SBD
Admiral
Joined: 19 Aug 2004
Posts: 1022
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 Posted: Sat Dec 02, 2006 7:02 am Post subject: MT. SOLEDAD VOTE UPHELD-ATTORNEY COSTS REVERSED |
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LINK TO DECISION
| Quote: | A. The transfer does not in itself violate the First Amendment establishment clause or the California Constitution.
We begin by noting that donation of the Mount Soledad site to the federal government is not in itself improper or unconstitutional. The ability of the City to acquire and dispose of its property is broad. As a municipal corporation, the City has the general legal power and authority to "own and acquire property within or without its boundaries for either governmental or proprietary, or any municipal purpose either by succession, annexation, purchase, devise lease, gift or condemnation, and may sell, lease, convey, exchange, manage and dispose of the same as the interests of said City may
require." (City Charter, art. I, § 1.)
Contrary to concerns expressed by the trial court in its written opinion, and by Paulson on appeal, the conveyance of parkland mandated by Proposition A is not an improper gift of public funds. The City Charter authorizes conveyance and disposal of public land as the interests of the City may require. The caveat is that if disposal of parkland will result in a changed use, the disposal or conveyance must have the approval of two-thirds of the voters. We further note it is well settled law in California that in determining whether an appropriation of public funds or property is to be considered an
improper gift, the primary question is whether the funds are to be used for a "public" or "private" purpose (County of Alameda v. Janssen (1940) 16 Cal.2d 276, 281) and whether the government action is expressly forbidden by general state law or the city's charter. (West Coast Adver. Co. v. San Francisco (1939) 14 Cal.2d 516 , 521-522.) Transfer of funds or property for public purposes is permissible. The determination of what constitutes a public purpose is primarily a matter for the legislative body and all presumptions favor its validity; it will be upheld unless illegality clearly and unmistakably appears. (County of Alameda v. Janssen, supra, 16 Cal.2d at p. 281 Community Memorial Hospital v. County of Ventura (1996) 50 Cal.App.4th 199, 206; Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 189-190.) As noted, the donation of the Mount Soledad site is authorized by the City Charter. The donationfulfills important public purposes inasmuch as it operates to preserve parkland, one of the City's priorities, and divests the City of a costly and divisive public park site.
Finally, there is no argument presented or any authority cited to us standing for the proposition that the City may transfer the Mount Soledad site only if the cross is removed. We would have serious concerns respecting the prohibition of hostility to religion embedded in article I, section 4 of our Constitution and the federal establishment clause if, prior to otherwise divesting itself of land on which religious artifacts or icons rest, a government entity were required to remove or destroy them. The question therefore is whether the donation mandated by Proposition A falls within the range of circumstances under which the City may constitutionally transfer the memorial. We conclude it does.
B. The transfer does not violate the First Amendment establishment clause or Article I, Section 4 establishment clause.
Both the United States Constitution and the California Constitution forbid the establishment of religion.The First Amendment to the United States Constitution states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ."
In relevant part article I, section 4 of the California Constitution states: "Free exercise and enjoyment of religion without discrimination or preference are guaranteed. . . . The Legislature shall make no law respecting an establishment of religion." (Italics added.) The California Constitution, thus, contains both a prohibition against the enactment of laws respecting the establishment of religion and a guarantee of the exercise of religion without discrimination or preference.
While the California Constitution is a document of independent force, the protections it creates in article I, section 4, concerning the establishment of religion are no broader than those created by the First Amendment of the United States Constitution and "coincide with the intent and purpose" of the federal establishment clause. The construction given by California courts to the establishment clause of article I, section 4, is guided by decisions of the United States Supreme Court. (East Bay Asian Local Development Corp. v. State of California, supra, 24 Cal.4th at pp. 718-719.) In its most recent application of the California establishment clause, our state Supreme Court relied almost exclusively on United States Supreme Court cases interpreting and applying the federal establishment clause. (Id. at pp. 703-719.) Prominent among that authority is Lemon v. Kurtzman (1971) 403 U.S. 602, 612-613 [91 S.Ct. 2105]. Lemon presents a three-part test. First, the challenged municipal action must have a secular legislative purpose; second, the action's principal or primary effect must be one that neitheradvances nor inhibits religion; and finally, the action must not foster an excessive government entanglement with religion. (Ibid.)
The most recent United States Supreme Court case dealing with governmental involvement with a passive religious monument is Van Orden, supra, 545 U.S. 677 [125 S.Ct. 2854]. The question in Van Orden was whether the establishment clause of the
First Amendment allowed the display of a monument inscribed with the Ten Commandments on the grounds of the Texas State Capitol. While the judgment was that the location of the monument did not violate the federal establishment clause, there was
no majority opinion. The plurality opinion, written by Chief Justice Rehnquest, and joined by Justices Scalia, Kennedy and Thomas, questions the use of the Lemon test where government display of a passive monument is involved. The opinion regards
Lemon's three prongs as "no more than helpful signposts." Instead, the justices would employ a test of constitutionality driven by the nature of the monument, and the history and role of religion in the United States. ([125 S.Ct. at pp. 2860-2861].) Writing separately, Justice Breyer believes instead that the purpose analysis of Lemon is still viable and controls the establishment clause issue presented. Because he felt there was no demonstration of an unconstitutional purpose in the case, he agrees with the conclusion but not the legal analysis of Justice Rehnquest's decision. ([125 S.Ct. at p.
2868] concurring opinion of Breyer, J.) The dissent filed by Justice Souter, who is joined by Justices Stevens and Ginsburg, looks essentially to an examination of the "preeminent purpose" of the monument. ([125 S.Ct. at p. 2892] dissenting opinion of Souter, J.) A second dissent, written by Justice Stevens and joined by Justice Ginsburg, emphasizes thehistory, nature, appearance and setting of the monument. ([125 S.Ct. at pp. 2873-2875] dissenting opinion of Stevens, J.) Justice O'Connor "for essentially the reasons given by Justice Souter" also dissented.
On the same day the court decided Van Orden, it also decided McCreary. McCreary involves the display of the King James version of the Ten Commandments in the courthouses of two Kentucky counties. In an opinion written by Justice Souter and
joined by Justices Stevens, O'Connor, Ginsburg and Breyer, the court found the displays violated the federal establishment clause. The opinion notes that since the decision in Lemon, an important consideration in establishment clause analysis is whether the government action in question has a secular purpose. Purpose is determined by discoverable facts, such as the text of the act, its legislative history and its implementation. (McCreary, supra, 545 U.S. 844 [125 S.Ct. at pp. 2733-2735].)
Applying a purpose analysis, the court found the display unconstitutional. Justice Scalia's dissent is joined by Chief Justice Rehnquest and Justice Thomas, and in part by Justice Kennedy. Consistent with their views in Van Orden, the dissenters urge a test of constitutionality governed by the history and nature of the monument, and the role of
religion in the United States. While Van Orden and McCreary present an unsettled debate respecting the application of the three-prong Lemon test to government retention and control of passive monuments, there is no majority in either Van Orden or McCreary that disapproves its use or rejects the purpose analysis critical to the Lemon test. Indeed, McCreary's
majority reinforces its use. Given these decisions, and our belief that the Lemon test is useful in cases where as here the question involves government divestiture of a passive monument, we will use the Lemon test as a structure for our analysis and where applicable, employ the teaching of Van Orden, McCreary and California authority. (See East Bay Asian Local Development Corp. v. State of California, supra, 24 Cal.4th at p. 708.)
1. Purpose
When government acts with the ostensible and predominant purpose of advancing religion, it violates the central establishment clause value of official religious neutrality. (McCreary, supra, 545 U.S. 844 [125 S.Ct. at p. 2733]; Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos (1987) 483 U.S. 327, 335 [107 S.Ct. 2862]; Fox v. City of Los Angeles (1978) 22 Cal.3d 792, 797.) In determining whether government action is neutral, a secular purpose must be shown. The secular purpose stated must be genuine, not a sham, and it may not be merely secondary to what is primarily a religious objective. (McCreary, supra, 545 U.S. 844 [125 S.Ct. at p. 2735]; Edwards v. Aguillard (1987) 482 U.S. 578, 586-587, 590 [107 S.Ct. 2573]; Stone v. Graham (1980) 449 U.S. 39, 41 [101 S.Ct. 192] (per curiam).) It has been held that government action will be tainted where its purpose is "entirely motivated by a purpose to advance religion" (Wallace v. Jaffree (1985) 472 U.S. 38, 56 [105 S.Ct. 2479), and we may look to see whether government activity is "motivated wholly by religious considerations" (Lynch v. Donnelly (1984) 465 U.S. 668, 680 [104 S.Ct. 1355]). These inquiries, however, are not determinative where it can be found that an articulated secular purpose is implausible or trivial. (McCreary, supra, 545 U.S. 844 [125 S.Ct. at p. 2736].) Lemon's purpose requirement aims to prevent government from abandoning neutrality and dividing the citizenry into those who are favored and those who are not. (McCreary, supra, 545 U.S. 844 [125 S.Ct. at p. 2733]; Santa Fe Independent School Dist. v. Doe (2000) 530 U.S. 290 [120 S.Ct. 2266].)
The purpose of government action and therefore the existence of government neutrality is discerned from its text, structure, purpose and history as well as the body of evidence contained in the record. (McCreary, supra, 545 U.S. 844 [125 S.Ct. at pp.
2734, 2738].) "The eyes that look to purpose belong to an ' "objective observer," ' one who takes account of the traditional external signs that show up on the ' "text, legislative history, and implementation of the statute" ' or comparable official act." (Id., quoting Santa Fe Independent School Dist. v. Doe, supra, 530 U.S. at p. 308; and Wallace v. Jaffree, supra, 472 U.S. at p. 73.) Thus the purpose for which government action takes place "emerges from readily discoverable fact, without any judicial psychoanalysis of a drafter's heart of hearts." (McCreary, supra, 545 U.S. 844 [125 S.Ct. at p. 2734].) The text of Public Law No. 108-447 is neutral. In offering to accept a transfer of the Mt. Soledad property, the federal government in Public Law No. 108-447 makes no promises, nor embarks on an understanding, as to what will happen to the cross once it is
transferred to the Department of the Interior. Paulson, however, notes that the acceptance language of Public Law No. 108-447 states the Secretary of the Interior "shall administer the Mt. Soledad Veterans Memorial as a unit of the National Park System, except that the Secretary shall enter into a memorandum of understanding with the Mt. Soledad Memorial Association for the continued maintenance by the Association of the cross and surrounding granite memorial walls and plaques of the Memorial." (Italics added.)
Paulson argues this understanding constitutes an agreement the cross must remain standing after the transfer. We disagree.
The term "maintain" has multiple meanings. It means "to keep in existence or continuance; preserve; retain." It also means "to provide for the upkeep or support of; carry the expenses of." (Random House Dict. of the English Language (Unabridged 2d ed. 1987) p. 1160.) The text of Public Law No. 108-447 does not inform as to which of these meanings is intended. Nor does the language of Proposition A, which does not itself direct who will maintain the Mount Soledad site after transfer. However, we note that in a letter dated March 15, 2005, Richard W. Pombo, Chairman of the United States House Committee on Resources, explains what the term "maintenance" means in the context of Public Law 108-447. He notes the provision directing the Secretary of the Interior to enter into agreements with veterans groups to maintain memorials is "standard operating procedure for many units of the National Park System". He adds: "The Association has the finances and the willingness to continue to maintain the memorial, and rather than further burden the National Park Service with increased costs, having the Memorial Association take over this aspect of the memorial was an excellent alternative." (Italics added.) He further notes that while Public Law 108-447 describes the cross as part of the Mount Soledad memorial, the description arose because there was no map of the site. In order to describe what was included in the transfer, an inventory, including the cross, was listed along with the legal description. In any event we see nothing that allows the Association any veto power over the federal government's decision to keep the cross as a permanent part of the memorial or remove it.
Paulson's argument also assumes the Association is anxious to accept the cross and keep it permanently as part of the memorial. The record does not support this assumption. During proceedings in federal court, the Association entered into an agreement with Paulson respecting the removal of the cross from the Mount Soledad site. The Association made two appearances before the trial court in this case. Each time, and especially on October 3, 2005, it made clear through counsel that its the memorial was not the Association's priority, and indeed at the October 3, 2005, hearing, it stated that it was amenable to replacing the cross if necessary to assure the continued existence of the veterans memorial. We are satisfied the word "maintenance," means the Association may continue providing funds and care for the memorial. Nothing in the language or explanation of federal policy indicates an agreement to keep the cross as part of the memorial. Nothing in the record supports the conclusion that following transfer, the Association wants to, or has the power to, permanently keep the cross at the site.
Finally, and significantly, in its pre-election ruling that a two-thirds vote was necessary for passage of Proposition A the trial court expressly concluded Public Law 108-447 gives no assurance the Department of the Interior will retain the cross or for that matter any of the existing monument. It noted as well the Department of the Interior could in the future exchange the property. In effect the trial court found the federal government made no promise to retain the cross. The text of Proposition A is also neutral. Proposition A presented the following question to San Diego voters: "Shall the City of San Diego donate to the federal government all of the City's rights, title and interest in the Mt. Soledad Veterans Memorial property for the federal government's use of the property as a national memorial honoring veterans of the United States Armed Forces?" The proposition divests the City of the entirety of the Mount Soledad site. It is understood by the language of the proposition that the site will be used by the federal government for federal parkland; a condition consistent with article V, section 55 of the City Charter, which sets as a priority the use and management of city parkland as parkland. There is no requirement or understanding by the City that the cross will remain on the property once a transfer takes place. The language of the supporting argument in the voter pamphlet does not persuade us otherwise. The language repeatedly references saving a war memorial built as a tribute to veterans who sacrificed their lives. Despite the neutrality of language in the text of Public Law No. 108-447 and Proposition A, Paulson urges, and the trial court found, that the transfer mandated by Proposition A is a "sham" designed to assure the cross, for the purpose of advancing religion, is retained following the transfer. We disagree.
While it is the court's duty to distinguish a sham secular purpose from a sincere purpose, the inquiry is limited and deferential; where the action is legislative in nature the court should be reluctant to ascribe unconstitutional motives, particularly if a plausible secular purpose can be discerned from the face of the statute. (Mueller v. Allen (1983) 463 U.S. 388, 394-395 [103 S.Ct. 3062]; McCreary, supra, 545 U.S. 844 [125 S.Ct. at p. 2735] [noting legislative bodies seldom set out to violate the Constitution].)
When, by passage of Public Law No. 108-447, the federal government offered to accept a donation of the Mount Soledad site, the City expressly refused the invitation (R- 300207). Thereafter, a referendary petition carrying nearly 72,859 voter signatures was presented to the city council requesting R-300207 be rescinded. The statement of reasons presented on the referendary petition references "saving the cross" as part of a veterans war memorial.11 On May 17, 2005, following a lengthy public hearing before the city council, the City passed R-300437, which rescinded resolution R-300207. It again refused to pass an alternative resolution that would accept the transfer offer. Instead, the City passed O-19378, which placed Proposition A before the voters. The text of O-19378 states: "Introduction and adoption of an Ordinance submitting to the qualified voters of the City of San Diego at a Special Municipal Election, one Proposition regarding whether or not the City shall donate to the United States all of the City's Rights, Title, and Interest in the Mt. Soledad Veterans Memorial property." There is no reference to the cross or religion.
The expression of intent accompanying O-19378 authorizing Proposition A states: "WHEREAS, upon considering the referendary petition, the City Council . . . determined that a clear and unambiguous Council-sponsored proposition on the subject of the Mt. Soledad Veteran's Memorial would be a more appropriate manner of ascertaining the will of the people with regard to the federal government's offer." The history and the express intent of the city council in placing Proposition A before the voters reveals the fate of the Mount Soledad site was left to the democratic process. In this sense placing Proposition A on the ballot was an act of deference to political reality, not City support for a religion. Paulson successfully urged at trial and argues on appeal that the statements of City officials and others involved in the political process that brought Proposition A to the ballot, newspaper articles, and references to "the cross" in the ballot materials supporting the donation demonstrate impermissible religious preferences and symbolic support for religion. There are two fatal flaws in this argument.
First, unlike prior attempts to divest the Mount Soledad site through sales, we are dealing with a transfer accomplished by a vote of the electorate. Statements and positions of elected officials and proponents or opponents of legislation are typically a part of the public debate inherent in the democratic process leading to that vote. Newspaper articles are also a part of the public debate. We do not believe that the position of any one advocate in, or interpreter of, vigorous public debate may be declared to reflect the ultimate position of all voters. The more appropriate question is whether the language of the initiative measure is sufficiently clear to compel the inference that the voters intended the cross be transferred for an illegal purpose, that is, in order to preserve it as a religious symbol or for a religious purpose. (See Californians For Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 229-230.) While one can hypothesize a situation where the language of a ballot proposition might clearly reflect an improper religious purpose, this is not such a case.
The language of Proposition A states the transfer of the Mount Soledad site would occur "for the federal government's use of the property as a national memorial honoring veterans of the United States Armed Forces." At the beginning of the Argument in Favor of Proposition A, which appears in the voter pamphlet, the following language appears: "Vote YES to save the Mount Soledad Memorial – AS IT IS, WHERE IT IS – with its centerpiece 29-foot cross, walls and plaques, by transferring it to the Federal government!" There is one additional express reference to the cross, as a part of the quality of life and landscape in San Diego. There is reference to "symbols of the fallen." The language of the Argument is replete with references to transferring the entire site in order to retain it as an historic veterans war memorial. Given the language of Proposition A and the official ballot argument in favor of the proposition, we cannot conclude the individuals who voted for the proposition acted in order to establish the Christian religion or favor that religion.
Second, we take seriously cases from our state Supreme Court and United States Supreme Court reminding us that we should proceed with caution when invited to determine the motives of the electors whose votes are cast in the privacy of the ballot
box. (Californians for Disability Rights v. Mervyn's, LLC, supra, 39 Cal.4th at pp. 229- 230; also see United States v. O'Brien (1968) 391 U.S. 367, 383 [88 S.Ct. 1673]; Arizona v. California (1931) 283 U.S. 423, 455 [51 S.Ct. 522].) Particularly is this so where as here there are multiple reasons that may motivate voters' choices individually and collectively. Neither we nor the parties to this action could ever discern the religious inclination or motives of the 72,859 persons who signed the referendary petition to rescind R-300207. Nor can we discern the motives of 197,125 individuals, 76 percent of those voting, who ultimately passed Proposition A. We cannot tell whether in casting a vote in favor of Proposition A an individual voter did so for a religious reason, a secular desire the cross remain as part of a veterans memorial or simply a neutral desire to transfer to another venue the issue of the cross's presence at the site. If on review this court, in such a complete factual vacuum, were to assess and then interpret voters' motives, we seriously risk supplanting our personal views for those of the voting public.
The same flaws would occur were we to attempt to ascribe to voters the intent of any individual or group that supported or opposed the proposition or the placement of the proposition on the ballot. (Quintano v. Mercury Casualty Co. (1995) 11 Cal.4th 1049, 1062; also see Board of Education v. Mergens (1990) 493 U.S. 1014 [110 S.Ct. 711].) In effect Paulson urges correction of what he perceives to be a trick played on the voters.12 The trial court agreed with this argument, finding the process of bringing Proposition A to the ballot was a sham. For the reasons noted we decline on the facts of this case to go behind the curtain of the ballot box, but we add that there are other important institutional reasons for our conclusion.
As a corollary to the principle that establishment law analysis does not look to the "veiled psyche" of government officers, McCreary acknowledges that it is indeed possible savvy officials may succeed in disguising religious purpose so well that an
objective observer acquainted with the text, history and implementation of the government action may not be able to see the government impropriety. (McCreary, supra, 545 U.S. 844 [125 S.Ct. at pp. 2734-2735; Wallace v. Jaffree, supra, 472 U.S. at p.
74, O'Connor, J. concurring in the judgment.) This, however, is "no reason for great constitutional concern." (McCreary v. American Civil Liberties Union, supra, 545 U.S. 844 [125 S.Ct. at p. 2735].) Because the improper purpose is so hidden, "without something more the government does not make a divisive announcement that in itself amounts to taking religious sides. A secret motive stirs up no strife and does nothing to make outsiders of nonadherents, and it suffices to wait and see whether such government action turns out to have (as it may even be likely to have) the illegitimate effect of advancing religion." (Ibid.)
These principles are helpful here. In the context of a public vote on a neutral ballot measure, we believe it inappropriate to invalidate that vote on the ground the public may have been tricked into approval of an unconstitutional measure establishing or preferring a religion. There have been approximately 17 years of open and controversial public debate concerning the cross and what purpose it serves as the centerpiece of the Mount Soledad site. During this period of time the lines of philosophy concerning the purpose and meaning of the cross have been clearly and publicly drawn. Cogent arguments have been made by the parties.
Given this history of the site and open nature of the debate, we do not believe the public as a whole or the individual voter would be easily fooled concerning what they cast their vote for, and more importantly why. We therefore follow the lead of the majority in McCreary. The language of Proposition A and Public Law No. 108-447 is neutral with respect to retaining the cross after transfer. The history leading to the City placing Proposition A on the ballot evidences a legitimate political purpose for doing so. There are multiple reasons advanced in favor of, or opposition to, the Proposition, including that of keeping a secular veterans memorial. The decision concerning the fate of the cross was made by an educated public. With these observations in mind, any judicial attempt to discern or ascribe a hidden purpose behind a vote of the electorate would create rather than dispel divisiveness. As McCreary notes, in the face of sincere argument that silent impropriety drives public action, it is better to wait and see if there is an improper effect.
We are also mindful that changes to a monument will not support a finding of lawful purpose if they are actually sham "litigation positions." (McCreary, supra, 545 U.S. 844 [125 S.Ct. at p. 2740].) In making such a determination here the trial court focused on the multiple unsuccessful attempts to sell the Mount Soledad site, and continued expansion of the site, as a basis for its conclusion that the City was engaged in a sham when it placed Proposition A on the ballot. The multiple attempts to transfer the Mount Soledad site and cross prior to passage of Proposition A do not strike us as litigation positions. The attempts to divest the site were certainly occurring at the same time as litigation was progressing through the courts, but there is an important difference between an attempt by government to retain control over a passive monument by doctoring it to fit current litigation, as was the situation in McCreary, and a purchaser of a passive monument changing and expanding the monument in the good faith belief it owns the property and has the legal power to do so. The changes in the Mount Soledad site were not made by the City, but by the Association, a private veterans organization that was twice the purchaser of the site; the first time, of the cross and land immediately under it, and then in the second sale, the cross, monument and substantial acreage. The planning and fundraising involved in the expansion were carried out by the Association. Moreover, as the presence of the cross compounded the Association's difficulties in establishing its veterans monument, the
Association began to favor removal of the cross from the site. Thus the litigation did not result in the Association wanting to change the monument to keep the cross, rather the litigation resulted in the Association deciding the cross should be removed. The record reflects the approximately $1 million raised by the Association and spent on developing the memorial occurred because the Association believed it owned the site and was entitled to raise funds to expand it. The sincerity of the Association, which agreed with the trial court's decision invalidating Proposition A, was not questioned at trial nor has it been on appeal.
Finally, as part of its ruling that the City favors the Christian religion and the transfer of the site is a sham, the trial court notes that baptisms, weddings and annual Easter sunrise services continue to occur at the memorial. Throughout the proceedings in this case and as noted in prior federal cases finding sales of the site unconstitutional,13 these events are often referenced as activities that somehow impact the City's hidden religious preference or religious discrimination. We disagree. The record reflects the sunrise services are authorized through the city permit process and that permits are obtained by the Association, a private group, for the event. Nothing supports the conclusion that the Easter sunrise services are City events or are sponsored in any way by the City. To the extent weddings and baptisms occur at the site, we have nothing in the record that indicates the Mount Soledad site is treated differently than any other public park site in San Diego. Nor do we know if citizens engaging in the past weddings or baptisms needed to obtain permits, or if any of the individuals involved in those events did obtain necessary permits. In short, these activities do not define the City's involvement with the cross or monument. They define the ways in which the public chooses to use the monument. If we were to assume valid sectarian public use defines the City's purpose in permitting such use, we would by logic be pressed to the unfortunate position that such public use should end. This we believe would create an unacceptable hostility to religion.
Attorney Fees and Costs
As part of its ruling the trial court awarded Paulson attorney fees and costs in the amount of $268,541.02. It did so pursuant to Code of Civil procedure 1021.5. On appeal the City argues the trial court erred in making the award because it required the City pay the fees and costs incurred by others. In light of our reversal of the trial court's ruling, the attorney fees award is reversed as well.
DISPOSITION
The holding of the trial court is reversed. Parties to pay their own costs on appeal. CERTIFIED FOR PUBLICATION BENKE |
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