                                                                 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:


p~_Qc~

       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

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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

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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.




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