ABCO v. Tax Commission

2009 UT 36
AMENDED OPINION*
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
ABCO Enterprises, 	No. 20070429
Petitioner,
v.
Utah State Tax Commission;
Board of Equalization of Weber 	F I L E D
County, State of Utah,
Respondents. 	June 12, 2009
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Original proceeding in this court
Attorneys: 	Randall K. Spencer, Provo, for petitioner
Mark L. Shurtleff, Att’y Gen., Bradley C. Johnson,
Asst. Att’y Gen., Salt Lake City, for Tax Commission
Monette Hurtado, Ogden, for Board of Equalization
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DURHAM, Chief Justice:
INTRODUCTION
¶1 	As part of a land exchange agreement with Ogden City,
ABCO Enterprises (ABCO) occupied and used for several years two
parcels of property owned by Ogden City. 	Because of Ogden City’s
ownership, the properties were exempt from property tax under the
Utah Constitution. 	In spite of the exempt nature of the
properties, the Weber County Board of Equalization (Weber County)
assessed a privilege tax against ABCO pursuant to Utah Code
section 59-4-101. 	Under the statute, because ABCO used the
properties to conduct a for-profit business ABCO must pay a
privilege tax in the same amount as the property taxes that would
have been owed by an owner of nonexempt property. 	Both Weber
County and the Utah State Tax Commission (the Commission) ruled
that Weber County properly assessed the privilege tax. 	ABCO now
asks us to determine whether section 59-4-101, by assessing a
privilege tax on a leasehold interest at the same amount that a
_________________________________________________________________
* The Court has rewritten paragraph number 7.

1 On appeal from an order of an administrative agency, the
appealing party, in this case ABCO, “bears the burden of
demonstrating that the agency’s factual determinations are not
supported by substantial evidence . . . [and] we state the facts
and all legitimate inferences drawn therefrom in the light most
favorable to the agency’s findings.” 	Zissi v. State Tax Comm’n,
842 P.2d 848, 852 (Utah 1992) (citing Utah Code Ann.
§ 63-46b-16(4)(g) (current version at Utah Code Ann.
§ 63G-4-403(4)(g) (2008))).
No. 20070429 	2
fee simple interest would be assessed, violates the uniform
operation of laws provision of article I, section 24 of the Utah
Constitution or the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution. 	We hold that
section 59-4-101 does not violate Utah’s uniform operation of
laws provision, and therefore does not violate the Equal
Protection Clause. 	Accordingly, we affirm the decision of the
Commission.
BACKGROUND1
¶2 	In 1997, ABCO entered into an agreement with Ogden City
to exchange two parcels of its property for two parcels owned by
Ogden City. 	The two parcels owned by Ogden City included
existing buildings and are numbered parcel number 30-300-7173
with Building 6D, and parcel number 30-300-7089 with Building 9A
(hereafter the land and all the improvements will be referred to
as Building 6D and Building 9A respectively). 	Building 9A and
Building 6D are located in the Business Depot, a former military
base which Ogden City purchased and redeveloped as a business
park in the midnineties. 	Since the federal government needed to
complete the environmental and title work before title could
transfer to ABCO, ABCO entered into a property exchange agreement
with Ogden City. 	Under the agreement, Ogden City would retain
title to its properties until the environmental studies and title
work were finished and ABCO would occupy and use the properties.
ABCO occupied the buildings and used the properties during all
periods at issue in this case.
¶3 	In 2005, Weber County assessed a privilege tax on
Building 6D for the tax years 1999 through 2005, and on Building
9A for the tax years 2002 through 2005. 	Since Ogden City still
held title to the properties, it was exempt from taxation
pursuant to the Utah Constitution. 	See Utah Const. art. XIII,
§ 3(1) (exempting property owned by the State or by a political
subdivision of the State from property taxes). 	ABCO was
nonetheless subject to a privilege or use tax pursuant to Utah
Code section 59-4-101 based on its for-profit business use of the

3 	No. 20070429
exempt property. 	Under the statute, the privilege tax is
“imposed under this chapter [in] . . . the same amount that the
. . . tax would be if the possessor or user were the owner of the
property.” 	Utah Code Ann. § 59-4-101(2) (2006). 	Consequently,
as here, if the property is owned by a tax-exempt entity but it
is leased to another entity in connection with a for-profit
business, then the lessee is liable for the privilege tax in the
same amount as the owner would be if the owner were using the
property in connection with a for-profit business.
¶4 	On November 11, 2005, ABCO filed a Request for
Redetermination with Weber County for its decision to levy the
privilege tax at the fee simple value as directed by the statute.
In the request, ABCO objected to Weber County’s valuation of the
properties because Weber County did not take into account the
fact that the properties were leased rather than owned. 	Weber
County reviewed the request and made a determination that the
taxable value was unchanged for the purposes of the statute; it
did not address the issue of the potential difference in value
between a title and leasehold interest in the properties. 	ABCO
appealed this determination to the Commission, which held a
formal hearing.
¶5 	In the Order resulting from the formal hearing, the
Commission adjusted the valuation of the property to reflect
ABCO’s evidence for a lower appraisal. 	The Commission, however,
rejected the lowest appraisal offered, which was calculated
solely on the leasehold nature of ABCO’s interest in the
properties. 	The Commission found that the statute under which
the tax was levied made no distinction between leasehold and fee
simple values and that the Commission lacked the authority to
evaluate whether the statute was unconstitutional.
¶6 	ABCO petitioned this court to review the Commission’s
decision. 	We have jurisdiction over this matter pursuant to Utah
Code section 78A-3-102(3)(e)(ii) (2008). 	The appeal presents two
issues: 	(1) whether Utah Code section 59-4-101 is
unconstitutional under article I, section 24 of the Utah
Constitution because it classifies potentially differently
situated persons in a similar manner, and (2) whether Utah Code
section 59-4-101 is unconstitutional under the Equal Protection
Clause of the United States Constitution for the same reason.
STANDARD OF REVIEW
¶7 	In reviewing a formal adjudicative proceeding of the
Utah State Tax Commission, we look to Utah Code section 59-1-610.
See State Tax Comm’n v. Stevenson, 2006 UT 84, ¶ 20, 150 P.3d

No. 20070429 	4
521. 	We grant deference to the Commission’s “findings of fact,
applying a substantial evidence standard on review.” 	Utah Code
Ann. § 59-1-610(1)(a) (2008). 	We review the Commission’s
conclusions of law for correctness, granting no deference where
the statute at issue, as here, gives no explicit grant of
discretion to the Commission. 	Id. § 59-1-610(1)(b). 	Also, “[a]
matter ‘of statutory interpretation [is] a question of law that
we review on appeal for correctness.’” 	MacFarlane v. State Tax
Comm’n, 2006 UT 25, ¶ 9, 134 P.3d 1116 (second alteration in
original) (quoting State v. Schofield, 2002 UT 132, ¶ 6, 63 P.3d
667).
ANALYSIS
I. 	THE PRESERVATION RULE DOES NOT BAR ABCO’S STATE
CONSTITUTIONAL CLAIM
¶8 	Before proceeding to ABCO’s state and federal
constitutional challenges, we address Weber County’s contention
that ABCO waived its state constitutional claims because it only
raised federal equal protection claims below. 	We hold that
where, as here, the sole issue on appeal is a facial
constitutional challenge to a tax statute, we may address that
challenge on appeal even if it has not been explicitly raised
before the administrative agency.
¶9 	Generally, the preservation rule applies in three
different situations, none of which are present in this case.
First, where an appeal is made from a trial court, an issue must
be preserved below “to give the trial court an opportunity to
address the claimed error,” and to “prevent[] a party from
avoiding an issue at trial for strategic reasons only to raise
the issue on appeal if the strategy fails.” 	Tschaggeny v.
Milbank Ins. Co., 2007 UT 37, ¶ 20, 163 P.3d 615 (quoting State
v. Cram, 2002 UT 37, ¶ 10, 46 P.3d 230) (internal quotation marks
omitted).
¶10 	Second, the preservation rule applies to appeals from
administrative agencies when mandated by statute. 	See Utah Code
Ann. § 54-7-15(2)(b) (Supp. 2008) (stating in statutory section
regarding judicial review of Public Service Commission decisions
that “[a]n applicant may not urge or rely on any ground not set
forth in the application in an appeal to any court”); Ball v.
Pub. Serv. Comm’n, 2007 UT 79, ¶ 42, 175 P.3d 545 (ruling that
judicial review of issues of agency error were waived where
issues were not preserved in request for agency reconsideration
as dictated by statute); Westside Dixon Assoc., L.L.C. v. Utah
Power & Light Co., 2002 UT 31, ¶ 22, 44 P.3d 775 (concluding that

5 	No. 20070429
failure to raise claims on petition before the Public Service
Commission constituted waiver on appeal).
¶11 	Third, as we explained in Nebeker v. State Tax
Commission, when not mandated by statute, the preservation rule
applies when the issue raised on appeal could have been resolved
in the administrative setting, or would have allowed the agency
to “obviate the need to address the constitutional” issue. 	2001
UT 74, ¶ 20 n.4, 34 P.3d 180 (holding constitutional claims
waived when “there are also non-constitutional claims that can be
resolved before the Tax Commission that may obviate the need to
address the constitutional question”). 	The rationale behind this
rule permits courts to avoid “procedural confusion and piecemeal
litigation.” 	Id. ¶ 19. 	We also noted in Nebeker that raising
the constitutional issue in the administrative proceeding might
have put the Commission on notice of potential constitutional
challenges and allowed it to rethink its administrative rules.
Id. ¶ 20.
¶12 	This case does not present any of the situations where
preservation is required. 	ABCO raised an equal protection
challenge to the statute below, albeit solely with reference to
the federal constitution. 	Applying the preservation rule to bar
the substantially equivalent state constitutional claim would not
serve any of the purposes cited in Nebeker. 	First, the overall
facial constitutional challenge could not have been avoided by
raising the state constitutional claim along with the federal
claim. 	Second, no “piecemeal litigation” has resulted from the
expansion of the claim. 	Third, raising the state constitutional
claim in the administrative proceeding would not have served any
useful purpose related to notice because the Commission had no
authority to address any of the constitutional claims. 	As this
is not an appeal from a trial court, the preservation rule is not
mandated by statute, and the presentation of the issue in the
administrative proceeding would not have served any useful
purpose, ABCO’s state constitutional claim is not waived.
Accordingly, we now address ABCO’s constitutional challenges.
II. 	THE UNIFORM OPERATION OF LAWS PROVISION PROTECTS
PERSONS FROM DISCRIMINATION AT LEAST AS MUCH
AS THE EQUAL PROTECTION CLAUSE
¶13 	ABCO argues that the privilege tax imposed by Utah Code
section 59-4-101 is unconstitutional under the uniform operation
of laws provision of the Utah Constitution and under the Equal
Protection Clause of the Fourteenth Amendment to the United
States Constitution because the statute impermissibly treats
differently situated parties in the same manner by applying the
same tax to lessees of exempt property as to owners.

No. 20070429 	6
¶14 	Despite differing language, the uniform operation of
laws provision affords protection similar to that of the Equal
Protection Clause. 	Article I, section 24 of the Utah
Constitution states: 	“All laws of a general nature shall have
uniform operation.” 	Utah Const. art. I, § 24. 	The Fourteenth
Amendment to the United States Constitution prohibits states from
enacting laws that “deny to any person within its jurisdiction
the equal protection of the laws.” 	U.S. Const. amend. XIV, § 1.
Both the uniform operation of laws provision and the Equal
Protection Clause “‘embody the same general principle: persons
similarly situated should be treated similarly, and persons in
different circumstances should not be treated as if their
circumstances were the same.’” 	Gallivan v. Walker, 2002 UT 89,
¶ 31, 54 P.3d 1069 (quoting Malan v. Lewis, 693 P.2d 661, 669
(Utah 1984)); see also State v. Merrill, 2005 UT 34, ¶ 31, 114
P.3d 585 (stating that the state and federal constitutional
provisions are “substantially parallel”); Wood v. Univ. of Utah
Med. Ctr., 2002 UT 134, ¶ 32, 67 P.3d 436 (stating that the
uniform operation of laws provision “is, in fact, the Utah equal
protection guarantee”); Lee v. Gaufin, 867 P.2d 572, 577 (Utah
1993) (stating that though the language and history of the two
provisions are different, “there are important areas of overlap
in the concepts embodied in the two provisions”). 	Since “our
analysis under the uniform operation of laws provision is at
least as rigorous as it would be under the federal equal
protection provision,” we accordingly limit our review to ABCO’s
state constitutional claim. 	Merrill, 2005 UT 34, ¶ 31.
III. 	UNDER OUR THREE-PART INQUIRY, THE PRIVILEGE TAX STATUTE
COMPLIES WITH THE UNIFORM OPERATION OF LAWS PROVISION
OF THE UTAH CONSTITUTION
¶15 	In analyzing a legislative enactment under article I,
section 24, we must make three determinations: 	(1) whether the
classification is reasonable; (2) whether the objective of the
legislative action is legitimate; and (3) whether there is a
reasonable relationship between the legislative purpose and the
classification. 	Blue Cross & Blue Shield of Utah v. State, 779
P.2d 634, 637 (Utah 1989); see also Anderson v. Provo City Corp.,
2005 UT 5, ¶ 18, 108 P.3d 701; Gallivan v. Walker, 2002 UT 89,
¶ 43, 54 P.3d 1069. 	While the analytical model used to determine
if the uniform laws provision is met is the same in all
inquiries, we give broad deference to legislative enactments in
the area of taxes and purely economic regulation. 	Blue Cross &
Blue Shield, 779 P.2d at 637; Mountain Fuel Supply Co. v. Salt
Lake City Corp., 752 P.2d 884, 888 (Utah 1988)). 	Further, we

7 	No. 20070429
strongly presume tax statutes are constitutional. 	Kennecott
Corp. v. Utah State Tax Comm’n, 858 P.2d 1381, 1384 (Utah 1993).
¶16 	ABCO argues that it is unreasonable to include lessees
of exempt property in the same class as fee simple owners for the
purposes of the privilege tax, and thus the uniform operation of
laws provision is violated by the legislature’s failure to treat
lessees as a differently situated class. 	We are not persuaded.
Utah Code section 59-4-101, which includes lessees of exempt
property in the same class as fee simple owners of exempt
property, is not unreasonable or arbitrary, nor does it lack a
reasonable relationship to the purpose of the taxing scheme.
A. 	The Privilege Tax Statute Creates
a Reasonable Classification
¶17 	Broad deference is given to the legislature when
assessing “the reasonableness of its classifications and their
relationship to legitimate legislative purposes.” 	Blue Cross &
Blue Shield, 779 P.2d at 637. 	But classifications and their
relationship to legislative purposes must be reasonable and not
arbitrary. 	State v. Merrill, 2005 UT 34, ¶ 34, 114 P.3d 585. 	To
determine whether an “imperfect classification” is an
impermissible classification, we “examin[e] . . . the impact of
the misclassification.” 	See Blue Cross & Blue Shield, 779 P.2d
at 643 (noting that examination of the impact of a classification
is not constitutionally required, but “can be relevant to
determining whether the legislative body has exceeded the bounds
of its broad discretion” by creating the classification at
issue). 	Among the factors we have used to evaluate a possibly
overinclusive tax-related classification, three are relevant
here: 	(1) the choice made by the potentially distinct class to
voluntarily join the classification, (2) the extent of the
competitive disadvantage caused by the classification, and
(3) the effectiveness of the tax in accomplishing the taxing
entity’s aims. 	See Amax Magnesium Corp. v. Utah State Tax
Comm’n, 796 P.2d 1256, 1261-62 (Utah 1990); Blue Cross & Blue
Shield, 779 P.2d at 644-45; Mountain Fuel Supply, 752 P.2d at
891.
1. 	ABCO Voluntarily Joined the Classification
¶18 	A classification may be unreasonable if fundamentally
different groups are compelled to be treated similarly under an
overinclusive classification. 	In Lee, we found that the
legislature had created an unreasonable and arbitrary
classification under the statute of limitations provision of the
Medical Malpractice Act because it “treat[ed] minors and adults

No. 20070429 	8
as if they were situated the same under the law.” 	867 P.2d at
578. 	The “targets” of the classification “could do nothing to
escape their fate. 	They did not join their statutory
classification by choice. 	They were not volunteers.” 	Merrill,
2005 UT 34, ¶ 38 (discussing Lee, 867 P.2d at 577). 	Some of the
rationales for finding the classification unreasonable were the
historically different rules “necessary to protect the legal
rights of children,” and the “fundamental differences between
minors and adults with respect to their status in the law.” 	Lee,
867 P.2d at 578-79.
¶19 	In this case, such fundamental differences do not exist
where lessees and fee simple owners are classified similarly for
purposes of achieving the goals of a tax statute. 	Lessees can
decline to be so classified by leasing nonexempt property rather
than exempt property. 	In contrast to the minors in Lee, ABCO is
a volunteer and could have escaped its fate merely by declining
to enter into the property exchange agreement with Ogden City.
2. 	The Privilege Tax Does Not Create a Competitive Disadvantage
¶20 	ABCO does not suffer from a substantial competitive
disadvantage from the classification. 	In Mountain Fuel Supply,
we concluded that a potentially underinclusive taxing scheme at
issue did not create a competitive disadvantage for the taxed
entity and effectively accomplished the aims of the taxing body.
752 P.2d at 891. 	There, Mountain Fuel Supply was able to pass on
the tax in question to its customers without a large
administrative burden and its customers continued to
overwhelmingly choose natural gas and electricity over other
heating fuel possibilities regardless of a tax added solely to
natural gas and electricity. 	Id.
¶21 	Here, ABCO argues that as a lessee it cannot use equity
value in the property to repair the roofs of the buildings, and
therefore it is unable to obtain the highest use of the
buildings. 	We fail to see how this is unlike the differences
between lessees and fee simple owners of nonexempt property,
where such factors as who must pay taxes and maintain buildings
are part of the negotiation of the terms of a lease. 	That ABCO
failed to protect itself in its negotiations of maintenance
provisions or tax burdens in its short-term property exchange
agreement with Ogden City does not result in a substantial impact
or a competitive disadvantage created by the statute.
Presumably, other lessees of nonexempt property who failed to
negotiate such provisions, or even fee simple owners who were
unable to leverage the property for various reasons, would be in

9 	No. 20070429
the same position as ABCO, regardless of the statute. 	Therefore,
the statutory classification is reasonable.
3. 	The Classification Effectively Achieves the Aims of Weber
County
¶22 	We have found that a classification reasonably achieves
the aims of a taxing entity where it would be too
administratively burdensome to collect the tax by creating
different classifications or where the classification is a
reasonable means to equalize the tax burden generally. 	See
Mountain Fuel Supply, 752 P.2d at 891 (holding that a potentially
underinclusive tax classification was reasonable because it would
be too large an administrative burden to collect such a tax from
“small-scale fuel suppliers”); Amax Magnesium Corp., 796 P.2d at
1261-62 (finding that the tax scheme was not an effective method
to accomplish the aim of equalizing the tax burden among state
and county assessments because the valuation method actually
aggravated the disparity between tax burdens rather than
equalizing it). 	In the end, “we do not require perfection” in
the area of purely economic regulation and recognize that
“[l]egislative enactments that are basically economic in nature
rarely affect all persons equally.” 	Blue Cross & Blue Shield,
779 P.2d at 644 (citation omitted).
¶23 	Here, the statute serves to equalize the tax burden.
Its objective is to “close any gaps in the tax laws” between
those who possess or use exempt property for a profit and those
who possess or use nonexempt property for a profit. 	Great Salt
Lake Minerals & Chem. Corp. v. State Tax Comm’n, 573 P.2d 337,
339 (Utah 1977). 	The privilege tax--regardless of whether the
taxee is the possessor or lessee of the tax-exempt property used
for 	profit--effectively achieves this purpose with less
administrative burden. 	The privilege tax ensures that exempt
property used in connection with a for-profit business is taxed
at an equal rate to the same business conducted on nonexempt
property.
B. 	The Legislative Purpose of the
Privilege Tax Statute Is Legitimate
¶24 	Even if some distinctions could be made among groups
within a classification, under the second step we may still
affirm the validity of the statute where “on the whole, after
considering the burdens it imposed on those taxed, it appear[s]
to be a reasonable attempt to achieve the legitimate government
ends.” 	Blue Cross & Blue Shield, 779 P.2d at 644 (discussing
this court’s affirmation of a classification scheme in Mountain

No. 20070429 	10
Fuel Supply that may 	“[a]t the margins . . . not have stood the
test of its justifications”).
¶25 	The legislative objective of section 59-4-101 is to
close any gaps in the tax laws. 	This objective was discussed at
length and validated in Thiokol Chemical Corp. v. Peterson:
It is evident that the 1959 Legislature,
by the enactment of Section 59-13-73, [later
renumbered as section 59-4-101,] intended to
close any gaps in the tax laws by imposing a
tax on any property possessed or used in
connection with a business for profit which
was otherwise exempt from taxation. 	It
closely resembles the Michigan statute of
similar purpose, which was recently held
constitutional in a series of U.S. Supreme
Court cases. 	They are grounded on the
proposition that a private contractor’s right
to use property in a business for profit may
be made subject to a nondiscriminatory tax
based on its value, even though title to the
property may be in the United States; and
that the burden of the tax may ultimately
fall on it.
393 P.2d 391, 393-94 (Utah 1964) (footnotes omitted) (emphasis
added). 	In Mountain Fuel Supply, we upheld the legitimacy of a
similar statute, which raised revenue and equalized the tax
burden in a more fair and uniform manner. 	752 P.2d at 890. 	ABCO
contends that under our reasoning in Beaver County v. Wiltel,
Inc., 2000 UT 29, ¶ 34, 995 P.2d 602, the legitimacy of the
legislative purpose to “close any gaps in the tax law” is
discounted. 	But that reliance is misplaced. 	In Wiltel, we held
that there was “no ‘gap’ to close” because the intangible
property at issue was subject to an entirely different tax scheme
and thus had “not escaped taxation.” 	Id.
¶26 	ABCO’s position would lead to a gap in the tax scheme
because ABCO is actually petitioning to be taxed for a lesser
amount. 	This lesser amount would create a gap in the tax scheme
by allowing lessees who use exempt property in connection with a
for-profit business to pay less tax than an owner of nonexempt
property. 	The full value of the exempt property would 	thus
escape taxation. 	Consequently, the gap would establish an
incentive for an owner of exempt property to lease the property,
and thus lower tax liability and for businesses to rent from
exempt over nonexempt property owners. 	Indeed, such a gap would

11 	No. 20070429
create a potential competitive disadvantage for businesses that
lease from private property owners. 	These are the sort of gaps
that the legislature sought to avoid. 	Thus, the legislative
purpose for the statute is legitimate.
C. 	A Rational Relationship Exists Between the
Legislative Purpose and the Classification
¶27 	The legislative purpose of the statute is “to close any
gaps in the tax laws by imposing a tax on any property possessed
or used in connection with a business for profit which was
otherwise exempt from taxation.” 	Thiokol Chem. Corp., 393 P.2d
at 393. 	This allows Weber County to raise revenue for
governmental expenses, which we have held is a legitimate
governmental purpose. 	Blue Cross & Blue Shield, 779 P.2d at 640.
Further, so long as there is no “unreasonable burden on the
affected parties,” Weber County “is not to be denied the . . .
effective means of raising . . . revenue[].” 	Mountain Fuel
Supply, 752 P.2d at 891.
¶28 	Here, it is not unreasonable to impose the pro rata
share of raising governmental revenue upon a lessee of exempt
property, especially where the property would otherwise escape
taxation. 	As discussed above, such taxes are able to be
negotiated between a lessee and owner and do not impose a
substantial competitive burden upon a lessee of exempt property
as opposed to a lessee of nonexempt property. 	Therefore, the
means used to achieve the legitimate governmental purpose are
reasonable.
CONCLUSION
¶29 	The privilege tax of Utah Code section 59-4-101 does
not violate the uniform operation of laws provision of the Utah
Constitution or the Equal Protection Clause. 	Our three-part
inquiry shows that the privilege tax meets the uniform operation
of laws provision. 	First, the classification created by the
privilege tax is reasonable, where ABCO voluntarily joined the
classification, the privilege tax creates no competitive
disadvantage, and the privilege tax equalizes the tax burden.
Second, the legislative purpose of the privilege tax is
legitimate in that the privilege tax closes any gaps in the tax
law. 	Third, the classification is rationally related to the
legitimate purpose where no unreasonable burden exists and the
privilege tax effectively closes any gaps through equalized
revenue generation. 	Accordingly, we affirm the decision of the
Commission.

No. 20070429 	12
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¶30 	Associate Chief Justice Durrant, Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.