Craig W. Petersen v City of Mesa

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SUPREME COURT OF ARIZONA En Banc CRAIG W. PETERSEN, ) ) Plaintiff-Appellee, ) ) v. ) ) CITY OF MESA, ) ) ) Defendant-Appellant. ) ) __________________________________) Arizona Supreme Court No. CV-03-0100-PR Court of Appeals Division One No. 1 CA-CV 02-0016 Maricopa County Superior Court No. CV 2001-090218 O P I N I O N Appeal from Superior Court in Maricopa County No. CV 2001-090218 The Honorable Robert D. Myers AFFIRMED Opinion of Court of Appeals, Division One 204 Ariz. 278, 63 P.3d 309 (App. 2003) VACATED Skousen, Skousen, Gulbrandsen & Patience, P.C. by David L. Abney, Esq. Attorneys for Craig W. Petersen Mesa City of Mesa Attorney s Office by Deborah J. Spinner, Mesa City Attorney Rosemary H. Rosales Catherine M. Bowman Attorneys for City of Mesa Mesa M c G R E G O R, Vice Chief Justice ¶1 This case requires us to determine the constitutionality of a city s random, suspicionless drug testing pursuant of to its firefighters. Article VI, We Section exercise jurisdiction 5.3 the of Arizona Constitution, Arizona Revised Statutes (A.R.S.) section 12120.24, and Rule 23 of the Arizona Rules of Civil Appellate Procedure. I. ¶2 Craig City of Mesa. Petersen works as a firefighter for the In 2001, after Peterson was hired, the City implemented a substance abuse program (the Program) for the Mesa Fire Department. The Program requires testing of firefighters (1) if the Department has reasonable suspicion to believe an individual firefighter has abused drugs or alcohol; (2) after a firefighter is involved in an accident on the job; (3) following a firefighter s return to duty or as a follow-up to a determination that a covered member is in need of assistance ; and (4) on an unannounced and random basis spread reasonably throughout the calendar year. ¶3 Under the Program s random testing provision, a computer program selects the firefighters to be tested. The Department notifies firefighters of their selection for random testing immediately before, during, or after work; the firefighters are to be tested within thirty minutes of their notification, with allowance for travel time to the laboratory for collection. Once at the laboratory, firefighters are permitted to use private bathroom stalls 2 when providing urine samples, which are then inspected by a monitor for the proper color and temperature. ¶4 The laboratory tests the sample for the presence of marijuana, cocaine, phencyclidine.1 specimens by The using requirements of initially immunoassay test Food commercial distribution. positive test results amphetamines, laboratory an the opiates, and tests the meets the Administration Drug that and for The laboratory then confirms all using the gas chromatography/mass spectrometry technique and reports positive results to a Medical Review Officer (MRO), who has a detailed knowledge of possible alternate medical explanations. The MRO reviews the results before giving the information to the Department s administrative official. Only confirmed tests are reported to the Department as positive for a specific drug. Before verifying a positive result, however, the MRO must contact the firefighter on a confidential basis. ¶5 The Department does not release information in a firefighter s drug testing record outside the Department without the firefighter s consent. A firefighter whose test reveals a blood alcohol concentration in excess of that allowed under the Program or who tests positive for 1 In addition, twenty percent of those tested are selected for an alcohol breath test. 3 any of several specified drugs is removed from all covered positions and professional. is evaluated by a substance abuse The Department may discipline or terminate the employment of a firefighter who tests positive a second time or who refuses to submit to a required test. ¶6 According primary purpose to of section the random 8 of the testing Program, component the is to deter prohibited alcohol and controlled substance use and to detect identified prohibited use for users the safety-sensitive from the purpose of removing work force. This purpose advances the City s goal of establishing a work environment that is totally free of the harmful effects of drugs and the misuse of alcohol. ¶7 Petersen filed a complaint in superior court seeking declaratory and injunctive relief, alleging that the random testing component of the Program violated his rights under both Article II, Section 8 of the Arizona Constitution and the Fourth Amendment to the United States Constitution.2 The trial court held that the Program violated the Arizona Constitution and permanently enjoined 2 Petersen does not challenge testing on the basis of reasonable suspicion, after an on-the-job accident, following a return to duty, or as a follow-up to a determination that a covered member is in need of assistance. As a result, we express no opinion regarding the constitutionality of these Program provisions. 4 the Department from continuing random, suspicionless drug and alcohol testing of the City s firefighters. of appeals reversed, holding that the The court Program s random testing component is reasonable under both the Arizona and United States Constitutions. City s compelling need conditions representing safety the of to The court reasoned that the discover grave firefighters specific but to health risks and Petersen s privacy interests. the the public hidden and outweighed Petersen v. City of Mesa, 204 Ariz. 278, 286 ¶ 34, 63 P.3d 309, 317 (App. 2003). Judge Hall dissented from the majority s conclusion that the random testing component of the Program is reasonable under the Fourth Amendment. 321-22 (Hall, J., Id. at 290-91 ¶ 49, 63 P.3d at concurring in part and dissenting in part). ¶8 Under the analysis set forth below, we hold that the Program s random testing component is unreasonable and therefore violates the Fourth Amendment to the United States Constitution.3 3 Petersen argues that Article II, Section 8 of the Arizona Constitution, which expressly provides that [n]o person shall be disturbed in his private affairs . . . without authority of law, affords greater protection against drug testing than does the Fourth Amendment. Our conclusion that the random testing component violates the Fourth Amendment obviates the need to consider whether the protections granted by the Arizona Constitution extend 5 II. ¶9 The Constitution secure in Fourth protects their Amendment [t]he persons, to right houses, the of United the papers, people and against unreasonable searches and seizures. amend. IV. and States to be effects, U.S. Const. The Amendment guarantees the privacy, dignity, security of persons against certain arbitrary and invasive acts by officers of the Government or those acting at their direction. Skinner v. Ry. Ass'n, 489 U.S. 602, 613-14 (1989). Labor Executives' In this case, the parties agree that the City s collection and testing of a firefighter s urine and breath constitutes a search under the Fourth Amendment. See, e.g., id. at 617 ( Because it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long beyond those afforded defendants by the federal constitution. Although the Arizona Constitution may impose stricter standards on searches and seizures than does the federal constitution, Arizona courts cannot provide less protection than does the Fourth Amendment. See, e.g., Cooper v. California, 386 U.S. 58, 62 (1967) ( Our holding, of course, does not affect the State's power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so. ); Arnold v. City of Cleveland, 616 N.E.2d 163, 169 (Ohio 1993) ( In the areas of individual rights and civil liberties, the United States Constitution, where applicable to the states, provides a floor below which state court decisions may not fall. ). 6 recognized as reasonable . . . these intrusions must be deemed searches under the Fourth Amendment. ). ¶10 As the language of the Fourth Amendment makes clear, the ultimate measure of the constitutionality of a governmental search is reasonableness. Dist. 47J v. Acton, 515 a search generally reasonable, U.S. 646, 652 must be Vernonia Sch. (1995). based To upon level of individualized suspicion of wrongdoing. be some Skinner, 489 U.S. at 624. The purpose of requiring individualized suspicion is protect citizens subject intrusions to are to ¶11 The limited by a search or seizure random or arbitrary assuring that acts such of Id. at 621-22. Supreme exceptions interests the not government agents. privacy to Court, this however, general rule has recognized when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable. Id. at 619 (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)). In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search despite the absence of such suspicion. 7 may be reasonable Id. at 624. ¶12 The City suspicionless concedes testing is individualized suspicion. such testing because beyond the the is that not normal under serves need based use on of any random, level of The City argues, however, that reasonable search its the special for law Fourth Amendment governmental needs, enforcement. Nat l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989). results parties Because to law without the Department enforcement the does officers firefighter s not or disclose to other consent, test third Petersen recognizes that the Program is unrelated to the normal need for law enforcement. Petersen maintains, however, that the City cannot enforce the Program s random testing component because the City s alleged special needs offered in support of the program are insufficient to overcome the privacy intrusion occasioned by the search. Based on the record in this case, we agree. A. ¶13 Neither considered the the Supreme reasonableness testing of city firefighters. Court nor this of random, court has suspicionless The Supreme Court, however, has examined the constitutionality of suspicionless drug testing requirements analogous to the procedures Petersen challenges. See Bd. of Educ. of Indep. Sch. Dist. No. 92 8 v. Earls, 536 participating in U.S. 822 (2002) competitive (high school extracurricular students activities); Chandler v. Miller, 520 U.S. 305 (1997) (candidates for political office); Vernonia, students participating in 515 U.S. 646 (high interscholastic school athletics); Skinner, 489 U.S. 602 (railway employees); Von Raab, 489 U.S. 656 (customs service agents); see also Ferguson v. City of Charleston, unconstitutional pregnant a patients 532 U.S. 67 state hospital s that involved (2001) drug (holding testing hospital of personnel notifying the police of patients who tested positive for cocaine). As each of these decisions illustrates, when presented with an alleged special need in support of a particular Fourth Amendment intrusion, a court must weigh the individual s Fourth Amendment interests against the proffered governmental interests to determine whether the search in category searches. ¶14 question of fit[s] within constitutionally the closely permissible guarded suspicionless Chandler, 520 U.S. at 309. Applying this special needs balancing test to the facts presented in this case, we begin by analyzing the City s proffered interests. Although the City need not present a compelling interest, the City s interest must be important enough to justify the government s intrusion 9 into the firefighters legitimate expectations of privacy. Vernonia, 515 U.S. at 661. ¶15 test The City asserts that it has a special need to firefighters positions. this because they occupy safety-sensitive The City alleges that random testing furthers interest by deterring prohibited alcohol and controlled substance use and detecting prohibited use for the purpose of removing identified users from the safetysensitive work force. We agree that the City has an interest in deterring and detecting prohibited alcohol and drug use among the City s firefighters. ¶16 Fourth Amendment analysis, however, requires that we do more than recognize that the City has an interest in deterring drug positions. use among employees in safety-sensitive In addition, we must look to the nature and immediacy of the City s concern. Id. at 660. That is, has the City identified a real and substantial risk? 520 U.S. at 323. Chandler, If so, will the City s proposed invasion of its firefighters privacy interests further the City s interest in firefighters? question deterring and detecting drug Skinner, 489 U.S. at 624. requires that we consider the use among its Answering that efficacy of the Program in meeting the City s concern, Vernonia, 515 U.S. 10 at 660, and whether the invasion of privacy is calibrated to the defined risk, Chandler, 520 U.S. at 321-23. ¶17 The record before us provides little information about the City s reasons for adopting random testing and provides no evidence to explain the City s perceived need to conduct such testing. As the City conceded at oral argument, the record is devoid of any indication that the City has ever encountered any problem involving drug use by its firefighters. The record lacks not only evidence of even a single instance of drug use among the firefighters to be tested but also any evidence of fatalities, injuries, or property damage attributed to or alcohol use firefighters. drug No evidence of record by accidents, that can the suggests be City s that the firefighters asked for or consented to the testing policy, and the record includes not even an allegation or rumor that the alcohol. City s Based firefighters on this used record, we or abused detect no drugs or real and substantial risk that the public safety is threatened by drug or alcohol use among the firefighters to be tested. The absence of evidence of drug use, at least as reflected in the record, provides no basis for us to conclude that random, suspicionless testing is calibrated to respond to any defined risk. At most, the Program s random testing 11 component interest furthers in only deterring a and generalized, detecting a unsubstantiated hypothetical drug abuse problem among the City s firefighters.4 ¶18 Nonetheless, Vernonia, and relying Earls, the primarily City asserts upon that Von the Raab, Supreme Court has not required a particularized or pervasive drug problem before allowing the suspicionless drug testing. government to conduct Earls, 536 U.S. at 835. The City s argument accurately reflects language from the cases upon which it relies. These cases, however, focused on a number of important factors that differ from the facts of this case and therefore offer limited support for the City s argument. ¶19 In Von constitutionality Raab, of a the United Court States examined Customs the Service program requiring Customs Service employees to submit to suspicionless testing upon promotion or transfer to positions directly involved in the interdiction of illegal drugs or positions that required carrying a firearm. 4 489 While we recognize and applaud the City s interest in deterring drug use among firefighters, the Program also requires testing upon reasonable suspicion, after an accident on the job, and following a return to duty or as a follow-up to a determination that a covered member is in need of assistance. The record before us provides no basis for concluding that these testing 12 U.S. at 660. Although the Customs Service did not adopt its policy in response to a history of drug and alcohol abuse problems, id., the plan was developed for an agency that the Court recognized as our Nation s first line of defense against one of the greatest problems affecting the health and welfare of our population. Id. at 668. The Court reasoned that those employees directly involved in drug interdiction or carrying a firearm could jeopardize the agency s almost unique mission. Id. at 674. As a result, the Court concluded that the Customs Service had a compelling interest in assuring that users of illegal drugs would not be placed in these positions. Id. at 670-71. In upholding the testing regime, the Court also noted that the testing program provided advance notice of the scheduled sample collection. focused on the Id. at 672 n.2. context in In addition, the Court which the Service s testing program was implemented, which the Court described as an environment in which it is not feasible to subject employees and their work product to the kind of day-to-day scrutiny that environments. as the Court is the norm Id. at 674. later in more traditional office Given these particular facts, emphatically stated, [Von Raab is] alternatives fail to deter and detect drug use among the City s firefighters. 13 [h]ardly a decision opening broad vistas for suspicionless searches [and it] must be read in its unique context. Chandler, 520 U.S. at 321. ¶20 Unlike the Customs Service employees in Von Raab, the City s firefighters are not directly involved in drug interdiction, do not carry a firearm, and are not required to use deadly force in the regular course of their duties. In addition, the firefighters communal work environment provides drug a use conduct better and a opportunity therefore test under for develop supervisors reasonable appropriate to detect suspicion circumstances. to This environment reduces the risk that a firefighter could cause great human loss before any signs of impairment become noticeable to supervisors or others. 628. and Skinner, 489 U.S. at Finally, as we discuss below, the element of fear surprise inherent in the Program s random testing procedures results in a broader and more intrusive privacy invasion than did the testing procedures approved in Von Raab. Von Raab, 489 U.S. at 672 n.2 (noting that the advance notice given of the scheduled sample collection reduces to a minimum any unsettling show of authority (quoting Delaware v. Prouse, 440 U.S. 648, 657 (1979)). ¶21 Vernonia and Earls also provide limited support for the City s random testing of its firefighters. 14 In Vernonia and policies Earls, that the Court required upheld students school district participating in extracurricular activities to submit to random drug tests. Earls, 536 U.S. at 838 (finding school district policy, which included random testing of students participating in extracurricular activities, to be constitutional); Vernonia, 515 U.S. at 664-65 (upholding school district s policy authorizing random drug testing of participating in interscholastic athletics). students In upholding the policies, the Court emphasized in both decisions that Fourth Amendment rights . . . are different in public schools than elsewhere; the reasonableness inquiry cannot disregard the schools custodial responsibility for children. and tutelary Earls, 536 U.S. at 829-30 (quoting Vernonia, 515 U.S. at 656). ¶22 Firefighters, of course, have little in common with students entrusted to the government's care. As Judge Hall correctly noted, unlike a public school student[ s right to although privacy], limited a in firefighter s some respects, right is to not privacy, inherently subject[] to greater controls than those appropriate for adults. (Hall, J., Petersen, 204 Ariz. at 289 ¶ 44, 63 P.3d at 320 concurring in part (quoting Earls, 536 U.S. at 831). 15 and dissenting in part) On this basis alone, we have little trouble distinguishing Vernonia and Earls from this case. ¶23 Moreover, unlike the record in this case, the records in both the Earls and Vernonia actions presented specific evidence of drug use that supported the districts decisions to institute the testing regimes. In Vernonia, an immediate crisis, 515 U.S. at 663, brought about by a sharp increase in drug use, id. installation of the testing program. Court noted that the School at 648, sparked Similarly, the Earls District ha[d] provided sufficient evidence to shore up the need for its testing program. ¶24 536 U.S. at 835. Given the dearth of evidence by which we can measure the strength of the City s proffered special need and the random City s failure testing to procedures articulate further how its the Program s interests, we conclude that the City has failed to define any real and substantial designed risk to that address. random, suspicionless Nonetheless, because testing the is Supreme Court has stated that a lack of empirical data, by itself, is not fatal to a suspicionless testing program, Von Raab, 489 U.S. at 673-75, we now consider the extent of Petersen s acknowledged Fourth Amendment privacy interests and then balance these interests 16 against the City s generalized, unsubstantiated interest in deterring and detecting substance abuse among the City s firefighters. B. ¶25 The collection of urine and breath samples for purposes of drug expectation recognize of as and alcohol privacy that reasonable. testing society Skinner, infringes an prepared to is 489 U.S. at 616. Nevertheless, operational realities of the workplace may render entirely reasonable certain work-related intrusions by supervisors and co-workers that unreasonable in other contexts. might be viewed Von Raab, 489 U.S. at 671 (quoting O Connor v. Ortega, 480 U.S. 709, 717 (1987)). Skinner, for example, the as Court found that In railway employees expectation of privacy is diminished by reason of their participation in an industry that is regulated pervasively to ensure substantial part, employees. the health a and goal dependent, fitness of in 489 U.S. at 627. ¶26 on safety, covered As was true of the railway employees in Skinner, the City s firefighters possess a diminished expectation of privacy. The safety risks firefighter are well known. associated with becoming a We entrust firefighters with protecting both the community at large and their colleagues from danger, while putting their own well-being at great 17 risk of harm. A firefighter s ability to do this job in a safe and effective manner depends, in substantial part, on his or her health and fitness. In addition, a firefighter, while on duty, lives in a communal environment. Given all these factors, we conclude that individuals who elect to become firefighters should anticipate a diminished expectation of privacy and should reasonably expect some intrusion into matters involving their health and fitness. ¶27 also The turns Vernonia, strength upon 515 of the U.S. at any asserted character 658. of Although privacy the any interest intrusion. program that compels urinalysis affects privacy interests, the City has designed its firefighters Program to privacy reduce its interests. intrusion See, upon e.g., the id. (concluding that the degree of intrusion depends upon the manner in monitored ). which production of the urine sample is The Program permits firefighters providing samples to use private bathroom stalls at the designated testing facility, monitoring. where they are not subject to direct The firefighter then gives the sample to an authorized monitor for color and temperature testing. The laboratory confirms any initial positive test by using gas chromatography/mass spectrometry techniques, which reduces the specter of a false positive test result. 18 See, e.g., Karen Manfield, Imposing Liability on Drug Testing Laboratories for False Positives : Getting Around Privity, 64 U. Chi. L. Rev. 287, 290-92 (1997) (stating that retesting positive results with a properly administered gas chromatography false test would positives ). contacts the The firefighter eliminate MRO on a virtually reviews the results the all and basis. In confidential addition, the Department does not release testing records outside the Department without the firefighter s consent. ¶28 These procedures, which attempt to guard the firefighters privacy interests to the extent possible, all work to reduce the intrusiveness of the privacy invasion. Nonetheless, given the random nature of these searches, we cannot conclude that the privacy interests implicated by the search are minimal. ¶29 Skinner, 489 U.S. at 624. The Supreme Court has not examined random testing procedures outside of the unique school setting. 536 U.S. 822; Vernonia, 515 U.S. 646. Earls, In both Vernonia and Earls, the Court upheld school district policies requiring students participating in extracurricular submit to random drug testing. activities to In both cases, without directly addressing the privacy implications of a random search, the primarily Court upon upheld the the schools 19 challenged custodial searches and based tutelary responsibility for children. Earls, 536 U.S. at 829-30 (quoting Vernonia, 515 U.S. at 656). ¶30 Outside recognized search Raab, that school notification minimizes 489 the the U.S. at context, in advance intrusiveness 672 n.2; the see of of the also Court a has scheduled search. United Von States v. Martinez-Fuerte, 428 U.S. 543, 559 (1976) (noting that the intrusion on privacy occasioned by routine checkpoints is minimized by the fact that motorists are not taken by surprise as they know, or may obtain knowledge of, the location of the elsewhere ). identified upholding employees. checkpoints In the the Von Raab, advance U.S. at will for notice suspicionless 489 and not be example, given as the a Court factor testing of Customs n.2. The Von 672 stopped in Service Raab Court stated: Only employees who have been tentatively accepted for promotion or transfer to one of the three categories of covered positions are tested, and applicants know at the outset that a drug test is a requirement of those positions. Employees are also notified in advance of the scheduled sample collection, thus reducing to a minimum any unsettling show of authority that may be associated with unexpected intrusions on privacy. Id. (quoting Delaware, 440 U.S. at 657). ¶31 Raab, Consistent a number with of the federal 20 Court s and statements state in courts Von have acknowledged the increased privacy concerns occasioned by random testing. 451, 456-57 challenged random See, e.g., Bluestein v. Skinner, 908 F.2d (9th Cir. testing tests 1990) program added (finding the provided some weight for to fact that the unannounced and the invasion of privacy side of the Fourth Amendment balance ); Harmon v. Thornburgh, 878 F.2d 484, 489 (D.C. Cir. 1989) ( Certainly the random nature of the . . . testing plan is a relevant consideration; and, in a particularly close case, it is possible that this factor would tip the scales. ); Anchorage Police Dep t Employees Ass n v. Municipality of Anchorage, 24 P.3d 547 (Alaska 2001). In Anchorage, for example, the Alaska Supreme Court, relying upon the Alaska Constitution, concluded that the random testing of firefighters is qualitatively different from suspicionless testing that occurs prior to employment, upon promotion, demotion or transfer, and Anchorage, 24 P.3d at 557. after a traffic accident. The court reasoned: Because the policy s provision for random testing could subject employees to unannounced probing throughout the course of their employment, the tests are peculiarly capable of being viewed as unexpected intrusions on privacy. For example, it might seem manifestly unreasonable for any person applying for a safety-sensitive position in a heavily regulated field of activity not to anticipate and implicitly agree to a probing inquiry into the applicant s capacity to perform job-related duties; the same would hold true for 21 any employee who might be promoted, demoted, transferred, or become involved in a job-related accident. But a job applicant or employee who anticipated such inquiries might nevertheless expect not to be subjected to a continuous and unrelenting government scrutiny that exposes the employee to unannounced testing at virtually any time. Such expectations cannot be so readily dismissed as patently unreasonable. Id. at 557-58 (citations omitted). ¶32 Although the Alaska Supreme Court analyzed the Anchorage plan under its state constitution, we find the court s reasoning about the difference between random and announced or scheduled tests persuasive. of random, notification government suspicionless and searches subjects scrutiny. precludes employees Random The very nature any advance to continuous testing, therefore, necessarily raises the specter of the unsettling show of authority that may intrusions on privacy. (quoting Delaware, 440 be associated with unexpected Von Rabb, 489 U.S. at 672 n.2 U.S. at 657). Accordingly, we conclude that random, suspicionless drug testing, while not per se unreasonable, invades reasonable privacy interests even when the government collects the urine sample in a relatively unintrusive manner and takes steps to protect employees privacy interests by limiting the information that is disclosed. 22 III. ¶33 Balancing Petersen s privacy interests against the interests the City advances in favor of the Program s random component, we conclude that the City s generalized and unsubstantiated alcohol and drug interest use in among deterring the City s and detecting firefighters by conducting random drug tests is insufficient to overcome even the lessened privacy interests of the firefighters in this case. The situation we consider, on this record, cannot be described as one of the limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, [and in which] a search may suspicion. increased be reasonable Skinner, intrusion despite 489 U.S. occasioned the at by absence 624. the of Rather, Program s such the random, suspicionless testing component represents the very type of arbitrary and invasive acts by officers of the Government or those acting at their direction Fourth Amendment is meant to guard. against which the Id. at 613-14. We therefore hold, on the record before us, that the Program s random category component of falls outside constitutionally 23 the closely permissible guarded suspicionless searches, Chandler, 520 U.S. at 309, and violates the Fourth Amendment to the United States Constitution. IV. ¶34 For the foregoing reasons, we vacate the court of appeals opinion and affirm the trial court s judgment enjoining the City from enforcing the random, suspicionless component of the Program. ____________________________________ Ruth V. McGregor, Vice Chief Justice CONCURRING: __________________________________ Charles E. Jones, Chief Justice __________________________________ Rebecca White Berch, Justice __________________________________ Michael D. Ryan, Justice __________________________________ Andrew D. Hurwitz, Justice 24

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