Opinion
Nos. 34422-0-II; 34427-1-II.
April 17, 2007.
Appeals from a judgment of the Superior Court for Cowlitz County, No. 05-8-00438-2, James J. Stonier, J., entered February 14, 2006.
Dismissed by unpublished opinion per Quinn-Brintnall, J., concurred in by Houghton, C.J., and Van Deren, J.
After two juveniles, J.L.J. and E.P.-H., habitually failed to attend their assigned schools, the Cowlitz County prosecutor filed criminal contempt charges against them. A juvenile court commissioner allowed the State to prosecute the charges but stated that, under his reading of the law, the maximum sentence he could impose on conviction was seven days. The State immediately filed a notice of appeal before any trial was held. Because the commissioner's ruling is not a final order that the State may appeal, we dismiss.
Because of the nature of this case, some confidentiality is appropriate. Accordingly, this court has determined pursuant to RAP 3.4 that the names of the juveniles and other parties involved will not be used in the case caption or the body of this opinion.
FACTS
In October 2004, the State filed a truancy petition against J.L.J. (date of birth November 14, 1990) because he had been absent from school more than 10 days that year. On November 22, 2004, the Cowlitz County Commissioner ordered J.L.J. to attend school with no unexcused absences.
J.L.J. signed the order, but he continued skipping school. The State then filed eight civil contempt motions. When J.L.J. failed to appear for court hearings on the contempt motions, the court issued bench warrants for his arrest. The juvenile court found J.L.J. in contempt at least seven times and detained him from two to seven days. The record does not show whether J.L.J. appealed these detentions.
E.P.-H. (date of birth May 1, 1988) also skipped more than 10 days of school and, in January 2005, the State filed a truancy petition. On April 18, 2005, the Cowlitz County Commissioner signed an order requiring that E.P.-H. attend school. Like J.L.J., E.P.-H. attended the truancy hearing and signed the commissioner's order. E.P.-H. disobeyed the juvenile court's order almost immediately. The State filed six civil contempt motions against E.P.-H. E.P.-H. was eventually found in contempt five times. Some of the alleged violations were for failing to appear at scheduled hearings as well as failing to attend the day work camp to which the juvenile court had assigned him in lieu of detention.
The court issued bench warrants for E.P.-H.'s arrest.
On December 8, 2005, E.P.-H. turned himself in and a short while later J.L.J was arrested. The State filed criminal informations charging each juvenile with a single count of criminal truancy. The State alleged that in the 2005 school year, J.L.J. and E.P.-H. attended fewer than two weeks of school each and that most of their school attendance occurred while they were in detention.
The defense objected to the State's filing of criminal rather than civil contempt charges. In response, the State filed a motion asking that the juvenile court invoke its inherent power of contempt and allow it to prosecute the criminal contempt charges it had filed against J.L.J. and E.P.-H.
A review of the record suggests that the two boys are related. They were represented by the same defense counsel and were heard at the same time. In addition, D.H. was identified as the mother of both repondents in the report of proceedings.
Initially, the juvenile court denied the State's motion and indicated that this court's opinion in State v. A.L.H., 116 Wn. App. 158, 64 P.3d 1262 (2003), precluded the State from pursuing criminal contempt charges for violations of truancy orders. In its oral ruling, the juvenile court noted that both respondents' non-compliance with the truancy order made seven days an inadequate penalty and that it would exercise greater authority if it thought it could.
The State moved for reconsideration in light of In re the Dependency of A.K., 130 Wn. App. 862, 125 P.3d 220 (2005), review granted, 158 Wn.2d 1006 (2006), a recent opinion from Division Three of this court. In a dependency matter, A.K. held that the juvenile court may exercise inherent contempt power in cases where (1) it finds that the statutory remedy is inadequate to meet the juvenile's needs and that a period of detention greater than allowed under the statute is necessary; and (2) the requirements of due process of law are satisfied.
On February 1, 2006, the juvenile court declined the State's request that it reverse its ruling, noting that it still believed that A.L.H. was the controlling precedent for trial courts located in this division. But it modified its oral ruling and allowed the State to prosecute its information charging criminal contempt for repeated violations of the juvenile court's truancy order. Because the juvenile court stated that upon conviction the maximum remedial sanction was seven days detention ( see A.L.H., 116 Wn. App. at 164-65 (Quinn-Brintnall, A.C.J., concurring)), the State filed a notice of appeal before trial. We consolidated these cases for appeal.
DISCUSSION
On appeal, the juveniles assert that the State's appeal should be denied because (1) the State has not appealed from a court order; (2) the appeal is not ripe because the juvenile court granted the State's request to file a criminal truancy contempt information, and the State failed to do so; (3) the case is moot as it pertains to E.P.-H. because he is 18 years old and the juvenile court has not extended jurisdiction over him; and (4) the juvenile court correctly followed this court's precedent holding that seven days is the maximum penalty the legislature has allowed for violation of a remedial or punitive truancy order. We agree with the respondents' second and third arguments.
The State first filed criminal informations charging the juveniles with contempt and followed that filing with a motion asking the juvenile court to invoke its inherent contempt powers. The juvenile court declined to invoke inherent contempt powers or to impose sanctions beyond the seven-day statutory maximum for truancy cases, but it allowed the State to prosecute the criminal contempt charges. The juvenile court never entered a final appealable order. For this appeal to be ripe, the State would have had to file its criminal information, as the juvenile court allowed it to do and, assuming contempt was found, request a sentence in excess of seven days detention and, if a lesser sentence had been imposed, appeal the juvenile court's sentence for an abuse of discretion. Under RAP 2.2(a)(1), (3), and (13), the juvenile court did not enter a final decision in this case and the State's notice of appeal is, at most, premature.
RAP 2.2 provides in pertinent part:
( a) Generally. Unless otherwise prohibited by statute or court rule and except as provided in sections (b) and (c), a party may appeal from only the following superior court decisions:
(1) Final Judgment. The final judgment entered in any action or proceeding, regardless of whether the judgment reserves for future determination an award of attorney fees or costs.
. . . .
(3) Decision Determining Action. Any written decision affecting a substantial right in a civil case that in effect determines the action and prevents a final judgment or discontinues the action.
. . . .
(13) Final Order After Judgment. Any final order made after judgment that affects a substantial right.
Alternatively, the State argues that we should grant discretionary review under RAP 2.3(b)(1) and (2). Appellant's Reply Br. at 4. RAP 2.3 provides:
(b) Considerations Governing Acceptance of Review . . .
(1) The superior court has committed an obvious error which would render further proceedings useless; [or]
(2) The superior court has committed probable error and the decision of the superior court substantially alters the status quo or substantially limits the freedom of a party to act.
Because the juvenile court did not commit obvious or probable error, we decline to grant discretionary review of this case. RAP 2.3(b)(1), (2); A.L.H., 116 Wn. App. at 164.
We also note that E.P.-H. turned 18 on May 1, 2006, rendering this appeal moot.
Although we agree with the State that there is a need for guidance on the limits of the trial court's contempt powers, particularly as it relates to juvenile court truancy proceedings, we decline to issue an advisory opinion. Accordingly, we dismiss this appeal.
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.
HOUGHTON, C.J. VAN DEREN, J. concur.