State v. K.H.-H.

374 P.3d 1141, 185 Wash. 2d 745

• Court: Washington Supreme Court
• Decided: June 23, 2016
• Docket: No. 91934-8
• Status: Published

Opinions

Johnson, J.

¶1 This case involves whether a juvenile disposition condition requiring K.H.-H.—who was adjudicated guilty of fourth degree assault with sexual motivation—to write an apology letter to the victim violates his constitutional free speech rights. U.S. Const, amend. I. We hold that it does not.

Facts and Procedural History

¶2 K.H.-H., a 17-year-old male, was charged with assault with sexual motivation after he forced himself on C.R., a female acquaintance who attended the same high school. K.H.-H. and C.R. were sitting on C.R.’s bed when K.H.-H. began to kiss her on the face and neck. She responded by telling K.H.-H. to “chill it or to back off.” Verbatim Tr. of Proceedings (Aug. 13, 2013) (VTP) at 29. Undeterred, K.H.-H. pushed C.R. onto her back, leaned over her, and began biting her neck. C.R. protested, tried to push K.H.-H. away, and told him to “stop” and to get off her, and that it hurt. VTP at 35. K.H.-H. “pushed his weight down more on [her] hands,” reached under her shirt and bra in an attempt to touch her breasts, and reached into and “tr[ied] to undo [her] pants.” VTP at 32, 33. C.R. grabbed her cell phone and threatened to call her father, prompting K.H.-H. to leave the house. C.R. noticed bruises on her neck from the bites and showed the marks to her friend, J.S. J.S. confronted K.H.-H. about the incident and then informed a school official.

¶3 The State charged K.H.-H. with two counts of fourth degree assault with sexual motivation: one for the incident with C.R. and another for an incident involving a different girl. The juvenile court adjudicated K.H.-H. guilty on the count involving C.R. and not guilty on the count involving the other girl. At the disposition hearing, the State requested the court order K.H.-H. to address to C.R. “a sincere written letter of apology ... meanfing] an admission that he did what he was accused of what he’s [sic] doing and [is] sorry he put her in that position.” VTP at 149. Defense counsel objected to this condition, insisting that K.H.-H. maintained the right to control his speech.

¶4 The juvenile court sentenced K.H.-H. to three months of community supervision and also ordered K.H.-H. to “write a letter of apology to victim C.R. that is approved by the Probation Officer and the State.” Clerk’s Papers (CP) at 42. K.H.-H. appealed his conviction and sentence, arguing in part that the apology letter requirement violated his rights under the First Amendment to the United States Constitution to be free from compelled speech.¹

¶5 The Court of Appeals affirmed the sentence, holding that the apology letter was permissible under United States v. Clark, 918 F.2d 843 (9th Cir. 1990), overruled on other grounds by United States v. Keys, 133 F.3d 1282 (9th Cir. 1998), because the apology letter requirement served the State’s compelling interest in rehabilitating juvenile offenders. State v. K.H.-H., 188 Wn. App. 413, 421, 353 P.3d 661 (2015).

¶6 This court granted K.H.-H.’s petition for review of the condition requiring him to write the apology letter. State v. K.H.-H., 184 Wn.2d 1010, 360 P.3d 817 (2015).

Analysis

¶7 This court has never addressed the question of whether it is a violation of the First Amendment or our own article I, section 5 of the Washington Constitution to order a juvenile defendant in a criminal case to write a letter of apology.

¶8 The First Amendment prohibits states from “abridging the freedom of speech.” U.S. Const. amend. I; see Gitlow v. New York, 268 U.S. 652, 666, 45 S. Ct. 625, 69 L. Ed. 1138 (1925). The United States Supreme Court has held that “the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977). The protection from compelled speech extends to statements of fact as well as of opinion. Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 62, 126 S. Ct. 1297, 164 L. Ed. 2d 156 (2006). Article I, section 5 of the Washington Constitution guarantees that “[e]very person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.” K.H.-H. does not advocate an independent state constitutional analysis but instead argues our cases articulate a First Amendment analysis distinct from that applied in Clark. The issue here centers on the protection from government-compelled speech.

¶9 Because a forced apology involves making an offender say something he does not wish to say, it implicates the compelled speech doctrine. The compelled speech doctrine generally dictates that the State cannot force individuals to deliver messages that they do not wish to make. See, e.g., Wooley, 430 U.S. 705 (the State may not compel individuals to display on their vehicles a license plate motto with which they disagree); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943) (a compelled flag salute and pledge of allegiance in public schools violates the First Amendment).

¶10 First Amendment rights are not absolute, however, particularly in the context of prison² and probation, where constitutional rights are lessened or not applicable. Similarly, criminal convictions result in loss or lessening of constitutional rights. Because of this, we find Wooley and Barnette are inapplicable in the present case, as they define the boundaries of free speech for those not convicted of crimes. While the Supreme Court has never addressed anything related to the constitutionality of a probation con-ition that implicates an individual’s right to free speech,³ the federal circuit courts have reviewed this issue and analyzed it under similar situations. The Court of Appeals in the present case relied on the analysis used by the Second⁴ and Ninth Circuits as articulated in Clark in deciding that the disposition did not violate the First Amendment. See K.H.-H., 188 Wn. App. at 423.

¶11 Most analogous to the facts here, in Clark the trial court imposed a probation condition requiring two former police officers convicted of perjury to publish apologies for their crimes, which they denied having committed. The officers posited that the apology requirement violated their First Amendment right to refrain from speaking. In rejecting this argument, the Ninth Circuit acknowledged the broad discretion a sentencing judge has in setting probation conditions, reasoning that “even where preferred rights are affected, [the test] is ‘whether the limitations are primarily designed to affect the rehabilitation of the probationer or insure the protection of the public.’” Clark, 918 F.2d at 848 (quoting United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 n.14 (9th Cir. 1975)). When applying the analysis from Clark, a court asks whether the sentencing judge imposed the conditions for permissible purposes and then determines whether the conditions are reasonably related to those purposes. Clark, 918 F.2d at 848.

¶12 Asserting that Washington’s case law requires more than the ostensible reasonably related standard articulated in Clark, K.H.-H. cites State v. Bahl, 164 Wn.2d 739, 757-58, 193 P.3d 678 (2008). Bahl concerned a constitutional vagueness challenge to a community custody condition that the defendant not possess or access pornographic materials, imposed under the Sentencing Reform Act of 1981, chapter 9.94A RCW. Bahl, 164 Wn.2d at 743.

¶13 In Bahl, this court held that sentence conditions that implicate free speech rights must be narrowly tailored to serve an important government interest and must be reasonably necessary to achieving that interest. Bahl, 164 Wn.2d at 757. The State argued in Bahl that Washington law required that sentencing conditions be only “crime-related” to be valid. This court held that both federal and state law required more connection (or nexus) before conditions that infringe on constitutional rights may be imposed. In our analysis, we referred to the analysis in Malone v. United States, 502 F.2d 554, 556 (9th Cir. 1974), which held that “freedom of association may be restricted if reasonably necessary to accomplish the essential needs of the state and public order.” (Emphasis added.) We concluded that the restriction on accessing or possessing pornographic materials at issue was unconstitutionally vague. Since Bahl involved a vagueness analysis, where the inquiry also focuses on notice concerns, it is of little relevance here.⁵ Even if one were to equate the two approaches, we would uphold the condition here.

¶14 Although Clark and Bahl use different words and terms, they both embrace a somewhat similar approach of looking at the underlying purpose of the act as well as the nature of the crime in determining whether the condition is appropriate. The principles anchoring the analysis in both cases can be traced to the same source. The origins of the “reasonably related” analysis utilized in Clark come from the case Consuelo-Gonzalez, which analyzed the scope of constitutional protections available to probationers that were subject to limitations under the federal Probation Act, ch. 521, 43 Stat. 1259 (1925). Consuelo-Gonzalez, 521 F.2d at 264-65. In evaluating the federal Probation Act’s underlying purpose of rehabilitation, the court recognized that the development of a sensible probationary system “requires that any condition which is imposed following conviction, whether or not it touches upon ‘preferred’ rights, must be viewed in the context of the goals underlying the Act.” Consuelo-Gonzalez, 521 F.2d at 265 n.14. The court held that fundamental rights may be limited if they are imposed sensitively and with a “keen appreciation” that the limitation serve the purpose of the underlying act. Consuelo-Gonzalez, 521 F.2d at 265.

¶15 Both Clark and Bahl cite back to Consuelo-Gonzalez, but Bahl fashioned its analysis from Riley and Malone. Bahl, 164 Wn.2d at 757 (quoting State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993) (citing Malone, 502 F.2d at 556; Consuelo-Gonzalez, 521 F.2d at 265)); Clark, 918 F.2d at 847-48 (citing Consuelo-Gonzalez, 521 F.2d at 264-65). Additionally, the court in Bahl—whose inquiry was focused on a vagueness challenge—briefly mentioned the analysis from Malone in the context of providing an example to refute the State’s claim that probationary conditions in Washington need only be crime related. The language in Malone refers to the constitutionality of a condition that restricts an individual’s freedom of association. Furthermore, the case on which Malone relies, Birzon v. King, 469 F.2d 1241, 1243 (2d Cir. 1972), states that “the Government can infringe the first amendment rights of prisoners so long as the restrictions are reasonably and necessarily related to the advancement of some justifiable purpose of imprisonment.” (Emphasis added.)

¶16 The result under either analysis is the same. Looking at the exact language of Clark, the court articulated a framework for determining the validity of probation conditions, stating:

The test for validity of probation conditions, even where preferred rights are affected, is “whether the limitations are primarily designed to affect the rehabilitation of the probationer or insure the protection of the public.” [Consuelo-Gonzalez, 521 F.2d] at 265, n. 14. To apply this test, our court “must determine whether the sentencing judge imposed the conditions for permissible purposes, and then it must determine whether the conditions are reasonably related to the purposes.” United States v. Terrigno, 838 F.2d 371, 374 (9th Cir. 1988). “[T]he standard for determining the reasonable relationship between probation conditions and the purposes of probation is necessarily very flexible precisely because ‘of our uncertainty about how rehabilitation is accomplished.’” Id., quoting Consuelo-Gonzalez, 521 F.2d at 264.

Clark, 918 F.2d at 848 (second alteration in original). The court held that because neither officer had admitted guilt or taken responsibility for their actions, the condition would serve a rehabilitative purpose and was proper as it was reasonably related to the federal Probation Act’s purpose of rehabilitation. Clark, 918 F.2d at 848 (“ ‘It is almost axiomatic that the first step toward rehabilitation of an offender is the offender’s recognition that he was at fault.’” (quoting Gollaher v. United States, 419 F.2d 520, 530 (9th Cir. 1969))). The apology condition was also related to the underlying crime: the defendants were public servants who betrayed the public’s trust through acts of dishonesty. Under the framework of Clark, we can conclude a valid probation condition is one that is related to one of the purposes of the act—in this case, rehabilitation—and is done to effectuate that purpose. Clark embraces the idea that a trial court has wide discretion in fashioning conditions that serve a rehabilitative purpose. We agree with that analysis.

¶17 While Clark is more analogous to the present case because it involved a challenge to an apology condition whereas Bahl involved a constitutional vagueness challenge, the result in applying the analytical framework from Bahl to the present case is the same. The analysis from Bahl states,

A condition that constitutes a “[1] imitation [ ] upon fundamental rights” is “permissible, provided [it is] imposed sensitively.” Riley, 121 Wn.2d at 37. In accord with the federal rule, a convict’s First Amendment right “ ‘may be restricted if reasonably necessary to accomplish the essential needs of the state and public order.’ ” Id. at 37-38 (quoting Malone v. United States, 502 F.2d 554, 556 (9th Cir. 1974)). Thus, conditions may be imposed that restrict free speech rights if reasonably necessary, but they must be sensitively imposed. This meshes with the vagueness doctrine’s principle that where the challenged law involves First Amendment rights, a greater degree of specificity may be demanded. Here, for example, Bahl may be restricted in the material he may access or possess, but the restrictions implicating his First Amendment rights must be clear and must be reasonably necessary to accomplish essential state needs and public order.

Bahl, 164 Wn.2d at 757-58 (alterations in original).

¶18 Even under Bahl’s somewhat different language, an apology letter condition would be upheld. The apology letter condition is specific and concrete. In the context of the present case, we find the condition is related to the crime of which the offender was convicted and furthers the reformation and rehabilitation of the juvenile, the purpose of the underlying act.

¶19 Under the Juvenile Justice Act of 1977 (JJA), chapter 13.40 RCW, no dispute exists that juvenile rehabilitation is an underlying purpose of the act. See, e.g., RCW 13.40.010; State v. J.A., 105 Wn. App. 879, 886, 20 P.3d 487 (2001) (the JJA seeks a balance between rehabilitation and retribution, and the purposes of accountability and punishment must at times give way to the purpose of responding to the needs of the juvenile); State v. Bennett, 92 Wn. App. 637, 644, 963 P.2d 212 (1998) (“the JJA is designed to foster rehabilitation as well as accountability of offenders”). Additionally, a victim has an interest in receiving a letter of apology. The apology letter condition primarily aims to rehabilitate the juvenile offender but also acknowledges the victim’s interest in receiving the apology.

¶20 This conclusion is consistent with the statutory goals that identify measures that may be used to effectuate the purpose of rehabilitation. As part of the disposition order, juvenile courts are permitted to enter “local sane-tions.” RCW 13.40.160, .0357. Such sanctions include “0-12 months of community supervision.” RCW 13.40.020(18)(b). “Community supervision” is defined as “an individualized program” during a probationary period that includes “[m]on-itoring and reporting requirements.” RCW 13.40.020(5)(c). “ ‘Monitoring and reporting requirements’ ” authorize the court to enter “other conditions or limitations as the court may require which may not include confinement.” RCW 13.40.020(20) (emphasis added).

¶21 Juvenile courts are permitted wide latitude and discretion in imposing conditions in a disposition order. This makes sense given that juveniles are, by their very nature, still developing. The JJA recognizes the differences between adults and juveniles and embraces rehabilitation as a primary goal rather than a focus primarily on punishment. Because of this, we hold that a juvenile court can impose and require reasonable conditions that are related to the crime of which the offender was convicted and that further the reformation and rehabilitation of the juvenile.

¶22 Under the broad authority and discretion given to juvenile courts to craft dispositions that adhere to the legislative intent of rehabilitation and crime-relatedness, the juvenile court in the present case ordered K.H.-H. to “write a letter of apology to victim C.R. that is approved by the Probation Officer and the State.” CP at 42; see State v. D.H., 102 Wn. App. 620, 629, 9 P.3d 253 (2000) (“The juvenile court has considerable discretion to fashion an individualized rehabilitative disposition that includes a broad range of community supervision conditions.”). The record in this case supports our conclusion that the juvenile court imposed the letter of apology condition for the purpose of rehabilitating K.H.-H. Specifically, the court was concerned that K.H.-H. refused to accept the consequences of his harmful conduct. The trial court discussed K.H.-H.’s “pattern of bad behavior with women” and pattern of “being disrespectful to women” and that the court had grown increasingly concerned after having heard the testimony from the two young victims. VTP at 154, 156. The court ordered this condition in an effort to address this type of behavior and help K.H.-H. understand that his actions were harmful to young women.

¶23 A letter of apology demonstrates a recognition and acceptance of responsibility for harmful actions. Such a condition is reasonably necessary for K.H.-H. to recognize what he did was wrong and to acknowledge his behavior.

¶24 Additionally, an apology letter recognizes the victim’s interest in receiving an apology from the perpetrator. An apology allows the victim to hear an acceptance of responsibility from the very person who inflicted the harm. This is particularly important where both the victim and perpetrator are juveniles, and demonstrates to both the significance of giving and receiving an apology for wrongful acts. This further advances the rehabilitative goals of the statute.

¶25 The outward manifestation of accepting and apologizing for the consequences of one’s actions is a rehabilitative step that attempts to improve K.H.-H.’s character and outlook. Such a condition is reasonably related to the purpose of K.H.-H.’s rehabilitation and the crime here.

¶26 One must face the consequences of a conviction, which often include the loss or lessening of constitutional rights. There is a whole range of constitutional rights that can be affected by a conviction, not the least of which is a loss of liberty. There may be a limitation on the degree to which First Amendment rights may be restricted for those convicted of crimes, but an apology letter condition does not approach that limit. We affirm.

Madsen, C.J., and Owens, Stephens, Wiggins, and Yu, JJ., concur.

1 K.H.-H. also challenged the sufficiency of the evidence, an issue not before this court.

2 See O’Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S. Ct. 2400, 96 L. Ed. 2d 282 (1987) (“ ‘[L] awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.’” (quoting Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 92 L. Ed. 2d 1356 (1948))).

3 See Griffin v. Wisconsin, 483 U.S. 868, 874 n.2, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987) (reserving the question of the standard of review for probation conditions).

4 Birzon v. King, 469 F.2d 1241, 1243 (2d Cir. 1972).

5 No argument is made here that the condition is vague or that K.H.-H. could not understand the requirement.