(dissenting) — The majority approves the exercise of criminal misdemeanor and gross misdemeanor jurisdiction by a nonlawyer district court judge and nonlawyer municipal police court judge, over defendants brought before their courts. It concedes due process of law under both the federal and Washington constitutions requires a fair trial for each defendant and recognizes that a fair trial may not be afforded in some cases before a nonlawyer judge. Having conceded this, however, it concludes the fair *544trial guaranty is protected through the appellate process which allows a trial de novo in superior court. This argument is unpersuasive.
The quality of the first trial is as important to the fabric of justice as the quality of the second. It requires no extensive fact-finding hearing to appreciate that many defendants charged with traffic or other offenses heard in the courts here at issue cannot afford either the time or money to avail themselves of a de novo appeal. For them the first trial is their only trial and that proceeding should be conducted with the same skill and dignity as the second one, which they may never be able to afford.
The reasons discussed by the dissent in North v. Russell, 427 U.S. 328, 49 L. Ed. 2d 534, 96 S. Ct. 2709 (1976), for invalidating the two-tier justice court system seem persuasive to me, and I conclude that we should hold criminal defendants have a due process right to trial before a lawyer-judge under article 1, section 3 of our constitution.4 Justice Stewart in that dissent, at page 342, emphasized that the presupposition underlying the acknowledged right to assistance of counsel is "that the judge conducting the trial will be able to understand what the defendant's lawyer is talking about." His dissent was equally disdainful of the attempt by the majority in North to limit the application of Ward v. Village of Monroeville, 409 U.S. 57, 61-62, 34 L. Ed. 2d 267, 93 S. Ct. 80 (1972), wherein the court held, "the State's trial court procedure [cannot] be deemed constitutionally acceptable simply because the State eventually offers a defendant an impartial adjudication. Petitioner is entitled to a neutral and detached judge in the first instance." In commenting on the North majority opinion, Justice Stewart stated, "[t]he Court would distinguish the Ward case as 'directed at the need for independent, neutral and detached judgment, not at legal training.' . . . But surely there can be no meaningful constitutional difference *545between a trial that is fundamentally unfair because of the judge's possible bias, and one that is fundamentally unfair because of the judge's ignorance of the law." North v. Russell, supra at 345.
By adopting the reasoning and language of Justice Stewart's dissent I do not mean to indicate I believe the majority in North is controlling. In North, the Supreme Court repeatedly emphasized the availability of a de novo trial even for a defendant pleading guilty in a court of limited jurisdiction. Indeed, the court pointed out in both that case and in Colten v. Kentucky, 407 U.S. 104, 32 L. Ed. 2d 584, 92 S. Ct. 1953 (1972), that under the Kentucky system challenged in both cases, there was not any requirement whatever that any defendant endure two trials and the time, expense, and emotional investment inherent therein. Quoting from Colten, the North majority stressed: '"[the defendant] may also plead guilty without a trial and promptly secure a de novo trial in a court of general criminal jurisdiction.'" North v. Russell, supra at 336. Here, in contrast, a defendant must necessarily defend on the merits in the district court because a plea of guilty waives the right to a de novo trial. Thus, every defendant must endure a full trial in the district court before becoming entitled to a law-trained judge the second time around. It is precisely this necessity to stand trial twice which violates due process in this case. This feature of the Washington scheme renders it far more objectionable than was the system upheld in North v. Russell, supra.
The majority's conclusion that certain short cuts to a verdict may be available in courts of limited jurisdiction is unsatisfactory. Such abbreviated procedures are not always available, nor do they eliminate entirely the unfair burden of duplicative procedures to be borne primarily by defendants of modest means. The system we have in this state is simply not that addressed in North.
Yet even were North controlling as to the federal constitutional question presented here, I would find a violation of our state's due process provision. The majority accepts the *546analysis of the majority in North, and adopts that analysis as applicable to our due process clause in the facts of this case. The majority does not foreclose adoption of a different standard under the state due process clause in those cases where the court finds the reasoning of federal courts on pertinent issues unconvincing.
This was our approach in Hanson v. Hutt, 83 Wn.2d 195, 517 P.2d 599 (1973), where we found the pertinent provision of our state constitution to provide a greater degree of protection to individuals than does the comparable provision of the federal constitution.
The majority describes Hanson as involving a more controversial issue, and thus distinguishes it. I believe Hanson rather reflected our willingness to probe more deeply into the meaning of our constitution. Here I believe such a careful investigation necessitates a finding that the system of lay judges breaches the due process requirement.
All judges in Washington are required affirmatively, by our canons of judicial ethics, to "be faithful to the law and maintain professional competence in it." CJC 3(A)(1). Judges under extreme circumstances may have active roles in the conduct of trials.
The reasons for which a judge may intervene on his own motion include calling and examining witnesses, . . . ordering the severance of defendants, excluding inadmissible evidence, and formulating instructions for the jury. He also has special responsibilities for insuring that confessions and guilty pleas are voluntary. The exercise of these functions is fraught with difficulties. In his quest for a fair trial, the judge must scrupulously avoid identification with the prosecutor or the defense attorney. He is not to assume their roles; nor should he usurp the jury's function.
(Footnotes omitted.) Comment, The Right to a Legally Trained Judge: Gordon v. Justice Court, 10 Harvard Civ. Rights-Civ. Lib. L. Rev. 739, 751-53 (1975).
It is not uncommon for judges to have the affirmative burden of formulating instructions for juries, whether requested by the parties or not. Counsel for the prosecution *547and defense will frequently request conflicting instructions and the judge must be able to recognize which, if any instructions, most accurately state the law. Beyond this, a judge without a legal education must rely on the advice of others in matters where he should act independently. Some matters such as minimum and maximum sentences and the amount of bail are matters which may be able to be adequately administered with the assistance of special judicial education courses, but it is beyond the scope of education courses to prepare a lay judge properly to rule on the admissibility of evidence, to recognize First Amendment issues, and to deal with the complex Fourth Amendment issues present in motions to suppress evidence. Resolution of these issues involves more than well intentioned common sense and fairness. Sufficient legal knowledge to deal intelligently with complex legal issues is essential and its absence in lay judges makes the possibility of prejudice sufficiently great to deny due process.
Even if we were to require of lay judges the degree of proficiency in evidence, criminal procedure, criminal law, and constitutional law required of those passing the bar examination of this state, defendants would still not receive the standard of judicial training I believe necessary to meet our due process requirements. Training in the broad scope of law and its history and subjection to the mental discipline required by such a course of study provides the foundation for rule of law rather than rule by fiat. Lacking this training the untrained judge by necessity may apply only his own standards. Further, where he errs in his understanding of the law he remains uncorrected, because no record is made of proceedings in district and municipal courts and the lay judge's actions are not reviewed in the de novo trial of a defendant's case. His misunderstanding is perpetuated. I find such a system constitutionally unacceptable.
Because due process is a concept which depends heavily upon "time, place and circumstances", my position in this case would necessarily involve a balancing of the interests *548of both the defendant and state. The defendant's interest is that his freedom not be deprived or his property taken without the opportunity for, if he so chooses, a trial appropriate to the nature of the power exercised over him by the court. Conviction of a misdemeanor can have a serious impact on a defendant. The potential for loss of liberty is always present as are the collateral consequences of a conviction. Increased insurance rates, ineligibility for employment requiring security clearance, increased cost of or impossibility of obtaining bonding, and limitation of professional licensing are but a few of the possible collateral consequences of a conviction. Special Project — The Collateral Consequences of a Criminal Conviction, 23 Vand. L. Rev. 929 (1970).
The actual imposition of a jail sentence is not determinative of the complexity of a case because sentences are imposed only after a trial on the issues; cases where a jail sentence may be imposed but a fine is levied instead are indistinguishable in complexity from those resulting in imprisonment.
The State asserts a strong interest in maintaining a lay judicial system. It argues that there are severe problems presented by the lack of availability of attorneys in rural districts. It further urges that the cost of replacing lay justices with law-trained justices is burdensome. These arguments are unpersuasive. The Superior Court stated in its memorandum opinion that there were three lawyers practicing in Republic, the county seat of Ferry County. In addition, the membership of the Washington State Bar Association has increased from 4,902 in 1972 to 7,964 at present. There are 187 lawyers admitted to the bar in Yakima County, the county where Granger is located. Receipts from criminal and traffic cases tried in Republic, the county seat of Ferry County, were $4,259 in 1976 and $13,060 for the municipality of Granger in 1976. It would appear revenues from criminal cases in these jurisdictions are more than adequate to compensate for the expenses of a judiciary admitted to the bar. Further, we have noted *549that "ordinary costs in time, effort, and expense incurred by providing a hearing cannot outweigh the constitutional right [to a hearing commensurate with due process]." Everett v. Slade, 83 Wn.2d 80, 83, 515 P.2d 1295 (1973). I have considered the opinions of courts in other states which allow the use of lay judges. None of these opinions satisfactorily addresses "the inherent inconsistency in guaranteeing a defendant an attorney to represent him without providing an attorney judge to preside at the proceedings." Gordon v. Justice Court, 12 Cal. 3d 323, 333, 525 P.2d 72, 115 Cal. Rptr. 632 (1974).
Adoption of a rule requiring law-trained judges admitted to the bar in all cases where a jail sentence may be imposed would not necessarily require the abolition of the lay judge system in its entirety. They still may function in civil cases, in cases where citizens who have confidence in their fairness and ability are willing to waive their right to an attorney judge, or in cases where no jail sentence may be imposed. The state legislature or a municipality, if concerned about retaining lay judges, may, of course, abrogate the potential of a jail sentence for any of the wide range of traffic offenses and other misdemeanors now heard in district and municipal courts where a jail sentence may be imposed.
The experience in California after the decision in Gordon v. Justice Court, supra, abolishing the use of lay judges in criminal cases involving the possibility of incarceration is strong evidence that the determination I would make would cause no upheaval in the criminal justice system. According to the records of the Administrative Office of the Courts of California, no significant problem ever developed as a result of Gordon. Many defendants waived their right to a law-trained judge. A slight reorganization resulted in greater efficiency, with law-trained judges able to handle more cases than they previously had been able to manage. New justice court vacancies were statutorily limited to law-trained persons, and for each vacancy, even in remote areas, there were numerous attorney candidates. Our system as *550well would adapt in order to comply with the constitutional standard.
Horowitz and Dolliver, JJ., concur with Utter, J.
"No person shall be deprived of life, liberty, or property, without due process of law." Const, art. 1, § 3.