City of Bellevue v. Hellenthal, No. 69881-3, (Slip Op., August 2, 2001).
Aug. 2001        CITY OF BELLEVUE v. HELLENTHAL                1
                        Cause No. 69881-3
                    [No. 69881-3. En Banc.]
      Argued March 17, 2001.  Decided August 2, 2001.
                     CITY OF BELLEVUE, )  No. 69881-3
                           Petitioner, )
                                    v. )  En Banc
                          Respondents. )
                   ___________________ )  Filed: August 2, 2001.
  JOHNSON, SANDERS, and SMITH, JJ., dissent by separate opinion.
  Trial Court: Superior Court, King County,
No. 99-2-13965-8, Michael J. Trickey, J.
  Jeffrey D. Torrey, for petitioner.
  G.W. Shaw, for respondents.
  MADSEN, J. -- 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 IRLJ 6.6(b), and that the trial court may consider
such a certificate in a contested hearing on a traffic infraction in the
absence of a prosecuting attorney. We agree, and accordingly reverse the
King County Superior Court and reinstate the trial court findings that the
respondents committed traffic infractions of speeding.
  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 court's findings and dismissed the cases. This court
granted discretionary review. /1
  The King County Superior Court held that IRLJ 6.6(b) does not allow a
civilian radar expert to prepare a certificate authenticating the accuracy
of speed measuring devices, and that IRLJ 3.3, IRLJ 6.6(b), and RCW
46.63.080 together allow only the written declaration of the citing
officer and do not allow a speed measuring device certificate as an
attachment to the officer's statement.
  The first issue is whether IRLJ 6.6(b) requires that certificates
authenticating radar devices be prepared by law enforcement officers.
Respondents contend that under the rule, only a law enforcement officer
can prepare the certificate allowed by the rule. The City of Bellevue
maintains that the rule does not require that the expert preparing the
certificate be a law enforcement officer.
  IRLJ 6.6(b) provides that
  [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.
  Dated: __________
  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. Id.
  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 Wn.2d 585, 592, 845 P.2d 971 (1993); City of
Bellevue v. Mociulski, 51 Wn. 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 Wn.2d 323,
329-30, 21 P.3d 255 (2001); State v. Chapman, 140 Wn.2d 436, 450,
998 P.2d 282, cert. denied, 121 S. Ct. 438 (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, <D<95>> 143 Wn.2d at 330 ; Chapman,
140 Wn.2d at 450.
  IRLJ 6.6(b) does not state that a police officer must complete the
certification form. Moreover, the rule provides only that the
certification form must be "substantially" in the form shown. Plainly,
variation from the example shown is permissible, provided the substance
of the rule's requirements are contained in the form used.
  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 Wn. App. at 860-61.
  Thus, the certificate must provide sufficient information, substantially
as set out in IRLJ 6.6(b), to enable the trial court to readily make this
compound determination of authenticity. Whether the person making the
certificate is a police officer or not is irrelevant to this
determination. We conclude that a certification made under IRLJ 6.6(b)
need not be made by a law enforcement officer.
  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 Wn.2d 801, 807, 16 P.3d 583 (2001);
Kadoranian v. Bellingham Police Dep't, 119 Wn.2d 178, 185, 829
P.2d 1061 (1992). The form in IRLJ 6.6(b) is identical to that appearing
in CrRLJ 6.13(d). As the Task Force Comment to CrRLJ 6.13 explains,
section (d) resulted from the holding in City of Seattle v.
Peterson, 39 Wn. App. 524, 693 P.2d 757 (1985) that radar evidence
is inadmissible unless the device was designed and constructed so that it
would give accurate readings when properly calibrated and operated. 4B
Lewis H. Orland & Karl B. Tegland, Washington Practice, Rules
Practice, CrRLJ 6.13, task force 560 (5th ed. 1997). The
certificate set forth in section (d) is based on a form suggested by the
Washington State Patrol. Id. Given this origin of the form, it
is not surprising that it contains the terms "rank" and "agency."
  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 CrRLJ 6.13(d).
It follows that the same is true of IRLJ 6.6(b).
  Mr. Cole's certificates are in substantially the form as that appearing
in IRLJ 6.6(b) and contain the information necessary for authentication.
Each describes Mr. Cole's employment with a company retained by the City
of Bellevue to maintain, repair, calibrate and certify electronic speed
measuring devices. The certificates state that Cole engages in these
activities. Each describes his education, experience, and qualifications
with respect to these activities and states that he has accumulated
approximately 7,000 hours in repairing, maintaining, calibrating and
certifying speed measuring devices. Each certificate states that Cole's
company is an authorized service center for all radar makes used by the
City of Bellevue's Police Department and that the company maintains
service manuals with schematics on these radar instruments. Each states
that Cole is personally familiar with these manuals and states that the
manuals are available for inspection on request for any contestant of a
notice of traffic infraction issued by the City. Each certificate states
that through education and experience Mr. Cole is personally familiar
with the design, construction, and operation of the speed measuring
devices used by the City's police department and that these instruments
are designed and constructed to accurately employ the Doppler principle.
Each certificate also states that the company maintains a quality
assurance testing, calibration, and certification program and that each
speed measuring device is tested approximately each twelve months. Each
certificate describes the testing program in detail and lists the
specific radar instruments submitted to the company for evaluation.
Finally, each includes Cole's expert opinion that based on his education,
training, experience, and knowledge of the speed measuring devices
listed, each device is designed and constructed to accurately and
reliably employ the Doppler effect so as to give accurate measurements of
the speed of motor vehicles when properly calibrated and operated by a
trained operator.
  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 IRLJ 6.6(b).
  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
  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
  However, even though the certificates were not properly part of the
officers' testimony, the trial court still properly considered them.
IRLJ 3.3(b) provides that in a contested hearing on a traffic infraction
the plaintiff shall be represented by counsel when a local court rule
requires this. RCW 46.63.080 similarly provides that in such proceedings
the attorney representing the state, county, city, or town may appear but
need not do so, notwithstanding any statute or court rule to the
contrary. (There is no argument here that a local rule required the
presence of a prosecuting attorney in these cases.)  As noted, IRLJ
6.6(b) provides for the certificate's admission in lieu of the expert's
presence, unless the defendant timely requests that the expert appear.
Finally, IRLJ 3.3(c) provides that "[t]he court may consider the notice
of infraction and any other written report made under oath submitted by
the officer who issued the notice or whose written statement was the
basis for issuance of the notice in lieu of the officer's personal
appearance" unless the defendant secures the officer's presence in accord
with the rule's procedures. See also RCW 46.63.090.
  These rules are designed to facilitate an expeditious system for
disposing of traffic infractions. See IRLJ 1.1(b) (the
Infraction Rules for Courts of Limited Jurisdiction "shall be construed
to secure the just, speedy, and inexpensive determination of every
infraction case"); see also RCW 46.63.010. The rules
contemplate that a contested hearing may proceed without a prosecuting
attorney and without the citing officer's presence. They also allow a
certificate to stand in the stead of the expert witness on speed
measuring devices. Requiring a prosecuting attorney's presence for the
purpose of offering the expert's certificate into evidence, as
respondents suggest is necessary, runs contrary to the entire scheme.
Court rules relating to each other, like statutes relating to each other,
should be read as complementary, rather than in conflict. See
Chapman, 140 Wn.2d at 448; In re Personal Restraint of Yim,
139 Wn.2d 581, 592, 989 P.2d 512 (1999). Accordingly, we read IRLJ
6.6(b) as allowing not only for admissibility of the certificate, but for
its consideration by the court as well. /2
  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.)  IRLJ 6.6(b)'s certificate is an exception to
the hearsay rule.
  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 Wn.2d 129, 135, 882 P.2d 173
(1994) (quoting Zylstra v. Piva, 85 Wn.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 IRLJ 6.6(b). We reverse the King County Superior Court and reinstate
the trial court's findings that respondents committed the infractions.
  1 The City of Bellevue moves to strike portions of respondents'
brief on the basis that it refers to matters not in the record. We grant
the motion in part and deny it in part. An appendix consisting of a
Department of Licensing manual is not part of the record and is stricken.
See RAP 10.3(a)(7). Reference to a trial brief that was not made part of
the record on appeal is stricken. References at page 6 of the brief to
the trial court having offered and admitted Mr. Cole's certificates into
evidence are not factual statements, but are instead part of respondents'
argument. Although they are misplaced, we do not strike the challenged
statements. We also do not strike portions of respondents' statement of
facts referring to the transcripts of the electronic records and other
court documents, as these materials are found in the Clerk's Papers.
Respondents should have cited to the record, however. Our analysis of
this case has not involved consideration of the portions of the brief
which are stricken.
  2 We note that IRLJ 6.6 has been amended to provide that the
certificate allowed by the rule can be filed with the court as a public
record, and will be available for inspection by the public, with copies
made on request. The amendment also expressly provides that the court
may take judicial notice of the fact the document has been filed with the
court, and that evidence will not be suppressed merely because no
representative of the prosecuting authority is present to actually offer
it. IRLJ 3.3(b). The rule now makes explicit what was implicit before -
that the court may judicially notice the certificate authorized by the
rule, specifically in light of the fact that the certificate can now be
filed as a public record.
Aug. 2001        CITY OF BELLEVUE v. HELLENTHAL      (dissent) 1
                        Cause No. 69881-3
  JOHNSON, J. (dissenting) -- 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 Wn.2d 544, 202 P.2d 927 (1949); Diimmel v.
Campbell, 68 Wn.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 11. 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, by admitting a prehearing transcript and questioning witnesses.
Martinez, 185 Colo. at 189. Similarly, in Cofield, the
Illinois court of appeals held a trial judge had departed from the role
of judge when the judge advocated the State's position by questioning
witnesses, even though a prosecutor was present at the trial.
Cofield, 9 Ill. App. 3d at 1051.
  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 Wn.2d at 549-50.
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 Wn.2d at 699. 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)
  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. IRLJ 3.3(c). However, the majority's
analysis does not trace a logical path through the evidence rules. First,
the majority identifies the SMD certification as an authenticating
document. Majority at 7. Next, the majority concedes had a police officer
directly offered evidence of the SMD certification, it would fail for lack
of personal knowledge under ER 602. Majority at 9. Both statements are
correct, so far as they go. But, the majority then makes an illogical leap
by characterizing the SMD certification as the subject of a hearsay
exception under ER 802. Majority at 11. This characterization implies that
a determination of admissibility is no different than admitting the
document. But cf. ER 104(a); 5 Karl B. Tegland, Washington
Practice: Evidence Law and Practice  104.5, at 98 (4th ed. 1999).
This is incorrect. ER 104(a) is not a rule for admitting evidence by the
court. ER 104(a) allows the court to consider otherwise inadmissible
evidence to determine the admissibility of evidence offered by one of the
parties. Nor does a determination of admissibility confer the status
reserved for adjudicative facts. Cf. ER 201(b). Under the rules
of evidence, hearsay is an out-of-court statement offered to prove the
truth of the matter asserted. ER 801(c). Even the most liberal reading of
IRLJ 6.6(b) will not excuse the basic procedure for admitting evidence.
The State had no proponent to offer the SMD certification so that it might
be subject to a hearsay exception. Nor was the SMD certification a matter
of public record so that it could have been a matter for judicial notice.
There was no evidentiary basis for the trial court to consider the SMD
  Finally, after incorrectly analyzing the constitutional issue and failing
to apply the rules of evidence, the majority misstates the principles of
statutory construction. In its analysis of court rule interpretation, the
majority cites State v. Greenwood, /1  but then ignores the
statement that "a material change in the language of the original act is
presumed to indicate a change in legal rights." Greenwood,
120 Wn.2d at 592-93 (citing 1A Norman A. Singer, Statutory
Construction  22.30 (4th ed. 1985)). The addition of a new
subsection to a court rule is a material change. The majority misstates
the effect of the amendment to IRLJ 6.6 that occurred after the contested
traffic hearings. Amended IRLJ 6.6 makes the SMD certification a public
document that may be judicially noticed but that shall be
suppressed if it has not been filed as required. IRLJ 6.6(d). The
amendment does not demonstrate that the SMD certification was implicitly
available for judicial notice before its revision. Majority at 10 n.2. On
the contrary, it demonstrates that the SMD certification was not the
proper subject of judicial notice. As a matter of statutory construction,
this amendment refutes the majority's position.
  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 the dissent.