[No. 79481-2. En Banc.]
Argued November 6, 2007. Decided March 20, 2008.
[1] Statutes Validity Question of Law or Fact Standard of Review. The constitutionality of a statute is an issue of law that an appellate court reviews de novo. [2] Statutes Validity Presumption Rebuttal Burden of Proof Degree of Proof. When ruling on a challenge to the constitutional validity of a statute, a court begins with the presumption that the statute is constitutional. The party claiming that the statute is unconstitutional has the burden of proving that it is unconstitutional beyond a reasonable doubt. [3] Statutes Validity Constitutional Construction Tortured Interpretation. The Supreme Court will not press statutory construction to the point of disingenuous evasion to remedy a constitutional infirmity in a statute. [4] Criminal Law Statutes Construction Strict Construction Literal Construction. The courts interpret criminal statutes literally and strictly. [5] Jury Right to Jury Criminal Case Constitutional Right Elements of Crime. A criminal defendant has a constitutional right to have a jury determine every element of the crime charged. Under Const. art. I, § 23, the right is "inviolate." [6] Criminal Law Crimes Elements Proof Required Determination by Court Validity. The legislature is constitutionally prohibited from specifying that an element of a crime must in all cases be determined by a court as a matter of law. [7] Perjury False Statement Materiality Determination By Court Statutory Mandate Validity. In a prosecution for perjury under RCW 9A.72.020(1), the materiality of the false statement underlying the charge is an element of the crime that a defendant has a constitutional right to have a jury determine. That portion of RCW 9A.72.010(1) mandating that materiality be determined by the court as a matter of law is therefore unconstitutional. [8] Statutes Validity Invalidity Partial Invalidity Severability Test. The invalid portion of a statute may be severed from the remaining valid portion so long as (1) the two portions are not so connected that it could not be believed that the legislature would have enacted one without the other and (2) the invalid portion is not so intimately connected with the balance of the statute as to render the statute useless in accomplishing its legislative purpose. [9] Statutes Validity Invalidity Partial Invalidity Severability Severability Clause Effect. A severability clause providing that the invalidity of any portion of a statute does not affect the validity of its remainder offers to the courts the necessary assurance that the statute's valid provisions would have been enacted without the invalid provisions. [10] Statutes Validity Invalidity Partial Invalidity Severability Grammatical, Functional, and Volitional Severability.In order for an invalid provision of a statute to be severable from the remaining valid provisions, the invalid provision must be grammatically, functionally, and volitionally severable. Where an invalid provision dictates procedure and the valid provisions dictate substance, the respective provisions are functionally separate. An invalid provision is volitionally severable if the balance of the statute would likely have been enacted had the legislature foreseen the invalidity of the provision. [11] Perjury False Statement Materiality Determination By Court Statutory Mandate Severability. That portion of RCW 9A.72.010(1) mandating that, in a prosecution for perjury, the materiality of the underlying false statement be determined by the court as a matter of law may be severed from the perjury statute, leaving the remainder of the perjury statute in force and effect. [12] Criminal Law New Principle of Law Retroactivity Cases Not Yet Final. In general, a new decision of criminal law applies retroactively only to cases pending on direct review or not yet final at the time the decision was announced. [13] Criminal Law New Principle of Law Retroactivity Cases Already Final Test. A new decision of criminal law will not be applied retroactively to cases on collateral review unless (1) the new decision places certain kinds of primary, private individual conduct beyond the power of the State to proscribe or (2) the new decision requires the observance of procedures implicit in the concept of ordered liberty, implicating the right to a fair trial. The second exception is reserved for watershed rules of criminal procedure, or those that alter the bedrock procedural elements essential to the fairness of a trial. [14] Personal Restraint Petition Timeliness Statutory Limits Exceptions Significant Change in Law Retroactivity "Sufficient Reason" Test. For purposes of RCW 10.73.100(6), which permits collateral relief from a criminal judgment and sentence more than one year after they become final if there is a significant change in the law that is material to the conviction and the legislature expressly provides that the change be applied retroactively or a court finds sufficient reason to require retroactive application, a court does not have "sufficient reason" to require retroactive application of a new decision of criminal law unless (1) the new decision places certain kinds of primary, private individual conduct beyond the power of the State to proscribe or (2) the new decision requires the observance of procedures implicit in the concept of ordered liberty, implicating the right to a fair trial. [15] Perjury False Statement Materiality Determination By Court Statutory Mandate Invalidity Retroactivity. The Supreme Court's decision to invalidate that portion of RCW 9A.72.010(1) mandating that, in a prosecution for perjury, the materiality of the underlying false statement be determined by the court as a matter of law applies retroactively only to cases pending on direct review or not yet final at the time the decision was announced and does not apply retroactively to cases on collateral review. MADSEN, CHAMBERS, C. JOHNSON, and SANDERS, JJ., concur by separate opinions; STEPHENS, J., did not participate in the disposition of this case. Nature of Action: Prosecution for three counts of first degree perjury. Superior Court: The Superior Court for Grant County, No. 06-1-00291-4, John Hotchkiss, J., on November 2, 2006, entered a judgment dismissing the charges with prejudice, ruling that the perjury statute is unconstitutional because it directs the court, as opposed to the jury, to determine the materiality of the false statement underlying the charge. Supreme Court: Holding that the provision of the perjury statute directing the trial court to determine the materiality of the false statement underlying a charge of perjury is unconstitutional, but that the invalid provision can be severed from the remainder of the perjury statute, and that the decision applies retroactively to cases on direct review or not yet final but not to cases on collateral review, the court remands the case for further proceedings. John D. Knodell-, Prosecuting Attorney, and Teresa J. Chen-, Deputy, for appellant. David B. Koch- (of Nielsen, Broman & Koch, PLLC), for respondent. En Banc Ά1 J.M. JOHNSON, J. The United States Supreme Court in both Gaudin Ά2 We hold that the clause instructing a trial judge to determine the materiality of a false statement as a matter of law is unconstitutional. We declare that the clause "whether a false statement is material shall be determined by the court as a matter of law" must be severed and stricken and uphold the remainder of the perjury statute. We remand for trial with the issue of materiality to be submitted to the jury. FACTS AND PROCEDURAL HISTORY Ά3 The State charged Dustin Gene Abrams with first degree robbery and first degree murder of Michael Mallon. Officers read Abrams his Miranda The detectives never gave me any Miranda rights, never readvised me of the rights. At no time during this part of the interview was it freely or done voluntarily. I would not have given the statement had [a corrections officer] not assaulted me and made me do it under duress. The written statement was not me. I didn't write it. I didn't sign it. Clerk's Papers (CP) at 6. Ά4 The trial court determined that Abrams made and signed the confession voluntarily. Although the judge found that Abrams was initially read his Miranda rights, the judge deemed these initial warnings insufficient because Abrams confessed when officers reinitiated contact after he had terminated the interview. The court thus suppressed Abrams's confession in the State's case-in-chief. Ά5 The State then filed three counts of first degree perjury against Abrams, alleging that he knowingly made materially false statements during the CrR 3.5 hearing. Abrams moved to dismiss, arguing that Washington's perjury statute is unconstitutional because RCW 9A.72.010(1), which defines "materially false statement," provides that materiality "shall be determined by the court as a matter of law." The trial court agreed, declared Washington's entire perjury statute unconstitutional, and dismissed the perjury charges against Abrams with prejudice. Ά6 This court granted direct review pursuant to RAP 4.2(a)(2). STANDARD OF REVIEW ANALYSIS A. RCW 9A.72.010(1) is unconstitutional insofar as it requires the judge to determine the materiality of false statement as a matter of law in a perjury prosecution Ά10 In United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995) and Johnson v. United States, 520 U.S. 461, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997), the United States Supreme Court held that the materiality of a false statement must be submitted to the jury rather than decided by the trial judge. In Gaudin, a case involving a defendant charged with making false statements on federal loan documents in violation of former 18 U.S.C. § 1001 (1948), Ά11 The State concedes that materiality is an element of perjury and must be submitted to the jury. Ά12 "When we interpret a criminal statute, we give it a literal and strict interpretation." State v. Delgado, 148 Wn.2d 723, 727, 63 P.3d 792 (2003). Here, the plain language of the perjury statute is expressly at odds with Gaudin and Johnson. The statute does not direct the judge to make an initial determination of materiality; rather, its direction for the judge to determine materiality "as a matter of law" seems conclusive. And indeed, this is how courts have interpreted this statutory language. See, e.g., In re Disciplinary Proceeding Against Dynan, 152 Wn.2d 601, 613, 98 P.3d 444 (2004); State v. Dial, 44 Wn. App. 11, 14, 720 P.2d 461 (1986). Ά13 Although, as the State suggests, it is consistent with Gaudin for the trial judge to make a preliminary determination of materiality and then submit the issue to the jury to find beyond a reasonable doubt, this procedure is inconsistent with the statutory directive for the trial judge to determine materiality as a matter of law. Ά14 Under Gaudin and Johnson, the provision of RCW 9A.72.010(1) requiring the court to determine the materiality of a false statement as a matter of law is unconstitutional. There is no set of circumstances under which a judge can constitutionally apply a statute that requires a judge alone to determine the materiality of a false statement as a matter of law. Such a procedure would violate the defendant's right to a jury trial on every element of the crime with which he is charged, a right that our constitution has specifically declared to be "inviolate." WASH. CONST. art. I, § 21. We find RCW 9A.72.010(1)'s directive that "whether a false statement is material shall be determined by the court as a matter of law" constitutionally infirm. B. The remainder of Washington's perjury statute can be upheld by severing and striking the offending language as directed in RCW 9A.04.010(4) Ά15 The State asks this court to sever and strike the clause "whether a false statement is material shall be determined by the court as a matter of law" from RCW 9A.72.010(1) and uphold the balance of the perjury statute. The basic test for severability of constitutional and unconstitutional provisions of legislation is set forth in Hall v. Niemer, 97 Wn.2d 574, 582, 649 P.2d 98 (1982) (quoting State ex rel. King County v. State Tax Comm'n, 174 Wash. 336, 339-40, 24 P.2d 1094 (1933)): whether the constitutional and unconstitutional provisions are so connected . . . that it could not be believed that the legislature would have passed one without the other; or where the part eliminated is so intimately connected with the balance of the act as to make it useless to accomplish the purposes of the legislature. Gerberding v. Munro, 134 Wn.2d 188, 197, 949 P.2d 1366 (1998) (alteration in original); see also State v. Anderson, 81 Wn.2d 234, 236, 501 P.2d 184 (1972). If any provision of this title, or its application to any person or circumstance is held invalid, the remainder of the title, or the application of the provision to other persons or circumstances is not affected, and to this end the provisions of this title are declared to be severable. RCW 9A.04.010(4). The general purposes of the provisions governing the definition of offenses are: (a) To forbid and prevent conduct that inflicts or threatens substantial harm to individual or public interests; (b) To safeguard conduct that is without culpability from condemnation as criminal; (c) To give fair warning of the nature of the conduct declared to constitute an offense; (d) To differentiate on reasonable grounds between serious and minor offenses, and to prescribe proportionate penalties for each. Ά19 The perjury statute punishes statements that undoubtedly "inflict[ ] or threaten[ ] substantial harm to individual or public interests." RCW 9A.04.020(1)(a). The integrity of our judicial system depends largely on the truthfulness of statements made under oath, and strict perjury laws are necessary to deter and punish false declarations in court proceedings. That a jury rather than a judge determines materiality does not affect the primary purpose of the perjury statute. It is also unreasonable to believe the legislature would have decided against punishing perjurious statements if it knew materiality could not be determined by the trial judge. Ά20 With respect to the second part of the severability test, the clause "whether a false statement is material shall be determined by the court as a matter of law" is not so intimately intertwined with the statute as to make the remainder of the act unable to accomplish its legislative purposes. Striking the offending portion in RCW 9A.72.010(1) will not affect the State's ability to punish perjury and thus "forbid and prevent conduct that inflicts or threatens substantial harm to individual or public interests." RCW 9A.04.020(1)(a). If the offending provision is severed, materiality will be determined by the jury along with the other elements necessary to convict of a perjury offense. Ά21 To be severable, "[t]he invalid provision must be grammatically, functionally, and volitionally severable." McGowan v. State, 148 Wn.2d 278, 295, 60 P.3d 67 (2002) (footnote omitted). The clause "whether a false statement is material shall be determined by the court as a matter of law" is grammatically severableit is separate and distinct and can be easily removed without affecting the other statutory provisions. That only part of RCW 9A.72.010(1) is invalid is not a bar to severing it from the remainder of RCW 9A.72.010(1) and from the rest of the statute. Id. Ά22 The offending language is also functionally separate from the rest of RCW 9A.72.010(1) because the clause "whether a false statement is material shall be determined by the court as a matter of law" dictates procedure, while the preceding clause defining "material false statement" dictates substance. When this court has found procedural provisions to be unconstitutional in part, we have upheld the substantive remainder of those statutes. See, e.g., Household Fin. Corp. v. State, 40 Wn.2d 451, 244 P.2d 260 (1952) (holding that the invalidity of a provision for a de novo trial in superior court in the appeal section of an act did not affect the validity of the remainder of the appeal section); State ex rel. French v. Clausen, 107 Wash. 667, 182 P. 610 (1919) (declaring a statutory provision for appointment of legislators to a commission unconstitutional, but upholding the remainder of the statute so that private citizens could be appointed); Shook v. Sexton, 37 Wash. 509, 79 P. 1093 (1905) (upholding the remainder of a statute prohibiting animals running at large after finding portion pertaining to fines invalid). Ά23 The constitutionally infirm clause is also volitionally severable. A clause is volitionally severable if the balance of the legislation would have likely been adopted had the legislature foreseen the invalidity of the clause at issue. Calfarm Ins. Co. v. Deukmejian, 48 Cal. 3d 805, 771 P.2d 1247, 258 Cal. Rptr. 161 (1988). The language "whether a false statement is material shall be determined by the court as a matter of law" is volitionally severable from the rest of the perjury statute because, as stated before, the remainder of the perjury statute still accomplishes Title Ά24 The trial court relied on State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005), and struck down the entire perjury statute as unconstitutional, asserting that the judiciary cannot set up a procedure transferring authority to the jury absent a legislative amendment. This case is distinguishable from Hughes. In Hughes, 154 Wn.2d at 150, the court was not being asked to sever a provision, but rather to create a procedure completely absent from the Sentencing Reform Act of 1981, chapter 9.94A RCW, whereby a jury could be empaneled on remand to find aggravating factors warranting an enhanced sentence. Here, however, no new procedure need be created. Elements are already determined by juries. It is undisputed that materiality is an element of perjury. A jury may determine materiality just as it does every other element in RCW 9A.72.020. In fact, Washington's pattern jury instructions already include materiality as an element of perjury. See 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 118.02 (2d ed. 1994) (WPIC). Although the current pattern jury instruction defining "material statement" provides for determination of materiality by a trial judge, see WPIC 118.17, trial courts can easily use a different instruction defining materiality for the jury. Ά25 In the instant case, severing offending language from the perjury statute so that juries may decide materiality is not a usurpation of legislative authority. The statute at issue contains a severance clause, and the constitutionally infirm language is easily severable from the remaining provisions. No new procedure needs to be created, and the balance of the statute can clearly carry out the legislative intent to punish perjury. Ά26 Additionally, severing the language "whether a false statement is material shall be determined by the court as a matter of law" does not prevent a trial judge from dismissing perjury charges based on statements that are clearly not material. The trial judge still has the discretion to ensure that individuals are not harassed with frivolous perjury charges. Ά27 Moreover, the legislature has the authority to amend the remainder of the perjury statute to "incorporate other language or other definitions of materiality if it is to be presented to untrained fact-finders" as the trial court suggests or to expressly provide for the trial judge to make a preliminary determination of materiality. CP at 51. We, however, implement legislative intent, sever and strike the language "whether a false statement is material shall be determined by the court as a matter of law" from RCW 9A.72.010(1), and uphold the remainder of the perjury statute. C. This new rule does not apply retroactively on collateral attack Ά29 In Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987), the United States Supreme Court declared that a "new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases . . . pending on direct review . . . with no exception for cases in which the new rule constitutes a 'clear break' with the past." In Johnson, 520 U.S. at 467, the Court specifically held that Griffith required the retroactive application of Gaudin to cases pending on direct review. Ά30 In Teague v. Lane, 489 U.S. 288, 311, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), the Court identified only two exceptions to the general rule of nonretroactivity of new rules of criminal procedure for cases on collateral review: (1) if the new rule places " 'certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe' " id. (quoting Mackey v. United States, 401 U.S. 667, 692, 91 S. Ct. 1160, 28 L. Ed. 2d 404 (1971)) or (2) the new rule requires observance of " 'those procedures that . . . are implicit in the concept of ordered liberty.' " Id. (alteration in original) (internal quotation marks omitted) (quoting Mackey, 401 U.S. at 693). The first exception is inapplicable to the instant case. As for the second exception, the Teague Court declared that it is "to be reserved for watershed rules of criminal procedure." 489 U.S. at 311. In Bilzerian v. United States, 127 F.3d 237, 241 (2d Cir. 1997), the court observed: That a jury determination of guilt or innocence is an important element of a criminal trial does not necessarily mean that Gaudin is a "watershed rule" of criminal procedure. Watershed rules "alter our understanding of the bedrock procedural elements" essential to the fairness of a trial. Teague, 489 U.S. at 311. . . . The rule in Gaudin merely shifts the determination of materiality from the judge to the jury. This shifting does not "alter our understanding of the bedrock procedural elements essential" to the fairness of a trial. Teague, 489 U.S. at 311. (Citations omitted.) See State v. Purnell, 161 N.J. 44, 735 A.2d 513 (1999) (applying Teague and holding that the opinion of Anderson, in which the New Jersey Supreme Court held that a jury rather than a trial judge must decide the materiality element of the offense of perjury, did not apply retroactively on collateral attack). Ά31 Retroactive application on collateral attack is also not required under state law. RCW 10.73.100(6) permits collateral relief from judgment after the normal time bar has lapsed when there is a "significant" change in the law that is "material" to the conviction and the legislature "expressly provide[s]" that the change be applied retroactively or a court finds that "sufficient reasons" require retroactive application. We have interpreted this statutory language consistent with Teague. See Evans, 154 Wn.2d at 444 (citing generally In re Pers. Restraint of Markel, 154 Wn.2d 262, 268, 111 P.3d 249 (2005)). Here, we find no "sufficient reasons" to require retroactivity on collateral attack and hold that this new rule applies retroactively only to cases on direct review or not yet final. CONCLUSION Ά32 Under Gaudin and Johnson, the provision of Washington's perjury statute requiring a judge to determine the materiality of a false statement as a matter of law is unconstitutional. We therefore sever and strike this language from the perjury statute and uphold the remainder of the act. We remand for trial with the issue of materiality to be submitted to the jury. ALEXANDER, C.J.; OWENS and FAIRHURST, JJ.; and BRIDGE, J. PRO TEM., concur. Ά33 MADSEN J. (concurring) The majority concludes that RCW 9A.72.010(1) is unconstitutional insofar as it provides that materiality of a false statement giving rise to a conviction for perjury is a question of law for the courts. But although the majority states the basic rule that a statute should be construed to be constitutional where possible, it fails to follow this principle. The majority also fails to give effect to the legislature's intent that a court assess materiality. As a result, the majority gives less protection to the exercise of First Amendment rights because it excises from the statute the requirement that a judge be convinced that the statement forming the basis for a criminal charge is a "material" misstatement before a person is put through the ordeal of a criminal trial. Ά34 Contrary to the majority's belief, RCW 9A.72.010(1) can be construed as constitutional while giving effect to legislative intent that materiality be determined by the court. Ά35 RCW 9A.72.020(1) states that an individual is guilty of first degree perjury if he or she "makes a materially false statement which he [or she] knows to be false under an oath required or authorized by law." RCW 9A.72.010(1) defines "[m]aterially false statement" as "any false statement oral or written, regardless of its admissibility under the rules of evidence, which could have affected the course or outcome of the proceeding." Of concern here, RCW 9A.72.010(1) additionally provides that "whether a false statement is material shall be determined by the court as a matter of law." There is no dispute in this case that materiality is an element of the crime of perjury and that the State must prove materiality beyond a reasonable doubt. Ά36 Whenever possible, a statute must be construed as constitutional. State v. Chester, 133 Wn.2d 15, 21, 940 P.2d 1374 (1997) (citing New York v. Ferber, 458 U.S. 747, 769 n.24, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982)). In addition, when interpreting a statute, a court should always attempt to ascertain and give effect to the legislature's intent. State v. Williams, Ά37 If materiality is an element of the offense of perjury, then, as the United States Supreme Court held in United States v. Gaudin, 515 U.S. 506, 522-23, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995), the jury must pass on the materiality of the false statements alleged to constitute perjury. But this does not mean that a court cannot assess materiality for another purpose. In the course of its analysis in Gaudin, 515 U.S. at 521, the Court observed that "[i]t is commonplace for the same mixed question of law and fact to be assigned to the court for one purpose, and to the jury for another." The Court gave as an example the question of probable cause to conduct a search, which is a question for the court when it arises in the context of a motion to suppress evidence obtained during the search, but a question for the jury when it is an element of the crime of depriving an individual of constitutional rights under color of law. Id. Ά38 Similarly, materiality is a mixed question of law and fact that can go to the court for one purpose and to the jury for another. The language stating that materiality is a question of law for the courts is immediately preceded by the definition of "materiality" and the express direction that materiality does not depend upon admissibility of the statement under the rules of evidence. RCW 9A.72.010(1) thus pertains to the kind of evidence that will, or will not, establish materiality. It is, therefore, reasonable to construe the statute to mean that the court can determine "materiality" as part of a preliminary inquiry by the court, assuring that a defendant will not stand trial for the crime of perjury when evidence of materiality is lacking, i.e., the false statement is immaterial as a matter of law. Construed in this way, the statutory language directing a judicial determination of materiality provides for an assessment akin to a Knapstad Ά39 This gatekeeping role of the court may be of significant value, as the Florida Supreme Court has observed: "[T]here is a mind-set in the average juror to condemn any false statement made under oath and, in the hands of a persuasive prosecutor, lies told under oath by an accused about any matter may lead to the conviction of the liar of perjury. In such instances, it is only the court that stands as a barrier between an immaterial lie and a jail cell." State v. Ellis, 723 So. 2d 187, 190 (Fla. 1998) (alteration in original) (quoting State v. Ellis, 722 So. 2d 824, 830 (Fla. Dist. Ct. App. 1997) (Miner, J., dissenting)). Ά40 As the United States Supreme Court has stated, while a trial judge cannot attempt "to override or interfere with the jurors' independent judgment in a manner contrary to the interests of the accused" by entering a judgment of conviction or directing a verdict in favor of the prosecution, "[s]uch a limitation . . . has never inhibited [the trial court's] ruling in favor of a criminal defendant." United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 97 S. Ct. 1349, 51 L. Ed. 2d 642 (1977). Thus, if evidence of materiality is utterly lacking, or the evidence shows that the alleged false statement is immaterial, then dismissal of the charges can, and should, follow. Ά41 Construing the statute in this fashion preserves its constitutionality gives, to the greatest extent possible, effect to the legislature's intent that a court pass on the question of materiality; and is true to Gaudin's recognition that the same mixed question of law and fact may be considered by the court and the jury, albeit for different purposes. Significantly, there is nothing in RCW 9A.72.010(1) that says that the question of materiality can never be submitted to the jury, i.e., the statute does not say that only the court may consider materiality. Nor does the statute say that materiality as an element of the crime is to be decided by the court as a matter of law. Ά42 Finally, construing the statute in this way does not run afoul of this court's decision in State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005), overruled on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006), as the trial court believed. Hughes held that where the legislature did not provide a procedure for juries to find aggravating factors in sentencing proceedings but instead explicitly provided for judges to find aggravating factors, this court would not imply such a procedure. Id. at 149-50. But in the present case, there is no need to create or imply any procedure. The statute provides that a trial court will assess materiality as a matter of law. Holding that the trial judge must do so as a preliminary matter is consistent with the statute's languageit does not provide for a new procedure contrary to the statute's language. And holding that the jury must determine whether the State has proved the element of materiality beyond a reasonable doubt is not establishing any new procedure for juries. Ά43 The court should construe the statute to mean that materiality is a preliminary question for the trial court. If the trial court finds there is evidence of materiality, then the evidence is admissible and the issue must be submitted to the jury to determine whether the State has proved materiality beyond a reasonable doubt. If there is no evidence of materiality, i.e., there is only evidence showing that the false statement that is allegedly perjurious is immaterial, then the court must dismiss the perjury charge. See Vandivier v. State, 822 N.E.2d 1047, 1052 (Ind. Ct. App. 2005). Ά44 I would hold that RCW 9A.72.010(1) is constitutional. I agree with the majority that remand is necessary, but would direct the trial court to make a preliminary determination about the materiality of the allegedly false statement and submit the issue to the jury if there is evidence of materiality. C. JOHNSON and SANDERS, JJ., concur with MADSEN, J. Ά45 CHAMBERS, J. (concurring) I concur with the majority in result. Materiality is an element of the crime which must, like all elements of crimes, be decided by a jury as a matter of fact, not by a judge as a matter of law. Ά46 However, I also agree with Justice Madsen that there is a role for the trial judge to play here too. Cf. State v. Miller, 156 Wn.2d 23, 31, 123 P.3d 827 (2005) (prosecution for violating a no-contact order). In Miller we held that the judge must be satisfied with the validity of a no-contact order before admitting it into evidence. The jury still had the task of deciding whether the order existed and whether it had been violated. Similar principles apply here. I join Justice Madsen insofar as she would hold that trial judges must be satisfied that the State's evidence, if proved, establishes the materiality of the alleged perjurious statement before allowing such prosecutions to go to trial.