State v. Gassman

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Docket Number

No. 85801–2.

Attorney(S)

Brian Clayton O'Brien, Spokane County Prosecutor's Office, Spokane, WA, for Petitioner. David R. Partovi, Partovi Law, Spokane, WA, for Defendant.

Judges

CHAMBERS

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Smart Summary

Factual and Procedural Background

The Spokane County Public Defender's Office retained David Partovi to represent Tyler Gassman in criminal proceedings involving multiple codefendants. On the first day of trial, the State moved to amend the information by changing the alleged offense date from April 15 to April 17, 2008. The trial court allowed the amendment under CrR 2.1(d), continued the trial, and awarded $2,000 to each defense counsel for additional work addressing alibi issues. [1]

The trial court denied the State's motion for reconsideration. The Court of Appeals upheld the award, and the State petitioned the Washington Supreme Court, which granted review. [1]

Legal Issues Presented

Whether a trial court may impose attorney-fee sanctions under its inherent authority in a criminal case without expressly finding bad faith. [2][3]
Whether the record supported an inference that the State's conduct was in bad faith or tantamount to bad faith. [4][5]

Arguments of the Parties

State's Arguments

The State argued that the trial court was required to make an express finding of bad faith before imposing sanctions. [4]

Partovi's Position

Partovi argued that the motion to amend was part of a broader course of conduct demonstrating bad faith. [6]
Partovi nevertheless conceded that he had not filed an alibi notice, knew of a possible date change, regarded the original “on or about” language as sufficient to provide notice of April 17, and did not request or need a continuance. [5]

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Gassman, 160 Wash.App. 12, 248 P.3d 91 (2011)	The Court of Appeals decision upholding the sanctions award.	The Supreme Court reviewed the Court of Appeals' ruling after granting the State's petition. [1]
Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 858 P.2d 1054 (1993)	Sanctions decisions are reviewed for abuse of discretion; abuse occurs when a decision is manifestly unreasonable or based on untenable grounds.	The court applied this standard in determining that the sanctions lacked adequate support. [7]
In re Recall of Pearsall–Stipek, 136 Wash.2d 255, 961 P.2d 343 (1998)	Trial courts may impose attorney-fee sanctions under their inherent equitable authority, and a finding of bad faith is sufficient for such sanctions.	The court limited its analysis to inherent sanctioning authority because no statute, rule, or court-order violation was involved. [8][3]
Cowles Pub'g Co. v. Murphy, 96 Wash.2d 584, 637 P.2d 966 (1981)	Trial courts possess inherent authority to control and manage their calendars, proceedings, and parties.	The court recognized this authority as the basis for potential sanctions in the case. [8]
Chambers v. NASCO, Inc., 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991)	Under federal law, inherent-authority attorney-fee sanctions require willfully abusive, vexatious, or intransigent conduct designed to stall or harass.	The court used this principle to describe the type of conduct ordinarily required to support inherent-authority sanctions. [3]
State v. S.H., 102 Wash.App. 468, 8 P.3d 1058 (2000)	An express finding of bad faith is not indispensable, but sanctions must rest on conduct at least “tantamount to bad faith.”	The court accepted that bad faith may be inferred from the record but found no equivalent conduct here. [3][4]
Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980)	Authority quoted in support of the “tantamount to bad faith” standard.	The principle was incorporated through the reasoning quoted in State v. S.H.. [3]
Wilson v. Henkle, 45 Wash.App. 162, 724 P.2d 1069 (1986)	Appellate courts may uphold sanctions without an express bad-faith finding when the record establishes equivalent conduct.	The court acknowledged this approach but concluded that the present record did not establish equivalent conduct. [4]

Court's Reasoning and Analysis

The court reviewed the sanctions decision for abuse of discretion, asking whether the ruling was manifestly unreasonable or rested on untenable grounds. [7]

Although trial courts possess inherent authority to manage proceedings and impose attorney-fee sanctions, sanctions under that authority require bad faith or conduct tantamount to bad faith. An express finding is preferred, but an appellate court may infer the necessary conduct from the record. [8][3][4]

The court confined its review to the sanction imposed for the last-minute amendment in this case. References to other criminal cases did not establish bad faith because the trial court repeatedly stated that the sanctions were based only on this case, and records from the other cases were not before the court. [6]

The trial court characterized the State's conduct as “careless,” not purposeful. In addition, Partovi conceded that he had not filed the required alibi notice, knew of a possible change in the alleged date, believed the original language sufficiently encompassed April 17, and neither requested nor needed a continuance. These facts provided no basis to infer bad faith or conduct tantamount to bad faith. [5]

Holding and Implications

REVERSED. The Supreme Court held that the trial court abused its discretion by imposing sanctions without a finding of bad faith where the record did not support an inference of bad faith or equivalent conduct. [9]

The sanctions award to Partovi was therefore set aside. The decision confirms that, although an express bad-faith finding is preferred, inherent-authority sanctions cannot stand absent record support for bad faith or conduct tantamount to bad faith. [4][9]

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STATE of Washington, Petitioner, v. Tyler William GASSMAN, Defendant, Da

CHAMBERS

Brian Clayton O'Brien, Spokane County Prosecutor's Office, Spokane, WA, for Petitioner. David R. Partovi, Partovi Law, Spokane, WA, for Defendant.
CHAMBERS, J.

¶ 1 A trial court must have authority to manage the parties and proceedings before it. The State argues the trial court in this case erroneously imposed sanctions in a criminal prosecution without explicitly finding bad faith. While a finding of bad faith is the preferred basis for imposing sanctions in a criminal case, we will uphold sanctions if we can infer bad faith from the record before us. However, the trial court in the present case did not make a finding of bad faith and, given concessions at oral argument, the record does not support sanctions. We therefore reverse.

Facts

¶ 2 The Spokane County Public Defender's Office contracted with David Partovi to defend Tyler Gassman from criminal charges. Gassman's case was joined with those of several other codefendants, each of whom had their own counsel. The first information, filed July 28, 2008, alleged that the crimes had taken place “on or about April 15, 2008.” Clerk's Papers (CP) at 40. After several continuances, trial was set for January 12, 2009. As trial began on January 12, the State moved to amend the information to allege that the crimes had taken place “on or about April 17, 2008.” CP at 106; Report of Proceedings (RP) at 3. Defense counsel objected on the ground that they had prepared alibi defenses for April 15, 2008. The court granted the State's motion to amend under CrR 2.1(d) and continued the trial. However, the court called the State's conduct “careless” (but not “purposeful”) and awarded $2,000 to each defense counsel as “attorney fees” for the extra time they were required to spend dealing with the alibi issue. RP at 41–42. The State moved for reconsideration of the order and after an extensive hearing on the issue, the court denied the State's motion. The State appealed, and the Court of Appeals held the award was proper. State v. Gassman, 160 Wash.App. 12, 248 P.3d 91 (2011). The State then petitioned this court, and we granted review.

“The court may permit any information or bill of particulars to be amended at any time before verdict or finding if substantial rights of the defendant are not prejudiced.” CrR 2.1(d).

Analysis

¶ 3 Sanctions decisions are reviewed for abuse of discretion. Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 338, 858 P.2d 1054 (1993). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. Id. at 339, 858 P.2d 1054.

¶ 4 Various court rules allow the imposition of sanctions. E.g.,CR 11, 26(g); CrR 4.7(h)(7). Sanctions, including attorney fees, may also be imposed under the court's inherent equitable powers to manage its own proceedings. In re Recall of Pearsall–Stipek, 136 Wash.2d 255, 266–67, 961 P.2d 343 (1998). Moreover, where the court's inherent power is concerned, “[w]e are at liberty to set the boundaries of the exercise of that power.” Id. at 267 n. 6, 961 P.2d 343. Trial courts have the inherent authority to control and manage their calendars, proceedings, and parties. See Cowles Pub'g Co. v. Murphy, 96 Wash.2d 584, 588, 637 P.2d 966 (1981).

¶ 5 No one argues that the sanctions in this case were imposed under a statute or a rule or because of a violation of a court order. Our analysis is limited to the court's inherent powers to sanction. We have stated that a finding of bad faith is sufficient for attorney fees sanctions under our inherent powers. Pearsall–Stipek, 136 Wash.2d at 267 n. 6, 961 P.2d 343. Under federal case law, courts may assess attorney fees as an exercise of inherent authority only where a party engages in willfully abusive, vexatious, or intransigent tactics designed to stall or harass. Chambers v. NASCO, Inc., 501 U.S. 32, 45–47, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). Our Court of Appeals has based its jurisprudence on federal case law. It has held that while an express finding of bad faith by the trial court is not required, a sanction of attorney fees imposed under the court's inherent authority must be based on a finding of conduct that was at least “ ‘tantamount to bad faith.’ ” State v. S.H., 102 Wash.App. 468, 474, 8 P.3d 1058 (2000) (quoting Roadway Express, Inc. v. Piper, 447 U.S. 752, 767, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980)).

¶ 6 The State argues that the trial court must make an express finding of bad faith. That is certainly the best practice, and we encourage trial courts to do so. However, in the absence of an express finding, appellate courts have upheld sanctions where an examination of the record establishes that the court found some conduct equivalent to bad faith. Id. at 475, 8 P.3d 1058;Wilson v. Henkle, 45 Wash.App. 162, 175, 724 P.2d 1069 (1986). In the instant case, the court awarded $2,000 to Partovi, counsel for one of the accused. Because Partovi was awarded fees, he is the party in interest in this appeal, and Partovi has represented himself. At oral argument, as he did in his briefing, Partovi often argued outside the record and largely conceded any grounds upon which we could infer bad faith.

¶ 7 It is clear from the record before us that the underlying criminal cases had a complicated history, with multiple charges filed, then dismissed, and new charges filed. Partovi believes the motion to amend the day of trial was part of an ongoing saga demonstrating bad faith. The trial judge did reference other “cases” several times during motion hearings. E.g., RP at 205. But the trial court expressly stated on multiple occasions throughout the record that the sanctions were based upon “this case” alone and not any other cases. RP at 189; see also RP at 81–82, 205. The record or records of other cases are not before us. The only issue before us is the sanction imposed for the last minute motion to amend the date of the alleged crime in this case.

¶ 8 Partovi conceded that he had failed to file a notice of an alibi defense, although required to do so. He also conceded that he was aware of a possible change of date as a cocounsel had alerted him several days before the State moved to amend. Partovi further conceded that the “on or about” language relating to April 15 was sufficient to include April 17 for the purpose of notice., Finally, Partovi represented to this court that he did not request or need a continuance in response to the motion to amend. Given the trial court's specific description of the State's behavior as “careless,” RP at 42; CP at 25, 118, and Partovi's concessions in the record and during oral argument, we cannot infer any conduct tantamount to bad faith in the record before us to support the court's sanction.

The record before us does not disclose the basis for this requirement. We assume the alibi defense notice requirement referenced by the parties is based upon a local rule or omnibus order.

Wash. State Supreme Court oral argument, State v. Partovi, No. 85801–2 (June 14, 2012), at 22 min., 52 sec., audio recording by TVW, Washington State's Public Affairs Network, available at http:// www. tvw. org.

The issue of whether this language is broad enough to encompass both dates was not raised on appeal to this court and is not before us.

Wash. State Supreme Court oral argument, supra, at 34 min., 22 sec.

Conclusion

¶ 9 The trial court failed to make a finding of bad faith to support the sanctions imposed. Based upon the trial judge's specific finding that the State's conduct was careless and not purposeful, and the concessions of Partovi, the record provides no basis for this court to infer bad faith or conduct tantamount to bad faith. We therefore conclude the trial court abused its discretion and reverse. WE CONCUR: BARBARA A. MADSEN, Chief Justice, CHARLES W. JOHNSON, SUSAN OWENS, MARY E. FAIRHURST, JAMES M. JOHNSON, DEBRA L. STEPHENS, CHARLES K. WIGGINS, and STEVEN C. GONZÁLEZ, Justices.
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