Dep't of Soc. & Health Servs. v. Sims

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This opinion was filed for record

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SUSAN L CARLSON

SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

No. 95479-8

Respondent,

ANTHONY J. SIMS

Respondent,

En Banc

DEPARTMENT OF SOCIAL & HEALTH

SERVICES, and WESTERN STATE

HOSPITAL,

Petitioners,

and Filed MAR 1 4 im

Other Similar Cases Consolidated on Appeal.

J

MADSEN,J.—This case concerns contempt sanctions imposed against the

Department of Social and Health Services(DSHS)for failing to timely complete

competency evaluations for criminal defendants. Specifically at issue is whether the

State has waived its sovereign immunity under RCW 7.21.030 as regards the imposition

of interest concerning imposed contempt sanctions. We find no waiver under this

No. 95479-8

statute's plain language or in the eontext presented. We also determine whether remedial

sanctions run from the date ofthe trial court's oral ruling imposing the sanctions or the

filing ofthe written sanction order. We hold that the oral ruling determining contempt

and imposing sanctions triggers the running ofthe contempt sanctions. Accordingly, we

affirm the Court of Appeals in part and reverse in part, as explained below.

FACTS

This case is a consolidation of multiple cases brought by criminal defendants

against DSHS and state hospitals for the State's failure to provide timely competency

evaluations to the criminal defendants.^ In these eases, DSHS and the hospital appealed

contempt sanctions that were imposed for delays in providing the competency

evaluations. The parties agree that the facts in State v. Sims, 1 Wn. App. 2d 472,406

P.3d 649 (2017), serve as a template for all of these appeals. See Suppl. Br. of Resp't at

3; Suppl. Br. ofDSHS at 3.

'In each ofthe following cases, which were consolidated in the Court of Appeals, DSHS and a

state hospital appealed contempt sanctions that were imposed for delays in providing

competency evaluations and/or restoration services to criminal defendants: No. 34120-8-III,

State V. Sims', No. 34121-6-III, State v. Larson', No. 34122-4-III, State v. Owen', No. 34123-2-III,

State V. Johnston', No. 34124-1-III, State v. Cooper, No. 34125-9-III, State v. Blake', No. 34126-

7-III, State V. Pal, No. 34127-5-III, State v. Fairfield', No. 34128-3-III, State v. Tall, No. 34129-

l-III, 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. Two sanction orders were entered in the cases of defendants Fairfield and Tall.

Accordingly, a total of 28 sanction orders are at issue.

No. 95479-8

In 2014, the State charged Anthony J. Sims with second degree burglary. Sims, 1

Wn. App. 2d at 477. When a question as to Sims's competency arose, his case was

stayed on October 14, 2014. The stay order directed that a competency evaluation be

conducted in accordance with chapter 10.77 ROW. On November 13, 2014, Sims filed a

motion to compel his competency evaluation because the hospital had still not yet

conducted his evaluation.^ On November 20, the trial court held a hearing on the motion,

at which time the State reported that Sims was and always had been scheduled to have his

evaluation on December 15. At the conclusion of the hearing, the trial court ordered

DSHS to perform Sims's competency evaluation by December 2. The trial court's order

was not reduced to written form.

On November 26, 2014, 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. Sims asked the court to impose remedial sanctions of$500 per day

against DSHS for every day past December 2 until he received his competency

evaluation.

A hearing on this motion began on December 11, 2014, at which time the trial

court heard from Sims and five other similarly situated defendants. During this hearing,

DSHS presented evidence that the state hospital was having difficulty completing

competency evaluations due to insufficient funding and personnel in light of the

^ In 2014, former RCW 10.77.068(l)(a)(i)(2012) provided a performance target of 7 days or less

for a defendant's pretrial competency evaluation. The current statute retains the 7 day target and

adds a maximum time limit of 14 days. See RCW 10.77.068(l)(a)(i).

No. 95479-8

hospital's large scope of responsibility. At the conclusion ofthis hearing, on

December 12, the trial court orally imposed sanctions on DSHS in the amount of$200

per day for every day the evaluations were not completed in compliance with the prior

court ordered deadlines.^ Sims's competency evaluation occurred as originally scheduled

on December 15. The trial court did not enter a written contempt order with findings

until a month later on January 16, 2015.

DSHS appealed the contempt sanctions to the Court of Appeals, Division Three.^

The Court of Appeals held: (1) where a court imposes sanctions for contempt that did not

occur in its presence, statutory sanctions are limited to remedial sanctions;(2)sanctions

for past violations were impermissibly punitive rather than remedial, but remedial

sanctions from the date ofthe order were appropriate;(3) nothing in the remedial

sanctions statute requires a court to enter a written order prior to sanctions becoming

effective; and (4)the State has impliedly consented to interest on statutory sanctions

imposed against it. Sims, 1 Wn. App. 2d at 476, 480-81, 484. As a result, the Court of

Appeals reversed the sanctions order to the extent it imposed punitive sanctions for past

^ The trial 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 ofthe court, pending a later final disposition; but compensation to the

defendants for actual losses was not contemplated. The court later amended its 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.

The trial court held similar hearings in other cases where groups of defendants whose

competency evaluations were not timely completed sought sanctions. At the conclusion of each

hearing, the court, usually weeks later, entered a written order of contempt supported by

findings.

^ As noted, contempt sanctions were imposed in 28 individual orders entered in the cases of the

26 defendants consolidated in the present matter. The sanctions collectively totaled $337,500.

Each judgment also included interest at 12 percent per year.

No. 95479-8

delays where DSHS had no opportunity to purge the contempt. However, it upheld

remedial sanctions running from the date ofthe oral sanctions order until the date that the

competency evaluation was completed, finding these sanctions permissible under the

contempt sanctions statute, RCW 7.21.030. Sims, 1 Wn. App. 2d at 482-83.

Relevant here, the Court of Appeals rejected DSHS's argument that as to the

remedial sanctions, the State's sovereign immunity precluded the accrual of statutory

interest on unpaid sanctions. Id. at 484. The Court of Appeals further held that the

sanctions order became effective when it was orally entered by the superior court, even

though it was not reduced to writing for several weeks. Id. at 481, 484-85.

Judge Korsmo dissented in part. While the dissent agreed with the majority that

an order need not be reduced to writing before it takes effect, it disagreed with the

majority's conclusion that interest is available on contempt sanctions. Id. at 490-91

(Korsmo, J., dissenting).^

DSHS petitioned this court for review ofthe published Court of Appeals' split

decision on two issues only: (1) whether the State consented to be subject to interest

payments on the contempt sanctions and (2) whether a trial court's oral contempt ruling

should not be considered effective until it is filed as a written order. This court granted

review of these two issues.^

^ Judge Korsmo opined that the Court of Appeals should reverse the contempt rulings in their

entirety based on theories not argued by any party. See Sims, 1 Wn. App. 2d at 485 n.2; id. at

491-92(Korsmo, J., dissenting).

^ The appropriateness of imposing sanctions under the circumstances of this case is not before

the court.

No. 95479-8

ANALYSIS

1. The State has not consented to liability for interest on contempt sanctions

imposed under RCW 7.21.030

The doctrine of sovereign immunity requires a state to consent before a court can

hold it liable for interest on its debts. Our Lady ofLourdes Hasp. v. Franklin County,

120 Wn.2d 439, 455-56, 842 P.2d 956(1993){(yaoting Architectural Woods, Inc. v. State,

92 Wn.2d 521, 524, 598 P.2d 1372(1979)). Whether the legislature has waived the

State's sovereign immunity by statute is a question of statutory interpretation that is

reviewed de novo. Union Elevator & Warehouse Co. v. Dep't ofTransp. 171 Wn.2d 54,

59, 248 P.3d 83 (2011). Waiver of sovereign immunity can be express or implied,

whereby a state can place itself expressly, or by reasonable construction of a contract or

statute, in a position of attendant liability. Id. Here, the Court of Appeals held that due to

the comprehensive nature of relief afforded by the contempt sanctions statute, the State

has impliedly waived its sovereign immunity as to interest payments on contempt

sanctions. We disagree.

The issue is the effect of the remedial sanctions statute, RCW 7.21.030,

specifically, whether it authorizes the imposition of interest. First, as demonstrated

below, the statute's plain, unambiguous language does not provide for interest. Nor does

the statute provide "comprehensive relief that would warrant finding an implied waiver.

RCW 7.21.030 provides in relevant part that a court "may initiate a proceeding to

impose a remedial sanction on ... the motion of a person aggrieved by a contempt of

court in the proceeding to which the contempt is related . . . [and] after notice and

No. 95479-8

hearing, may impose a remedial sanction" on a person in contempt. The statute lists the

following available sanctions in subsection (2): (a)imprisonment,(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 ofthe court,(d)"[a]ny other

remedial sanction .. . ifthe court expresslyfinds that those [above listed] sanctions would

be ineffectual to terminate a continuing contempt of court," and (e) commitment to

juvenile detention. RCW 7.21.030 (emphasis added). The statute further provides,"The

court may, in addition to the remedial sanctions set forth [above], order a person found in

contempt of court to pay a partyfor any losses suffered by the party as a result ofthe

contempt and any costs incurred in connection with the contempt proceeding, including

reasonable attorney'sfees." RCW 7.21.030(3)(emphasis added). As can be seen, the

plain language ofthe statute does not address, include, or provide for interest.

As DSHS notes, where the legislature has intended a waiver of sovereign

immunity for interest, it has done so with express statutory language. See Suppl. Br. of

DSHS at 9-10; see also RCW 4.56.110,.115 (expressly providing for interest on

judgments founded on tortious conduct of the State); RCW 51.32.080(4)(addressing

"interest paid on . . . permanent partial disability compensation"); RCW 82.32.060

(providing for interest on tax refunds).

Further, in Union Elevator, this court reiterated the rule applicable in this case,

stating,"A waiver of sovereign immunity exists when the State has expressly, or by

reasonable construction of a contract or statute, placed itself in a position of attendant

liability." 171 Wn.2d at 68 (emphasis added). This court held:

No. 95479-8

The legislature enacted statutes expressly permitting interest on

condemnation awards but did not include similar language in the

Relocation Act [real property acquisition policy act(ch. 8.26 RCW)].

Furthermore, the legislature enumerated specific categories of costs and

expenses compensable under the Relocation Act but did not include interest

among these recoverable expenses. We will not do so impliedly.

Id.(emphasis added). The same is true here, and the same result follows.

The primary cases on which Sims relies. Architectural Woods and Smoke,^

concern contracts or are otherwise distinguishable. This court addressed and

distinguished those cases in Union Elevator as follows. Concerning Architectural Woods

this court explained:

[T]he State impliedly waived sovereign immunity when the legislature

statutorily authorized state colleges to enter into construction contracts with

private parties. . . . Because the State was acting in a private capacity, we

reasoned that the statute impliedly held the State to 'Ihe same

responsibilities and liabilities as [a\ private party, including liabilityfor

interest." Architectural Woods, 92 Wn.2d at 526-21.

Union Elevator, 171 Wn.2d at 62-63 (emphasis added)(third alteration in original).

Regarding Smoke, this court opined:

In Smoke we allowed an award for postjudgment interest when the city

''consent[ed\ to suitfor damages," thereby "impliedly waiv[ing\ immunity

from the liabilities attendant to such claims." Smoke, 132 Wn.2d at 228

{citing Architectural Woods, 92 Wn.2d at 526-27).

Union Elevator, 171 Wn.2d at 64(emphasis added)(first and second alterations in

original). By contrast, in the present case, the State has not acted like a private party or

otherwise "placed itself in a position of attendant liability." Id. at 68. Accordingly, the

' Smoke v. City ofSeattle, 132 Wn.2d 214, 937 P.2d 186 (1997).

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No. 95479-8

underlying basis for finding an implied waiver of sovereign immunity as to payment of

interest is not established here.

Moreover, the purpose ofRCW 7.21.030 is clearly to compel compliance. The

remedial sanctions the statute expressly authorizes provide the parameters for such

coercion. Although imposing interest would comport with the statute's coercive purpose,

such action would require adding language to the statute, which this court cannot do. See

State V. Glas, 147 Wn.2d 410, 417, 54 P.3d 147(2002)(courts may not add language to a

clear statute).

Finally, while subsection (3) ofthe statute provides that in addition to the listed

remedial sanctions, a court may order a person in contempt "to pay a party for any losses

suffered by the party as a result ofthe contempt and any costs incurred in connection with

the contempt proceeding, including reasonable attorney's fees," the present case does not

involve damages (i.e. the present case concerns a defendant trying to compel DSHS to

provide timely competency evaluations so his criminal prosecution may proceed). RCW

7.21.030. Also, the attorney fee provision here is limited to "costs incurred in connection

with the contempt proceeding." Id.^ Being so expressly limited, any reliance on the

presence of an attorney fee provision in RCW 7.21.030 as indicating a legislative intent

to provide "comprehensive relief is not convincing. Again, the statute's plain language

does not support the view that finding an implied waiver of sovereign immunity as to

® Cf. RCW 64.40.020. This statute, which was at issue in Smoke, provided landowners a cause of

action for damages for arbitrary government agency action and attorney fees to the prevailing

party, thereby providing "comprehensive relief to aggrieved landowners. See Union Elevator,

171 Wn.2d at 64-65 (so noting).

No. 95479-8

payment of interest is warranted here. Accordingly, we reverse the Court of Appeals to

the extent it determines otherwise.

2. An oral contempt order is considered effective immediately, before it has been

reduced to writing

ROW 7.21.030(1) states, "Except as provided in ROW 7.21.050, the court, after

notice and hearing, may impose a remedial sanction authorized by this chapter." RCW

7.21.050(1) instructs that "[t]he order of contempt shall recite the facts, state the

sanctions imposed, and be signed by the judge and entered on the record." RCW

7.21.050(1) additionally requires the judge to impose sanctions "immediately after the

contempt of court or at the end of the proceeding."

DSHS contends that the statutory requirement for findings of fact and purge

conditions means that a written order is needed for contempt sanctions to become

effective. Suppl. Br. ofDSHS at 16 (citing State v. Mecca Twin Theater & Film Exch.,

Inc., 82 Wn.2d 87, 92, 507 P.2d 1165 (1973)). DSHS is correct that the statute requires

findings, see RCW 7.21.030(2){see also RCW 7.21.050(2)), and purge conditions. In re

Rapid Settlements, Ltd., 189 Wn. App. 584, 613, 359 P.3d 823 (2015), review denied, 185

Wn.2d 1020(2016). But neither the statute nor our precedent requires remedial contempt

orders to be put in writing in order to be enforceable. In Mecca Twin Theater, this court

discussed what to do when a written contempt order entirely lacks findings of fact

(remand for entry of findings) or contains findings of fact but lacks precision (examine

the trial court's record). 82 Wn.2d at 92-93. That case says nothing about the

enforceability of oral contempt rulings. Where the record concerning the oral contempt

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No. 95479-8

ruling shows the basis for the ruling, indicates how the contempt may be purged, and

demonstrates the contemnor had notice and hearing, the oral ruling is effective

immediately.

We hold that while the governing statutes contemplate entry of a written contempt

order, a trial court's oral order is effective immediately. Nothing in the statute subjects

contempt orders to different rules than those that apply to other court orders, and DSHS's

rights to notice and to appeal are not undermined by giving effect to an oral order.

Accepting DSHS's view would mean that a party could delay the effectiveness of

sanctions during the formalizing of an order, contrary to the purpose of contempt

proceedings to ensure the orderly, timely, and efficient administration ofjustice.

A. Oral orders are effective and enforceable, even if they can be modified prior to

being reduced to writing

DSHS argues that a person facing a verbal ruling of contempt is placed in a state

of"legal limbo" where he or she will face the difficult task of appealing verbal rulings

that remain subject to revision. Suppl. Br. of DSHS at 17. Because written orders are

also subject to modification, and courts use oral rulings on a daily basis to conduct

, litigation, these concerns by DSHS are unfounded. As the Court of Appeals correctly

noted,"The inability to modify an order should not be the touchstone for detemiining an

order's enforceability." Sims, 1 Wn. App. 2d at 482.

First, written orders are also subject to modification. CrR 7.8(a) provides that

"[cjlerical mistakes in judgments, orders or other parts ofthe record and errors therein

arising from oversight or omission may be corrected by the court at any time of its own

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No. 95479-8

initiative or on the motion of any party." In a situation where a party believes that the

judge misspoke or the sanction was written down incorrectly, regardless of whether the

order is written or oral, the order may be modified to meet the intent of the court. Thus,

even if there were errors in the written contempt order, a judge is still able to modify the

order, pursuant to CrR 7.8(a), to match the original transcript of proceedings.

Second, there is no reason why contempt orders should he treated differently from

other orders. Parties are generally required to follow a trial court's oral rulings. If

questions arise and a required written finding or conclusion is missing, the remedy is to

remand for entry of a written order, not invalidation of the original oral order. See, e.g.,

State V. Head, 136 Wn.2d 619, 624, 964 P.2d 1187 (1998); State v. Wood, 68 Wn.2d 303,

304, 412 P.2d 779 (1966); State v. Helsel, 61 Wn.2d 81, 83, 311 P.2d 408 (1962).

Moreover, compliance with oral rulings is critical to orderly court proceedings.

For instance, when a court rules on a midtrial evidentiary objection or pretrial on the

admission of a prior conviction or other evidence, the ruling is not hypothetical, or

advisory; it is a final ruling that the parties must obey. See State v. Austin, 34 Wn. App.

625, 634, 662 P.2d 872(1983)(Scholfield, J., concurring)(arguing that error can be

assigned to a trial court ruling on a motion in limine due to the final nature of the order

and the fact that the defendant is entitled to rely on it). This court has never suggested

that contempt sanctions should be treated any differently than other oral rulings.'®

DSHS relies on dicta in State ex rel. Wallen v. Noe, stating that a judgment of contempt was

inoperative because no written judgment of contempt was ever issued. 78 Wn.2d 484,489, 475

P.2d 787(1970). However, the issue of the oral order of contempt was not before the court as

neither ofthe parties made the validity an issue on appeal. Id. Furthermore, the cases cited by

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No. 95479-8

In sum,the fact that an oral order remains subject to modification by the court has

no bearing on its immediate validity. Written orders may also be modified per CrR

7.8(a). In addition, the court system routinely relies on compliance with oral rulings to

maintain the orderly and efficient administration ofjustice. We decline to depart from

this system with respect to contempt orders.

B. Oral orders provide sufficient notice and adequately preserve issues for

appellate review

DSHS's concerns about notice and appellate review are adequately protected with

an oral order that is later reduced to writing. As to notice, ROW 7.21.030(1) mandates

that a contempt sanction may be imposed only after notice and hearing. There is no

argument here that DSHS lacked notice. While the effective appeal of a contempt order

necessitates a written order, it does not follow that an oral order imposing sanctions is

ineffective until reduced to writing. Appellate review is sufficiently preserved by the

ability to remand for entry of written findings and the rule that in the event of a conflict, a

written order will control over an oral ruling. See Head, 136 Wn.2d at 624(remanding

for needed findings of fact and conclusions of law). See also State v. Dailey, 93 Wn.2d

454, 459, 610 P.2d 357(1980)(written decision of a trial court is considered the court's

ultimate understanding of the issue presented).

the court simply articulate the long stated rule that a judgment is operative from its date of entry,

having been signed by the court and delivered to the clerk for filing. See id.; Cinebar Coal &

Coke Co. V. Robinson, 1 Wn.2d 620, 623, 97 P.2d 128 (1939). None of the authorities suggest an

oral ruling that is later reduced to judgment is ineffective, nor do they contain any discussion on

remedial contempt sanctions generally or the specific requirements of the remedial contempt

statute. See Wallen, 78 Wn.2d 484; Cinebar Coal, 1 Wn.2d 620.

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No. 95479-8

Contrary to DSHS's assertions, Templeton v. Hurtado, 92 Wn. App. 847, 965 P.2d

1131 (1998), does not suggest a different result. In Templeton, the Court of Appeals,

Division One, recognized that an oral ruling does not supply an adequate basis for

appellate review of a contempt order. See 92 Wn. App. at 853. The Templeton court

instructed that a trial court must ensure written findings are entered, regardless of whether

the court writes them or delegates the task to counsel. Id. DSHS contends that this

language in Templeton supports the necessity of an immediate written order. Suppl. Br.

of DSHS at 17. It does not.

The Court of Appeals here correctly observed that Templeton simply reiterated the

requirement that a written contempt order with adequate findings is necessary for

appellate review. Sims, 1 Wn. App. 2d at 482. The Court of Appeals correctly explained

that Templeton does not stand for the idea that an oral contempt decision is not

immediately effective. Id. This is consistent with our decision in Head that articulated

the proper remedy for a lack of written findings is simply to remand for their entry. 136

Wn.2d at 624. Thus, it does not follow that because a written order is necessary for

appeal, a written order is necessary before contempt sanctions become effective.

Finally, this is not a case where the terms of the court's oral order conflict with the

subsequent written order. While a written order will take precedence over a prior oral

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No. 95479-8

order in the event of a conflict," that circumstance is not present here. DSHS's attempt

to delay the effective date ofthe sanctions imposed by the superior court fails.

CONCLUSION

We reverse in part and affirm in part the Court of Appeals' decision. Neither the

plain language of RCW 7.21.030 nor the context of this case warrant a finding that the

State waived its sovereign immunity, either expressly or impliedly, and consented to the

imposition of interest on the sanctions imposed. This is not a damages case, and under

the circumstances presented, the statute does not provide comprehensive relief such that

waiver may be implied. In other words, the statutory scheme does not support finding an

implied waiver of sovereign immunity that would subject the State to interest payments

on remedial contempt sanctions. On this issue we reverse the Court of Appeals.

With regard to the validity of the superior court's oral contempt orders, nothing in

RCW 7.21.030 supports treating contempt orders differently from other court orders. An

oral order is immediately effective, and the parties' rights to notice and appeal are

protected by subsequent entry of a written order, the terms of which will control over any

conflicting oral statement. Requiring an immediate written contempt order risks allowing

the party in contempt to delay the imposition of sanctions while the order is formalized

and runs contrary to the central purpose of the remedial contempt statute—to compel

"See Dailey, 93 Wn.2d at 458 (upholding the formal written decision of the court's dismissal of

a criminal prosecution "in the furtherance ofjustice," despite earlier oral statements conceming

dismissal as a sanction for failure to comply with discovery rules).

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No. 95479-8

timely compliance with court orders. On this issue we affirm the Court of Appeals. We

remand for further proceedings consistent with this opinion.

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No. 95479-8

WE CONCUR:

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