Slagle v. Ross
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On rehearing, Clay C. Slagle moved the Supreme Court to "disqualify" Robert Bernard Harwood, Jr., from sitting as a Special Justice on this case on the ground, among others, that he was then-currently engaged in the private practice of law. Slagle based this argument solely on the text of Art. VI, section 147(a), Ala. Const. 1901 (Off. Recomp.). "In effect, Slagle [was] contending that, notwithstanding the provision in 12-2-14, Ala. Code 1975, for the appointment of 'member[s] of the bar' to sit as Special Justices in certain circumstances, the Constitution prevents such an appointee from engaging in the private practice of law." The Supreme Court rejected Slagle's contention and overruled his application.
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REL: 03/29/2013
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 2290649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2012-2013
____________________
1090638
____________________
Clay C. Slagle
v.
Beverly Ross et al.
Appeal from Montgomery Circuit Court
(CV-09-1846)
On Application for Rehearing
PER CURIAM.
On
rehearing,
Clay
C.
Slagle
moves
this
Court
to
"disqualify" Robert Bernard Harwood, Jr., from sitting as a
Special Justice on this case on the ground, among others, that
1090638
he is currently engaged in the private practice of law.
Slagle bases this argument solely on the text of Art. VI,
§ 147(a), Ala. Const. 1901 (Off. Recomp.),1 which provides:
"No judge of any court of this state shall, during his
continuance in office, engage in the practice of law or
receive any remuneration for his judicial service except the
salary and allowances authorized by law." (Emphasis added.)
In effect, Slagle is contending that, notwithstanding the
provision in § 12-2-14, Ala. Code 1975, for the appointment of
"member[s] of the bar" to sit as Special Justices in certain
circumstances, the Constitution prevents such an appointee
from engaging in the private practice of law.
We reject
Slagle's contention.
In
Johnson
v.
Board
of
Control
of
the
Employees'
Retirement System of Alabama, 740 So. 2d 999, 1011-12 (Ala.
1999), this Court observed:
"Under the provisions of the Judicial Article,
constraints are placed upon a judge's activities
only 'during his continuance in office.' § 6.08(a).
In 1980, this Court adopted a 'Commentary' to the
Canons of Judicial Ethics to make it clear that
1
Before the official recompilation of the Alabama
Constitution, § 147 was found at § 6.08 of Amendment No. 328,
Ala. Const. 1901.
2
1090638
retired judges do not 'continue in office' under
§ 6.08. The Commentary reads:
"'Retired and supernumerary justices
or judges are not continuing in office
under § 6.08 of Amendment 328, Constitution
of Alabama of 1901.'"
740 So. 2d at 1011-12 (emphasis added).
The Johnson Court quoted from the Commentary to the
section of Alabama's Canons of Judicial Ethics concerning
"Compliance with the Canons of Judicial Ethics."
Justice
Harwood
is
a
retired
Associate
Special
Justice.
The
Commentary makes it clear that Special Justice Harwood is not
"continuing in office" for purposes of Art. VI, § 147(a);
thus, the prohibition in § 147 on engaging in the practice of
law does not apply to him.
Section D of the "Compliance" portion of Alabama's Canons
of Judicial Ethics, pertaining to "Retired and Supernumerary
Judges," reinforces the notion that practicing law is not an
impediment to a retired judge or Justice serving as a Special
Justice.
In part, that section provides:
"(2) Retired and supernumerary justices or
judges, who are serving part time on the Supreme
Court or on either of the courts of appeals or on
any circuit court or district court in the state, in
an active duty status, shall be required to comply
3
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with all of these Canons, except Canon 5C(3), D, E,
F, G and Canon 6C.
"(3) Retired and supernumerary justices and
judges, who are serving full time at the request of
the chief justice, on the Supreme Court or on either
of the courts of appeals or on any circuit court or
district court in the state, in an active duty
status, shall be required to comply with all of
these Canons."
Canon 5F of the Canons of Judicial Ethics, from which retired
or former Justices or judges serving part-time are exempted,
states that "[a] judge should not practice law."
Thus,
section D(2) of the "Compliance" portion of the Canons clearly
provides that a retired judge or Justice who serves part-time
on the Supreme Court is not required to comply with the
prohibition on practicing law imposed on a full-time judge or
Justice.
In contrast, a retired judge who is serving on a
full-time basis on the Supreme Court must comply with all the
Canons, including the prohibition in Canon 5F concerning the
practice of law. Special Justice Harwood was appointed to
serve as a Justice in this case and not on a full-time basis;
consequently, he is not expected to refrain from the private
practice of law.
Based on the foregoing, we conclude that the fact that
Special Justice Harwood is engaged in the private practice of
4
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law does not disqualify him from sitting as a Special Justice
in this case.
Slagle's motion is denied.
MOTION DENIED; APPLICATION OVERRULED.
Moore, C.J., and Stuart, Parker, and Murdock, JJ., and
Harwood, Special Justice,* concur.
Bolin, Shaw, Main, and Bryan, JJ., concur in part and
dissent in part.
Wise, J., recuses herself.
*Retired Associate Justice R. Bernard Harwood, Jr., was
appointed on May 1, 2012, to serve as a Special Justice in
regard to this appeal. Although he was not present at the
oral argument in this case, he has viewed a video recording of
that oral argument.
5
1090638
BOLIN, Justice (concurring in part and dissenting in part).
I
concur
in
denying
Clay
C.
Slagle's
"disqualify" Special Justice Bernard Harwood.
motion
to
I continue to
agree with Justice Shaw's well reasoned special writing issued
on
original
submission;
therefore,
I
dissent
overruling of the application for rehearing.
6
from
the
1090638
SHAW, Justice (concurring in part and dissenting in part).
I
concur
in
denying
Clay
C.
Slagle's
motion
to
"disqualify" Special Justice Harwood; I adhere to my dissent
in this matter issued on original submission, and I therefore
dissent from the overruling of the application for rehearing.
7
1090638
MAIN, Justice (concurring in part and dissenting in part).
I concur in denying the motion to disqualify Special
Justice Harwood, but I dissent from overruling the application
for rehearing.
8
1090638
BRYAN, Justice (concurring in part and dissenting in part).
I was not yet sitting on this Court when this case was
decided originally; therefore, I did not vote on this case on
original submission.
However, in reviewing the application
for rehearing, I have considered both the rehearing materials
and the materials submitted on original submission, including
a video recording of oral argument.
I concur in the holding
of the opinion issued on application for rehearing that
addresses the disqualification of the Special Justice Harwood
issue.
However, I agree completely with Justice Shaw's
dissenting opinion on original submission, and I also agree
with portions of Justice Main's dissenting opinion on original
submission.
Therefore, I dissent from the overruling of the
rehearing application.
As Justices Shaw and Main noted in their dissenting
opinions, the language used by the legislature in the Alabama
Open Meetings Act, § 36-25A-1 et seq., Ala. Code 1975 ("the
Act"),
is
ambiguous
with
regard
to
its
effect
upon
the
deliberations of a governmental body, a committee, or a
subcommittee.
This Court must look to legislative intent to
resolve the ambiguity.
City of Bessemer v. McClain, 957 So.
9
1090638
2d 1061, 1074-75 (Ala. 2006).
As Justice Main explained in
his dissent on original submission, the Act was drafted to
ensure public access to the deliberative processes of public
bodies.
The construction of the Act in the main opinion on
original
submission
is
inconsistent
with
that
purpose.
Moreover, it appears that the actions of the Montgomery County
Board of Education in this case were an intentional attempt to
circumvent
the
respectfully
requirements
dissent
from
of
the
overruling
Act.2
the
Therefore,
application
I
for
rehearing in this case.
2
Furthermore, Montgomery County Board of Education member
Charlotte Meadows acknowledged as much in a statement to the
press that was admitted into evidence: "It was clear the only
reason to form these sub-groups was to avoid the media and the
public." She also testified: "I think we met in those groups
in those types of settings so we could specifically avoid the
media, and I think that's wrong." These statements confirm my
opinion that the Board's actions were an intentional attempt
to circumvent public access to the deliberative processes of
the Board.
10
1090638
HARWOOD, Special Justice (statement of nonrecusal).
Following the recusal in this case of Associate Justice
A. Kelli Wise, the Chief Justice of the Alabama Supreme Court
requested that I, as a retired Justice of the Court, transfer
from inactive status to active-duty status pro tempore for the
special and restricted purpose of participating in this case
as a Special Justice.
I was to have no other duties or
responsibilities or authority, and my "activation" would cease
automatically upon the issuance of the certificate of judgment
in the case.
several
I accepted that assignment, as I have done on
occasions
in
the
past,
without
there
being
any
attendant monetary remuneration or other emolument of service
to be provided.
Following my participation in the per curiam opinion of
the Court issued June 15, 2012, in which I voted with the
five-member majority, the appellant, Clay C. Slagle, filed an
application
for
rehearing.
In
conjunction
with
that
application, Mr. Slagle, through his attorney, the Honorable
Mark G. Montiel, filed his "Motion for Disqualification and/or
Recusal of Retired Justice Bernard Harwood from Participation
in
this
Case
on
Application
11
for
Rehearing
on
Behalf
of
1090638
Plaintiff/Appellant
Clay
C.
Slagle."
In
that
motion,
Mr. Montiel asserted three grounds for "the disqualification
and/or recusal from this case of Retired Justice Bernard
Harwood."
First, he cited and set out in full § 147, Art. VI,
Constitution of Alabama of 1901 (formerly § 6.08 of Amendment
No. 328 to the Alabama Constitution of 1901).
That section
states:
"Sec. 147.
Prohibited activities.
"(a) No judge of any court of this state shall,
during his continuance in office, engage in the
practice of law or receive any remuneration for his
judicial service except the salary and allowances
authorized by law.
"(b) No judge, except a judge of a probate
court, shall seek or accept any nonjudicial elective
office, or hold any other office of public trust,
excepting service in the military forces of the
state or federal governments.
"(c) The supreme court shall adopt rules of
conduct and canons of ethics, not inconsistent with
the provisions of this Constitution, for the judges
of all courts of this State."
Next, Mr. Montiel "contends that the participation of
Retired Justice Harwood in this case without notice to the
parties and in violation of the Alabama Constitution violates
the
due
process
requirements
12
of
state
and
federal
1090638
constitution.
See Caperton v. A.T. Massey Coal Co., Inc.,
U.S., 129 S. Ct. 2252 (2009)."
Lastly, Mr. Montiel avers that
"[r]etired Justice Harwood also has maintained
an active law practice representing state agencies
and bodies, governed by the Alabama Open Meetings
Act, during his retirement. This private practice
of law attorney representation suggests a possible
bias or conflict regarding the issues presented in
this case. The probability of actual bias on the
part of the judge is too high to be constitutionally
tolerable. See Caperton v. A.T. Massey Coal Co.,
Inc., ___ U.S. ___, 129 S. Ct. 2252."
Mr. Montiel requests that I "be disqualified or recused
from this case by [my] own order or that of the Court."3
Addressing Mr. Montiel’s three grounds in reverse order, I
submit the following:
Mr. Montiel’s belief that I have "maintained an active
law practice representing state agencies and bodies, governed
by the Alabama Open Meetings Act, during [my] retirement," is
simply a misapprehension on his part.
3
The only state agency
Mr. Montiel graciously states in the introduction to his
motion that "[w]hile undersigned counsel has the highest
personal regard and respect for Retired Justice Harwood, the
Alabama Constitution necessitates this disqualification and/or
recusal." Reciprocally, I have the highest personal regard
for Mr. Montiel, acknowledging his long and accomplished legal
career encompassing not only extensive experience as a private
practitioner, but also his service as a state circuit judge
and on the Alabama Court of Criminal Appeals.
13
1090638
or body I have represented during my retirement is Shelton
State Community College, based in my hometown of Tuscaloosa.
I was at all times, commencing with my appointment as a
Special Justice in this case, up to the present, on retainer
as counsel for Shelton State.
The Alabama Open Meetings Act,
codified as § 36-25A-1 et seq., Code of Alabama 1975, applies
to
"governmental
bodies."
Shelton
State
is
not
a
"governmental body" as that term is defined by the Act (see
§ 36-25A-2(4)); rather, it is an adjunct of the Alabama
Department of Postsecondary Education, which, in turn, is
simply a department of the Alabama Department of Education.
The Alabama State Board of Education directs and controls
Shelton
State,
and
Shelton
State
has
no
independent
separate governing board, body, or commission.
or
Rather, it is
directly controlled by the Alabama Board of Education through
that Board’s directives to the chancellor of the Alabama
Department of Postsecondary Education.
I do not otherwise represent "state agencies and bodies,
governed by the Alabama Open Meetings Act."
With respect to the issue of my participation in this
case as a Special Justice without advance notice having been
14
1090638
given to parties to the appeal of my appointment, I do not
perceive how such lack of advance notice "violates the due
process requirements of state and federal constitution."
By
long and well justified tradition, the identity of the regular
Justice on the Court to whom an appeal is assigned for initial
analysis and issuance of an opinion or other disposition and
the identities of the Justices serving on the same division of
the Court as that Justice, which Justices will be voting in
the appeal, are not disclosed in advance to the parties to an
appeal.
That nondisclosure is designed to avoid any targeted
attempts at outside influence during the deliberative process
for the particular appeal.
When a Special Justice has been
appointed to cast the deciding vote in a case where the
participating regular Justices are evenly divided, the logic
behind nondisclosure in advance of the identity of the Special
Justice
is
even
more
compelling.
With
respect
to
Mr. Montiel’s concluding citation in support of this ground
for recusal, Caperton v. A.T. Massey Coal Co., Inc., 556 U.S.
868 (2009), I have carefully read that case, and I am unable
to locate in its discussion of due-process considerations
involved in determining whether a judge should recuse himself
15
1090638
or herself, or be disqualified from sitting, any statements
that would relate to the issue of advance notice of the
appointment of a Special Justice in a particular case.
Finally, turning to the proscription stated in § 147(a),
Constitution of Alabama of 1901, my focus is initially upon
the issue whether I, as a retired Justice who is serving parttime on the Court at the request of the Chief Justice, for the
sole purpose of participating in a particular case, thereby
become a "judge of [that] court ... during his continuance in
office," in the context in which those terms are envisioned in
§ 147(a).
In Johnson v. Board of Control of the Employees’
Retirement System of Alabama, 740 So. 2d 999 (Ala. 1999), the
Court was called upon to decide whether a retired circuit
judge, who designated on her oath of office as a retired judge
that she was to be "inactive" and who immediately thereafter
assumed appointed office as a federal district judge, was
"holding two offices of profit," in contravention of § 280,
Art.
XVII,
Constitution
of
Alabama of
1901.
The
Court
concluded that "it is clear that retired, inactive members of
the judiciary who are governed by the Judicial Retirement
System, are not holding an office, or exercising any power of
16
1090638
the State, unless or until they return to active-duty status,
either full-time or part-time."
740 So. 2d at 1012.
The
Court was called upon solely to answer the question whether a
retired, inactive member of the judiciary who was governed by
the Judicial Retirement System was holding an office of
profit.
The contrast the Court made with a retired member of
the judiciary who returned to active-duty status, either fulltime or part-time, was dictum, particularly to the extent that
it implicitly opined as to the status of retired judges
returning to active-duty status, without making a distinction
between those who did so "full-time" and those who did so only
"part-time."
The precise question now confronting me has been directly
answered by the Court, however, by its adoption of the Canons
of Judicial Ethics, which became effective February 1, 1976,
and, as to the "Compliance" section, were last amended in
1980.
It is to be noted that subsection (c) of § 147 of the
Constitution of Alabama of 1901 mandates that "[t]he supreme
court shall adopt rules of conduct and canons of ethics, not
inconsistent with the provisions of this Constitution, for
judges of all courts of this State."
17
The Court has declared
1090638
that "'[t]he Canons are not merely guidelines for proper
judicial conduct.
It is well-settled that the Canons of
Judicial Ethics have the force and effect of law.'
Sheffield, 465 So. 2d 350, 355 (Ala. 1984)."
In re
Johnson, 740
So. 2d at 1011.
The section of the Canons entitled "Compliance With the
Canons of Judicial Ethics" provides, in pertinent part, as
follows:
"B. Judge Pro Tempore. A judge pro tempore is
a person who is appointed to act temporarily as a
judge.
"(1) While acting as such, a judge pro tempore
is not required to comply with Canon 5C(3), D, E, F,
and G, and Canon 6C.
"....
"D. Retired and Supernumerary Judges.
"(1) Retired and supernumerary justices or
judges, who are not serving on the Supreme Court or
on either of the courts of appeals or on any circuit
court or district court in the state, in an active
duty status, shall not be required to comply with
any of these Canons.
"(2) Retired and supernumerary justices or
judges, who are serving part time on the Supreme
Court or on either of the courts of appeals or on
any circuit court or district court in the state, in
an active duty status, shall be required to comply
with all of these Canons, except Canon 5C(3), D, E,
F, G and Canon 6C.
18
1090638
"(3) Retired and supernumerary justices and
judges, who are serving full time at the request of
the chief justice, on the Supreme Court or on either
of the courts of appeals or on any circuit court or
district court in the state, in an active duty
status, shall be required to comply with all of
these Canons."
(Emphasis supplied.)
It
is
certain
that
the
Alabama Supreme
Court
fully
intended that the Canons it adopted, including D(2) of the
Compliance section, were not inconsistent with the provisions
of the Constitution, as mandated by subsection (c) § 147.
That being so, it is further clear and certain that the Court
concluded that there was a significant distinction between a
retired Justice who was serving "part time on the Supreme
Court ... in an active duty status," and one who was "serving
full time at the request of the chief justice, on the Supreme
Court ... in an active duty status."
Whereas an activated
Justice serving full-time would be required to comply with all
the Canons, a retired Justice serving only part-time is
specifically exempted from complying with Canon 5C(3), D, E,
F, G, and Canon 6C.
Canon 5F, with which a retired Justice
serving part-time on the Supreme Court in an active duty
status need not comply, reads as follows: "F. Practice of Law.
19
1090638
A judge should not practice law."
Thus, it is inescapable
that the Alabama Supreme Court has concluded that a retired
Justice serving part-time on the Court may, consistent with
the Canons of Judicial Ethics, practice law.
The
Supreme
Court
of
Connecticut
reached
a
similar
conclusion in Honulik v. Town of Greenwich, 293 Conn. 641, 980
A.2d 845 (2009), in which it addressed the issue "whether a
retired justice, by virtue of performing limited judicial
acts, necessarily is holding that office."
n. 15, 980 A. 2d at 854 n. 15.
293 Conn. at 654
That Court reasoned:
"The decision of the Supreme Court of New
Hampshire [in Claremont School District v. Governor,
142 N.H. 737, 712 A.2d 612 (1998),] provides direct
support for the notion that temporary performance of
duties associated with a judicial office does not
equate with holding that office.
Other state
courts,
in
addressing
claims
pertaining
to
postretirement judicial activity that concededly are
distinct from those at issue here and in Claremont
School
District,
also
have
acknowledged
the
distinction between performance of judicial duties
and status as judicial officeholder. See, e.g.,
State ex rel. Wilcox v. District Court, 208 Mont.
351, 358, 678 P.2d 209 (1984) ('retired district
judge called in [pursuant to provision allowing for
temporary assignment of retired judges] does not
become a second incumbent in that office, but simply
exercises the powers of a district judge on a
temporary basis'); Werlein v. Calvert, 460 S.W.2d
398, 401 (Tex.1970) ('A retired judge assigned to
active duty is authorized to exercise the powers of
an office while serving on assignment. He does not
20
1090638
by virtue of the assignment, however, hold an office
....') (reh. denied December 31, 1970); Nelson v.
Miller, 25 Utah 2d 277, 288, 480 P.2d 467 (1971)
('we
see
no
constitutional
conflict
between
mandatory retirement for age and legislative
authorization for calling a judge back into service
upon a "case-to-case" basis')."
293 Conn. at 655-56, 980 A. 2d at 855 (footnote omitted).
At
another point in its opinion, the Supreme Court of Connecticut
observed:
"Finally, other courts' jurisprudence as to what
constitutes an 'office' is instructive. In United
States v. Hartwell, 73 U.S. (6 Wall.) 385, 393, 18
L.Ed. 830 (1867), the United States Supreme Court,
in interpreting a criminal statute proscribing
embezzlement by certain officials, articulated a
formula to apply in determining whether a particular
position constitutes an 'office.' According to the
Supreme Court, '[a]n office is a public station, or
employment,
conferred
by
the
appointment
of
government. The term embraces the ideas of tenure,
duration, emolument, and duties.' Id.
As one
commentator has noted, the Hartwell formulation is
descriptive
rather
than
prescriptive,
and
contemplates a continuum.
J. O'Connor, 'The
Emoluments Clause: An Anti-Federalist Intruder in a
Federalist Constitution,' 24 Hofstra L.Rev. 89, 109
(1995).
Thus,
'a
position
characterized
by
substantial tenure, duration, emoluments, and duties
is the paradigmatic office; conversely, a position
possessing none of these attributes would reside at
the other end of the continuum as clearly a nonoffice.' Id."
293 Conn. at 657-58, 980 A. 2d at 856 (footnotes omitted).
21
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In serving on the Court for the limited purpose of
participating in a particular case, I have no "tenure" as
such; there is no extended duration of my service; and there
are no emoluments.
I am not oblivious to the provisions of § 12-18-7(b) Ala.
Code 1975, and pertinent parts of § 12-18-10(e), Ala. Code
1975, which read as follows:
Section 12-18-7(b): "The retiring justice or judge,
upon being retired, shall take the oath of office as
a retired justice or judge and thereupon become an
extra or additional judge of the state. Thereafter,
on the request of the Chief Justice, the presiding
judge of one of the courts of appeals or the
Governor, any such retired justice or judge may
serve on the Supreme Court, on either of the courts
of appeals or on any circuit court in the state.
Such retired justice or judge, when serving on a
court in the absence or disqualification of the
regular justice or judge, as the case may be, shall
have and exercise all the duties and functions of
the regular justice or judge for whom he is
substituting. When serving on a court for reasons
other than the absence or disqualification of the
regular justice or judge, the duties of a retired
justice or judge shall be as prescribed by the Chief
Justice when serving on the Supreme Court or by the
presiding judge when serving on a court of appeals
or by the presiding judge, when serving in a circuit
court; provided, that nothing contained in this
provision shall prevent the Chief Justice from
assigning a justice or a judge to special temporary
duty in other courts. A recital in the minutes of
the court that a regular justice or judge is absent
or disqualified and that a retired justice or judge
is sitting in his place at the request of the Chief
22
1090638
Justice, the presiding judge of one of the courts of
appeals or the Governor shall be conclusive evidence
of his authority to act."
Section 12-18-10(e) (in pertinent part): "Every
justice or judge who has retired pursuant to this
article may, on the request of the Chief Justice,
the presiding judge of a court of appeals or the
Governor, be called to active duty status and, when
serving with the Supreme Court or courts of appeals,
shall perform such duties as may be prescribed by
the Chief Justice or the presiding judge of the
court of appeals with which he is serving and, when
serving in a circuit court, shall perform such
duties as may be prescribed by the presiding judge
in the circuit...."
"....
"A retired justice or judge of one of the courts
of appeals or circuit judge, while serving with the
Supreme Court or one of the courts of appeals for
reasons other than the absence or disqualification
of a justice or judge, shall perform such duties as
may be prescribed by the Chief Justice when serving
with the Supreme Court, or as prescribed by the
presiding judge of the court of appeals with which
he may be serving."
All I know concerning the circumstances underlying my
appointment as a Special Justice to participate in this case
is that, as stated at the conclusion of the opinion on
original deliverance, "Wise, J., recuse[d] herself."
As
Justice Parker made clear in his "Statement of Recusal"
appended to the opinion on application for rehearing in City
of Bessemer v. McClain, 957 So. 2d 1061, 1085 (Ala. 2006), a
23
1090638
Justice may elect to recuse himself or herself without there
being any basis for his or her disqualification.
Regardless,
I revert to, and am guided by in the final analysis, the
deliberate determination by the Alabama Supreme Court in
adopting the Canons of Judicial Ethics, "not inconsistent with
the provisions of [the] Constitution," that a retired Justice
serving on that Court, "part-time" may, "not inconsistent with
[the] Constitution," practice law.
In consideration of all the above, I, for my part,
decline to recuse myself from participation in the vote on
application for rehearing.
Because the motion in question
asks that I be "disqualified or recused from this case by [my]
own order or that of the Court," I will not presume to
anticipate the Court’s own analysis and determination of this
issue.
24
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