(dissenting) — The majority opinion attempts to draw a fine line between a judge actively prosecuting a case and merely calling witnesses to elicit information. But this distinction fails to protect or recognize the importance of the appearance of fairness principle and jeopardizes fundamental principles of procedural due process to which every party before our courts is constitutionally entitled. I therefore dissent.
Judges are required to comply with the canons of judicial ethics. Our state’s Code of Judicial Conduct (CJC) requires judicial fairness in order to preserve procedural due process *513and public confidence in our courts. The Preamble begins, “[o]ur legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us.” CJC, Preamble. This principle is so integral to our adversarial system that the Code of Judicial Conduct repeats it in the first Canon: “An independent and honorable judiciary is indispensable to justice in our society.” CJC, Canon 1.
Our cases also require adherence to these principles. Judges must not only be impartial, but also appear impartial because judicial fairness is violated when the appearance of fairness is ignored. State ex rel. McFerran v. Justice Court, 32 Wn.2d 544, 549, 202 P.2d 927 (1949) (“‘The principle of impartiality, disinterestedness, and fairness on the part of the judge is as old as the history of courts’ ” (quoting State ex rel. Barnard v. Bd. of Educ., 19 Wash. 8, 17, 52 P. 317, 320 (1898))); Diimmel v. Campbell, 68 Wn.2d 697, 699, 414 P.2d 1022 (1966) (“It is incumbent upon members of the judiciary to avoid even a cause for suspicion of irregularity in the discharge of their duties”). This is more than idealistic sentiment. “Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of the judges.” CJC, Canon 1 cmt.
These bedrock principles of procedural due process are also set forth in cases from the United States Supreme Court. The majority would dismiss the United States Supreme Court’s articulation of these principles. But when the high Court held, “ l[e\very procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law,’ ” it did not intend its holding to be limited to the facts of that case. In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955) (emphasis added) (quoting Tumey v. Ohio, 273 U.S. 510, 532, 47 S. Ct. 437, 444, 71 L. Ed. 749 (1927)).3
*514In our adversarial system, when the only advocate for the State in the courtroom is the judge, the appearance of fairness is violated. As stated in City of Bellevue v. Hellenthal, “[t]he 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.” 144 Wn.2d 425, 437, 28 P.3d 744 (2001) (Johnson, J., dissenting). This case presents a situation that is far beyond what occurred in Hellenthal. That case involved a judge admitting into evidence a certificate by a radar expert, which was authorized by court rule. Hellenthal, 144 Wn.2d at 434.
Here, the court’s behavior is more egregious than that in Hellenthal because the judge actively solicited information from witnesses unfavorable to Moreno. Moreno made repeated motions that the case could not go forward because the prosecutor was not present. The judge responded, “[t]he court is not going to dismiss it because the state allegedly is not here. The state and the prosecutor around here is [sic] never here.” Clerk’s Papers at 28-29. Moreno further argued the judge would have to rule on objections to her own questions of witnesses. Moreno emphasized the State could not meet its burden to prove the case by a preponderance if no one was there to argue for it. Moreno had not received the State’s witness list after repeated requests for it. The judge responded, “we do not have that here.” Clerk’s Papers at 29. The judge then asked witnesses unfavorable to Moreno to testify over Moreno’s specific objections that the judge was acting “as a lawyer and judge in the same proceeding.” Clerk’s Papers at 30.
The judge crossed the line from impartiality to advocacy in this case. The State did not subpoena any witnesses. Moreno never called any witnesses and objected to the witnesses called. Because it was the judge who called the *515witnesses and questioned them regarding facts unfavorable to Moreno, the only advocate for the State was the judge. This conduct unquestionably violated the appearance of a fair and independent judiciary and Moreno’s right to procedural due process.
Whether we can determine in retrospect whether a trial court merely elicited unfavorable information or actively prosecuted the case, is not the issue. As our judicial canons, our cases, and those cases of the United States Supreme Court mandate, the right to due process is violated when, as occurred here, the appearance of fairness is violated. I therefore dissent.
Sanders and Chambers, JJ., concur with Johnson, J.
The majority attempts to temper this language by citing to a later United States Supreme Court case which held an administrative agency may both *514investigate and adjudicate regulatory violations. Majority at 508 (citing Withrow v. Larkin, 421 U.S. 35, 51-52, 55, 58, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975)). But this is not the issue before us. That case does not address whether a court may both call a witness in the absence of a prosecuting attorney and then rule on its ability to do so.