In re Pers. Restraint of Ansell, No. 100753-1 (Aug. 10, 2023). At issue: whether the Indeterminate Sentencing Review Board exceeded its authority by imposing community custody conditions unrelated to the crime committed, the risk of reoffending, and community safety. In a majority opinion authored by Justice Montoya-Lewis, the Washington Supreme Court held that it did.
Ansell pleaded guilty to three counts of child molestation for acts committed between 2006 and 2008. He and his wife were part of a group of neighbors who took turns babysitting their children. Ansell molested the children he was in charge of babysitting. He received an indeterminate sentence of 130 months to life. After serving his minimum term, the ISRB found him eligible to serve the remainder of his sentence in community custody.
During the review process, Ansell was referred to a sexual deviancy evaluation and risk assessment. At trial, no evidence was presented suggesting drugs or alcohol were involved in Ansell’s crimes. Nevertheless, the evaluation inquired into his history of drug and alcohol use. Early experimentation and infrequent adult use were reported.
“The ISRB determined Ansell to be a low risk and releasable under RCW 9.95.420, subject to over two dozen conditions.”1 Upon Ansell’s challenge, the Court of Appeals held invalid five conditions, concerning travel, cannabis use, sexually explicit materials, dating, and relationships.2 The Court of Appeals directed the ISRB to modify the travel restriction to develop acceptable exceptions, held the cannabis use condition to be unauthorized, and held the other challenged conditions to be unconstitutionally vague. The ISRB sought review but did not appeal the appellate ruling on the travel condition.
A person convicted of a sex offense receives an indeterminate sentence with a minimum and maximum term.3 Indeterminate sentences include community custody, which is required for any period of time between the release from total confinement and the expiration of the maximum sentence.4 Community custody is subject to conditions, which may be imposed either by a court at sentencing or by the department or the ISRB upon finding the person releasable.5 Here, the ISRB imposed the custody conditions.
The ISRB evaluates the probability the releasee will engage in additional sex offenses once in community custody.6 The subject will be released to community custody when the ISRB determines, based on the department’s recommendations and the ISRB hearing, the releasee unlikely to engage in sex offenses if released under certain conditions.7
Community custody conditions may be challenged through personal restraint petitions, which must show the subject is restrained and the restraint is unlawful.8 “A person who is transferred from total confinement to community custody remains under the continuing jurisdiction of the ISRB and is under restraint for purposes of RAP 16.4(b).”9 Restraint is unlawful if the conditions or manner of the restraint violates the constitution or a state law.10
Authority to impose custody conditions under the Sentencing Reform Act of 1981 presents a question of statutory interpretation, which is reviewed de novo.11 Challenges of error in imposing a condition are reviewed for abuse of discretion; i.e., whether they are manifestly unreasonable.12 Unconstitutional conditions are manifestly unreasonable.13
Due process requires fair warning of proscribed conduct.14 “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.”15 Terms are to be considered in the context in which they are used.16 A condition which contains a definition may be unconstitutionally vague if the definition itself is vague or overbroad.17 If the term is not defined, courts “may consider the plain and ordinary meaning as set forth in a standard dictionary.”18
Community custody conditions need not be drafted with such specificity that a person is able to “predict with complete certainty the exact point at which [their] actions would be classified as prohibited conduct.”19 “If persons of ordinary intelligence20 can understand . . ., notwithstanding some possible areas of disagreement, the [condition] is sufficiently definite.”21 Stricter standards apply when a condition implicates a releasee’s First Amendment rights.22
Here, the majority held there to be no vagueness concerns with the conditions regarding sexually explicit materials, dating, and relationships. The Court previously upheld prohibitions against “sexually explicit materials” when an ordinary person would be able to understand in context and with the aid of dictionary and statutory definitions.23 Because the condition here defines sexually explicit materials in a manner that a person of ordinary intelligence could understand, the prohibition “provides sufficiently ascertainable standards to protect against arbitrary enforcement,” and this is not unconstitutionally vague.24 Thus, the majority held the ISRB did not abuse its discretion in imposing that condition.
In Nguyen, the Court upheld a prohibition against any “dating relationship,” looking to the plain and ordinary meaning according to the dictionary as well as a statutory definition and determined “a person of ordinary intelligence can distinguish a ‘dating relationship’ from other types of relationships.”25 Here, the majority held an ordinary person could understand Ansell to be prohibited, absent prior approval, from social and romantic meetings with people who have minor children. More, the condition provides an objective standard, not a subjective one. Thus, the proscribed conduct is sufficiently definite.26 Accordingly, the majority held the prohibition on dating not to be unconstitutionally vague and the ISRB did not abuse its discretion in imposing it.27
As for the condition that Ansell must not form relationships with people with children without first disclosing his status as a sex offender, the majority stressed the importance of context to their analysis. Community custody conditions should be “read in a commonsense fashion in the context of the judgment and sentence, and related documents.”28 Ansell was convicted of three counts of child molestation against children of friends and neighbors. This condition must be read in the context of the underlying criminal conduct, which indicates the condition relates to preventing Ansell from accessing children based on his relationship with their parents, as he did with the children he molested.29 This condition provides sufficient standards to prevent arbitrary enforcement;30 the ISRB did not abuse its discretion in imposing it.31
The majority, however, held the cannabis use condition to be unrelated to Ansell’s crimes and rejected the ISRB’s appeal regarding that condition. ISRB’s authority to impose community custody conditions raises questions of statutory interpretation to be reviewed de novo.32 Statutory interpretation may be used to ascertain and implement the legislature’s intent.33 If the statute’s meaning is plain on its face, then courts must give effect to that meaning as an expression of legislative intent.34 Plain meaning may be discerned both the text of the statute, the statutory scheme as a whole, and related statutes.35 Where ambiguous, courts may look to other sources to assist in constructing a statute.36
With respect to the cannabis use condition, the majority held the controlling statute — former RCW 9.94A.713(5)37 — to be ambiguous. That section “outlines the grounds for a person to challenge a condition and states in the negative that the condition will remain in effect unless it is not reasonably related to any of three topics[: the crime of conviction, risk of reoffending, and community safety].”38 Although worded ambiguously, the statute could reasonably be read to state “the person subject to the condition may challenge it on the basis that it does not relate to all three topics.”39 In other words, the ISRB is authorized to impose community custody conditions which relate to the crime of conviction, risk of reoffending, and safety of the community, only. According to the majority, this interpretation “comports with the structure and purpose of the statutory scheme governing community custody, which aims to reduce the risk the person will commit another sex offense if released into the community.”40 Because no evidence suggests the cannabis use condition is related to Ansell’s crimes, that condition exceeds the ISRB’s authority. Accordingly, the majority affirmed the appellate ruling regarding that condition.
In a concurring opinion, Justice Whitener disagreed with the holding the ISRB lacks the authority to impose conditions which are not crime related where the condition is reasonably related to another of former RCW 9.94A.713(5)’s enumerated criteria.
I would hold that the statute presents a disjunctive meaning in that at least one criterion must be satisfied, not all. The ISRB is within its authority to impose conditions not related to the crime if the condition is otherwise related to one of the enumerated criteria, as only one criterion on the list needs to be satisfied for a condition to remain in effect.
However, the ISRB has conceded that the cannabis condition is not related to any of the three enumerated criteria, therefore, I agree solely with the result of the lead opinion that the condition must be stricken.41
Justice Gordon McCloud dissented with respect to the condition regarding relationships. Unlike the condition prohibiting sexually explicit materials, the relationship condition lacks a clear definition of what is prohibited, and thus ought to be held unconstitutionally vague.
1 Op. at 2.
2 [1] “You must not enter the area of Seattle that is south of Hwy 523 and north of I[nterstate]-90, in between Lake Washington and the Puget Sound/Elliott Bay, without prior written approval of your [Community Corrections Officer] CCO and the ISRB.
“[2] You must not use, possess or control any Marijuana/THC or enter any establishments whose primary purpose is the sale of Marijuana/THC.
“[3] You must not possess or access sexually explicit materials. Sexually explicit materials consists of any item reasonably deemed to be intended for sexual gratification and which displays, portrays, depicts, or describes: a) Nudity, which includes, but is not limited to, exposed/visible (in whole or part, including under or through translucent/thin materials providing intimate physical detail) genitals/genitalia, anus, buttocks and/or female/transgender breast nipple(s); b) A sex act which includes, but is not limited to, genital-genital, oral-genital, anal-genital, or oral-anal contact/penetration, genital or anal contact/penetration with an inanimate object, masturbation and/or bodily excretory behavior; c) Sadistic/masochistic abuse, bondage, bestiality, and/or a participant who appears to be nonconsenting, dominated, degraded, humiliated, or in a submissive role, and/or a participant who appears to be acting in a forceful, threatening, dominating, or violent manner; and/or d) A minor, or a model or cartoon depicting a minor, in a sexually suggestive setting/pose/attire.
“[4] You must not date individuals who have minor children, unless you receive prior approval from your CCO and the ISRB.
“[5] You must not form relationships with persons/families with minor children without first disclosing your sex offender status and having this relationship approved by your CCO.” Op. at 2-3.
3 RCW 9.94A.507(3).
4 RCW 9.94A.507(5).
5 RCW 9.94A.703, -.704.
6 RCW 9.95.420(1)(a).
7 RCW 9.95.420(3).
8 RAP 16.4(a)-(c); In re Pers. Restraint of Blackburn, 168 Wn.2d 881, 883-84, 232 P.3d 1091 (2010).
9 OP. at 7 (internal quotation marks omitted) (citing In re Pers. Restraint of Winton, 196 Wn.2d 270, 275, 474 P.3d 532 (2020)).
10 RAP 16.4(c)(2); In re Pers. Restraint of Williams, 198 Wn.2d 342, 352, 496 P.3d 289 (2021).
11 State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007).
12 State v. Hai Minh Nguyen, 191 Wn.2d 671, 678, 425 P.3d 847 (2018) (citing State v. Bahl, 164 Wn.2d 739, 753, 193 P.3d 678 (2008)).
13 State v. Padilla, 190 Wn.2d 672, 677, 416 P.3d 712 (2018); Bahl, 164 Wn.2d at 753.
14 Bahl, 164 Wn.2d at 752 (citing City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990)).
15 Padilla, 190 Wn.2d at 677 (citing Bahl, 164 Wn.2d at 752-53).
16 Bahl, 164 Wn.2d at 754 (quoting Douglass, 115 Wn.2d at 180).
17 Padilla, 190 Wn.2d at 674-75.
18 Bahl, 164 Wn.2d at 754.
19 Padilla, 190 Wn.3d at 677 (internal quotation marks omitted) (quoting State v. Sanchez Valencia, 169 Wn.2d 782, 793, 239 P.3d 1059 (2010)); see also Douglass, 115 Wn.2d at 179 (“This test . . . does not demand impossible standards of specificity or absolute agreement.”)
20 Whatever that means, presumably judges.
21 Douglass, 115 Wn.2d at 179.
22 Nguyen, 191 Wn.2d at 679 (citing Bahl, 164 Wn.2d at 753); U.S. CONST. amend. I.
23 See Nguyen, 191 Wn.2d at 680-81; 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))).
24 Op. at 12.
25 191 Wn.2d at 682.
26 Bahl, 164 Wn.2d at 752-53.
27 See Padilla, 190 Wn.2d at 677.
28 State v. Johnson, 197 Wn.2d 740, 748, 487 P.3d 893 (2021).
29 Bahl, 164 Wn.2d at 754; Johnson, 197 Wn.2d at 748 & n.3.
30 Johnson, 197 Wn.2d at 748.
31 See Padilla, 190 Wn.2d at 677.
32 Armendariz, 160 Wn.2d at 110.
33 Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002).
34 Id. at 9-10.
35 Id. at 11.
36 Id. at 12.
37 “By the close of the next business day, after receiving notice of a condition imposed by the board or the department, an offender may request an administrative hearing under rules adopted by the board. The condition shall remain in effect unless the hearing examiner finds that it is not reasonably related to any of the following: (a) The crime of conviction; (b) The offender’s risk of reoffending; or (c) The safety of the community.”
38 Op. at 19.
39 Op. at 20.
40 Id. (citing RCW 9.95.420(3) and Campbell & Gwinn, 146 Wn.2d at 11).
41 Op. at 11.
