[No. 44449-2-I. Division One. May 30, 2000.]
ANDREW APOSTOLIS, Appellant, v. THE CITY OF SEATTLE, ET AL., Respondents.
[1] Dismissal and Nonsuit - Violation of Order - Review -Standard of Review. A trial court's dismissal of a case for noncompliance with court orders or rules is reviewed for an abuse of discretion. Discretion is not abused if the decision to dismiss is not manifestly unreasonable or based on untenable grounds.
[2] Public Employment - Unfair Labor Practice - Judicial Review - Statutory Provisions. Judicial review of a Public Employment Relations Commission decision in an unfair labor practice case is conducted pursuant to the standards set forth in the Administrative Procedure Act (RCW 34.05).
[3] Trial - Scheduling - Order of Court - Violation -Sanctions - In General. A trial court may impose such sanctions as it deems appropriate for unexcused violations of its scheduling orders.
[4] Dismissal and Nonsuit - Violation of Order - Justified Dismissal. A trial court is justified in dismissing a case when the plaintiff acts in willful and deliberate disregard of reasonable and necessary court orders to the prejudice of the defendant and to the impairment of the efficient administration of justice.
[5] Dismissal and Nonsuit - Violation of Order - Willful - What Constitutes. A party's disregard of a court order without reasonable excuse or justification is deemed willful.
[6] Trial -Argument of Counsel - Briefing - Untimely Filing - Excusal - Attitude of Court. A party's untimely filing of a brief with a trial court is not excused by a belief that the judge before whom the case is pending does not care if briefs are timely filed with the court.
[7] Appeal - Review - Issue First Raised in Oral Argument - In General. An appellate court may decline to consider an issue raised for the first time in oral argument.
[8] Public Employment - Public Employment Relations Commission - Pleadings - Specificity. Under WAC 391-45-050(2), a pleading before the Public Employment Relations Commission is inadequate if it fails to allege sufficient specific facts such as would establish the claim in a default situation.
[9] Public Employment - Public Employment Relations Commission - Rules of Procedure - Superior Court Civil Rules. The Superior Court Civil Rules do not apply in contested case proceedings before the Public Employment Relations Commission.
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Nature of Action: A public employee sought judicial review of a Public Employment Relations Commission decision upholding the dismissal of his unfair labor practice allegations against his employer, a city.
Superior Court: The Superior Court for King County, No. 98-2-17218-5, Philip G. Hubbard, Jr., J., on March 9, 1999, dismissed the action with prejudice.
Court of Appeals: Holding that dismissal of the action was warranted on the basis of the plaintiffs failure to follow the trial court's case schedule and pretrial orders and to allege sufficient facts to warrant relief, the court affirms the judgment.
Paul H. King, for appellant.
Mark H. Sidran, City Attorney, and Dan ford D. Grant, Assistant; and Christine 0. Gregoire, Attorney General, and Spencer W. Daniels, Assistant, for respondents.
BAKER, J. - Andrew Apostolis filed a complaint against the City of Seattle alleging unfair labor practices. The Public Employment Relations Commission (PERC) dismissed most of the allegations for failure to state a cause of action, and denied Apostolis's petition for review. On appeal, the King County Superior Court dismissed the petition for review with prejudice on two separate grounds:first, as a sanction for deliberate failure to follow the case schedule and court orders; and second, because Apostolis failed to meet his burden to demonstrate the invalidity of PERC's decision. We affirm.
I
Apostolis filed an amended complaint alleging unfair labor practices. He claimed that he was unfairly written up
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and later terminated for his advocacy of eliminating crew chiefs from the bargaining unit and for his complaints about disciplining the workforce unfairly, and about not having a shop steward present during questioning by management. The Executive Director of PERC dismissed all but one of the allegations for failure to state a cause of action under RCW 41.56. The order stated that the complaint did not allege employer knowledge and that the facts as alleged were insufficient to warrant a hearing. Apostolis filed a petition for review, which was dismissed for insufficiency of service.«1» The Executive Director later issued an order correcting preliminary ruling, dismissing the previously retained allegation and reinstating portions of another. Apostolis then filed a petition for review with the full Commission, and the ruling was affirmed.
Apostolis then filed a petition for review of PERC's decision in King County Superior Court. Apostolis failed to serve the City with a copy of the case schedule. The City requested the case schedule, and Apostolis provided it more than a month after the request. Apostolis filed his brief three weeks late, more than a week after the City's responsive brief was due and filed. Counsel for Apostolis claimed that his brief was late because the court computer system showed that the file was checked out during the week that the brief was due. Counsel also stated that he "wasn't really that concerned" because in his opinion the assigned judge had been "pretty lenient on late briefs."
The court issued an order requiring the parties to attend a pretrial conference, but counsel for Apostolis did not appear. In addition, Apostolis failed to engage in the mediation requirements specified in the case schedule and court orders. Counsel admitted that he did not remember seeing the court's notice and stated that in his experience pretrial and settlement conferences are not generally held in review cases, so he probably did not make a note of it.
«1» The dismissal was affirmed by the King County Superior Court and by this court in Apostolis v. City of Seattle, No. 41402-0-1 (Wn. App. Jan. 19, 1999) (unpub.).
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Counsel later stated that he never received the documents because of a clerical error.
Apostolis filed his reply brief ten days late. Despite taking additional time to complete the brief, counsel for Apostolis based much of his argument at the review hearing on an uncited case which was presented for the first time that day. Counsel provided no excuse for these incidents, other than his belief that the judge did not care whether the briefs were late.
The court dismissed Apostolis's petition for review with prejudice on two separate bases, each of which stands alone. First, the court found that Apostolis's failure to follow the case schedule and court orders was willful, deliberate, and not inadvertent, and that these failures prejudiced the City and the court. Second, the court concluded that Apostolis failed to meet his burden of demonstrating the invalidity of PERC's action under the standard of review set forth in RCW 34.05.570(3). The court denied a subsequent motion for reconsideration. Apostolis appeals.
II
[1] A trial court's order dismissing a case for noncompli-ance with court orders or rules is reviewed for abuse of discretion.«2» A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds.«3»
[2-5] Decisions of PERC in unfair labor practices cases are reviewed under the standards set forth in the Administrative Procedures Act (APA), RCW 34.05.«4» Under RCW 34.05.570(3), the court shall grant relief from an agency order in an adjudicative proceeding if the agency has erroneously interpreted the law; or the order is inconsistent
«2» Woodhead v. Discount Waterbeds, Inc., 78 Wn. App. 125, 130-31, 896 P.2d 66 (1995).
«3» Hizey v. Carpenter, 119 Wn.2d 251, 268, 830 P.2d 646 (1992).
«4» Pasco Police Officers'Ass'n. v. City of Pasco, 132 Wn.2d 450, 458, 938 P.2d 827 (1997).
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with a rule of the agency unless the agency explains the inconsistency by stating facts and reasons to demonstrate a rational basis for the inconsistency; or the order is arbitrary and capricious. The burden of demonstrating the invalidity of agency action is on the party asserting invalidity.«5»
Apostolis argues that the record does not support a finding of willful, intentional and deliberate disregard of court orders necessary to justify the extreme sanction of dismissal because he did not act in bad faith or attempt to mislead the court. He argues that counsel's failure to attend the required pretrial and settlement hearings resulted from a clerical error, and that counsel was unable to file a timely brief because the clerk's office lost the file. He further argues that the City failed to demonstrate that it had been prejudiced by counsel's acts and omissions.
CR 41(b) authorizes a trial court to dismiss an action for noncompliance with court orders.«6» The court may impose such sanctions as it deems appropriate for unexcused violations of its scheduling orders.«7» Dismissal is justified when a party acts in willful and deliberate disregard of reasonable and necessary court orders, the other party is prejudiced as a result, and the efficient administration of justice is impaired.«8» Disregard of a court order without reasonable excuse or justification is deemed willful.«9»
[6] Here, counsel for Apostolis freely admits that he made a conscious decision to file his brief late based on his belief that the judge did not really care whether briefs were timely. This excuse is grossly unacceptable. Furthermore, his argument that the brief was late because the file was lost is equally unconvincing. First, he did not attempt to check the file out until four days after the brief was due. Next, when he discovered that the case file was checked out,
«5» RCW 34.05.570.
«6» Walker v. Bonney'-Watson Co., 64 Wn. App. 27, 37, 823 P.2d 518 (1992).
«7» KCLR 4(g); Woodhead, 78 Wn. App. at 129.
«8» Wood/lead, 78 Wn. App. at 130.
«9» Wood/lead, 78 Wn. App. at 130.
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he failed to ask for an extension. Instead, he waited until three weeks after the brief was due to contact the clerk's office regarding the whereabouts of the missing file. The City, which evidently took the case schedule seriously, was forced to file its brief before receiving Apostolis's opening brief. As a result, the City never had a written opportunity to respond to Apostolis's brief and had to draft its arguments without learning the bases for Apostolis's challenge of PERC's decision. Moreover, Apostolis also filed an untimely reply brief and then based most of his argument before the trial court on another case that had not been previously briefed. This made identification and adjudica-tion of the issues more burdensome for the court. Both the City and the court were prejudiced by this inexcusable behavior.
Moreover, even though Apostolis was required to serve a copy of the case schedule to the City, the City was forced to submit a written request for it to Apostolis. Even then, he did not provide the City with a copy until more than a month after the request was made. Apostolis failed to engage in settlement requirements as set forth in the original case schedule. He argues that he was not notified of the settlement and pretrial conference requirements due to a clerical error, and that he had no reason to believe that such requirements existed because such conferences are not generally held in review cases. But Apostolis should have known about the settlement requirements because they appeared in the original case schedule and were referred to in the City's brief, which Apostolis had received one week earlier.
[7] Washington courts should not resort to dismissal lightly.«10» Although counsel for Apostolis did not deliberately attempt to mislead the court as the offending party in Woodhead did, his conduct was clearly willful and deliberate as opposed to merely inadvertent. Therefore, the trial court did not abuse its discretion in dismissing the case on
«10» Anderson v. Mohundro, 24 Wn. App. 569, 575, 604 P.2d 181 (1979).
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these grounds.
For the first time at oral argument, Apostolis claimed that the trial court erred in failing to consider lesser sanctions as required by Wood-head. However, Apostolis did not provide an assignment of error regarding this issue as required by RAP 10.3(a)(3), nor did he raise the issue elsewhere in his brief. We need not consider issues raised for the first time at oral argument,«11» and hence decline to address it.
Next, Apostolis argues that PERC erred in ruling that his amended complaint did not contain sufficient facts from which it could be inferred that his employer was aware of statements he made at a union meeting.«12» He claims that PERC should have inferred employer knowledge because the amended complaint clearly stated that "Lenny Hull, a supervisor and crew chief at the Seattle Center . . . attempted to intimidate the complainant by 'staring him down' at the meeting." He contends that PERC should have used the well-established National Labor Relations Board (NLRB) rule that a supervisor's knowledge of employee activities will be imputed to the employer.«13»
[8, 9] WAC 391-45-050(2) specifically requires that an unfair labor practices complaint submitted to PERC must contain "[c]lear and concise statements of the facts constituting the alleged unfair labor practices, including times, dates, places and participants in occurrences." The facts set forth in the complaint "must be sufficient to make intelligible findings of fact in a 'default' situation."«14» Furthermore, PERC requires a more detailed complaint than the
«11» RAP 12.1(a); State v. Johnson, 119 Wn.2d 167, 170-71, 829 P.2d 1082 (1992).
«12» Based on Apostolis's assignments of error, it appears that he does not dispute PERC's dismissal of Paragraph C of his complaint (being unfairly written up) because the statute of limitations expired. All of the alleged errors by PERC relate to PERC's determination that the complaint failed to allege employer knowledge.
«13» Dr. Phillip Megdal, 267 N.L.R.B. 82 (1983).
«14» International Ass'n of Fire Fighters v. Thurston County Fire Dist. 3, No. 3830, Pub. Employment Relations Comm'n [hereinafter PERC] (July 29, 1991).
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NLRB:
While the NLRB would investigate based on a "charge" containing only minimal facts, the Commission's rules require the filing of a complaint which contains full details of the dates, times and participants in occurrences. The Executive Director must make a preliminary ruling based on what is contained within the four corners of the complaint.«15»
(Citation omitted.)
Here, Apostolis's amended complaint did not allege employer knowledge. It merely describes Lenny Hull as a "supervisor and crew chief." The complaint permits an inference that Hull was part of the same bargaining unit as Apostolis, but there is nothing within the four corners of the complaint to indicate employer knowledge. It appears that Apostolis's statements were made at union meetings to other union members.
Apostolis also contends that this decision is inconsistent with PERC's practice of putting supervisors in a separate bargaining unit.«16» But if supervisors are placed in different bargaining units, and Hull and Apostolis were in the same unit, the logical inference is that Hull, a crew chief, was not the type of supervisor for which employer knowledge can be inferred. Employer knowledge cannot be inferred from the fact that Apostolis advocates removal of crew chiefs from his bargaining unit.
Next, Apostolis contends that PERC should have inferred employer knowledge by applying the "small plant doctrine." This argument is unpersuasive for the same reasons discussed above. Under the "small plant doctrine," employer knowledge of union activities is inferred where such activities are conducted in a relatively small work environment, and are carried on in such a manner or at such times that it may be presumed that the employer must have noticed
«15» City of Tacoma, Nos. 4053-B, 4075-A, 4076-APERC (May 19, 1992).
«16» International Ass'n of Fire Fighters v. PERC, 29 Wn. App. 599, 609-10, 630 P.2d 470 (1981).
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them.«17» Apostolis's complaint stated that his bargaining unit numbers 800 employees, and made a conclusory statement that "Seattle Center is a small plant." Apostolis claims that PERC jumped to the conclusion that there are 800 people at the plant. However, this mischaracterizes PERC's decision. PERC simply stated that there was nothing specific in the complaint to indicate that the small plant doctrine should apply to the Seattle Center.
Next, Apostolis contends that PERC erred in ruling that the employer's unfair labor practices could not be inferred from the record to be built at trial. Again, Apostolis mischaracterizes PERC's decision. PERC never stated that it would not have been able to infer employer knowledge from the record as a whole, had the case proceeded to trial. PERC merely stated that the complaint lacked sufficient detail from which it could infer employer knowledge, and thus a cause of action.
Next, Apostolis argues that PERC erred in ruling that employer knowledge could not be inferred from his assertion that the employer has a long history of retaliatory discharges and that the discharge followed soon after the employees engaged in protected speech. But there is nothing in the record to support Apostolis's claim that Seattle Center has a history of anti-union activities. This argument is without merit.
Finally, Apostolis argues that PERC's decision to require detailed pleadings runs counter to the historical trend in the use of pleadings and to the civil rules. However, the civil rules apply to Superior Court, not to PERC. As discussed above, PERC's pleading requirements are specified in WAC 391-45-050(2). The regulations require full details of the occurrences such that the executive director may make a preliminary ruling based on what is contained in the four corners of the complaint. Given PERC's pleading requirements as specified by state regulations, PERC's decision to dismiss the case because the complaint was not sufficiently
«17» International Ass'n of Fire Fighters, No. 3610 PERC, at 44 (Oct. 26, 1990).
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specific was not arbitrary and capricious or contrary to law.
We conclude that the trial court did not abuse its discretion in dismissing Apostolis's case as a sanction for acting in willful and deliberate disregard of court orders, or in upholding PERC's decision to dismiss most of Apostolis's complaint for failure to establish sufficient facts from which employer knowledge could be inferred. Apostolis has failed to meet his burden of demonstrating that PERC's decision was arbitrary and capricious or contrary to law.
Affirmed.
AGID, C.J., and GROSSE, J., concur.
[Nos. 18016-6-III; 18032-8-III; 18265-7-III. Division Three. June 20, 2000.].
In the Matter of the Interest of REBECCA K., a minor.
In the Matter of the Interest of VICTOR M., a minor.
In the Matter of the Interest O/'DERIK E., a minor.
[1] Appeal - Decisions Reviewable - Moot Questions - What Constitutes. A case on appeal is moot if the appellate court can no longer provide effective relief to the appellant.
[2] Appeal - Decisions Reviewable - Moot Questions - Test. An appellate court may decide a moot case if it involves a matter of continuing and substantial public interest. Whether an issue involves a sufficient public interest depends upon (1) the public or private nature of the question presented, (2) the desirability of an authoritative determination to provide future guidance, and (3) the likelihood that the question will recur.
[3] Contempt - Character - Determination. The character of a contempt sanction as criminal or civil depends upon the substance of the proceeding and the nature of the relief to be afforded. A remedial sanction is imposed for civil contempt; a punitive sanction is imposed for criminal contempt.
[4] Contempt - Criminal Contempt - What Constitutes. A contempt sanction is criminal if it is imposed to punish past
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contempt of court, results in a determinate sentence, and does not afford the contemnor an opportunity to purge the contempt by performing an act within the contemnor's power to perform.
[6] Contempt - Civil Contempt - Opportunity To Purge - Necessity. An order of remedial civil contempt must contain a purge clause under which the contemnor has the ability to avoid a finding of contempt and/or to avoid incarceration for noncompliance.
[6] Statutes - Construction - Legislative Intent - In General. A court interprets a statute to give effect to the Legislature's purpose in enacting the statute.
[7] Juveniles - Parental Relationship - Care and Custody - Family Reconciliation Act - Disobedience of Court Order - Enforcement - Criminal Contempt. Notwithstanding language in RCW 13.32A.250 referring to "civil" contempt and "remedial" sanctions for the violation of at-risk youth disposition orders, when a contempt order entered by a court for the violation of an at-risk youth disposition order entered under the Family Reconciliation Act (Chapter 13.32ARCW) imposes a determinate term of confinement and does not contain a purge clause, the contempt is criminal, not civil.
[8] Juveniles - Parental Relationship - Care and Custody - Family Reconciliation Act - Disobedience of Court Order - Enforcement - Incorporation of Contempt Statute. The rules set forth in RCW 7.21, the general contempt statute, and the case law interpreting it are incorporated by reference in RCW 13.32A.250 of the Family Reconciliation Act, which states that the violation of an at-risk youth disposition order constitutes contempt of court "as provided in RCW 7.21.030(2)(e)."
[8] Contempt - Criminal Contempt - Information - Necessity. A punitive sanction may not be imposed for contempt of court unless the proceeding is initiated by the filing of a criminal information.
[10] Juveniles - Parental Relationship - Care and Custody - Family Reconciliation Act - Disobedience of Court Order - Enforcement - Punitive Sanction - Criminal Information. A determinate punitive sanction may not be imposed on a juvenile who violates an at-risk youth disposition order entered under the Family Reconciliation Act (RCW 13.32A) unless the proceeding was initiated by the filing of a criminal information
.Nature of Action: Actions to enforce disposition orders that had been entered against minors found to be at-risk youths in prior proceedings.
Superior Court: The Superior Court for Yakima County, Nos. 98-7-01261-4, 98-7-01228-2, and 98-7-01328-9, Robert
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W. Inouye, J. Pro Tem., on October 7 and 28, 1998, and January 20, 1999, entered orders holding the youths in contempt of court and imposing terms of confinement as a sanction for the contempt.
Court of Appeals: Holding that the terms of confinement were punitive in nature, that the contempt was criminal, and that the proceedings were invalid because the State had failed to file an information or complaint charging the youths with contempt of court, the court reverses the orders.
David L. Trick, for appellants.
Billy K., pro se.
April M., pro se. Nancy E., pro se.
Christine 0. Gregoire, Attorney General, and Stephen H. Hassett and Sheila M. Huber, Assistants, on behalf of the State, amicus curiae.
KATO, J. - The court found the three minors here to be at-risk youths and entered a disposition order as to each. The minors violated their respective orders and were held in contempt. The court imposed a term of confinement on each minor as a sanction for the contempt. Claiming the court lacked the authority to impose confinement and violated their due process rights by doing so, the minors appeal.
FACTS
Rebecca K.: On September 2, 1998, the court found Rebecca K. to be an at-risk youth as defined in RCW 13.32A.030(2)(a) and (b). On September 23, the court
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entered a disposition order requiring her to do certain things. The court also found she had violated an earlier order and sentenced her to four days in detention with three days suspended.
Rebecca admitted violating the order. The court held her in contempt and imposed 11 days of detention with 3 days suspended.«1»
Victor M.: On August 5, 1998, the court found that Victor M. was an at-risk youth and entered an order requiring him to do several things. On August 12, a social worker claimed he had violated the terms of the order. The court found Victor had violated the order, held him in contempt, and imposed four days in detention with three days suspended. The court also entered a disposition order requiring him to comply with certain conditions.
On October 28, the court held a review hearing at which Victor's mother alleged he had failed to comply with the disposition order. The court treated her allegations as a motion for contempt. Victor admitted some, but denied the majority, of her allegations. The court found him in contempt and imposed a total of 10 days of detention, 7 days plus the prior 3 suspended days. Of the 10-day sentence, 8 days were suspended.«2»
Derik E.: On October 14, 1998, the court found Derik E. to be an at-risk youth. On November 18, the court entered a disposition order requiring him to do certain things.
On January 8, 1999, Derik's mother filed a motion and order to show cause that he had violated the November 18 disposition order. He was brought to the show cause hearing from detention where he was serving time for violating a truancy order. The court found he had violated the disposition order and imposed three days in detention. This sentence was consecutive to the sentence imposed for his
«1» Rebecca's at-risk youth petition was dismissed on March 10, 1999.
«2» Victor's at-risk youth petition was dismissed on March 31, 1999.
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violation of the truancy order.«3»
DISCUSSION
[1] The minors contend the court did not have authority to impose the sanction it did and violated their due process rights. Each at-risk youth petition has been dismissed and each minor has served his or her term of confinement. Therefore, the court can no longer provide effective relief and the issue is moot. See Washam v. Pierce County Democratic Cent. Comm., 69 Wn. App. 453, 458, 849 P.2d 1229 (1993), review denied, 123 Wn.2d 1006 (1994).
[2] As a general rule, appellate courts will not decide moot questions or abstract propositions. Id. at 457. But "a moot case may be decided if it involves a matter of continuing and substantial public interest." In re A.D.F., 88 Wn. App. 21, 24, 943 P.2d 689 (1997). "In determining whether an issue involves a sufficient public interest, we consider the public or private nature of the question, the need for future guidance provided by an authoritative determination, and the likelihood of recurrence." Id.
The question presented meets these criteria for nonetheless deciding a moot case. The public nature of the issue and the likelihood of recurrence are demonstrated by these cases, which involve the same question and indicate the need for future guidance. We thus choose to decide the issue presented in these moot cases.
The minors ask this court to review the contempt provision of the at-risk youth statute. To address the specific nature of their inquiry, it is helpful to review the general definitions of contempt. A person who intentionally disobeys a lawful court order is in contempt of court. RCW 7.21.010(l)(b). The current contempt statutes define contemptuous conduct without distinguishing between civil and criminal contempt; rather, a distinction is drawn between remedial and punitive sanctions. State v. Hobble, 126
«3» Derik's at-risk youth petition was dismissed on May 5, 1999.
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Wn.2d 283, 292, 892 P.2d 85 (1995).
[3-5] RCW 7.21.010(3) defines a remedial sanction as "a sanction 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." 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). A remedial sanction is imposed for civil contempt, while a punitive sanction is imposed for criminal contempt. State v. Buckley, 83 Wn. App. 707, 711, 924 P.2d 40 (1996).
"In order to determine [if] a contempt sanction is civil or criminal, courts look to the substance of the proceeding and the nature of the relief the proceeding will afford." State ex rel. Shafer v. Bloomer, 94 Wn. App. 246, 251, 973 P.2d 1062 (1999).
If the purpose of the contempt sanction is punitive and results in a determinate jail sentence, with no opportunity for the contemnor to purge himself of the contempt, it is criminal. If the purpose of the sanction is to coerce compliance with a lawful court order, and a contemnor is jailed only so long as he fails to comply with such order, then the contempt is civil.
In re Personal Restraint of King, 110 Wn.2d 793, 799, 756 P.2d 1303 (1988). "An order of remedial civil contempt must contain a purge clause under which a contemnor has the ability to avoid a finding of contempt and/or incarceration for noncompliance." Shafer, 94 Wn. App. at 253.
The minors contest the contempt orders imposed under the at-risk youth statute. In 1997, Division One of the Court of Appeals addressed whether the contempt provision of a former version of the at-risk youth statute was civil or criminal. A.D.F., 88 Wn. App. 21. Former RCW 13.32A.250(2), (3) (1996) provided:
(2) Failure by a party to comply with an order entered under this chapter is a contempt of court as provided in chapter 7.21 RCW, subject to the limitations of subsection (3) of this section.
(3) The court may impose a fine of up to one hundred dollars
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and confinement for up to seven days, or both for contempt of court under this section.
A.D.F. was found in civil contempt for disobeying an at-risk youth order. Because the contempt order did not contain a purge clause, she argued that the contempt was criminal rather than civil. As a result, her due process rights were violated since she was convicted and punished for criminal contempt without being properly charged. A.D.F., 88 Wn. App. at 23. Division One found that the trial court had imposed a determinate sentence based upon A.D.F.'s past violations of its "at risk youth order" without providing her an opportunity to purge the contempt. The court's sanction was thus punitive and based upon a finding of criminal contempt. The court reversed the order of contempt because the proceedings were not initiated as required by due process. Id. at 26.
In 1998, the Legislature amended RCW 13.32A.250(2) and (3):
(2) Failure by a party to comply with an order entered under this chapter is a civil contempt of court as provided in RCW 7.21.030(2)(e), subject to the limitations of subsection (3) of this section.
(3) The court may impose remedial sanctions including a fine of up to one hundred dollars and confinement for up to seven days, or both for contempt of court under this section.
RCW 7.21.030(2)(e) 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:
(e) In cases under chapters 13.32A, 13.34, and 28A.225 RCW, commitment to juvenile detention for a period of time not to exceed seven days. This sanction may be imposed in addition to, or as an alternative to, any other remedial sanction authorized by this chapter. This remedy is specifically determined to be a remedial sanction.
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The new statute specifically states that an order of contempt for disobeying an at-risk youth order is civil contempt and any sanction is remedial. The minors argue that despite the Legislature's specific reference to this sanction as remedial and contempt as civil, the court's orders punished them for past violations rather than coerced future performance and thereby constituted criminal contempt. They allege this action was unconstitutional because the contempt proceedings were not initiated in a manner which comported with due process.
[6] When interpreting a statute, the court should give effect to the purpose of the Legislature. King County v. Taxpayers of King County, 104 Wn.2d 1, 5, 700 P.2d 1143 (1985). The intent behind the 1998 amendment was indicated in Laws of 1998, ch. 296, § 35:
The legislature finds that an essential component of the children in need of services, dependency, and truancy laws is the use of juvenile detentions. As chapter 7.21 RCW is currently written, courts may not order detention time without a criminal charge being filed. It is the intent of the legislature to avoid the bringing of criminal charges against youth who need the guidance of the court rather than its punishment. The legislature further finds that ordering a child placed in detention is a remedial action, not a punitive one. Since the legislature finds that the state is required to provide instruction to children in detention, use of the courts' contempt powers is an effective means for furthering the education and protection of these children. Thus, it is the intent of the legislature to authorize a limited sanction of time in juvenile detention independent of chapter 7.21 RCW for failure to comply with court orders in truancy, child in need of services, at-risk youth and dependency cases for the sole purpose of providing the courts with the tools necessary to enforce orders in these limited types of cases because other statutory contempt remedies are inadequate.
The Legislature intended that any sanction imposed under RCW 13.32A.250(2) and (3) be remedial and therefore civil contempt.
[7-10] The minors challenge the sanction imposed by the
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court. The problem here is not the statute, but the manner in which the court imposed the sanctions. In each case, the court imposed a determinate sentence, without a purge clause. The sentences were also for past violations. The purpose and nature of each sanction was punitive and thus constituted criminal contempt.
The State argues that the Legislature's intent in enacting the 1998 amendments nonetheless permits a court to hold minors in civil contempt and to impose determinate sentences. We disagree. The 1998 amendments to RCW 13.32A.250(2) and (3) were merely cosmetic. The Legislature inserted the word "civil" before contempt and "remedial" before sanction. But the statute specifically refers to RCW 7.21, the general contempt statute, so the rules and case law interpreting it are applicable. The trial court here imposed a determinate sentence, without a purge clause, on each minor because he or she had violated a court order. This is a punitive sanction. The fact that the Legislature termed it remedial does not change the nature of the sanction itself, no matter what it is called.
The holding in A.D.F. still applies and governs the outcome of these cases. In A.D.F., the court stated:
In A.D.F.'s case, the court imposed a determinate period of detention based on past violations of its "at risk youth" order without providing her an opportunity to purge the contempt. Under the above definitions, the court's sanction was punitive and based on a finding of criminal contempt.
A.D.F., 88 Wn. App. at 26. Criminal contempt proceedings must be initiated by a criminal information filed by the State in order to comply with due process. Id. The sanctions imposed by the court in each of these cases were punitive and the contempt was criminal. Because a parent rather than the State initiated the proceedings, the minors' due process rights were violated. See id. The orders of contempt and the sanctions imposed are reversed.
SWEENEY, A.C.J., and SCHULTHEIS, J., concur.