are authorized to impose two types of statutory sanctions,
remedial or punitive. Remedial sanctions may be summarily
imposed for the purpose of coercing a person to perform an
act that is yet in the person's power to perform.
Punitive sanctions, however, are meant to punish a past
contempt of court. By statute, unless the contemptuous act
occurred in the court's presence, courts may not
summarily impose punitive sanctions. We hold that where a
court imposes summary sanctions for contempt that did not
occur in its presence, statutory sanctions are limited to
determining whether monetary sanctions are remedial, we focus
on the date the trial court made its contempt finding, even
if the finding was not then reduced to a written order or
judgment. Only monetary sanctions that accrue from the date
of the contempt finding are remedial, because only to this
extent is the act that the court seeks to coerce within the
person's power to perform.
State must consent to being held to interest on its debts,
including postjudgment interest on monetary statutory
sanctions. A waiver of sovereign immunity for purposes of
postjudgment interest can be either express or implied. A
waiver may be implied in those situations where the
legislature has enacted a statute that provides for
comprehensive relief. By enacting the contempt of court
statute, chapter 7.21 RCW, the legislature authorized full
compensation to parties injured by contemptuous acts. We,
therefore, hold that the State has impliedly waived its
sovereign immunity from postjudgment interest on statutory
the trial court summarily imposed monetary sanctions against
the Department of Social and Health Services (DSHS) for not
timely completing mental health evaluations for criminal
defendants. We reverse the sanctions only to the extent they
are punitive, but affirm the award of postjudgment interest.
parties agree that the facts associated with Anthony
Sims's appeal serve as a template for the other appeals.
We limit our discussion of the facts accordingly.
State charged Mr. Sims with second degree burglary. A
question concerning Mr. Sims's competency arose, and on
October 14, 2014, the criminal case was stayed pending a
competency evaluation. On November 13, Mr. Sims filed a
motion to compel his competency evaluation. On November 20,
the trial court heard argument concerning the motion. During
argument, DSHS noted that Mr. Sims was and always had been
scheduled to have his evaluation on December 15. At the
conclusion of the November 20 argument, the trial court
ordered DSHS to perform Mr. Sims's competency evaluation
by December 2. The trial court's order was not reduced to
November 26, 2014, Mr. Sims filed a motion asking the trial
court to order DSHS to show cause for its failure to schedule
his evaluation in compliance with the court's November 20
order. Mr. Sims asked the trial court to impose remedial
sanctions of $500 per day against DSHS for every day past
December 2 until he received his competency evaluation.
December 10, DSHS filed a response. In addition to other
objections, DSHS argued that portions of the requested
sanctions were retroactive punitive sanctions and, thus, were
unable to be adjudicated in the current action.
December 11 and 12, the trial court heard Mr. Sims's
motion together with motions filed by five other similarly
situated defendants. On December 12, the trial court orally
ruled that the sanctions would be $200 per day from the
ordered deadline until the contempt was purged by DSHS
completing Mr. Sims's competency evaluation. The court
explained that the sanctions were remedial sanctions ordered
in accordance with RCW 7.21.030, rather than in accordance
with its inherent authority. The court directed the funds to
go to the registry of the court, pending a later final
disposition; but compensation to the defendants for actual
losses was not contemplated. Mr. Sims's competency
evaluation occurred as originally scheduled, on December 15,
trial court did not enter a written contempt order with
findings until January 16, 2015. The written order discussed
the court's reasoning that high level governmental and
budgetary decisions drove the intentional violation of the
court's order, by way of lack of resources for DSHS
services in eastern Washington. The court found DSHS in
contempt for violating its November 20 order, and sanctioned
DSHS $200 per day from December 2 through December 14.
trial court held several other hearings in a similar fashion,
where groups of defendants whose competency evaluations were
not completed timely sought sanctions. At the conclusion of
each hearing, the court-usually weeks later-entered a written
order of contempt supported by findings.
principal amounts of the sanctions were set forth in 28
individual orders of contempt and total $337, 500. Each
judgment also includes interest at 12 percent per year.
timely appealed the orders imposing sanctions and the
judgments in each of the 26 cases. We consolidated the
appeals because they all presented similar legal issues.
THE EXTENT THE SANCTIONS ARE PUNITIVE AND WERE SUMMARILY
IMPOSED, THEY MUST BE STRICKEN
first argues that the sanctions must be stricken to the
extent they are punitive. We agree with this portion of
The trial court did not comply with the procedures for
imposing punitive sanctions and, therefore, it had
no authority to impose such sanctions
court reviews de novo a trial court's authority to impose
contempt sanctions. In re Dependency of A.K., 162
Wn.2d 632, 644, 174 P.3d 11 (2007). There are two forms of
statutory contempt sanctions, remedial and punitive. A
remedial sanction is "a sanction imposed for coercing
performance when the contempt consists of the omission or
refusal to perform an act that is yet in the person's
power to perform." RCW 7.21.010(3). A remedial sanction
is sometimes referred to as coercive, because the goal of the
sanction is to coerce a party to comply with a court order.
In re Pers. Restraint of King, 110 Wn.2d 793, 800,
756 P.2d 1303 (1988). A remedial sanction must contain a
purge clause or it loses its coercive character and becomes
punitive. In re Rapid Settlements, Ltd., 189 Wn.App.
584, 613, 359 P.3d 823 (2015), review denied, 185
Wn.2d 1020, 369 P.3d 500 (2016).
punitive sanction is "a sanction imposed to punish a
past contempt of court for the purpose of upholding the
authority of the court." RCW 7.21.010(2). Such sanctions
do not afford the party an opportunity to purge the contempt.
State v. Buckley, 83 Wn.App. 707, 711, 924 P.2d 40
(1996). A court may punish the past contemptuous act with a
fine and/or imprisonment. RCW 7.21.050(2). Because of due
process concerns, RCW 7.21.040 provides a procedure to ensure
that a person facing such a sanction actually committed the
contemptuous act. In re M.B., 101 Wn.App. 425, 453,
3 P.3d 780 (2000). Unless the contemptuous act occurred in
the presence of a judge certifying the same, the procedure
requires the county prosecutor or city attorney to file a
complaint or an information, and for a trial to occur before
a neutral judge. RCW 7.21.040(2), .050(1); see also In re
Mowery, 141 Wn.App. 263, 276, 169 P.3d 835 (2007).
the trial court did not afford DSHS the procedures required
under RCW 7.21.040(2). For this reason, the trial court was
without authority to impose punitive sanctions.
respondents put forth various arguments, mostly citing
federal authorities, why the sanctions should be deemed
remedial. For instance, they discuss the intent of the
sanctions, the need for sanctions against DSHS, and the
arguable compensatory nature of the sanctions. We are
unpersuaded by their arguments.
legislature defined the distinction between remedial and
punitive sanctions. The legislature defined a remedial
sanction as a sanction imposed "for the purpose of
coercing performance when the contempt consists
of... an act that is yet in the person's
power to perform." RCW 7.21.010(3) (emphasis
added). When the trial court, for example, found DSHS in
contempt on December 12, 2014, DSHS could not perform Mr.
Sims's competency evaluation any earlier than that date.
To the extent the sanctions punish DSHS for its failure to
perform Mr. Sims's competency evaluation prior to
December 12, 2014, those sanctions were punitive and we order
the trial court to strike them
RCW 7.21.030(2)(b) authorizes a limited forfeiture for each
day the contempt of court ...