(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 *438trial 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 436. 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 *439trial 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, 523 P.2d at 120. 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, 293 N.E.2d at 694.
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 *440truly 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. 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 433. 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 434. 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 435-36. 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 *441Practice: 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 certification.
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,3 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 435 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.
*442The majority focuses on. the need for efficiency in resolving contested traffic hearings, thereby disregarding due process protections. Far from a fnatter 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.
Smith and Sanders, JJ., concur with Johnson, J.
120 Wn.2d 585, 845 P.2d 971 (1993).