Opinion concurring in the judgment issued December 31, 2018




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                            NO. 01-17-00867-CV
                          ———————————
                      IVAN VILLARREAL, Appellant
                                      V.
    TEXAS SOUTHERN UNIVERSITY; DANNYE HOLLEY, IN HIS
  INDIVIDUAL & OFFICIAL CAPACITIES; EDWARD MALDONADO
  (A/K/A SPEARIT), IN HIS INDIVIDUAL & OFFICIAL CAPACITIES;
     GABRIEL AITSEBAOMO, IN HIS INDIVIDUAL & OFFICIAL
                      CAPACITIES, Appellees


                  On Appeal from the 164th District Court
                           Harris County, Texas
                     Trial Court Case No. 2016-64945


                         CONCURRING OPINION

      The Texas Bill of Rights provides that no “citizen of this State shall be

deprived of life, liberty, property, privileges or immunities, or in any manner
disfranchised, except by the due course of the law of the land.”1 As this provision

was understood when our Texan predecessors adopted the 1876 state constitution,

a law student’s dismissal from school for poor academic performance properly

should not be considered a deprivation of liberty. Even if it were, in the

circumstances of this case the dismissal was not inconsistent with “the due course

of the law of the land.”

      I concur in the judgment as an intermediate appellate court’s application of

controlling precedent. But I also respectfully suggest that in their past development

of Texas constitutional law, Texas courts often have too uncritically adopted the

federal courts’ ever-morphing methods of applying the Fourteenth Amendment of

the U.S. Constitution. The Texas bench and bar should undertake the effort of

litigating and implementing the proper interpretation of our unique Texas

Constitution. Not for the sake of being different, but because our state constitution

serves an important function as a distinct source of legal protections for individual

rights, because reasonable jurists can and do disagree about how the legal concept

of due process can and should be implemented by courts, and because independent

reasoning by Texas judges could positively influence the development of the law

in other states and in the federal courts as well.




1
      TEX. CONST., art. I, § 19.
                                           2
                                          I

      Ivan Villareal’s fundamental complaint is that he was dismissed from a

public law school. The justification was that his GPA fell below 2.0, which

mandated his dismissal under school policies. Villareal does not challenge the

constitutionality of the policy of requiring a 2.0 GPA to continue his studies.

      There is no allegation that the law school failed to provide fundamental

procedural protections to Villareal in the implementation of this policy. The school

provided Villareal notice of his dismissal and the reason for it. He had

opportunities to give reasons why the policy should not be applied to him, and he

actually was heard in various ways by the Academic Standards Committee and in

personal meetings with two deans. To the extent Villareal attributes his

substandard GPA to one particular grade, he also had an opportunity to challenge

that grade after the fall semester, though he failed to do so. Thus from a procedural

perspective concerning the individual grades that cumulatively determined his

GPA and resulted in his academic dismissal, Villareal has no constitutional

grievance whatsoever.

      But there’s more to this case, which confounds the typically observed

distinction of dismissals based on academic performance from those based on




                                          3
student misconduct.2 Villareal’s 1.98 GPA was so close to the 2.0 cutoff that the

smallest incremental increase of any one of his grades would have allowed him to

stay in school. And there were unusual circumstances surrounding one of his

classes, his fall course in criminal law. The first irregularity arose from a law

professor previewing actual questions from a criminal-law exam given to the entire

first-year class and graded on a curve. Villareal alleges that an unfair advantage to

some students depressed the grades of other students and caused his own GPA to

dip to 1.98.

      The exam irregularity allegedly was compounded by the school

administration’s handling of the matter. Villareal criticizes the investigation for

jumping to unwarranted conclusions by failing to fully inquire about the scope of

the problem, such as how many questions were previewed and how many students

were disadvantaged as a result. The school then reported to students selected

excerpts of the resulting statistical analysis as an apparent assurance that grades

were unaffected. Villareal contends that he relied on this information when he

decided not to challenge his criminal-law grade, a decision he regretted the next

semester when an incremental grade adjustment could have made the difference

that allowed him to continue his studies. The subject of the constitutional challenge

2
      See, e.g., Univ. of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 931
      (Tex. 1995) (citing Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S.
      78, 86–87, 98 S. Ct. 948, 953–54 (1978)).

                                         4
therefore is not simply his dismissal for low grades, but the cumulative effect of

conduct by school employees that impacted one component of one grade just

enough to subject Villareal to an otherwise unimpeachable academic dismissal.

      Villareal sued, seeking a declaration of his rights and injunctive relief in the

form of re-admittance to the law school as a second-year student in good standing.

He alleged that a contract with the law school was breached, but his claims are

primarily based on the Texas Constitution’s due-course-of-law protections. For

reasons that are not disclosed in the appellate record, Villareal has deliberately

confined his constitutional claims to the Texas Constitution, and he has expressly

disavowed reliance on comparable federal protections.3

                                         II

      To reach the conclusion that Villareal’s complaint presents a valid type of

constitutional claim, courts have identified reputation associated with the pursuit of



3
      The procedural posture of this appeal and the presentation of state
      constitutional issues are therefore quite different from the circumstances of
      Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992), in which only federal
      constitutional arguments were made until the Supreme Court of Texas
      invited supplemental briefing on the effect of the state constitution. See also
      Jeffrey S. Sutton, 51 IMPERFECT SOLUTIONS: STATES AND THE MAKING OF
      AMERICAN CONSTITUTIONAL LAW 8–9 (2018) (observing that although
      American dual federalism results in dual constitutional opportunities to
      challenge actions by state governments, most lawyers focus their arguments
      on federal claims and neglect to present meaningful distinct arguments based
      on state constitutions).

                                          5
graduate education as a constitutionally protected liberty interest.4 But it has been

persuasively argued that the “liberty” referenced in federal and state constitutional

due-process protections, which are similarly traceable to Magna Carta,5 refers to


4
      E.g., Than, 901 S.W.2d at 930 (medical student expelled for academic
      dishonesty had “a constitutionally protected liberty interest in his graduate
      education that must be afforded procedural due process,” citing Goss v.
      Lopez, 419 U.S. 565, 574–75, 95 S. Ct. 729, 736–37 (1975), Bd. of Regents
      of State Coll. v. Roth, 408 U.S. 564, 572, 92 S. Ct. 2701, 2706–07 (1972),
      and Dixon v. Ala. State Bd. of Educ., 294 F.2d 150, 157 (5th Cir. 1961)).
5
      Magna Carta, ch. 39 (1215) (“No free man shall be taken, imprisoned,
      disseised, outlawed, banished, or in any way destroyed, nor will We proceed
      against or prosecute him, except by the lawful judgment of his peers and by
      the law of the land.”); Magna Carta (1225) (“No freeman shall be taken, or
      imprisoned, or be disseised of his freehold, or liberties, or free customs, or
      be outlawed, or exiled, or any otherwise destroyed; nor will we not pass
      upon him, nor condemn him, but by lawful judgment of his peers or by the
      law of the land.”); see also Kerry v. Din, 135 S. Ct. 2128, 2132 (2015)
      (Scalia, J., plurality op.) (“The Due Process Clause has its origin in Magna
      Carta.”); Den v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272,
      276 (1855); Patel v. Tex. Dep’t of Licensing & Regulation, 469 S.W.3d 69,
      82–84 (Tex. 2015) (discussing history of adoption of due-course-of-law
      clause, including alterations made at the 1875 constitutional convention);
      Sax v. Votteler, 648 S.W.2d 661, 664 (Tex. 1983) (acknowledging that
      article I, section 19 of the Texas Bill of Rights has its origin in Magna
      Carta); 1 George D. Braden et al., THE CONSTITUTION OF THE STATE OF
      TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS 68 (1977) (“Whether
      the phrase be ‘due course of law’ or ‘due process of law’ they both have a
      common origin in the ‘law of the land’ expression of the Magna Carta and a
      common history.”); John Cornyn, The Roots of the Texas Constitution:
      Settlement to Statehood, 26 TEX. TECH L. REV. 1089, 1127–30 & n. 245
      (1995) (noting that due course of law was incorporated in the 1845 Texas
      Constitution “without debate” and later reproduced in the 1876 Texas
      Constitution); J.E. Ericson, Origins of the Texas Bill of Rights, 62 S.W.
      HIST. Q. 457, 463–64 (1959) (noting that the “due course of law” provision
      was first introduced in a Texas constitution upon statehood in 1845).
                                          6
freedom from physical restraint: “the power of locomotion, of changing situation,

or removing one’s person to whatsoever place one’s own inclination may direct;

without imprisonment or restraint, unless by due course of law.” 6 This conception

of liberty also was understood as a freedom from governmental interference, not a

right to governmental entitlements.7

      Even to the extent courts have stretched the concept of liberty for these

purposes beyond the original public understanding at the time the Texas

Constitution was adopted, the case for treating a citizen’s pursuit of graduate

education—and whatever embarrassment may accompany an expulsion from

school—as sufficiently fundamental to invoke constitutional protection under the

rubric of due process is far from self-evident. Contemporary precedents have

identified a student’s reputational concern for not being arbitrarily dismissed on

grounds of alleged misconduct as the justification for recognizing a liberty interest




6
      1 William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND 130
      (1769); see also Charles Warren, The New “Liberty” Under the Fourteenth
      Amendment, 39 HARV. L. REV. 431, 441–45 (1926) (discussing the
      founding-era interpretation and application of “liberty” as used in state
      constitutions).
7
      See Philip A. Hamburger, Natural Rights, Natural Law, and American
      Constitutions, 102 YALE L.J. 907, 918–19 (1993) (arguing that Americans in
      the founding era understood natural liberty as “the freedom an individual
      could enjoy as a human in the absence of government”).

                                         7
worthy of constitutional protection.8 Without diminishing the significance of the

concern for students facing that circumstance, it bears observation that the cases

have not attempted to justify extending constitutional protections on the grounds




8
      See Goss, 419 U.S. at 574–75, 95 S. Ct. at 736 (high-school students were
      suspended for up to 10 days on charges of misconduct that, “[i]f sustained
      and recorded . . . could seriously damage the students’ standing with their
      fellow pupils and their teachers as well as interfere with later opportunities
      for higher education and employment”); Than, 901 S.W.2d at 930 (“A
      medical student charged with academic dishonesty faces not only serious
      damage to his reputation but also the loss of his chosen profession as a
      physician. . . . The stigma is likely to follow the student and preclude him
      from completing his education at other institutions.”).

      The liberty rationale in Goss was arguably dicta, as it was secondary
      reasoning provided after the Court first referenced Ohio state law to
      determine that public high-school students in that state had “legitimate
      claims of entitlement to a public education.” 419 U.S. at 573, 95 S. Ct. at
      735 (citing OHIO REV. CODE §§ 3313.48 and 3313.64 (1972 & Supp. 1973)).
      The Court held that a 10-day suspension was a sufficiently significant
      intrusion on the students’ state-law property right to attend school, id. at 576,
      95 S. Ct. at 737, and that the Due Process Clause required that a student
      receive “oral or written notice of the charges against him and, if he denies
      them, an explanation of the evidence the authorities have and an opportunity
      to present his side of the story.” Id. at 581, 95 S. Ct. at 740. Later U.S.
      Supreme Court cases reviewing student dismissals have focused on the
      adequacy of process without confronting questions of whether a protected
      liberty or property interest had been implicated. See Regents of Univ. of
      Mich. v. Ewing, 474 U.S. 214, 222–23, 106 S. Ct. 507, 511–12 (1985); Bd.
      of Curators of Univ. of Mo. v. Horowitz, 435 U.S. at 84–85, 98 S. Ct. at
      952.

                                          8
that this interest is of a nature “so rooted in the traditions and conscience of our

people as to be ranked as fundamental.”9

                                         III

      Even accepting precedents such as Goss v. Lopez10 and University of Texas

Medical School at Houston v. Than11 at face value, their application to the unique

9
      Snyder v. Mass., 291 U.S. 97, 105, 54 S. Ct. 330, 332 (1934) (Cardozo, J.);
      see also Michael H. v. Gerald D., 491 U.S. 110, 122–23, 109 S. Ct. 2333,
      2341–42 (1989) (Scalia, J., plurality op.). Than cited Goss, which quoted
      Justice Douglas’s opinion in Wis. v. Constantineau, 400 U.S. 433, 91 S. Ct.
      507 (1971), for the proposition that “[w]here a person’s good name,
      reputation, honor, or integrity is at stake because of what the government is
      doing to him, notice and an opportunity to be heard are essential.” 400 U.S.
      at 437, 91 S. Ct. at 510; see Goss, 419 U.S. at 574, 95 S. Ct. at 736; Than,
      901 S.W.2d at 930. This language in the Constantineau opinion was not
      directly supported by legal authority, and the opinion included no analysis
      grounding the announced standard in legal history or tradition.

      Notably, in Constantineau the plaintiff complained that, without notice or a
      hearing, a police chief caused a notice to be posted in all liquor stores in his
      town, stating that sales or gifts of liquors were forbidden to him for a year.
      400 U.S. at 435, 91 S. Ct. at 509. This action was authorized by a state
      statute described by the court as providing “that designated persons may in
      writing forbid the sale or gift of intoxicating liquors to one who ‘by
      excessive drinking’ produces described conditions or exhibits specified
      traits, such as exposing himself or family ‘to want’ or becoming ‘dangerous
      to the peace’ of the community.” Id. at 434, 91 S. Ct. at 508. Thus the nature
      of the reputational concern deemed to invoke constitutional protection as a
      liberty interest started with publication of a notice that branded a person as
      an excessive drinker and prevented him from buying liquor (Constantineau),
      then expanded to include a high-school student expelled for 10 days for
      misconduct (Goss) and a medical student dismissed for academy dishonesty
      (Than). Villareal would have us expand this concept to a law student
      dismissed for poor academic performance without any suggestion of
      wrongdoing by the student.

                                           9
facts of this case should not compel a conclusion that a constitutional claim is

viable. It’s one thing for courts to have held that a state university or its employee

can be sued when bad faith tainted a decision to expel a graduate student despite a

pretense of procedural protections such as notice and a hearing.12 But it is hard to

see how that circumstance is implicated in this case, when the essential allegation

is not a denial of procedural fairness in enforcing the rule imposing a minimum

standard of academic performance.

      Instead, Villareal presents a different kind of complaint that boils down to

allegations of incompetence or self-serving malfeasance in the exercise of

academic discretion, with an attenuated theory of causation that the marginal

impact on the exam curve affecting 50% of his criminal-law grade had the

consequential effect of pulling his GPA below the school’s minimum standard for

academic performance. But the suggestions that some conduct by Professor

Maldonado,13 or by Dean Holley and Dean Aitsebaomo,14 could be proved to have


10
      419 U.S. 565, 95 S. Ct. 729 (1975).
11
      901 S.W.2d 926, 931 (Tex. 1995).
12
      See, e.g., Alcorn v. Vaksman, 877 S.W.2d 390, 397 (Tex. App.—Houston
      [1st Dist.] 1994, writ denied) (en banc) (citing Ikpeazu v. Univ. of Neb., 775
      F.2d 250, 253 (8th Cir. 1985)).
13
      Villareal’s real complaint that Professor Maldonado gave an unfair
      advantage to some students is not based so much on the timing of the
      sessions as the preview of exam questions. Villareal did not allege that he
                                         10
proximately caused Villareal’s academic dismissal,15 thereby depriving him of the

opportunity to pursue a legal career, strain credulity.

                                          IV

      Assuming that Villareal has a cognizable claim under the Texas

Constitution, by what standard should a court evaluate it? In the past our court has

applied an ultradeferential review standard found nowhere in the federal or state

constitutions. If “reasonable academic judgment” was used to justify dismissal,



      was not given substantively similar opportunities to attend other review
      sessions where he could receive supplemental instruction conducted by
      Professor Maldonado or others. Nor did Villareal identify statutes,
      regulations, or even informal policies governing the extent to which
      instructors were precluded from “teaching to the test” in review sessions or
      otherwise (classroom instruction, office hours, etc.).
14
      Read in the light most favorable to Villarreal, the petition suggests that
      administrators deployed junk science in an effort to assuage student
      concerns about the effect on the grade curve. There is no allegation of
      malice toward or discrimination against Villarreal or any identifiable group
      of students. The administrators could have consciously decided not to invest
      any greater effort into more rigorously evaluating the potential marginal
      effect Professor Maldando’s review sessions had on an exam grade that was
      just one component of just one of many grades received by the first-year
      students. Maybe they wanted to shield Maldonado, themselves, and the
      institution from criticism. Maybe they just didn’t know what to do and
      handled it poorly. In any case, Villarreal alleges no violation of a statute,
      regulation, or even informal policy in the handling of the matter.
15
      Cf. Parratt v. Taylor, 451 U.S. 527, 543, 101 S. Ct. 1908, 1917 (1981)
      (observing that although prisoner had been deprived of property under color
      of state law, “the deprivation did not occur as a result of some established
      state procedure”).
                                          11
then under our precedents the student’s challenge can’t succeed.16 But once the

courts have decided to recognize a constitutionally protected liberty interest in

these circumstances, why would they then hold state-employed academics to such

a toothless extraconstitutional standard determined by academia itself?

      Courts applying due-process principles need not, and have no authority to,

inject themselves into “every field of human activity where irrationality and

oppression may theoretically occur.”17 It is unnecessary to constitutionalize

disputes of this kind that can be better resolved in other ways that do not require

courts to conjure rules to govern academic administration, especially if the rule

they invent is only going to impose extreme deference to “reasonable academic

judgment.”

      In the absence of legislative and regulatory guidance, the better tools for

analyzing this dispute are the traditional common-law causes of action18—the same


16
      See, e.g., Alcorn, 877 S.W.2d at 397; Alanis v. Univ. of Tex. Health Sci. Ctr.,
      843 S.W.2d 779, 784–85 (Tex. App.—Houston [1st Dist.] 1992, writ
      denied); Eiland v. Wolf, 764 S.W.2d 827, 833 (Tex. App.—Houston [1st
      Dist.] 1989, writ denied).
17
      Cruzan v. Dir., Mo. Dep’t. of Health, 497 U.S. 261, 300–01, 110 S. Ct.
      2841, 2863 (1990) (Scalia, J., concurring).
18
      Cf. Daniels v. Williams, 474 U.S. 327, 332, 106 S. Ct. 662, 665 (1986) (“Our
      Constitution deals with the large concerns of the governors and the
      governed, but it does not purport to supplant traditional tort law in laying
      down rules of conduct to regulate liability for injuries that attend living
      together in society.”); Parratt, 451 U.S. at 544, 101 S. Ct. at 1917
                                         12
legal claims Villareal presumably would consider if a public school were not

involved in this case. He already has alleged breach of contract. Based on the

allegations that the first-year class was misled about the nature of the school’s

investigation and the conclusions to be drawn about whether the curve had been

impacted, a tort claim such as fraudulent misrepresentation might provide a

remedy,19 subject to the application of defensive doctrines such as governmental

and official immunities.20

      To the extent the remedies supplied by the common law might be considered

inadequate—because they are limited to money damages or could be barred by


      (observing that the Fourteenth Amendment was not intended to function as
      “a font of tort law to be superimposed upon whatever systems may already
      be administered by the States,” quoting Paul v. Davis, 424 U.S. 693, 701, 96
      S. Ct. 1155, 1160 (1976)).
19
      See, e.g., Ho v. Univ. of Tex. at Arlington, 984 S.W.2d 672, 691 (Tex.
      App.—Amarillo 1998, pet. denied) (discussing fraudulent misrepresentation
      in context of dismissal of graduate student).
20
      See, e.g., id. at 683, 687–88 (discussing governmental and official immunity
      defenses to tort claims alleged in context of dismissal of graduate student).
      Notably, official immunity is conditioned on the individual defendant’s
      “good faith” performance of discretionary duties within the scope of his
      authority. See, e.g., City of Lancaster v. Chambers, 883 S.W.2d 650, 653
      (Tex. 1994). The objective standard for good faith inquires “whether a
      reasonable official could have believed his or her conduct to be lawful in
      light of clearly established law and the information possessed by the official
      at the time the conduct occurred.” McCartney v. May, 50 S.W.3d 599, 605
      (Tex. App.—Amarillo 2001, no pet.) (quoting Chambers, 883 S.W.2d at
      653).

                                        13
immunity—the Legislature is better equipped to supply remedies to protect

citizens’ access to and fair treatment in the course of publicly funded graduate

education. The Legislature can determine whether special statutes or regulations

are necessary to supply legal rules to police and ensure fairness in academic

exams. The Legislature can determine whether and to what extent the existing

scope of immunity should be narrowed to allow students to access courts to

vindicate their legal rights. And if the Legislature saw fit to take such actions,

courts then would have justiciable standards by which the actions of professors and

university administrators could be evaluated. Courts then would also have a basis

grounded in law to determine whether a student was deprived of some right

established by state law, and if so whether it was caused by some official action

that conflicted with the due course of the law of the land.

                                          V

      Confronted with a novel case like this, Texas judges should resist the easy

path of merely stating that we follow the federal courts in their implementation of

constitutional due-process protections. To the extent early Texas authorities

reasonably observed a conceptual unity behind federal constitutional “due process”

and state constitutional “due course of law,”21 the ensuing 150 years of judicial


21
      E.g., Mellinger v. City of Houston, 3 S.W. 249, 252–53 (Tex. 1887); see also
      Patel, 469 S.W.3d at 84.

                                          14
experience have shown, at a minimum, that these important constitutional

protections for individual rights have not always been susceptible to judicial

implementation by objectively discerned standards. Citizens and jurists have

disagreed in good faith about how these provisions can and should be enforced in

the courts, and the solutions applied by the federal courts therefore are not

necessarily the infallibly correct solutions.22 These questions, including the means

of safeguarding those unalienable rights of men that have not been reduced to

writing in a constitutional text, ultimately depend on the application of reason and

judgment, which federal and state courts are equally capable of performing, even

when they reach different conclusions.

      State courts interpreting their own state constitutions have an important role

to play in ongoing national developments about the interpretation and application

of American constitutional principles,23 including the relative roles of the branches

of government. Important perspectives will be lost and the quality of


22
      Cf. William J. Brennan, Jr., State Constitutions and the Protection of
      Individual Rights, 90 HARV. L. REV. 489, 495 (1977).
23
      See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2596–97 (2015) (discussing
      the role played by state courts, including decisions interpreting state
      constitutions, in helping to “explain and formulate the underlying principles”
      informing the U.S. Supreme Court’s recognition of a constitutional right to
      same-sex marriage). Justice Kennedy’s Obergefell opinion included two
      appendices listing state court decisions addressing or legalizing same-sex
      marriage. See id. at 2610–11.

                                         15
decisionmaking will be poorer if we do not fully engage, and instead uncritically

defer to federal precedents.

      Texas courts do not have to meekly follow federal authorities when

interpreting the Texas Constitution. We should adopt reasoning used in federal

cases when it is relevant and persuasive. When federal authorities are relevant yet

unpersuasive, we should engage in an independent judicial decisionmaking process

and aim to reach better decisions and provide better guidance to the legal

community and to the public generally, explaining the reasoning that we think

better resolves the cases before us. In my view, our judicial oaths to preserve the

Texas Constitution require nothing less.

                                  *        *    *

      The briefing in this appeal and the novel issues presented to us assume the

continuing validity of prior Texas decisions which have not analyzed the issues in

the way I am suggesting. The briefs do not advocate any distinctive constitutional

interpretations based on unique text or history associated with the Texas

Constitution.24 As such, in the current procedural posture the court is not equipped

to draw any firm conclusions about what the Texas Constitution might require in a

24
      Cf. Sutton, supra note 3, at 177 (“There will never be a healthy ‘discourse’
      between state and federal judges about the core guarantees in our American
      constitutions if the state judges merely take sides on the federal debates and
      federal authorities, as opposed to marshaling the distinct state texts and
      histories and drawing their own conclusions from them.”).

                                           16
case such as this. For present purposes at this early stage of litigation, I am

satisfied with the court’s conclusion that based on the current state of the law as

stated by the Supreme Court of Texas and precedents of this court, it was error for

the trial court to conclude that Villareal failed to plead viable constitutional claims.

As such I concur in the court’s judgment remanding the case for further

proceedings in the trial court.



                                               Michael Massengale
                                               Justice

Panel consists of Justices Jennings, Higley, and Massengale.

Justice Massengale, concurring in the judgment.




                                          17
