Kitsap County, V Kitsap Rifle And Revolver Club

Filed
Washington State
Court of Appeals
Division Two
January 30, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
KITSAP COUNTY, a political subdivision of No. 50011-6-II
the State of Washington,
Respondent,
v.
KITSAP RIFLE AND REVOLVER CLUB, a UNPUBLISHED OPINION
not-for-profit corporation registered in the
State of Washington, and JOHN DOES and
JANE ROES I-XX, inclusive,
Appellant.
IN THE MATTER OF NUISANCE AND
UNPERMITTED CONDITIONS LOCATED
AT One 72-acre parcel identified by Kitsap
County Tax Parcel ID No. 362501-4-002-1006
with street address 4900 Seabeck Highway
NW, Bremerton Washington.
MAXA, A.C.J. – The Kitsap Rifle and Revolver Club (Club) appeals the trial court’s order
of contempt, which enjoined the Club from operating a shooting facility on its property until it
obtained a site development activity permit (SDAP) for prior site development work performed
without a permit. The court found the Club in contempt for failing to comply with the court’s
supplemental order requiring the Club to apply for an SDAP for the prior development work
within 180 days.
We hold that the trial court did not err in finding the Club in contempt because (1) the
plain language of RCW 7.21.030(2) shows that the trial court was not required to make an
express finding that the Club was able to comply with the court’s supplemental order, (2)
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substantial evidence supports the trial court’s implied finding that the Club was able to comply
with the court’s supplemental order, (3) substantial evidence supports the trial court’s finding
that the Club intentionally failed to comply with the court’s supplemental order, and (4)
substantial evidence supports the trial court’s finding that the Club failed to submit an SDAP
application when it declined to pay the required application fee. However, we hold that the trial
court erred in ruling that the Club was required to obtain an SDAP (rather than apply for one) in
order to purge the contempt because actually obtaining a permit is beyond the Club’s control.
Accordingly, we affirm the trial court’s contempt order except for the requirement that
the Club obtain an SDAP in order to purge the contempt. We remand for the trial court to
address the imposition of a proper purge condition.
FACTS
County’s Lawsuit Against the Club
The Club has operated a shooting facility in the same general location in Bremerton since
the 1920s. Kitsap County v. Kitsap Rifle & Revolver Club, 184 Wash. App. 252, 262, 337 P.3d
328 (2014).1 As of 1993, the Club’s operation was a lawful, nonconforming use. Id. at 262-63.
Beginning in the 1990s, the Club engaged in extensive development of the property on
which its shooting range was located. Id. at 264. This development included clearing and
excavating wooded or semi-wooded areas, removing vegetation, replacing a water course that
ran through a wetland buffer with two 475-foot culverts, and excavating and moving soil. Id.
The Club did not obtain permits for any of this work. Id.
1
A more complete version of the facts leading up to the County’s lawsuit is included in Kitsap
Rifle, 184 Wash. App. at 262-66.
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In 2011, the County filed a complaint against the Club, alleging in part that the Club had
engaged in unlawful development activities because it lacked the necessary permits. Id. at 265.
After a bench trial, the trial court concluded that the Club’s use of the property was illegal
because it had not obtained any permits for its development work. Id. at 266. The court entered
conclusions of law that this unpermitted use terminated the nonconforming use of the Club’s
property as a shooting range. Id. at 265-66. On that basis, the trial court issued a permanent
injunction prohibiting the Club from using its property as a shooting range until it obtained the
proper permits. Id. at 266.
On appeal, this court affirmed the trial court’s ruling that the Club’s development work
violated County land use permitting requirements. Id. at 275. However, the court held that
terminating the Club’s nonconforming use status was not a proper remedy. Id. at 300-01. The
court remanded for the trial court to determine the proper remedies for the Club’s permitting
violations. Id. at 301.
Order Supplementing Judgment
On remand, the trial court entered an Order Supplementing Judgment on Remand. The
supplemental order stated,
A permanent, mandatory injunction is hereby issued further requiring Defendant to
apply for and obtain site development activity permitting to cure violations of KCC
[Kitsap County Code] Titles 12 and 19 found to exist on the Property in the original
Judgment. Defendant’s application for permitting shall be submitted to Kitsap
County within 180 days of the entry of this final order.
Clerk’s Papers (CP) at 286. The court entered the order on February 5, 2016, with the 180-day
period set to end on August 3.
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The Club took some immediate steps to comply with the court’s order. First, the Club
engaged consultants to draft a scope of work, which listed the required activities for the Club to
comply with the relevant permitting requirements. Preparing the scope of work cost $8,000, and
was completed on February 24. The scope of work estimated that the cost of preparing the
Club’s SDAP applications would exceed $158,000 and that the cost of completing all required
activities would be $398,939.
Second, the Club submitted the scope of work to its insurer, Northland Insurance
Company. Northland had been participating in the Club’s defense of the County’s lawsuit, but
denied coverage for the costs associated with the scope of work. On July 28, the Club informed
the County of the Club’s dispute with Northland and the Club’s intent to pursue avenues to
receive coverage from Northland.
Motion for Contempt
The Club did not submit an SDAP application by the August 3 deadline. On August 18,
the County filed a motion for contempt, requesting that the court prohibit the Club from
operating a shooting range until it submitted an application for an SDAP.
In response, the Club submitted a declaration from Marcus Carter, its executive officer.
Carter stated that the Club had been attempting to comply with the court’s order by obtaining the
scope of work and seeking money from its liability insurer to pay for the required work. He
noted that the Club was a nonprofit organization with no endowment and stated that its 2016
end-of-month operating account balances never exceeded $11,000. Carter stated, “The Club has
never intended to disobey or violate the SDAP order. The Club has taken steps to comply, and it
is still engaged in the difficult task of persuading or forcing its insurer to pay for the SDAP work.
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The Club wants to comply with the SDAP order, but has lacked the means to do so in the time
frame ordered.” CP at 218.
The trial court held a hearing on August 26. The Club focused on the ongoing coverage
dispute with its liability insurer, and argued that it was unable to comply with the court’s order
because of the expense. The court declined to find the Club in contempt at that time and
provided 90 additional days for the Club to file the required SDAP application. The court
scheduled a second hearing for December 2.
Carter submitted a declaration stating that on November 28 the Club had “attempted to
submit an SDAP application to the County.” CP at 330. Carter stated, “The Club prepared the
application materials without the assistance of any professional consultant or engineer because it
was unable to afford those types of services without funding from its insurer. The Club made a
good faith effort to prepare the application using the application forms and instructions provided
on the Kitsap County website.” CP at 330-31. Carter also stated,
Any lack of compliance by the Club with the SDAP order in the supplemental
judgment is not intentional and is in spite of the Club’s good faith efforts to comply
or obtain the financial means to do so. The Club wishes to hire qualified
professionals to assist with its SDAP application, but without insurance coverage
for the cost of those services that level of compliance with the SDAP order is not
within the Club’s power to perform. The Club intends to continue its attempts to
work with both the County and its insurer to resolve all issues related to the SDAPs.
CP at 331.
Before the second contempt hearing, the County submitted a declaration from Jeffrey
Rowe, the deputy director of the Kitsap County Department of Community Development.
According to Rowe, when Carter attempted to submit the Club’s application he indicated that he
was not prepared to pay the associated fee. Rowe informed Carter that the fees were a part of a
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No. 50011-6-II
complete application and that the County could not accept a permit application until the applicant
paid the required fees. Carter stated that the Club was unable to pay the fees because it had no
money. Carter then left without submitting the application. The record shows that the
appropriate application fee was either $1,512 or $3,612, depending on the type of application
required.
Rowe did not review at that time the application materials that Carter attempted to
submit. Rowe later reviewed the application when Carter attached it to his declaration, and
Rowe determined that the application was deficient in multiple respects.
Second Contempt Hearing
At the second contempt hearing, the County argued that the Club had not met its burden
of establishing an inability to pay the expenses of the permit process. The County noted that the
Club had presented only Carter’s unsupported assertions and had not submitted bank statements,
asset and liability information, or tax returns. The County also pointed out that there was no
information about whether the Club had made efforts to obtain grant funding or engage in
fundraising to pay for the necessary expenses.
The Club emphasized that it was not trying to avoid complying with the court’s order, but
stated that it lacked the ability to pay for the professional and engineering services required to
submit a complete SDAP application. The Club argued that Carter’s two declarations provided
unrebutted evidence that it was unable to pay the $158,000 cost for those services.
The trial court granted the County’s motion for contempt and gave a brief oral ruling:
Well, I thought that 90 days would help. I certainly thought that two years from the time
that the Court of Appeals made a decision would alert the Club, we need to do
fundraising, we need to do something to make sure that we’re in compliance with the
original order that was affirmed by the Court. Based on that, I think the County’s
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No. 50011-6-II
position is well-taken, they’ve not come through with what they were ordered to do, and I
am going to enjoin the Club from further operations until they comply.
Verbatim Report of Proceedings (Dec. 2, 2016) at 18-19.
Contempt Order
The trial court entered an order granting the County’s motion for contempt and making
findings of fact and conclusions of law. The court found:
3. [The Club] failed to submit an application for an SDAP within 180 days of the
entry of the Supplemental Judgment and has failed to submit a complete application
as of the date of the entry of this order.
4. [The Club]’s failure to comply with the Supplemental Judgment’s mandatory
injunction to submit a permitting application to Kitsap County within 180 days was
intentional.
CP at 412. The court did not make an express finding of fact that the Club had the ability to
comply with the supplemental order.
The court entered a conclusion of law that the Club was in contempt of court. The court
also concluded that “[a]n injunction prohibiting [the Club] from operating a shooting facility
until it obtains an application for permitting is an appropriate remedial sanction for [the Club]’s
contempt of court.” CP at 412. On that basis, the court ordered, “[The Club] is enjoined from
operating a shooting facility until such time that [the Club] obtains permitting in compliance
with KCC Titles 12 and 19.” CP at 413 (emphasis added).
The Club appeals the trial court’s contempt order.
ANALYSIS
A. REMEDIAL CONTEMPT SANCTIONS
Chapter 7.21 RCW provides courts with the authority to impose sanctions on a person for
contempt of court. Contempt of court includes the “intentional . . . [d]isobedience of any lawful
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judgment, decree, order, or process of the court.” RCW 7.21.010(1)(b). The person subject to
contempt is referred to as the “contemnor.”
The contempt statutes distinguish between remedial (or civil) sanctions and punitive (or
criminal) sanctions for contempt of court. In re Interest of Silva, 166 Wash. 2d 133, 141, 206 P.3d
1240 (2009). Remedial sanctions are “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 7.21.010(3). Punitive sanctions are imposed to punish past contempt
of court to uphold the court’s authority. RCW 7.21.010(2).
A court can impose a remedial sanction after notice and hearing. RCW 7.21.030(1). But
an action to impose a punitive sanction must be initiated by the prosecutor, RCW 7.21.040(2),
and the person subject to contempt must receive the due process rights afforded to criminal
defendants. Silva, 162 Wash. 2d at 141.
Under RCW 7.21.030(2), a court may find a person in contempt of court and impose a
remedial sanction “[i]f 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 impose one or more of several
listed sanctions, including “[a]n order designed to ensure compliance with a prior order of the
court.” RCW 7.21.030(2)(c).
The contempt statutes provide three requirements for imposing remedial contempt
sanctions. First, the contemnor must have “failed or refused to perform an act,” RCW
7.21.030(2), which under RCW 7.21.010(1)(b) includes the disobedience of a lawful order.
Second, the failure to perform an act must have been intentional. RCW 7.21.010(1). Third, the
act must have been within the contemnor’s power to perform. RCW 7.21.030(2).
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We review contempt rulings for an abuse of discretion. Dep’t of Ecology v. Tiger Oil
Corp., 166 Wash. App. 720, 768, 271 P.3d 331 (2012). “ ‘Whether contempt is warranted in a
particular case is a matter within the sound discretion of the trial court; unless that discretion is
abused, it should not be disturbed on appeal.’ ” Moreman v. Butcher, 126 Wash. 2d 36, 40, 891
P.2d 725 (1995) (quoting In re Pers. Restraint of King, 110 Wash. 2d 793, 798, 756 P.2d 1303
(1988)). A trial court abuses its discretion if its contempt decision was manifestly unreasonable
or based on untenable grounds. Holiday v. City of Moses Lake, 157 Wash. App. 347, 355, 236
P.3d 981 (2010). In addition, a contempt ruling based on an erroneous view of the law or an
incorrect legal analysis constitutes an abuse of discretion. In re Estates of Smaldino, 151 Wn.
App. 356, 364, 212 P.3d 579 (2009).
When applicable, the trial court’s finding of contempt also must be supported by
substantial evidence. In re Rapid Settlements, Ltd., 189 Wash. App. 584, 601, 359 P.3d 823
(2015), review denied, 185 Wash. 2d 1020 (2016). Substantial evidence is evidence that is
sufficient to persuade a rational, fair-minded person of the finding’s truth. Blackburn v. Dep’t of
Soc. & Health Servs., 186 Wash. 2d 250, 256, 375 P.3d 1076 (2016).
B. ABILITY TO COMPLY WITH ORDER
The Club argues that the trial court erred in imposing remedial contempt sanctions
because the Club was financially unable to comply with the court’s supplemental order that the
Club apply for and obtain an SDAP for its prior unpermitted development work. We hold that
the trial court did not err in implicitly finding that the Club had not met its burden of proving that
it was unable to comply with the supplemental order.
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1. Legal Principles
As noted above, one requirement for imposing remedial sanctions is a finding that
compliance with a court’s order is “within the person’s power to perform.” RCW 7.21.030(2).
In the context of civil or remedial contempt, we presume that a person is able to perform actions
required by the trial court. Moreman, 126 Wash. 2d at 40. Therefore, the inability to comply with
a court order is an affirmative defense to contempt. Id.
The contemnor has both the burden of production and the burden of persuasion regarding
his or her claimed inability to comply. Id. To meet this burden, the contemnor must “ ‘offer
evidence as to his inability to comply and the evidence must be of a kind the court finds
credible.’ ” Id. at 40-41 (quoting King, 110 Wash. 2d at 804). In other words, before imposing a
coercive sanction, the trial court must find that the contemnor has failed to prove an inability to
perform the act at issue.
2. Requirement of Express Finding
The Club argues that RCW 7.21.030(2) required the trial court to make an express
finding regarding the Club’s ability to comply with the court’s order before imposing remedial
sanctions. The Club claims that the contempt order is invalid in the absence of such an express
finding. We disagree.
a. Principles of Statutory Interpretation
Interpreting RCW 7.21.030(2) is a question of law that we review de novo. Jametsky v.
Olsen, 179 Wash. 2d 756, 761, 317 P.3d 1003 (2014). The primary goal of statutory interpretation
is to determine and give effect to the legislature’s intent, as evidenced by “the language of the
provision in question, the context of the statute in which the provision is found, and related
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statutes.” State v. Evergreen Freedom Foundation, 1 Wash. App. 2d 288, 299, 404 P.3d 618
(2017). We give undefined statutory language its usual and ordinary meaning and interpret
words in the context of the statute in which they appear. AllianceOne Receivables Mgmt., Inc. v.
Lewis, 180 Wash. 2d 389, 396, 325 P.3d 904 (2014).
When interpreting the plain meaning of a statute’s words, we look to the context in which
they are used. Evergreen Freedom Foundation, 1 Wash. App. 2d at 299. When the legislature
uses different terms in the same statute, we presume the legislature intended the terms to have
different meanings. Densley v. Dep’t of Ret. Sys., 162 Wash. 2d 210, 219, 173 P.3d 885 (2007).
If the plain meaning of a statute is unambiguous, we must apply that plain meaning as an
expression of legislative intent without considering extrinsic sources. Jametsky, 179 Wash. 2d at
762. A statute is ambiguous if its language is subject to more than one reasonable interpretation.
Id. We resolve ambiguities by considering other indications of legislative intent, including
principles of statutory construction, legislative history, and relevant case law. Id.
b. Language of RCW 7.21.030(2)
RCW 7.21.030(2) states, “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,” then the court may find the
person in contempt and impose remedial sanctions. (Emphasis added.) The phrase “if the court
finds” clearly requires the trial court to decide whether the person has the ability to perform
before imposing remedial sanctions. But stating that a court must decide an issue is different
than stating that the court must make an express finding on that issue.
Two aspects of RCW 7.21.030(2) suggest that the trial court is not required to make an
express finding regarding ability to perform. First, the plain statutory language does not
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No. 50011-6-II
specifically require an express finding. RCW 7.21.030(2) uses the language “[i]f the court finds”
instead of “if the court expressly finds” or “if the court makes a finding.” A court can “find” a
fact without making an express finding. We will not use statutory interpretation to add language
that the legislature did not use. Nelson v. Dep’t of Labor & Indus., 198 Wash. App. 101, 110, 392
P.3d 1138 (2017).
Second, the legislature did use the phrase “expressly finds” in a different subsection of
RCW 7.21.030(2). RCW 7.21.030(2)(d) states that the trial court may impose a remedial
sanction not specified in (a) through (c) “if the court expressly finds that those sanctions would
be ineffectual.” (Emphasis added.) The legislature’s decision to use the term “expressly finds”
in subsection (2)(d) but not in subsection (2)(b) suggests that the legislature did not intend to
require an express finding under RCW 7.21.030(2)(b).
c. Case Law
No Washington case has specifically addressed this issue. And the few cases discussing
remedial sanctions do not clearly require an express finding.
The discussion by Division Three of this court in Rapid Settlements provides some
support for a rule that an express finding is not required. Rapid Settlements addressed a different
issue: whether RCW 7.21.010(1) required an express finding concerning a contemnor’s intent.
189 Wash. App. at 604-05. That statute states that contempt of court means “intentional”
disobedience. RCW 7.21.010(1). The court compared other statutes that clearly require the trial
court to make a written finding. Rapid Settlements, 189 Wash. App. at 605; see RCW 4.84.185
(court may award expenses “upon written findings by the judge that the action . . . was
frivolous”); RCW 13.34.155(2)(b) (“dependency court . . . must make a written finding” that
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parenting plan is in a child’s best interest); RCW 13.40.193(2)(a) (juvenile unlawfully in
possession of a firearm must receive a certain disposition “unless the court makes a written
finding” otherwise). The court held that, because nothing in chapter 7.21 RCW stated that the
trial court had to make a written finding of intentional conduct, such a finding was not required.
Rapid Settlements, 189 Wash. App. at 605.
The language “if the court finds” in RCW 7.21.030(2) is different than the language of
RCW 7.21.010(1), which does not refer to any finding when requiring that a failure to act be
intentional. But the statutes cited in Rapid Settlements are still more specific than RCW
7.21.030(2), and the same analysis applies here.
The Club relies on Britannia Holdings Ltd. v. Greer, 127 Wash. App. 926, 113 P.3d 1041
(2005), to support its argument that the trial court was required to make an express finding. In
Britannia Holdings, Division One reversed a finding on contempt because the trial court did not
find that the contemnors had the present ability to comply. Id. at 928. The contemnors were
judgment debtors who claimed that they lacked funds to comply with a court-ordered payment.
Id. at 928-29. The trial court found the debtors in contempt because, although they previously
had control over sufficient funds, they transferred the money to foreign countries and therefore
knowingly disobeyed the court’s orders. Id. at 929-30.
Division One stated that a threshold requirement of the exercise of contempt power “is a
finding of current ability to perform the act previously ordered.” Id. at 934. The court held that
the trial court erred by failing to “make a finding” that the contemnors had the ability to purge
the contempt at the time of the contempt order. Id. However, the court did not specifically
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address whether the trial court was required to make an express finding. Instead, the court’s
focus was on the contemnors’ current as opposed to previous ability to pay.
In another case, In re Guardianship of Wells, Division One indicated that an express
finding of ability to comply is not necessarily required under RCW 7.21.030(2). 150 Wash. App.
491, 501-02, 208 P.3d 1126 (2009). Division One recognized its statement in Britannia
Holdings that a threshold requirement for a court’s exercise of contempt power was a finding of
a current ability to perform the act ordered. Id. at 500 n.16. The court noted that although the
trial court did not enter specific findings on the contemnor’s ability to comply, the contemnor
represented that he had the ability and the evidence was undisputed that he had the current ability
to comply. Id. at 501. The court held that “[u]under the circumstances, the court’s order
recognizing [the contemnor’s] ability to pay was a sufficient determination to support the court’s
order of contempt. Id. at 501-02. The court concluded, “[The contemnor] had the burden to
show he was unable to comply with the trial court’s order. Given his testimony, he could not
meet this burden.” Id. at 502.
d. Conclusion
We hold that when a trial court imposes a remedial sanction under RCW 7.21.030(2), the
court is not required to make an express finding that the contemnor has failed to prove the
inability to comply with the court’s prior order. This holding is supported by the plain language
of RCW 7.21.030(2), which does not specifically require an express finding regarding the
contemnor’s ability to perform but in a related subsection does require an express finding on
another matter. Further, the case law does not clearly require an express finding.
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Accordingly, we hold that the trial court did not err in imposing remedial sanctions
without making an express finding that the Club failed to prove that it was unable to comply with
the court’s order.
3. Evidence of Club’s Inability to Comply
The Club argues that even if the trial court was not required to make an express finding
regarding the Club’s ability to comply with the supplemental order, the trial court erred in
imposing remedial sanctions for contempt because the evidence did not support an implied
finding that the Club had the ability to comply. The Club emphasizes that it presented evidence
that it did not have the financial ability to comply and the County made no effort to rebut that
evidence. We hold that the trial court did not err.
As noted above, the trial court must make at least an implicit finding that the contemnor
has the ability to comply before imposing a coercive sanction. RCW 7.21.030(2). And the
ability to comply with a court order is an affirmative defense to contempt and the contemnor has
the burden of production and persuasion. Moreman, 126 Wash. 2d at 40. Although no court
appears to have addressed the standard of proof for proving an affirmative defense to contempt,
the general civil standard is preponderance of the evidence. See Dep’t of Labor & Indus. v.
Rowley, 185 Wash. 2d 186, 208, 378 P.3d 139 (2016).
Here, the Club presented limited evidence that it lacked sufficient funds to complete an
SDAP application. Carter’s declaration showed that completing the application alone would cost
in excess of $158,000 and that the Club’s end-of-month operating account balances in 2016
never exceeded $11,000. The County did not rebut the cost of an application, but argued that the
Club failed to present information about its financial situation, including tax returns, assets and
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No. 50011-6-II
liabilities, or bank statements. The County argued that the Club presented only unsupported
assertions, which were insufficient to show an inability to pay.
The trial court was in the best position to evaluate the evidence. The Club had the burden
of proving to the court that it was financially unable to comply with the court’s order. And as the
court stated in Moreman, the person subject to contempt must present evidence of a kind that the
court finds credible. 126 Wash. 2d at 40-41. In light of the minimal evidence the Club presented, it
is apparent that the court concluded that the Club did not present credible evidence of inability to
pay and therefore did not meet its burden of proof. Given the abuse of discretion standard of
review, we will not second guess the court’s determination.
Accordingly, we hold that the lack of detailed evidence regarding the Club’s claim that it
was unable to comply with the court’s order supports the trial court’s imposition of remedial
sanctions under RCW 7.21.030(2).
C. FINDING OF INTENTIONAL FAILURE TO COMPLY
The Club argues that the trial court erred in entering the contempt order because
substantial evidence does not support the court’s finding that the Club’s violation of the court’s
supplemental order was intentional. We disagree.
RCW 7.21.010(1) states that contempt of court must be intentional. Therefore, a person
must act intentionally to be found in contempt. Rapid Settlements, 189 Wash. App. at 605. Here,
the trial court expressly found that the club’s failure to comply with the court’s order was
intentional.
Chapter 7.21 RCW does not define “intentional” and no contempt case has discussed this
requirement in depth. One clear rule is that for a contemnor to act intentionally, he or she must
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have actual or constructive knowledge of the “existence and substantive effect of the court’s
order or judgment.” Smaldino, 151 Wash. App. at 365. In addition, the court’s order must be clear
enough that the contemnor understands what is necessary for compliance. See Tiger Oil, 166
Wash. App. at 769-71 (stating that contradictory provisions in two consent decrees supported the
contemnor’s argument that it did not intentionally disobey one of the consent decrees).
The Club claims that its failure to comply with the court’s supplemental order was not
intentional because it was financially unable to comply. But as discussed above, the contemnor’s
inability to comply is a separate affirmative defense to the imposition of remedial sanctions. No
court has suggested that a contemnor’s ability to comply is relevant to whether he or she
intentionally did not comply.
There is no question that the Club had actual knowledge of the court’s supplemental
order. And the order’s requirement was clear: the Club had to apply within 180 days for an
SDAP for the development work performed without a permit. Further, at the first contempt
hearing the court again made it clear that the Club had to apply for an SDAP within the 90 day
extension.
Despite the clear requirement in the court’s order, the Club failed to submit an
application for an SDAP. Carter brought an application to the County offices, but after stating
that the Club could not afford the application fee he left without submitting it. Although the
Club may have had an explanation for its failure to comply, there is no question that the failure
was intentional in the sense that the Club deliberately did not submit an application.
Accordingly, we hold that substantial evidence supports the trial court’s finding of fact
that the Club intentionally failed to comply with the court’s order.
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D. VIOLATION OF APPLICATION REQUIREMENT
The Club argues that based on a strict reading of the supplemental order, substantial
evidence does not support the trial court’s finding that the Club failed to submit an SDAP
application in violation of the order. The Club argues that the order required only that the Club
submit an application, without specifying what qualified as a proper submission. We disagree.
When determining whether the contemnor violated a court’s order, we must strictly
construe the order in the contemnor’s favor. Rapid Settlements, 189 Wash. App. at 601-02.
Further, the contemnor must have committed a plain violation of the order. Id.
The trial court’s supplemental order stated that the Club was required to apply for an
SDAP to cure violations of KCC Titles 12 and 19 and that an “application for permitting shall be
submitted” within 180 days. CP at 286. In its contempt order, the trial court made a finding that
the Club “failed to submit an application for an SDAP within 180 days” of its order and “failed
to submit a complete application” as of the date of the contempt order. CP at 412.
The Club argues that it did comply with the court’s supplemental order when Carter
delivered to the County an application he completed using the forms and instructions on the
county’s website. The Club acknowledges that the County later determined that the application
that Carter proffered had multiple deficiencies. But the Club emphasizes that the court’s order
did not specify that the application be without deficiencies or acceptable to the County, only that
the application be made. The Club claims that under a strict construction of the court’s order, it
complied with the order by bringing the application to the County.
We need not decide whether submitting a patently deficient application would constitute
compliance with the court’s supplemental order because the evidence is undisputed that the Club
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did not actually submit an SDAP application with the County. Carter stated only that the Club
had “attempted to submit” the application. CP at 330 (emphasis added). The County informed
Carter that it could not accept an application unless he paid a required filing fee, and he was not
prepared to pay the fee. Carter then took the application and left.
The Club does not address its failure to pay the application fee. But it is clear that under
the Kitsap County Code, permit applications must include any applicable fees. KCC 21.04.160;
see also KCC 21.04.030 (stating that the review process includes “[p]aying the appropriate
fees”). Therefore, paying the required fee is a prerequisite to submitting an SDAP application.
Accordingly, we hold that substantial evidence supports the trial court’s finding of fact
that the Club did not submit an SDAP application as of the date of the contempt order.
E. PUNITIVE PURGE CONDITION
The Club argues that even if the trial court did not err in finding the Club in contempt and
deciding to impose a sanction, the sanction imposed was punitive rather than remedial and
therefore was improper. Specifically, the Club focuses on the requirement in the contempt
order’s purge condition that the Club obtain a permit rather than merely requiring a permit
application. We agree.
1. Legal Background
As noted above, a remedial or civil sanction is one that is designed to coerce performance
when the contempt involves a failure to perform an act. RCW 7.21.010(3). The goal of the
sanction is to remedy the nonperformance by subjecting the contemnor to certain consequences
until the act is performed. A remedial sanction remedies a contemnor’s failure to comply with
an order by requiring compliance. See In re Marriage of Didier, 134 Wash. App. 490, 501, 140
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No. 50011-6-II
P.3d 607 (2006). Conversely, a punitive sanction simply punishes a past contempt. RCW
7.21.010(2). Imposing a sanction that is punitive rather than coercive in a civil contempt
proceeding is improper. See Didier, 134 Wash. App. at 501.
To qualify as remedial, a contempt sanction must satisfy three requirements. First, a
contempt order must contain a purge condition allowing the contemnor to purge the contempt by
committing an affirmative act. Silva, 166 Wash. 2d at 141-42. The existence of a purge condition
shows that the sanction has a coercive effect. Id. at 142. A contemnor with the ability to purge
the contempt has “the key to the jailhouse door in his possession at all times.” Moreman, 126
Wash. 2d at 43. On the other hand, a sanction is punitive when the contemnor cannot take an action
to end the sanction. See Didier, 134 Wash. App. at 503-05 (holding that requirement for
contemnor to serve a fixed time in jail if he did not pay an obligation by a certain date was
punitive).
Second, the contemnor must have the ability to satisfy the purge condition. Rapid
Settlements, 189 Wash. App. at 613. A sanction becomes punitive when the contemnor cannot
purge the contempt. Id. As discussed above, to prevent the imposition of sanctions the
contemnor has the burden of proving the inability to comply with a court order. Moreman, 126
Wash. 2d at 40. The same rule applies regarding the inability to comply with a purge condition.
Rapid Settlements, 189 Wash. App. at 614-15.
Third, if the purge condition involves something other than complying with the original
order that the contemnor violated, the condition must be “ ‘reasonably related to the cause or
nature’ ” of the contempt. Rapid Settlements, 189 Wash. App. at 614 (quoting In re Interest of
M.B., 101 Wash. App. 425, 450, 3 P.3d 780 (2000)).
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No. 50011-6-II
In addition, a sanction that initially was remedial may become punitive as circumstances
change. If a sanction loses its coercive effect, such as when a contemnor loses his or her ability
to comply with the court order that was violated, the court must terminate the sanction. King,
110 Wash. 2d at 804; see also M.B., 101 Wash. App. at 440 (stating that if it becomes clear that a
remedial sanction will not produce the desired result, the justification for such a sanction
disappears).
2. Analysis
Here, the trial court’s contempt order satisfies the first requirement of a remedial
sanction. The order contains a purge condition – the Club can resume operating its shooting
facility when it obtains an SDAP. The order clearly is designed to coerce the Club into
complying with the court’s original order.
However, the contempt order does not satisfy the second requirement. Although the Club
may have control over submitting an application for an SDAP, it does not have control over
obtaining an SDAP. The County determines whether to issue development permits. As a result,
even if the Club does everything in its power to obtain an SDAP, the Club’s ability to satisfy the
purge condition is dependent on the County’s response to its application. Because the Club does
not have the ability to satisfy the purge condition without relying on the County’s actions, the
contempt order is punitive.
Accordingly, we hold that the trial court erred in imposing a punitive purge condition.
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F. FURTHER PROCEEDINGS
Because the trial court imposed a punitive purge condition, we remand for the trial court
to impose a proper purge condition for the otherwise valid contempt order. In addition, two
other issues may properly be addressed in future proceedings.
First, the fact that the Club in December 2016 did not prove its inability to comply with
the trial court’s supplemental order does not preclude the Club from producing new or additional
evidence of an inability to comply in a future proceeding. The contemnor must be given the
opportunity “at regular intervals, to present new evidence tending to show that the [sanction] has
lost its coercive effect or that there is no reasonable possibility of compliance with the court
order.” King, 110 Wash. 2d at 805; see also Moreman, 126 Wash. 2d at 43 (stating that the contemnor
could raise the issue with the trial court if a sanction became punitive rather than coercive).
Second, when addressing the purge condition the Club claimed that the trial court’s
contempt order was punitive because the court should have ordered the Club to cease operations
only in the areas where the unpermitted work was performed, not in the entire facility. We do
not address this argument because it involves the scope of the sanction, not the purge condition,
and the Club did not assign error to the sanction’s scope. However, the Club is free to argue in a
future proceeding that closing the Club’s entire facility as a sanction no longer is coercive but
has become punitive.
CONCLUSION
We affirm the trial court’s contempt order except for the requirement that the Club
actually obtain an SDAP in order to purge the contempt. We remand for the trial court to
address the imposition of a proper purge condition.
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No. 50011-6-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, A.C.J.
We concur:
JOHANSON, J.
SUTTON, J.
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