D.s.h.s., State Of Washington v. Stephanie L. Pond-hill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 81844-9-I
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
STEPHANIE LYNN POND-HILL,
Respondent.
SMITH, J. — Stephanie Lynn Pond-Hill was arrested for suspected theft
and resisting arrest when an officer thought she had stolen clothing from a store.
After finding that Pond-Hill was incompetent to stand trial, the Department of
Social and Health Services (DSHS) did not provide Pond-Hill restoration services
for 97 days. Because of this delay, the superior court imposed contempt
sanctions of $3,000 per day—a sanction not enumerated in the remedial sanction
statute, RCW 7.21.030(2)—against DSHS. Under RCW 7.21.030(2)(d), prior to
imposing an unenumerated sanction, the court was required to expressly find
that the enumerated remedial sanctions were inadequate to coerce DSHS’s
compliance. Because the trial court made no such finding, we vacate the order
of sanctions.
FACTS
On September 28, 2018, Officer Michael Berndt followed Pond-Hill and
believed that she had stolen clothing from a store in Longview, Washington.
When Officer Berndt went to arrest Pond-Hill, she resisted and kicked him.
Citations and pin cites are based on the Westlaw online version of the cited material.
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Officer Berndt later learned from the store that Pond-Hill “had knocked over and
broken” a small box of lightbulbs worth $16.05 but that Pond-Hill had not stolen
any clothing.
On October 2, 2018, the State charged Pond-Hill with assault in the third
degree, malicious mischief, and resisting arrest. At her arraignment, the trial
court ordered DSHS to complete a competency evaluation of Pond-Hill. Twelve
days later, DSHS completed the evaluation, finding that Pond-Hill lacked “the
capacity to understand the nature of the proceedings against her.” Shortly
thereafter, the court found Pond-Hill not competent to stand trial and ordered
DSHS to provide her with restoration services.
On November 8, 2018, the trial court issued an order to show cause as to
whether it should find DSHS in contempt for its failure to provide Pond-Hill with
restoration services. DSHS contended that it was unable to admit Pond-Hill at
the time due to “factors outside of [its] control.” DSHS made four arguments
against an order of contempt and sanctions. First, it argued that it did not
intentionally disobey the court’s order. Next, it asserted that the sanctions were
unnecessary because it is already subject to federal oversight and sanctions. It
also contended that the trial court was without authority to impose sanctions
because “[p]unitive sanctions may not be imposed . . . pursuant to
RCW 7.21.040” unless the State requests them. Finally, DSHS argued that the
court must “‘specifically find[ ]’” all statutory contempt procedures and remedies
inadequate before imposing punitive or remedial sanctions.
On November 13, 2018, the trial court held a show cause hearing. At the
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hearing, DSHS stated that Pond-Hill would be admitted for restoration services in
mid-January. Pond-Hill’s counsel expressed concerns that Pond-Hill was “so
gravely disabled” that she would be unable to obtain any services while waiting
for restoration services out of custody. The court’s oral ruling provided:
I’m going to find the State in contempt. I’m going to order
$3,000 a day in fines. I’m going to put this over to next Tuesday,
the 20th, at 1:30. Anticipate she’s going to be getting out then,
because there is no possible way she can be tried in a timely
manner. And whatever can be done to connect her up with any
kind of housing or anything else. . . . I don’t see any other options
for us.
On November 20, 2018, the court held a hearing without the presence of
DSHS and without attempting to obtain DSHS’s presence. In an abbreviated
proceeding, the court ordered that, in “the absence of any new information,”
Pond-Hill be released without bail. The trial court entered its order imposing
$3,000 sanctions per day effective November 13, 2018. The court cited no legal
authority.
DSHS did not provide Pond-Hill restoration services until March 8, 2019.
On April 12, 2019, Pond-Hill was evaluated and found competent to stand trial.
On May 7, 2019, the court entered an order for $291,000 in contempt sanctions.
DSHS appeals.
ANALYSIS
Preservation of Issue
As an initial matter, based on RAP 2.5(a), Pond-Hill asserts that the court
should refuse to review the issue because DSHS did not make this argument
before the trial court. We disagree.
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Under RAP 2.5(a), “[t]he appellate court may refuse to review any claim of
error which was not raised in the trial court.” State v. Gregg, 9 Wash. App. 2d 569,
574, 444 P.3d 1219 (2019) (alteration in original) (quoting RAP 2.5(a)(3)), aff’d,
No. 97517-5, slip op. at (Wash. Sept. 17, 2020),
http://www.courts.wa.gov/opinions/pdf/975175.pdf. In DSHS’s responsive
briefing to the trial court’s order setting a show cause hearing, it argued that the
court’s sanctions would exceed its authority under RCW 7.21.030. It further
argued that the court could not exercise its inherent authority because the record
did not establish that the statutory remedies were inadequate. Because DSHS
presented these arguments to the trial court, RAP 2.5 does not apply, and we
review the merits of DSHS’s contention. See, e.g., State v. Bluford, 195 Wn.
App. 570, 586, 379 P.3d 163 (2016) (Where the defendant requested the lesser
included offense instruction below, on appeal, we concluded that RAP 2.5 did not
apply and that the defendant preserved the argument for review on appeal.),
rev’d on other grounds, 188 Wash. 2d 298, 393 P.3d 1219 (2017).
Contempt Sanctions
DSHS contends that the trial court erred in imposing sanctions of $3,000
per day without expressly finding that the enumerated contempt sanctions would
be inadequate to terminate the contempt. Although the trial court’s reason for
imposing sanctions against DSHS was proper given the unacceptable delay in
providing restoration services to Pond-Hill, because the court failed to act in
accordance with the statute, we agree with DSHS.
“‘A court’s authority to impose sanctions for contempt is a question of law,
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which we review de novo.’” State v. Dennington, 12 Wash. App. 2d 845, 850, 460
P.3d 643 (quoting In re Interest of Silva, 166 Wash. 2d 133, 140, 206 P.3d 1240
(2009)), review denied, 196 Wash. 2d 1003 (2020). Such authority “‘may be
statutory[ ] or under the inherent power of constitutional courts.’” Dennington, 12
Wash. App. 2d at 851 (quoting State v. Hobble, 126 Wash. 2d 283, 292, 892 P.2d 85
(1995)). DSHS asserts that given the trial court’s lack of findings to the contrary,
the court did not use its inherent authority to impose punitive sanctions, and
Pond-Hill does not assert otherwise.1 Accordingly, we review whether the court
properly invoked its “statutory contempt authority . . . set forth in chapter 7.21
RCW.” Dennington, 12 Wash. App. 2d at 852.
When a party has failed to perform an act within its power, “the court may
find the [party] in contempt of court and impose” remedial sanctions.
RCW 7.21.030(2). The enumerated sanctions include (a) imprisonment, (b) “[a]
forfeiture not to exceed two thousand dollars for each day the contempt of court
continues,” and (c) “[a]n order designed to ensure compliance with a prior order
of the court.” RCW 7.21.030(2). “[I]f the court expressly finds that [these]
sanctions would be ineffectual to terminate a continuing contempt of court,” it
may impose “[a]ny other remedial sanction.” RCW 7.21.030(2)(d).
The court’s order falls under RCW 7.21.030(2)(d) because a forfeiture of
1 To the extent that Pond-Hill asserts that the trial court had inherent
authority, Pond-Hill makes only the conclusory statement that “[t]he order of
contempt is a valid order authorized under the superior court[’]s inherent
constitutional authority as well as its statutory authority.” However, “[p]assing
treatment of an issue or lack of reasoned argument is insufficient to merit judicial
consideration.” Holland v. City of Tacoma, 90 Wash. App. 533, 538, 954 P.2d 290
(1998). Accordingly, we do not address this contention.
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$3,000 per day is not an enumerated sanction. Specifically subsection (b)
provides the court with authority to impose a forfeiture of no more than $2,000
per day. Because a forfeiture is defined as a fine or penalty, 2 the $3,000 per day
fine is a forfeiture. But it exceeds the maximum fine available under
subsection (b), and therefore, that subsection does not apply. In the same vein,
subsection (c) does not apply. When interpreting a statute, we will not read
different language to mean the same. See Densley v. Dep’t of Ret. Sys., 162
Wash. 2d 210, 220, 173 P.3d 885 (2007) (holding that where the legislature used
“‘active federal service in the military or naval forces’” in one subsection and
“‘service in the armed forces’” in another, the legislature meant two different
things). Accordingly, we cannot read subsection (c)’s language—a sanction of
“[a]n order designed to ensure compliance”—to include a sanction of “a
forfeiture” and, thus, to permit a sanction of more than $2,000 per day
thereunder. For these reasons, the contempt order must satisfy
RCW 7.21.030(2)(d).
In interpreting RCW 7.21.030(2)(d), we “‘assume the Legislature means
exactly what it says’ . . . and apply it as written.” Densley, 162 Wash. 2d at 219
(quoting State v. Keller, 143 Wash. 2d 267, 276, 19 P.3d 1030 (2001)). Here, under
the plain language of RCW 7.21.030(2)(d), the court must make an express
finding that the enumerated sanctions would be ineffectual in getting DSHS to
provide Pond-Hill with restoration services. However, the court’s written order
provides only the sanction amount and reason, i.e., failure to provide restoration
2 BLACK’S LAW DICTIONARY 765 (10th ed. 2014).
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services, and at the show cause hearing, the court similarly summarily issued the
sanction order.3 Because the court did not expressly find the enumerated
sanctions inadequate, the court erred and exceeded its authority when it imposed
sanctions of $3,000 per day. We therefore vacate the order of sanctions. See,
e.g., State v. Salazar, 170 Wash. App. 486, 494, 291 P.3d 255 (2012) (vacating the
contempt orders where the trial court improperly exercised its inherent contempt
authority and sanctioned the defendant with imprisonment).
WE CONCUR:
3 We note the procedural deficiencies at the hearing setting the sanctions.
Specifically, rather than waiting for the court clerk to connect DSHS to the
hearing, the court quickly concluded the hearing, stating that no new information
was provided and ordering the sanctions.
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