                                                                                                       FILED
                                                                                                   COAT OF APPEALS
                                                                                                           DIVISION 11
                                                                                                  2 0 1 HAY 20    A 110: 56
      IN THE COURT OF APPEALS OF THE STATE OF WASH ;                                                       ON

                                                DIVISION II

STATE OF WASHINGTON,                                                        No. 45337 -1 - II


                                     Appellant,


         v.



A.W.,


                                     Appellant,


DWIGHT A. FINCH,                                                        PUBLISHED OPINION


                            Intervenor -
                                       Respondent.


         WORSWICK, C. J. —      In this interlocutory appeal, which is linked with State v. Dwight A.

Finch, No. 44637 -5 -II (Wash. May 20, 2014), the juvenile court ordered a juvenile sex crime
                                                                    2              3
victim and offender    to   submit   to   polygraph   testing.' A.W.,   a minor,       pleaded guilty to first

degree child molestation and received a special sex offender disposition alternative ( SSODA).4

During treatment, A.W. disclosed that Dwight Finch had sexually assaulted him. The State

charged Finch with first degree child rape and first degree child molestation, and the superior

court, over the State' s objection, ordered A.W. to submit to the polygraph test that the parties




    This case concerns the juvenile court' s order. State v. Finch concerns the superior court' s
order.




2 We use initials to protect A.W.' s privacy. General Order 2011 - 1 of Division II, In Re: The Use
Of Initials Or Pseudonyms For Child Witnesses In Sex             Crime Cases, ( Wash. Ct.         App.),   available

at http: / www. courts .
           /           wa.gov /
                              appellate_trial_ courts /.

3
    A.W. was 12 to 13 years old at the time of his offense.

4
    RCW 13. 40. 162.
No. 45337 -1 - II



dispute on appeal. After we granted discretionary interlocutory review of that decision, Finch

moved to intervene in A.W.' s juvenile disposition. Finch requested the juvenile court to order

A.W. to take the disputed polygraph test to determine the truthfulness of his allegations against


Finch, either by granting Finch' s motion to intervene, or on its own motion in the interest of

justice. The juvenile court entered the instant order requiring A.W. to submit to the disputed

polygraph test.



        In this case, the State and A.W. appeal the juvenile court' s order requiring A.W. to

submit to the polygraph test. The State asks us to impose sanctions against Finch' s trial counsel

and to remand this case to a different judge. Because A.W.' s SSODA did not authorize the

polygraph test, and because Finch had no right to intervene in State v. A. W, we hold that the


juvenile court erred by ordering the polygraph test, and we reverse that order. To maintain the

appearance of fairness, we remand this case to a different judge. Finally, we remand the matter

of sanctions for the juvenile court' s consideration.

                                                            FACTS


A.      State v. A. W., with Finc - as Intervenor


         A.W. pleaded guilty to first degree child molestation. The juvenile court imposed a

special sex offender disposition alternative ( SSODA) which imposed conditions including:

          1.] [     O] bey   all ...    laws.
         2.]      Participate in weekly treatment.
         3.]      Treatment compliance could be monitored every 6 months through a
         polygraph, if available.


CP ( A.W.) at 18, 22. The juvenile court modified the polygraph test condition from the


boilerplate language,    which         had   stated, "   Treatment compliance shall be monitored every 6

months   through    a polygraph."        CP ( A.W.) at 22.



                                                                2
No. 45337 -1 - II



            While undergoing court ordered sex offender treatment, A.W. told his therapist that Finch
                                           5
committed sex acts against        him.          A.W.' s therapist informed the State about A.W.' s disclosure,


and   the   State   charged   Finch   with     first degree   child   and first degree child molestation.


B.          State v. Finch


            After being charged, Finch submitted to a polygraph test. The polygraph examiner

concluded that Finch was truthful when he denied A.W.' s allegations. Finch then moved the


superior court to use the juvenile court' s authority over A.W.' s SSODA in State v. A. W. to

require A.W. to submit to polygraph testing, the purpose of which would be to ask A.W. about
                                       8
his   allegations against     Finch.       The State opposed Finch' s motion.


            The superior court could not clearly remember why it had modified the SSODA' s

polygraph test provision from the boilerplate language. Because of this, and because the superior


court wanted to know why A.W.' s therapist decided against giving A.W. regular polygraph tests,

the superior court ordered A.W.' s therapist to appear in State v. Finch and show cause as to why

he had not given A.W. regular polygraph tests.9 In response to the superior court' s question,

A.W.' s therapist provided the following explanation as to why he did not give regular polygraph

tests to A.W.:


             Polygraph tests are] considered coercive for use in adolescents because of their
            developmental stages, because of their personality formation, because of the

5
    Finch was previously convicted of two sex offenses against a female child.
6
    RCW 9A.44. 073.


    RCW 9A.44. 083.


8 The same judge presided over State v. Finch and State v. A. W.

9 A.W. did not appear at this proceeding.

                                                                 3
No. 45337 -1 - II



           conditions of beneficence and nonmaleficence, which are [ sic] either they must
           show benefit and [ sic] they must show no harm

Verbatim Report            of   Proceedings ( VRP) ( Finch) ( Nov. 7, 2012) at 7.


             C] hildren believe that [ the polygraph tests are] detecting lies when they' re really
           not.    What polygraphs really detect is physiological responses, but they' re called
           lie detectors, and so the children automatically think they' re detecting lies, which
               is the coercive part.


VRP ( Finch) ( Nov. 7, 2012) at 9. A.W.' s therapist also explained:


               All these   cases —   all these decisions are made on a case -by -case basis, and [ A.W.]
               falls into a category of youth that we would callthat he has sexual behavioral
               problems, and because of his developmental maturity, what the literature suggests
               is that there can be harm when you coerce a person that age."


VRP ( Finch) ( Nov. 7, 2012) at 9.


               The superior court entered an order in State v. Finch requiring A.W. to take the polygraph

test. The State requested discretionary interlocutory review in State v. Finch. We stayed the

superior court' s order, and granted discretionary interlocutory review because the superior court

committed " probable error              that substantially alters the    status quo."   Ruling Granting Review,

State     v.   Finch, No. 44637 -5 -II,       at   1 ( Wash. Ct.   App. May   16, 2013); see RAP 2. 3( b)( 2).


C.             Finch' s Intervention in State v. A. W.


               After we stayed and granted discretionary review of the superior court' s order in State v.

Finch, Finch moved to intervene in State v. A. W., asking the juvenile court for another order
                                                                                                             10
requiring A.W. to take the              same polygraph      test   as was ordered   in State   v.   Finch.        Finch' s




 10 Finch filed his motion to intervene in the form of a " complaint" against A.W. for A.W.' s
 alleged        SSODA      violation.   CP ( A.W.)      at 35. But Finch' s motion was actually a motion to
 intervene in State v. A. W. Finch also filed a " motion to compel polygraph to review alleged
 violation of       SSODA        sentence,"   in which he also moved to intervene in State v. A. W. CP ( A.W.)
 at 38.




                                                                    4
No. 45337 -1 - II



motion to intervene alleged that by accusing Finch of sex crimes, A.W. committed the crime of
                      l
false reporting,"         and,   thus,    violated     the SSODA condition requiring A.W. to " obey                  all ...   laws."


CP ( A.W.)    at    18. In his     motion,       Finch    requested      to intervene in State   v.   A. W. " for   [the] very
                                                                                                               12
limited   purpose [ of      asking] the Court to             require    the already ordered    polygraph. "         CP ( A.W.)    at




35 -36. Finch asked the juvenile court to either grant Finch' s motion to order A.W. to take the

polygraph test, or order the polygraph test on its own motion in the interest ofjustice.

          The juvenile court set a hearing on Finch' s motion to intervene. A.W.' s counsel

appeared at the hearing and joined the State in opposing the motion. The State filed a declaration

stating its refusal to stipulate to the admission of any polygraph tests in State v. Finch. The State

also requested sanctions against Finch' s trial counsel.


          At the hearing, the juvenile court stated that it recalled why it had modified the polygraph

test provision of A.W.' s SSODA from the boilerplate language:

          I deferred to the treatment                 provider' s ...      discretion, and yet at that time I didn' t
          know that the treatment               provider ...       said,   " I never give polygraph tests. I' ll never

           give   them" ... [      t] o   a   juvenile. So then I thought, well, if I had known that at the
          time, then I      might    have       not   just   signed off on    it. ...   It would just be nice for the




 11 RCW 9A.84. 040.

 12 It is unclear whether Finch meant that the polygraph was ( 1) already ordered in State v. Finch
or ( 2)   already   ordered as part of           the SSODA. Finch            argued     both below.
No. 45337 -1 - II


            Court to know those kind [ sic] of things rather than sign an order that that line
            really has no effect when you say " could."

CP ( A. W.) at 260 -61.


            The juvenile court entered a second order requiring A.W. to take the polygraph test. This

order specified that a portion of the polygraph test would ask A.W. about his allegations against

Finch, and directed the polygraph test' s results to be sent to the juvenile court for in camera

review. The State and A.W. requested discretionary interlocutory review of this order. We

accepted review and stayed the order in State v. A. W. pending further order of this court.13

Ruling Staying        Order, State      v.   A. W., No. 45337 -1 - I1 ( Wash. Ct.        App.      Sept. 12, 2013);   Ruling

Accelerating Review, State v. A. W, No. 45337 -1 - II (Wash. Ct. App. Nov. 7, 2013).

                                                           ANALYSIS


             I. AUTHORITY To GRANT FINCH' S DISCOVERY REQUEST UNDER A.W.' s SSODA

            The State and A.W. argue that A.W.' s SSODA did not authorize the juvenile court to

order the polygraph test. We agree with the State and A.W.

            A.W.' s SSODA          states, "   Treatment compliance could be monitored every 6 months

through      a polygraph,     if   available."       CP ( A.W.) at 22. This language limits the scope of potential


polygraph tests to questions confirming A.W' s compliance with treatment.

            Here, A.W.' s therapist explained that he did not give polygraph tests to A.W. because

  polygraph tests are] considered coercive for use in adolescents because of their developmental

stages ... [    T] he children automatically think they' re detecting lies, which is the coercive part."

See VRP ( Finch) ( Nov. 7, 2012)                at   7, 9. A.W.'   s   therapist also   said, "[   A] 11 these decisions are


13 Legal Voice, the National Crime Victim Law Institute, and the Sexual Violence Law Center
filed   a   joint   amicus   brief in this     case.
No. 45337 -1 - II



made on a case -     by -case basis,        and   A.W. falls into       a   category   of youth   that    we would call —that



he has sexual behavioral problems, and because of his developmental maturity, what the

literature   suggests   is that there       can   be harm   when you coerce a person               that   age."   VRP ( Finch)


 Nov. 7, 2012) at 9. Thus, polygraph tests were not conducive to A.W.' s therapy.

        Ordering A.W. to take the polygraph test was designed not to ensure compliance with

treatment, but rather to ensure the truthfulness of A.W.' s allegations against Finch. Thus,


ordering A.W. to take the polygraph test exceeded the scope of A.W.' s SSODA because it did

not pertain to ensuring A.W.' s treatment compliance.

                                  II. FINCH' S RIGHT To INTERVENE IN STATE V. A.W.


A.      Standing To Intervene in State v. A. W.

        The State and A.W. argue that Finch lacked standing to intervene in State v. A. W. Finch

argues that he had standing because he was a victim of A.W.' s false reporting. We agree with

the State and A.W.


        Standing is a threshold issue which we review de novo. State v. Link, 136 Wn. App. 685,

692, 150 P .3d - 10 ( 2007).
               6                        Standing is a party' s right to make a legal claim or seek judicial

enforcement of a duty or right. Link, 136 Wn. App. at 692. Standing prohibits a party from

asserting    another' s   legal    right.     West v. Thurston County., 144 Wn. App. 573, 578, 183 P. 3d 346

                                                     1)
 2008). A litigant may have third party standing if "(                         the litigant has suffered an injury - -
                                                                                                                   in fact,

giving him     a   sufficiently     concrete      interest in the   outcome of         the disputed issue; ( 2) the litigant



has a close relationship to the third party; and (3) there exists some hindrance to the third party' s

ability to   protect   his   or   her   own   interests."   Ludwig v. Dep 't           ofRet.   Sys.,   131 Wn. App. 379, 385,

127 P. 3d 781 ( 2006).




                                                                    7
No. 45337 -1 - II



         Here, although the juvenile court did not explicitly grant Finch' s motion to intervene, it

implicitly granted Finch' s motion to intervene by granting Finch' s requested relief without citing

any authority. In State v. A. W., Finch was asserting not his own right, but rather the State' s right

to move the juvenile court to sanction A.W.' s alleged SSODA violation of false reporting. The

issue in State v. A. W. was whether A.W. complied with his SSODA. Assuming Finch was a

victim of A.W.' s false reporting, Finch still does not have an interest in enforcing A.W.' s

compliance with his SSODA. Rather, Finch has an interest in acquittal in State v. Finch. Thus,


Finch does not have standing because he was asserting the State' s legal right, rather than his

own.




         Finch fails the third party standing test' s second part because the litigant (the State) does

not   have   a close   relationship to the third party ( Finch).   Thus, we hold that Finch had no standing

in State v. A. W.


B.       Finch' s Right To Intervene as a Victim


         The State and A.W. argue that no authority gave Finch the right to intervene in State v.

A. W Finchargues that RCW 7. 69. 030 gives Finch the right to intervene in State v. A. W. as a

                                                                                    14
victim of    A.W.' s false reporting. We      agree with   the State   and   A.W.


         We review questions of statutory interpretation de novo. State v. Christensen, 153 Wn.2d

186, 194, 102 P. 3d 789 ( 2004).        If the statute' s meaning is plain on its face, then we give effect




14
     Finch also argues that CR 24 authorizes him to intervene in State v. A. W. But CR 24 does not
apply to matters involving a juvenile offense. JuCR 1. 4( a).



                                                           8
No. 45337 -1 - II



to that   plain   meaning. State      v.   Theilken, 102 Wn.2d 271, 275, 684 P. 2d 709 ( 1984). We discern


a statute' s plain meaning from " the ordinary meaning of the language at issue, as well as from

the context of the statute in which that provision is found, related provisions, and the statutory

scheme as a whole."         State v. Jacobs, 154 Wn.2d 596, 600, 115 P. 3d 281 ( 2005).


            T] he   power   to   prosecute criminal acts    is      vested   in public       prosecutors."   Protect the


Peninsula' s Future v. City ofPort Angeles, 175 Wn. App. 201, 213, 304 P. 3d 914 , review

denied, 178 Wn.2d 1022 ( 2013).               Private parties have no right to intervene in criminal


proceedings unless specific authority grants them that right. See State v. Cloud, 95 Wn. App.

606, 614, 976 P. 2d 649 ( 1999). Although these cases deal with criminal proceedings rather than


juvenile dispositions, the logic of these cases applies equally in the context of juvenile

dispositions.


          RCW 7. 69. 030 gives " victims, survivors, and witnesses" 15 enumerated rights. Three of


these rights allow for narrow participation in criminal trials, including the right to submit a

victim impact statement to the court, present a statement at sentencing hearings for felonies, and

have the court enter an order of restitution in           felony cases.        RCW 7. 69.030( 13) =( 15).         But RCW"

                                                                                        15
7. 69. 030 does     not   include   a right   to intervene in   a criminal     trial.        State v. Savoie, 164 Wn. App.




15 Finch argues that Division Three of this court found no error with the trial court' s decision to
allow the victims to intervene. But Finch is mistaken; this court in State v. Savoie clearly held
the trial court' s decision allowing victim intervention to be erroneous. 164 Wn. App. 156, 163,
262 P. 3d 535 ( 2011).




                                                                9
No. 45337 -1 - II


156, 163, 262 P. 3d 535 ( 2011).         Thus, the juvenile court erred by allowing Finch to intervene in

A.W.' s juvenile disposition because no authority gave Finch the right to do so. 16
                                  III. APPEARANCE OF FAIRNESS DOCTRINE •


        The State argues that we should remand this case to a different judge under the


appearance of fairness doctrine. We agree.


        A judicial proceeding satisfies the appearance of fairness doctrine if a reasonably prudent

and disinterested person would conclude that all parties obtained a fair, impartial, and neutral


hearing.   State   v.   Bilal, 77 Wn.   App.   720, 722, 893 P. 2d 674, 675 ( 1995).   We analyze whether a


judge' s impartiality might reasonably be questioned under an objective test that assumes a

reasonable person to know and understand all relevant facts. Sherman v. State, 128 Wn.2d 164,

205 -06, 905 P. 2d 355 ( 1995).         The party must produce sufficient evidence demonstrating actual

or potential bias, such as personal or pecuniary interest on the part of the judge; mere speculation




16 We note that allowing a defendant accused of sexual abuse of a juvenile sex offender to
intervene in that juvenile' s disposition for the purpose of using that juvenile' s SSODA against
that juvenile would hinder the SSODA' s rehabilitative purpose. This is a serious public policy
concern for two reasons. First, juveniles who have been sexually or physically abused are more
likely to be arrested for sex crimes than the general population. Cathy Spatz Widom, Victims of
Childhood Sexual Abuse —Later Criminal Consequences, NAT' L INST. OF JUST. 1, 5 ( 1995),
available at   https: / ncjrs.gov / dffiles / buse.pdf. This subset of juvenile offenders needs to be
                        /         p         a
able to fully participate in treatment which includes a recitation of their sexual history. Second,
juvenile sex offenders are more amenable to treatment than their adult counterparts. EILEEN P.
RYAN ET AL., JUVENILE SEX OFFENDERS: A GUIDE TO EVALUATION AND TREATMENT FOR
MENTAL HEALTH PROFESSIONALS 15 ( Oxford Univ. Press 2012). Thus, it is critical to treat the
juvenile sex offenders, who themselves may be victims of sexual abuse, before they reach
 adulthood. Allowing the juvenile' s abuser to intervene in treatment would have a chilling effect
on these youth who might otherwise be inclined to enter treatment. But we need not consider
this serious public policy concern here, because Finch had no right to intervene in A.W.' s
juvenile disposition.




                                                          10
No. 45337 -1 - II



is not enough. In re Pers. Restraint ofHaynes, 100 Wn. App. 366, 377 n.23, 996 P. 2d 637

 2000).


          Here, the judge used his juvenile court authority over A.W.' s SSODA in State v. A. W. to

order a polygraph test to investigate A.W.' s allegations in State v. Finch. If State v. Finch


proceeds to trial, A.W. would have to appear to testify before this same judge who improperly

allowed Finch to intervene in A.W' s juvenile disposition, and who ordered A.W to take a


polygraph test without proper authority. A reasonably prudent and disinterested person who

knew these facts would conclude that the judge ordering A.W. to take a polygraph to investigate

the case in which A.W. is the victim, in spite of a therapist' s testimony that polygraph tests could

be harmful to A.W., could not give all parties a fair, impartial, and neutral hearing.

          We hold that the judge' s dual role as judge for A.W.' s juvenile disposition and Finch' s


criminal case, the judge' s inability to separate these two roles, and the judge' s attempts to

investigate the truth of A.W.' s allegations in State v. Finch, combine such that a reasonably

prudent and disinterested person who knew these facts would question whether the judge could


act fairly in presiding over State v. A. W. Thus, we remand State v. A. W. to a different judge to

maintain the appearance of fairness.


                                            IV. SANCTIONS


A.        Extending State v. Howard To Impose Sanctions Against Finch

          The State argues that we should extend State v. Howard to require Finch' s trial counsel to


pay for A.W.' s indigent defense counsel here, because Finch' s motion to intervene initiated a

prosecution of   A.W. 106 Wn.2d 39, 43, 44, 722 P. 2d 783 ( 1985).     We disagree.




                                                    11
No. 45337 -1 - II



        In Howard, our Supreme Court held that under RCW 43. 135. 060, which prohibits


shifting costs from the State government to local government, the State could not require local

governments to pay for the indigent defense counsel of defendants prosecuted by the State

Attorney   General.   106 Wn.2d at 43 -44. Here, Finch, a private individual, filed a motion to


instigate a prosecutorial action that the juvenile court erroneously considered. This case does not

involve RCW 43. 135. 060, on which Howard turns, because it does not involve cost -shifting

between governments. Thus, we hold that Howard does not apply here.

B.      CR 11 Sanctions


        Finally, the State argues that we should order CR 11 sanctions against Finch' s trial

counsel for filing a motion to intervene in State v. A. W. The State argues that the filing was

baseless, because existing law does not support it, and that it was filed for the improper purpose

of coercing A.W. so as to deter him from cooperating in the State' s prosecution of Finch. We

remand this matter to the juvenile court.


        We review lower court CR 11 sanction decisions, but we do not impose CR 11 sanctions.


Bldg: Indust. Ass 'n of Washington v: McCarthy, 152 Writ App. 720, 750, 218 P. 3d 196 ( 2009).

Here, the State requested CR 11 sanctions below, but the record contains no decision on the


State' s motion. Thus, we remand the matter of CR 11 sanctions to the juvenile court. See


McCarthy, 152 Wn. App. at 750.

        We reverse the polygraph order because the SSODA did not provide the juvenile court


with authority to order A.W. to take a polygraph test, and because the juvenile court erred by

allowing Finch to intervene. We remand this case, including the State' s request for CR 11




                                                   12
No. 45337 -1 - II



sanctions, to a different judge. In light of this conclusion, it is unnecessary for us to consider

A.W.' s and the State' s remaining arguments.




We concur:




                                                   13
