KELLY v. CITY OF FRESNO

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Court of Appeal, Fifth District, California.

Michael KELLY, Petitioner, v. CITY OF FRESNO et al., Respondents.

Civ. F002574.

Decided: August 15, 1984

David E. Roberts, Fresno, for petitioner. James A. McKelvey, City Atty., Edwin A. Oeser, Asst. City Atty., Fresno, for respondents.

OPINION

A police officer is suspected of criminal activity.   When the criminal investigating officer seeks a statement, the police officer refuses on constitutional grounds.   However, two days later an internal affairs officer gains the sought after incriminating statement from the suspect on the threat that the officer must answer all questions or suffer an “insubordination” firing.

In this mandamus proceeding the trial court applied the established rule that police officers must cooperate with their superiors and answer truthfully all questions concerning their suspected criminal conduct, even if the result will be a termination of employment.   The only protection given an officer in such a compelled interrogation situation has been prohibition against the use of the fruits of the inquiry, including any admissions, in subsequent criminal proceedings.

We hold that this rule was changed in 1976 with the passage of the Public Safety Officers Procedural Bill of Rights Act.  (Gov.Code, § 3300 et seq.) 1  In section 3303, subdivision (g), the Legislature created a statutory right to advisement of constitutional rights when an internal affairs interrogation focuses on criminal activity.   However, the Legislature failed to spell out the remedy in case the right is violated.   We assume the Legislature meant the advice to be meaningful.   Should the right be violated, we conclude the Legislature intended the customary criminal law exclusion rules would be applied to exclude all uses of the fruits of the violation, whether in a criminal case or administrative proceeding to discipline or discharge the officer employee.

THE FACTS

Petitioner Kelly was an officer with the Fresno City Police Department.   In January of 1983 he became the focus of a criminal investigation.   The owner of Lambe Aircraft Sales had reported to the police the unauthorized entry of a hangar and an aircraft, consumption of alcohol in the aircraft, and the possible malicious destruction of the engines aboard the aircraft.   Petitioner, because of witness statements, became the primary suspect.

On January 26, 1983, the detective investigating the above incident informed petitioner of the criminal investigation.   He then informed petitioner of his Miranda rights.2  Petitioner declined to make any statement or to discuss the case.   On January 27, the investigator sought an arrest warrant for petitioner, completing a declaration to support his request.

On January 28, petitioner was advised to go to the police department's internal affairs (IA) office to be questioned about the Lambe incident.   Petitioner went with a fellow officer who was to act as his representative.   The interview was tape-recorded.   Petitioner was explicitly told in response to his questions about interrogation rights that he had no “civil rights” and that he was not going to be read or admonished of his “rights.”

Petitioner then responded to questions, his statements implicating him in both the trespass and petty theft of alcohol, though not in the destruction of the engines.   When the interrogation was completed petitioner was given an “Order of Termination” and advised of his right to request a hearing before the civil service board.

On March 3, 1983, petitioner sought a writ of mandate, requesting (1) civil suppression of the statement made on January 28, as it was obtained in violation of section 3303, subdivision (g);  (2) an injunction against further departmental violation of section 3303, subdivision (g);  and (3) immediate reinstatement of petitioner to his position.   The court denied petitioner reinstatement before exhaustion of administrative remedies.

In its original and supplemental “Decision and Statement of Decision,” the trial court found petitioner to be a public safety officer covered by section 3300 et seq., the Public Safety Officers Procedural Bill of Rights Act.   Further, the court found that at the time of the IA investigation respondents knew petitioner might be charged with a criminal offense arising from the subject matter of the investigation.   The trial court concluded, however, that reading sections 3303, subdivisions (e) and (g), and 3304 together, that the police department had no obligation to advise petitioner of his constitutional rights nor did petitioner have a privilege to refuse to answer questions without suffering punitive action.   The court found the statement obtained from petitioner to be usable civilly and/or administratively though unusable for criminal purposes.

THE RIGHT

 In 1976 the California State Legislature enacted Government Code, chapter 9.7, sections 3300–3311, known as the Public Safety Officers Procedural Bill of Rights Act (Act).   In this case we are asked to interpret section 3303, subdivision (g), of the Act.   Relevant to our interpretation are the following provisions of the Act.

Section 3303.

“When any public safety officer is under investigation and subjected to interrogation by his commanding officer, or any other member of the employing public safety department, which could lead to punitive action, such interrogation shall be conducted under the following conditions.   For the purpose of this chapter, punitive action is defined as any action which may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.

“․

“(e) The public safety officer under interrogation shall not be subjected to offensive language or threatened with punitive action, except that an officer refusing to respond to questions or submit to interrogations shall be informed that failure to answer questions directly related to the investigation or interrogation may result in punitive action․

“․

“(g) If prior to or during the interrogation of a public safety officer it is deemed that he may be charged with a criminal offense, he shall be immediately informed of his constitutional rights.”

Section 3304.

“(a) No public safety officer shall be subjected to punitive action, or denied promotion, or be threatened with any such treatment, because of the lawful exercise of the rights granted under this chapter, ․”

Petitioner contends that under the circumstances of this case section 3303, subdivision (g), provided him with the privilege to be informed of and exercise his constitutional right to remain silent and that the statement obtained in derogation of this right should have been civilly suppressed.   Respondents contend that under both federal and state law, an employee has no right to refuse to answer questions posed by his employer relative to his fitness for his employment, and that section 3303, subdivision (g), does not attempt to create an exception to this rule but merely codifies the rule that the employee's responses cannot be used in any subsequent criminal proceedings.

We agree with petitioner.   However, we purposely avoid the temptation to treat this as a constitutional interpretation case rather than a statutory interpretation case.   We need not frame the issue in emotionally evocative terms, i.e., “Do police have greater (more) Miranda rights than other citizens?”   Instead, we must decide whether a public safety officer has a constitutional right to remain silent, statutorily extended to administrative investigation/interrogation situations, when it is likely criminal charges will be filed.   Another provision of the act has been termed a “statutory privilege.”  (Estes v. City of Grover City (1978) 82 Cal.App.3d 509, 516, 147 Cal.Rptr. 131.)

At the time the Act was passed, federal law clearly provided that public employees could be compelled, on pain of losing their jobs, to answer questions concerning performance of their job duties as long as the answers were not used in any subsequent criminal proceedings.  (Lefkowitz v. Turley (1973) 414 U.S. 70, 77–79, 94 S.Ct. 316, 322–323 38 L.Ed.2d 274.)   The restriction against criminal use derives from the Fifth Amendment and is therefore applicable to the states.  (Ibid.)  California recognized this restriction.  (Hankla v. Governing Bd. (1975) 46 Cal.App.3d 644, 652–653, 120 Cal.Rptr. 827.)   There is no doubt that petitioner had no right to remain silent during his IA interrogation without suffering punitive action unless the Act so provided.

In interpreting the public safety officer's rights under section 3303, subdivision (g), of the Act, our primary goal is to discern the Legislature's intent in enacting the provision.  (Code Civ.Proc., § 1859.)   It is not our province “ ‘to determine the wisdom, desirability or propriety of statutes enacted by the Legislature.’  [Citations.]”  (Cadiz v. Agricultural Labor Relations Bd. (1979) 92 Cal.App.3d 365, 372, 155 Cal.Rptr. 213.)   A general rule of statutory construction requires a liberal construction in favor of those persons for whom a statute was designed to protect.  (Connolly Development, Inc. v. Superior Court (1976) 17 Cal.3d 803, 826–827, 132 Cal.Rptr. 477, 553 P.2d 637, app. dism. 429 U.S. 1056, 97 S.Ct. 778, 50 L.Ed.2d 773.)

We begin with the plain language of the statute.   Again, section 3303, subdivision (g), says:

“(g) If prior to or during the interrogation of a public safety officer it is deemed that he may be charged with a criminal offense, he shall be immediately informed of his constitutional rights.”

Here, “interrogation” refers to “interrogation by his commanding officer, or any other member of the employing public safety department.”   Although under certain factual situations, “deemed that he may be charged with a criminal offense” could be ambiguous, it is not so in our case.   The trial court found, and respondents do not dispute, that the interrogating officer knew petitioner would face criminal charges relating to the Lambe incident.   The last phrase, “constitutional rights,” though by itself ambiguous, in context is clear.   The Legislature intended to refer to those rights afforded criminal suspects in interrogation situations.   That is, the Legislature wanted public safety officers to be informed of their right to remain silent and to have counsel.3

The statute provides that the public safety officer must “be informed” of his constitutional rights.   It does not go on to say “and may exercise them without punitive action.”   However, reading section 3304, subdivision (a), in conjunction with section 3303, subdivision (g), a public safety officer is entitled to exercise the rights granted under the chapter without being subjected to punitive action.   To be informed of a right which may not be exercised without adverse consequences would be a hollow grant.

In two cases interpreting the Act the Supreme Court has spoken in terms of “affording,” “securing,” “allowing” and “protecting” officers in their employee rights.   It has also found that the Act may lawfully “impinge” on city implied powers in view of the statewide concern for police officer employment relationships.  (Baggett v. Gates (1982) 32 Cal.3d 128, 185 Cal.Rptr. 232, 649 P.2d 874;  White v. County of Sacramento (1982) 31 Cal.3d 676, 183 Cal.Rptr. 520, 646 P.2d 191.)   Contrary to the position respondents urge here, i.e., the particular provision is merely cosmetic and without significance, the Act has been characterized in most positive terms:  “The Bill of Rights Act sets forth a number of basic rights and protections which must be accorded individual public safety officers by the public agencies which employ them.”   (White, supra, at p. 679, 183 Cal.Rptr. 520, 646 P.2d 191.)

The Legislature was responding to a need for more certainty in police officer procedural rights.  “Erroneous action can only foster disharmony, adversely affect discipline and morale in the workplace, and, thus, ultimately impair employer-employee relations and the effectiveness of law enforcement services.”  (White, supra, at p. 683, 183 Cal.Rptr. 520, 646 P.2d 191.)

This case emphasizes the need for procedural certainty and recognition of the limitations imposed by the Legislature.   When the interview started there was a pause while petitioner was afforded an opportunity to review the “Policeman's Bill of Rights.”   Even so, he was not advised of his constitutional rights.   He protested that the interview might turn into a criminal investigation, perhaps having heard that a warrant for his arrest was in process.   The senior officer present, Poole, with the interrogating officer, Jerry Dye, interjected his idea of what would follow.   He concealed the fact that the officers already had in their possession an order of termination previously signed by the police chief, the city attorney, the director of personnel and the chief administrative officer.   This was his advice:

“POOLE:  ․ see if I can shed some light on this thing from, as I, from my position, uh, the questions that Jerry's going to ask you will, would relate to Department rules, regulations, and procedures, uh, associated with our Police Manuals.   The questions that a detective would ask you would be associated with a criminal matter such as the Penal Code, Vehicle Code, or something like that.   One is a criminal investigation.   One is uh, one is any, is a civil internal investigation that we have on any disciplinary matter.   And a, Jerry, correct me if I'm wrong, but Jerry's process will be, is to talk to you about in, anything that may be related to the manual that you may be in violation of or is thought that you might be in violation of.   Okay?  Having nothing to do with anything else other than that.   In other words, not criminal investigation.   You may, may have, uh, failed to turn the MCT off out at your car and burned one up.   Okay?  And that's an internal problem, and the manual might declare that you're supposed to turn that unit off before you leave the car.   Saving the battery etc., okay?   That's what Jerry's going to be coming from.   Is that correct?

“DYE:  That's correct.   Strictly from an administrative standpoint.   That's the only thing I'm concerned with.

“POOLE:  Now are these questions that, uh, again, they have to be answered because they are internal, uh, and we have a responsibility to ․[.]”

After this advice the first question asked was:  “Okay, let's just get right down to it Mike.   Uh, did you enter Lambe's hangar?”   The rest is obvious.   Under threat of loss of employment if he did not cooperate, petitioner tried to justify his presence in the hangar.   While not on duty, and there on his own business under a rental agreement, he saw a plane which attracted him and which was not locked.   He opened the door, looked in, saw some vodka and took two drinks.   A police officer drove by and engaged him in a conversation which included admissions of gaining access to the airplane and having a drink.   Apparently the engines were damaged by someone turning the switches on;  he denied touching any of the controls.   The administrative interview over—and all admissions forthcoming having been secured—petitioner was handed the order of termination.

Respondents, contesting our interpretation of subdivision (g), point to section 3303, subdivision (e), and note the inconsistency between that section and an inference of a right to remain silent.   Section 3303, subdivision (e), provides that a public safety officer may suffer punitive action if he refuses to respond to questions or to submit to interrogation.   These two sections may be harmonized—not by nullifying any grant of silence in section 3303, subdivision (g)—but by deeming section 3303, subdivision (e), to deal with the general case while section 3303, subdivision (g), deals with the specific or particular case of a public safety officer under the threat of criminal prosecution.  (Code Civ.Proc., § 1859.)   Also,

“․ where specific provisions of different sections of a chapter or article which were intended to take effect at the same time are found to be partially or totally conflicting, the provisions of the section last in numerical order must prevail, unless such construction is inconsistent with the intent of that chapter or article.  [Citations.]”  (Kalina v. San Mateo Community College Dist. (1982) 132 Cal.App.3d 48, 54, 183 Cal.Rptr. 12.)

Under the foregoing rule, subdivision (g) would prevail over subdivision (e).   We need only refer back to the senior officer's advice to petitioner to find a description of conduct which, because non-criminal, would be subject to subdivision (e) and its mandate that the officer respond to questioning.   However, because petitioner was soon to be arrested, and his employment terminated because of criminal conduct, subdivision (g) came into play and required a new, statutorily limited confrontation to take place.

The legislative history reinforces our interpretation granting public safety officers a right to silence in an administrative context under certain conditions.   The Bill Digest prepared for the Assembly Committee on Criminal Justice recognized the Act would grant “extensive benefits” to public safety officers not enjoyed by the citizenry as a whole.4  As most citizens do not enjoy the right to silence in a civil or administrative context, the right to silence here qualifies as an “extensive benefit.”   Further, nothing in the legislative history contradicts an interpretation granting public safety officers the right to silence.

Section 3307, extending public safety officers the privilege of refusing to submit to a polygraph examination without suffering any disciplinary action, gives public safety officers benefits not shared by other state residents.   (Civil Service Assn. v. Civil Service Com., supra, 139 Cal.App.3d 449, 456, 188 Cal.Rptr. 806.)   We find a similarly unique grant was intended when subdivision (g) of section 3303 was enacted.

Respondents cite Fout v. State Personnel Bd. (1982) 136 Cal.App.3d 817, 186 Cal.Rptr. 452, as “dealing with the precise issues presented in this appeal.”   However, in Fout the appellant sought refuge from administrative interrogation solely on the basis of “constitutional rights.”  (Id., at p. 820, 186 Cal.Rptr. 452.)   The decision denying such a right makes absolutely no mention of section 3303, subdivision (g), in particular, or of the Act in general.   Respondents miss the point—petitioner does not claim a constitutional right to silence, but a statutory right.

Respondents contend that section 3303, subdivision (g), means “that an officer's penal interests (i.e., his Miranda rights) must be protected during internal affairs questioning, and those rights and interests are properly observed [when] the Police Department explicitly commits, prior to questioning, to refrain from any use of answers in any subsequent criminal proceedings.”   Under this interpretation the provision merely codifies rights which public safety officers possessed before the passage of the Act.  (See Kelly v. State Personnel Bd. (1979) 94 Cal.App.3d 905, 911, 156 Cal.Rptr. 795.)   We disagree.

First, nothing new would be added except advice without a right.   It is doubtful this advice would add any certainty to the process and might lead to misadvice, such as noted in this instance.   If mere advice had been intended, subdivision (g) would have been in words referring to the consequences of the interrogation rather than the presence of any right.

Second, Miranda rights do not fully equate with the non-use of answers in subsequent criminal proceedings.  Miranda provides for the right to silence, not just the limited use of statements obtained.   Exclusion or suppression of statements obtained in violation of Miranda is the remedy for that violation, it is not the “right” itself.

Third, non-use of answers in a criminal proceeding may not adequately protect a public safety officer's penal interests.   If a police department IA investigation were used as an adjunct to a criminal investigation, the intangible “fruits” of the IA's interrogations could be as damaging to the officer's penal interest as the direct use of a statement in criminal proceedings.

Finally, practical reason and common sense support an interpretation of section 3303, subdivision (g), as granting a right to silence.   The use of IA's investigations to initiate or further criminal investigations is an easily foreseen “abuse” of public safety officers' rights.   The product of the administrative investigation might be shared within the office to confirm information developed in the ongoing criminal investigation.   Indeed, such a “cooperation” within a department is revealed in our case.5  Use of administrative questioning to circumvent appropriately asserted Miranda rights, whether in an isolated case or as a systematic practice, would jeopardize “stable employer-employee relations between public safety employees and their employers.”  (Gov.Code, § 3301;  White v. County of Sacramento, supra, 31 Cal.3d 676, 683, 183 Cal.Rptr. 520, 646 P.2d 191.)

THE REMEDY

 Because the statute allowed petitioner to exercise administratively his constitutional right to silence, we must decide what is the appropriate remedy for violation of that right.   Although raised in the context of a criminal proceeding, this court in People v. Velez, supra, 144 Cal.App.3d 558, 564, 192 Cal.Rptr. 686, footnote 5, intimated that section 3303, subdivision (g), by implication provided for the remedy of exclusion.   We now so hold.   However, we first examine the question on an alternative, due process approach, for which certain guidelines apply.

In deciding whether to apply the exclusionary rule to administrative proceedings, case law provides us with two criteria.  (See Note, Unconstitutional California OSHA Searches:  The Employer Strikes Back? (1981) 12 Pacific L.J. 1171, 1193.)   First, the court must decide whether there is a close identity between the administrative proceeding and the aims and objectives of criminal law enforcement.  (Emslie v. State Bar (1974) 11 Cal.3d 210, 227, 113 Cal.Rptr. 175, 520 P.2d 991;  People v. One 1960 Cadillac Coupe (1964) 62 Cal.2d 92, 96–97, 41 Cal.Rptr. 290, 336 P.2d 706;  see also One 1958 Plymouth Sedan v. Pennsylvania (1965) 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170.)   The punitive nature of the proceedings is one factor indicative of such identity.   It has been recognized that deprivation of one's profession can often be more severe punishment than anything the criminal law may impose.  (Governing Board v. Metcalf (1974) 36 Cal.App.3d 546, 551–552, 111 Cal.Rptr. 724.)   In this case the same public employer is simultaneously seeking to prosecute and discipline the employee.   Close identity is apparent.

Second, the court must balance the deterrent effect of the rule on the wrongful conduct against the cost to society.  (Emslie v. State Bar, supra, 11 Cal.3d at p. 228, 113 Cal.Rptr. 175, 520 P.2d 991.)   Interrogators engaging in wrongful conduct are the ones directly “benefiting” from that conduct.   Suppression of the evidence would immediately affect those engaged in the wrongful conduct and, logically, therefore have a maximum deterrent effect.

Assessment of the detriment or “cost to society” of the application of the rule is difficult.   Keeping the police force peopled with persons of honesty and integrity is imperative.   This goal, however, in few cases would be defeated by disallowing the use of statements made by the public safety officer without advisement of rights when statutorily required.   Assuming, as we do, that the Legislature intended to provide the right to silence, surely it did so after determining that the police employer's need for immediate and direct information from the officer concerned is outweighed by the reasons for providing the officer the right.   It is appropriate that the Legislature, rather than the courts, weighed and determined the priority of the conflicting purposes to be served.

The result of excluding the improperly obtained information places the police agency in no worse position than would follow if the mandated advice had been given and the right to silence elected.   As is so often noted in criminal proceedings, proof of improper conduct need not depend upon self-incrimination.   In this case the previously prepared order of termination contained essentially the same information petitioner gave the interviewer, with modest qualifications and one denial.   The interrogation here served no purpose.

The foregoing constitutional law analysis assumes no legislative direction has been given.   We are unaware of any constitutional principle which would prohibit the Legislature from determining that a criminal law exclusionary rule should apply to particular administrative proceedings.   In such a case the due process analysis becomes unnecessary.  (Emslie v. State Bar, supra, 11 Cal.3d 210, 226, 113 Cal.Rptr. 175, 520 P.2d 991.)

Counsel for the City of Fresno contends the subsection “adds no new ‘rights' but is merely declaratory of settled constitutional law affecting all citizens․”  In an amicus curiae brief the City of Los Angeles contends police officers are extended a new, noncustodial Miranda right not shared by average citizens.   However, counsel then agrees with respondents that the right is to mere advice.   We do not find the statutory language to be so superficial.

The words used in section 3303, subdivision (g), are in compulsory terms, not directory.   Advice is to be given “immediately,” not merely when convenient.   This immediacy requirement presupposes the officer being questioned will be permitted to make an election of some consequence and that the opportunity be afforded the officer prior to further questioning.   A reasonable implication follows that the fruits of delayed or omitted advice will not be used in the administrative proceeding.

Additionally, the case of Estes v. City of Grover City, supra, 82 Cal.App.3d 509, 147 Cal.Rptr. 131, lends support to the conclusion that the statement here should be suppressed.   The court in Estes reviewed a decision by the trial court, exercising its independent judgment, granting an administrative mandamus petition.   The petitioner in Estes was a police officer who had admitted to certain acts under the threat of a polygraph examination.   The officer was suspended for three days.   He filed a petition for administrative mandamus.   Because a “fundamental vested right” was involved, the trial court reviewed the suspension under the independent judgment test.   In “reviewing” the evidence the trial court excluded consideration of the admission as it was obtained in contravention of section 3307.6  That is, the court “suppressed” the statement in its reconsideration.   The appellate court upheld the court's action, finding application of section 3307 barred the use of the coerced confession in reaching the administrative decision.   Because here petitioner's statement was coerced in the sense that he was compelled to answer fully and honestly on pain of termination, without the opportunity to exercise the right to silence, his statement must be likewise stricken from administrative consideration.  (See also Evid.Code, § 919.)

RELIEF IN THIS CASE

Petitioner unsuccessfully sought immediate reinstatement to his employment and an order prohibiting further violations of the Act.   Insofar as the proceedings below were concluded on the basis that section 3303, subdivision (g), did not provide a right to advisement against self-incrimination, we must remand the matter to the trial court for resumption of proceedings pursuant to the Act as we have interpreted it.

 We find, however, that the minute order, issued by the court denying petitioner interim reinstatement on the basis of his failure to exhaust administrative remedies was correct.   In this case, section 3309.5 did not change the rule requiring exhaustion of administrative remedies.  (See Doyle v. City of Chino (1981) 117 Cal.App.3d 673, 678–680, 172 Cal.Rptr. 844;  Butler v. County of Los Angeles (1981) 116 Cal.App.3d 633, 638–640, 172 Cal.Rptr. 244.)   Section 3309.5 grants the trial court power “to remedy the violation” of the Act.   Petitioner was not discharged because of insubordination in refusing to answer questions.   Although the Act was violated, the termination appears to have been intended and accomplished without regard to the interview.

The judgment is affirmed as to the denial of interim reinstatement;  in all other respects it is reversed for further proceedings consistent with the views expressed in this opinion.

FOOTNOTES

1.   All statutory references are to the Government Code unless otherwise indicated.

2.   Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

3.   In People v. Velez (1983) 144 Cal.App.3d 558, 192 Cal.Rptr. 686, we had an opportunity to hold that Miranda rights were not the rights intended by the use of the words “constitutional rights,” but did not do so.   Clearly, the right to remain silent is encompassed by these commonly used words.

4.   An equal protection argument may be made if the Act grants such benefits to public safety officers and not the citizenry generally.   However, there is a rational basis for giving public safety officers special treatment, given their unique position of having their employer also be the criminal investigating agency.  (See Civil Service Assn. v. Civil Service Com. (1983) 139 Cal.App.3d 449, 458, 188 Cal.Rptr. 806.)

5.    “DYE [Interrogating Officer] ․ I'm telling you now on tape that anything that you say in here is not going to be involved in a, in any criminal investigation against you.“KELLY:  Okay, let me ask you, with that statement in mind, why do you have a criminal investigation report in front of you?“DYE:  Well, simply because that deals with the allegations against you.   The fact of the, uh, I have nothing else to, to work from as far as ․”

6.   Section 3307 provides a statutory right.   Polygraph tests cannot be compelled.   Subsequent evidentiary references to an officer refusing an examination are prohibited.   However, the statute makes no reference to the admissibility of evidence obtained during an involuntary examination.

WOOLPERT, Associate Justice.

PAULINE DAVIS HANSON, Acting P.J., and MARTIN, J., concur.

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