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No. 00-015
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 291
302 Mont. 276
14 P.3d 499
STEVE PENGRA, as personal representative of the
Estate of Tamara Pengra, deceased, and STEVEN
PENGRA, on his behalf and as guardian and
conservator for TIFFANY PENGRA,
Plaintiffs and Appellants,
STATE OF MONTANA, acting through its
DEPARTMENT OF CORRECTIONS,
Defendant and Respondent,
and
MONTANA LAW WEEK; and THE HELENA
INDEPENDENT RECORD, THE ASSOCIATED PRESS,
THE BILLINGS GAZETTE, and THE MISSOULIAN,
Intervenors, Respondents, and
Cross-Appellant.
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APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
Honorable Dorothy McCarter, Judge Presiding
COUNSEL OF RECORD:
For Appellants:
Richard J. Pyfer (argued), Small, Hatch, Doubek and Pyfer,
Helena, Montana
For Respondents:
P. Keith Keller (argued) and Michael R. King, Special
Assistant Attorney General, Helena, Montana (State of Montana)
James P. Reynolds (argued) , Reynolds, Motl & Sherwood, Helena
Montana (News organizations)
For Cross-Appellant:
Peter Michael Meloy (argued), Meloy and Morrison, Helena, Montana
(Montana Law Week)
Argued: September 14, 2000
Submitted: September 26, 2000
Decided: November 17, 2000
Filed:
__________________________________________
Clerk
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2
Chief Justice J. A. Turnage delivered the Opinion of the Court.
¶1 Steve Pengra brought this action against the State of Montana contending that the
State's negligent acts and omissions led to the brutal rape and murder of his wife Tamara
by a Montana prison probationer. Pengra and the State settled the suit before trial, and
Pengra asked the court to seal the settlement agreement. Montana Law Week, the Helena
Independent Record, The Associated Press, the Billings Gazette, and the Missoulian
(collectively, "the press") were granted permission to intervene in opposition to Pengra's
request. The First Judicial District Court, Lewis and Clark County, later denied Pengra's
request but sealed the settlement agreement pending this appeal. We affirm that court's
decision.
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¶2 On appeal, Pengra argues that the District Court erred in denying his motion to seal the
settlement agreement because (1) his daughter's and his rights to privacy protect the terms
of the agreement; (2) the § 2-9-303, MCA, requirement that settlements of claims against
the State must be made available for public inspection violates the personal privacy of an
individual; and (3) the Pengras' right to privacy outweighs the public's right to know the
terms of the settlement agreement. On cross-appeal, Montana Law Week argues that the
court erred in denying its claim for attorney fees.
¶3 Pengra brought this action against the State of Montana on behalf of himself, the estate
of his late wife, and their minor daughter. Tentative agreement on a settlement of the case
was reached just five days before the scheduled start of a jury trial. At that time, the
proprietor of Montana Law Week asked the State's attorney for a copy of the settlement
agreement for inclusion in his publication. The information sought is the dollar amount of
the settlement and the method of payment thereof.
¶4 While the parties were still working out the details of the settlement, Pengra's attorney
presented to the District Court an ex parte motion asking that the terms and conditions of
the settlement agreement be sealed. The court set a date for hearing on the motion. Prior to
the scheduled hearing, the press moved to be allowed to intervene, and those motions were
granted.
¶5 In support of his motion to seal the settlement agreement, Pengra argued that disclosure
of the terms of the agreement would be detrimental to his and his daughter's emotional
well-being and would interfere with closure and healing for his daughter. At the hearing
on the motion, Pengra's attorney hand-delivered to all counsel a supporting affidavit of
Michael A. Emerson, Ph.D. However, the affidavit was neither offered into evidence nor
filed with the court at that time. The press argued against the motion to seal, based upon
the statement in § 2-9-303, MCA, that governmental settlement agreements are public
records, and the public's constitutional right to know.
¶6 The following week, the District Court issued a written order denying Pengra's motion
to seal the settlement agreement. The court concluded that there was no privacy interest in
the amount of monetary compensation the Pengras received under the settlement and held
that even if there was a constitutionally-protected privacy right, that right did not clearly
outweigh the merits of public disclosure of the settlement agreement. The court denied
Montana Law Week's request for attorney fees. Pengra appeals, and Montana Law Week
cross-appeals.
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Issue 1
¶7 Did the District Court err in denying Pengra's motion to seal the settlement agreement
because (1) Pengra's and his daughter's rights to privacy protect the terms of the
agreement; (2) the § 2-9-303, MCA, requirement that settlements of claims against the
State must be made available for public inspection violates the personal privacy of an
individual; and (3) the Pengras' right to privacy outweighs the public's right to know the
terms of the settlement agreement?
¶8 We first address Pengra's contention that his daughter, as a minor, possesses elevated
privacy rights under which the terms of the settlement agreement are protected. In general,
minors have the same rights as do all other persons.
Rights of persons not adults. The rights of persons under 18 years of age shall
include, but not be limited to, all the fundamental rights of this Article unless
specifically precluded by laws which enhance the protection of such persons.
Art. II, § 15, Mont. Const. Thus, elevated privacy rights of a minor are not implicit in
Montana's Constitution.
¶9 Pengra has cited a number of statutes under which the privacy rights of minors are
accorded special, elevated protections (e.g., as to juvenile records and adoption records).
The fact that the Legislature has enacted statutes granting minors elevated privacy rights
in other areas shows that the Legislature knows how to express its intent to allow for
confidentiality of proceedings involving children.
¶10 The Montana Legislature has not, however, provided for elevated privacy rights with
regards to settlement documents for children's tort claims against the State. Section 2-9-
303, MCA, merely provides:
(2) All terms, conditions, and details of the governmental portion of a compromise
or settlement agreement entered into or approved . . . are public records available for
public inspection.
¶11 Pengra refers to discussion in the legislative history of § 2-9-303, MCA, regarding the
advisability of including a provision making confidential settlements involving minor
children. However, no such provision was enacted. Based on the absence of an elevated-
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protection provision in either the Montana Constitution or the statute, we conclude that
minors do not have a greater right to privacy than do adults in settlement agreements for
tort claims against the State.
¶12 We next look to Pengra's belated claim that the § 2-9-303, MCA, requirement that
settlements of claims against the State must be made available for public inspection
violates the personal privacy of an individual and is therefore unconstitutional on its face.
Pengra did not raise this allegation before the District Court, and it was not articulated
before this Court until the reply brief and at oral argument.
¶13 Rule 23(c), M.R.App.P., provides that an appellant's reply brief must be confined to
new matter raised in the respondent's brief; thus, an appellant may not raise new issues in
a reply brief. See Denend v. Bradford Roofing and Insulation (1985), 218 Mont. 505, 509-
10, 710 P.2d 61, 64. We will not address the merits of an issue presented for the first time
in a reply brief on appeal. Loney v. Milodragovich, Dale & Dye, P.C. (1995), 273 Mont.
506, 512, 905 P.2d 158, 162. Accordingly, we do not further consider whether § 2-9-303,
MCA, violates the right to privacy and is thus unconstitutional on its face.
¶14 Still remaining is Pengra's as-applied challenge to the disclosure provision of § 2-9-
303, MCA: his contention that the statutory disclosure provision is superseded by his and
his daughter's rights of individual privacy. We have recognized that statutes conflicting
with the Montana Constitution are generally subordinate to the constitution and if possible
must be interpreted to harmonize with it. See Engrav v. Cragun (1989), 236 Mont. 260,
263, 769 P.2d 1224, 1226. This leads inexorably to the larger question concerning the
conflict here presented between the constitutional right to privacy and the constitutional
right to know.
¶15 The two provisions at issue are found at Article II, Sections 9 and 10 of the Montana
Constitution:
Section 9. Right to know. No person shall be deprived of the right to examine
documents or to observe the deliberations of all public bodies or agencies of state
government and its subdivisions, except in cases in which the demand of individual
privacy clearly exceeds the merits of public disclosure.
Section 10. Right of privacy. The right of individual privacy is essential to the well-
being of a free society and shall not be infringed without the showing of a
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compelling state interest.
This Court has applied a two-step process in deciding claims in which these rights
conflict. The process requires, first, determination of whether the person claiming the right
of privacy has a subjective expectation of privacy and, if so, whether society is willing to
recognize that expectation as reasonable. If both of those prerequisites are met, then the
court must decide whether the privacy interest clearly exceeds the merits of public
disclosure. Missoulian v. Board of Regents (1984), 207 Mont. 513, 675 P.2d 962. We
therefore proceed to weigh the Pengras' rights to privacy, insofar as they are recognized by
society, against the public's right to know the terms of the settlement agreement.
¶16 We are unable to identify any factual record from which the District Court could have
found a privacy interest that would be harmed by disclosure of the settlement amount.
While counsel apparently hand-delivered copies of the affidavit of psychologist Michael
A. Emerson, Ph.D., to opposing counsel at the hearing before the District Court, that
affidavit was not filed with the court until weeks after the court reached its decision.
Because Emerson did not testify personally, no opportunity for cross-examination was
available as to the statements made in the affidavit. And although counsel alleges that the
affidavit was discussed at the hearing, no transcript of the hearing has been filed with this
Court, and the District Court's written decision does not refer to the affidavit. Any
assertion that the affidavit was part of the record is thus wholly unsupported.
¶17 Even if the affidavit were part of the record, the statements therein address only
generally the adverse effects of publicity on the child. The statements apply to adverse
effects from any and all public discussion of Tamara Pengra's death, including such
discussions at the time of the crime and when Pengra filed this action. The affidavit does
not relate specifically to adverse effects from disclosure of the settlement terms.
¶18 The claim that the Pengras have a subjective expectation of privacy in the settlement
amount is, moreover, discredited by the surrounding circumstances of this case. Pengra
took no steps to keep private his lawsuit against the State, and in fact requested a jury trial
in the District Court. Pengra's counsel admitted at oral argument before this Court that if
the settlement amount had not been sufficient, his client would have gone forward with the
public jury trial of this case. The District Court opined that any harm to the Pengras by
publicity had already occurred and that there was no basis for a conclusion that disclosure
of the amount of the settlement would cause greater harm to the Pengras than had already
been caused by the previous disclosures of the facts of the crime. We agree.
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¶19 As to whether society is willing to recognize the Pengras' privacy expectation as to the
amount of their tort settlement with the State, the enactment of the disclosure requirement
in § 2-9-303, MCA, indicates that it is not. The reasons on the other side of the balance-the
merits of public disclosure-explain that unwillingness.
¶20 Compelling policy reasons support disclosure of settlement amounts in tort actions
with the State. Disclosure of such agreements provides an irreplaceable opportunity for
taxpayers to assess the seriousness of unlawful and negligent activities of their public
institutions. The taxpayers are entitled to know how much they must pay for such actions
or inactions. And without muzzling the entire legislative process and all those involved in
obtaining the appropriation to pay the claim, it appears that whatever privacy right the
settling party has will be compromised, anyway, when the legislature appropriates the
funds to pay the settlement.
¶21 Finally, we address the argument that it is not fair that just because a person files suit
against the State, that person "loses his right of privacy." While this argument has some
initial appeal, it falters upon closer examination. First, Pengra has cited no authority
establishing a "right" to secrecy of a settlement amount. The unfortunate reality is that
persons must take their tortfeasors as they find them- with resources to enter into
settlements or not, and with restrictions as to disclosure of expenditures of those resources
or not. Second, the § 2-9-303, MCA, disclosure requirements are aimed not at what the
settling party receives, but instead at the what State government expends as a result of a
given act or omission to act by agents of the government. The opposing party's "loss of the
right of privacy" is only a secondary result of the disclosure provision.
¶22 On balance, we conclude that Pengra has not demonstrated that his and his daughter's
rights to privacy clearly outweigh the public's right to know what costs the public has
incurred in the settlement agreement with the Pengras. We affirm the District Court's
decision denying Pengra's motion to seal the settlement agreement.
Issue 2
¶23 Did the court err in denying Montana Law Week's claim for attorney fees?
¶24 Montana Law Week moved the District Court for an order awarding its reasonable
attorney fees pursuant to § 2-3-221, MCA:
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A plaintiff who prevails in an action brought in district court to enforce his rights
under Article II, section 9, of the Montana constitution may be awarded his costs
and reasonable attorneys' fees.
We have pointed out that under this statute, an award of attorney fees is discretionary.
Gaustad v. City of Columbus (1995), 272 Mont. 486, 488, 901 P.2d 565, 567.
¶25 This Court has on two prior occasions reviewed claims that trial courts abused their
discretion in resolving requests for attorney fees in "right-to-know" lawsuits. In one,
Bozeman Daily Chronicle v. City of Bozeman Police Dept. (1993), 260 Mont. 218, 859
P.2d 435, the Court affirmed an award of fees. In the second case, Gaustad, we affirmed
the denial of attorney fees. Neither case sets forth general standards for when attorney fees
should be awarded under the statute.
¶26 In the present case, Montana Law Week has prevailed in its position, which argues in
favor of granting the request for attorney fees. However, the State has never opposed
Montana Law Week's position. The State has not asserted a right of privacy-that right has
instead been asserted in this case by Pengra, a private party. Failure to object to the
asserted right is the State's sole offense. As the State points out, it was faced with a
dilemma when Pengra filed his motion to seal the settlement: If it had disclosed the
settlement before the hearing and Pengra had later established a right to privacy, the State
could have been liable for damages for violating that right. In addition, on and after the
date on which the settlement was submitted for the District Court's approval, the court
itself treated the agreement as temporarily sealed. Disclosure after that time would have
exposed the State to a claim that it was in contempt of court.
¶27 We hold that the District Court did not abuse its discretion in declining Montana Law
Week's request that the State be ordered to pay Montana Law Week's attorney fees. We
therefore affirm the court's decision on that issue.
¶28 Having thus agreed with the District Court on both issues raised on appeal, we affirm
that court's decision in its entirety. We remand this case with instructions that the District
Court should dissolve its order staying disclosure of the settlement amount.
/S/ J. A. TURNAGE
We concur:
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/S/ KARLA M. GRAY
Justice W. William Leaphart, dissenting.
¶29 I dissent as to Issue One and would not reach Issue Two.
¶30 The Court concludes that Pengra's facial challenge to § 2-9-303, MCA, was not
properly raised below and is thus not ripe for appellate review. The Court reasons that
Pengra did not raise this allegation before the District Court. In so concluding, the Court
has elevated form over substance.
¶31 In the District Court proceeding, Pengra filed a motion invoking the right to privacy
and sought to seal the settlement documents. In his brief in support of the motion he
argued that: "The legislature cannot take away a person's personal privacy interest by
statutory edict [referring to § 2-9-303, MCA]. The Constitution of Montana protects an
individual's privacy and makes it paramount." In response, the media invoked the clear
disclosure requirements of § 2-9-303(2), MCA, which states:
(2) All terms, conditions, and details of the governmental portion of a compromise or
settlement agreement entered into or approved . . . are public records available for public
inspection.
¶32 Although Pengra did not recite the magic word "unconstitutional," he unequivocally
asserted the constitutional right of privacy in the face of the above statute which abrogates
any such right without even a pretense of balancing the competing interests. This Court
ignores the obvious when it suggests that the District Court was not clearly presented with
the issue of whether the statute is constitutional.
¶33 Furthermore, in his opening brief on appeal, Pengra argues:
By not going to jury trial and receiving a public verdict these people protected their
privacy as many citizens do under similar circumstances. At the time they entered the
settlement negotiations or at the time they filed suit for the minor child and the father they
presumably knew not only about the statutory requirement of disclosure. They also
reasonably knew constitutional and statutory rights, including their important right to
pursuing [sic] and that where a statute is unconstitutional on its face or as applied they
can be protected. [Emphasis added.]
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¶34 It is beyond me how a court, confronted with one litigant asserting a constitutional
privacy interest in a document, opposed by another litigant relying on a statute which
purports to defeat that right of privacy can conclude that the constitutionality of the statute
is somehow not at issue. Although the matter could have been more forcefully pleaded, the
constitutionality of § 2-9-303, MCA, was clearly the crux of this dispute from the
beginning.
¶35 Having turned a blind eye to the facial challenge to the statute, the Court then goes on
to address the "as-applied" challenge to § 2-9-303, MCA. The Court cites our decision in
Missoulian v. Board of Regents (1984), 207 Mont. 513, 675 P.2d 962, for the analysis to
be employed when addressing conflicts between the Article II, Section 9, right to know,
and the Article II, Section 10, right of privacy. In Missoulian, we enunciated a two-step
process. First, it must be determined whether the person claiming the right of privacy has a
subjective expectation of privacy and if so, whether society is willing to recognize that
expectation as reasonable. Missoulian, 207 Mont. at 522, 675 P.2d at 967 (citation
omitted). If both of these prerequisites are met, then the court must engage in a balancing
test to determine whether the privacy interest exceeds the merits of the public disclosure.
Having properly stated the test, the Court then "proceed[s] to weigh the Pengras' rights to
privacy, insofar as they are recognized by society, against the public's right to know the
terms of the settlement agreement."
¶36 The obvious flaw in the Court's "weighing" of the competing interests in the present
case is that the statute in question forecloses any weighing process. Section -303 does not
state that settlement agreements with the State are public documents if the interests of
privacy outweigh public disclosure. Rather, it establishes an absolute rule: all terms and
details of settlement with the State "are public records available for public inspection."
The traditional balancing test has been preempted by a legislative enactment under which
the right to know absolutely trumps the right of privacy.
¶37 Given the absolute statutory preference accorded the right to know, the Court's
discussion as to the inadequacy of the factual record to support Pengra's claim to a
subjective expectation of privacy is completely superfluous. If Pengra had produced
fifteen witnesses with five days of testimony about his expectation of privacy it would
make no difference. Under § -303 the settlement documents would be public documents
irrespective of what the record demonstrates regarding Pengra's subjective expectation of
privacy. The Court's faulting of Pengra for not timely filing the Emerson affidavit as part
of the record and for not taking other steps to keep the lawsuit private is a complete red
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herring. These so-called deficiencies have no relevancy to the analysis of § -303 and merit
no further discussion.
¶38 The fact that § -303 preempts any "balancing" of competing interests proves the very
point that the Court has conveniently side-stepped. That is, that the statute is not just
unconstitutional as applied. It is unconstitutional on its face. It gives an absolute
preference to one constitutional guarantee, the right to know, to the exclusion of another,
the right of privacy. A legislative enactment which elevates the right to know to an
absolute rule without any consideration of the individual's right of privacy cannot pass
constitutional muster.
The Missoulian Analysis is Self-Defeating when applied to a Legislative Preference:
¶39 Even assuming arguendo that § -303 allowed for a balancing of interests, it makes no
sense whatsoever to apply the two-part Missoulian construct to a legislative enactment
which elevates one right over the other in an absolute manner. The media argues, and the
Court agrees, that, in the face of the legislative enactment, the Pengras along with the rest
of the public were on notice that settlements with the State are public. Thus, this Court
holds there could be no subjective expectation of privacy. Why it is that the public's
subjective expectation is defined by the legislative notice of § -303 to the exclusion of the
superior constitutional notice of Article II, Section 10's right of privacy remains a mystery.
¶40 As to the second Missoulian inquiry: whether society is willing to recognize the
Pengras' privacy right, the media argues that, in adopting § -303, the legislature has
spoken and plainly foreclosed any argument that society would recognize a right of
privacy in a settlement with the State. Unfortunately the Court buys into this argument
without considering the implications of its decision. Under the Court's present logic, the
legislature can, by passing a statute, defeat both any subjective expectation of privacy and
any contention that society would recognize as reasonable an expectation of privacy.
Having negated both these propositions in one fell blow, the legislature has obviated any
need for a judicial weighing of the competing interests under the Missoulian analysis.
Under this Court's reasoning, the mere fact of enactment completes the constitutional
analysis so that once the legislature speaks, the courts no longer have any role in
scrutinizing whether the enactment comports with the Constitution.
¶41 In short, the Court has handed the Article II, Section 10, right of privacy to the
legislature on a silver platter and said do with it what you will, it's in your hands. If, in its
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wisdom, the legislature next passes a statute which says that all medical and tax records of
litigants in the State court system are public records available for public inspection, so be
it. In the face of such a statute, an individual could not expect privacy nor would society
recognize as reasonable such an expectation. In the final analysis, the courts are rendered
helpless bystanders, powerless to require any deference to the individual right of privacy
as envisioned by the framers of the Constitution.
¶42 I continue to value the public's right to know and recognize that there will be instances
where that right will conflict with the right of privacy. I cannot, however, accept the
Orwellian proposition that the legislature can, with no judicial balancing of the competing
interests allowed, subordinate the rights of individuals to the rights of the public.
¶43 I would hold that § 2-9-303, MCA, is unconstitutional on its face in that it creates an
absolute preference for the right to know without any consideration whatsoever for the
Pengras' constitutional right of privacy. Tiffany Pengra's loss of her mother is a personal
tragedy of the highest order. That she is deemed to have waived her right of privacy if she
seeks recompense for that loss is a constitutional tragedy.
/S/ W. WILLIAM LEAPHART
Justice Terry N. Trieweiler and Justice William E. Hunt, Sr., join in the foregoing
dissenting opinion.
/S/ TERRY N. TRIEWEILER
/S/ WILLIAM E. HUNT, SR.
Justice James C. Nelson specially concurs.
1. ¶I concur in our discussion and resolution of Issue 2. As to Issue 1, I concur in the
result, and I also concur in the "balancing" approach which the Court takes in
resolving this issue in this case.
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2. ¶Having said that, I also agree with the observation of the dissent. The plain
language of § 2-9-303(2), MCA, precludes the very sort of balancing that the trial
court and this Court use to resolve Issue 1. The statutory language is mandatory. All
settlements with the State are public documents. End of story. There is no ability
under this statute, as presently written, for judicial balancing of the constitutional
right of individual privacy guaranteed under Article II, Section 10, and the public's
right to know guaranteed under Article II, Section 9,--keeping in mind that the one
constitutional limitation of the public's right to know is a demonstrated overarching
right of individual privacy in the documents or deliberations for which access or
disclosure are sought.
3. ¶I part company with the dissenting Justices, however, in their conclusion that this
case should be resolved on the basis of their constitutional argument. While the
dissent makes the argument that Pengra should have made, the fact of the matter is
that was not Pengra's argument to the trial court nor was that his argument on appeal.
4. ¶In fact, a review of the record and Pengra's briefs on appeal show that he argued
for the balancing approach which this Court uses to resolve Issue 1--albeit that he
argued for the opposite result than the one we reach. It is not until page 5 of his 8-
page reply brief that Pengra raises the argument that § 2-9-303(2), MCA, may be
unconstitutional. Even then, the two sentences he devotes to this raise an "as
applied" challenge, rather than the "facial" challenge which, as the dissent correctly
points out, is the true problem. Specifically, Pengra states that he is "not asking the
Court to insert any provision into MONT. CODE ANN. § 2-9-303(2). Rather, they
are requesting this Court to rule that the law is unconstitutional as applied to the
facts and circumstances of this case."
5. ¶In summary, I concur in the balancing approach and disposition of Issue 1 because
that was the way it was presented and argued to the trial court and to this Court by
Pengra. As to whether § 2-9-303(2), MCA, is facially unconstitutional as presently
written, that will have to be addressed in a future challenge, absent the Legislature
amending the statute to allow the sort of balancing of Article II, Section 9, and
Article II, Section 10 rights that, in my view, the Constitution clearly requires.
6. ¶On this basis I concur with the Court's opinion.
/S/ JAMES C. NELSON
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Justice Jim Regnier concurs in the foregoing special concurrence.
/S/ JIM REGNIER
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