Christy B. Logan v. The Bon Ton Stores, Inc. and Liberty Mutual Insurance Corp. ( 2020 )

IN THE SUPREME COURT OF IOWA
No. 19–0608
Filed May 1, 2020
CHRISTY B. LOGAN,
Appellant,
vs.
THE BON TON STORES, INC. and LIBERTY MUTUAL INSURANCE
CORP.,
Appellees.
Appeal from the Iowa District Court for Johnson County,
Lars Anderson, Judge.
A claimant appeals the dismissal of her petition for judicial review
of a workers’ compensation commission decision. REVERSED AND
REMANDED.
Christy B. Logan, Iowa City, pro se.
Andrew D. Hall and Aaron W. Lindebak of Grefe & Sidney, P.L.C.,
Des Moines, for appellees.
2
MANSFIELD, Justice.
Before us is a codicil to a case we decided last year. In Ortiz v. Loyd
Roling Construction, 928 N.W.2d 651, 655 (Iowa 2019), we held that
emailing a petition for judicial review to the opposing party’s counsel by
the statutory deadline, where the petition was actually received and no
prejudice resulted, substantially complied with Iowa Code
section 17A.19(2) (2017). Today we have to decide whether the same rule
applies to faxing. In our view, the similarities in the two situations
outweigh any differences. Therefore, we hold that timely faxing a petition
for judicial review to the opposing party’s counsel, where the petition is
actually received and no prejudice results, constitutes substantial
compliance under section 17A.19(2). Accordingly, we reverse the
judgment of the district court dismissing the petition for judicial review,
and we remand for further proceedings.
I. Facts and Procedural History.
Christy Logan worked as a retail salesperson for the Younkers
department store in Coralville from 2008 to 2018. Her medical records
indicate she suffered from significant left knee and bilateral knee pain
during 2014.
On February 22, 2016, Logan filed a petition with the Iowa Workers’
Compensation Commission against her employer and its workers’
compensation insurance carrier. 1 Logan alleged she suffered a work injury
when she tripped on a rug at work on March 1, 2014. Approximately two
months later, on April 4, 2016, Logan filed three other petitions with the
commission. Each petition alleged further workplace injuries occurred
1We will refer to the respondents collectively as Younkers, which is the d/b/a for
Logan’s employer, The Bon Ton Stores, Inc.
3
when Logan tripped on a rug at work on April 4, April 23, and October 18,
2014, respectively.
Following a hearing, the deputy commissioner issued an arbitration
decision on August 24, 2018. He found that Logan had not proved that a
compensable workplace injury occurred on March 1, April 4, or April 23,
2014. The deputy noted that Logan already had a longstanding knee
condition, and none of the medical records from the spring of 2014 referred
to even a possible workplace injury. The deputy did find that Logan had
sustained a compensable workplace injury on October 18. However, as
the deputy reviewed the record, there was no evidence that Logan had lost
time from work due to that injury. Also, as the deputy pointed out, Logan’s
attending physician saw her on October 30 (twelve days later) and
determined that any symptoms from the October 18 injury had been
resolved. Accordingly, the deputy concluded that Logan should take
nothing on her petitions alleging March 1, April 4, and April 23 workplace
injuries. With respect to the October 18 injury, Logan was awarded only
the costs of her October 30 medical consultation.
Logan filed an interagency appeal to the commissioner, who affirmed
the deputy’s decision in an appeal decision on December 5, 2018. Logan
then filed a pro se petition with the Iowa District Court for Johnson County
seeking judicial review of the commissioner’s ruling. The petition was
electronically filed on January 3, 2019. Logan faxed copies the same day
to Younkers’ attorney and the workers’ compensation commission.
Younkers’ attorney does not dispute that he received the petition.
On January 23, Younkers moved to dismiss Logan’s petition for
judicial review. Younkers argued that Iowa Code section 17A.19(2) (2019)
requires the petitioner either to “mail” the petition or “serve [it] by the
means provided in the Iowa rules of civil procedure for the personal service
4
of an original notice.” Iowa Code § 17A.19(2). Because Logan had not
mailed the petition in the conventional sense or caused it to be served
personally, and because the ten days allowed for service had expired,
Younkers asked for dismissal of the petition. Logan resisted the motion,
attached proof of her faxes to her resistance, and also served Younkers’
attorney with the petition again, this time by certified mail.
On March 13, the district court entered an order granting Younkers’
motion to dismiss. It observed that the ten-day service requirement was
jurisdictional. See id. But it also noted that “substantial compliance with
§ 17A.19 provides the district court with jurisdiction over the case.” See
Brown v. John Deere Waterloo Tractor Works, 423 N.W.2d 193, 194 (Iowa
1988). Still, the court found “that Petitioner’s sending of a facsimile of her
Petition to Respondents is not substantial compliance with the
requirements of § 17A.19. The service requirements of § 17A.19(2) are
clear, and do not authorize service by facsimile.”
Logan appealed, arguing that service by fax was sufficient, and we
retained her appeal.
II. Standard of Review.
“Our review in this case is to correct errors at law.” Ortiz, 928
N.W.2d at 653.
III. Analysis.
Iowa Code section 17A.19(2) states in part,
Within ten days after the filing of a petition for judicial review
the petitioner shall serve by the means provided in the Iowa
rules of civil procedure for the personal service of an original
notice, or shall mail copies of the petition to all parties named
in the petition and, if the petition involves review of agency
action in a contested case, all parties of record in that case
before the agency. Such personal service or mailing shall be
jurisdictional. The delivery by personal service or mailing
referred to in this subsection may be made upon the party’s
attorney of record in the proceeding before the agency.
5
On a quick read of the statute, the outcome of this case seems
straightforward. Logan served Younkers’ attorney of record on the same
day she filed her petition for judicial review in the Johnson County district
court. However, she served it by fax, which would not normally be
considered personal service or mailing. And the statute provides that
“personal service or mailing shall be jurisdictional.” Id.
But we are not writing on a blank slate. In fact, we wrote on the
same slate just a year ago. In Ortiz, we held that timely service by email
on the respondents’ attorney of record was sufficient to meet the
requirements of Iowa Code section 17A.19(2). 928 N.W.2d at 655.
In Ortiz, like the present case, an employee was seeking judicial
review of a workers’ compensation commission decision. Id. at 652. But
there, unlike here, the claimant was represented by an attorney. Id.
Nevertheless, the attorney neglected to strictly comply with
section 17A.19(2), emailing the petition instead of personally serving it or
sending it by “snail mail.” Id. The district court dismissed the employee’s
petition, and the court of appeals affirmed. Id.
In reversing that dismissal, we first observed that the statute in
question had been enacted in 1975 and amended in 1981, but had not
been amended since then. Id. at 653. We noted the following:
At the time the statute was enacted, and when it was
subsequently amended, electronic mailing was little more
than a thought of a few, and the concept had little application
or appreciation in society. It was in its infancy. The statute
was enacted before what is now known as email was
commonly used to send written communications.
Id. (citation omitted). We then went on:
[T]oday, email is one of the primary and accepted forms of
sending communications in society. It has largely displaced
mail by the postal service in most instances, including the
legal system in Iowa. Email is not only the expected form of
6
communication today but generally the required or preferred
form. See Iowa R. Civ. P. 1.442(2) (permitting service by mail
or email); see also Iowa R. Elec. P. 16.315(1)(a) (“Completing
the registration process . . . constitutes a request for, and
consent to, electronic service of court-generated documents
and documents other parties file electronically.”); id.
r. 16.315(1)(b) (governing electronic service of documents
through electronic mail).
Id.
We also pointed out that our precedent applied a “substantial
compliance” standard, not a strict compliance standard, to Iowa Code
section 17A.19(2). Id. at 654 (collecting cases). Most notably, in Brown v.
John Deere Waterloo Tractor Works, we had held that a claimant
substantially complied with section 17A.19(2) when she mailed a copy of
the petition for judicial review to the attorney two days before filing it,
rather than “[w]ithin ten days after” filing it. 423 N.W.2d at 194, 196.
Brown explained, “[W]e have consistently held that substantial—not
literal—compliance with section 17A.19(2) is all that is necessary to invoke
the jurisdiction of the district court.” Id. at 194. Brown emphasized the
lack of prejudice to the employer and highlighted that the premature
service nonetheless fulfilled the legislature’s purpose in enacting section
17A.19(2). Id. at 194–96.
Likewise, in Monson v. Iowa Civil Rights Commission, 467 N.W.2d
230, 232 (Iowa 1991), we held that service several days beyond the ten-
day deadline substantially complied with the statute when the late service
was the fault of the sheriff, not the petitioner or his counsel. We explained,
Service, though tardy, was completed in substantial
compliance with the statute. The sheriff’s mistake cannot
fairly be attributed to Monson, and the Commission has
established no prejudice flowing from the brief delay.
Id. We added,
By its terms, the statutory service or mailing option is
jurisdictional, but we have repeatedly held that “substantial—
7
not literal—compliance with section 17A.19(2) is all that is
necessary to invoke the jurisdiction of the district court.”
Id. (quoting Brown, 423 N.W.2d at 194).
In fact, our substantial compliance standard under Iowa Code
section 17A.19(2) is almost as old as the Iowa Administrative Procedure
Act itself, dating back to 1980. See Frost v. S. S. Kresge Co., 299 N.W.2d
646, 648 (Iowa 1980) (en banc) (“Section 17A.19(2) says such mailing is
jurisdictional; but that subsection should not be construed to make all
errors or omissions in service jurisdictional.”). The legislature has
amended section 17A.19 and has never disturbed that standard. See, e.g.,
1998 Iowa Acts ch. 1202, §§ 22–24 (codified at Iowa Code § 17A.19(1), (5),
(8) (1999)); see also Mitchell v. Cedar Rapids, 926 N.W.2d 222, 234 (Iowa
2019) (discussing the doctrine of legislative acquiescence).
One justification, perhaps, for recognizing substantial compliance
under Iowa Code section 17A.19(2) lies in the difference between a petition
for judicial review and an ordinary lawsuit. When a party seeks judicial
review of an agency decision in a contested case under section 17A.19(2),
the parties have already been litigating. They have been communicating
with each other. The petition for judicial review is just a continuation of
the litigation and the communication. This contrasts with a typical civil
lawsuit that may come as a bolt out of the blue to a defendant. See
Richards v. Iowa Dep’t of Revenue, 362 N.W.2d 486, 488–89 (Iowa 1985)
(“Ordinarily the parties served with a copy of the petition for judicial review
have already been engaged in adversary proceedings within the agency and
know what the case is all about.”).
In Ortiz, we qualified our endorsement of substantial compliance
somewhat. We “acknowledge[d] that the leeway permitted under the
substantial-compliance doctrine would not normally include using a
8
means of communication different than provided under the statute.” 928
N.W.2d at 654. Yet we added that “we have in the past construed statutes
written in an era that fit the means of communication at the time but were
later displaced by different forms of communication.” Id. at 655. The use
of the term “mail,” we held, “should not preclude the word to apply to a
means of communication that would later displace postal mail as the
standard and most reliable means of routine, reliable communication.” Id.
We had not yet decided Ortiz when the district court ruled in the
present case. Nonetheless, unsurprisingly, the parties’ briefing in this
court has focused on Ortiz. Some aspects of Ortiz clearly support Logan’s
position on appeal; others less so.
We begin with the aspects of the opinion that favor Logan. Fax, like
email, would not have been on the legislature’s mind when it last amended
Iowa Code section 17A.19(2) in 1981. See id. at 653. It did not flourish
until the late 1980s and the 1990s. Richard G. Barrows, Fax Law—A
Compendium of Reported Cases, 17 L. Prac. Mgmt., 28, 29 (1991)
(“Although invented in 1842, the fax (facsimile) machine did not reach
universal use in the legal community until the late 1980s. Today almost
every law firm in the U.S. has a fax machine.”). Also, Iowa Rule of Civil
Procedure 1.442(2), which we cited in Ortiz for permitting service by email,
also permits service by fax. Ortiz, 928 N.W.2d at 653; see also Iowa R. Civ.
P. 1.442(2). Moreover, if “substantial compliance” means no one has been
prejudiced and the objectives of the statute have been met, then we have
substantial compliance here. See Brown, 423 N.W.2d at 194–96.
On the other hand, Ortiz said in dicta (which we have already quoted)
that “the leeway permitted under the substantial-compliance doctrine
would not normally include using a means of communication different
9
than provided under the statute.” Ortiz, 918 N.W.2d at 654. 2 Also, Ortiz
relied in part on the fact that email has largely supplanted snail mail. Id.
at 653–54. And to a degree, Ortiz was driven by a textual approach that
interpreted “mail” as including “current routine systematic methods of
sending written communications.” Id. at 655.
These facets of Ortiz arguably would not justify treating fax under
Iowa Code section 17A.19(2) the same as email. Unlike email, fax is not a
current routine systematic method of sending written communications.
And while the term “mail” can perhaps be stretched linguistically to
include “email,” “fax” seems to be a stretch too far.
On balance, though, we conclude that Logan substantially complied
with the service requirements in Iowa Code section 17A.19(2) and,
therefore, her petition should not have been dismissed. There is no
dispute that Younkers timely received the petition, and Younkers does not
claim prejudice. The fax number that Logan used is the same fax number
that Younkers’ counsel displays on the front page of his brief in this court.
In Ortiz, we commented that “between attorneys, the notice objective of the
statute is met by the use of email as much, if not more, as by postal service
mail.” 928 N.W.2d at 654. One could argue that fax notice is even more
effective because of its rarity these days: an attorney might miss an email
among the electronic clutter on his or her computer but is less likely to
miss a unicorn fax. Also, faxes, after they arrive these days, are often
routed to the attorney’s email (although identified as faxes).
The golden age of faxing has come and gone, but we strain to see
why a fax copy of a petition for judicial review that was actually received
and read by an attorney should be treated differently from an emailed copy
2We cited no authority for this statement in Ortiz.
10
that was received and read. Both are recognized forms of service on an
attorney under rule 1.442(2). If a law firm no longer wishes to receive
faxes, the law firm can disconnect its fax machine and cease providing that
number. See Iowa R. Civ. P. 1.411(1) (“Each appearance, notice, motion,
or pleading shall be captioned with the title of the case, naming the court,
parties, and instrument, and shall bear the signature, personal
identification number, address, telephone number, and, if available,
facsimile transmission number and e-mail address of the party or attorney
filing it.” (Emphasis added.)).
IV. Conclusion.
For the foregoing reasons, we hold that Logan substantially
complied with the service requirements in Iowa Code section 17A.19(2).
We reverse and remand for further proceedings consistent with this
opinion.
REVERSED AND REMANDED.
Christensen, C.J., and Appel and Waterman, JJ., join this opinion.
McDonald, J., files a dissenting opinion in which Oxley, J., joins.
McDermott, J., takes no part.
11
#19–0608, Logan v. Bon Ton Stores, Inc.
McDONALD, Justice (dissenting).
I respectfully dissent. Iowa Code section 17A.19(2) (2019) provides
that a party seeking judicial review of an agency action must, within ten
days after filing a petition for judicial review, serve all the parties of record
by mail service or by personal service in compliance with the Iowa Rules
of Civil Procedure for service of original notice. Proof of service shall be
established by affidavit. See Iowa Code § 17A.19(2) (“Proof of mailing shall
be by affidavit.”); Iowa R. Civ. P. 1.308(1) (stating “Iowa officers may make
unsworn returns” of service and all others “shall be proved by the affidavit
of the person making the service”). Service in compliance with the statute
is “the exclusive means by which a person or party who is aggrieved or
adversely affected by agency action may seek judicial review of such
agency action.” Iowa Code § 17A.19. The service requirements are
mandatory and jurisdictional. See id. § 17A.19(2) (“Such personal service
or mailing shall be jurisdictional.”); Cunningham v. Iowa Dep’t of Job Serv.,
319 N.W.2d 202, 204 (Iowa 1982) (stating the service requirements are
“mandatory and jurisdictional”). “Thus, a failure to comply with them
deprives the district court of appellate jurisdiction over the case.” Brown
v. John Deere Waterloo Tractor Works, 423 N.W.2d 193, 194 (Iowa 1988).
In concluding service by facsimile transmission substantially
complies with the mandatory and jurisdictional service requirements the
majority relies on Ortiz v. Loyd Roling Construction, 928 N.W.2d 651 (Iowa
2019). In that case, we specifically stated the “substantial-compliance
doctrine would not normally include using a means of communication
different than provided under the statute.” Id. at 654. Ortiz made a single
exception for service by email, however, for two reasons. First, Ortiz
explained email had replaced postal mail as the normal means of
12
communication between lawyers. See id. (“Email . . . is used far more often
among attorneys than postal mail and has replaced postal mail as the
normal means to transmit legal documents among lawyers in Iowa.”). It
was the technological “displacement [that drew] email into the circle of
substantial compliance.” Id. Second, Ortiz noted this court had already
created court rules governing email service in conjunction with the
creation of Iowa’s electronic document management system (EDMS). See
id. at 653. The Ortiz court held that service by email substantially
complied with Code section 17A.19(2) only “when done pursuant to Iowa
Court Rules governing electronic service.” Id. at 655.
Not only is Ortiz distinguishable from this case, Ortiz specifically
precludes the result the majority opinion reaches today. As noted, Ortiz
specifically stated the “substantial-compliance doctrine would not
normally include using a means of communication different than provided
under the statute.” Id. at 654. Ortiz created a narrow exception for email
service in compliance with the Iowa Court Rules governing electronic
service. See id. at 655. Unlike email, however, facsimile transmission has
not replaced postal mail as the normal means of communication between
lawyers. Outside the narrow context of email service pursuant to the Iowa
Court Rules governing EDMS, Ortiz concluded “[a]ny other method of
communication would be unexpected and jeopardize the purpose of the
statute.” Ortiz, 928 N.W.2d at 655. It is unclear how the majority can
conclude service of notice by facsimile transmission substantially complies
with the statute when Ortiz specifically stated any other method of service
outside of email service pursuant to the Iowa Court Rules governing
electronic service “would be unexpected and jeopardize the purpose of the
statute.” Id.
13
Ignoring the holding and rationale of Ortiz, the majority muses
service by facsimile transmission might substantially comply with the
statute because the statute is old and the legislature might now consider
service by facsimile transmission as acceptable. This argument is
unpersuasive. We interpret and apply statutes using “the legislature’s
chosen statutory language, ‘not what it should or might have said.’ ” State
v. Ross, ___ N.W.2d ___, ___ (Iowa 2020) (quoting Auen v. Alcoholic
Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004)). It is the legislature’s
job to amend statutes in light of technological change, and a “change in
the statute can only come from the legislature.” Ortiz, 928 N.W.2d at 653.
We cannot exercise legislative power and amend the Iowa Code “in the
guise of interpretation” or construction. See In re Det. of Geltz, 840 N.W.2d
273, 280 (Iowa 2013).
The majority’s exercise of the legislative power is particularly
inappropriate here. The legislature has enacted, revised, and amended
numerous statutes to provide for the use of facsimile transmission. See,
e.g., Iowa Code § 8A.344(4)(a) (allowing public bids to be submitted “in
writing, by telephone, by facsimile, or in a format prescribed by the director
as indicated in the bid specifications”); id. § 16.92(3)(c) (allowing for service
of notice of release of mortgage by numerous methods, including “facsimile
transmission”); id. § 26.14(3)(b) (allowing public bidding quotations to be
“received by mail, facsimile, or electronic mail”); id. § 68A.402(1) (allowing
reports from political committees to be filed by “mail bearing a United
States postal service postmark, hand-delivery, facsimile transmission,
electronic mail attachment, or electronic filing as prescribed by rule”);
id. § 103.25(1) (allowing a request for inspection to be submitted by “mail
or by a fax transmission”); id. § 235F.6(10) (allowing clerk to notify sheriff
of elder abuse order “by facsimile or other electronic transmission”);
14
id. § 236.5(7) (allowing clerk to notify sheriff of protective order “by sending
the notice by facsimile or other electronic transmission”); id. § 252G.3(3)
(allowing employers to report employee information by mail or fax);
id. § 275.53(2) (allowing notice of commission’s dissolution proposal of
school district to be transmitted by mail, hand delivery, facsimile
transmission, or electronic delivery); id. § 275.54(2) (allowing notice of
board’s dissolution proposal of school district to be transmitted by mail,
hand delivery, facsimile transmission, or electronic delivery);
id. § 321E.2(5) (allowing requests for permits to be made “in person,
through the internet, by facsimile machine, or by telephone”);
id. § 514G.110(6)(b)(1) (requiring notice of designation of person to
conduct independent review of benefit determinations to “be sent to the
commissioner via facsimile”); id. § 572.34(7) (allowing notice of mechanic’s
liens to be sent to lien registry by “United States mail or facsimile
transmission” among other alternate methods). These Code provisions
demonstrate the legislature is aware of facsimile transmission and knows
how to amend statutes to provide for the service of notice and the
transaction of business by facsimile transmission. The fact that the
legislature has not amended Iowa Code section 17A.19(2) should be
respected and not disturbed.
In addition to being contrary to the text of the statute and contrary
to Ortiz, the majority opinion is also contrary to the great weight of
persuasive authority. Other courts have concluded service by facsimile is
not a substitute method for service where, as here, a statute or rule
specifically provides for other methods of service not including facsimile
service. See, e.g., United States v. Flowers, 464 F.3d 1127, 1131 (10th Cir.
2006) (“The Federal Rules . . . allow service by fax only when the party
being served by fax has consented to it in writing.”); Firefighter’s Inst. for
15
Racial Equal. v. St. Louis, 220 F.3d 898, 903 (8th Cir. 2000) (transmitting
subpoena by fax is insufficient to satisfy Federal Rule of Civil Procedure
45(b)(1)); Magnuson v. Video Yesteryear, 85 F.3d 1424, 1429 (9th Cir.
1996) (holding an offer of judgment must comply with service of process,
which is not satisfied by service by fax); Cherry v. Spence, 249 F.R.D. 226,
229 (E.D.N.C. 2008) (“A federal plaintiff may serve process on an individual
by handing a summons and complaint to the individual personally, by
leaving a summons and complaint at the individual’s house or other place
of abode, by serving the individual’s authorized agent, or by serving the
individual in compliance with the law of the state where the federal court
is located. Service by facsimile does not fit into any of the first three
categories . . . .” (citation omitted)); United States v. Galiczynski, 44
F. Supp. 2d 707, 713 (E.D. Pa. 1999) (“The result reached here, that the
Federal Rules of Civil Procedure do not authorize service by fax, is
consistent with the unanimous decisions rendered by courts that have
considered the issue.”), aff’d, 203 F.3d 818 (3d Cir. 1999); Switzer v.
Sullivan, No. 95 C 3793, 1996 WL 52911, at *1 (N.D. Ill. Feb. 5, 1996)
(“[S]ervice by fax raises difficult issues of timing and verification.
Accordingly, service by fax does not satisfy Rule 5(b).”); Salley v. Bd. of
Governors, 136 F.R.D. 417, 420–21 (M.D.N.C. 1991) (“[T]he Court
determines that fax transmissions do not constitute either service by
delivery or service by mail as those terms are used in Rule 5(b).”); Wagner
v. South Pasadena, 93 Cal. Rptr. 2d 91, 96 (Ct. App. 2000) (holding the
service of the “initial pleading by facsimile was not substantial
compliance”); Phillips, Inc. v. Historic Props. of Am., LLC, 581 S.E.2d 389,
390 (Ga. Ct. App. 2003) (finding service via facsimile does not substantially
comply with the statute because the “inherent unreliability of service via
facsimile does not serve the purpose of ensuring that the owner timely
16
receives notice of a lien”); Cox v. Mid-Minn. Mut. Ins., 909 N.W.2d 540, 546
(Minn. 2018) (holding personal service requirement excludes facsimile
transmission); Marshall v. State, M-40414, 544 N.Y.S.2d 437, 438 (Ct. Cl.
1989) (“Service of a claim by fax is not an authorized method of service
and service by means other than prescribed by the statute is insufficient
for the purpose of obtaining personal jurisdiction over defendant.” (citation
omitted)); Inman v. Netteland, 974 P.2d 365, 369 (Wash. Ct. App. 1999)
(holding facsimile “does not constitute service on an attorney or party”
where the rules provide for other methods of service).
In accord with the fair and ordinary meaning of the statute, I would
hold Iowa Code section 17A.19(2) requires a party seeking judicial review
of an agency action to serve all the parties of record by personal service or
mail service as a prerequisite to invoking the district court’s appellate
jurisdiction. In accord with Ortiz, I would hold service of notice by
facsimile transmission does not substantially comply with the statutory
mandate because service by facsimile transmission is an “unexpected”
form of communication not subject to the Iowa Court Rules and thus
“jeopardize[s] the purpose of the statute.” Ortiz, 928 N.W.2d at 655. For
these reasons, I respectfully dissent.
Oxley, J., joins this dissent.