State v Moreno :: 147 Wn2d 500
Category: Due Process
“The main issue in this case is whether it violates the separation of powers doctrine or due process for a district judge to call and question the state’s [sic] witnesses in a traffic infraction hearing without a prosecutor present.” [Owens at 501]
Alma Moreno was stopped and cited for speeding by Washington State Patrol Trooper, Tina McManus on October 23, 1999. The written statement by the Officer stated she determined Moreno’s speed by radar. Moreno claimed the stop was based on race.
Moreno contested the citation and retained Attorney Glen A. Prior as her counsel. She requested a list of witnesses the state intended to call at the hearing and a copy of the officer’s written statement. Furthermore, she requested Pierce County District Court to subpoena Trooper McManus and a radar expert. The District Court sent her the officer’s statement, but the prosecutor did not respond to her request.
At the hearing the judge swore in the witnesses present with no prosecutor in attendance. Moreno objected and moved to dismiss for failure to prosecute. Moreno argued according to the Fourteenth Amendment of the United States Constitution it is unlawful for a judge to act “as a lawyer and judge in the same proceeding” not allowing her a fair trial which is a basic requirement of due process. Her objections were overruled and Trooper McManus and the radar expert were allowed to testify. Moreno did not cross-examine, refusing to participate and again stated her objections to the State’s failure to present a case. Moreno faults the State for not appearing at the hearing and not providing a witness list, thus failing to prosecute the case. Her most significant claim is the State’s admission of testimonial evidence without a prosecutor present and in doing so the District Court violated the separation of powers and her right to due process.
The Supreme Court ruled against Moreno concluding the District Court did not violate the separation of powers doctrine or due process by adjudicating Moreno’s traffic infraction without a prosecutor present since the judge did nothing “in addition to calling witnesses and asking neutral questions.” [at 511] However, we agree with the dissenting opinion that 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 appearance of fairness is violated. The judge crossed the line from impartiality to advocacy in this case by calling witnesses and questioning them regarding facts unfavorable to Moreno. This case establishes a dangerous precedent.
Rating the Usual Suspects:
| pass | Chambers, Tom | |
| pass | Johnson, Charles | |
| pass | Prior, Glen A | |
| pass | Sanders, Richard | |
| fail | Alexander, Gerry | |
| fail | Arend, Stephanie A | |
| fail | Armstrong, Steen | |
| fail | Bridge, Bobbe | |
| fail | Hillman, John | |
| fail | Horne, Gerald A | |
| fail | Ireland, Faith | |
| fail | Loginsky, Pamela | |
| fail | Madsen, Barbara | |
| fail | Owens, Susan | |
| fail | Smith, Charles |