        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.”

                                                -2-
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).

                                              -3-
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.
                                        -4-
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

                                        -5-
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




                                         -6-
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.

                                             -7-
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




                                        -8-
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.
                                          -9-
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.)

                                                         -10-
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).

                                            -   13-
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.




                                        -   14   -
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.

                                           -   15-
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

                                         -   16-
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


                                         -17-
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


                                          -18-
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).

                                           -19-
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




                                       -   20   -
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).

                                           -   21   -
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).

                                         -   22   -
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


                                         -   23   -
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


                                      -   24   -
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

                                        -   25   -
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:



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