State v. Moreno

• Decision Date: 10 October 2002
• Docket Number: No. 71452-5.,71452-5.
• Citation: 58 P.3d 265,147 Wash.2d 500
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Alma Christina MORENO, Petitioner.

58 P.3d 265

147 Wash.2d 500

STATE of Washington, Respondent, v. Alma Christina MORENO, Petitioner.

No. 71452-5.

Supreme Court of Washington, En Banc.

Argued May 7, 2002.

Decided October 10, 2002.

Glen Prior, Fife, for Petitioner.

Gerald Horne, Pierce County Prosecutor, John Hillman, Deputy, Tacoma, for Respondent.

OWENS, J.

The main issue in this case is whether it violates the separation of powers doctrine or due process for a district court judge to call and question the state's witnesses in a traffic infraction hearing without a prosecutor present. On RALJ appeal the superior court concluded that it did not. We conclude that we have jurisdiction to hear the case and affirm.

FACTS

On October 23, 1999, Washington State Patrol Trooper Tina McManus stopped and cited Alma Moreno for speeding under RCW 46.61.400. The notice of infraction indicated that a $90 fine would be assessed. The officer's written statement says that she determined Moreno's speed by radar. According to the statement, Moreno accused Trooper McManus of stopping her because of her race.

Moreno contested the citation and retained counsel. At Moreno's request, Pierce County District Court No. 1 subpoenaed Trooper McManus and a radar expert. Moreno also sent two discovery requests to the Pierce County Prosecutor. Under IRLJ 3.1(b) she was entitled to discovery of a list of witnesses the state intended to call at the hearing and the officer's statement. The district court sent her the officer's statement, but the prosecutor did not respond to her requests.

On July 18, 2000, Moreno, her attorney, Trooper McManus, and the radar expert attended the contested hearing. No prosecutor appeared. The judge swore in the witnesses and said, "[t]he court will hear from Ms. McManus, who is Tina McManus, Trooper." Clerk's Papers (CP) at 28. Moreno objected and moved to dismiss for failure to prosecute. The court denied the motion to dismiss, but allowed Moreno to state her objections on the record. Moreno argued that it was improper for the judge to act "as a lawyer and judge in the same proceeding." CP at 30. Moreno indicated that she did not intend to elicit any testimony from the state's witnesses.

After noting Moreno's objection, the judge resumed: "Trooper McManus, would you tell the court what happened?" CP at 30. Trooper McManus's testimony matched almost word for word the form statement she filled in on the back of the notice of infraction. She recounted where and when Moreno was stopped, how she used the radar to check Moreno's speed, how the radar was in working condition and had been tested and so forth. When she reached the end of the printed paragraph, Moreno objected on the ground that she was neither testifying from personal knowledge nor using the report to refresh her recollection. The court responded:

Judge: (Undistinguishable) ... We do allow them to read their affidavit. If you don't want her to read it ... she can highlight it to the court. But her statement will be admitted. Trooper McManus, do not read it completely, just give us...

Trooper: Yes Ma'am....

CP at 31. Picking up where she left off, Trooper McManus summarized the rest of her written statement. Moreno did not cross-examine her, refusing to participate.

The court turned to the radar expert. The judge said: "Mr. Hannah, you were subpoenaed. Why don't you give the court your [credentials] and testify as to the condition of the radar." CP at 31. Moreno again objected, the court again overruled her, and the radar expert testified about his expertise and the radar. Moreno did not cross-examine the radar expert either. After Moreno again stated her objection to the state's failure to present a case, the court found the infraction had been committed and fined her $45. Moreno appealed to the superior court, which affirmed. The Court of Appeals transferred her motion for discretionary review to this court because it lacks jurisdiction.

Moreno faults the state for not appearing at the hearing and for not providing a witness list, thus failing to prosecute the case. Her more significant claim is that in admitting the testimonial evidence in this case, the district court violated the separation of powers doctrine and due process. We granted Moreno's petition for review and directed the parties to address the preliminary question of whether this court has jurisdiction.

ISSUES

(1) Does this court have jurisdiction?

(2) Did the district court violate the separation of powers doctrine?

(3) Did the district court violate due process?

ANALYSIS

1. Jurisdiction

The jurisdiction of the Supreme Court is set down in the state constitution:

The supreme court shall have ... appellate jurisdiction in all actions and proceedings, excepting that its appellate jurisdiction shall not extend to civil actions at law for the recovery of money or personal property when the original amount in controversy, or the value of the property does not exceed the sum of two hundred dollars ($200) unless the action involves the legality of a tax, impost, assessment, toll, municipal fine, or the validity of a statute.

WASH. CONST. art. IV, § 4. A violation of Title 46 RCW is a civil traffic infraction (unless designated a crime by RCW 46.63.020). City of Bremerton v. Spears, 134 Wash.2d 141, 150, 949 P.2d 347 (1998). The original amount in controversy in this case was $90. We have jurisdiction only if one of the exceptions to the $200 amount in controversy requirement applies.

The procedure for traffic infraction hearings is established by statute, RCW 46.63.080, Hearings — Rules of procedure — Counsel. One of the legislature's purposes in decriminalizing traffic violations was to create an "expeditious system for the disposition of traffic infractions." RCW 46.63.010. In hopes of accomplishing this purpose, the legislature provided for hearings without prosecutors:

"The attorney representing the state, county, city, or town may appear in any proceedings under this chapter but need not appear, notwithstanding any statute or rule of court to the contrary."

RCW 46.63.080(3). Moreno asserts that this aspect of the procedure established for traffic infraction hearings violates the constitutional separation of powers doctrine and the due process clause. Thus, to the extent Moreno raises constitutional arguments, she challenges "the validity of a statute" under article IV, section 4 of the state constitution. We therefore have jurisdiction over her constitutional claims.¹

2. Separation of Powers

The doctrine of separation of powers comes from the constitutional distribution of the government's authority into three branches. The state constitution divides the "political power" that is "inherent in the people," article I, section 1, into "legislative authority," article II, section 1, "executive power," article III, section 2, and "judicial power," article IV, section 1. Each branch of government wields only the power it is given. The purpose of the doctrine is to prevent one branch of government from aggrandizing itself or encroaching upon the "fundamental functions" of another. Carrick v. Locke, 125 Wash.2d 129, 135, 882 P.2d 173 (1994). But because the three branches are not "hermetically sealed," the separation of powers doctrine allows the government a measure of "flexibility and practicality." Id.

The test for determining whether separation of powers is violated reflects the concern for the independence of each branch as well as the fact that some overlap is allowed:

"The question to be asked is not whether two branches of government engage in coinciding activities, but rather whether the activity of one branch threatens the independence or integrity or invades the prerogatives of another."

Id. at 135, 882 P.2d 173 (quoting Zylstra v. Piva, 85 Wash.2d 743, 750, 539 P.2d 823 (1975)). The United States Supreme Court has decried two dangers to judicial independence: "first, that the Judicial Branch neither be assigned nor allowed `tasks that are more properly accomplished by [other] branches,' Morrison v. Olson, 487 U.S. [654,] 680-681, [108 S.Ct. 2597, 101 L.Ed.2d 569 (1988)], and, second, that no provision of law `impermissibly threatens the institutional integrity of the Judicial Branch.' Commodity Futures Trading Comm'n v. Schor, 478 U.S. [833,] 851[, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986)]." Mistretta v. United States, 488 U.S. 361, 383, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), quoted in Carrick, 125 Wash.2d at 136,

882 P.2d 173. The question is whether the district court invaded the prerogatives of the executive branch, and assumed a task more properly accomplished by it, by calling and questioning Trooper McManus and the radar expert.

A judge does not violate separation of powers merely by calling and questioning a witness. The evidence rules, which apply to infraction hearings under IRLJ 3.3(c), permit both "where necessary in the interests of justice." ER 614(a), (b). Washington recognized this authority before adoption of the rules. ROBERT H. ARONSON, THE LAW OF EVIDENCE IN WASHINGTON 614-2 (3d ed.1998). The executive branch still polices the highways and gathers the evidence of an infraction. In asking for both parties' evidence, listening to all of it, and deciding whether the infraction was committed, the district court was within the constitutional confines of the judicial power.

3. Due Process

Moreno next contends that the procedure employed by the district court violated the fourteenth amendment to the United States Constitution. She relies on that aspect of the due process clause guaranteeing her a fair tribunal.

A fair trial in a fair tribunal is a basic requirement of due process.... "[E]very procedure which would offer a possible temptation to the average man as a judge [to forget the burden of proof required to convict the defendant, or which might lead him] not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of

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