutory definitions, and prior precedents—are not “vague.” Majority

at 14-15.

They might not be vague to my learned colleagues, with their advanced

degrees, legal research skills, command of our prior case law, and ability to use all

of our resources to review and consider legal research and documents in the trial

court file in this case.

1 State v. J.H.-M., No. 102635-8 (Gordon McCloud, J., dissenting)

But the First Amendment to the United States Constitution does not require

us to ask whether the prohibition contained in the judgment is “vague” to

accomplished and experienced lawyers and judges. Instead, the First Amendment

and article I, section 3 of our state constitution require us to ask whether the

prohibition in the judgment is “vague” to a person of ordinary intellect.

In this case, that person is also a juvenile, without a legal degree, and for all

we know, without access to Washington’s prior legal precedent—the sources on

which the majority relies.

The language at issue here might well be “vague” to a person of ordinary

intellect, particularly in a juvenile case. And the fact that this is a juvenile case

cannot be deemed irrelevant—a child’s age is certainly relevant to many other

legal decisions about what children in the legal system understand.1 Without the

guidance provided by the prior decisions of this court, the statutory definitions and

preamble, and the description of the crime contained in the judgment, there is no

way that the juvenile defendant in this case could come up with the same detailed

1 See J.D.B. v. North Carolina, 564 U.S. 261, 271-81, 131 S. Ct. 2394, 180 L. Ed. 2d 310 (2011) (the age of a child subjected to law enforcement questioning is a factor that is relevant to determining whether that individual was in custody and, hence, subject to the rule requiring Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966))). 2 State v. J.H.-M., No. 102635-8 (Gordon McCloud, J., dissenting)

legal analysis that the majority uses. That means that the prohibitions are vague to

the person to whom they matter most: the juvenile defendant.

I therefore respectfully dissent.