STATE OF OREGON, Plaintiff-Appellant, v. CARLOS E. ZAMORA-SKAAR, aka Carlos Enrique Zamora-Skaar, Defendant-Respondent.
Washington County Circuit Court 18CR84154, 18CR79052; A171855
Court of Appeals of Oregon
Argued and submitted November 10, affirmed December 30, 2020
308 Or App 337 (2020); 480 P3d 1034
Before DeVore, Presiding Judge, and DeHoog, Judge, and Hadlock, Judge pro tempore.
This appeal arises from a proceeding under
Affirmed.
D. Charles Bailey, Jr., Judge.
Carson L. Whitehead, Assistant Attorney General, argued the cause for appellant. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Laura Graser argued the cause and filed the brief for respondent.
When a trial court finds that a defendant in a criminal case “lacks fitness to proceed,” the criminal proceeding must be suspended.
In this case, the trial court deemed defendant unfit to proceed. Accordingly, the court entered a .370 order committing defendant to OSH and requiring his transport to the hospital within seven days. It is undisputed that OSH was aware of the order and did not comply with it. When defendant remained in jail beyond the seven-day compliance period, defendant initiated remedial contempt proceedings against OSH and the Oregon Health Authority (OHA), which operates OSH.2 OSH defended against the contempt allegation based on an affirmative defense of inability to comply with the seven-day timeline, given its view that admitting more patients to OSH under .370 orders would compromise patient treatment and put patients and OSH staff at risk. See
On appeal, OSH contends that the trial court incorrectly applied the law when considering OSH‘s affirmative defense of inability to comply. OSH also argues that the trial court made factual findings that the record does not support. For the reasons set out below, we conclude that OSH has not established that the trial court committed reversible error. Accordingly, we affirm.
For many years, it has been the law in Oregon that criminal proceedings must be suspended when the charged defendant is found to lack fitness to proceed, that is, when the defendant is found unable to “aid and assist” in the defense. See, e.g.,
Orders issued under
In 2002, federal litigation was initiated against OSH in which the plaintiffs alleged that OSH “was violating mentally incapacitated [criminal] defendants’ due process rights by unreasonably delaying such defendants’ transfer from county jails to OSH for treatment.” Mink, 322 F3d at 1105. The district court agreed, finding that defendants were spending an average of about a month in county jails—and, in some instances, a few months—between a determination of their unfitness to proceed under
On appeal, the Ninth Circuit upheld the district court‘s injunction, noting “that by statute OSH is solely responsible for the timely treatment of incapacitated criminal defendants so that they may become competent to stand trial.” Id. at 1119-20. The court also was “mindful of the undisputed harms that incapacitated criminal defendants suffer when they spend weeks or months in jail waiting for transfer to OSH“:
“These harms include the following: Although jails can sometimes provide treatment to stabilize a patient, they cannot restore a patient to competency. Thus, incarceration in a county jail delays an incapacitated criminal defendant‘s possible return to competency. The disciplinary system that jails use to control inmates is
ineffective for, and possibly harmful to, incapacitated criminal defendants. Because of their unpredictable or disruptive behavior, they are often locked in their cells for 22 to 23 hours a day, which further exacerbates their mental illness. Incapacitated criminal defendants have a high risk of suicide, and the longer they are deprived of treatment, the greater the likelihood they will decompensate and suffer unduly.”
Id. at 1120.
In considering whether OSH was violating the due process rights of incapacitated defendants by delaying their admission to the state hospital, the Ninth Circuit held that such defendants, not yet convicted of any crime, had liberty interests both in freedom from incarceration and “in receiving restorative treatment.” Id. at 1121. The court also observed that OSH had not established any “legitimate state interest in keeping mentally incapacitated criminal defendants locked up in county jails for weeks or months.” Id. The court concluded that OSH violated the substantive due process rights of such defendants when it “refuse[d] to admit them in a timely manner.” Id. at 1121-22. The Ninth Circuit therefore upheld the district court‘s injunction “requiring OSH to admit mentally incapacitated criminal defendants within seven days of a judicial finding of incapacitation.” Id. at 1123.3
At the contempt hearing in this case, OSH acknowledged the continuing existence and validity of the Mink injunction and its requirement (reflected in the .370 order in this case) that criminal defendants be admitted to OSH within seven days of an unfitness-to-proceed determination. OSH also acknowledged that it had not sought to modify the injunction based on its claimed inability to accommodate the increasing numbers of such defendants that courts were committing to OSH under
II. THE CRIMINAL CASE AND CONTEMPT PROCEEDING
Although not all the procedural history of this case is pertinent to the precise questions before us on appeal, we set out that history in some detail because it provides context for the issues that the parties raise. Defendant was charged with burglary and two counts of criminal mischief in December 2018. His lawyer sought a fitness-to-proceed hearing, asserting that defendant appeared unable to understand even “general [tenets] of reality,” such as who he was or why he was in jail. In January 2019, the trial court entered a .365 order committing defendant to OSH for purposes of observation and examination. Defendant nonetheless remained in jail and, a week after the .365 order was entered, a social worker reported that defendant‘s mental health appeared to be deteriorating. A month later, defendant requested a status hearing because he still had not been transported to OSH, he remained in jail, and his condition had further deteriorated. In March 2019, the trial court entered another .365 order, specifying that defendant must be transported to OSH within seven days.
Two weeks after the court entered that .365 order, defendant remained in jail. Defendant‘s attorney moved to find OSH in contempt, asserting that she had received an email from OSH‘s attorney indicating that the hospital had no available beds. OSH then moved to vacate the .365 order on the ground that the trial court lacked authority to impose a seven-day deadline for compliance with that type of order. In response to the contempt motion, OSH also asserted that “there were 39 defendants under .370 orders in jail waiting for admission to OSH“; OSH argued that it “[could not] comply with the 7-day admission requirement in [the] .365 Order without further compromising clear obligations under federal law,” referring to the Mink seven-day compliance deadline for .370 orders.
OSH did not comply. On April 19, 2019—eight days after the .370 order issued—defendant asked the court to hold OSH in contempt because he had not yet been transported to the hospital. An initial hearing was held a few days later, and OSH explained that defendant was still in jail because there was a waiting list for admission of defendants who had been committed to OSH under
The parties submitted written memoranda in anticipation of the evidentiary hearing. In its memorandum, OSH set out the general principles related to remedial contempt proceedings, including that “inability to comply” is an affirmative defense to a contempt allegation (except when that inability is brought on by the contemnor‘s own contumacious conduct). OSH acknowledged that, when an alleged contemnor “is able to comply partially with the decree, the law requires that he comply to the extent of his ability.” (Quoting State ex rel Fry v. Fry, 28 Or App 403, 406, 559 P2d 1293 (1977).).
In this case, OSH argued, it was unable to comply with defendant‘s .370 order even though the hospital was operating at less than 100 percent capacity and had some empty beds. Relying primarily on declarations—and, subsequently, in-person testimony—from OSH‘s deputy superintendent and OHA‘s director, OSH offered three types of evidence in support of that argument. First, OSH offered evidence of the “[t]hree populations *** served within OSH,” which are not limited to criminal defendants admitted pursuant to .370 orders. In its hearing memorandum, OSH described those populations as follows:
“(1) Civil commitments, who are people who have been found by the court to be an imminent danger to themselves or others, or who are unable to provide for their own basic health and safety needs due to their mental illness; (2) Guilty Except for Insanity (GEI), people who committed a crime related to their mental illness, and (3) Aid and Assist, people who have been arrested but are not able to participate in their trial because of a mental illness.”
OSH offered evidence of the medical, psychiatric, and other services it provides to those patient populations, with the primary goal of helping people recover from mental illness and return to the community.
Second, OSH offered evidence of its efforts to respond to a dramatic increase in the number of criminal defendants who had been committed to OSH “for Aid and Assist treatment” over the past several years. According to OSH‘s evidence (which defendant did not controvert), the average daily population of such patients was 109 in 2012 and had increased to 264 by the time of the contempt hearing, with 53 defendants waiting for admission. OSH described its response to that increase as including opening new units within OSH to serve the aid-and-assist population, consolidating populations served within existing units, and doubling the total beds available for aid-and-assist patients since 2013. OHA director Allen also averred that,
Third, OSH presented evidence that patients and staff could suffer harm if additional aid-and-assist patients were admitted under existing conditions. In its hearing memorandum, OSH summarized and explained the general significance of that evidence, particularly as it relates to “managed occupancy limits” that, in accordance with best practices, resulted in not every hospital bed being filled:
“Setting and following appropriate managed occupancy limits is an industry-wide best practice because filling beds at 100% capacity poses significant safety risks for patients and staff. Occupancy limits not only mitigate safety risks at OSH, it leads to efficient and effective treatment and lower lengths of stay translating to more patients who can be treated within a given year, reduced staff turnover, better patient outcomes, operational flexibility during times of patient clinical crisis, and patients being admitted to the most appropriate beds in a timely manner. Filling beds at rates above an appropriate managed occupancy limit[] has the opposite effect.
“Operating at 85% capacity is the prevailing standard for both general and psychiatric hospitals. Having acute-needs beds allows facilities to maintain a high quality of care, patient safety, and operational flexibility during times of crisis, and allows for patients to be admitted to the most appropriate beds in a timely manner. This prevailing standard has been established pursuant to empirical research and institutional experience.”
OSH asserted that 53 defendants, including the defendant in this case, were waiting for admission to OSH pursuant to .370 orders at the time of the contempt proceedings. It presented evidence supporting its view that admitting any of those defendants would require OSH to either “exceed[] the managed occupancy limits for the type of care prescribed” or “inappropriately discharg[e]” other patients. And exceeding the managed occupancy limits, OSH asserted, would “present[] risks to the safety of patients and staff and would also reduce the number of patients the hospital is able to serve over a year, as well as having other negative impacts on the system.” Accordingly, OSH concluded, it was “unable to admit defendants immediately.”
In his written memorandum, defendant argued that OSH‘s failure to comply with the .370 order was willful because it had chosen not to comply. Defendant asserted that OSH had known for years “about the decreasing bed space, the lack of facilities, and the lack of staff that caused the delays in admission.” Defendant further argued that “lack of resources” was not a defense to contempt in this case because OSH, knowing of its increasing need for resources, had “failed to perform any meaningful reform or policy changes to prevent the lack of resources from occurring.”
The parties elaborated on their arguments at the contempt hearing. The parties agreed in opening statements that, for violation of a court order to constitute contempt, the violation must have been willful. The parties also agreed that “inability to comply” is an affirmative defense.
In support of his contention that OSH had willfully violated the .370 order, defendant presented (among other evidence) testimony from a lieutenant who was responsible for transporting defendants from the Washington County jail, where defendant was being held, to OSH. The lieutenant explained that the sheriff‘s office cannot immediately transport a defendant to OSH upon receiving a .370 order: rather, it must wait for notification from OSH that a bed is available. She also confirmed that defendant had not been transported to OSH within seven days after the .370 order issued. In addition, a psychologist testified about the calmer environment and increased level of mental-health services available at OSH as compared to those available at the jail.
At that point, the court again interjected, asking how many beds were available throughout OSH that could accept patients under either a .370 or a .365 order. Wehr responded that 533 such hospital beds were available. The court then asked how many of those beds had been full over the preceding month. Wehr testified that, on the day before the contempt hearing, 516 of the 533 beds (or 93.3 percent) were full. The court expressed its view that those figures meant that beds had been available:
“THE COURT: So I‘ll round it up for you guys. I think it was a rounding-up number. Ninety-four percent.
“[WEHR]: Yes.
“THE COURT: So understanding that, if I take 553, times it by six percent, I‘m going to get an answer of how many beds have been available over the last 30 days.”
Wehr went on to testify that it was “really important” not to fill all the beds because OSH needed flexibility to move patients between units, to save space for certain individuals who had to be hospitalized on an expedited basis, to have space in “high-acuity units” for any patients who severely destabilized, and to avoid putting patients in units that were inappropriate for their care. Wehr acknowledged that the hospital already was exceeding the 85 percent occupancy standard that OSH deemed the industry standard, and he testified that it was because OSH “want[ed] to make sure that we can get as many people under .370 orders into [OSH] *** as safely as we possibly can.”
OHA director Allen also testified, providing additional detail about the legislative budgeting process, the agency‘s unsuccessful October 2018 request to the legislature‘s Emergency Board for additional funding for the aid-and-assist program, and the legislature‘s decision to instead provide a lesser amount of funding, designated for community-based restoration. Allen asserted that, even if OSH had received the requested funds for aid-and-assist beds in October 2018, it would have taken at least six months for a new unit to open and be ready to receive patients. Allen also testified that, “[o]n the front end, we need to try to avoid people coming to the hospital at all“; he described the provision of community-based mental-health services as part of that effort.
In closing argument, defendant emphasized that OSH knew of the .370 order and made no effort to comply with it. Defendant also argued that, under Mink, the lack of funding could not justify the failure to provide defendant with needed treatment at OSH. In addition, defendant argued, the “inability to comply” affirmative defense was not available to OSH because “[t]here are additional beds that they could be filling.” Defendant acknowledged that OSH‘s resources were limited, but he argued that it was “the choices [OSH] made [that] have led to and contributed to this crisis.”
In its closing argument, OSH asserted that the issue before the court was not vindication of defendant‘s constitutional rights under Mink but, rather, whether OSH complied with the .370 order “and if [OSH] didn‘t, was failure to comply willful, or [was OSH] unable to comply.” OSH argued that the evidence showed that it had “been working hard and diligently to comply with Mink.” It emphasized that admitting more aid-and-assist patients would lead to detrimental overcrowding that would interfere with OSH‘s obligation “to provide a therapeutic and safe environment.” Accordingly, OSH argued, it had been unable to comply with the .370 order.
The trial court agreed with defendant and found OSH in contempt. After finding (as the parties essentially agreed) that OSH knew of the .370 order and did not comply with it, the court set out to discuss whether that violation was “voluntary“:
“Evidence *** included party opponent admissions by OSH employees that the court was better off converting .365 orders to .370 orders (despite a factual basis) because they were giving priority to the .370 commitment orders due to the Mink decision. That OSH was given money from the legislature that they chose to use to fund community restoration in counties other than Washington County. That OSH had beds available but has chosen not to use those beds for the defendants due to resource issues. That OSH did nothing to inform the court or the parties of their non-compliance with the court orders. That OSH has known about the problem for years and especially in the last year as demonstrated by their request for more funding from the legislature (in part which they received and used above and in part which was denied by the legislature). As Mink made clear, due to Oregon‘s statutory scheme, a voluntary non-compliance with a court order, hence, violating a defendant‘s due process rights, cannot be blamed on ‘lack of funds, staff, facilities....’ [Mink, 322 F3d at 1121]. In sum, the evidence was clear that OSH voluntarily and openly chose not to comply with the orders, thus, is in contempt of court.”
(Emphasis added.) The court subsequently entered a judgment finding OHA and OSH in contempt and imposing a remedial sanction of $100 for each day that defendant remained in jail from April 19 onward.6
III. THE PARTIES’ ARGUMENTS ON APPEAL
On appeal, OSH acknowledges that the .370 order was lawful and that defendant proved a prima facie case for contempt. Nonetheless, OSH argues that the trial court erred in two ways. First, it asserts that the court applied an incorrect legal standard in relation to the “inability to comply” affirmative defense. Specifically, OSH contends that the court erred by “accept[ing] defendant‘s legal argument that Mink prohibited a defense based on lack of resources, concluding that a failure to comply ‘cannot be blamed on lack of funds, staff, facilities.‘” (Some internal quotation marks omitted.) OSH argues that it was entitled to defend against the contempt motion “based on the lack of resources to comply with the court‘s .370 order.”
Second, OSH contends that some of the trial court‘s factual findings are not supported by the record. In particular, OSH argues that the record does not support the trial court‘s finding that OSH had chosen not to use available beds. According to OSH, “the record shows that OSH could not fill every bed within the state hospital because it needed to have space to move patients within the hospital based on the level of care required for an individual patient and to have flexibility for emergencies.” OSH asserts that the trial court‘s “unsupported findings provide an independent basis to reverse the contempt judgment.”
In response, defendant argues, among other things, that the trial court applied the law correctly. He contends that an alleged contemnor can establish the affirmative defense of “inability to comply” only by demonstrating that compliance would have been “factually impossible.” In defendant‘s view, the record supports a determination that OSH could have complied with the court order, but it chose not to. He concludes that “[c]ourt orders control over agency policy, even when
In its reply brief, OSH contends that “impossibility” is not the standard for an “inability to comply” affirmative defense. Relying on a dictionary definition of “inability,” OSH argues that a party‘s lack of resources or capacity can establish that the party is unable to comply with a court order.7 In this case, OSH contends, it “should be excused from meeting the deadline in light of the surge of .370 orders that overwhelmed the hospital, the resource constraints over which the hospital has no control, and the lack of bed space, lack of staff, and lack of funding to safely and effectively admit all defendants subject to a .370 order within seven days.”
IV. ANALYSIS
A. Remedial Contempt Proceedings, Generally
Contempt proceedings are governed by statute. “Contempt of court” is defined to include disobedience of a court order.
An alleged contemnor may, however, raise an affirmative defense of inability to comply with the court order.
“‘If the defendant is able to comply partially with the decree, the law requires that he comply to the extent of his ability.’ State ex rel Fry v. Fry, 28 Or App 403, 406, 559 P2d 1293 (1977). Thus, where a defendant could not fully comply with a support order, but had some money that he could have, but failed to, apply toward his support obligation, that defendant may be properly held in contempt.”
Altenhofen, 271 Or App at 61 (some citations omitted).
When a party‘s willful noncompliance with a court order has been proved (and no affirmative defense established), “it is for the trial court‘s discretion whether remedial sanctions, if any, are appropriate[.]” Elizabeth Lofts Condo Owners’ v. Victaulic Co., 293 Or App 572, 581, 428 P3d 952 (2018).
B. OSH‘s Argument that the Trial Court Incorrectly Applied the Law
OSH first argues that the trial court “applied an incorrect legal standard when it concluded that the Mink opinion *** precluded OSH from asserting that it was unable to comply with the court‘s order due to a lack of resources, such as bed space, staffing, and funding.” Before addressing that argument, we pause to clarify what OSH is not arguing in this appeal.
First, OSH does not dispute that the evidence supports the trial court‘s determination that OSH willfully violated the .370 order. Nor does it contend that the trial court incorrectly applied the law when considering whether defendant had established a prima facie case that OSH was in contempt. Thus, the only issues on appeal relate to whether OSH established the affirmative defense of “inability to comply.”
Second, OSH does not argue that the evidence was such that the trial court was required to find that OSH had established that affirmative defense. Put differently, OSH does not argue that the evidence of OSH‘s resource limitations, its efforts to accommodate increasing numbers of “aid and assist” patients, industry standards, and the 93.3 percent bed-occupancy rate compelled a determination that OSH was unable to comply with the seven-day deadline in the .370 order.8
Rather, we understand OSH‘s argument to be confined to an assertion that the trial court applied an incorrect legal standard when it considered whether OSH had established the affirmative defense. In the context of a bench trial, that type of argument is akin to an assertion that a trial court delivered an incorrect jury instruction. Accordingly, we review both to determine whether the court instructed itself incorrectly regarding the law and whether any erroneous self-instruction was harmless. See State v. Carillo, 304 Or App 192, 202-06, 466 P3d 1023, rev den, 367 Or 220 (2020) (applying that analysis); State v. Colby, 295 Or App 246, 251-52, 433 P3d 447 (2018) (discussing ways in which a party may raise questions about elements of a claim and how a trial court may “instruct itself on the correct version of the law“).
A jury instruction—or a court‘s self-instruction—is erroneous if it “communicate[s] *** an inaccurate legal rule to apply to the facts.” State v. Morales, 307 Or App 280, 287, 476 P3d 965 (2020). When an erroneous instruction was given during a jury trial, we evaluate whether the error was harmless by considering the parties’ contentions at trial, the jury instructions as a whole, and how the parties’ theories of the case developed, with the ultimate question being whether there is little likelihood that the error affected the jury‘s verdict. Id. at 289. By analogy, when considering whether a trial court‘s erroneous self-instruction was harmless (or, conversely, constitutes reversible error), we must determine whether there is little likelihood that the erroneous self-instruction affected the court‘s verdict, considering the parties’ arguments, the court‘s statements regarding the pertinent law, and how the parties’ theories of the case developed over time.
We take that contextual approach in evaluating OSH‘s argument that the trial court applied an incorrect legal standard in association with the “inability to comply” affirmative defense, noting that we perceive three separate aspects to OSH‘s argument. First,
Before discussing the second and third aspects of OSH‘s argument, we note that—despite both parties having acknowledged that “inability to comply” is an affirmative defense—neither party focused on the distinction between defendant‘s prima facie contempt case and OSH‘s affirmative defense in framing their arguments for the trial court. To the contrary, both parties often seemed to treat willfulness and inability to comply as two sides of the same coin, with OSH asserting, for example, that the question before the trial court was whether its failure to comply with the .370 order “was *** willful, or were we unable to comply.” We remark on that apparent conflation of the issues in the trial court because, as discussed below, it informs how we read the court‘s decision.
The second part of OSH‘s argument on appeal is narrower than the first. OSH asserts that the trial court erroneously precluded it from relying on a lack of resources to establish the affirmative defense of inability to comply. OSH contends that, in this proceeding, as in at least some other types of contempt proceedings, the alleged contemnor‘s financial inability to comply with a court order precludes a contempt determination. According to OSH, the trial court precluded OSH from establishing that kind of “lack of resources” defense by inappropriately importing a standard from Mink—which addressed criminal defendants’ due-process interests—into the different context of contempt proceedings:
“Relying on Mink, and as defendant had argued, the court rejected OSH‘s assertion that it was unable to comply with the seven-day admission deadline because it lacked the resources to safely and appropriately treat defendant. The court concluded:
““*** As Mink made clear, due to Oregon‘s statutory scheme, a voluntary non-compliance with a court order, hence, violating a defendant‘s due process rights, cannot be blamed on “lack of funds, staff, facilities ***” [Mink, 322 F3d at 1121]. In sum, the evidence was clear that OSH voluntarily and openly chose not to comply with the orders, thus, is in contempt of court.”
The state emphasizes that Mink was not a contempt case and that the Ninth Circuit‘s opinion “said nothing about contempt defenses under state law.”
For the purpose of considering OSH‘s argument, we assume—without deciding—that OSH is correct that it could not properly be held in contempt if it established that it was actually unable to comply with the .370 order, even if that inability to comply was caused by a lack of financial resources. However, we are not persuaded that the trial court‘s reference to Mink, quoted above, indicates that the trial court‘s contempt determination was based on a contrary understanding of the law.
The trial court‘s citation to Mink cannot properly be viewed in isolation; rather, it must be considered in the larger context of the multiple court proceedings related to defendant‘s deteriorating mental state, the court‘s repeated attempts (using both .365 and .370 orders) to have defendant admitted to OSH, and the parties’ framing of the issues. True, during the course of those proceedings, OSH referenced its unsuccessful efforts to obtain additional funding for aid-and-assist beds in October 2018, defendant relied on Mink for the proposition that lack of resources could not justify OSH‘s noncompliance with the .370 order, and the court cited Mink for the proposition that a lack of resources could not justify “voluntary non-compliance” with such an order. Nonetheless, considering the entire context of the
Importantly, the trial court did not state that, under Mink, an actual inability to comply with the .370 order could not constitute an affirmative defense if that inability was caused by a lack of resources. Also importantly, the court did not find—as a factual matter—that OSH was unable to comply with the order. That is (and stating those two ideas together), the court did not determine that (1) OSH was unable to comply, but (2) that—because of Mink—that inability could not constitute an “inability to comply” affirmative defense under
Rather, in referring to Mink, the trial court expressed its understanding that OSH‘s “voluntary non-compliance” with the .370 order could not be excused by a lack of resources. (Emphasis added.) The court‘s use of the word “voluntary” is important, particularly in light of the court‘s repeated suggestions that it believed that the existence of vacant hospital beds suitable for aid-and-assist patients showed that OSH could have complied with the .370 order, but had chosen not to. In context, we view the court as having used the word “voluntary” in conjunction with the only disputed issue the court was asked to decide—whether OSH had established that it was unable to comply with the order.9 Thus, we understand the court‘s reference to Mink
as reflecting only its belief that a lack of resources could not justify voluntary noncompliance, that is, noncompliance when compliance would have been possible notwithstanding OSH‘s resource issues.
Moreover, even if the trial court‘s reference to Mink reflected a mistaken belief that an alleged contemnor can never establish an “inability to comply” affirmative defense if the inability is based on a lack of resources, we would view that self-instruction error as harmless in this case.10 Although the parties and the court discussed the absence of legislative funding for additional aid-and-assist beds, the trial court‘s decision was not centered on that lack of funding. Nor was the court focused on whether, if OSH had received additional financial resources, it might have been able to open more beds for that patient population. Rather, as the court‘s statements and its questioning of OSH‘s witnesses demonstrates, the court was primarily—and fundamentally—focused on whether OSH could have admitted defendant to the hospital given existing facilities and the uncontested fact that dozens of hospital beds were unoccupied at the time of the contempt hearing.
Thus, the court‘s decision was based on its determination, as a matter of fact, that OSH could have admitted defendant to the hospital in keeping with the .370 order and that it chose not to. The court did not base its decision on a determination that OSH could not admit defendant, but nonetheless was not entitled to an “inability to comply” affirmative defense because its inability was due to a lack of resources. Accordingly, even if the trial court misunderstood Mink as precluding an affirmative defense under such circumstances, it does not matter, because those are not the circumstances that the court found to exist in this case. We conclude that there is little likelihood that the trial court‘s decision was affected by any mistaken understanding of Mink. In other words, any such error was harmless.
For example, OSH asserts in its reply brief that “factual impossibility” is not the standard for an “inability to comply” affirmative defense. Relying on a dictionary definition, OSH argues that “inability” can connote a lack of resources or capacity. OSH then describes the evidence that, OSH contends, demonstrates that OSH “was taking every reasonable step to admit patients as quickly and safely as possible.”
OSH does not expressly connect the dots between that evidence and any legal test for the “inability to comply” affirmative defense that differs from a “factual impossibility” standard. But, to the extent that we can discern a connecting rationale, it is a suggestion that the trial court was required to accept OSH‘s professional judgment that admitting additional aid-and-assist patients (filling some or all of the vacant beds) would have created unacceptable safety risks and harm to both patients and staff—risks and harm so great that OSH should be deemed unable to comply with the .370 order.
Perhaps the trial court could have accepted OSH‘s judgment on those matters and declined, for that reason, to impose contempt sanctions. But OSH‘s suggestion that the trial court was required to accept OSH‘s judgment is problematic, at least in the context of this case. As an initial matter, the question of what legal standard applies to an “inability to comply” affirmative defense (if the standard is something other than “factual impossibility“) is not properly before us on appeal, as the parties did not litigate that issue below, but simply agreed that “inability to comply” is an affirmative defense.11 Moreover, we remain uncertain exactly what legal standard OSH would have courts apply in relation to that issue. Is the rule that a court determining whether a government agency should be held in contempt for violating a court order must always accept that agency‘s judgment about whether compliance would create health and safety risks? Or must the court accept the agency‘s judgment if no party puts on evidence contradicting the agency‘s evidence about the advisability of compliance (despite the agency having the burden of proof on the affirmative defense)? Is the court supposed to weigh the harms that the agency says would result from compliance against the different harms caused by the agency‘s failure to comply? If so, what standard governs that balance? Does some sort of “reasonableness” standard come into play at any point in the analysis? What about consideration of whether the agency acted in good faith? Or does “inability to comply,” which, after all, is a statutory term,
Those legal questions are important, and they are challenging. But the parties did not litigate those issues in the trial court. Nor have the parties directly confronted those issues in this appeal. That is, the parties have
“inability to comply” if that test is something other than “factual impossibility.” Accordingly, we do not address that issue further in this case, beyond noting that—to the extent that OSH contends that some standard other than “factual impossibility” applies—OSH has not identified either what that standard is or the basis for it.
In short, we conclude that OSH has not established that the trial court based its rejection of OSH‘s “inability to comply” affirmative defense on an incorrect understanding of the law. OSH‘s argument on that point does not present a ground for reversal.
C. OSH‘s Challenge to Certain Factual Findings
We turn to OSH‘s contention that the record does not support some of the trial court‘s factual findings. In an argument related to the one we already have rejected, OSH asserts that the record does not support the court‘s finding that “OSH had beds available but has chosen not to use those beds for the defendants due to resource issues.” OSH contends that the finding is erroneous because the evidence shows that it had good reasons for not filling every bed, such as maintaining flexibility for emergencies, maintaining occupancy limits to ensure the safety of patients and staff, and ensuring that patients received effective treatment. We disagree with OSH‘s contention that its evidence undermines the court‘s finding. The testimony of OSH‘s own witnesses supports a finding that the hospital had not filled dozens of beds that could have been used to provide a hospital level of care for aid-and-assist patients. The record also supports the court‘s finding that OSH “chose” not to use those beds. That choice may well have been based on a sound and good-faith exercise of professional judgment that resulted in OSH accommodating as many aid-and-assist patients as it believed was consistent with health and safety concerns, but it nonetheless remained a choice.
OSH also contends that the record does not support three other findings by the trial court: (1) that OSH employees admitted “that the court was better off converting .365 orders to .370 orders (despite a lack of factual basis) because they were giving priority to the .370 commitment orders due to the Mink decision“; (2) that “OSH did nothing to inform the court or the parties of their noncompliance with the court orders“; and (3) that “OSH has known about the problem for years and especially in the last year as demonstrated by their request for more funding from the legislature.” Having reviewed the entirety of the record, and having considered the evidence and arguments that led to the three challenged findings, we conclude that the record supports each of those findings. We reject OSH‘s challenge to them without further discussion.
Affirmed.