City of Bellevue v. HellenthalCity of Bellevue v. Hellenthal
G. William Shaw, Seattle, for Respondents.
The City of Bellevue urges that a certificate authenticating a radar speed measuring device need not be prepared by a police officer to be admissible under
FACTS
On September 26, 1998, Officer Deaner of the Bellevue Police Department obtained a radar-measured reading that Dee Hellenthal‘s vehicle was travelling 48 miles per hour in a posted 35 mile per hour zone and issued a notice of infraction for speeding. On October 9, 1998, Bellevue Police Department Officer Hershberger obtained a radar-measured reading that Ms. Hellenthal‘s vehicle was travelling 45 miles per hour in a posted 35 mile per hour zone and issued a notice of infraction for speeding. The notices were filed in Bellevue District Court. Each had attached to it and incorporated by reference a certificate by radar expert Ed Cole which stated his place of business, included a recitation of his training in repair, maintenance, and calibration of radar units, and stated that Cole had accumulated approximately 7,000 hours experience in the field. Each certificate also included information about the testing program and a list of radar units tested, including the units used by the officers in Ms. Hellenthal‘s cases.
Both infraction cases were set for a contested hearing. At the hearing, Ms. Hellenthal did not request the presence of the citing officer or a speed measuring device expert in either case. No prosecuting attorney was present. Hellenthal moved to strike evidence concerning use of radar, arguing in each case that the only evidence to authenticate the radar was Cole‘s certificate, and that this certification was inadmissible because it was not prepared by a police officer. She also said that the certificate could not be incorporated by reference where the officer had no personal knowledge of the information in it. She maintained that the only way the court could consider the certificate would be to offer it into evidence, which would place the court in the role of prosecutor and violate the separation of powers doctrine. The district court denied the motions in each case, and found the infractions committed. Hellenthal appealed.
On November 5, 1998, Officer Demetre of the Bellevue Police Department obtained a radar-measured reading that Trevianna Chillies’ vehicle was travelling 44 miles per hour in a posted 30 mile per hour zone and issued a notice of infraction for speeding. The notice was filed in Bellevue District Court, with Ed Cole‘s certificate attached and incorporated by reference (with the same information as in Hellenthal‘s case, and also referencing the radar used by Officer Demetre).
Chillies waived the presence of the citing officer and the presence of a speed measuring device expert. At her contested hearing there was no prosecuting attorney present. Chillies moved to strike the officer‘s statement regarding the use of radar, on the grounds that Ed Cole was not a police officer. She also argued that the court‘s consideration of the certificate violated the separation of powers doctrine and due process. The court denied the motion and found that the infraction was committed. Chillies appealed.
The King County Superior Court consolidated the appeals, reversed the district
ANALYSIS
The King County Superior Court held that
The first issue is whether
[i]n the absence of proof of a request to produce an electronic speed measuring device (SMD) expert served on the prosecuting authority and filed with the clerk of the court at least 30 days prior to trial or such lesser time as the court deems proper, a certificate in substantially the following form is admissible in lieu of an expert witness in any court proceeding in which the design and construction of an electronic speed measuring device (SMD) is an issue:
Certification Concerning Design and Construction of Electronic Speed Measuring Devices
I, ______ do certify under penalty of perjury as follows:
I am employed with ______ as a ______. I have been employed in such a capacity for ______ years and hold the rank of ______. Part of my duties include supervising the purchase, maintenance, and repair of all electronic speed measuring devices (SMD‘s) used by my agency.
This agency currently uses the following SMD‘s:
[List all SMD‘s used and their manufacturers.]
I have the following qualifications with respect to the above stated SMD‘s:
[List all degrees held and any special schooling regarding SMD‘s listed above.]
Our agency maintains manuals for all of the above stated SMD‘s. I am personally familiar with those manuals and how each of the SMD‘s are designed and operated. All initial testing of the SMD‘s was performed under my direction. The units were evaluated to meet or exceed existing performance standards. Our agency maintains a testing and certification program. This program requires:
[State the program in detail.]
Based upon my education, training, and experience and my knowledge of the SMD‘s listed above, it is my opinion that each of these pieces of equipment is so designed and constructed as to accurately employ the Doppler effect in such a manner that it will give accurate measurements of the speed of motor vehicles when properly calibrated and operated by a trained operator.
______________ Signature
Respondents maintain that references to holding “the rank of” and references to “my” “this” and “our” “agency” indicate that the certificate must be prepared by a police officer.
When we interpret court rules we apply the same principles we apply when determining the meaning of statutes drafted by the Legislature. State v. Greenwood, 120 Wash.2d 585, 592, 845 P.2d 971 (1993); City of Bellevue v. Mociulski, 51 Wash.App. 855, 858, 756 P.2d 1320 (1988). The cardinal principle is that we ascertain and carry out the intent of the drafting body. State v. Radan, 143 Wash.2d 323, 329-30, 21 P.3d 255 (2001); State v. Chapman, 140 Wash.2d 436, 450, 998 P.2d 282, cert. denied, 531 U.S. 984, 121 S.Ct. 438, 148 L.Ed.2d 444 (2000). If the language of the rule is clear on its face, we give effect to its plain meaning and assume the rule means exactly what is intended. See Radan, 143 Wash.2d at 330, 21 P.3d 255; Chapman, 140 Wash.2d at 450, 998 P.2d 282.
The rule is intended to allow for authentication of a speed measuring device without the necessity of the expert appearing in the court proceeding. Thus, the substance of the rule is authentication. As the Court of Appeals correctly stated in Mociulski, authentication for a speed measuring device involves a compound determination:
Before the machine is deemed reliable, the witness testing the machines or monitoring the testing must first show his/her qualifications to make and/or evaluate the tests. The witness must first qualify as an expert via knowledge, skill, experience, training, or education. ER 702. After the witness has qualified as an expert, he/she must show that the machines passed the requisite tests and checks. Only then can the speed measuring devices be deemed reliable.
Mociulski, 51 Wash.App. at 860-61, 756 P.2d 1320.
Thus, the certificate must provide sufficient information, substantially as set out in
However, even if we found the language of the rule ambiguous, in light of the references to “rank” and “agency” in the example form, we would reach the same result. When a statute is ambiguous we resort to legislative history and other aids to construction. Cockle v. Dep‘t of Labor & Indus., 142 Wash.2d 801, 807, 16 P.3d 583 (2001); Kadoranian v. Bellingham Police Dep‘t, 119 Wash.2d 178, 185, 829 P.2d 1061 (1992). The form in
Neither the language nor the history of the rule dictates that only law enforcement personnel are qualified to act as radar experts, nor do they dictate that only law enforcement personnel are qualified as experts for purposes of preparing the certificate allowed for by
Mr. Cole‘s certificates are in substantially the form as that appearing in
The respondents complain, however, that the certificates do not include Cole‘s attestations that he supervised the purchase of the devices as part of his duties, nor that his duties include supervising the initial testing of all speed measuring devices used by the Bellevue Police Department. For these additional reasons, respondents argue, the certificates are not substantially in the form set out in
We disagree. Supervision of purchase and of initial testing is not critical to authentication, provided that the witness who has qualified as an expert shows that the devices have passed the tests and checks necessary to establish that they meet or exceed the relevant performance standards.
The next issue is whether the trial court properly considered the certificates when they were appended to the citing officers’ statements and there was no prosecuting attorney present to offer them into evidence. Initially, we agree with respondents that the certificates are not admissible by reference as part of the citing officers’ written reports because there is no indication that the police officers themselves had personal knowledge of the information contained in the certificates.
However, even though the certificates were not properly part of the officers’ testimony, the trial court still properly considered them.
Lastly on this issue, we note that the certificates are not objectionable on the grounds of hearsay. ER 802 states that “[h]earsay is not admissible except as provided by these rules, by other court rules, or by statute.” (Emphasis added.)
The next issue is raised by the respondents, who claim that the trial court‘s consideration of the certificates amounts to the court having offered the certificates into evidence itself in violation of due process and the separation of powers doctrine. Respondents maintain that the court assumed the role of the prosecuting attorney. We disagree.
We are aware of no authority for the proposition that a trial court‘s notice of authentication evidence like that at issue here, admissible without the expert‘s presence pursuant to court rule or statute, constitutes violation of due process or the separation of powers doctrine. The cases cited by respondents relating to fairness primarily are cases where the court affirmatively called or examined witnesses on behalf of a party to the litigation or literally acted as both judge and prosecutor. E.g., Figueroa Ruiz v. Delgado, 359 F.2d 718 (1st Cir.1966); Giles v. City of Prattville, 556 F.Supp. 612 (M.D.Ala.1983); Wounded Knee v. Andera, 416 F.Supp. 1236 (D.S.D.1976); People v. Martinez, 185 Colo. 187, 523 P.2d 120 (1974); People v. Cofield, 9 Ill.App.3d 1048, 293 N.E.2d 692 (1973). The court in these infraction cases clearly did not assume the role of prosecutor when considering the radar expert‘s certificates as authorized by court rule.
Nor was there any violation of the separation of powers doctrine. The inquiry is whether the trial court‘s actions here “threaten[ ] the independence or integrity or invade[ ] the prerogatives of” the executive branch. See Carrick v. Locke, 125 Wash.2d 129, 135, 882 P.2d 173 (1994) (quoting Zylstra v. Piva, 85 Wash.2d 743, 750, 539 P.2d 823 (1975)). The trial court‘s consideration of Mr. Cole‘s certificates falls within the activities historically and traditionally engaged in by the judicial branch.
The trial court properly denied respondents’ motions to strike the expert radar testimony in the form of the certificates prepared according to
ALEXANDER, C.J., IRELAND, BRIDGE, CHAMBERS, and OWENS, JJ., concur.
Traffic court is often the only exposure Washington citizens will have to the judicial branch. For these citizens, traffic court forms the basis for their understanding of due process. Due process is founded upon an impartial tribunal and the appearance of impartiality is essential to judicial credibility. Yet, in the face of these considerations, the majority chooses to erode the appearance of judicial impartiality in favor of efficiency. The appearance of justice is lost, even where a just result is achieved, when the State‘s only representative at a contested traffic hearing is the judge who moves evidence into the record on the State‘s behalf. The United States Supreme Court has recognized that “to perform its high function in the best way ‘justice must satisfy the appearance of justice.’ ” In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955) (quoting Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954)). The majority compromises this appearance of justice in Washington. I respectfully dissent.
The majority‘s holding must be evaluated against the existing landscape of due process jurisprudence because it concerns the ability of a trial court judge to consider evidence not offered by a party to the dispute. The principle of impartiality is as old as the courts. It is a fundamental idea and it is the acknowledged inviolability of this principle that gives credibility to judicial decrees. State ex rel. Barnard v. Bd. of Educ., 19 Wash. 8, 17-18, 52 P. 317 (1898). Common law, as well as due process under both the federal and state constitutions, guarantees to every defendant a trial before a fair and impartial judge. The law requires more than an impartial judge; it requires the judge to appear to be impartial. State ex rel. McFerran v. Justice Court, 32 Wash.2d 544, 202 P.2d 927 (1949); Diimmel v. Campbell, 68 Wash.2d 697, 414 P.2d 1022 (1966). A trial judge advocating on behalf of one party to a dispute denies due process of law. See, e.g., Figueroa Ruiz v. Delgado, 359 F.2d 718 (1st Cir.1966); Giles v. City of Prattville, 556 F.Supp. 612 (M.D.Ala. 1983); Wounded Knee v. Andera, 416 F.Supp. 1236 (D.S.D.1976); People v. Martinez, 185 Colo. 187, 523 P.2d 120 (1974); People v. Cofield, 9 Ill.App.3d 1048, 293 N.E.2d 692 (1973). The need for an impartial judge applies to a civil setting. “The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases.” Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980). Where the impartiality of a judge reasonably may be questioned, the Code of Judicial Conduct requires the judge‘s disqualification. Canon 3(D)(1).
The majority misstates the limitations on judicial conduct necessary to preserve due process. It does so by suggesting the cases cited by respondents relating to fairness stand for the limited proposition that due process is lost only where a judge affirmatively calls witnesses or is assigned a prosecutorial role. The majority then summarily concludes that the trial judge in these traffic infraction cases “clearly did not assume the role of prosecutor.” Majority at 750. However, these cases do not stand for this limited proposition. None turn on whether a judge actively called witnesses or was the designated prosecutor. Instead, all focus on the disadvantaged party‘s lost due process protections when the judge advocated the opposing party‘s position. In Figueroa Ruiz, the Court of Appeals struck down a Puerto Rican court procedure requiring trial judges to advocate by admitting documents (like the speed measuring device (SMD) certification) and questioning defendants (like respondents). Figueroa Ruiz, 359 F.2d at 722. In Giles, the district court found a court procedure allowing trial judges to prosecute misdemeanor offenses (similar to the traffic infractions here and for some of the same considerations) violated due process. Giles, 556 F.Supp. at 617. In Wounded Knee, the district court reached the same conclusion upon reviewing a similar scheme practiced in a tribal court. In its analysis, the court noted, “it is impossible [for the tribe] to try someone without a voice to elicit evidence for the tribe.” Wounded Knee, 416 F.Supp. at 1241. Where the judge assumed the role of the tribe‘s voice, the judicial role was cast aside and due process was lost. Id. at 1241. In Martinez, the Colorado Supreme Court, found a trial judge had acted as an advocate rather than a judge, in violation of due process,
The high standards of judicial impartiality from the above cases are no less firmly protected by our prior decisions and the Code of Judicial Conduct. For example, in the past when violations of the traffic code still constituted a criminal matter, it was proper for a justice of the peace to transfer venue when the judge believed impartiality could not be maintained. We found the judge‘s actions were essential to the due administration of justice. McFerran, 32 Wash.2d at 549-50, 202 P.2d 927. Similarly, in Diimmel, the trial judge in a quiet title action properly avoided the appearance of unfairness by granting a new trial after entering an impartial judgment upon learning the decision might appear to have been influenced by a former law partner. We found the judge‘s actions conformed to the highest standards of judicial conduct because they avoided the suspicion of irregularity in the discharge of the judge‘s duties. Diimmel, 68 Wash.2d at 699, 414 P.2d 1022. Canon 3 of the Code of Judicial Conduct establishes that this is the high standard necessary to protect judicial impartiality. Under this standard, even truly impartial judges who find their impartiality “might reasonably be questioned” should disqualify themselves. Canon 3(D)(1). The comment to Canon 3(A)(5) explains the appearance of bias “impairs the fairness of the proceeding and brings the judiciary into disrepute.” Canon 3(A)(5) cmt.
The majority‘s holding retreats from the standard of impartiality we have previously affirmed. In these “contested” traffic hearings, the only state official present to contest the citizens’ versions of events was the trial judge. In these contests, both judges offered SMD certification evidence by taking judicial notice of documents that had no other way of entering the records. The trial judges elicited testamentary evidence as well. The judges questioned witnesses unfavorable to the State‘s position that the infractions had occurred, asking for speedometer readings, specific locations of the violations, and awareness of the police officer‘s presence. These questions were not impartial. The questions advanced the State‘s cases that respondents had committed speeding infractions. These trial judges acted as state prosecutors in violation of common law and due process protections afforded by the federal and state constitutions.
Having improperly dismissed the constitutional claims presented, the majority proceeds to rewrite the rules of evidence. The rules of evidence shall apply to traffic infractions.
The majority focuses on the need for efficiency in resolving contested traffic hearings, thereby disregarding due process protections. Far from a matter to be disposed of lightly, the appearance of justice in a traffic court setting is particularly important. Citizens often stand alone against the arrayed representatives of the State‘s authority in contested traffic infractions. This setting frequently represents a citizen‘s only exposure to the judicial process. Under these circumstances, it is more, not less, important that the appearance of justice is preserved. The superior court correctly analyzed the issues presented in these cases under our existing jurisprudence. I would affirm the superior court.
SANDERS and SMITH, JJ., concur in dissent.