Court of Appeals Division I 

State of Washington
Opinion Information Sheet

Docket Number: 58938-5
Title of Case: In The Interest Of R.v.m.: Ryan Mowery, Appellant
File Date: 10/22/2007

Appeal from King County Superior Court
Docket No: 06-7-01414-4
Judgment or order under review
Date filed: 09/28/2006
Judge signing: Honorable Patricia H Clark

Authored by Mary Kay Becker
Concurring: Ronald Cox
H Joseph Coleman


Counsel for Appellant(s)
Gregory Charles Link
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635

Counsel for Respondent(s)
Matthew Jason Lysne
Sherman, Sherman, Johnnie & Hoyt, LLP
475 Cottage Street Ne, Suite 120
P.o. Box 2247
Salem, OR, 97308

Vaughn Lee Mowery (Appearing Pro Se)
14625 Ne 145th St 38
Woodinville, WA, 98072

Kelly J Mowery (Appearing Pro Se)
7124 134th Avenue Ne
Redmond, WA, 98052



In the Interest of: ) NO. 58938-5-I
D.O.B. 12/07/1988, )
Respondent. ) FILED: OCTOBER 22, 2007

BECKER, J. A juvenile court resorted to its inherent authority to punish a

disobedient juvenile for contempt. At his father's request, the court sentenced

the juvenile unconditionally to 30 days in detention, a criminal sanction. It is well

established that a criminal contempt sanction should not be imposed unless it is

sought by a disinterested public prosecutor in an action separate from the

underlying civil dispute. Washington's criminal contempt statute incorporates

these principles of procedural fairness. Because the court did not refer the

matter for a statutory prosecution or explain why the statute is inadequate for the

purpose of punishing criminal contempt, the sentence must be reversed as an

unwarranted use of inherent authority.

No. 58938-5-I/2

Appellant Ryan Mowery first came to the attention of the juvenile court

when he was 16 years old and living with his father, Vaughn Mowery. Finding

Ryan difficult to manage, Mr. Mowery sought and obtained an At Risk Youth

order under RCW 13.32A.191-.198. Ryan disobeyed the order by using drugs

and alcohol, staying out late, and being generally disrespectful and disobedient.

The juvenile court found Ryan in contempt on several occasions during the

course of a year.

Mr. Mowery filed a petition in January 2006 under the Child in Need of

Services statute, RCW 13.32A.140. He alleged that Ryan was engaging in

risky and destructive behavior including substance abuse, property damage, and

staying out overnight without permission. The petition was accompanied by a

family assessment conducted by Mark Morgenstern, a social worker with the
Department of Social and Health Services.1

On March 21, 2006, King County Superior Court Commissioner Nancy

Bradburn-Johnson held a fact-finding hearing, granted the petition and issued an

order. The order directed Ryan to move into a group home, follow house rules,

attend school, get a drug and alcohol evaluation, and abstain from using or

possessing alcohol, tobacco, and all non-prescribed drugs.

1 The social worker, Mr. Morgenstern, attended the hearings without
counsel. The Department of Social and Health Services is not a party to the
action and has declined to participate in this appeal.


No. 58938-5-I/3

Ryan moved into the group home, but he violated other terms of the order

by continuing to engage in risky behavior associated with substance abuse. His

father, joined by Mr. Morgenstern, filed a motion for contempt that was heard on

an order to show cause on May 15, 2006. At the hearing, it was undisputed that

Ryan was in contempt for violating house rules, most recently by staying out the

entire weekend on his own. Mr. Mowery was concerned not only for Ryan's
safety but also because his 18th birthday was coming up at the end of the year

and he lacked skills. Mr. Mowery recommended that Ryan be directed to do

some research on how to get the equivalent of a high school diploma and write a

paper explaining how he planned to support himself after turning 18. Mr.

Morgenstern recommended a more serious sanction, possibly detention,

because he believed Ryan had unresolved substance abuse issues.

The Child in Need of Services statute authorizes confinement "for up to

seven days" as a civil contempt sanction where a party fails to comply with an

order entered under the statute. RCW 13.32A.250 (2), (3). The court found

Ryan in contempt and ordered seven days of electronic home monitoring, a

sanction that Ryan had the ability to terminate before the seven days were up by

writing the paper suggested by his father. The court ordered Ryan to submit a

sample for urinalysis immediately after the hearing.

A review hearing followed on June 6, 2006. Ryan had participated in a

drug and alcohol assessment and written a paper. Mr. Mowery thought Ryan


No. 58938-5-I/4

was still not coming to grips with the problem of how he was going to live once

he was 18. He and Mr. Morgenstern both felt that the picture Ryan had

presented of himself in the chemical dependency self-assessment was not

honest. Mr. Morgenstern said he believed Ryan was providing diluted urine

samples, and at least one sample had tested positive for marijuana. The court

found that Ryan had not completely purged his contempt inasmuch as he was

still not following house rules at his placement and had not been honest in the

drug and alcohol assessment. The court ordered Ryan to participate in a

second drug and alcohol evaluation based on information more objective than a

self-report. He was also to submit two more samples for urinalysis.

At the end of the hearing, Commissioner Bradburn-Johnson warned that

in the event of a positive or a diluted drug test, the court would consider using
"inherent contempt"2 to order Ryan into detention for a fixed period of time with

no opportunity for early release. "What I would be looking at is up to 60 days

because, frankly, he's had plenty of chances. And I will remind him, with

counsel present, that inherent contempt means there is no purge condition. . . .
You will sit and you waste the entire summer. So I'm serious, Ryan."3 The court

2 The phrase "inherent contempt," used throughout the proceedings by
the court as well as the parties, is confusing. "Making a finding of inherent
contempt" appears to have become shorthand in juvenile court for the court's
invocation of its inherent authority as a basis for ordering a contemptuous
juvenile to be incarcerated for more than the seven days allowed by statute.
3 Report of Proceedings, June 6, 2006 at 135.


No. 58938-5-I/5

informed Ryan that with "inherent contempt," he would have the "rights

associated with basically a criminal offender matter," including notice, the right to

counsel, the right to a hearing in front of an impartial judicial officer, the right to
testify and the right to call and cross-examine witnesses.4

At the end of June, Ryan ran away from his placement. Found by police

"under the influence and 'out of control,'" he was taken to a hospital. Mr.

Morgenstern filed a motion for contempt alleging that Ryan "should be held in
inherent contempt" because of his continuing abuse of alcohol or drugs.5 An

initial hearing on the motion was held on July 3. Because Ryan now agreed to

enter inpatient treatment, the court continued the matter for a week to permit the

details to be worked out.

As later reported by Mr. Morgenstern, Ryan completed a new chemical

dependency assessment on July 3 and was found to be dependent on alcohol

and marijuana. Although there was an inpatient treatment facility that would

admit Ryan, the cost was $12,000 and the family's insurance would not cover it.

As a result, instead of Ryan going immediately into treatment as everyone had

hoped for, he was returned to his placement. Several hours later, he ran away

and did not resurface for two days. He was brought in on a warrant and ordered
to remain in detention as a flight risk until the next hearing.6

4 Report of Proceedings, June 6, 2006 at 135-36.

5 Clerk's Papers at 77 (Order to Show Cause -- Contempt, filed June 29,


No. 58938-5-I/6

The hearing on the pending motion for contempt occurred on July 11

before a superior court judge. Mr. Mowery explained the insurance coverage

and assessment issues that were still presenting obstacles. Inpatient treatment

could be covered by a medical coupon but a bed would likely not be available

until October. The court made a finding of contempt and imposed seven days of

detention as a civil sanction on the condition that Ryan could be released earlier
if a treatment option became available and he agreed to accept it.7 The issue of

"inherent contempt" was reserved for future decision.

Ryan returned to a group home after serving the sanction. Within a

month he was taken to a hospital emergency room for treatment after cutting his

hand severely on a broken bottle that he had smashed against a rock. After this

incident Mr. Mowery filed the motion for contempt that is at issue in this appeal.

The motion alleged that Ryan was not only continuing to engage in alcohol and

drug abuse and self-destructive behavior, but that he was also stalling the

application process for getting into a treatment facility. Mr. Mowery's motion

stated, "This court's sanctions have not been successful in bringing about a

change in his behavior. As such, it is requested that the court find Ryan to be in
inherent contempt." 8

6 Report of Proceedings, July 6, 2006 at 145-48.
7 Clerk's Papers at 93-95 (Hearing, Findings & Order re: Contempt/Purge,
filed July 11, 2006); Report or Proceedings, July 11, 2006 at 150-167.
8 Clerk's Papers at 97 (Motion and Order to Set Hearing re: ARY/CHINS,
filed August 16, 2006).


No. 58938-5-I/7

A fact-finding hearing on the motion occurred on September 5, 2006

before Commissioner Bradburn-Johnson. Ryan, Mr. Mowery and Mr.

Morgenstern all testified. Mr. Mowery recommended that the court impose a 30-

day detention, "to put Ryan in a safe, stable environment . . . where he would be

able to detox and do some real serious self-reflection." Mr. Morgenstern agreed

and argued that Ryan was still not "willing to put good faith efforts into getting
sober."9 Ryan opposed the motion. He testified that he was willing to sign the

necessary consent forms and go into treatment.

The court decided that Ryan's history of disobeying court orders called for

a finding of "inherent contempt". The court ordered him into immediate detention

for 30 days, a fixed term of confinement. The court explained that sending Ryan

to detention without a purge condition meant that "basically, it's like a criminal


What I'm looking at is the fact that he absolutely refuses to
abide by these court orders. And I'm not talking about signing
consent forms or going into inpatient treatment. . . . I'm talking
about the file that I have -- we're on Contempt Number 4. He has
been threatened with inherent contempt before, he was given his
rights, he understood what they were, and that process has been
followed today. He's had the right to call witnesses, to cross-
examine witnesses. He's been represented by an attorney. He's
had the right to present information to the Court. And I'm looking at
his record here: drug use, running -- the drug use is against this
court order -- bench warrant.
It's very clear that he has no intention of following this court
order, and I have nothing left. I have nothing left to give him to try
to twist his arm into following the court order except inherent

9 Report of Proceedings, September 5, 2006 at 208-211.


No. 58938-5-I/8

contempt. And I am going to impose 30 days. . . . This is not
coercive. This is inherent. It's also not punitive. It's inherent
contempt of the Court to enforce its own orders, and it strictly flows
from the fact that Ryan refuses to follow them.
The concern here, I think, is whether a 30-day period will do
something that a seven-day has not been able to do. I look at the
30 days as, frankly, a wake-up call for Ryan. . . .
. . .
My hope is that 30 days will cause him to take a look at
things. While I do think that these interim care places are
structured in a way that perhaps a family home cannot, I do not
believe it is as structured as the place that I'm going to send him
to. And I think, frankly, that is what he needs.
I think he needs to understand that you have to follow the
orders. . . . I think that there are just a lot of things that a very
structured environment might be able to give to Ryan that he
cannot get where he is now. And part of this is going to be the
realization, I hope, that this is a court order. This Court can
impose increasing inherent contempt sanctions.[10]

The written findings entered in support of the 30-day detention order stated that

all less restrictive sanctions had been tried, but Ryan was still flouting the court's


1. All less restrictive sanctions have been tried in an effort to
coerce Ryan's compliance with this court order. Ryan was,
immediately preceding this CHINS action, subject to an ARY
order in King County, which he frequently was found to be in
contempt for failing to follow it.
2. The court imposes 30 days detention in the hope that a
structured setting will provide stability for Ryan and impress
upon him that he must follow the court's orders, not flaunt
the order. Ryan has engaged in risk taking behavior,
including drug use, running away from placement, and
severely injuring his right hand from smashing a bottle
against a rock, while under the CHINS order.
2. Although Ryan's counsel suggested the court try an

10 Report of Proceedings, September 5, 2006 at 217-19.


No. 58938-5-I/9

alternative to 30 days in detention, it is one that is not
available to the court either directly or indirectly, which is
inpatient substance abuse treatment. Although a great deal
of testimony was centered on Ryan's actions towards and
positive attitude about substance abuse inpatient treatment,
the court specifically disregards the evidence provided as
irrelevant to the finding of inherent contempt.[11]

On a motion for revision, the superior court found the commissioner's

order was properly based on In re Dependency of A.K., 130 Wn. App. 862, 125

P.3d 220 (2005), rev. granted, 158 Wn.2d 1006, 143 P.3d 829 (2006).

According to A.K., a juvenile court may use its inherent authority to impose a

period of confinement for criminal contempt exceeding the statutory civil sanction

of up to seven days, so long as the court finds the statutory remedy inadequate

to address repeated violations of court orders and explains why a determinate

sentence without a purge option "would be more effective." See A.K., 130 Wn.

App. at 873. In the present case, the superior court ruled that "the record of the

court's repeated findings of contempt more than supports a finding of inherent

Ryan appeals, and asks that the 30-day sanction be set aside.

Mr. Mowery contends the appeal is moot. Ryan has served the sentence

imposed, the original order that he violated has expired, and because he has

11 Clerk's Papers at 116 (Addendum to Hearing, Findings and Order
Regarding Contempt for CHINS/ARY, filed September 5, 2006).
12 Clerk's Papers at 130 (Order on Child's Motion for Revision, filed
September 28, 2006).


No. 58938-5-I/10

turned 18 he is no longer subject to the jurisdiction of the juvenile court. We

elect to decide Ryan's appeal on the merits because there is the possibility that

we can provide effective relief. Ryan incurred a criminal sanction and it is not

clear that he will be free of future consequences if it remains on his record. In

any event his appeal involves a matter of continuing and substantial public

interest. See In re Interest of M.B., 101 Wn. App. 425, 432-33, 3 P.3d 780


Because the superior court did not revise the commissioner's decision,

the commissioner's decision stands as the decision of the superior court that is

before us for review. RCW 2.24.050; In re B.S.S., 56 Wn. App. 169, 171, 782

P.2d 1100 (1989).

It is agreed by the parties that the 30-day sentence imposed on Ryan was

criminal in nature rather than coercive. A contempt sanction is coercive, and

thus civil in nature, when the contemnor can avoid the sanction by doing

something to "purge" the contempt. In such a case the contemnor "'carries the

keys of his prison in his own pocket.'" International Union, United Mine Workers

v. Bagwell, 512 U.S. 821, 828, 114 S. Ct. 2552, 129 L. Ed. 2d 642 (1994)

quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 442, 31 S. Ct. 492,

55 L. Ed. 797 (1911). A contempt sanction is punitive, and thus criminal in

nature, when it is imposed to punish completed acts of disobedience without

providing an opportunity to purge the contempt. Prosecutions for criminal


No. 58938-5-I/11

contempt are designed to serve the limited but fundamental purpose of

vindicating the authority of the court so as to preserve respect for the judicial

system itself. Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787,

800, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987).

The distinction is illustrated by Mead School Dist. No. 354 v. Mead Educ.

Ass'n., 85 Wn.2d 278, 287-88, 534 P.2d 561 (1975). Our Supreme Court

characterized as criminal a $1,000 fine imposed on a teachers' association for

violating an anti-strike injunction. The fine was not imposed to compel the

teachers to perform a duty owed to the school district. Rather, it was an

unconditional penalty imposed to vindicate the authority of the court, "totally

independent of any concern of these parties":

But the punishment imposed by the trial court was absolute: the
contemnors were not penalized pending compliance, not
sentenced conditionally under order to make plaintiff whole; they
were simply sentenced. The trial court's desire was not to force
adherence to its present order through duress, but to bolster
respect for its future orders by attaching a deterrent sanction to
violation. This interest was totally independent of any concern of
these parties, and it did not end with the settlement of their dispute.
It survives, and so, then, does the sentence imposed to further it.

Mead, 85 Wn.2d at 286.

The same is true here. The 30-day sentence was punitive in nature, not

civil, because the court did not provide Ryan with an opportunity to purge the



No. 58938-5-I/12

Washington's criminal contempt statute, RCW 7.21.040, provides that a

punitive sanction for contempt of court may be imposed only in a separate action
initiated by a public prosecutor.13 The information or complaint that commences

the action must charge contempt and must recite the punitive sanction sought to

be imposed. RCW 7.21.040(2)(a),(b). A judge presiding in an action to which

the contempt relates may request a public prosecutor to act, or may appoint a

special counsel to prosecute the action "if required for the administration of

justice." A judge who requests prosecution is disqualified from presiding at the

trial. RCW 7.21.040(2)(c).

The procedure employed by the juvenile court did not comply with the

statute. There was no separate criminal action. No public prosecutor was

involved and no formal complaint or information was filed. The proceeding was

initiated by the motion for contempt filed by Ryan's father in the ongoing civil

case under the Child in Need of Services statute. The motion requested a

finding of "inherent contempt." It did not "charge" contempt, it did not expressly

identify a punitive sanction as its objective and it did not state the maximum

penalty that could be imposed. The commissioner presided at the hearing,

despite having essentially invited the prosecution when she declared in June

13 The single exception is for contempt committed in the courtroom in the
presence of the judge. RCW 7.21.040(1), referring to the summary imposition
procedures provided in RCW 7.21.050.


No. 58938-5-I/13

that she would treat further disobedience as a criminal offense.

On appeal, Ryan argues on due process grounds that a punitive sanction

for contempt can be imposed only in a separate criminal action initiated by a

disinterested prosecutor. Alternatively, he argues that the court violated the

separation of powers doctrine by relying on inherent authority rather than

following the normal criminal procedure.


A court may not use either statutory or inherent power to justify a punitive

sanction "unless the contemnor is afforded criminal due process protections,

including the safeguards of a criminal trial." In re M.B., 101 Wn. App. at 453;

Bagwell, 512 U.S. at 826 (holding that prosecutions for serious criminal

contempt are subject to the Sixth Amendment right of jury trial, binding upon the

States through the Due Process clause.).

Ryan contends that the requirement for a separate action initiated by a

public prosecutor is among the due process protections referred to in Bagwell.

He cites Bagwell's statement that "criminal contempt sanctions are entitled to full

criminal process." Bagwell, 512 U.S. at 833. But when examined in context, that

statement in Bagwell refers to general components of criminal due process such

as the reasonable doubt standard, the presumption of innocence, the right to

counsel, the right not to testify against oneself, and the right to a public trial


No. 58938-5-I/14

before an unbiased judge. We cannot find in Bagwell a holding that a separate

criminal action initiated by a public prosecutor is a due process requirement.

This is not to condone the procedure of imposing a criminal contempt

sanction as part of a civil action. A sentence for contempt that is "wholly

punitive" can be properly imposed "only in a proceeding instituted and tried as

for criminal contempt." Gompers, 221 U.S. at 444. In Gompers, the underlying

action was a private suit in equity brought by Bucks Stove & Range Company

against the American Federation of Labor. The lower court imposed criminal

sanctions on Samuel Gompers and others for violating an anti-boycott injunction.

The Supreme Court reversed. Because the underlying cause of action in which

Bucks Stove petitioned for relief was civil, only civil relief could be granted.

Gompers, 221 U.S. at 451. Proceedings for criminal contempt "are between the

public and the defendant, and are not part of the original cause."

This is not a mere matter of form, for manifestly every citizen,
however unlearned in the law, by a mere inspection of the papers
in contempt proceedings ought to be able to see whether it was
instituted for private litigation or for public prosecution, whether it
sought to benefit the complainant or vindicate the court's authority.
He should not be left in doubt as to whether relief or punishment
was the object in view. He is not only entitled to be informed of the
nature of the charge against him, but to know that it is a charge
and not a suit. United States v. Cruikshank, [92 U.S. (2 Otto) 542,
559, 23 L. Ed. 588 (1875)]. . . .
There was therefore a departure -- a variance between the
procedure adopted and the punishment imposed, when, in answer
to a prayer for remedial relief, in the equity cause, the court
imposed a punitive sentence appropriate only to a proceeding at
law for criminal contempt. The result was as fundamentally
erroneous as if in an action of "A. vs. B. for assault and battery,"


No. 58938-5-I/15

the judgment entered had been that the defendant be confined in
prison for twelve months.

Gompers, 221 U.S. at 444-49. Setting aside the criminal sentences imposed in

the civil case, the court remanded and directed dismissal of the contempt

proceedings instituted by Bucks Stove, without prejudice to the power of the

lower court to punish contempt in a proper proceeding. Gompers, 221 U.S. at


Gompers supports Ryan's request for relief, but it does not mention the

Due Process Clause as the basis for its holding. To the extent that Ryan asks

us to hold that a separate criminal action is a requirement of due process, he

has not cited authority sufficient to compel that conclusion.

Ryan has similarly failed to establish that a disinterested prosecutor is a

due process requirement in criminal contempt proceedings, although again, he

is correct in pointing out that prosecution of criminal contempt by an interested

party is a thoroughly disfavored practice. The United States Supreme Court

views a disinterested prosecutor as indispensable to the fairness of criminal

contempt proceedings.

Private attorneys appointed to prosecute a criminal contempt
action represent the United States, not the party that is the
beneficiary of the court order allegedly violated. As we said in
Gompers, criminal contempt proceedings arising out of civil
litigation "are between the public and the defendant, and are not a
part of the original cause." 221 U.S. at 445. The prosecutor is
appointed solely to pursue the public interest in vindication of the
court's authority. A private attorney appointed to prosecute a
criminal contempt therefore certainly should be as disinterested as


No. 58938-5-I/16

a public prosecutor who undertakes such a prosecution.

Young, 481 U.S. at 804. The error of allowing criminal contempt to be pursued

by an interested prosecutor is fundamental because the potential conflict of

interest "creates an appearance of impropriety that diminishes faith in the

fairness of the criminal justice system in general." Young, 481 U.S. at 811. The

court left no doubt that the rule against such a practice is categorical and a

violation cannot be harmless. Young, 481 U.S. at 810-814.

But the Supreme Court in Young stopped short of holding that a

disinterested prosecutor is a constitutionally mandated due process requirement.

Instead, desiring "to avoid the necessity of reaching any constitutional issues,"

the Young court relied on its supervisory power over the lower federal courts to

ensure "that contempt proceedings are conducted in a manner consistent with

basic notions of fairness." Young, 481 U.S. at 808, 809 n.21.

We are not bound by the United States Supreme Court's exercise of its

supervisory power. See State v. Bennett, ___ Wn.2d ___, 165 P.3d 1241, 1249

(2007). A requirement for procedural fairness dictated by a higher court in the

exercise of its supervisory powers is not equivalent to a constitutional due

process mandate. Bennett, ___ Wn.2d ___, 165 P.3d at 1248. Ryan has not

briefed the issue whether Washington's appellate courts should exercise

supervisory power parallel with the United States Supreme Court. And he has

offered no authority other than Young as the basis for his argument that a


No. 58938-5-I/17

disinterested prosecutor is a due process requirement in criminal contempt

proceedings. Therefore, while Young tends to support his request for relief, it

does not support his argument that he is entitled to relief on due process


Ryan also argues that the proceeding violated his right to due process

because the decision-maker who heard the motion for contempt was not

impartial. The extent of his argument is to quote the Supreme Court's

observation that the contempt power is uniquely liable to abuse, in part because

contumacy "often strikes at the most vulnerable and human qualities of a judge's

temperament, and its fusion of legislative, executive, and judicial powers

summons forth the prospect of the most tyrannical licentiousness." Bagwell, 512

U.S. at 831 (internal punctuation and citations omitted). This observation is

likely the reason why our statute provides that a judge who requests a contempt

prosecution is disqualified from presiding at the trial. RCW 7.21.040(2)(c). But

here, the court elected to proceed under its inherent authority rather than by

following the statute. Ryan has not cited authority establishing that a judge who

requests a criminal contempt prosecution is presumptively biased for purposes

of a due process analysis. And he has not pointed to any indication in the

record of actual bias on the part of the commissioner.

In summary, Ryan has not established that the Due Process Clause calls

for a reversal of his sentence.


No. 58938-5-I/18


As an alternative basis for reversal of the 30-day sanction, Ryan contends

that the juvenile court erred by using its inherent authority rather than by

following normal criminal procedure. He contends the court violated the

constitutionally-rooted principle of separation of powers by crafting "a shadow

criminal procedure, where the court defined the sanctionable behavior,

monitored the juvenile's compliance, adjudicated the case, and imposed a
sanction which would not be available in other juvenile offense proceedings."14

Ryan's father responds that the court's use of its inherent authority to punish for

contempt does not violate the principle of separation of powers because it does

not invade the prerogatives of the other two branches. He argues that it merely

serves the court's institutional interest in having its orders obeyed.

Whether a court may exercise its inherent authority to impose a sanction

for contempt is a question of law that we review de novo. A.K., 130 Wn. App. at


The doctrine of separation of powers evolved side by side with the

constitutional scheme of checks and balances. In re Salary of the Juvenile Dir.,

87 Wn.2d 232, 552 P.2d 163 (1976). One branch of government may engage in

14 Brief of Appellant at 27.


No. 58938-5-I/19

functions that intervene in or overlap with the functions of another branch, so

long as it does not undermine the operation of that other branch "or undermine

the rule of law which all branches are committed to maintain." Juvenile Director,

87 Wn.2d at 243. Inherent power is "authority not expressly provided for in the

constitution but which is derived from the creation of a separate branch of

government and which may be exercised by the branch to protect itself in the

performance of its constitutional duties." Juvenile Director, 87 Wn.2d at 245.

Because the judiciary must intervene in the operation of the other

branches when it engages in constitutional interpretation to decide whether one

of the other branches has exceeded its authority, and because it does not have

the power of the purse, the judiciary is uniquely "vulnerable to improper checks

in the form of reward or retaliation." Juvenile Director, 87 Wn.2d at 244. The

inherent power of the judiciary is derived from its need to protect itself from such

improper checks by the other branches. It is used "'to preserve the efficient and

expeditious administration of Justice and protect it from being impaired or

destroyed.'" Juvenile Director, 87 Wn.2d at 245, quoting Commonwealth ex rel.

Carroll v. Tate, 442 Pa. 45, 53, 274 A.2d 193 (1971), cert. denied, 402 U.S. 974,

91 S. Ct. 1665, 29 L. Ed. 2d 138 (1971).

Courts must limit their incursions into the powers of the other branches to

those actually necessary to the purpose of self-protection. "[T]he judiciary's

image of impartiality and the concomitant willingness of the public to accept its


No. 58938-5-I/20

decisions as those of a fair and disinterested tribunal may be severely damaged"

when a court in effect initiates and tries its own lawsuits. Juvenile Director, 87

Wn.2d at 249. A court must "fully support and clearly state the justifications" for

its exercise of inherent power. Juvenile Director, 87 Wn.2d at 251.

In Juvenile Director, a superior court ordered the county commissioners to

raise the salary of the Director of Juvenile Services. On appeal, the Supreme

Court concluded that the court was acting outside of its proper realm. Because

the superior court failed to demonstrate that the salary raise was truly necessary

for self-protection, the court's exercise of its inherent authority to compel funding

for court operations "imposed an improper check on the function of the

legislative branch of government." Juvenile Director, 87 Wn.2d at 252.

Our Supreme Court has been equally firm in insisting on a high level of

justification for the use of inherent authority where a court seeks to punish for

contempt outside the bounds of the statutes designed for that specific purpose.

The legislature may regulate the court's inherent power to punish for contempt

"as long as it does not diminish it so as to render it ineffectual." Mead, 85 Wn.2d

at 287. In Mead, the lower court imposed a punitive fine of $1,000 against

striking teachers despite a statutory limit of $100. The Supreme Court refused to

uphold the excessive fine as an exercise of inherent power because there was

no finding that the statutory limitation impaired the court's contempt power.

"Unless the legislatively prescribed procedures and remedies are specifically


No. 58938-5-I/21

found inadequate, courts should adhere to them and are not free to create their

own." Mead, 85 Wn.2d at 288.

The record in this case does not contain a finding that the statutory

procedure is inadequate for the purpose of punishing criminal contempt, nor

does it contain evidence that would support such a finding. There is no

indication, for example, that the court tried unsuccessfully to refer the matter to a

public prosecutor. Referral to a prosecutor "ensures that the court will exercise

its inherent power of self-protection only as a last resort," and it also enhances

the prospect that investigative activity will be conducted by trained prosecutors.

Young, 481 U.S. at 801. Referral to a prosecutor ensures a procedure

consistent with the concerns identified in Gompers and Young for the integrity of

judicial proceedings.

Mr. Mowery argues that if a disinterested prosecutor is necessary, he

fulfilled the role because he did not have a financial or otherwise self-serving

interest in the outcome. The record does not support this view of the case. Mr.

Mowery was not acting on behalf of the public interest in vindicating the court's

authority. Mr. Mowery was trying to get help for his child. He cannot be

characterized as anything other than a private, interested party.

Mr. Mowery further argues that any self-interested exercise of power by

an interested prosecutor is not a concern when the court is exercising its

inherent authority because the court can intervene at any time to control or


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restrain the prosecution. Young shows why this argument is unpersuasive. A

prosecutor exercises power independently of the court:

As should be apparent, the fact that the judge makes the
initial decision that a contempt prosecution should proceed is not
sufficient to quell concern that prosecution by an interested party
may be influenced by improper motives. A prosecutor exercises
considerable discretion in matters such as the determination of
which persons should be targets of investigation, what methods of
investigation should be used, what information will be sought as
evidence, which persons should be charged with what offenses,
which persons should be utilized as witnesses, whether to enter
into plea bargains and the terms on which they will be established,
and whether any individuals should be granted immunity. These
decisions, critical to the conduct of a prosecution, are all made
outside the supervision of the court.

Young, 481 U.S. at 807. A disinterested prosecutor may also evaluate the case

independently from the judge who refers it. For example, a disinterested

prosecutor might have offered Ryan a plea bargain or recommended a sanction

more proportional to a standard range disposition for a juvenile offense of

comparable seriousness. We therefore reject the argument that court

supervision can cure the absence of a disinterested prosecutor. Because the

statute assures the involvement of a disinterested prosecutor, it is not only

adequate but superior to the procedure used by the court below in the exercise

of its inherent authority.

Instead of focusing on the adequacy of the statutory scheme, the

commissioner articulated other justifications for the use of inherent power. The

commissioner found that "All less restrictive sanctions have been tried in an


No. 58938-5-I/23

effort to coerce Ryan's compliance with this court order."15 This is not a

satisfactory rationale for punishing contempt through a nonstatutory procedure.

It appears to be derived from State v. Norlund, 31 Wn. App. 725, 729, 644 P.2d

724 (1982), cited in A.K., 130 Wn. App. at 868-69. "Only under the most

egregious circumstances should the juvenile court exercise its contempt power

to incarcerate a status offender in a secure facility. If such action is necessary,

the record should demonstrate that all less restrictive alternatives have failed."

Norlund, 31 Wn. App. at 729. Norlund, however, was reviewing coercive

sanctions. It does not apply to punitive sanctions.

Mr. Mowery argues that the court's use of inherent power was consistent

with In re M.B. In M.B. we said that "on the rare occasion when a juvenile court

decides it must disregard the statutory seven-day limit and resort to its inherent

contempt powers, the court must enter a finding as to why the statutory remedy

is inadequate and articulate a reasonable basis for believing why some other

specific period of detention will achieve what seven days will not." In re M.B.,

101 Wn. App. at 453. But here again, in M.B. we were speaking of the statutory

authorization for seven days in detention, which is a coercive remedy designed

to "achieve" compliance with the order. In this case, the court imposed a

punitive sanction, not a coercive remedy.

15 Clerk's Papers at 116.


No. 58938-5-I/24

When coercive remedies are ineffective to achieve compliance with the

underlying order, the court may be justified in referring the matter for a criminal

contempt prosecution under the criminal contempt statute. But the

ineffectiveness of coercive remedies is not a proper rationale for avoiding the

constraints of the criminal contempt statute. Courts may not deviate from the

statutory scheme "unless the statutory powers are in some specific way

inadequate. Otherwise, a resort to inherent powers effectively nullifies the

statutes." M.B., 101 Wn. App. at 452.

A secondary rationale for the use of inherent power, at least from Mr.

Mowery's viewpoint, was the perceived need to incarcerate Ryan for his own

good. The commissioner, too, expressed the hope that the "structured setting"

of jail would provide "stability" for Ryan.

The desire to protect a juvenile from the risks of the street by locking him

up is not an appropriate rationale for invoking inherent authority to punish for

contempt. We disagree with the statement in A.K. that punitive incarceration of

juveniles is justified by "the juvenile court's determination that the statutory

sanctions could not meet their needs." A.K., 130 Wn. App. at 886. Even if the

jailing of juveniles can be said to meet their needs, it does not serve the court's

need to protect itself from improper checks by the other two branches of

government. Rather, it intrudes on the prerogatives of the other branches. It is

up to the legislature and executive branch, not the judiciary, to decide whether to


No. 58938-5-I/25

develop an expensive program of involuntary confinement to address

alcoholism, drug abuse and other self-destructive behavior by juveniles. Within

constitutional limits, the extent to which government should intervene in the lives

of children and families in conflict is quintessentially for the legislature to define.

We said as much in M.B. when discussing the risks of using inherent power to

coerce compliance with court orders:

The risks of exercising inherent power to deviate from a
comprehensive statutory scheme may be many. There is a
significant danger, for example, that the discretionary use of
inherent contempt power to deal with runaways will become a
systematic response. Such a practice increases the risk of
overcrowding as well as the risk that runaways will be housed with
criminal offenders. Concerns with the fiscal and administrative
consequences of indefinite incarceration were likely a motivation
for the legislature's decision to place a statutory limit of seven days
on detention for contempt.

M.B., 101 Wn. App. at 452.

In summary, the juvenile court did not fully support and clearly state an

appropriate justification for its exercise of inherent power to punish Ryan for

contempt. Under Mead, the court should have followed the statute and referred

the matter to a disinterested public prosecutor. The order of detention is an

improper and untenable use of the court's inherent power, and must be reversed
as a violation of the doctrine of separation of powers.16

16 Ryan also argues that the order violated his constitutional right to be
free from cruel and unusual punishment because it punished him for being an
addict rather than for his conduct. Because we reverse on separation of powers
grounds, we do not reach this argument.


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