FILED DECEMBER 7, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 34120-8-111 ) Plaintiff, ) ) v. ) ) ANTHONY J. SIMS, ) ) Respondent, ) PUBLISHED OPINION ) DEPARTMENT OF SOCIAL AND ) HEALTH SERVICES and WESTERN ) STATE HOSPITAL, ) ) Appellants, ) ) and ) ) SEVERAL OTHER SIMILAR CASES ) CONSOLIDATED ON APPEAL.t )
LAWRENCE-BERREY, A.CJ. - Courts are authorized to impose two types of
t In each of the following consolidated cases, the Department of Social and Health Services (DSHS) and Western State Hospital appealed contempt sanctions that were imposed for delays in providing competency evaluation and/or restoration services to criminal defendants: No. 34121-6-111, State v. Larson; No. 34122-4-111, State v. Owen; No. 34123-2-111, State v. Johnston; No. 34124-1-111, State v. Cooper; No. 34125-9-111, State v. Blake; No. 34126-7-111, State v. Pal; No. 34127-5-111, State v. Fairfield; No. 34128-3-111, State v. Tall; No. 34129-1-111, State v. Spain; No. 34130-5-111, State v. Lennartz; No. 34131-3-111, State v. McCarthy; No. 34132-1-111, State v. Alexander; No. 34133-0-111, State v. Fleming; No. 34134-8-111, State v. Fletcher; No. 34135-6-111, State v. Schilling; No. 34136-4-111, State v. Montoya; No. 34137-2-111, State v. Sackmann; No. 34138-1-111, State v. Rettinger; No. 34139-9-111, State v. Anderson; No. 34140-2-111, State v. Graham; No. 34141-1-111, State v. Keranen; No. 34142-9-111, State v. Fregoso; No. 34143-7-111, State v. Beggs; No. 34180-1-111, State v. Sandstrom; No. 34205-1-111, State v. Lopez. No. 34120-8-III State v. Sims
statutory sanctions, remedial or punitive. Remedial sanctions may be summarily imposed
for the purpose of coercing a person to perform an act that is yet in the person's power to
perform. Punitive sanctions, however, are meant to punish a past contempt of court. By
statute, unless the contemptuous act occurred in the court's presence, courts may not
summarily impose punitive sanctions. We hold that where a court imposes summary
sanctions for contempt that did not occur in its presence, statutory sanctions are limited to
remedial sanctions.
In determining whether monetary sanctions are remedial, we focus on the date the
trial court made its contempt finding, even if the finding was not then reduced to a
written order or judgment. Only monetary sanctions that accrue from the date of the
contempt finding are remedial, because only to this extent is the act that the court seeks to
coerce within the person's power to perform.
The State must consent to being held to interest on its debts, including
postjudgment interest on monetary statutory sanctions. A waiver of sovereign immunity
for purposes of postjudgment interest can be either express or implied. A waiver may be
implied in those situations where the legislature has enacted a statute that provides for
comprehensive relief. By enacting the contempt of court statute, chapter 7 .21 RCW, the
legislature authorized full compensation to parties injured by contemptuous acts. We,
therefore, hold that the State has impliedly waived its sovereign immunity from
2 No. 34120-8-111 State v. Sims
postjudgment interest on statutory sanctions.
Here, the trial court summarily imposed monetary sanctions against the
Department of Social and Health Services (DSHS) for not timely completing mental
health evaluations for criminal defendants. We reverse the sanctions only to the extent
they are punitive, but affirm the award of postjudgment interest.
FACTS
The parties agree that the facts associated with Anthony Sims's appeal serve as a
template for the other appeals. We limit our discussion of the facts accordingly.
The State charged Mr. Sims with second degree burglary. A question concerning
Mr. Sims's competency arose, and on October 14, 2014, the criminal case was stayed
pending a competency evaluation. On November 13, Mr. Sims filed a motion to compel
his competency evaluation. On November 20, the trial court heard argument concerning
the motion. During argument, DSHS noted that Mr. Sims was and always had been
scheduled to have his evaluation on December 15. At the conclusion of the November 20
argument, the trial court ordered DSHS to perform Mr. Sims's competency evaluation by
December 2. The trial court's order was not reduced to written form.
On November 26, 2014, Mr. Sims filed a motion asking the trial court to order
DSHS to show cause for its failure to schedule his evaluation in compliance with the
court's November 20 order. Mr. Sims asked the trial court to impose remedial sanctions
3 No. 34120-8-III State v. Sims
of $500 per day against DSHS for every day past December 2 until he received his
competency evaluation.
On December 10, DSHS filed a response. In addition to other objections, DSHS
argued that portions of the requested sanctions were retroactive punitive sanctions and,
thus, were unable to be adjudicated in the current action.
On December 11 and 12, the trial court heard Mr. Sims's motion together with
motions filed by five other similarly situated defendants. On December 12, the trial court
orally rule? that the sanctions would be $200 per day from the ordered deadline until the
contempt was purged by DSHS completing Mr. Sims's competency evaluation. The
court explained that the sanctions were remedial sanctions ordered in accordance with
RCW 7.21.030, rather than in accordance with its inherent authority. The court directed
the funds to go to the registry of the court, pending a later final disposition; but
compensation to the defendants for actual losses was not contemplated. 1 Mr. Sims's
competency evaluation occurred as originally scheduled, on December 15, 2014.
The trial court did not enter a written contempt order with findings until
January 16, 2015. The written order discussed the court's reasoning that high level
governmental and budgetary decisions drove the intentional violation of the court's order,
1 On January 15, 2016, the trial court amended the contempt order, specifying the sanctions were to be paid to the clerk of the court and directed to Spokane County Detention Services for the purpose of assisting mentally ill offenders in jail.
4 No. 34120-8-III State v. Sims
by way of lack of resources for DSHS services in eastern Washington. The court found
DSHS in contempt for violating its November 20 order, and sanctioned DSHS $200 per
day from December 2 through December 14.
The trial court held several other hearings in a similar fashion, where groups of
defendants whose competency evaluations were not completed timely sought sanctions.
At the conclusion of each hearing, the court-usually weeks later-entered a written
order of contempt supported by findings.
The principal amounts of the sanctions were set forth in 28 individual orders of
contempt and total $337,500. Each judgment also includes interest at 12 percent per
year.
DSHS timely appealed the orders imposing sanctions and the judgments in each of
the 26 cases. We consolidated the appeals because they all presented similar legal issues.
ANALYSIS
A. TO THE EXTENT THE SANCTIONS ARE PUNITIVE AND WERE SUMMARILY IMPOSED, THEY MUST BE STRICKEN
DSHS first argues that the sanctions must be stricken to the extent they are
punitive. We agree with this portion ofDSHS's argument.
1. The trial court did not comply with the procedures for imposing punitive sanctions and, therefore, it had no authority to impose such sanctions
5 No. 34120-8-III State v. Sims
This court reviews de novo a trial court's authority to impose contempt sanctions.
In re Dependency ofA.K., 162 Wn.2d 632,644, 174 P.3d 11 (2007). There are two forms
of statutory contempt sanctions, remedial and punitive. A remedial sanction is "a
sanction imposed for coercing performance when the contempt consists of the
omission or refusal to perform an act that is yet in the person's power to perform."
RCW 7.21.010(3 ). A remedial sanction is sometimes referred to as coercive, because the
goal of the sanction is to coerce a party to comply with a court order. In re Pers.
Restraint of King, 110 Wn.2d 793, 800, 756 P.2d 1303 (1988). A remedial sanction must
contain a purge clause or it loses its coercive character and becomes punitive. In re
Rapid Settlements, Ltd., 189 Wn. App. 584, 613, 359 P.3d 823 (2015), review denied, 185
Wn.2d 1020, 369 P .3d 500 (2016).
A punitive sanction is "a sanction imposed to punish a past contempt of court for
the purpose of upholding the authority of the court." RCW 7.21.010(2). Such sanctions
do not afford the party an opportunity to purge the contempt. State v. Buckley, 83 Wn.
App. 707, 711, 924 P .2d 40 ( 1996). A court may punish the past contemptuous act
with a fine and/or imprisonment. RCW 7.21.050(2). Because of due process concerns,
RCW 7 .21.040 provides a procedure to ensure that a person facing such a sanction
actually committed the contemptuous act. In re MB., 101 Wn. App. 425,453, 3 P.3d
780 (2000). Unless the contemptuous act occurred in the presence of a judge certifying
6 No. 34120-8-III State v. Sims
the same, the procedure requires the county prosecutor or city attorney to file a complaint
or an information, and for a trial to occur before a neutral judge. RCW 7 .21.040(2),
.050(1); see also In re Mowery, 141 Wn. App. 263,276, 169 P.3d 835 (2007).
Here, the trial court did not afford DSHS the procedures required under
RCW 7.21.040(2). For this reason, the trial court was without authority to impose
punitive sanctions.
The respondents put forth various arguments, mostly citing federal authorities,
why the sanctions should be deemed remedial. For instance, they discuss the intent of the
sanctions, the need for sanctions against DSHS, and the arguable compensatory nature of
the sanctions. We are unpersuaded by their arguments.
The legislature defined the distinction between remedial and punitive sanctions.
The legislature defined a remedial sanction as a sanction imposed "for the purpose of
coercing performance when the contempt consists of ... an act that is yet in the person's
power to perform." RCW 7.21.010(3) (emphasis added). When the trial court, for
example, found DSHS in contempt on December 12, 2014, DSHS could not perform Mr.
Sims's competency evaluation any earlier than that date. To the extent the sanctions
punish DSHS for its failure to perform Mr. Sims's competency evaluation prior to
December 12, 2014, those sanctions were punitive and we order the trial court to strike
them.
7 No. 34120-8-III State v. Sims
2. RCW 7.21.030(2)(b) authorizes a limitedforfeiturefor each day the contempt of court continues after the contempt finding
DSHS next argues that the contempt order should not be considered effective until
the contempt order is placed in writing with supportive findings. If we accept DSHS's
argument, any amount owing prior to a written order would be considered punitive
because there would be no ability for DSHS to purge the accumulated debt. We decline
to accept DSHS's argument. To do so would both be contrary to statutory authority and
delay the ability of courts to enforce their own orders.
RCW 7.21.030 provides:
(2) If the court finds that the person has failed or refused to perform an act that is yet within the person's power to perform, the court may find the person in contempt of court and impose one or more of the following remedial sanctions:
(b) A forfeiture not to exceed two thousand dollars for each day the contempt of court continues.
So by statute, once a court makes a finding that a person is in contempt, the court
has authority to impose a limited forfeiture for each day the contempt of court
continues. Nothing in the statute requires the court to enter a written order prior to
the sanctions becoming effective. The legislature did not see fit to impose such a
requirement, nor do we.
8 No. 34120-8-111 State v. Sims
DSHS cites to State v. Dailey, 93 Wn.2d 454,610 P.2d 357 (1980), a case
where our Supreme Court reviewed the propriety of a trial court's decision based
on its written order instead of its oral comments. The Dailey court said, "Even a
trial court's oral decision has no binding or final effect unless it is formally
incorporated into findings of fact, conclusions oflaw, and judgment." Id. at 458-
59. We agree that a trial court's oral decision is not binding or final. But this does
not mean that a court's verbal order is ineffective, nor does it mean that a person
may ignore a court's verbal order until the order is put in writing.
In a similar vein, DSHS argues that oral contempt decisions should be
treated differently than written contempt orders because oral decisions are subject
to modification until put in written form. We are unpersuaded. The inability to
modify an order should not be the touchstone for determining an order's
enforceability. A trial court has broad authority to modify an order, even a written
one. See CrR 7.8.
DSHS also cites to Templeton v. Hurtado, 92 Wn. App. 847, 853, 965 P.2d 1131
( 1998), a case where the reviewing court remanded with directions for the trial court to
enter adequate written findings. The Templeton court said, "[t]o protect its own authority
to enforce a contempt sanction, a trial court must be sure written findings are entered,
either by delegating the task to opposing counsel or writing them out personally." Id.
9 No. 34120-8-111 State v. Sims
We agree that contempt sanctions should be placed in a written order with adequate
findings to protect the trial court's authority. But Templeton does not stand for the
proposition that an oral contempt decision is not effective. Rather, Templeton reiterates
the requirement that a written contempt order with adequate findings is necessary for
appellate review. Id. at 852-53.
DSHS further argues that we should treat oral contempt decisions and
written contempt orders differently because oral decisions cannot be appealed.
Again, we are unpersuaded. If a person wants to appeal an oral conteµipt decision,
a person can easily put the decision in written form for presentment to the court.
We refuse to adopt a rule that would treat an oral contempt decision as
ineffective. To do so would delay a court's authority to enforce its own orders.
We use State v. Sims to illustrate our holding. Here, the trial court orally
found DSHS in contempt on December 12, 2014. RCW 7.24.030(2)(b) authorizes
remedial sanctions for each day the contempt of court continues from the finding.
The trial court ordered sanctions in the amount of $200 per day. The contempt of
court continued through December 12, 13, and 14. Three days of sanctions total
$600.
B. POSTJUDGMENT INTEREST
10 No. 34120-8-III State v. Sims
DSHS next argues that postjudgment interest must be stricken because the State
has not waived sovereign immunity with respect to postjudgment interest on statutory
sanctions. This issue may be raised for the first time on appeal. State v. Lee, 96 Wn.
App. 336, 345 n.10, 979.P.2d 458 (1999).
The State must consent to being held to interest on its debts. Carrillo v. City of
Ocean Shores, 122 Wn. App. 592,615, 94 P.3d 961 (2004). A waiver of sovereign
immunity for purposes of postjudgment interest can be either express or implied.
Architectural Woods, Inc. v. State, 92 Wn.2d 521,526,598 P.2d 1372 (1979). Whether
such a waiver has occurred is a question of statutory interpretation that we review de
novo. Union Elevator & Warehouse Co. v. Dep 't ofTransp., 171 Wn.2d 54, 59, 248 P.3d
83 (2011).
An implied waiver of sovereign immunity exists when by reasonable construction
of a statute or contract the State has "placed itself in a position of attendant liability." Id.
at 68. An implied waiver can occur when the legislature enacts a statute providing
"comprehensive relief to aggrieved claimants." Id. at 65. To determine whether the
legislature has impliedly waived immunity and enacted comprehensive relief to aggrieved
claimants, this court focuses on "the statutory language and purpose" of the statute. Id.
An attorney fee provision is a suggestion the legislature intended comprehensive relief.
Id. at 64-65 (discussing Smoke v. City ofSeattle, 132 Wn.2d 214, 937 P.2d 186 (1997)).
11 No. 34120-8-III State v. Sims
The respondents concede that nothing in chapter 7 .21 RCW can be construed as an
explicit waiver of sovereign immunity that would permit postjudgment interest being
added to monetary sanctions imposed against the State. The respondents instead argue
that the statutory language and purpose ofRCW 7.21.030 support a determination of
implied waiver. We agree.
RCW 7.21.030(3) provides:
The court may, in addition to the remedial sanctions set forth in subsection (2) of this section, order a person found in contempt of court to pay a party for any losses suffered by the party as a result of the contempt and any costs incurred in connection with the contempt proceeding, including reasonable attorney's fees.
RCW 7 .21.030(3) thus provides full compensatory relief to parties injured by
contemptuous acts, including costs and reasonable attorney fees.
DSHS notes that here, the trial court did not award any compensatory relief to a
party, but instead ordered all monetary sanctions to be paid to Spokane County Detention
Services. DSHS argues that in situations where the trial court's sanctions do not include
any compensatory relief to a party, we should not find an implied waiver of sovereign
immunity. We disagree with DSHS's argument.
Whether an implied waiver of sovereign immunity has occurred depends on the
statutory language and purpose of the statute, not on the specific relief granted by a trial
court. Here, the statutory purpose, supported by its language, provides comprehensive
12 No. 34120-8-111 State v. Sims
relief to parties injured by contemptuous acts. We, therefore, conclude that the State has
impliedly consented to interest on statutory sanctions imposed against it. For this reason,
the trial court's award of postjudgment interest was proper.
In a similar vein, DSHS argues that oral contempt decisions should be treated
differently than written contempt orders because oral decisions are subject to
modification until put in written form. We are unpersuaded. The inability to modify an
order should not be the touchstone for determining an order's enforceability. A trial
court has broad authority to modify an order, even a written one. See CrR 7 .8.
2 Reversed in part, affirmed in part.
C ~,.......,._. '3i...,,._, I A.. C. T. Lawrence-Berrey, A.CJ I CONCUR:
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2 The dissent would reverse all sanctions on the theory that they are "an unnecessary attempt to direct legislative and executive policy choices while directly benefiting a political subdivision of the state by transferring state funds to the county." Dissent at 5 (footnote omitted). DSHS did not make this argument to the trial court nor did it make this argument to us. In general, an argument not made to the trial court will be deemed waived for purposes of appellate review. State v. Robinson, 171 Wn.2d 292, 304,253 P.3d 84 (2011). Also, an appellate court will not decide a case on the basis of a theory not briefed by the parties. RAP 12.1. For these reasons, we do not address the dissent's theory.
13 No. 34120-8-111
KORSMO, J. (dissenting) -The political science novelty that was crafted here,
wherein a superior court judge acting on a contempt motion in a criminal case orders an
executive branch state agency to make payments to a county jail for the benefit of future
county prisoners in order to coerce the state legislature into better funding the agency
(and despite the existence of a federal court judgment doing much the same), convinces
me that this is not a civil contempt action. John is robbing Peter in order to pay Paul in
hopes that one of Peter's relatives will pay Peter enough in the future to do his job, while
having Paul do Peter's work for him in the interim. Because this is not civil contempt, I
would reverse the remedy imposed by the trial court. Since the majority largely affirms
that ruling, I dissent.
As respondent notes in his briefing, the remedy in this contempt action was
borrowed from an injunction issued in a civil rights case, Trueblood v. Washington State
Department ofSocial & Health Services, 822 F.3d 1037 (9th Cir. 2016). That case
involved a class action brought in federal court under the authority of 42 U.S.C. § 1983
that resulted in a permanent injunction requiring that competency evaluations be
performed in a timely manner in order to effectuate the due process rights of the detainee. No. 34120-8-111 State v. Sims-Dissent
Id. at 1039-41. On remand 1 from the Ninth Circuit, the district court amended its
injunction to require that evaluations be conducted within 14 days of the written order for
the evaluation consistent with the time period set forth by an amendment to Washington's
competency statute. See Trueblood v. Wash. State Dep 't. ofSoc. & Health Servs., 2016
WL 4268933 (W.D. Wash. Aug. 15, 2016) (court order). The court also imposed fines
for missed evaluation deadlines.
While it is easy to see where the trial court's remedy came from, it also is easy to
see this approach is untenable in a civil contempt proceeding. This is the wrong
proceeding in which to betaking these actions.
Remedial sanctions are authorized by RCW 7 .21.030. This statute is frequently
referred to as "civil contempt." In re Det. o/Young, 163 Wn.2d 684,693 n.2, 185 P.3d
1180 (2008). RCW 7.21.030(1) allows either the court or a party to seek remedial
sanctions for injuries arising from contempt of court. A "remedial sanction" is one that is
"imposed for the purpose of coercing performance when the contempt consists of the
omission or refusal to perform an act that is yet in the person's power to perform." RCW
7.21.01_0(3).
RCW 7.21.030(2), in relevant part, outlines the possible remedial sanctions
available for contempt:
1 The trial court ruling in this case was not informed by the Ninth Circuit opinion or by the district court's modification of the terms of its injunction.
2 No. 34120-8-III State v. Sims-Dissent
If the court finds that the person has failed or refused to perform an act that is yet within the person's power to perform, the court may find the person in contempt of court and impose one or more of the following remedial sanctions: (a) Imprisonment if the contempt of court is of a type defined in RCW 7.21.010(1) (b) through (d). The imprisonment may extend only so long as it serves a coercive purpose. (b) A forfeiture not to exceed two thousand dollars for each day the contempt of court continues. (c) An order designed to ensure compliance with a prior order of the court.
Punitive sanctions are authorized by RCW 7.21.040. This statute also is known as
"criminal contempt." Smith v. Whatcom County Dist. Court, 147 Wn.2d 98, 105, 52 P.3d
485 (2002). '"Punitive sanction' means a sanction imposed to punish a past contempt of
court for the purpose of upholding the authority of the court." RCW 7.21.010(2). If a
court seeks to impose punitive sanctions, a prosecutor must file a complaint or
information and certain other procedures must be followed that are generally consistent
with a criminal case. RCW 7 .21.040(2).
[A] sanction is punitive if there is a determinate sentence and no opportunity to "purge" the contempt. . . . [I]t is remedial where it is indeterminate and the contemnor is released upon complying with the court's order. . . . A punitive sanction generally is imposed to vindicate the court's authority, while a remedial sanction typically benefits another party.
Rhinevault v. Rhinevault, 91 Wn. App. 688, 694, 959 P.2d 687 (1998).
A trial court's decision to impose remedial sanctions is within the court's sound
discretion. Id. It will not be disturbed absent abuse of that discretion. Id. A court
abuses its discretion if its decision is "manifestly unreasonable or rests upon untenable
3 No. 34120-8-111 State v. Sims-Dissent
grounds or reasons." Davies v. Holy Family Hosp., 144 Wn. App. 483,497, 183 P.3d
283 (2008).
While the difference between civil (remedial) and criminal (punitive) contempt
can be easily stated, distinguishing between the two can be hard because coercive
sanctions often appear to be punitive. In re Interest ofMB., 101 Wn. App. 425,438, 3
P.3d 780 (2000). A critical factor in distinguishing between the two circumstances is the
triggering mechanism for the sanction. If the purpose of the sanction is to force a person
to do something, it is coercive and hence "remedial." In re Pers. Restraint of King, 110
Wn.2d 793, 800, 756 P.2d 1303 (1988). Where a sanction is imposed for past conduct, it
typically is punitive. Id. A civil sanction "is conditional and indeterminate, i.e., where
the contemnor carries the keys of the prison door in his own pocket and can let himself
out by simply obeying the court order." Id.
The ruling here bears hallmarks of both categories. The trigger mechanism for
sanctions is the failure to conduct the evaluation by the court's deadline, something that
presumably is within the agency's power to meet. This suggests a civil contempt is at
issue, as does the daily fine authorized by RCW 7.21.030(2)(b). Other aspects of the
order suggest otherwise. Of particular concern is that the essential purpose of the penalty
provision is to get state government to reorder its policies. The ruling is not remedial
4 No. 34120-8-III State v. Sims-Dissent
with respect to Mr. Sims or any of the other defendants. It is an unnecessary 2 attempt to
direct legislative and executive policy choices while directly benefiting a political
subdivision of the state by transferring state funds to the county. That is not a proper use
of the contempt authority in this context.
There are methods of compelling state government to live up to its constitutional
obligations. Trueblood provides one example-a civil rights class action lawsuit that
resulted in injunctive relief defining a due process right to timely competency
evaluations, enforced by fines directed at the party that was not complying with the
court's judgment. Another example is found in McCleary v. State, 173 Wn.2d 477,269
P.3d 227 (2012). That was a declaratory judgment action requiring state government to
fully fund its constitutional obligation to maintain the public schools. Id. at 512. The
court used its contempt3 authority to enforce the judgment entered in the declaratory
action. Id. at 545-46.
2 The Department of Social and Health Services (DSHS) is already under court order in Trueblood to remedy the deficiencies that have left the department unable to comply with the deadlines required by the injunction in that case. The federal court does not appear to need state court assistance in forcing compliance with its judgment. 3 The Supreme Court in 2014 found the legislature to be out of compliance with
the ruling in McCleary and, thus, in contempt of court. See Order of January 9, 2014. In 2015, the court found that the legislature still was not in compliance with the court's ruling and imposed a penalty of $100,000 per day for each day the lack of compliance continued. See Order of August 13, 2015. The same finding was made in 2016 (Order of October 6, 2016) and in 2017 (Order ofNovember 15, 2017), with the daily fine continuing to be imposed.
5 No. 34120-8-III State v. Sims-Dissent
This case is neither of those cases. It is not a declaratory action. It is not a civil
rights case. There is no injunction. Neither is there a final judgment in need of
enforcement. This is an ordinary criminal case where a contempt motion was brought to
force an evaluation on a date set by the court instead of by the agency assigned the task of
conducting the evaluation. The agency was not even a party to this case.
For all of these reasons, the approach adopted by the trial court is not appropriate
to a remedial contempt action. It is an effort by the local court to control and direct the
activities of a state agency at both operative and policy levels. The latter action is not
designed to remedy Mr. Sims' situation; rather, it is an attempt to influence executive
and/or legislative policy choices. 4 Judicial control over future legislative policy choices
may serve to alleviate the problem of delayed evaluations to defendants sometime in the
future, but it cannot be said to provide a remedy to Mr. Sims. If his rights were violated
in this case, he has been provided no relief. 5 Instead, he is essentially treated as if he
4 One difficulty with the record of this case is that there is no evidence suggesting why DSHS was not funded in a manner allowing it to comply with the dictates of Trueblood. Was that a matter oflegislative design? Did the agency fail to seek adequate funding? Was sufficient funding supplied, but simply not allocated properly? On this record, we will never know. 5 It understandably would be problematic to award damages to Mr. Sims or anyone
else whose evaluation was delayed since an award might threaten indigency status or eligibility for government services; nor is a criminal case a good vehicle for establishing an individual's actual damages.
6 No. 34120-8-111 State v. Sims-Dissent
were a plaintiff in a class action designed to obtain an award benefitting future members
of the class.
For these reasons, I think the trial court's ruling falls on the criminal contempt side
of the line. It is an effort to punish for past budget decisions and shape future decisions
rather than provide relief to Mr. Sims or others who were denied their due process rights
because of a late evaluation. However, this contempt case was not brought under the
auspices ofRCW 7.21.040 by the county prosecuting attorney. It should be reversed.
There are additional problems with the trial court's order. Directing that an
evaluation be conducted on a specific date is unwise. The scheduling function is beyond
the competence of a local judge, who has clear authority to order State agencies to
comply with their statutory and constitutional duties, but is poorly equipped to run those
agencies since the judges are responsible solely for the cases brought in their jurisdiction
and do not have the ability to schedule appointments for an agency tasked with
performing evaluations for all of the counties of the state. This can lead to conflicting
orders requiring the agency to perform the same task on the same day in multiple
jurisdictions, an impossibility for any human who cannot split her body into multiple
copies.
Although I agree with the majority that an order need not be reduced to writing
before it is effectual, I have quite a bit of sympathy for the argument that the Department
of Social and Health Services (DSHS) needs a written order in a timely fashion. For one
7 No. 34120-8-III State v. Sims-Dissent
thing, receipt of the written order directing a competency evaluation is the trigger for the
federal due process right recognized by Trueblood. It is ironic that DSHS can be found
to violate a right that Mr. Sims himself could not enforce without the written order. But,
written orders also serve functions other than memorializing the will of the court. A
written document is a necessary condition before an appeal ( or discretionary review) to
this court can be filed. It typically is necessary for other purposes such as seeking
reconsideration or relief from judgment. It may be necessary so that the person or agency
who has been ordered to perform a task is aware of the job that has been assigned and
what is expected. Orders serve many purposes other than to establish purge conditions.
Written orders are the best practice and should be entered as early as possible.
Finally, I have serious concerns with the majority's determination that interest is
available on a contempt judgment. There is no controlling Washington authority on this
point. My research suggests that the majority of states follow the approach of the
majority, but comparing other states is a difficult task given the statutory permutations
across the country. Many states expressly say that interest is or is not available.
However, other stat~s where legislative schemes are silent on the topic, as is the case in
Washington, suggest that waiver of immunity only extends to interest where the
legislative scheme says interest is available. One example is Massachusetts. See, e.g.,
Sheriff of Suffolk County v. Jail Officers & Emps. of Suffolk County, 465 Mass. 584,597,
990 N.E.2d 1042 (2013) (no interest available on contempt judgment since no express
8 No. 34120-8-111 State v. Sims-Dissent
waiver of sovereign immunity as to interest); MASS. GEN. LA ws ch. 258 § 4. More
briefing on this topic from states whose statutory waiver of immunity was silent on the
question of interest would be useful.
Finally, I would note that in McCleary, which likely is the most prominent
remedial contempt case of this generation, the Washington Supreme Court did not
impose interest on its $100,000 daily penalty, even though that relief was sought by the
plaintiffs in that action. Although the topic is not discussed in any of the three contempt
orders entered in the case to this point, the absence of interest is, I think, telling.
In conclusion, and with great respect for the late jurist who entered the contempt
orders we are reviewing, the trial court tried to do too much here. The contempt powers
of a federal court enforcing an injunction are broader than those created by our statutes.
While the attempt to duplicate the federal court rulings was understandable, the
enforcement actions exceeded the trial court's statutory authority. The effort to control
policy choices belonging to other branches of government tipped this case into the
criminal contempt arena. For that reason, we should reverse the rulings in their entirety.
Accordingly, I respectfully dissent.