IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
In the Matter of the Dependency of ) No. 79364-1-I
) (consolidated with Nos.
A.M.-S., DOB: 12/17/08. ) 79365-9 & 79366-7)
)
SERGIO MICHEL-GARCIA, ) DIVISION ONE
Petitioner, )
) PUBLISHED OPINION
v.
STATE OF WASHINGTON, )
)
Respondent. ) FILED: December 16, 2019
ANDRUS, J. — Sergio Michel-Garcia, the father of A.M.-S., appeals a trial
court order denying his request for derivative use immunity for statements he has
made or may make during a psychological evaluation or any other court-ordered
services during this dependency proceeding. We conclude the trial court does not
have the inherent authority to grant Michel-Garcia derivative use immunity and
therefore affirm.
FACTS
In May 2018, the Department of Social and Health Services’ filed a
dependency petition on behalf of 10-year-old A.M.-S., alleging that the child’s
1 Effective July 1, 2018, the newly created Department of Children, Youth, and Families
(DCYF) took over child welfare duties that were formerly the responsibility of the Department of
No. 79364-1 -1/2
mother2 and father, Sergio Michel-Garcia, had physically abused A.M.-S. and three
other children living in the home. The Snohomish County Sheriff’s Office opened
a criminal investigation into the alleged abuse.
The parents agreed to the entry of a shelter care order removing the
children from their home in May 2018, and an order finding the children dependent
in August 2018.~ Michel-Garcia denied the allegations of abuse, but “given the
nature of the allegations and the possibility of criminal charges, the father agree[d]
that he [wa}s unable to care for the child at this time and admit[ted] that if this
matter proceeded to a [f]act-[f]inding hearing, the Department would more likely
than not prove that the child [wa]s dependent by a preponderance of the evidence.”
He stipulated to a finding under RCW 13.34.030(6)(b)4 that “the child is abused or
neglected as defined in Chapter 26.44 RCW,” and a finding under
RCW I 3.34.030(6)(c) that the child had no parent capable of adequately caring for
the child.
Michel-Garcia also acknowledged that the services listed in section 4.5 of
the order “would be required in order to reunite him with his child.” One of the
services listed, and in which he agreed and the court ordered him to participate,
was a psychological evaluation with a parenting component. The court reserved
on whether to order Michel-Garcia to undergo other services that the Department
Social and Health Services (DSHS). RCW 43.216.906. This opinion references the Department
to mean DSHS before July 1,2018, and DCYF after July 1,2018.
2 A.M.-S.’s mother has not participated in this appeal, and for that reason, we will refer to
her only by her status, rather than by name.
~ Under RCW 13.34.110(3), a parent may stipulate to the entry of an order of dependency
and an order of disposition under RCW 13.34.130, subject to the approval of the court.
~ RCW 13.34.030(6) provides four definitions for a “dependent child.”
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No. 79364-1-1/3
requested—namely, a domestic violence assessment and an anger management
assessment.
In September 2018, Michel-Garcia asked the court to grant him use and
derivative use immunity, under State v. Decker,5 for any statements he made or
information he provided in any services ordered by the dependency court. The
Department notified the Snohomish County Prosecuting Attorney’s Office of the
father’s immunity request, and the Prosecuting Attorney objected to a judicial grant
of immunity broader than that statutorily authorized under RCW 26.44.053.6 The
Prosecuting Attorney argued that Michel-Garcia’s Fifth Amendment right against
self-incrimination could be adequately protected during any evaluation by this grant
of statutory use immunity and the presence of counsel.
The dependency court denied Michel-Garcia’s request for derivative use
immunity. The court found that with a criminal investigation pending against him,
Michel-Garcia voluntarily agreed to engage in psychological evaluations but
wished to do so without waiving any Fifth Amendment rights. It also found that
“[t]he custom in our juvenile court historically is to grant Decker motions [for
immunity] if unopposed.” It found no case law directly on point on the issue of
whether a parent should be granted Decker immunity in a dependency case so he
can engage in evaluations and treatment.
~ 68 Wn. App. 246, 842 P.2d 500 (1992).
6 The statute provides, in pertinent part, that [n]o information given at any. examination
. .
of the parent or any other person having custody of the child may be used against such person in
any subsequent criminal proceedings against such person or custodian concerning the alleged
abuse or neglect of the child.” RCW 26.44.053(2).
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No. 79364-1-1/4
The court analyzed two cases on which Michel-Garcia relied—In re
Dependency of Q.L.M., 105 Wn. App. 532, 20 P.3d 465 (2001), and In re
Dependency of J.R.U.-S., 126 Wn. App. 786, 110 P.3d 773 (2005)—and found
neither case applicable. The court noted that, contrary to Q.L.M., neither parent in
this case had requested a protective order limiting the questions the parents could
be forced to answer. It further concluded that under J.R.U.-S., court-ordered
psychological evaluations are not testimonial in nature and, as a result, Decker did
not apply.
The court reasoned:
Parents always have the right to go to trial on termination and
dependency petitions, and to have extended hearings, so the court
can evaluate their statements in various ways. It is the parents’
choice not to go to trial after consulting with their attorneys about
what the best strategy is. In this case the strategy was to accept a
‘b’ and ‘c’ dependency without an explicit statement of facts. The
parents are still free to have a termination trial if it comes to that.
They can give their statements and be subject to cross-examination,
and if they invoke the Fifth Amendment at trial, . .the court can
.
draw whichever conclusions it wishes to draw.
The court concluded that RCW 26.44.053(2), the statute granting use
immunity to parents for statements made or information provided during
dependency evaluations, combined with the parents’ ability to simply refuse to
answer questions that might elicit inculpatory information, sufficiently protected the
parents’ Fifth Amendment rights. The court ordered:
Pursuant to RCW 26.44.053, no information given at any
examinations of the parents (completed in association with this
dependency action) may be used against the parents in subsequent
criminal proceedings against the parents concerning the alleged
abuse or neglect of the child. The Department shall not provide
copies of the parents’ evaluations to the Prosecuting Attorney, nor
shall the Department discuss the evaluations/recommendations with
the Prosecuting Attorney.
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No. 79364-1-1/5
The court ordered Michel-Garcia to participate in a psychological evaluation and a
domestic violence assessment pursuant to the terms of this protective order.
We granted Michel-Garcia’s request for discretionary review of the order
denying derivative use immunity.
ANALYSIS
Michel-Garcia asks this court to hold that trial courts in Washington have
the inherent authority to grant derivative use immunity to parents participating in
dependency services when necessary to protect their Fifth Amendment rights
against self-incrimination. But the Snohomish County Prosecuting Attorney asks
the court to hold that immunity is solely a legislative prerogative and that, in the
absence of statutory authorization to grant immunity, courts have no authority to
grant immunity to any party or witness without prosecutorial consent. And the
Department asks the court to dismiss the appeal as moot.
A. Mootness
The Department asks the court to dismiss the appeal as moot because
Michel-Garcia has completed the court-ordered psychological evaluation. A case
is moot if we can no longer provide effective relief. State v. T.J.S.-M., 193 Wn.2d
450, 454, 441 P.3d 1181 (2019). We conclude the case is not moot because the
dependency is still ongoing and additional services may be ordered for which
Michel-Garcia could seek derivative use immunity for any statements he may make
while participating in these additional dependency services, not just the already
completed psychological evaluation. The parties have fully litigated and briefed
this issue, and it would be a waste of judicial resources to dismiss an appeal on an
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No. 79364-1 -116
issue that is likely to recur. See Orwick v. City of Seattle, 103 Wn.2d 249, 253,
692 P.2d 793 (1984). We are in a position to provide the relief Michel-Garcia
seeks, and the appeal is thus not moot.
Moreover, we may consider technically moot issues “when the court
discerns a likelihood of recurrence of the same issue, generally in the framework
of a ‘continuing’ or ‘recurring’ controversy, and ‘public interest’ in the controversy.”
In re Dependency of H., 71 Wn. App. 524, 527-28, 859 P.2d 1258 (1993) (quoting
DeFunis v. Odeqaard, 84 Wn.2d 617, 627, 529 P.2d 438 (1974)); see also State
v. Hunley, 175 Wn.2d 901, 907, 287 P.3d 584 (2012) (case may be decided if it
involves matters of continued and substantial public interest).
This case is appropriate for review under this alternative basis because the
issue of a dependency court’s inherent authority to grant derivative use immunity
is not unique to Michel-Garcia. Because criminal investigations into alleged child
abuse occur frequently, dependency courts would benefit from guidance on what
authority they have to grant derivative use immunity. And future recurrence is not
merely likely, it is probable. During the pendency of this appeal, the court received
a motion for discretionary review in a different dependency proceeding in which
another father sought review of an order denying his request for immunity. That
motion became moot when the father relinquished his parental rights. Thus, this
issue is one “capable of repetition, yet evading review.” See Dependency of H.,
71 Wn. App. at 528 (reaching issue of shelter care procedures because there was
no possibility that the procedures could be reviewed by an appellate court before
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No. 79364-1 -117
mooted by subsequent hearings). Based on these considerations, we deny the
Department’s motion to dismiss the appeal and proceed to the merits.
B. Immunity
Michel-Garcia argues the trial court erred by denying his request for
derivative use immunity. The Prosecuting Attorney asks the court to clarify that
trial courts, absent statutory authority, cannot grant derivative use immunity in
dependency proceedings over the objection of the State.7 Resolving this issue
requires us to review current immunity principles and the protection they afford
before reaching the question of whether Washington trial courts have the inherent
authority to grant derivative use immunity in dependency proceedings.
1. Standard of Review
Orders from dependency proceedings are generally reviewed for an abuse
of discretion. J.R.U.-S., 126 Wn. App. at 792 ni. But in other contexts our
Supreme Court has reviewed de novo the scope of a trial court’s inherent authority.
In re Dependency of A.K., 162 Wn.2d 632, 644, 174 P.3d 11(2007); see also State
v. Gassman, 175 Wn.2d 208, 211, 283 P.3d 1113 (2012). Thus, we review de
novo whether superior courts have inherent authority to grant derivative use
immunity.
2. Scope of Michel-Garcia’s Right Against Self-Incrimination
The trial court concluded that Michel-Garcia’s Fifth Amendment rights were
not at risk in this case because participation in a psychological evaluation was not
“compelled” or sworn testimony. We disagree with this legal conclusion.
~ The Department has taken no position on this legal issue.
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No. 79364-1 -1/8
The Fifth Amendment to the United States Constitution and article I, section
9 of the Washington Constitution both provide that no person may be compelled in
any criminal case to give evidence or be a witness against himself. The state
protection against self-incrimination afforded in article I, section 9 is co-extensive
with the protection of the Fifth Amendment. State v. Earls, 116 Wn.2d 364, 374-
75, 805 P.2d 211 (1991). Both constitutional provisions permit a person to refuse
to testify at a criminal trial or to refuse to answer official questions in any other
proceeding where the answer might tend to incriminate them in future criminal
proceedings. State v. Kinci, 130 Wn.2d 517, 523-24, 925 P.2d 606 (1996). The
privilege not only extends to answers that would in themselves support a conviction
but also embraces any statements “which would furnish a link in the chain of
evidence needed to prosecute” a person for a crime. Hoffman v. United States,
341 U.S. 479,486,71 5. Ct. 814, 95 L. Ed. 1118 (1951).
The privilege against self-incrimination may be invoked whenever
circumstances indicate that a real and substantial danger of incrimination exists; it
is not limited to circumstances in which a person is in custody or under compulsion
to speak. J.R.U.-S., 126 Wn. App. at 793; accord State v. Diaz-Cardona, 123 Wn.
App. 477, 491, 98 P.3d 136 (2004) (court cannot require juvenile to participate in
special sex offender disposition evaluation before sentencing because it violates
the juvenile’s privilege against self-incrimination). Although a parent participating
in a dependency evaluation is not under compulsion to speak, and therefore has
no constitutional right to counsel during the evaluation, there is nevertheless a real
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No. 79364-1 -1/9
and substantial danger of incrimination during such an evaluation, creating a threat
to that parent’s Fifth Amendment rights. J.R.U.-S., 126 Wn. App. at 798-800.
In this case, the trial court ordered Michel-Garcia to participate in services,
including a psychological evaluation with a parenting component and a domestic
violence assessment. Dependency courts are statutorily required to conduct
review hearings to determine a parent’s compliance with court-ordered services.
RCW 13.34.138. A parent’s level of compliance determines whether the child is
reunified with that parent or whether the parent could lose his parental rights.
RCW 13.34.141. Therefore, although Michel-Garcia could decline to answer
certain incriminating questions during the evaluation, he does so at the risk of
losing his parental rights.
The trial court’s findings portend the possibility of this adverse outcome:
There is an argument that parents should be able to engage
in services which are remedial without fear of prosecution and the
denial of being able to engage in these treatments and evaluations,
particularly post finding of dependency, which we are here, presents
the parents with [a] Hobson’s choice.
The choice is either successfully completing requirements of
the evaluations and treatment and incriminating themselves in
subsequent criminal proceedings or refusing to make the required
admissions and be[ing] found in denial and noncompliance, with the
knowledge that such refusal would be used as a basis for either not
returning the children or termination of parental rights.
That is because providers and the state habitually say that if
the parent does not agree that they committed the act on which the
underlying dependency should have been founded, then they are
obviously in denial and are not going to have their children back.
We have recognized that once a party invokes the Fifth Amendment
privilege against self-incrimination, the trier of fact is entitled to draw an adverse
inference from the refusal to testify. King v. Olympic Pipeline Co., 104 Wn. App.
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No. 79364-1-1110
338, 355-56, 16 P.3d 45 (2000). We agree with Michel-Garcia that such a risk is
present in this case as well. Should he participate in the evaluation but refuse to
discuss the injuries his child sustained or his past methods of disciplining the child,
he is at risk that the evaluator, the Department, and ultimately the trial court could
draw the inference that Michel-Garcia has committed child abuse and has parental
deficiencies precluding reunification with the child. As the trial court recognized,
“[a] parent can go to the evaluation and take their chances with the answers they
give. The court can draw any conclusion [it] wish[es] from those answers after
they come from the evaluator.” These factual findings support only one
conclusion—that the psychological evaluation or other parenting assessments that
Michel-Garcia has undergone or may be ordered to undergo in this dependency
proceeding threaten his right against self-incrimination.
3. Washington’s Statutory Immunity
Recognizing this risk to a parent’s constitutional rights, the legislature
enacted RCW 26.44.053(2) to allow a court to grant limited immunity to parents
who participate in psychological evaluations in dependency proceedings:
At any time prior to or during a hearing in [a case in which it is
alleged that a child has been subjected to child abuse or neglect],
the court may, on its own motion, or the motion of the guardian ad
Iitem, or other parties, order the examination by a physician,
psychologist, or psychiatrist, of any parent. if the court finds such
. . ,
an examination is necessary to the proper determination of the
case. . The physician, psychologist, or psychiatrist conducting
. .
such an examination may be required to testify concerning the
results of such examination No information given at any such
. . . .
examination of the parent . may be used against such person in
. .
any subsequent criminal proceedings against such
person concerning the alleged abuse or neglect of the child.
. . .
(Emphasis added.)
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No. 79364-1-I/li
Michel-Garcia contends this statutory grant of immunity is inadequate to
protect him because it only prohibits the use of statements he directly makes to
the evaluator and not information that may be derived from such statements. We
agree.
Immunity statutes are an attempt to balance two fundamental
precepts in American jurisprudence; the Fifth Amendment’s guaranty
that no person “shall be compelled in any criminal case to be a
witness against himself,” and the legitimate social purpose of the
State’s need for information and concomitant ability to compel its
citizens to appear at official proceedings and give information.
Witness immunity statutes are designed to accommodate these two
interests.
State v. Runions, 100 Wn.2d 52, 57, 665 P.2d 1358 (1983) (quoting State v.
Runions, 32 Wn. App. 669, 678, 649 P.2d 144 (1982) (Reed, J., dissenting)). The
adequacy of a grant of immunity, therefore, must be tested against the
requirements of the Fifth Amendment, which mandates that the grant be
coextensive with the scope of the privilege against self-incrimination. State v.
Carroll, 83 Wn.2d 109, 111,515 P.2d 1299 (1973).
There are three different types of immunity recognized in the case law.
‘Transactional immunity” is the broadest, prohibiting prosecution for any matter
about which the witness testifies or gives a statement. J.R.U.-S., 126 Wn. App. at
797. “Use immunity” prohibits the direct use of a person’s compelled statements
in a criminal trial, ki., but allows the State to prosecute that person with evidence
collected from an independent source, Runions, 100 Wn.2d at 55. “Derivative use
immunity’ bars the use of any evidence derived from immunized statements.”
J.R.U.-S., 126 Wn. App. at 797.
—ii—
No. 79364-1-1112
Use immunity “is not as comprehensive as the protection afforded by the
Fifth Amendment privilege since it does not preclude the derivative use of the fruits
of the compelled testimony as investigatory leads which might supply other means
of incriminating the witness.” Eastham v. Arndt, 28 Wn. App. 524, 529, 624 P.2d
1159 (1981). Thus, a combination of use and derivative use immunity is~necessary
to protect a person’s Fifth Amendment privilege. Kastigar v. United States, 406
U.S. 441, 459, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972); see also J.R.U.-S., 126
Wn. App. at 797 (acknowledging that transactional immunity provides broader
protection than Fifth Amendment but use immunity alone is insufficient).
In J.R.U.-S., this court concluded that RCW 26.44.053(2) only allows a grant
of use immunity and does not provide immunity for evidence derived from
immunized statements. 126 Wn. App. at 798. “The statute thus provides less
comprehensive immunity than the Fifth Amendment.” j4~ Accordingly, w~
conclude that, by itself, RCW 26.44.053(2) is insufficient to guarantee
Michel-Garcia’s constitutional right against self-incrimination and that the trial court
erred in concluding otherwise.
4. Inherent Authority of Washington Superior Courts
The more difficult question is what authority, if any, the trial court has to
grant broader immunity than authorized by the legislature when the prosecuting
attorney objects, as in this case. Michel-Garcia contends that trial courts have the
inherent authority to grant derivative use immunity to overcome the deficiencies
with RCW26.44.053(2). He relies on Statev. Escoto, 108 Wn.2d 1,735 P.2d 1310
- 12-
No. 79364-1 -1/13
(1987), State v. Decker, 68 Wn. App. 246, 842 P.2d 500 (1992),8 Q.L.M., and
J.R.U.-S., for his argument. But Escoto did not address immunity at all; Decker is
limited to its facts; Q.L.M. did not involve derivative use immunity, and to the extent
this court discussed our courts’ authority to grant this type of immunity in J.R.U.
S., itdid so in dicta.
In Escoto, a trial court ordered a 12-year-old with multiple convictions to
undergo a psychological evaluation to help the judge determine the appropriate
disposition. 108 Wn.2d at 2-3. The trial court further ordered that “any evaluation
would relate only to matters for which [Escoto] had been found guilty and not any
unadjudicated charge.” at 3. Escoto objected to the evaluation, arguing that it
violated his Fifth Amendment privilege against self-incrimination. j~ at 3, 6. The
trial court reasoned that its need for adequate information to determine an
appropriate disposition outweighed the public policy regarding the Fifth
Amendment privilege since Escoto had already been convicted. j..ç~ at 3. It granted
Escoto the right to counsel at the evaluation. j~çj. Based on the evaluation, the trial
court imposed a sentence outside the standard range. ~ at 4.
Our Supreme Court affirmed, concluding that the trial court was careful to
protect Escoto’s Fifth Amendment privilege by limiting use of the evaluation to
matters already adjudicated and by permitting counsel to be present. j.~. at 2, 7.
The Supreme Court simply did not address whether the trial court could grant use
or derivative use immunity to Escoto; no one sought such immunity for Escoto.
8 Review denied, 121 Wn.2d 1016, 854 P.2d 42 (1993).
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No. 79364-1-1/14
Then, in Decker, a juvenile pleaded guilty to assault and was ordered to
undergo a psychological evaluation before his disposition hearing. 68 Wn. App. at
247. Decker objected to the evaluation on the ground that he might make
statements that would incriminate him in other, unadjudicated and uncharged,
matters. Id. at 247-48. The trial court ordered the juvenile to participate in the pre
disposition psychological evaluation and prohibited counsel from attending. ki. at
248. The trial court also ordered that “‘any discussion with [the] evaluator in
reference to matters that have not been adjudicated shall be granted use
immunity.” ~ On appeal, Decker argued that the trial court erred by copipelling
him to attend the evaluation without counsel and by granting him use immunity
over the prosecutor’s objection. jç~ at 247.
This court held that, absent a showing of special circumstances, Decker did
not have a right to counsel during the evaluation. j~çj~ at 251. It also concluded that
“a trial court, under these circumstances, has the inherent authority to issue this
type of protective order.” j4. at 252. We reasoned that the protective order was
similar to the order upheld in Escoto, and that “the Escoto court would sanction the
trial court’s use of immunity in this situation.” Decker, 68 Wn. App. at 253. The
Decker court did not distinguish between use and derivative use immunity but did
state that the prosecutor remained “at liberty to prosecute matters which were
discovered independently of the evaluation but which also may have been
discussed during the evaluation, so long as those discussions did not lead to the
discovery of any evidence.” j~ at 252-53.
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No. 79364-1-1/15
But Decker has been limited to the circumstances presented in that case—
a predisposition evaluation in a juvenile offender matter during which only
questions relating to adjudicated matters are posed and which counsel is
prohibited from attending. See Q.L.M., 105 Wn. App. at 543-44. In Q.L.M., a
juvenile who was both a dependent child and a convicted sex offender, sought to
enjoin the Department from releasing to a county prosecutor the results of his
sexually aggressive youth evaluation. jç~ at 535-36. The trial court, relying on
Decker, entered a protective order prohibiting the prosecutor from receiving
information regarding this evaluation, despite a statute requiring the Department
to refer any case of a sexually violent predator to the prosecutor. j4~ at 535. The
order “purported to apply both retroactively and to all future counseling and
treatment records, prohibiting their use for criminal investigation or prosecution.”9
j~ at 543 n.24. The King County Prosecutor and the Department appealed the
entry of this protective order. k~. at 536.
This court reversed, holding that the order “impermissibly impinge[d] on the
prosecutorial function,” and exceeded the exception approved in Decker and, as a
result, was unauthorized by Decker’s holding. ki. at 544. It explicitly noted that
“Decker created a single narrow exception to the normal rule that granting
immunity is a prosecutorial executive function.”
This court subsequently reiterated this limitation in Diaz-Cardona. 123 Wn.
App. at 488-89. In that case, we held that a court could not compel a juvenile to
~ A second protective order, granting derivative use immunity, was not challenged on
appeal. Q.L.M., 105 Wn. App. at 543 n.24.
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No. 79364-1 -1116
participate in a Special Sex Offender Disposition Alternative (SSODA) evaluation,
even with a Decker protective order in place, because statements made in the
evaluation could be used to impose a disposition beyond the standard range,
thereby violating the juvenile’s Fifth Amendment rights. hi. at 491.
Following Diaz-Cardona, this court decided J.R.U.-S. Similar to this case,
the parents were the subjects of a criminal investigation and involved in
dependency proceedings. 126 Wn. App. at 790. The trial court entered an order
allowing the parents’ counsel to attend any court-ordered psychological
evaluations. jçj~. The Department appealed this order, and we affirmed, holding
that the trial court did not abuse its discretion in entering this order as a method of
protecting the parents’ right against self-incrimination. j.ç[. at 799-801.
This court recognized that counsel’s presence at such evaluations could
undermine their efficacy. ~ at 800. This court recommended that
[t]he Department’s concerns can be alleviated in future cases without
sacrificing parents’ Fifth Amendment rights. The Legislature could
broaden the statutory immunity to include derivative use immunity,
or superior courts could issue protective orders granting derivative
use immunity as they did in State v. Decker and Q.L.M. Both
solutions would make it unnecessary to have counsel present,
thereby facilitating candid disclosures in evaluations.
at 800-01 (footnotes and citations omitted). Despite what appears to be
precatory language, this court added:
We hold, however, that when Fifth Amendment rights are threatened,
the courts should enter protective orders granting additional
immunity rather than allowing counsel to attend psychological
evaluations.
j~ at 790. It is this sentence on which Michel-Garcia relies to argue that superior
courts have the inherent authority to grant derivative use immunity. The
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No. 79364-1-1/17
Prosecuting Attorney asks us to revisit this language in J.R.U.-S. and make it clear
that any discussion of derivative use immunity in J.R.U.-S. is not its actual holding.
A “holding” is a “court’s determination of a matter of law pivotal to its
decision.” BLACK’S LAw DICTIONARY 879 (11th ed. 2019). Dicta, on the other hand,
is a remark made by a court in pronouncing its opinion suggested by the case but
not necessarily essential to its determination. Pierce County v. State, 150 Wn.2d
422, 435 n.8, 78 P.3d 640 (2003); see also “Obiter dictum,” BLACK’S LAW
DICTIONARY at 569. While courts must give precedential weight to holdings, they
may clarify dicta-created ambiguities. State ex rel. Evergreen Freedom Found. v.
Nat’l Educ. Ass’n, 119 Wn. App. 445, 451-52, 452 n.8, 81 P.3d 911 (2003).
We take this opportunity to clarify J.R.U.-S., and conclude that this court’s
statement that courts “should” grant derivative use immunity rather than permit
counsel to attend evaluations, is dicta. The sole issue presented in J.R.U.-S. was
“whether the courts in the dependency proceedings abused their discretion when
they allowed the parents’ counsel to attend court ordered psychological
evaluations.” 126 Wn. App. at 790. We concluded the court did not abuse its
discretion in doing so. Id. A statement as to what courts “should” do in the future
was unnecessary to our ultimate decision. Thus, it is dicta. See In re the Marriage
of Rideout, 150 Wn.2d 337, 354, 77 P.3d 1174 (2003); Ruse v. De~’t of Labor &
Indus., 138 Wn.2d 1, 8-9, 977 P.2d 570 (1999) (where unnecessary to reach an
issue, a court’s discussion of that issue is dicta).
Escoto, Decker, Q.L.M., and J.R.U.-S. do not support Michel-Garcia’s
argument that trial courts have the inherent authority to grant derivative use
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No. 79364-1 -1/18
immunity to parents undergoing evaluations in dependency proceedings. We thus
decide the issue as a matter of first impression.
~The Prosecuting Attorney advances two arguments for the denial of
derivative use immunity. First, the Prosecuting Attorney argues that historically,
immunity has been solely a legislative, and not a judicial, prerogative. Second, the
Prosecuting Attorney maintains that grants of immunity affect substantive rights
and thus lie outside the limits of trial courts’ inherent authority to determine court
procedures.
a. Immunity as a Legislative Prerogative
The Prosecuting Attorney argues that immunity—whether transactional,
use, or derivative use—can only be authorized by the state legislature and
exercised at the prosecutors’ discretion. The historical evidence supports this
argument, in part.
Throughout this state’s history, it has been the state legislature, and not the
judiciary, that has decided to whom to grant transactional immunity from
prosecution. Since 1854, the Washington legislature has given trial courts the
authority to compel witnesses to testify in criminal proceedings. LAWS OF 1854, p.
116, § 93 (codified as RCW 10.52.040). And since 1909, RCW 10.52.090 has
provided for transactional immunity by ensuring that a person compelled to testify
“shall not be prosecuted or subjected to a penalty or forfeiture for or on account of
any action, matter or thing concerning which he [or she] shall so testify.” LAWS OF
1909, ch. 249, § 39; Carroll, 83 Wn.2d at 113. The legislature later extended this
statutory transactional immunity to testimony before grand juries and special
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No. 79364-1 -1119
inquiry judges. LAWS OF 1971, 1st Ex. Sess., ch. 67, § 13 (codified as RCW
10.27.130); Runions, 32 Wn. App. at 676 (Reed, J., dissenting), rev’d, 100 Wn.2d
52.
Our Supreme Court then promulgated a court rule recognizing the existence
of transactional immunity for witnesses in criminal trials and creating a process for
a prosecutor to seek a court order of immunity. Runions, 100 Wn.2d at 55. CrR
6.1410 provides:
In any case the court on motion of the prosecuting attorney
may order that a witness shall not be excused from giving testimony
or producing any papers, documents or things, on the ground that
such testimony may tend to incriminate or subject the witness to a
penalty or forfeiture; but the witness shall not be prosecuted or
subjected to criminal penalty or forfeiture for or on account of any
transaction, matter, or fact concerning which the witness has been
ordered to testify pursuant to this rule. The witness may nevertheless
be prosecuted for failing to comply with the order to answer, or for
perjury or the giving of false evidence.
(Emphasis added.) Because the rule’s language merely parrots the substantive
language of RCW 10.52.090, the Supreme Court’s promulgation of CrR 6.14 was
an exercise of its procedural rule-making power and not the grant of a substantive
right that did not otherwise exist by statute. ~ RCW 2.04.190 (supreme court
has power to proscribe rules for procedure); RCW 2.28.150 (when jurisdiction is
conferred on a court by the constitution or statute, but no procedure is prescribed,
courts may adopt “any suitable process or mode of proceeding”).
10 This rule came about when the legislature and the Supreme Court commissioned the
Washington State Judicial council to conduct studies and make recommendations on both
statutory schemes of immunity and rules of criminal procedure. Runions, 32 Wn. App. at 675-76
(Reed, J., dissenting). “According to drafters’ comments by the Washington Judicial Council
Criminal Rules Task Force, CrR 6.14 reflects the policy decision to provide for transaction
immunity.” 4A KARL B. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE CrR 6.14 author’s cmts.
at 462 (7th ed. 2008 Update).
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No. 79364-1-1120
Under CrR 6.14, a defendant has no right to demand, and a court has no
authority to grant, immunity to an exculpatory defense witness over a prosecutor’s
objection. State v. Fish, 99 Wn. App. 86, 93, 992 P.2d 505 (1999); State v. Carlisle,
73 Wn. App. 678, 681, 871 P.2d 174 (1994). In Carlisle, we held that even if a
court were to find that a prosecutor committed misconduct and intimidated a
witness to the point that the witness declined to testify—thereby violating a
defendant’s constitutional right to due process—the remedy was not a grant of
immunity but was instead dismissal of the criminal charge. 73 Wn. App. at 681;
see also United States v. Lord, 711 F.2d 887, 891-92 (9th Cir. 1983).
The legislature’s affirmative act of providing transactional immunity in
specific situations and our courts’ refusal to grant immunity under CrR 6.14 in the
absence of a request by a prosecutor is strong historical evidence that grants of
transactional immunity are solely a legislative prerogative. Such a conclusion
makes sense because a grant of transactional immunity amounts to a decision by
the legislature to exclude an entire class of individuals from the application of our
state’s criminal laws. See Runions, 32 Wn. App. at 674 n.8 (Reed, J., dissenting)
(‘[A] witness who is granted transactional immunity for his testimony is insulated
from all future prosecution for any of the acts about which he is compelled to
speak.”).
But it does not necessarily follow that grants of use and derivative use
immunity are solely legislative prerogatives. Our legislature has enacted statutes
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No. 79364-1-1/21
granting use immunity in limited circumstances.11 Currently, in addition to
RCW 26.44.053(2), we have found only one other statute that extends immunity
to a party or witness. Under RCW 6.32.200, if a debtor answers questions posed
during supplemental proceedings, those answers may not be used against that
debtor in a criminal proceeding. But this statute provides only use immunity and,
as a result, a judgment debtor can legally refuse to answer questions to protect
himself against self-incrimination. Eastham, 28 Wn. App. at 530. As the
Prosecuting Attorney notes, our state legislature has never passed a statute
granting derivative use immunity.
Without historical evidence to guide us, we must turn to the Prosecuting
Attorney’s second argument—that a grant of use or derivative use immunity affects
substantive rights and is thus outside the trial courts’ inherent authority to set its
own procedures.
b. Courts’ Inherent Authority to Create Exclusionary Rules
Washington courts derive their judicial power from article IV of the state
constitution and from the legislature under RCW 2.04.190. Sprattv. Toft, 180 Wn.
App. 620, 634, 324 P.3d 707 (2014). “The inherent power of the court is the power
to protect itself; the power to administer justice whether any previous form of
remedy has been granted or not; the power to promulgate rules for its practice,
and the power to provide process where none exists.” In re Bruen, 102 Wash.
472, 476, 172 P. 1152 (1918).
~1 For a comprehensive list of Washington statutes granting immunity (many of which no
longer exist), see 8 JAMES HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 2281 nIl, at
507 (John T. McNaughton rev. ed. 1961).
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No. 79364-1-1/22
The inherent power of article IV includes the power to govern court
procedures, City of Fircrest v. Jensen, 158 Wn.2d 384, 394, 143 P.3d 776 (2006),
including the rules of evidence, State v. Gresham, 173 Wn.2d 405, 431, 269 P.3d
207 (2012). Moreover, the judiciary’s province is procedural and the legislature’s
is substantive. Jensen, 158 Wn.2d at 394. Although a clear line of demarcation
cannot always be delineated between what is substantive and what is procedural,
“[s]ubstantive law prescribes norms for societal conduct and punishments for
violations thereof. It thus creates, defines, and regulates primary rights. In
contrast, practice and procedure pertain to the essentially mechanical operations
of the courts by which substantive Jaw, rights, and remedies are effectuated.” State
v. Smith, 84 Wn.2d 498, 501, 527 P.2d 674 (1974).
The authority to admit or exclude evidence is a procedural matter controlled
by the courts. Gresham, 173 Wn.2d at 431. At least one court has held that use
and derivative use immunity are evidentiary rules that fall within a courts’ inherent
authority to govern the admission or exclusion of evidence. State v. Belanger,
2009-NMSC-025, ~ 13-21, 146 N.M. 357, 361-62, 210 P.3d 783 (New Mexico
rules of evidence govern use and derivative use immunity because they are
testimonial privileges).12 The Belanger court relied on Simmons v. United States,
390 U.S. 377, 393-94, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), for the proposition
that courts have the inherent judicial power to exclude inculpatory evidence in
certain contexts to protect a defendant’s constitutional rights. 2009-NMSC-025,
12But see Andy Scholl, State v. Belanger and New Mexico’s Lone Stance on Allowing
Defense Witness Immunity, 40 N.M. L. Rev. 421 (2010).
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No. 79364-1-1/23
~ 28, 146 N.M. at 364. In Simmons, the Court created an exclusionary rule that
precludes a prosecutor from offering at trial a defendant’s testimony from a pretrial
suppression hearing. 390 U.S. at 393-94. Although the Simmons court did not
base its holding on the courts’ inherent authority to grant immunity, it arguably
supports the proposition that courts may prevent the State from presenting
evidence in criminal proceedings when necessary to protect a defendant’s
constitutional right to remain silent.
But federal courts have rejected such an expansive reading of Simmons. In
United States v. Quinn, 728 F.3d 243, 255 (3d Cir. 2013), the Third Circuit held
that Simmons does not support the existence of an inherent judicial power to grant
witness immunity. Because prosecutors, and not courts, are in the best position
to decide prosecutorial tradeoffs associated with grants of use immunity, the Quinn
court deemed it inappropriate to read Simmons’ exclusionary rule as extending a
court’s power to invade prosecutorial decisions. jç~ at 254-55. We find this
reasoning compelling.
Unlike the situation in Simmons, a grant of derivative use immunity to
anyone, whether party or witness, impacts more than just the presentation of
evidence in a criminal trial. It would govern how law enforcement must investigate
crime. As the Prosecuting Attorney points out, a grant of derivative use immunity
would require law enforcement to take steps to protect existing evidence to prove
that none of it was derived from immunized evidence. But because state
prosecuting attorneys are not parties to dependency proceedings, and the
pleadings in such cases are filed under seal, they would not necessarily be
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No. 79364-1 -1/24
informed of a request for derivative use immunity and may only learn that a court
granted it after-the-fact. As a result, neither the police nor prosecutor may be
aware of the need to take these protective steps, causing the prosecution to fail to
meet its “heavy burden of proving that all of the evidence it proposes to use was
derived from legitimate independent sources.” See State v. Bryant, 97 Wn. App.
479, 485, 983 P.2d 1181 (1999) (quoting Kastigar, 406 U.S. at 461-62).
Many of the State’s likely witnesses in a child abuse prosecution, such as
the abused child, the other parent, and other siblings, are usually parties to the
dependency proceeding and would have access to any evaluations ordered by the
dependency court. When a witness has been exposed to immunized statements,
their testimony may have to be examined on a line-by-line basis so the prosecution
can demonstrate that no use was made of any immunized statements. United
States v. North, 285 U.S. App. D.C. 343, 372, 910 F.2d 843, modified on other
grounds on rehearing, 287 U.S. App. D.C. 146, 920 F.2d 940 (1990). So a grant
of derivative use immunity would inevitably have a significant impact on a State’s
ability to prosecute a parent for child abuse under these circumstances. It is for
this reason that we have stated that immunity in general is “only a prosecutorial
tool.” Statev. Matson, 22Wn.App. 114,120,587 P.2d 540 (1978).
Moreover, New Mexico’s Supreme Court appears to be the only state court
in the country to conclude that judges have the inherent authority to grant
derivative use immunity to a witness. See generally Andy Scholl, State v. Belanger
and New Mexico’s Lone Stance on Allowing Defense Witness Immunity, 40 N.M.
L. Rev. 421 (2010); accord Quinn, 728 F.3d at 253 (holding that immunity is a
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No. 79364-1-1/25
creature of the legislature, “the body that defines criminal offenses and their
sanctions”); Hardinc~ v. People, 708 P.2d 1354, 1358 (Cob. 1985) (rejecting the
concept of judicial immunity, holding the only immunity available to a witness is
under the state’s immunity statute which can be granted by a court only at the
prosecution’s request); State v. Montciomerv, 467 So. 2d 387, 395 (Fla. Dist. Ct.
App. 1985) (courts do not have inherent power to grant use immunity to defense
witnesses over state’s objection).
The weight of this authority leads us to conclude that use and derivative use
immunity are not evidentiary privileges within the inherent authority of our trial
courts but are, instead, matters of substantive law falling within the legislature’s
powers.
In this case, the trial court crafted a protective order that limited the
Department’s ability to disseminate or discuss the psychological report with the
Prosecuting Attorney:
Pursuant to ROW 26.44.053, no information given at any
examinations of the parents (completed in association with this
dependency action) may be used against the parents in subsequent
criminal proceedings against the parents concerning the alleged
abuse or neglect of the child. The Department shall not provide
copies of the parents’ evaluations to the Prosecuting Attorney, nor
shall the Department discuss the evaluations/recommendations with
the Prosecuting Attorney.
Neither Michel-Garcia nor the Prosecuting Attorney challenged this aspect of the
protective order.
We hold that the grant of use and derivative use immunity is solely a
legislative, and not a judicial, prerogative. We further hold that, in the absence of a
statute, trial courts do not have the inherent authority to confer derivative use
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No. 79364-1 -1/26
immunity on a parent in a dependency proceeding over the objection of the
prosecutor. The trial court did not err in rejecting Michel-Garcia’s request for
derivative use immunity.
We therefore affirm.
WE CONCUR:
____________________ ,~ I
/
- 26 -
In Re Dependency Of : A.m-s., Dob: 12/17/08, Sergio Michel-garcia, Pet v. State Of Wa, Resp
Combined Opinion