HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/SPOKANE.ASC

Text File | 1993-01-14 | 29KB | 567 lines

/* This case is reported in 839 P.2d 324 (Wash. 1992). Needle
exchange programs have caused a great deal of controversy. While
many public health officials feel that such programs are vital to
reducing the spread of HIV since intravenous drug users spread
the infection by sharing needles. Others feel that regardless of
the slowing of the spread of HIV, the state should not assist
drug abusers by providing them with needles. One of the primary
legal objections to needle exchange programs are that the state
is violating other laws by distributing needles. In this landmark
opinion, the court finds that although there are laws against
distributing drug paraphernalia, these laws must be read together
with the laws authorizing HIV public health measures. This is
consistent with court attempting to harmonize conflicting laws.
This unanimous decision is important authority should another
needle exchange program be challenged in court. */

SPOKANE COUNTY HEALTH DISTRICT, and John A. Beare, as Spokane
County Health District Health Officer, Respondents,

v.

Donald C. BROCKETT, as Prosecuting Attorney for Spokane County;
Larry V. Erickson, Sheriff of Spokane County; and Kenneth O.
Eikenberry, Attorney General, Appellants, The State of
Washington; the Washington State Board of Pharmacy;  the
Washington  State  Department  of Health; the Washington State
Board of Health; the Washington State Patrol; Booth Gardner, as
Governor of the State of Washington; Spokane County; Terry
Mangan, City of Spokane Chief of Police; the City of Spokane; and
Region I Aids Service Network, Respondents.

Supreme Court of Washington, En Banc.

Nov. 5, 1992.



DOLLIVER, Justice.

Spokane County Prosecuting Attorney Donald C. Brockett, Spokane
County Sheriff Larry V. Erickson, and State Attorney General
Kenneth O. Eikenberry (hereinafter defendants) challenge a trial
court decision which approved a needle exchange program in
Spokane County. Defendants contend the program constitutes an
unlawful distribution of drug paraphernalia.

The facts in this case are undisputed. Human immunodeficiency
virus (HIV) is a blood-borne virus transmitted most frequently by
unprotected sexual intercourse or the sharing of HIV contaminated
needles and syringes among intravenous drug users (IVDUs).
Acquired immunodeficiency syndrome (AIDS) is the end stage of an
infection caused by HIV and is always fatal. The Washington State
Office of Epidemiology and Surveillance estimates between 9,000
and 14,000 state residents are infected with HIV.  By October 10,
1990, 2,018 "full blown" AIDS cases had been reported in
Washington.  Of those cases, approximately 20 percent reported IV
drug use as one of their behavioral risk factors. IVDUs are the
second largest transmission category in the United States to have
developed AIDS and are the fastest growing transmission category
for new AIDS cases. IV drug use is the primary source of HIV
infection in heterosexuals and children. IVDUs spread the virus
among themselves by sharing and reusing infected injection
equipment, i.e., needles and syringes.

In 1990, the plaintiff Spokane County Health District (SCHD)
Board of Health adopted a resolution which directed its health
officer, John A. Beare, M.D., to establish and implement a needle
exchange program in Spokane as a part of an overall intervention
to slow the spread of AIDS and  other  infectious  diseases
among IVDUs and those with whom they come into contact. The Board
directed that the program be included in the Regional AIDS
Network Plan authorized by RCW 70.24.400.  See generally RCW
70.24 (also known as the omnibus AIDS act or AIDS act).

The SCHD adopted the plan after considering  information
presented over the course of at least 12 meetings. A detailed
protocol for operation of the plan was also adopted.  The
protocol directed that, during hours of operation, clean needles
would be exchanged for dirty needles on a 1-for-1 basis only.
IVDUs would not be allowed simply to ask for needles but would be
required to exchange used equipment.  In addition, individuals
exchanging needles would be encouraged to take condoms, bleach
(for sterilizing needles and syringes), and informational
brochures.  Participants would also be asked to complete
questionnaires.  HIV testing and counseling would be available,
and referrals to drug treatment programs would be offered.

The program did not start immediately. Prior to the time the SCHD
began considering its needle exchange program, other needle
exchange programs had begun operating in Tacoma and Seattle.  On
July 18, 1989, the Washington State Attorney General issued
opinion 13, in which he stated a Regional AIDS Service Network
(as established under the AIDS act) may not lawfully authorize
the distribution of hypodermic needles to IVDUs, because the
Uniform Controlled Substances Act (RCW 69.50) (UCSA) forbids the
distribution of "drug paraphernalia".  Following notice of that
opinion, the City of Tacoma withdrew its financial support of the
needle exchange program in Tacoma.  The Tacoma-Pierce County
Health Officer commenced an action in Pierce County  Superior
Court against Pierce County and the City of Tacoma for
declaratory judgment that the needle exchange program was legal.
In April 1990, Pierce County Superior Court Judge Robert H.
Peterson ruled the Tacoma program did not violate the UCSA as the
Attorney General contended.  The action resulted in a declaratory
judgment in favor of the Health Officer, and the court stated:

[I]t is legal for public health officials and regional directors
of AIDS service networks, and those operating under their
supervision, to exchange or distribute intravenous needles to
those who may use them to inject illegal drugs, as part of an
HIV/AIDS prevention program.

While the primary focus of Tacoma's exchange program, as well as
other regions', is to halt the spread of HIV and AIDS, it has
been successful on numerous levels. Prior to the Tacoma program's
initiation, public rest rooms, parks, and streets in the city
were littered with used, discarded needles and syringes.  Due to
the needle exchange, there has been such a significant reduction
in discarded needles that the problem  has  almost  been
eliminated. Moreover, police officers monitoring the program have
seen no increase in the number of IVDUs or in the frequency of
injection.  Finally, more than 300 IVDUs have entered drug
treatment as a direct result of the Tacoma exchange.

/* Courts are made up of Judges. Judges are human beings too, and
the success of the needle exchange program, here listed, has to
be a factor in the court determining that the program is legal.
*/

Plaintiff Dr. Beare, as SCHD Health Officer and as Director of
the Region I AIDS Service Network, submitted to the SCHD Board of
Health the data, evidence, pleadings, and judgment in the Tacoma-
Pierce County case as they occurred.  Following Judge  Peterson's
decision,  the  SCHD Board adopted its plan in July 1990.
However, defendant Prosecuting Attorney Donald Brockett indicated
that, given the Attorney General's position, he would take action
against the participants if the needle exchange program began
operation. Fearing prosecution, the SCHD brought an action in
Spokane County Superior Court seeking an order that its program
is lawful.

The SCHD presented a substantial body of evidence, including the
testimony of numerous health care workers, volunteers, and public
officials, concerning the alarming spread of HIV and number of
AIDS cases.  In addition, plaintiffs provided abundant evidence
of the efficacy of needle exchange programs in other countries
and cities, including Seattle and Tacoma.  Defendants submitted
no substantive evidence challenging the efficacy of the proposed
needle exchange program.  Instead, they argued the program
constituted a criminal offense, i.e., unlawful distribution of
drug paraphernalia, as a matter of law. Judge Donahue of the
Spokane County Superior Court ruled in favor of plaintiffs,
finding the needle exchange program lawful.

Defendants sought and were granted review in this court.  See RAP
4.2(a)(4). We note that, at the trial court level, the SCHD named
numerous parties as "defendants", some of whom have chosen not to
participate on appeal.  Many others originally named as
defendants actually support the trial court's decision and
requested they be redesignated as plaintiffs/respondents on
appeal.  The only remaining defendants/appellants are Spokane
County Prosecuting Attorney Donald Brockett, Spokane County
Sheriff Larry Erickson, and State Attorney General Kenneth
Eikenberry.

The controversy in this case centers, essentially, around two
statutes.  The first, RCW 69.50.412(2), makes it a misdemeanor to
deliver drug paraphernalia knowing it will be used to inject a
controlled substance illegally.  The second, RCW 70.24.400, is
part of the omnibus AIDS act, which creates regional AIDS service
networks. Under the AIDS act, the largest county in each region
is directed to develop a service "plan" which meets listed
statutory requirements.  RCW 70.24.400 states the plan shall
include, among other things, "[i]ntervention strategies to reduce
the incidence of HIV infection among high-risk groups, possibly
including needle sterilization and methadone maintenance".  RCW
70.24.400(3)(b)(v). In addition, "[t]he use of appropriate
materials may be authorized by regional AIDS service networks in
the prevention or control of HIV infection." RCW 70.24.400(12).

Defendants contend the SCHD's needle exchange program is
unauthorized and illegal given the fact RCW 69.50.412(2) (drug
paraphernalia act) prohibits the distribution of drug
paraphernalia.  RCW 69.50.412(2) provides, in relevant part:

It is unlawful for any person to deliver ... drug paraphernalia,
knowing, or under circumstances where one reasonably should know,
that it will be used to inject . . or otherwise introduce into
the human  body  a  controlled  substance. Any person who
violates this subsection is guilty of a misdemeanor.

Hypodermic needles are included in the definition of "drug
paraphernalia" RCW 69.50.102(a) includes the following language:

As used in this chapter, "drug paraphernalia" means all
equipment, products, and materials of any kind which are used,
intended for use, or designed for use in ... injecting ... or
otherwise introducing into the human body a controlled substance.
It includes, but is not limited to:

(11) Hypodermic  syringes,  needles, and other objects used,
intended for use, or designed for use in parenterally injecting
controlled substances into the human body ...

It is undisputed the needles at issue in this case are "drug
paraphernalia". Those distributing the needles know they will be
used to inject controlled substances unlawfully.  Nevertheless,
plaintiffs argue, the needle exchange program is authorized under
the Washington Constitution, statutes granting broad powers to
local health officials, and the omnibus AIDS act  Therefore, they
conclude, the drug paraphernalia act, which is aimed at criminal
conduct, simply does not apply to their actions. We agree,
finding the SCHD's needle exchange program permissible under the
constitution and statutes of this state.



The trial court recognized, and plaintiffs point out, the broad
authority vested in the SCHD Board of Health and health officer.
Those entities derive their power from the Washington
Constitution, which enables local officials to pass rules and
regulations concerning the public health:

Any county, city, town or township may make and enforce within
its limits all such local police, sanitary and other regulations
as are not in conflict with general laws.

Const. art. 11, Section 11.

Of this constitutional grant of authority, we have said:

"This is a direct delegation of the police power as ample within
its limits as that possessed by the legislature itself. It
requires no legislative sanction for its exercise so long as the
subject-matter is local, and the regulation reasonable and
consistent with the general laws....

Lenci v. Seattle, 63 Wash.2d 664, 667, 388 P.2d 926 (1964)
(quoting Detamore v. Hindley, 83 Wash. 322, 326, 145 P. 462
(1915)).

Defendants contend the needle exchange program conflicts with the
drug paraphernalia act and is therefore not authorized by the
constitution. This argument lacks merit. First, we point out,
defendants contended at oral argument that a strict needle
sterilization program (in which health care workers clean IVDUs'
needle and syringes, then give them back), would be legal under
the statute and therefore authorized under article 11, section
11.  But such a method would not remove the "conflict" defendants
have alleged: if we were to accept defendants' logic (that a
needle exchange pro gram is a distribution of drug
paraphernalia), then strict sterilization and return of the
needles to their users is no less a "distribution".

Second, and more important, plaintiffs here are not relying on
the general powers granted local officials under the state
constitution. Rather, they are acting pursuant to public health
statutes, namely RCW 70.05, which defines the powers and duties
of local health officials, and 70.24, the AIDS act.  It is those
(public health) statutes- not the criminal statute in which the
drug paraphernalia act appears- with which the needle exchange
program must not "conflict" to retain its constitutional
imprimatur.  Defendants concede if RCW 70.05 and 70.24 authorize
and contemplate needle exchange, then those statutes would
prevail over the drug paraphernalia act We therefore turn to an
examination of the relevant statutes.

RCW 70.05

[l]  The Legislature's broad grant of powers to local health
officials is evident in RCW 70.05. The SCHD Board of Health is a
"[l]ocal board of health", RCW 70.05.010(3), and as such

shall have supervision over all matters pertaining to the
preservation of the life and health of the people within its
jurisdiction and shall:

(4)  [p]rovide for the control and prevention of any dangerous,
contagious or infectious disease within the jurisdiction of the
local health department ...

RCW 70.05.060.

Local health officers, including plaintiff Dr. Beare (RCW
70.05.010(2)), likewise enjoy broad authority and are required to

(2)  [t]ake such action as is necessary to maintain health and
sanitation supervision over the territory within his
jurisdiction;

(3)  [c]ontrol and prevent the spread of any dangerous,
contagious or infectious diseases that may occur within his juris
diction;

(4)  [i]nform the public as to the causes, nature, and prevention
of disease and disability  and  the  preservation,  pro motion
and improvement of health within his jurisdiction;

RCW 70.05.070.  Use of the word "shall" mandates  that officials
perform  these duties. See State ex rel. Nugent v. Lewis, 93
Wash.2d 80, 82, 605 P.2d 1265 (1980).

[2, 3]  Because protecting and preserving the health of its
citizens from disease is an important governmental function,
public health statutes and the actions of local health boards
implementing those statutes are liberally construed.  Snohomish
Cy. Builders Ass'n v. Snohomish Health Dist., 8 Wash.App. 589,
595, 508 P.2d 617 (1973); see also Brown v. County of Pierce, 28
Wash. 345, 349, 350, 352, 68 P. 872 (1902); State ex rel. McBride
v. Superior Court, 103 Wash. 409, 419-20, 174 P. 973 (1918). The
legislatively delegated power to cities and health boards to
control contagious diseases gives them extraordinary power which
might be unreasonable in another context.  McBride, 103 Wash. at
420,174 P. 973.

[4]  Indeed, we have said the subject matter and expediency of
public health disease prevention measures are "beyond judicial
control, except as they may violate some constitutional right
guaranteed to [defendants]." (Citation omitted.) Kaul v.
Chehalis, 45 Wash.2d 616, 621, 277 P.2d 352 (1954). No rights of
defendants, guaranteed by the constitution, have been invaded.
Our reluctance to interfere in matters of public health is
demonstrated in Kaul. In that case, the right of the City of
Chehalis to fluoridate its water supply in order to prevent
dental caries was upheld under RCW 35.23.440.  The statutory
authority for the City to impose this   public health measure "to
prevent the introduction and spread of disease" is almost
identical to the statutory authority given to the SCHD to take
measures necessary for "the control and prevention of any
dangerous, contagious or infectious disease".  RCW 35.23.440(25);
70.05.060(4).  Similar interpretation should result where the
language and subject matter of two statutes are similar.  Green
River Comm'ty College v. Higher Educ. Personnel Bd., 95 Wash.2d
108, 117, 622 P.2d 826 (1980).  While we are aware tooth decay
was at issue in Kaul, and the "disease" here is far more serious,
we follow the Kaul decision interpreting RCW 35.23.440 and uphold
the SCHD's needle exchange program as a valid measure instituted
to protect public health under RCW 70.05.060 and .070, which are
similar statutes.

RCW 70.24

[5]  On March 23, 1988, the AIDS act became law within Washington
state. It is codified in RCW 70.24. In the preamble to this act,
the Legislature declared "that sexually transmitted diseases
constitute a serious and sometimes fatal threat to the public and
individual health and welfare of the people of the state." In
addition, the Legislature said it intended, through the AIDS act,
"to provide a program that is sufficiently flexible to meet
emerging needs, [and deals] efficiently and effectively with
reducing the incidence of sexually transmitted diseases".  RCW
70.24.015.

The AIDS act establishes six AIDS Service Network Regions.
Region I AIDS Service Network includes Spokane County. The AIDS
act further directs that the largest (most populated) county
within each region adopt a "plan".  RCW 70.24.400(2). Spokane is
such a county, and therefore prepared the plan for Region I. RCW
70.-24.400 enumerates, specifically, the components the plan must
contain.  Among the requirements are a complement of services,
including "[i]ntervention strategies to reduce the incidence of
HIV infection among high-risk groups, possibly including needle
sterilization  and  methadone  maintenance ... RCW
70.24.400(3)(b)(v).  In addition, "[t]he use of appropriate
materials may be authorized by regional AIDS service networks in
the prevention or control of HIV infection."  RCW 70.24.400(12).

Defendants contend RCW 70.24.400 does not authorize needle
exchange programs because needle sterilization does not encompass
needle exchange.  Defendants rely on a dictionary definition of
"sterilization", which means "the rendering of a body or material
free from living cells and esp. microorganisms usu. by killing
those present (as by heat)".  Webster's Third New  International
Dictionary  2238 (1971).  "Exchange", on the other hand, means
"the act of giving or taking one thing in return for another".
Webster's Third, at 792.

[6]  We recently affirmed our view that the preamble or statement
of intent can be crucial to interpretation of a statute. Roy v.
Everett, 118 Wash.2d 352, 356, 823 P.2d 1084 (1992). Therefore,
in keeping with the Legislature's express intent "to provide a
program that is sufficiently flexible to meet emerging needs", we
will explore a less rigid meaning of "sterilization" than that
offered by defendants.

The parties do not dispute the "needle sterilization" language of
the AIDS act permits health care workers to take intravenous drug
users' dirty needles, sterilize them, and return them to the drug
users. In fact there was testimony such a method has been
employed, albeit with less success than the needle exchange
programs.  As plaintiffs point out, however, this method of
sterilization exposes health care workers to the unnecessary risk
of HIV infection from accidentally sticking themselves with
contaminated needles.  The needle exchange program eliminates
that risk because the drug user drops his own used needle
directly into a specially designed safety container and the
health care worker then hands him a clean needle.  Plaintiffs
argue to permit a dangerous means of sterilization while
forbidding a safe one is an absurd result.

[7]  The trial court found plaintiffs' reasoning persuasive,
noting needle exchange is a form of needle sterilization:

When the needles are received in an exchange program, they are
sterilized before disposal, so if there is a distinction between
a sterilization program which is expressly authorized by the
legislature and a needle exchange program such as the one that
Spokane County has decided to take on, it is a distinction
without a difference.

The trial court also correctly pointed out the AIDS act is a
statute concerning public health and should therefore be
liberally construed.  Snohomish  Cy.  Builders Ass'n v. Snohomish
Health Dist., 8 Wash. App. 589, 595, 508 P.2d 617 (1973) (citing
State ex rel. McBride v. Superior Court, 103 Wash. 409, 427,174
P. 973 (1918)). The existing needle exchange program is the
functional equivalent of "needle sterilization." We hold the
program is contemplated in and acceptable under RCW
70.24.400(3)(b)(v).

[8]  Likewise, we read the second provision at issue, RCW
70.24.400(12), which permits "[t]he use of appropriate materials
... in the prevention or control of HIV infection" to include
sterile hypodermic needles and syringes. The undisputed evidence
presented to the trial court proves sterile needles and syringes
are appropriate to any intervention program designed to reduce
the spread of HIV infection among intravenous drug users.

Defendants, however, contend RCW 70.24.400(12) also does not
authorize needle exchange programs and rely on legislative
history to support their conclusion.  The original AIDS bill did
not contain a section similar to RCW 70.24.400(12).  An amendment
to the bill provided:

The use of appropriate materials as authorized by regional AIDS
service networks in the prevention or control of HIV infection
shall not be deemed a violation of RCW 69.50.412 [prohibition on
distribution of drug paraphernalia].

Senate Journal, 50th Legislature (1988), at 1482. The bill was
subsequently amended to read as it was finally enacted:

The use of appropriate materials may be authorized by regional
AIDS service networks in the prevention or control of HIV
infection.

Senate Journal, at 1564;  RCW 70.24.-400(12).

[9, 10] Defendants argue the "attempted legalization" of needle
exchange programs, ultimately expunged from the proposed
legislation, indicates a legislative intent that "appropriate
materials" would not include needle and syringe exchange. In
determining legislative intent, it is appropriate to consider
sequential drafts. See Bellevue Fire Fighters Local 1004 v.
Bellevue, 100 Wash.2d 748, 750-51, 675 P.2d 592 (1984).  Indeed,
the deletion suggests the Legislature did not intend to exempt
needle exchange programs from prosecution under RCW 69.50.412.
However, when the Legislature rejects a proposed amendment, as
they did here, we will not speculate as to the reason for the
rejection. Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wash.2d
46, 6364, 821 P.2d 18 (1991).  Moreover, the language of the
final legislation does not say such programs are unlawful and
specifically permits use of "appropriate materials" as well as
"needle sterilization"

Additional legislative history supports plaintiffs' viewpoint. In
1989, the Legislature passed the omnibus alcohol and controlled
substances act. Section 107, as pro posed, would have added a new
section to the UCSA and specifically outlawed needle exchange
programs. The Governor vetoed that measure, stating:

Section 107 of the bill would prohibit and force closure of
needle exchange programs, currently operating in Tacoma and
Seattle which are a means to reduce HIV/AIDS transmission and
encourage treatment referral.  These model programs have received
national attention for their innovative and credible management
of the needle exchange. Both pro grams are operated and strictly
controlled by local public health authorities and are structured
to accommodate maximum research benefit. I do not condone use of
illegal drugs or their taking by intravenous means. The reality
is that these programs have very little potential for encouraging
more illegal drug use but a very high potential for limiting the
spread of serious and deadly diseases which impact not only the
persons involved but others. For both humane and economic
reasons, we must do everything we can to halt the spread of AIDS.

Laws of 1989, ch. 271, p. 1342;  House Journal, 51st Legislature
(1989), at 3027.

[11, 12]  When vetoing bills, the Governor acts as part of the
Legislature and his intent cannot be considered apart from the
legislative intent.  State v. Brasel, 28 Wash.App. 303, 309, 623
P.2d 696 (1981); Shelton Hotel Co. v. Bates, 4 Wash.2d 498, 506,
104 P.2d 478 (1940).  Moreover, the submission of section 107 to
the Governor suggests the Legislature believed needle exchanges
were then legal and a new law was required to make them illegal.
The Legislature is presumed not to pass meaningless legislation,
and in enacting an amending statute, a presumption exists that a
change was intended.  Johnson v. Morris, 87 Wash.2d 922, 926, 557
P.2d 1299 (1976); Fisher Flouring Mills Co. v. State, 35 Wash.2d
482, 490, 213 P.2d 938 (1950).

[13]  At the time it passed section 107, then, the Legislature
may have viewed needle exchange programs as permitted under
current law.  Defendants, however, point to the colloquy which
occurred on the Senate floor prior to passage of the vetoed
section 107:

Senator Rasmussen: "Senator Nelson, is the prohibition against
giving away free needles still in this bill?"

Senator Nelson: "Yes, it is, Senator Rasmussen."

Senator Rasmussen: "And if the Governor chooses to veto that out,
we still have the original law that makes it illegal?"

Senator Nelson: "That is correct, Senator Rasmussen."

Senator Rasmussen: "And maybe in his wisdom, he will leave this
in as good direction for the drug bill."

Senator Nelson: "Let us hope so, Senator Rasmussen."

Senate Journal, 51st Legislature (1989), at 2358.  Defendants
contend this conversation shows the Legislature understood the
"original law" (RCW 60.50.412-the drug paraphernalia act) to ban
needle exchanges. However, we can only assume the term "original
law" refers to the drug paraphernalia act.  Moreover, we have
cautioned that a legislator's comments from the floor are not
necessarily indicative of legislative intent.  Wilmot v. Kaiser
Aluminum & Chem. Corp., supra 118 Wash.2d at 63, 821 P.2d 18
(citing North Coast Air Servs. v. Grumman Corp., 111 Wash.2d 315,
32~ 27, 759 P.2d 405 (1988)).  We note this colloquy is not truly
"legislative history" with respect to the AIDS act, as it
occurred in the context of another bill's passage, after the AIDS
act became law.

[14]  Finally, we point out both the State Board of Health and
Department of Health have approved needle exchange programs. The
Department of Health is designated as an administrative agency
under the AIDS act and an administrative and enforcement agency
under the UCSA.  RCW 70.24.400; RCW 69.50.303, .500.  The
approval by such agencies of needle exchange programs as a
strategy to prevent the spread of AIDS is entitled to great
weight. Hama Hama Co. v. Shorelines Hearings Bd., 85 Wash.2d 441,
448, 536 P.2d 157 (1975).

The Legislature has not explicitly directed regional AIDS service
networks to develop needle exchange programs.  However, the
allowances for "needle sterilization" and "the use of appropriate
materials" to combat the spread of AIDS can and should be
liberally construed to include needle exchange.  Moreover, we are
persuaded the broad powers given local health boards and officers
under Const. art. 11, section 11 and RCW 70.05 authorize them to
institute needle exchange programs in an effort to stop the
spread of HIV and AIDS.

We affirm the trial court's decision.



DORE, C.J., and UTTER, BRACHTENBACH, ANDERSEN, DURHAM, SMITH, GUY
and JOHNSON, JJ., concur.