Glen A. McDEVITT, an unmarried man, Respondent, v. HARBORVIEW MEDICAL CENTER, a King County Public Hospital, and John Doe and Jane Doe; University of Washington dba UW Medicine/Physicians, and The State of Washington, a governmental entity, Petitioners.
-- December 27, 2012
Michael F. Madden, Amy Magnano, Bennett Bigelow & Leedom PS, Seattle, WA, for Petitioners.Thomas Francis McDonough, Attorney at Law, Edmonds, WA, Mika N. Blain, Attorney at Law, Klamath Falls, OR, for Respondent.
¶ 1 In Waples v. Yi, 169 Wash.2d 152, 161, 234 P.3d 187 (2010), this court held that separation of powers principles invalidated the 90 day presuit notice requirement against medical malpractice defendants, as adopted by the legislature in RCW 7.70.100(1). The King County Superior Court then relied on Waples in invalidating RCW 7.70.100(1) as applied to lawsuits against the State, including governmental agencies such as Harborview Medical Center. We reverse the King County Superior Court's denial of Harborview's motion for summary judgment on the grounds that the legislature may establish conditions precedent, including presuit notice requirements, to inform the State of future cost and delay associated with court resolution of an issue.1 While recognizing the statutory waiver of sovereign immunity,2 we have often upheld similar procedural requirements for suit against the State (e.g., those codified in former RCW 4.92.110 (1977) and former RCW 4.96.020(4) (1993)). Thus, we hold that the presuit notice requirement of RCW 7.70.100(1) as applied to the State is a constitutionally valid statutory precondition for suit against the State because it was adopted by the legislature as provided in article II, section 26 of the Washington Constitution.3
Facts and Procedural History
¶ 2 On July 9, 2007, Glen A. McDevitt was paragliding and crashed into tree branches that threw him onto a roof, chimney, and then the ground. He sustained a fracture to his left femur and underwent surgery at Harborview Medical Center on July 10, 2007. After surgery and upon discharge, McDevitt alleged in his first amended complaint that he “was taken off” anticoagulant medication. Clerk's Papers at 9. Harborview denied this allegation in its answer. On July 20, 2007, McDevitt went to the Emergency Room at Northwest Hospital because of significant swelling in his left leg, where he was diagnosed with deep venous thrombosis.
¶ 3 McDevitt filed his lawsuit against Harborview on July 20, 2010. Harborview moved for summary judgment based on the undisputed fact that McDevitt failed to comply with the 90 day presuit notice requirement of RCW 7.70.100(1). Harborview requested that McDevitt's lawsuit be dismissed with prejudice. In response, McDevitt argued that our decision in Waples invalidated the presuit notice requirement against both private and public defendants. Harborview then argued that we did not have occasion to consider the constitutional validity of the presuit notice requirement as applied to lawsuits against the State. King County Superior Court denied Harborview's motion for summary judgment. Harborview petitioned this court for discretionary review, which was granted. McDevitt v. Harborview Med. Ctr., 171 Wash.2d 1012, 249 P.3d 1029 (2011).
¶ 4 The appropriate standard of review for an order granting or denying summary judgment is de novo, and the appellate court performs the same inquiry as the trial court. Sheikh v. Choe, 156 Wash.2d 441, 447, 128 P.3d 574 (2006). Additionally, constitutional questions are issues of law and are also reviewed de novo. City of Redmond v. Moore, 151 Wash.2d 664, 668, 91 P.3d 875 (2004).
A. Presuit Notification Requirement
¶ 5 Article II, section 26 of the Washington Constitution provides, “The legislature shall direct by law, in what manner, and in what courts, suits may be brought against the state.” This court has historically recognized that the legislature has the constitutionally sanctioned power to alter the common law doctrine of sovereign immunity. See Billings v. State, 27 Wash. 288, 291, 67 P. 583 (1902) (recognizing that “only by virtue of [a] statute [passed under article II, section 26] that an action can be maintained against the state”); Coulter v. State, 93 Wash.2d 205, 207, 608 P.2d 261 (1980) (stating that “the abolition of sovereign immunity is a matter within the legislature's determination”). The legislature first exercised this constitutional authority to abolish state sovereign immunity in 1961 and subsequently amended its waiver in 1963. Former RCW 4.92.090 (1961). The current version of the statute reads as follows, “The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation.” RCW 4.92.090. Subsequent court decisions read the waiver as also abolishing any derivative immunity previously available to local governmental entities. Kelso v. City of Tacoma, 63 Wash.2d 913, 916–19, 390 P.2d 2 (1964); Evangelical United Brethren Church v. State, 67 Wash.2d 246, 252, 407 P.2d 440 (1965). The legislature later codified these rulings abolishing the immunity of local government entities in 1967. Former RCW 4.96.010 (1967).
¶ 6 In Hunter v. North Mason High School, 85 Wash.2d 810, 818–19, 539 P.2d 845 (1975), we invalidated former RCW 4.96.020 (1967) as a violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution. Former RCW 4.96.020, which was passed under article II, section 26, required that notice of tort claims against the State be made within 120 days from the date the claims arose. See Hunter, 85 Wash.2d at 813, 818–19, 539 P.2d 845. Through this statute, the legislature essentially created a truncated statute of limitations of 120 days for tort claims against government entities. See id. at 813, 539 P.2d 845. Other potential plaintiffs, however, needed only to act against private defendants within the statute of limitations period of three years. Id. The court reasoned that this arrangement “produce[d] two classes of tort victims and place[d] a substantial burden on the right to bring an action of one of them.” Id. Thus, we ruled that former RCW 4 .96.020 was unconstitutional on its face. See id. at 818–19, 539 P.2d 845.
¶ 7 As part of our reasoning in Hunter, we also noted that “[t]he unequivocal waiver of sovereign immunity in the 1963 act thus clearly indicates that ‘the [State's] waiver of tort immunity is unbridled by procedural conditions pertaining to the consent to be sued.’ “ Id. at 818, 539 P.2d 845 (dictum) (alteration in original) (quoting Cook v. State, 83 Wash.2d 599, 613, 521 P.2d 725 (1974) (Utter, J., concurring)). This reasoning was not only unnecessary to the primary equal protection holding of the case, but subsequent decisions from this court have also allowed the legislature to establish certain conditions precedent before suit can be brought against the State. See Coulter, 93 Wash.2d at 207, 608 P.2d 261 (upholding the presuit requirements of former RCW 4.92.110 for tort damages against the State under an article II, section 26 rationale); Medina v. Pub. Util. Dist. No. 1 of Benton County, 147 Wash.2d 303, 312, 53 P.3d 998 (2002) (upholding the presuit notice requirement of former RCW 4.96.020(4) for tort damages against local government entities under an article II, section 26 rationale); see also Debra L. Stephens & Bryan P. Harnetiaux, The Value of Government Tort Liability: Washington State's Journey from Immunity to Accountability, 30 Seattle U.L.Rev. 35, 42 (2006) (“The Washington legislature's waiver of sovereign immunity is ․ not without limitations. Rather, the waiver contains some procedural limitations, including provisions in the 1963 act requiring notice of claims, restricting execution on judgments, and providing for a specific fund from which payment of claims and judgments must be made.”). Accordingly, the application of the 90 day presuit notice requirement of RCW 7.70.100(1), the statute at issue, against the State should be treated no differently.
¶ 8 In Coulter, which was decided in 1980, we distinguished Hunter and specifically noted that our decision in that case was based on an equal protection rationale, rather than on an unequivocal waiver of sovereign immunity. Coulter, 93 Wash.2d at 207, 608 P.2d 261. Additionally, we cited “the proposition that the abolition of sovereign immunity is a matter within the legislature's determination.” Id. (citing Haddenham v. State, 87 Wash.2d 145, 149, 550 P.2d 9 (1976)). There, former RCW 4.92.110 required that the plaintiff file a claim with the chief fiscal officer of the executive branch, and we reasoned that it is “clear that [the legislature] is providing ‘in what manner’ suit shall be brought against the State.” Id. (quoting article II, section 26). Ultimately, we decided that the presuit notification requirement of former RCW 4.92.110 was within the authority of the legislature to enact under article II, section 26.4 Id. The same principle with respect to local government entities was also at issue in Medina v. Public Utility District No. 1. There, former RCW 4.96.020(4) required a 60 day presuit notice to local government entities in all tort actions. Medina, 147 Wash.2d at 308, 53 P.3d 993. We upheld this presuit notice requirement as being within the constitutional power of the legislature under article II, section 26 .5 Id. at 314–15, 53 P.3d 993.
¶ 9 Like Coulter and Medina, where presuit notice requirements were upheld under article II, section 26, the 90 day presuit notice requirement of RCW 7.70.100(1) as applied to state defendants should also be upheld under article II, section 26. In 2009, the legislature chose to exempt “claims involving injuries from health care” from the requirements of former RCW 4.92.110 (2006) and former RCW 4.96.020(4) (2006) after it passed RCW 7.70.100(1). The purpose of these exemptions was to avoid inconsistent presuit notice requirements in medical malpractice cases.6
¶ 10 There is only a 30 day difference between the presuit notice requirement of former RCW 4.92.110 (2009) and former RCW 4.96 .010(4) (2009) and RCW 7.70.100(1) as applied to state defendants. This difference is de minimis and does not run afoul of the legislature's ability under article II, section 26 to establish conditions precedent before suit can be brought against the State. This is because a 90 day presuit notice requirement is reasonable and does not constitute a substantial burden on the ability of governmental tort victims to obtain relief. Hall v. Niemer, 97 Wash.2d 574, 581, 649 P.2d 98 (1982) (noting in light of Hunter and Coulter that “reasonable procedural burdens may be placed on governmental tort victims as long as such burdens are not substantial and do not constitute a real impediment to relief for governmental tort victims”); Daggs v. City of Seattle, 110 Wash.2d 49, 53, 750 P.2d 626 (1988) (clarifying that “[s]o long as the procedural burdens of filing claims with the government are reasonable, the claim laws are valid”).
¶ 11 Additionally, the 30 day difference does not rise to the level of an equal protection violation because it does not have the effect of truncating the statute of limitations period to the same extent as the statute at issue in Hunter. Hunter, 85 Wash.2d at 813, 539 P.2d 845; see also Coulter, 93 Wash.2d at 207, 608 P.2d 261 (explaining that if “[t]he plaintiff has a filing time requirement equal to the statutory limitations for bringing an action,” a presuit notice requirement “does not involve nor deny equal protection”); Daggs, 110 Wash.2d at 53, 750 P.2d 626 (clarifying that “[e]qual protection requires that a party have the same amount of time to bring a tort action against the government as he or she would have to bring the action against a private tortfeasor”). For these reasons, the 90 day presuit notice requirement of RCW 7.70.100(1) as applied to state defendants is more closely comparable to the presuit requirements at issue in Coulter and Medina than it is to the presuit notice requirement at issue in Hunter. As a result, invalidation of the 90 day presuit notification requirement of RCW 7 .70.100(1) as applied to lawsuits against the State would also require invalidation of former RCW 4.92.110 (2009) and former RCW 4.96.020(4) (2009).7 Thus, we find the 90 day presuit notice requirement of RCW 7.70.100(1) constitutional as applied to lawsuits against the State.
B. Equal Protection Analysis
¶ 12 The equal protection clause of the Fourteenth Amendment to the United States Constitution provides, “[N]or shall any state ․ deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Article I, section 12 of the Washington Constitution also provides, “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.” Statutory classifications that substantially burden indemnification for personal injuries as to some groups but not others are permissible under the equal protection clause to the Fourteenth Amendment only if they are “ ‘reasonable, not arbitrary, and ․ rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ “ Hunter, 85 Wash.2d at 814, 539 P.2d 845 (alteration in original) (internal quotation marks omitted) (quoting F.S. Royster Guano Co. v. Commw. of Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920)). A rational basis form of scrutiny is used to analyze statutory classifications under both the Fourteenth Amendment to the United States Constitution and article I, section 12 of the Washington Constitution, as long as the statute does not infringe on a fundamental right or create a suspect classification. See State v. Coria, 120 Wash.2d 156, 169, 839 P.2d 890 (1992). Under rational basis review, the statute will be upheld as long as there is any conceivable set of facts that could provide a rational basis for classification. Medina, 147 Wash.2d at 313, 53 P.3d 993.
¶ 13 McDevitt mistakenly relies on Hunter in arguing that presuit notification requirements violate equal protection. We have consistently upheld presuit notification requirements to state defendants where plaintiffs have challenged that such laws impermissibly discriminate between governmental and nongovernmental defendants.8 This classification of plaintiffs suing state defendants does not infringe on a fundamental right or create a suspect classification. It is also rationally related to a legitimate government interest because of “the multitude of departments, agencies, officers and employees and their diverse and widespread activities, touching virtually every aspect of life within the state.” Cook, 83 Wash.2d at 603, 521 P.2d 725. The complexity of state operations and the difficulty associated with budgeting and allocating funds for this multitude of departments and agencies provides a legitimate government interest in enacting the presuit notification requirement of RCW 7.70.100(1). Often, the State receives a quantification of claims against each government agency and allocates funds for recovery of these claims based on the likelihood of recovery in each action. The 90 day presuit notification requirement of RCW 7.70.100(1) is also rationally related to this legitimate government interest because an advance notice of claims allows the State to make an accurate and timely allocation based on pending claims and use unspent funds for budgeting in other areas of state operations.
¶ 14 Additionally, subsequent cases have indicated that Hunter's reach is limited to legislation that essentially shortens the statute of limitations for suits against state defendants. Coulter, 93 Wash.2d at 207, 608 P.2d 261 (explaining that if “[t]he plaintiff has a filing time requirement equal to the statutory limitations for bringing an action,” a presuit notice requirement “does not involve nor deny equal protection”); Daggs, 110 Wash.2d at 53, 750 P.2d 626 (clarifying that “[e]qual protection requires that a party have the same amount of time to bring a tort action against the government as he or she would have to bring the action against a private tortfeasor”). Lastly, we have already held in Daggs that “[c]laim filing laws serve the important function of fostering inexpensive settlement of tort claims.” Id . at 53, 750 P.2d 626. The fact that RCW 7.70.100(1) does not actually require parties to engage in settlement negotiations does not negate the statute's impact in advancing the object of the legislation. Thus, we should find that the 90 day presuit notice requirement of RCW 7.70.100(1) is consistent with the guarantees of equal protection in the Fourteenth Amendment to the United States Constitution and article I, section 12 of the Washington Constitution.
C. Waples v. Yi
¶ 15 Prior to our decision in Waples, we invalidated a certificate of merit statute as a violation of patients' rights to access the court system against a private hospital in Putman v. Wenatchee Valley Medical Center, 166 Wash.2d 974, 985, 216 P.3d 374 (2009). There, we recognized that “[t]he Washington State Constitution does not contain a formal separation of powers clause, but ‘the very division of our government into different branches has been presumed throughout our state's history to give rise to a vital separation of powers doctrine.’ “ Id. at 980, 216 P.3d 374 (internal quotation marks omitted) (quoting Brown v. Owen, 165 Wash.2d 706, 718, 206 P.3d 310 (2009)). The controlling issue in Putnam was whether the separation of powers doctrine allowed the legislature to enact a certificate of merit statute, RCW 7.70.150, which conflicted with procedural court rules found in CR 8 and CR 11. Id. at 980–81, 216 P.3d 374.
¶ 16 RCW 7.70.150 required plaintiffs to submit a certificate of merit by a health care expert, which verified that “there [was] a reasonable probability that the defendant's conduct did not follow the accepted standard of care,” before filing a medical malpractice action. Putman, 166 Wash.2d at 983, 216 P.3d 374. CR 8 details our system of notice pleading, and CR 11 states that attorneys do not have to verify pleadings in medical malpractice actions. The majority reasoned that RCW 7.70.150 conflicts with CR 8 because our pleading system only requires “ ‘a short and plain statement of the claim’ and a demand for relief.” Id. (quoting CR 8). According to the majority, the statute also conflicts with CR 11 because it “requires the attorney to submit additional verification of the pleadings.” Id. Thus, we invalidated RCW 7 .70.150 as being in conflict with court rules (i.e., procedural law). Id. at 984–85, 216 P.3d 374.
¶ 17 Waples gave us occasion to consider a similar statute, RCW 7.70.100(1), which provided a 90 day presuit notice requirement for all medical malpractice cases. Id. 169 Wash.2d at 160, 234 P.3d 187. We held that RCW 7.70.100(1) irreconcilably conflicts with the commencement requirements of CR 3(a), the conflict was a matter of procedural and not substantive law, and the notice requirement violated separation of powers. Id. at 161, 234 P.3d 187. “If a statute and a court rule cannot be harmonized, the court rule will generally prevail in procedural matters and the statute in substantive matters .” Id. CR 3(a) provides the requirements for the commencement of an action, which involves service of a copy of a summons and the complaint or filing of the complaint. Id. at 160, 234 P.3d 187. The majority reasoned that “[r]equiring notice adds an additional step for commencing a suit to those required by CR 3(a).” Id. Accordingly, RCW 7.70.100(1) could not be harmonized with CR 3(a), and the notice requirement was invalidated. Id. at 161, 234 P.3d 187.
¶ 18 Although we found the notice requirement of RCW 7.70.100(1) unconstitutional, we did not have occasion to consider the constitutionality of the statute, in light of article II, section 26, as applied in cases against state defendants. Additionally, the legislature passed a severability provision, codified under RCW 43.72.911, as part of the Washington Health Services Act of 1993 that reads as follows, “If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.” “An as-applied challenge to the constitutional validity of a statute is characterized by a party's allegation that application of the statute in the specific context of the party's actions or intended actions is unconstitutional.” Moore, 151 Wash.2d at 668–69, 91 P.3d 875. “Holding a statute unconstitutional as-applied prohibits future application of the statute in a similar context, but the statute is not totally invalidated.” Id. at 669, 91 P.3d 875. “In contrast, a ․ facial challenge is one where no set of circumstances exists in which the statute, as currently written, can be constitutionally applied.”9 Id.
¶ 19 Our decision in Waples was a dispute between private parties and did not involve a state defendant. Whereas the defendants in Waples were private individuals and private corporations, Waples, 169 Wash.2d at 156–57, 234 P.3d 187, we have previously determined that Harborview Medical Center is the equivalent of a state agency and arm of the state, Hontz v. State, 105 Wash.2d 302, 310, 714 P.2d 1176 (1986). As a result, there were no facts in Waples to address the issue of whether article II, section 26, and the legislature's waiver of sovereign immunity, permitted the legislature to establish conditions precedent before suit can be brought against the State. None of our relevant case law regarding article II, section 26 or the State's waiver of sovereign immunity was even addressed in the Waples opinion. Additionally, facial invalidation of the presuit notice requirement in RCW 7.70.100(1) would ignore the severability provision passed by the legislature as part of the Washington Health Services Act of 1993.1 This severability clause specifically treats “the application of [RCW 7.70.100(1) ] to other persons or circumstances” as valid if application to other persons or circumstances is invalidated. RCW 43.72.911. Thus, Waples was an as-applied invalidation of the 90 day presuit notice requirement of RCW 7.70. 100(1).
¶ 20 We reverse the King County Superior Court's denial of Harborview Medical Center's motion for summary judgment. We hold that the 90 day presuit notice requirement of RCW 7.70.100(1) as applied to the State is a constitutional application of law under article II, section 26 of the Washington Constitution. Additionally, we find that the 90 day presuit notice requirement of RCW 7.70.100(1) is not a violation of equal protection. Lastly, we hold that our decision in Waples was an as-applied invalidation of RCW 7.70.100(1).
¶ 21 I dissent. The majority is wrong in its statutory analysis, ignores the clear direction of the legislature to avoid inconsistent presuit notice requirements, fails to treat similar government and private entities the same, and reaches an absurd result. It confuses what the legislature could constitutionally do with what the legislature did do in this legislation. The majority acknowledges that the “[t]he purpose of these exemptions was to avoid inconsistent presuit notice requirements in medical malpractice cases” (referring to former RCW 4.92.110 (2006) and former RCW 4.96.020 (2006)), a statement with which I agree. Majority at 9. But the majority's result is just the opposite. Under the majority's opinion, government health care providers are given the benefit of a presuit notice requirement that other health care providers are not, and government health care providers are given the benefit of a more generous presuit notice requirement than any other government entity. This is an absurd result.
¶ 22 At the time this case was filed, all other government entities were entitled to 60 days' notice of a claim before a suit could be filed. This presuit notice requirement gives public agencies the opportunity to promptly settle meritorious claims. This uniformity is important to maintain an even playing field with understandable rules. However, under the majority's strained logic, a portion of a statute we have previously held to be unconstitutional is resuscitated to create a very special and privileged group of government health care providers who enjoy 90 days of presuit notice. To explain why government health care providers, and only government health care providers, are entitled to 30 more days, the majority simply says, “This difference is de minimis.” Majority at 9–10. It was either the intent of the legislature to create an ultraspecial class or it was not; when discerning the intent of the legislature, the “de minimis” standard is not an analytical standard we use. If we are to have inconsistent presuit notice requirements among government agencies, the legislature, not this court, should create them.
¶ 23 The majority has confused what the legislature could do under article II, section 26 of our state constitution with what our legislature intended to do in its most recent attempt at medical malpractice reform. The majority offers no rational basis for giving government health care providers a very special 90 day preclaim filing requirement when all other state and local entities are entitled to only a 60 day preclaim filing period and private health care providers are entitled to none. Our legislature clearly does not think that is fair; it has since amended the law to give government hospitals the same claims period as other government agencies. Laws of 2012, ch. 250. The majority's result leaves us not with legislation that was painstakingly drafted after deep discussion with the stakeholders. At best, it results in law that is simply an accident. At worst, it results in law that is in clear derogation of the legislature's intent, either for consistent preclaim periods among government agencies or for malpractice reform that treats governmental and private health care providers the same.
¶ 24 I believe we should begin, as we did the first time this statute was before us, with the principle that the law applies equally to all. ‘ “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.” ‘ Putman v. Wenatchee Valley Med. Ctr., 166 Wash.2d 974, 979, 216 P.3d 374 (2009) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803)). This is not merely rhetorical. The very language of the repudiation of sovereign immunity reflects our legislature's embrace of that principle: “The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation.” RCW 4.92.090. The 2009 legislature went further with respect to health care providers. The general provision establishing preclaim note requirement, former RCW 4.92.100 (2009), was amended to exclude health care injuries, providing more equal treatment for plaintiffs and defendants alike. Former RCW 4.92.100(1) ( “Claims involving injuries from health care are governed solely by the procedures set forth in chapter 7.70 RCW and are exempt from this chapter.”). This change again expressed the legislature's intent at the time that public health care providers would be treated exactly like private health care providers. Thus, RCW 4.92.090 and RCW 7.70. 100 are in absolute harmony with the legislature's intent to treat government and private entities (in this case, health care providers) the same.
¶ 25 I recognize that this does not end our inquiry. As the majority properly recognizes, under our constitution, the legislature has the power to “direct by law, in what manner, and in what courts, suits may be brought against the state.” Wash. Const. art. II, § 26. I agree that the legislature may discriminate and provide special protections for state and local governments within constitutional limits.1
¶ 26 But having the power to grant preferential treatment to yourself is not the same as having exercised that power. If the legislature wanted to carve out an exception to its admonition that it was to be treated to the same extent as private persons and corporations, it can do so.2 If the legislature wanted to act under article II, § 26 to bestow upon public health care providers special treatment or a competitive advantage over private hospitals, the legislature should take that action, not this court. Given the competing interest between private and public health care providers, this should be debated in the legislature and not imposed by this court.3
¶ 27 Today, the court writes a statute that our legislature did not consider and could not have intended. Article II, section 26 does not vest this court with the authority to legislate. I respectfully dissent.
J.M. JOHNSON, J.
WE CONCUR: BARBARA A. MADSEN, Chief Justice, SUSAN OWENS, MARY E. FAIRHURST, and CHARLES K. WIGGINS, Justices.WE CONCUR: CHARLES W. JOHNSON, DEBRA L. STEPHENS, and STEVEN C. GONZÁLEZ, Justices.