*1 noted, 18. As the civil division there no was evidence to Floyd’s contradict Mr. explanation of how and when the various of the process transactions securitization took place this case. assertion, therefore, Contrary to defendant’s implied there is no evidence to mortgage note and were assigned some third besides party Fargo.3 Wells Based on the evidence presented, we cannot conclude the court’s finding that Wells Fargo assigned was the note and mortgage clearly was erroneous. Moreover, on court’s finding point, essential to Wells holder, Fargo’s status as a directly supports its conclusion that Wells has Fargo standing to enforce the Wells guaranty. Because Fargo has standing, such final argument defendant’s court jurisdiction lacked over the enforcement action has merit. no
Affirmed.
[
Opinion Filed March argues “undisputed Defendant in his brief that there is evidence that Column original Mortgage transferred the loan documents Bank One Warehouse” on According Floyd’s testimony, November Mr. this transaction was based agreement [Column],” on Company a “custodial between Bank One Trust Mortgage under which Bank One Warehouse would “hold documents for division, however, interpreted [Column].” civil this as evidence entity “physical possession “irrelevant” of which issue had documents custody agreement inception undisputed accord with a at the It loan.” possessed Fargo originals that Wells loan documents trial. That Bank Mortgage played keeper One Warehouse a role as of the loan documents early in process right Fargo’s the securitization no doubt casts on Wells to enforce guaranty specter party and raises no of some unknown third with substantive rights mortgage. to the note and *3 General, and Sorrell, Attorney Doyle William H. Ultan Tartter, General, for Montpelier, Attorneys David Assistant Plaintiff-Appellee. Associates, PLC, Law Essex Maguire
Joshua S. O’Hara Junction, Defendant-Appellant. for Johnson, for a sex Following 1. J. defendant’s conviction division,
offense, court, criminal State’s superior granted motion defendant submit compel 3256, of 13 authority under V.S.A. transmitted diseases require testing. not cause or warrant probable which does unconstitutional argues defendant that the statute is appeal, On law any need enforce- special because it does serve ment of the normal justifying probable-cause abandonment if because, even need warrant such requirements do goals advanced the statute present, governmental were constitutionally privacy interests. We outweigh protected his testing, but we compelling affirm trial court’s order restricting court issue order remand the matter for the victim’s disclosure of the test results. 2009, defendant was convicted lewd 2. In November conduct, as the result of in violation 13 V.S.A.
lascivious the victim had sexual intercourse with having his nonconsensual In March behest on October public place *4 3256, the moved by § State for of the victim as authorized sexually for to order defendant to submit trial court involving for a crime on his conviction transmitted diseases based victim to the exposing a risk act that created sexual (AIDS). deficiency syndrome for immune etiologic acquired agent
[315] ¶ 3. trial Upon completion nonevidentiary hearing, of a brief court concluding compelled issued order that it was to grant 3256, the State’s motion under it been though nearly even had occurred, three since the that years assault and the statute was constitutional. The purpose court stated that obvious “[t]he statute is to enable the victim criminal sexual act been, be, he determine if or she has or will by further victimized contracting AIDS or other sexually transmitted diseases.” Accord- court, ing “[s]uch information would enable victim to address his or her physical meaningful and medical condition in a way.” Regarding privacy rights, defendant’s court noted that test any against results could not be used defendant criminal that, if proceedings the test results were positive, the victim right had discuss her physical and medical condition with friends, medical providers, family, potential partners. intimate ¶ 4. Accordingly, court ordered that defendant submit diseases, for AIDS other transmitted that be only victim, results disclosed to defendant and the that the test results and the record the court proceedings sealed. The court also that noted either the victim the State behalf the victim could seek a civil if contempt order defendant refused to comply with the testing. court-ordered
¶ 5. appeal, On argues defendant the trial by court erred concluding the purposes underlying 3256 represented spe- cial needs sufficient to abandon the warrant and probable-cause requirements Constitution, under Article Eleven of the Vermont that, and further even if the represented statute such special needs, those needs did not constitutionally overcome his protected privacy rights.
¶ 6. Article Eleven is in this implicated case because taking of a blood sample unquestionably or cheek swab is a search Ry. Skinner v. Labor triggers constitutional See protections. Ass’n, (1989) Executives’ 489 (recognizing U.S. 616 taking sample drug blood alcohol or screening is search under State v. Amendment); Fourth VT A.2d (holding “that DNA sampling, blood draw or swab, cheek is subject protections”); constitutional (N.J. 1997) (“That A.2d blood is a search within the of the Fourth meaning Amendment I, uncontroverted.”). Eleven, Paragraph and Article 7 is Article *5 316 Amendment, absolute contemplate
like the Fourth “does not seizures, or but circumstances prohibition on warrantless searches are must permitted which searches or seizures under warrantless 70, 78-79, Welch, v. 160 jealously carefully drawn.” State Vt. (1992). 1105, 624 1110 A.2d end, adopted part has as its Toward Court jurisprudence, Eleven in the context of administrative
Article searches, standard of review set forth “special needs” in in v. 480 Ortega, Justice Blackman his dissent O’Connor U.S. 118, (1987). Berard, 310-11, 306, 709 v. A.2d See State 154 Vt. 576 (1990) 120-21 to review random (adopting “special needs” standard cells); Martin, 2008 warrantless of inmates’ see also VT searches ¶¶ 53, 15-35 needs” standard in context of (applying “special constitutionality of statute nonviolent challenge compelling federal to submit DNA for inclusion in state and samples felons databases). jurisdictions applied DNA other Similarly, special-needs analysis reviewing challenges in constitutional at testing, sex offenders to submit compelling statutes victim, See, e.g., of the transmitted diseases. request (3d 1997) 335, Ward, 131 United States v. F.3d 341-42 Cir. challenge (applying special-needs rejecting test constitutional victims obtain of sexual testing federal statute allowing Court, 488, P.2d v. 930 perpetrators); Superior assault State 1996) (Ariz. test App. special-needs up 493-94 (applying Ct. allowing crime holding constitutionality of state statute sexual perpetrators); victims to obtain HIV (same); 316-17 Houey, A.2d at 1265-71 651 S.E.2d State (S.C. 2007) (same). Berard, we will abandon adopted 8. Under standard only excep warrant under requirements probable-cause special
tional circumstances when State demonstrates those requirements normal law enforcement make needs outweigh countervailing special and those needs impracticable 310-11, at 120-21. It is the at 576 A.2d privacy interests. burden, then, needs special to show both that there State’s and that making impracticable law warrants outside enforcement which countervailing privacy rights upon outweigh any those needs id. the State to “Requiring search intrudes. warrantless See warrantless, it has needs demonstrate on the nature ‘focuses attention search seizure suspicionless courts, and extent those needs and allows the traditional protectors rights, pursue necessary [Article Eleven] in a manner balancing calculated to interfere least with ” rights.’ of those preservation (quoting VT 121). Berard, 154 Vt. 576 A.2d at ¶ 9. perpetrator Section addresses both the and the victim of support unlawful sexual conduct. The dealing sections with the subject victim are uncontroversial and are not the of this appeal. Upon request of the victim “at any time after the commission act,” of a crime involving a sexual the state “shall” to the services, victim various including regarding human “counseling *6 (HIV),” immunodeficiency virus confidential testing “for HIV and diseases,” other sexually-transmitted counseling “the regarding of accuracy and of testing, the risk and transmitting HIV other sexually-transmitted diseases to the victim as the of result act,” the crime involving treatment, a sexual and “prophylaxis crisis and counseling, § 13 3256(g). services.” V.S.A. state is also required “sexual assault cross-training between sexual assault programs and HIV AIDS service 3256(i). organizations.” § Id.
¶ 10.
At issue
appeal
this
first
six subsections of the
statute that concern the testing of convicted sex offenders. The
victim aof
sexual act “which creates a risk of transmission of the
etiologic agent for AIDS”
obtain an
order
requiring
perpetrator
“convicted”
offense based
that act
tested for AIDS and other sexually transmitted diseases. Id.
3256(a)-(b).
§
If the court determines that the offender has been
victim,
convicted
a crime
a
involving
sexual act with the
statute,
3256(b)(1), 3251(1)
§§
defined in the
(defining
id.
“sexual
act”), “the court shall
administered,”
order the test
to be
id.
3256(c).
§
“The results
only
offender’s test shall be disclosed
victim,”
3256(d),
§
to the offender
id.
and the
and the test results
sealed,”
3256(j).
§
record of the court
“shall be
proceedings
id.
¶ 11. Defendant first
that
trial
argues
court erred
3256(a)-(f)
concluding
serves
law
needs
enforcement sufficient to
of our normal
justify
abandonment
probable-cause and warrant
As
requirements.
disagree.
We
courts
jurisdictions
in other
have uniformly
examining
held in
similar
statutes,
such as
statutes
these are directed at
health
public
matters,
enforcement,
part
satisfy
not law
therefore
first
Adams,
See,
e.g., People
special-needs
standard.
1992)
(Ill.
(“The
designed
statute
N.E.2d
goal,
ordinary
a
rather than the
needs
serve
health
public
enforcement.”);
J.G.,
(stating
law
In re
¶ Moreover, have recognized imposing the courts also im- requirements entirely and warrant would be probable-cause many sexually in this context because transmitted practicable diseases, virus, no most AIDS outward particularly that would determination permit probable-cause manifestations (finding a warrant. In re 701 A.2d at obtaining See be- suspicion requirements impractical warrant and individualized infec- have no outward manifestations of cause sexual offenders Juveniles, (same); tion); 847 P.2d at 317 Houey, S.E.2d (same). Hence, cause and warrant requiring probable at 459-60 of sex effectively preclude for such searches would *7 J.G., 701 at See In re A.2d negate offenders and thus the statute. suspicion before (“Requiring probable cause individualized 1267 proverbial could be conducted would create the Catch-22 behind the search.” governmental purpose frustrate the would omitted)). (quotations
¶ in Martin is not contends that our decision 13. Defendant regime upheld under controlling here because the DNA-collection rather than targeted in that case all felons special-needs view, § 3256 targets particu- In individuals. defendant’s particular subject be normal lar therefore must individuals and argument find this requirements. and warrant We probable-cause category of a permit Both statutes unpersuasive. On this Martin is point, offender status. based their persons instant case. distinguishable from the
319
Having
14.
determined that
addresses
needs
enforcement,
law
beyond normal
we must
in a context-
engage
in which we
specific inquiry
balance “the
competing public
at
private
interests
Specifically,
stake.”
VT
21.
we must balance the governmental interests forwarded
by
against
privacy
interests invaded
the statute. We first
examine the privacy interests at stake here
are more
they
because
outset,
At
straightforward.
recognize
we
the statute’s
targeted class
convicted sex offenders
has
dimin
greatly
interests,
privacy
ished
particularly with
respect
precluding
testing of bodily fluids forced upon their victims in criminal sexual
(“For
Juveniles,
acts. See In re
information obtained as
result
positive
of a
HIV test
may
a devastating impact on individuals who
prefer
would
know
their true
“persons
status” and that
with
are
stigma
AIDS
often
subject
Adams,
tized and
to social disapproval.”
at
N.E.2d
582-83; Roberts,
governmental
testing
interest
On
testing
How does the
of sex
begs
questions.
statute
several
the
in
conviction contribute to
state’s interest
following
offenders
and,
the
the
victims
specifically,
well-being
health
more
public
is
nexus between
offenders
of sex crimes?
the
What
to victims
providing
conviction and
relevant
information
following
transmitted
infectious
contracting sexually
about
risk of
their
apparently
conviction
offenders after
diseases? Given
when a
trans-
any
would not
information
of the sex
timing
mitted disease was contracted relative to
convicted, how
they
offense
which
were
does
health interest?
further
the state’s
these
addressed at
non
questions
18. None of
was
evidence,
expert
trial court.1 No
evidentiary
before the
hearing
otherwise,
regarding
efficacy
either
presented by
party
was
presump
Apparently,
questions
avoid these
based on the
the dissent would also
dissent,
According
legislative
to the
health
tion that
acts are constitutional.
expert analysis,
provision
require
and do not
and our
benefits of the
are obvious
history
governmental
legislative
to better understand
claimed
examination of
“improperly expands
in conflict
the exercise of
interests in this ease
our role
with
review,”
legislative
process,” goes
limits
and “wars with the
“the
of our
¶¶
Post,
contrary,
position
27,
clear
of the law.”
29. To
dissent’s
intent
alleged
reviewing
judicial
to be
violation
with our
role in
statutes
inconsistent
presumption
validity
give
rights.
that we
constitutional
of individual
responsibility
legislative
require
to examine
does
us to “abdicate our
acts
ultimately
meaning.”
disputed
In re
independently
determine its
statute
(mem.).
Fuels,
613,
MacIntyre
Inc.,
or causal with respect nexus offenders furthering presumed state’s the health of the victims of protecting sex crimes. The trial court concluded that there was no need *9 an or evidentiary hearing because the victim’s to findings right know “whether is a sexually there dormant transmitted any privacy” disease claim of trumps According defendant. to Martin, court, in given the our holding defendant’s constitutional claim “doesn’t even rise to the level of from the argument Court’s perspective.”
¶ 19. Because this case
from
presents a different context
Martin, and because
in
nothing
the record informs the balancing
Martin,
test we must perform under
we examined
legislative
history
out,
of the bill enacted as
3256.2 As it turns
of
part
§ 3256 mandating the
of sex
testing
offenders was a controversial
that had
in
proposition
been introduced
various bills and debated
and
in
negotiated
over
legislative committees
several
legislative
law,
year
sessions.
the bill finally became
witnesses
Committees,
before the House and
Judiciary
Senate
a
including
diseases,
medical doctor specializing in infectious
testified that
testing sex offenders
following conviction offered no medical
benefit for victims because health care issues need to
ad-
”
need,’
‘special
engages
but rather
in close review of scheme and considers “all the
primary
available evidence
to
purpose”).
in order
determine the relevant
special-needs analysis compels
competing
Our
us to balance the
and
¶
private
stake,
53, 21, which,
turn, necessarily
interests at
2008 VT
in
requires
strength
alleged governmental
tous
consider the
of the
interests. In the
any
assisting
regard,
responsibility
absence
in
record
that
us
we have a
legislative history
challenged
examine the
statute to better understand those
¶
Dep’t Bldgs.
Servs.,
interests. See In
&
Gen.
VT
176 Vt.
(noting
frequently
upon legislative history
¶21. the of both House testimony, Faced with this the chairs apparent the lack Judiciary acknowledged Committees offenders, that testing explained but medical usefulness $175,000 roughly to receive eligible State of would be Vermont for counseling fund per year grants testing in federal § 3256 part as forth in the second sexual assault victims set This required testing perpetrators. unless statute driving incorporating be force behind principal appears upon testing of sex offenders compelling 3256 the sections request of the victim. sole funding governmental federal were the retaining If statute, then portion challenged supporting would suspect would be because there constitutionality of law on even the diminished the law’s intrusion be no nexus between from that here and the information obtained privacy interest case, intrusion. That is not the however. There was additional testimony before the testing committees in offenders unrelated to preserving grant money. federal The direc- tor of Crime Victim Services testified that sexual assault victims do not necessarily consider the issue of testing offenders in way logical perceived by recognizing nonvictims. While that is only way victims definitively determine whether disease, they have contracted an infectious sexual and in particular virus, explained AIDS director that peace victims want the of mind that would result from also perpetrator and they that feel further violated if their attacker refuses to submit to the testing bodily fluids forced them upon during a sexual assault.
¶ 23. Courts have also recognized the psychological benefit for
having
victims of
the perpetrator
tested even if such
testing, as
matter,
practical
provides little or no useful medical information to
Ward,
the victim. See
¶ 24.
hardly
We concur. One
need document the obvious trauma
suffering
endured
victims of sexual assault. See State v.
Bunner,
(Neb. 1990)
453 N.W.2d
101-03
(quoting several law
review
detailing
articles
psychological trauma common
rape
*11
victims and concluding “it
all too
that
is
evident
one need not be
in
specially trained
medicine or
psychology
recognize and
appreciate
injury
from a forceful sexual intrusion
anoth
into
er’s
of
body and invasion
very personality
the mind and
of another
Indeed,
human being”).
of
the nature
a sexual assault furnishes “a
a judicial
basis for
determination that
sexual assault victim
personal
serious
in
injury
sustain[s]
the form extreme mental
omitted).
anguish or mental trauma.” Id.
(quotations
at 103
¶25.
by
further exacerbated
When that
trauma is
transmit
contracting
sexually
legitimate
life-threatening
fear
disease,
have
tested to
perpetrator
the desire of victims to
ted
Therefore,
and real.
allay
entirely
their fears is
understandable
is
experts
testing
among
the consensus
medical
although
or even
following conviction after months
particularly
offenders
or no direct medical benefit to
passed
has little
years
victims,
psychologi
can
to victims some
offenders
diminished
significantly
the offenders’
outweighs
cal benefit that
their
upon
in
fluids forced
bodily
preventing
Court,
Rptr.
Cal.
J. v.
unwilling
Municipal
victims. Johnetta
1990)
(Ct.
those
expert
testimony
App.
(citing
671-72
anxiety
suffer extreme
and thus
exposed
AIDS virus
offender);
from
inconclusive
psychologically
benefit
even
Juveniles,
(accord).
In re
¶26. long imposes as the trial court Accordingly, intent comport restrictions with the statute’s obvious results, test we perpetrator’s dissemination of the prevent public statute. In re infirmity find no constitutional Cf. requirement testing statute (reading confidentiality A.2d at 1271 dissemination place “to reasonable restrictions victim”). 3256(d) provides Section offender’s HIV status only test disclosed of the offender’s shall be results “[t]he con was Plainly, Legislature and' the victim.” offender to strictly of offenders and chose privacy rights cerned with the case, the hearing their test results. limit revelation of that a testing, suggested request prosecutor on the for from preclude the victim order could be issued protective than medical anyone results to other revealing defendant’s test safeguard order. To court made no such but providers, potential having any positive interests privacy defendant’s for the we remand the matter publicly, disseminated results test results to victim not to disclose defendant’s court to order the who, counselor, provider for the medical anyone except victim’s confidential information turn, obligation to keep would have their patients. revealed Court, Division, Criminal Superior order the Windsor except that the respects, in all September dated affirmed restrictions, consistent impose the court to
matter is remanded any results on the victim’s disclosure opinion, with this from transmitted diseases. of defendant *12 ¶ Reiber, C.J., 27. concurring dissenting. The and here, § at counseling statute issue 13 V.S.A. a plainly public health initiative aimed at giving medical and emotional Thus, to victims of I sexual assault. with the agree I, majority Chapter that the statute does not violate Article 11 of Constitution it special Vermont because serves a need ordinary law An important government enforcement. interest is at stake when demand for is made victim under the statute in that testing perpetrators may produce information that to, of, reduces the health risks anguish and mental the victim and thus lessens chance of transmission unwitting to others. Such purpose outweighs extremely limited privacy interest offender in submitting has a sample bodily govern- fluids. The ment served purpose legislation and its limitation on in my compel disclosure view do not us to resort to examination of testimony legislative taken before a committee. issue in this case involves of a determining validity statute’s stated purpose, deciphering legislative intent to resolve the meaning of particular statutory Defendant did language. present evi- dence challenging the link between and the medical or psychological Thus, benefit to victims of sexual assault. majority’s analysis legislative history point is unneces- sary improperly expands our role in conflict with the exercise Furthermore, of the legislative process. because the statute al- ready imposes restraint on the distribution of the results such testing, there is no basis to protective remand order with further conditions protecting perpetrator’s privacy. I would order, affirm the court’s respectfully therefore dissent. ¶ question 28. The of whether 13 V.S.A. 3256 violates an right offender’s under Article 11 to be free from warrantless search or is a seizure of law that we novo. question review de ¶ State v. 2008 VT 955 A.2d While searches, Article 11 protects against warrantless a search may nonetheless be its constitutional if is to fulfill a purpose law enforcement. Id. beyond ordinary need 9. I agree with the majority holding 3256 is aimed at health and exists, therefore meets this If the requirement. special need then “we against balance the need served at privacy intrusion Id. stake.” majority 29. The claims in the “nothing record informs ante, Martin” balancing test we must under perform history, including quot- detailed legislative recite proceeds a legislative testified before experts one of the medical who
ing our review. It wars This the limits of analysis committee. exceeds of the statute. of the law and limitations with clear intent discerning statutory construction are aimed Our rules intent is to be explained, “legislative intent. As we have itself, to be presumed from the act which is ascertained statutory language,” ordinary meaning with the accordance *13 its in unambiguous is clear and statutory language and “[w]here case, further in an will look no meaning, present the we v. contrary Cavanaugh to a intent.” legislative effort determine (1985) 154, Labs., (quotations 496 163 145 A.2d Abbott Vt. omitted).
¶ question is a constitutional issue in this case not 30. The is phrase the of a word or statutory meaning where interpretation clear, whether this statute’s autho determining not but involves a supported by legitimate rization of a warrantless search is assessment, To we need interest. make such government intent, instead must subjective the but Legislature’s into inquire are served. See legitimate public determine if interests ¶ to 53, served without resort VT 21 interests (listing 2008 statute, defer a we “accord history). reviewing When legislative v. Legislature.” Badgley choices made policy ence ¶ 38, 367, Walton, 68, 10 does A.3d 469. State 2010 VT constitutional; rather, a prove burden to statute is ¶42. case, In constitutional. Id. this presumed the statute is little asserted challenge defendant offered State’s notes, presented neither side evidence majority interest. As the with nexus of offenders efficacy causal “regarding in protecting interest presumed state’s respect furthering Ante, 18. Absent of sex crimes.” the health of the victims challenging from defendant presentation of concrete evidence affirmatively statute, no obligation I had believe State an adequate can discern showing. If the court make such served, case, then that is it did in this is which interest statute, if interests even other uphold sufficient to furthered.3 testing provision was Consequently, wholly of a it is the inclusion irrelevant Ante, grants. eligible necessary prerequisite for the to be federal state also
¶ 21. Here, the statute reveals its is to plainly purpose give both medical and of sexual psychological victims majority recognizes, psychological injury
crimes.4 As the to a victim of sexual no assault obvious and needs special expert Ante, analysis. 24. Even if there is little medical treatment benefit to victims to receiving the results a medical after conviction, Legislature rationally our concluded mental aspects health less are no There is a important. psychological benefit to victims obtaining results a test that outweighs small perpetrator’s privacy bodily in his fluids. Other J.G., re courts conclusion. See In have reached the same 701 A.2d (N.J. 1997); Houey, State 1270-71 651 S.E.2d B,A, (S.C. 2007); C, E,D, In re Juveniles 847 P.2d .460-61 (Wash. 1993). I point, On with the disagree majority’s Ante, statement that a negative result has no value to a victim. ¶ 20. A perpetrator’s result negative after conviction can re a victim with In peace valuable of mind. A.2d at 1270 (discussing psychological benefits of testing, including that nega tive give reassurance); result would victim substantial Juveniles, 847 P.2d (explaining that assailant’s negative victim). result is useful in allaying concerns of ¶ 32. if Even some ambiguity legislative in the purpose existed that required resort history, analysis engaged *14 by majority is not explained reliable. We have that a witness’s at a hearing comments committee are weight” accorded “little Madison, determining State legislative intent. (1995). Similarly, A.2d expert the views of witnesses
are not determinative indicators of legislative intent since these — experts are necessarily there to their present own views which Thus, be or accepted rejected either I Legislature. with disagree majority’s decision rely expert testimony to on presented the committee.
¶ 33. Finally, even with the I see expert testimony, no reason remand this case. The concludes that majority protect rights offender, sex privacy of this the court must issue a protective precluding order victim from disseminating Ante, anyone results to other than a medical 26. But provider. statute, this not in already limitation is which includes several protections of a perpetrator’s privacy, including that the results 4 Indeed, recognizes even defendant fact. this victim,” only the offender and the the test “shall be disclosed 3256(d), proceedings record of the court that “[t]he V.S.A. sealed,” id. to this section shall pursuant test results a point scope If wanted to extend 3256(j). Legislature the information to prohibit giving the victim from intended it so. should not or a friend could done We partner future convicted very privacy limited those conclude compel a court to permit assault under this law can sexual — information victim’s use of the information order limits that, inhibit inform effective treatment and could example, of communicable disease. spread diminished privacy protections greatly 34. An offender’s are assaulted victim Having sexually
this criminal act. particular physical an act of DNA without consent deposited his confidentiality implicit, if waiver explicit, harm if not also an defined rights sufficiently remaining privacy the offender’s victim, citizen, with the private statute. does by the What and, of no concern to the Legislature information afterwards was no of this contrary, direction to is business absent further prohibit call on the courts to Court. The law does not con- Because consideration of additional limits disclosure. to a choice and stitutionally policy “[o]ur it amounts required, our balance appropriate function is not to substitute view ¶68, 24. I would 2010 VT Legislature.” Badgley, affirm, and therefore dissent. Burgess joins I am authorized to state Justice
dissent.