STATE OF WASHINGTON, Respondent v. BRUCE DEYMON PRICE, Defendant, and GARY CLOWER, Appellant. STATE OF WASHINGTON, Respondent v. BRUCE DEYMON PRICE, Defendant, and GARY CLOWER, Appellant.

Nos. 27544-9-II, 27614-3-II.The Court of Appeals of Washington, Division Two.
Filed: August 9, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from Superior Court of Pierce County, No. 001050650, Hon. Terry D. Sebring, June 20, 2001, Judgment or order under review.

Counsel for Appellant(s), Montell E. Hester, Law Offices of Monte E Hester, 1008 South Yakima Avenue, Suite 302, Tacoma, WA 98405-4850.

Wayne C. Fricke, Law Offices of Monte E. Hester, 1008 S Yakima Ave Ste 302, Tacoma, WA 98405.

Counsel for Respondent(s), Joseph F. Quinn, Attorney At Law, P.O. Box 98846, Tacoma, WA 98498-0846.

J. ROBIN HUNT, C.J.

Attorney Gary M. Clower appeals a $400 civil sanction that the trial court imposed when he and his client, Bruce Deymon Price, did not appear for a scheduled sentencing. Clower believed that his submission of a written request for continuance of Price’s sentencing, to which the State assented, was sufficient to postpone the scheduled sentencing and comported with Pierce County Superior Court’s customary practice. Clower argues that the trial court erred in (1) imposing a punitive sanction without conducting a full hearing, (2) denying his request for a continuance, and (3) failing to disqualify itself. Holding that the trial court had no authority to sanction Clower under the facts here, we reverse and dismiss.

FACTS
On June 13, 2001, Price, represented by Clower, was scheduled to appear before the trial court for sentencing. Clower and Price appeared in the assigned courtroom and, together with the State, signed and submitted a written request to continue the sentencing date. Clower believed that this request was sufficient to achieve a continuance and followed the accepted practice in Pierce County.

When the trial court called the case for sentencing at 1:30 p.m., Clower and Price were not present. The trial court denied the continuance, issued a bench warrant for Price, and ordered Clower to appear for a hearing on Wednesday, June 20, 2001, at 1:30 p.m., at which the court would `consider sanctions and/or contempt of court charges against you personally . . . regarding your actions.’ CP at 23. The court did not similarly order the State to appear for a sanction hearing.

On June 19, 2001, Monte E. Hester, representing Clower on the sanction matter, requested `a continuance to Tuesday, July 3rd at 1:30 p.m., or sometime that week in order to prepare for the case.’ CP at 27. The next day, on June 20, 2001, the scheduled hearing date, Clower asked the court for time to prepare, specifically to gather attorney witnesses to attest to the customary Pierce County practice for obtaining agreed continuances; his intent was to show that he had not disrespected the court intentionally.

The court denied the continuance, stating, `I get to deal with a lot of continuances, and I don’t think we want to get into that.’ RP at 6.

The court also recited its interpretation of the June 13, 2000 events:

There was apparently paperwork dropped off with the arraignment deputy or sentencing deputy from the prosecutor’s office in open court in front of me with a new sentencing date set on both of these matters for July 11th at 1:30. It was signed by the defendant and signed by Mr. Clower and signed by, I think Ms. Tratnik, although I should recognize her signature. I think I recognize her bar number, which is . . . legible.
It’s 25576. There was nothing written on the order that gave any reason for why it was being set over. Mr. Clower was in the courtroom; I saw him leave. All of this occurred in my presence. Obviously I didn’t know what was on the order.
I didn’t discover the order until I took the afternoon break . . . and went off the bench. It apparently had been requested to be set over. I had no knowledge of it. All of this occurred in open court.
. . . .
So I’m going to proceed. . . .

RP at 6, 7 (emphasis added).

Again, Clower asked for time to prepare so he could address the court’s concerns in a meaningful way. Clower, citing State v. Winthrop, 148 Wn. 526, 269 P. 793 (1928), argued that the facts did not fit under RCW 7.21.050:

Hester: `The absence of an attorney, a juryman, a witness, an officer including even a member of the bench himself, from the courtroom at the precise time due there may be susceptible of many innocent explanations. Each and every of these absences are of a kind and, hence on a level, and none of these explanations are within the mere eyesight or earshot of the court of ordinary mortal endowments. These explanations can only come to the court by evidence aliunde his eye or ear, so that it would seem that absence ought not to be dealt with as essentially in the same class as things that happen in view or hearing of the Court.’
Court: Well, counsel, at this point I don’t know what I’m going to determine in terms of whether contempt occurred or not. . . .
Hester: I think the court has all of those authorities [to give sanctions], but I don’t think the court can create its own process when the statute speaks otherwise, and that’s why I was going from [RCW 7.21.050
to RCW 7.21.040], Your Honor, which says specifically if it’s not the type of act that fits within the court’s presence. . . .
. . . .
[I]f a sanction is intended to be punitive, Your Honor, and also it’s the kind of thing that impugns the reputation of the lawyer, then it shouldn’t be approached any other way. . . . There should be specific charges that are made, and there should be an opportunity to have a hearing and be represented by a lawyer that’s effectively prepared to deal with this, as is suggested in Winthrop [148 Wn. at 531].
. . . .
My only role here is to have an opportunity to get information to provide to the Court to demonstrate clearly what happened, and I’m not in a position to do that this short time [three days] that I have been aware of the issues that are announced in your letter, so I’m respectfully requesting that opportunity.

RP 8-11. Again, the court denied the request.

Hester then requested a moment to talk with Clower before proceeding.

The court denied this request as well. Hester spoke with Clower anyway. Hester then asked how the court was planning to proceed. The court responded that it wanted to know why Clower had left. The court inquired further, stating:

Let me make sure I’m understanding. You’re saying that the standard of practice in my courtroom or other judges’ courtrooms is to be able to appear on a sentencing date with your client, be able to fill out an order that sets the matter over to another date with no explanation, be able to leave that with the prosecutor in the courtroom, direct your client to leave before the Court has had any opportunity to review the order or talk to the attorney or look at the court file or anything? You’re telling me that that is the standard of practice that happens routinely in superior court?

RP at 14, 15. To which Hester answered, `That’s my understanding, Your Honor.’ RP at 15.

The court asserted that such practice does not happen in the courts. Hester asserted that it does and he asked at least 12 times for the opportunity to present attorney witnesses to prove this practice existed.

The court refused. Nonetheless, Hester continued to emphasize that Clower did not intend to offend the court.

Without finding Clower in contempt, the court summarily found that Clower had violated its order, had left the courtroom without its approval, and had also directed his client to leave without the court’s approval.

The court noted in its oral ruling that it `didn’t find a judge who [was] going to tell [him] that that’s the practice.’ RP at 31.

Again requesting an opportunity to present witnesses, Clower addressed the court: `I think that there are witnesses available who would say that that has gone on in this county for quite a long time with respect to’ sentencing. RP at 31. The court then stated:

I’m not going to find you in contempt, but I am going to sanction you. I’m going to impose $400. In terms of the appropriate sanction, I don’t know what your motivation was. It’s hard for me to understand that you thought this was the appropriate thing to do.
I’m also imposing that amount because in terms of any regrets for what you have done, I’m basically having to pull them out of you. I’ll tell you from my perspective that I did issue the bench warrant for your client because I felt I had no other way to deal with it and you had instructed your client to leave.

RP at 33 (emphasis added).

On June 22, 2001, Clower filed a motion to vacate. On June 28, 2001, Clower submitted 46 attorneys’ declarations in support of his motion to vacate, which stated:

I am an attorney in Pierce County, Washington. I have practiced criminal law in this county for years. In my experience, it is customary and quite common for prosecution and defense lawyers in this county to set over a sentencing by agreement of the parties by preparing a scheduling order, obtaining the signature of all counsel and the defendant, and leaving the order in the criminal department to be signed by the judge without appearance by the parties in front of the judge. I am aware of no rule in this county which forbids this practice.

CP at 37-38.

The hearing on the order to vacate was set for July 3, 2001. On June 28, 2001, the court wrote Clower a letter, continuing the hearing on the motion to vacate to July 10, 2001, to give Clower an opportunity to answer 17 questions, some with sub-questions, totaling 43 questions,[1]
to be filed with the court by 4:00 p.m. on July 9, 2001. On June 29, 2001, Clower withdrew the motion to vacate sanctions and filed this appeal.

ANALYSIS I. Standard of Review
Punishment for contempt of court, including sanctions, lies within the sound discretion of the trial court, which we will not disturb absent an abuse of that discretion. State v. Dugan, 96 Wn. App. 346, 351, 979 P.2d 885 (1999). A trial court abuses its discretion when it exercises it in a manifestly unreasonable manner or gives untenable grounds or reasons. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615
(1995). We find here that the trial court did abuse its discretion in sanctioning Clower.

II. Court Sanctions
In general, there are two types of contempt: (1) criminal contempt, prosecuted under RCW 9.92.040; and (2) civil contempt, initiated either under RCW 7.21.010 or under the long-exercised, inherent power of constitutional courts.[2] Regardless of whether the court uses its statutory or inherent power, the court uses contempt either to coerce or to punish. Nielsen, 38 Wn. App. at 588. When the primary purpose is to coerce a party to comply, the contempt proceeding takes on a civil character. Keller v. Keller, 52 Wn.2d 84, 88-89, 323 P.2d 231 (1958); Heiner, 29 Wn. App. 193.

When the primary purpose is to punish, the proceeding is fundamentally criminal in nature. Heiner, 29 Wn. App. at 197. Criminal contempt is not in issue here. Rather, we focus on the variants of civil contempt.

RCW 7.21.010 civil contempt proceedings involve imposition of a `[p]unitive sanction’ `to punish a past contempt of court for the purpose of upholding the authority of the court.’ RCW 7.21.010(2). Under the statute, a court may impose a `[r]emedial sanction’ to `coerc[e] 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 court may also impose non-statutory civil contempt sanctions (a) to punish summarily contemptuous conduct occurring in the court’s presence, (b) to enforce orders or judgments in aid of the court’s jurisdiction, and (c) to punish violations of orders or judgments. Keller, 52 Wn.2d at 86.

Clower argues that the trial court erred in holding him in contempt under RCW 7.21.040 because it applied a punitive sanction without conducting a full hearing. The State counters that the trial court here could properly hold Clower in contempt and impose a remedial sanction under both statutory and non-statutory civil contempt authority. Clower responds that the trial court did not seek to exercise its inherent power, nor would it have been justified in so doing because its statutory remedies were adequate. We address three civil contempt methods below.

A. Summary Contempt under RCW 7.21.050
RCW 7.21.050[3] provides for summary imposition of sanctions, without prior notice and hearing, for contempt[4] committed in the courtroom and authorizes both punitive and remedial sanctions. A court may impose summary sanctions only `if the judge certifies that he or she saw or heard the contempt’ and `only for the purpose of preserving order in the court and protecting the authority and dignity of the court.’ RCW 7.21.050(1).

In other words, the contempt must occur in the judge’s presence.

Here, the alleged contempt did not occur in the trial court’s presence. Although the trial court judge had seen Clower leave the courtroom earlier, he did not discover that the matter `had been requested to be set over’ `until [he] took the afternoon break . . . and went off the bench.’ In his own words, `I had no knowledge of it.’ RP at 6, 7. Moreover, attorneys enter and leave courtrooms continuously throughout the day. That an attorney absented himself from the courtroom before his case is called is not contempt in the court’s presence. Winthrop, 148 Wn. 526.

B. Hearing and Contempt under RCW 7.21.040
Where contempt has occurred outside the view and presence of the court, the contempt must be shown by an affidavit of someone who has testimonial knowledge of facts constituting contempt. RCW 7.21.010
7.21.050. The absence of a party or an attorney is, of course, obvious to the court. But the court does not yet know the reason for the absence, and the facts, once known, may excuse the apparent contempt. Consequently, the contemnor is entitled to be heard and to produce his witness or other evidence. State v. Hatten, 70 Wn.2d 618, 621, 425 P.2d 7
(1967). See also RCW 7.21.040 (prescribing procedures that must be used before imposing a punitive sanction); State v. Hobble, 126 Wn.2d 283, 300, 892 P.2d 85 (1995) (if a contempt order is punitive, the contemnor is entitled to the opportunity to be tried by a jury). The trial court did not follow this procedure here.

Because the contempt here was `indirect,’[5] occurring out of the court’s presence, the judge had no personal knowledge of all the essential elements of contempt and it was not in a position to evaluate the circumstances that evoked the allegedly contemptuous conduct. See Bloom v. State of Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522
(1968); In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925). Thus, due process required that Clower be given notice, a reasonable time to prepare a defense, and a hearing. Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974); Bloom, 391 U.S. 194; Lee, 720 F.2d 1049.

Here, the trial court apparently conducted its own ex parte poll of other judges concerning the alleged practice and denied Clower’s repeated requests for a continuance to contact witnesses to explain the basis for Clower’s belief as to the accepted, non-contumacious practice for obtaining agreed continuances in Pierce County. The trial court even rejected Clower’s request for a brief recess to enable Clower to consult with his attorney before attempting to mount a defense in what was essentially a summary proceeding.[6]

Although we recognize the need for a trial court to have the necessary tools to manage its courtroom and to expedite the resolution of cases, contempt sanctions are not an available tool absent a proper hearing. The court here abused its discretion in denying Clower a proper hearing to determine whether his actions amounted to contempt.

Here, the court stated that it was not holding Clower in contempt but, rather, was only assigning `sanctions,’ $400, apparently under the mistaken belief that due process and a hearing were not required. Nonetheless, the court exercised its contempt power to punish Clower for past behavior committed outside its presence; but the time had passed for using its contempt power to coerce compliance with a court order or procedure. `A party charged with contempt has the same right to be heard in his defense as a party charged with any other offense where life, liberty, or property is involved.’ State v. Nicoll, 40 Wn. 517, 524, 82 P. 895 (1905) (contempt committed out of the court’s presence). See also Hatten, 70 Wn.2d at 622. Here, the court abused its discretion in denying Clower a reasonable opportunity to prepare a defense or explanation and to be heard.

C. Inherent Contempt Power
Courts should exercise their inherent contempt power with restraint and refrain from using it unless the statutory contempt power is inadequate. Heiner, 29 Wn. App. 193. In other words, a court may resort to its inherent power only if `there is no applicable contempt statute or it makes a specific finding that statutory remedies are inadequate.’ In re Marriage of Farr, 87 Wn. App. 177, 187, 940 P.2d 679 (1997). This was not the case here.

Here, the court’s statutory contempt power under RCW 7.21.040 was adequate to address the alleged contempt that occurred outside its presence. Although the court could not impose summary contempt sanctions under RCW 7.21.050(1), it could have imposed sanctions under RCW 7.21.040
after first providing notice and opportunity for a hearing. Because the court did not use this procedure or find that its statutory power was inadequate, there was no justification for the court’s exercise of its inherent contempt power, had it attempted to do so.

III. Conclusion
The court denied Clower his due process rights to a hearing under RCW 7.21.040, and it lacked the power to impose contempt sanctions summarily under RCW 7.21.050 for conduct that occurred outside its presence. The court did not purport to exercise its inherent statutory contempt power, nor could it have exercised such inherent power absent a finding that its statutory powers were inadequate.

We hold that the trial court had no authority to impose sanctions summarily against Clower under the facts here. Accordingly, we reverse and dismiss the trial court’s imposition of sanctions against Clower.

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 pursuant to RCW 2.06.040, it is so ordered.

WE CONCUR: SEINFELD, J., ARMSTRONG, J.

[1] The court’s written questions to Clower were as follows:

1. What is the Attorney standard of practice (Attorney custom) for setting over Criminal sentencing in Pierce County? If you prefer to describe it in other words, do so. Then answer the following questions, substituting your terms for standard of practice or custom.
2. When did that practice develop? Give specific date: month and year.
What number of attorneys understand the answer to question #1 to be the practice? How many are Deputy Prosecuting Attorneys? Defense Attorneys? Is there a specific number of attorneys who must agree it is a practice before it becomes a practice or custom? How is the agreement reached or communicated?
3. Which Judges allowed the practice? Give names of specific Judges.
4. Which Judges did not allow the practice? Give names of specific Judges.
5. Were there any exceptions to the practice or standard? If so, describe in detail. What Judges made exceptions to the practice or standard?
6. What is the custom or practice of Judge Sebring?
7. Under the practice, how did Judges indicate they were not agreeing to continue or set over the sentencing?
8. How were continuances of sentencings handled by Judges who did not follow the practice or custom of attorneys? List the Judges and their practice.
9. How many times does something have to occur before it becomes a standard of practice? A custom? Over what period of time does the custom or practice have to occur? How many Judges have to engage in the practice or custom before it becomes a practice or custom? How many attorneys have to engage in the practice or custom?
10. Are all judges bound to follow the practice of a few Judges? If answer is yes, cite authority in statute or caselaw [sic]. If the practice is by 9 of the 21 Judges; do all judges have to follow the practice? If the practice is by 11 of the 21 Judges, do all judges have to follow the practice? If the practice is by 19 of the 21 Judges, do the 2 remaining Judges have to follow the practice?
11. How do judges learn about the attorney’s standard of practice or custom? Are they written down anywhere? Where? Do the court rules allow attorneys to establish customs or practices? Do the statutes? Caselaw [sic]?
12. How do judges change the attorney’s standard of practice or custom?
13. What other attorney standards of practice or customs exist in Pierce County that are in effect currently on criminal cases? Answer questions 2 through 6 above for each additional attorney practice or custom, and list as a subsection of this question.
14. Do Judges have the authority to impose sanctions? When? What procedure is required? What type of notice must be given? Cite case law, rules or statutes or other authority for your answer. How was it not followed in this case?
15. What is the standard of practice or custom for Attorneys setting over (continuing) Pleas of Guilty?
16. What is the standard of practice or custom for Attorneys for appearing at the scheduled time on trial dates? Stated differently: Are attorneys required to be present at the time reflected on the Continuance or Scheduling Order? On Pleas of guilty in C.D. 1, C.D. 2, or CDPJ? Are they the same for all Judges? If they are not the same for all Judges, list the Judges who do not require attorneys to be on time. List the Judges who do require attorneys to be on time.
17. What is the standard of practice or custom for continuance of criminal trial dates? Do they have to be presented to the Judge before an attorney and/or the defendant can leave?

CP at 139-40.

[2] The power to censure contemptuous behavior is inherent in a court of general jurisdiction. Nielsen v. Nielsen, 38 Wn. App. 586, 587-588, 687 P.2d 877 (1984) (citing State v. Estill, 55 Wn.2d 576, 349 P.2d 210
(1960); State v. Heiner, 29 Wn. App. 193, 198, 627 P.2d 983 (1981).
[3] RCW 7.21.050 (1) provides:

(1) The judge presiding in an action or proceeding may summarily impose either a remedial or punitive sanction authorized by this chapter upon a person who commits a contempt of court within the courtroom if the judge certifies that he or she saw or heard the contempt. The judge shall impose the sanctions immediately after the contempt of court or at the end of the proceeding and only for the purpose of preserving order in the court and protecting the authority and dignity of the court. The person committing the contempt of court shall be given an opportunity to speak in mitigation of the contempt unless compelling circumstances demand otherwise. The order of contempt shall recite the facts, state the sanctions imposed, and be signed by the judge and entered on the record.

(Emphasis added.)

Here, not only did the contempt occur out of the court’s presence, but also there was no threat to the court’s authority or dignity. On the contrary, Clower in good faith believed that he was respecting the dignity to the court by following what he had come to know as the accepted manner for continuing sentencing proceedings. Clower’s action was not eligible for summary contempt under RCW 7.21.050.

[4] Indirect contempt is `contumacious behavior occurring beyond the eye or hearing of the court and for knowledge of which the court must depend upon testimony of third parties or the confession of the contemnor.’ United States v. Marshall, 451 F.2d 372 (9th Cir. 1971).
[5] Indirect contempt arises from acts committed outside the presence of the court. If the judge lacks personal knowledge of the essential elements of the offense, a contemptuous act is indirect even if the offender has admitted the act in open court. In re Oliver, 333 U.S. 257; United States v. Lee, 720 F.2d 1049 (9th Cir. 1983).
[6] A direct contempt may be punished summarily only if on-going proceedings are being interrupted and the authority of the court must be immediately asserted to restore order. United States v. Wilson, 421 U.S. 309, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975); In re Oliver, 333 U.S. 257; Lee, 720 F.2d 1049; State v. Caffrey, 70 Wn.2d 120, 422 P.2d 307 (1966).