Maday v. Township High School District 211, 2018 IL App (1st) 180294
Docket No. 1-18-0294
Appellate Court of Illinois, First District, Fifth Division
November 30, 2018
2018 IL App (1st) 180294
Illinois Official Reports
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 17-CH-15791; the Hon. Thomas R. Allen, Judge, presiding.
Judgment: Appeal dismissed.
Counsel on Appeal: John Knight and Ghirlandi Guidetti, of Roger Baldwin Foundation of ACLU, Inc., Neil Lloyd, Meredith DeCarlo, and Carly E. Weiss, of Schiff Hardin LLP, and Jeffrey H. Bergman, of Mandell Menkes LLC, all of Chicago, for appellant.
Sally J. Scott, Michael A. Warner Jr., and Jennifer A. Smith, of Franczek Radelet PC, of Chicago, for appellee.
Thomas Brejcha and Thomas Olp, of Thomas More Society, of Chicago, for intervenor-appellee.
Julia R. Lissner, Gregory A. Kubly, and Stacey L. Callaghan, of Akerman LLP, of Chicago, for amicus curiae Illinois Safe Schools Alliance.
Robert R. Stauffer, of Jenner & Block LLP, of Chicago, for amici curiae American Medical Association et al.
Sharee S. Langenstein, of Murphysboro, and Gerard V. Bradley (pro hac vice), of Notre Dame Law School, of Notre Dame, Indiana, for amici curiae Paul R. McHugh, M.D., et al.
Vincent Auricchio, of Chicago, and Kara Dansky, of Washington, D.C., for amicus curiae Women‘s Liberation Front.
Panel: JUSTICE HALL delivered the judgment of the court. Presiding Justice Rochford specially concurred, with opinion. Justice Reyes specially concurred, with opinion.
OPINION
¶ 1 In this interlocutory appeal, plaintiff Nova Maday appeals from a January 25, 2018, order of the circuit court of Cook County, which denied her motion for a preliminary injunction. The initial question we must address in this appeal is whether plaintiff‘s interlocutory appeal from the denial of her preliminary injunction motion, seeking her unrestricted use of the girls’ locker room for her last semester of high school, is moot as plaintiff graduated from high school on May 20, 2018. We find that it is and dismiss the appeal. At the outset, we find it necessary to note that the parties ignored the scope of an interlocutory appeal from the denial of a preliminary injunction motion with their pleadings before this court and attempted instead to have this court render a decision on the merits.
¶ 2 I. BACKGROUND
¶ 3 A. Federal Litigation
¶ 4 Since 2013, Township High School District 211 (the district) has been involved in federal litigation relating to transgender student locker room use. Initially, the Office of Civil Rights for the U.S. Department of Education (Office of Civil Rights) alleged that the district discriminated against a transgender high school student by denying her access to the girls’
¶ 5 On May 4, 2016, a group called Students and Parents for Privacy (SPP), who represented 50 of the district‘s families, filed a complaint in federal court, arguing that the Resolution Agreement (and corresponding restroom and locker room access) violated female students’ right to privacy and created a hostile environment. Students & Parents for Privacy v. United States Department of Education, No. 16-cv-4945, 2016 WL 6134121 (N.D. Ill. Oct. 18, 2016). They sought a preliminary injunction to deny access to transgender students, which the district court denied in December 2017, relying in part on the privacy protections in place for students in the locker rooms. The case remains pending in the United States District Court for the Northern District of Illinois.
¶ 6 B. Plaintiff‘s Human Rights Charge
¶ 7 On September 8, 2016, while plaintiff was still a minor, her mother filed a charge on her behalf against the district with the Illinois Department of Human Rights (IDHR), alleging unlawful discrimination in violation of the Illinois Human Rights Act (Act)
¶ 8 C. Plaintiff‘s Senior Year
¶ 9 On July 24, 2017, just prior to plaintiff‘s senior year of high school at Palatine High School, she indicated to her school support team2 (the team) that she planned to enroll in Adventure Education as her physical education (P.E.) course for her senior year. Adventure Education‘s curriculum included a swimming component, and students were required to change into swimsuits. The district offered plaintiff use of the girls’ locker room if she agreed to change her clothes in a changing stall within the locker room. The changing stalls were located within the girls’ locker room near the student lockers and “open” changing areas. Other students regularly used the changing stalls to change clothes. The girls’ locker room also had a curtained shower area that provided privacy for showering. According to the district, plaintiff would have had full access to the locker room with her peers, an assigned locker, and full use of the other amenities such as sinks, mirrors, hair dryers, and electrical outlets. She would not have been individually monitored and could have used the locker rooms “openly,” as several other transgender students did within the district. However, plaintiff‘s mother declined to agree that plaintiff would change clothes within a stall and asked that plaintiff be excused from P.E. as she was the previous year. The team agreed to grant plaintiff a P.E. waiver for her senior year.
¶ 11 Plaintiff, after reaching 18 years of age, filed a complaint in the circuit court of Cook County, seeking injunctive and other relief against the district. Plaintiff alleged that the district violated the Act (
¶ 12 E. Plaintiff‘s Preliminary Injunction Motion
¶ 13 On December 13, 2017, plaintiff filed a motion for preliminary injunction, seeking to enjoin the district from denying her unrestricted use of the girls’ locker room to change for P.E. class during her last semester of high school solely on the basis of her transgender identity, in violation of
¶ 14 The district‘s brief in response to plaintiff‘s motion for preliminary injunction was filed under seal in the circuit court on January 8, 2018. A redacted version of the district‘s response was included with the record on this appeal.5
¶ 15 In its response, the district asserted that, as part of its role in providing an environment conducive to learning for all of its 12,000 students, it balances appropriate facility access for transgender students with privacy safeguards for all students. The district further asserted that plaintiff was asking the circuit court to disrupt the careful balance and enter a preliminary injunction that was without any prior legal precedent in Illinois or elsewhere.
¶ 17 The district further asserted that plaintiff was not entitled to a preliminary injunction because she could not satisfy the standards for a preliminary injunction. First, the district contended that
“A place of public accommodation: To deny or refuse the full and equal enjoyment of facilities, goods and services.
***
A place of education: To refuse to enroll, allow access to facilities, goods or services; or engage in or fail to take corrective action to stop severe or pervasive harassment.” Public Accommodations Charge Information, Ill. Dep‘t of Human Rights, https://www2.illinois.gov/dhr/filingacharge/pages/public_accommodations.aspx (last visited Nov. 26, 2018) [https://perma.cc/NY4B-JRLV].
The district maintained that the IDHR clearly recognizes that a place of public accommodation and a place of education have differing obligations regarding access to facilities. To the extent that plaintiff had a clearly ascertainable right, the district asserted that it was simply access to the locker room.
¶ 18 Moreover, the district contended that plaintiff was not likely to succeed on the merits because she was not denied access to the locker room and noted the IDHR‘s finding of the lack of substantial evidence because “[its] investigation did not show, nor did [plaintiff] provide, evidence that [the district] engaged in unlawful discrimination when it provided [plaintiff] with alternative locations to change for P.E. instead of the girls’ locker room.”
¶ 19 The district concluded that if providing alternative locations to change for P.E. did not violate plaintiff‘s right to access facilities, then providing access to the locker room with the condition that she use a private changing area to change clothes certainly did not violate her right to access facilities. The district also asserted that plaintiff failed to allege facts constituting irreparable injury and instead relied on the affidavit of Dr. Ettner. The district‘s expert witness, Dr. Beth Rom Rymner,6 explained that Dr. Ettner made “no case” for her conclusion that any anxiety and depression suffered by plaintiff was the result of the district telling her that she must change in private to use the girls’ locker room.
¶ 21 On January 10, 2018, SPP filed a verified emergency petition for leave to intervene as of right or, alternatively, by permission in the pending litigation between plaintiff and the district. SPP, represented to the circuit court that it “exist[ed] to advocate for and defend the privacy interests of its student members, particularly with regard to District 211‘s communal privacy facilities, including restrooms, locker rooms, shower rooms, overnight accommodations on school-sponsored trips, and other similar facilities that are lawfully reserved for members of one sex to ensure their bodily privacy while changing clothes or attending to personal hygiene.”
¶ 22 According to its petition, SPP maintained that its student members objected to sharing privacy facilities with a student of the opposite sex, regardless of that student‘s state of mind regarding his or her sex. SPP asserted that its application was timely, as it was filed just six weeks after the initial filing of the case and prior to any substantive rulings by the circuit court. SPP also maintained that its interest in protecting its members’ privacy was distinct from both plaintiff‘s and the district‘s, and that there was no commonality of legal and factual positions between the plaintiff, the district, and SPP regarding the appropriate treatment for gender dysphoria as a matter of public policy. The circuit court granted SPP‘s application to intervene as a defendant on January 17, 2018.7
¶ 23 In its response to plaintiff‘s motion for preliminary injunction, SPP contended that plaintiff‘s asserted right was not clearly ascertainable because it failed to account for the Act‘s explicit exemption for single-sex privacy facilities in
¶ 24 SPP further asserted that plaintiff failed to demonstrate a likelihood of success on the merits, as confirmed by the IDHR‘s dismissal of her claim for lack of substantial evidence. SPP maintained that consideration of the status quo favored rejection of plaintiff‘s motion for preliminary injunction because it sought to change the status quo in her favor, and no
¶ 25 Relying on Kurle v. Evangelical Hospital Ass‘n, 89 Ill. App. 3d 45, 48 (1980), SPP also argued that plaintiff could not rely on extrinsic evidence, namely her affidavit and Dr. Ettner‘s affidavit, to obtain a preliminary injunction before the filing of an answer.
¶ 26 Finally, SPP asserted that the balance of hardships did not favor issuance of a preliminary injunction because minor students’ rights of bodily privacy were placed at risk by plaintiff‘s request for unfettered access to the district‘s girls’ locker rooms, which SPP believed were explicitly guaranteed by the Act‘s exemption for privacy facilities in
¶ 27 F. Preliminary Injunction Hearing
¶ 28 The circuit court held a hearing on plaintiff‘s motion for preliminary injunction on January 19, 2018.
¶ 29 Plaintiff argued during the hearing that she was an 18-year-old senior, who wanted to use the gym and be treated no differently than other girls with respect to the use of the locker room. She specifically stated that the question for consideration was “whether she could be granted use of the locker room for this last semester without restricting her use of it in a way that no other girl is restricted.” She reiterated that she would change modestly, and characterized the district‘s position that schools have a lesser standard as a place of public accommodation as “absurd.” Plaintiff‘s other arguments were as stated in her motion for preliminary injunction.
¶ 30 The district contended that plaintiff‘s arguments on her motion for preliminary injunction—namely, that she was irreparably injured because she was not given unrestricted access to the locker room and that she would change modestly—were different than the arguments raised in the complaint. The district asserted that there was a difference between unrestricted access, which would not require her or any other transgender student to change modestly, and a request to change in private because if the request was for the latter, there would be no case.
¶ 31 The district further reminded the court that it was currently involved in federal court litigation initiated by SPP, but also involving the American Civil Liberties Union (ACLU),8 on the issue of whether transgender students were entitled to any access at all to the restrooms and locker rooms that conform with their gender identity, and the present litigation, in which a transgender student challenged the extent of access. The district also noted that plaintiff, who identified as female, was anatomically male; she had access to female bathrooms because there were privacy stalls in the bathrooms; she was called by her preferred name and pronoun, and such status was reflected on her school records; and she was not enrolled in P.E. during her junior or senior year, but was instead taking classes of her choosing.
¶ 32 The district apprised the court that the conditioned access offered plaintiff was exactly the same agreement that was struck with the Office of Civil Rights regarding another transgender8
¶ 33 SPP argued that the exemption for privacy facilities in the Act was not based on gender or gender identity, as asserted by plaintiff, but was instead based on sex. As stated in its response to plaintiff‘s motion for preliminary injunction, SPP maintained that the district had gone too far and given too much access. SPP then restated the remaining arguments made in its response to the motion.
¶ 34 At this juncture in the proceedings, the circuit court inquired of the parties’ counsel whether the fact that plaintiff was anatomically male had any relevance to the case. Plaintiff responded that it had zero relevance because the Act does not distinguish or differentiate on those lines; the district replied that it was a critical factor; and SPP agreed that it was critical.
¶ 35 In ruling on the motion for preliminary injunction, the circuit court recited the history of the Act, and its enactment in 1980. On October 10, 2007, the legislature amended
“Jurisdiction limited. In regard to places of public accommodation defined in paragraph (11) of
Section 5-101 , the jurisdiction of the Department is limited to: (1) the failure to enroll an individual; (2) the denial of access to facilities, goods, or services; or (3) severe or pervasive harassment of an individual when the covered entity fails to take corrective action to stop the severe or pervasive harassment.” Pub. Act 96-814, § 5 (eff. Jan. 1, 2010) (adding775 ILCS 5/5-102.2 ).
The circuit court concluded that the later amendment, which did not include the words “full and equal enjoyment,” only required the “denial of access” to public accommodations as it related to schools, which indicated that the legislature intended for schools to be treated differently from other places of public accommodation under the Act.
¶ 36 The circuit court denied plaintiff‘s motion for preliminary injunction, finding that there was no likelihood of success on the merits based on the plain language of the statute. The court ordered the district and SPP to answer the complaint. At this point in the proceedings, plaintiff‘s counsel told the court that there was also a request for damages based on the previous denial of the use of the facility.
¶ 37 On February 7, 2018, plaintiff filed a Notice of Interlocutory Appeal pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017) (permissive appeal as of right).
¶ 38 II. ANALYSIS
¶ 39 On appeal, plaintiff contends that the Act does not permit the district‘s discriminatory policy and that plaintiff was entitled to a preliminary injunction.
¶ 40 A hearing on a motion for preliminary injunction does not determine any factual issue. Dixon Ass‘n for Retarded Citizens v. Thompson, 91 Ill. 2d 518, 524 (1982). To establish entitlement to preliminary injunctive relief, a plaintiff must show (1) a clearly ascertainable right in need of protection, (2) irreparable harm without protection of that right, (3) no
¶ 41 On review of a trial court‘s grant or denial of such relief, the appellate court may not decide controverted questions of fact or the merits of the cause under such circumstances. American National Bank & Trust Co. of Chicago v. Chicago Title & Trust Co., 134 Ill. App. 3d 772, 777 (1985). This court generally reviews a trial court‘s grant or denial of a preliminary injunction for an abuse of discretion. Clinton Landfill, Inc. v. Mahomet Valley Water Authority, 406 Ill. App. 3d 374, 378 (2010).
¶ 42 A. Mootness
¶ 43 Both the district and SPP contend that plaintiff‘s claim that she was entitled to a preliminary injunction is moot because she graduated from high school on May 20, 2018.
¶ 44 The question of whether a case should be dismissed as moot is one of law and our review is de novo. In re Alfred H.H., 233 Ill. 2d 345, 350 (2009).
¶ 45 A case must remain a legal controversy from the time it is filed in the appellate court until the moment of disposition. Davis v. City of Country Club Hills, 2013 IL App (1st) 123634, ¶ 10. “The existence of an actual controversy is an essential requisite to appellate jurisdiction, and courts of review will generally not decide abstract, hypothetical, or moot questions.” Davis, 2013 IL App (1st) 123634, ¶ 10 (quoting In re Marriage of Nienhouse, 355 Ill. App. 3d 146, 149 (2004)); see also Schnepper v. American Information Technologies, Inc., 136 Ill. App. 3d 678, 680 (1985).
¶ 46 It is well established that a case may become moot when, pending the decision on appeal, events occur which render it impossible for the reviewing court to grant effectual relief. Mount Carmel High School v. Illinois High School Ass‘n, 279 Ill. App. 3d 122, 124-25 (1996). Even if the case is pending on appeal when the events that render an issue moot occur, as a reviewing court, we generally will not issue an advisory opinion. Davis, 2013 IL App (1st) 123634, ¶ 10. This court will not review cases merely to establish a precedent or guide future litigation (Madison Park Bank v. Zagel, 91 Ill. 2d 231, 235 (1982)), nor will we consider issues where the result will not be affected regardless of how those issues are decided (Alfred H.H., 233 Ill. 2d at 351). When a decision on the merits would not result in appropriate relief, such a decision will essentially be an advisory opinion. Commonwealth Edison Co. v. Illinois Commerce Comm‘n, 2016 IL 118129, ¶ 10.
¶ 47 Here, in her motion for preliminary injunction, plaintiff sought to enjoin the district from denying her unrestricted use of the girls’ locker room to change for P.E. class during her last semester at Palatine High School, solely on the basis of her transgender identity, in violation of
¶ 49 As such, we conclude that plaintiff‘s appeal from the trial court‘s denial of her preliminary injunction motion is moot. See Hamer v. Board of Education of Township High School District No. 113, 140 Ill. App. 3d 308, 316 (1986) (former high school student‘s claim, challenging grade reduction policy, was moot once she graduated from high school); Myre v. Board of Education of Seneca Township High School District No. 160, 108 Ill. App. 3d 440, 444 (1982) (board‘s appeal from grant of preliminary injunction was moot since student had graduated from high school and an order of this court reversing the trial court‘s order that credit be given for exams would have, at best, only highly speculative consequences, since plaintiff was already in college).
¶ 50 Plaintiff further asserts, however, that her interlocutory appeal is not moot because this court‘s ruling will impact damages. She cites Mohanty v. St. John Heart Clinic, S.C., 225 Ill. 2d 52 (2006), and Travelport, LP v. American Airlines, Inc., 2011 IL App (1st) 111761, in support. However, plaintiff asserts this contention only in one conclusory sentence in her brief and makes no argument in support of it in violation of Illinois Supreme Court Rule 341(h)(7) (eff. Nov. 1, 2017). The reviewing court is entitled to have issues clearly defined with pertinent authority and coherent arguments presented; arguments inadequately presented on appeal are waived. Holmstrom v. Kunis, 221 Ill. App. 3d 317, 325 (1991). Thus, this argument is forfeited. See Walters v. Rodriguez, 2011 IL App (1st) 103488, ¶ 8.
¶ 51 B. Public Interest Exception to Mootness
¶ 52 In the alternative, plaintiff contends that this case may be considered under the public interest exception.
¶ 53 “The public interest exception to the mootness doctrine permits review of an otherwise moot question when the magnitude or immediacy of the interests involved warrants action by the court.” Commonwealth Edison, 2016 IL 118129, ¶ 12. Under the public interest exception to the mootness doctrine, the criteria for application are (1) the existence of a question of a public nature, (2) the desirability of an authoritative determination for the purpose of guiding public officers in the performance of their duties, and (3) the likelihood that the question will recur. Mount Carmel, 279 Ill. App. 3d at 125. The public interest exception is narrowly construed (Alfred H.H., 233 Ill. 2d at 355-56), and a clear showing of each criterion is required to bring a case within the public interest exception (Mount Carmel, 279 Ill. App. 3d at 125-26). Whether a case falls within an established exception to the mootness doctrine is a case-by-case determination. Alfred H.H., 233 Ill. 2d at 353-54.
¶ 55 We first consider whether there has been a clear showing that the question presented is of a public nature. See Alfred H.H., 233 Ill. 2d at 355-56.
¶ 56 The specific question presented in this interlocutory appeal is whether the trial court erred in denying plaintiff‘s motion for preliminary injunction to allow her unrestricted use of the girls’ locker room at Palatine High School during her final semester of high school. Thus, plaintiff‘s motion only sought personal relief and, specifically, only during her last semester of high school, which has since ended.
¶ 57 While plaintiff presents a broad public interest issue in her underlying complaint, the merits of that complaint have not been fully addressed by the trial court. Our decision on the specific issue raised in this interlocutory appeal—namely, whether plaintiff could have unrestricted use of the girls’ locker room during her final semester of high school—does not present the kind of broad public interest issue required to satisfy the first element of the public interest exception for review of the denial of plaintiff‘s preliminary injunction motion. The public nature, if any, of the particular question presented in this appeal ceased to exist with plaintiff‘s graduation, as she is no longer subject to the district‘s policy. Any public nature of the issues raised in the underlying case is irrelevant to the examination of the public nature of the issue presented on this appeal. See Alfred H.H., 233 Ill. 2d at 356. As our supreme court found in Alfred H.H., “it has not been clearly established that this issue is of sufficient breadth, or has significant effect on the public as a whole, so as to satisfy the substantial public nature criterion.” (Internal quotation marks omitted.) Alfred H.H., 233 Ill. 2d at 357.
¶ 58 The second requirement for the public interest exception to the mootness doctrine to apply is that “‘an authoritative determination of the question is desirable for the future guidance of public officers.‘” Commonwealth Edison, 2016 IL 118129, ¶ 15 (quoting In re Shelby R., 2013 IL 114994, ¶ 16). “In deciding the need for an authoritative determination, this court looks to whether the law is in disarray or conflicting precedent exists.” Commonwealth Edison, 2016 IL 118129, ¶ 16. Our supreme court has held that when a case presents an issue of first impression, no conflict or disarray in the law exists. Commonwealth Edison, 2016 IL 118129, ¶ 16.
¶ 59 Here, plaintiff‘s interlocutory appeal concerns a temporary use of the girls’ locker room by plaintiff during her last semester of high school while the underlying case was being decided. Any interpretation of the Act in this interlocutory appeal from the denial of plaintiff‘s preliminary injunction motion would be on an undeveloped record. There is no conflict or disarray in the law, as this is a matter of first impression. Indeed, resolution of plaintiff‘s underlying case on the merits will provide future guidance for public officials, while ruling on the propriety of plaintiff‘s now moot preliminary injunction motion will not. We conclude under these circumstances that the second criterion for application of the public interest exception, that an authoritative determination of the question is desirable for the future guidance of public officers, is not met in this case.
¶ 60 The third requirement for the public interest exception to the mootness doctrine is that the material facts that give rise to plaintiff‘s preliminary injunction motion are likely to recur.
¶ 62 Although not argued in her motion for preliminary injunction, she notes in her reply brief that “there may be dozens of transgender students attending schools in [the district] at any given time” and makes reference to a prior similar dispute between the district and another transgender student.9 While plaintiff‘s assertion may be true, it is speculative that other transgender students in the district would file suit10 and then seek a preliminary injunction based on similar material facts and allegations.
¶ 63 Additionally, the resolution of plaintiff‘s underlying case on the merits will answer the question of how the Act applies to transgender students’ rights concerning school locker rooms. We conclude that plaintiff has not made a clear showing that the material facts are likely to occur in order to satisfy the third criteria for the public interest exception to mootness.
¶ 64 Since plaintiff has failed to meet her burden under the public interest exception to the mootness doctrine, we must dismiss her interlocutory appeal on mootness grounds.
¶ 65 In an interlocutory appeal from the denial of a preliminary injunction motion, we are limited to a determination of the propriety of the court‘s denial of the relief requested. See PCx Corp. v. Ross, 168 Ill. App. 3d 1047, 1056 (1988). Here, the parties focused their arguments in their briefs and during oral arguments on a full determination of the merits of the underlying case and only spoke in passing about the preliminary injunction motion. We make no findings or suggestions as to the merits of the issues in the underlying case, as those have yet to be determined in the trial court proceedings.
¶ 66 III. CONCLUSION
¶ 67 For the foregoing reasons, we dismiss plaintiff‘s interlocutory appeal.
¶ 68 Appeal dismissed.
¶ 69 PRESIDING JUSTICE ROCHFORD, specially concurring:
¶ 70 I write separately to state that our finding—that the specific issues raised in this appeal do not satisfy the public interest exception to the mootness doctrine—does not diminish the importance of the personal interests raised by plaintiff.
¶ 71 I also note that we found this appeal to be moot because plaintiff graduated from Township High School District 211 on May 20, 2018. Plaintiff‘s reply brief was filed shortly before her graduation on May 8, 2018, and, at that point, this appeal was fully briefed and ready for disposition. This court‘s careful consideration of this appeal, therefore, did not result in the matter becoming moot.
¶ 73 While I agree that the matter before us is moot and the public interest exception does not apply, I write separately to emphasize the procedural posture of this case and to state clearly that our decision does not speak to the merits of plaintiff‘s complaint.
¶ 74 This matter is before us on an interlocutory appeal after the trial court denied plaintiff‘s motion for a preliminary injunction. It is well established that the purpose of a preliminary injunction is not to resolve the merits of a case but to preserve the status quo until the merits can be decided. Callis, Papa, Jackstadt & Halloran, P.C. v. Norfolk & Western Ry. Co., 195 Ill. 2d 356, 365 (2001).
¶ 75 In addition, I must disagree with the lead opinion‘s recitation of the facts in this case. I would limit the discussion to those facts that are strictly relevant to the issue of mootness, which is addressed by this court. Furthermore, I disagree with the lead opinion‘s inclusion of the description of plaintiff‘s physicality and find it is irrelevant to the outcome of this appeal.