(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 trial 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 2-tier justice court system seem to me to be persuasive, 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.2 Justice Stewart in that dissent, at page 342, emphasized the presupposition underlying the acknowledged right to assistance of counsel is "that the judge conducting the trial
*285will 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. 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 between 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. Of critical importance to the majority in that case was the right of trial de novo following a plea of guilty. "Under the Kentucky system, as we noted in Colten, [Colten v. Kentucky, 407 U.S. 104, 32 L. Ed. 2d 584, 92 S. Ct. 1953 (1972)] a defendant can have an initial trial before a lawyer-judge by pleading guilty in the police court, thus bypassing that court and seeking the de novo trial, 'erasing . . . any consequence that would otherwise follow from tendering the [guilty] plea.' 407 U. S., at 119-120." North v. Russell, supra at 337.
The majority in this opinion recognizes de novo review is not available from a judgment entered on a plea of guilty and as such the rationale for the majority in North v. Russell, supra, does not apply. We should also not give the impression that a district court judge qualifies for his position on that bench by passing an examination pursuant to RCW 3.34.060. While such an examination is apparently required by statute, to my knowledge an examination has *286not been given to date to nonlawyer district court judges. If that examination is in fact to be meaningful, I would assume it would require the same degree of proficiency, at least insofar as evidence, criminal procedure, criminal law, and constitutional law, as is required of law school graduates. It is unrealistic to expect lay judges to be able to pass such a meaningful examination.
For the foregoing reasons, I would affirm the trial court and, therefore, dissent.
Rosellini, Horowitz, and Dolliver, JJ., concur with Utter, J.Petition for rehearing granted September 2, 1977.
"No person shall be deprived of life, liberty, or property, without due process of law." Const, art. 1, § 3.