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13-P-1858                                              Appeals Court

   ROBERT CANTELL & others1       vs. COMMISSIONER OF CORRECTION &
                                  others.2



                               No. 13-P-1858.

        Suffolk.           December 12, 2014. - July 22, 2015.

                Present:    Rubin, Milkey, & Carhart, JJ.


Moot Question. Practice, Civil, Moot case, Dismissal of appeal,
     Class action. Commissioner of Correction. Administrative
     Law, Regulations. Imprisonment, Segregated confinement.
     Due Process of Law, Prison classification proceedings.



     Civil action commenced in the Superior Court Department on
January 20, 2012.

     Motions to dismiss and for class certification were heard
by Elizabeth M. Fahey, J.


     Bonita Tenneriello for the plaintiffs.
     Sheryl F. Grant for the defendants.

            1
            Albert Jackson, Derrick Maldonado, John T. Fernandes,
Wilfredo Virella, and Luis Bizzarro. Virella and Bizzarro did
not join the appeal.
            2
            The superintendents of the Massachusetts Treatment
Center, Old Colony Correctional Center, MCI-Cedar Junction, MCI-
Shirley, MCI-Norfolk, MCI-Concord, NCCI-Gardner, MCI-Framingham,
and Souza-Baranowski Correctional Center.
                                                                      2




     MILKEY, J.     The plaintiffs are inmates at various State

prison facilities who for a time had been held in segregated

confinement in so-called "special management units" (SMUs).3

They brought this action seeking declaratory and injunctive

relief against the Commissioner and other officials of the

Department of Correction (collectively, the DOC).     The

plaintiffs' amended complaint alleged that they, and other

inmates similarly situated, cannot be segregated in SMUs without

being afforded certain substantive and procedural protections.

Their claims were identical to ones raised by the inmate in

LaChance v. Commissioner of Correction, 463 Mass. 767, 774-777

(2012).4   Thus, for example, like that inmate, the plaintiffs

claimed inter alia that the conditions they faced in the SMUs

were as onerous as those faced in so-called "departmental

segregation units" (DSUs),5 and that therefore the DOC was bound

to extend to them the benefit of existing regulations governing

confinement in the DSUs.     Once the Supreme Judicial Court issued

its opinion in LaChance, a Superior Court judge dismissed this

action without prejudice to the plaintiffs' filing a new

           3
               See 103 Code Mass. Regs. §§ 423.00 (2007).
           4
            The inmate in LaChance, who was represented by the
same counsel as the plaintiffs, additionally sought monetary
damages. 463 Mass. at 768, 772.
           5
               See 103 Code Mass. Regs. §§ 421.00 (1994).
                                                                    3


complaint alleging "that [the] DOC is failing to properly comply

with LaChance."6   For the reasons set forth below, we dismiss

this appeal from the judgment as moot.

     Framing the mootness question.    As an initial matter, we

note that it is uncontested that the plaintiffs are no longer

held in segregated confinement in SMUs.7   Accordingly, to the

extent that their case seeks to assert their own rights, it is

moot.   See Littles v. Commissioner of Correction, 444 Mass. 871,

872 n.3 (2005).    However, a moot case nevertheless can be heard

if it presents an issue "of public importance, capable of

repetition, yet evading review."    Superintendent of Worcester

State Hosp. v. Hagberg, 374 Mass. 271, 274 (1978).8   As the


          6
            The quoted language comes from the judge's memorandum
and order allowing the DOC's motion to dismiss; the judgment
itself does not state whether dismissal was with or without
prejudice. However, pursuant to Mass.R.Civ.P. 41(b)(3), as
amended, 454 Mass. 1403 (2009), a judgment of dismissal does not
operate as an adjudication on the merits if "the court in its
order for dismissal [so] specifies."
          7
            The two original plaintiffs had been released from
SMU confinement by April of 2012 when the amended complaint was
filed. All but one of the additional named plaintiffs had been
released from SMU confinement when the DOC filed its status
report in December of 2012. It is uncontested that this inmate
has since been released.
          8
            In a similar vein, the case law reveals that such
litigation often has been pursued through class actions, as the
plaintiffs here sought to do. See, e.g., Haverty v.
Commissioner of Correction, 437 Mass. 737 (2002), S.C., 440
Mass. 1 (2003); Longval v. Commissioner of Correction, 448 Mass.
412 (2007). At least one Massachusetts opinion states that in a
case that purportedly has been brought as a class action, a
                                                                    4


dissent accurately points out, this long-recognized exception to

the mootness doctrine has particular application to litigation

involving inmate rights given the often ephemeral nature of the

alleged improprieties being challenged.   See, e.g., Commissioner

of Correction v. Myers, 379 Mass. 255, 260-261 (1979); Abdul-

Alázim v. Superintendent, Mass. Correctional Inst., Cedar

Junction, 56 Mass. App. Ct. 449, 452 n.6 (2002).   However,

whether an appellate court should proceed to address an appeal

that has become moot remains a matter of discretion.   Lockhart

v. Attorney Gen., 390 Mass. 780, 782-783 (1984).   See Blake v.

Massachusetts Parole Bd., 369 Mass. 701, 708 (1976).   As

explained below, in the wake of LaChance and the pending

regulatory proceeding that LaChance spawned, we conclude that

addressing the underlying substantive issues that the plaintiffs

seek to raise would be improvident at this time.

    The LaChance ruling.   In LaChance, a Superior Court judge

ruled on summary judgment that prison officials had violated an

inmate's Federal and State due process rights by holding him in



judge should, at least in some circumstances, address class
certification before considering whether the case has become
moot as to the named plaintiffs. Wolf v. Commissioner of Pub.
Welfare, 367 Mass. 293, 297 (1975). Subsequent cases have
treated Wolf as an example of the doctrine that courts may hear
moot cases if they raise important issues that are "capable of
repetition, yet evading review," not as establishing a distinct
procedural rule applicable to class actions. See, e.g.,
Gonzalez v. Commissioner of Correction, 407 Mass. 448, 451-453
(1990).
                                                                      5


an SMU for over ten months without a hearing in which he could

seek to challenge his segregated confinement.    463 Mass. at 772-

773.   With regard to the inmate's claims for monetary damages

pursuant to 42 U.S.C. § 1983 against the officials in their

individual capacities, the judge ruled that the officials were

not entitled to qualified immunity, because -- in the judge's

view -- the inmate's due process rights clearly had been

established by existing precedent.    LaChance, supra at 773.    On

the officials' interlocutory appeal of the denial of their

motion to dismiss the § 1983 claims, id. at 768 & n.3, the

Supreme Judicial Court held that the officials were entitled to

qualified immunity, id. at 777-778.

       At the same time, the LaChance court affirmed the judge's

ruling that the officials had violated the inmate's due process

rights.    In the key paragraph, the court stated as follows:

            "We conclude that an inmate confined to administrative
       segregation on awaiting action status, whether such
       confinement occurs in an area designated as an SMU, a DSU,
       or otherwise, is entitled, as a matter of due process, to
       notice of the basis on which he is so detained; a hearing
       at which he may contest the asserted rationale for his
       confinement; and a posthearing written notice explaining
       the reviewing authority's classification decision. The
       appropriate time frame for such actions must balance the
       inmate's interest -- to challenge potentially arbitrary
       detention in severe conditions -- with that of prison
       officials -- to secure the reclassification or transfer of
       an inmate who poses a threat to himself, to fellow inmates,
       or to the security of the facility. Although we leave it
       to the DOC to promulgate regulations that reflect the
       balance of these interests, we conclude that in no
       circumstances may an inmate be held in segregated
                                                                     6


       confinement on awaiting action status for longer than
       ninety days without a hearing."

LaChance, 463 Mass. at 776-777.    Thus, while broadly sketching

out the due process rights that the DOC had to provide to

inmates who were held in an SMU on "awaiting action" status, the

court otherwise left it to the DOC to promulgate new regulations

to balance the competing interests at stake.    The court took

that approach even though it recognized that "the conditions of

LaChance's confinement in the SMU were, as the judge found,

essentially equivalent to those in the system's designated DSUs,

and in some respects even more restrictive."    Id. at 774.

       The import of LaChance for the instant case.   The LaChance

court made clear that its holding was not limited to the inmate

in that case but instead applied to all "inmate[s] confined to

administrative segregation on awaiting action status."     Id. at

776.    Consequently, the DOC recognizes that, going forward, it

is bound to provide all such inmates the due process rights

recognized in LaChance.9   In a January, 2013, status report

requested by the motion judge, the DOC reported that it had

begun the process of promulgating the new regulations required

by LaChance, and that it would commence providing hearings to

            9
            The amended complaint did not specify that the
plaintiffs were confined in an SMU while "awaiting action," but
both sides appear to have treated their confinement as such in
their briefs. In any event, awaiting action status is subject
to the review process governing SMUs generally. See 103 Code
Mass. Regs. § 430.21(2) (2006).
                                                                   7


inmates confined in an SMU even before the new regulations were

finalized.

     The plaintiffs argue that LaChance itself did not fully

resolve the legal issues they raised in their amended complaint

and that the completion of the pending regulatory process will

not address the issues that remain open.   Specifically, the

plaintiffs contend that because the conditions of segregated

confinement in an SMU are equivalent to those in a DSU,10 then --

regardless of what the new regulations mandated by LaChance

ultimately will say -- DOC is bound to apply its existing DSU

regulations to all inmates segregated in an SMU for more than a

brief period (including those held on awaiting action status).11


          10
            The plaintiffs alleged that SMUs across the
Commonwealth had equivalent or worse conditions than designated
DSUs, and that allegation must be accepted as true in the
context of a motion to dismiss. The dissent characterizes
inmates held in SMUs under such conditions as a mere "subgroup"
of all inmates held in SMUs. The extent to which this is true
is not developed in this record.
          11
            As the plaintiffs acknowledge, the Supreme Judicial
Court previously has recognized that prison officials can
temporarily confine inmates in segregation for "brief" periods
without providing them the protections afforded by the DSU
regulations. Haverty v. Commissioner of Correction, 437 Mass.
737, 764 (2002), S.C., 440 Mass. 1 (2003). The court further
indicated that by the term "brief," it "ha[d] in mind days, not
weeks." Id. at 764 n.36. The DSU regulations themselves
require a hearing within fifteen days of an inmate's being
placed in segregated confinement, or within thirty days if the
inmate is being investigated or charged with a disciplinary
offense. 103 Code Mass. Regs. § 421.08(3) (1994). This appears
to be the principal procedural protection that the plaintiffs
are seeking to secure.
                                                                     8


They acknowledge that LaChance implicitly forecloses a claim

that Federal due process requires that result.     However, relying

on Haverty v. Commissioner of Correction, 437 Mass. 737 (2002),

and other cases cited with approval in LaChance, 463 Mass. at

774-775, the plaintiffs claim that full compliance with the DSU

regulations is independently required either by the State

Constitution or by the regulations themselves.12    The plaintiffs

additionally maintain that a two-decade old injunction issued by

a single justice of the Supreme Judicial Court prohibits the DOC

from amending the DSU regulations to make them less protective.

See Haverty, supra at 758 & n.26 (referencing the injunction).

Therefore, according to the plaintiffs, the judge could not

dismiss their case based on LaChance.   Instead, they contend,


          12
            In Haverty, the court stated that except where an
inmate was held in segregated confinement for only a brief
period (see note 11, supra), the DSU regulations applied "to all
placement of prisoners in segregated confinement for
nondisciplinary reasons for an indefinite period of time." 437
Mass. at 760. As the plaintiffs acknowledge, LaChance, 463
Mass. at 774-775, clarified that the holding of Haverty is not
based on Federal due process requirements. However, as noted,
LaChance arose as an interlocutory appeal of a judge's decision
that DOC officials were not entitled to qualified immunity, and
the court's opinion did not directly address whether compliance
with the DSU regulations was required by State law. Because
LaChance cites to Haverty with approval, the plaintiffs argue
that the broad statements in Haverty about the applicability of
the DSU regulations continue to stand and that those statements
must be grounded either in State constitutional law or in the
wording of the DSU regulations themselves. Their amended
complaint also cited to G. L. c. 127, § 32 (requiring that
inmates be treated with merited "kindness"), but the plaintiffs
have abandoned that argument on appeal.
                                                                   9


she first should have allowed them to put on their proof that

the conditions of SMU confinement are as restrictive as those in

the DSUs, and ultimately should have entered judgment requiring

the DOC to comply with its DSU regulations as to all inmates

held in segregated confinement in SMUs (including those on

awaiting action status).

     The DOC counters that even if older case law could be read

along the lines that the plaintiffs suggest,13 LaChance marks an

implicit departure from that precedent.   According to the DOC,

it would make no sense for the Supreme Judicial Court to have

directed it to go through the process of promulgating a new set

of regulations if case law already made it clear that the agency

was bound to apply its existing DSU regulations.14   With regard

to the plaintiffs' claim that the single justice's 1995

injunction continues to limit its ability to modify its


          13
            The DOC does not concede that point and contends
that the language in Haverty, 437 Mass. at 760, on which the
plaintiffs seek to rely does not apply to inmates held in an SMU
"awaiting action," because such confinement cannot be said to be
for an "indefinite period of time" even if the event for which
they are awaiting action has not been scheduled.
          14
            In support of its position, the DOC accurately
points out that even though the LaChance court agreed with the
motion judge's conclusion that conditions at the SMU were at
least as restrictive as in DSUs, 463 Mass. at 774, the court
characterized the case law requiring application of the DSU
regulations as "not directly controlling." Id. at 775. In
addition, the court referred to the DSU regulations merely as
"other DOC regulations" that "informed in part" the court's
decision. Id. at 777 n.14.
                                                                     10


regulations, the DOC notes that the full court directed it to

issue the new regulations while providing guidance on what due

process minimally requires.     The DOC also highlights that there

is no lawful basis for a court to prohibit it from amending its

regulations as it deems appropriate, except to the extent that

the agency is constrained by statutory or constitutional

limitations.    See Judge Rotenberg Educ. Center, Inc. v.

Commissioner of the Dept. of Mental Retardation (No. 1), 424

Mass. 430, 466 (1997) ("[T]he judiciary lacks the authority to

order a State agency to do anything that it is not required to

do as a matter of law"), citing Attorney Gen. v. Sheriff of

Suffolk County, 394 Mass. 624, 629-630 (1985).

    As this debate between the parties suggests, there is some

unresolved tension in the case law.     The question is whether we

should try to resolve that tension at this time in the current

litigation -- now moot as to all named plaintiffs -- under the

circumstances presented.     We conclude that it would be

improvident to do so.     Although LaChance may not directly have

resolved all the issues the plaintiffs seek to raise, it set in

motion a regulatory process that will help frame any unresolved

questions.     Once the regulations mandated by LaChance have been

issued and applied, any remaining claims about what additional

process is due, if any, properly can be assessed based on

"concrete fact situation[s]."     Entergy Nuclear Generation Co. v.
                                                                   11


Department of Envtl. Protection, 459 Mass. 319, 326 (2011),

quoting from Hadley v. Amherst, 372 Mass. 46, 52 (1977).     In

that manner, judicial review can take place in a far more

appropriate setting than the abstract one presented by what

remains of the current case.   See Hadley, 372 Mass. at 52

(noting that "[i]n the absence of a concrete fact situation, any

ruling as to the extent of the power granted [to a governmental

entity by the relevant statute] is likely to be either too

narrow or too broad").   In this regard, we note that an inmate's

assignment to an SMU can occur in a broad array of

circumstances, and the specific process that an inmate may be

due may vary somewhat with those particular circumstances.

Deferring consideration of the questions the plaintiffs seek to

raise until the DOC has drafted and begun to apply its

regulations will help allow informed review of such

considerations.   Although courts eventually may need to address

the issues the plaintiffs seek to raise (assuming they are

unsatisfied by the forthcoming regulations), consideration of

such issues now would be premature.   See Massachusetts Med. Soc.

v. Commissioner of Ins., 402 Mass. 44, 48-49 (1988) ("The better

policy is to allow the administrative process to run its course

before permitting appellate review, thereby granting the

administrative agency a sufficient opportunity to apply its
                                                          12


expertise to develop regulations in conformity with the

statutory scheme").

    For these reasons, we dismiss the appeal.

                                   Appeal dismissed.
     RUBIN, J. (dissenting).     I disagree with the majority's

novel conclusion that we may refuse in our "discretion" to hear

a case over which we have jurisdiction.

     Mootness is an "aspect[] of justiciability."       O'Brien's

Case, 424 Mass. 16, 18 (1996).       If a case is moot, there is a

"jurisdictional defect."     Ibid.    Unlike Federal courts, however,

our Supreme Judicial Court has concluded it has discretion to

hear and decide moot cases when it serves the public interest.

"In . . . circumstances where some of the usual aspects of

justiciability are missing -- particularly where the case was

moot as to the parties before the court -- we have proceeded to

render an opinion, if a question of general importance was

presented which required resolution and if the jurisdictional

defect would not interfere with or confuse that resolution."

Ibid.   In the case on which the majority would rely, Lockhart v.

Attorney Gen., 390 Mass. 780, 782-783 (1984), the Supreme

Judicial Court articulated this rule and, unremarkably, declined

to hear and decide a moot case, id. at 784-785.

     This case, however, is not moot, and there is no opinion

holding that when a case is as a matter of law not moot, we have

discretion not to hear it.    Rather, individuals with a claim of

aggrievement over which a court has jurisdiction are entitled to

know and be granted their rights, whatever they might be.

Courts have a "virtually unflagging obligation . . . to exercise
                                                                       2


the jurisdiction given them."      Colorado River Water Conservation

Dist. v. United States, 424 U.S. 800, 817 (1976).

     This suit was brought as a putative class action.      The

allegedly wrongful conduct continues with respect to members of

the putative class, even though it has ended with respect to the

named plaintiffs.      In these circumstances, "[i]f the underlying

controversy continues, a court will not allow a defendant's

voluntary cessation of his allegedly wrongful conduct with

respect to named plaintiffs to moot the case for the entire

plaintiff class."      Wolf v. Commissioner of Pub. Welfare, 367

Mass. 293, 299 (1975).     Rather, the case will be held not to be

moot.    Id. at 297.   This determination is a question of law,

not, as the majority now holds, one of determining whether it

would be "improvident" or not to hear the case.      Indeed, in Wolf

itself, the trial court that had held the case moot was reversed

for legal error, with no suggestion that it had discretion not

to hear the case.      See id. at 300.   See also, e.g., State Tax

Commn. v. Assessors of Haverhill, 331 Mass. 306, 308 (1954)

(mootness is a "matter of law").1

     Nor, I should point out, is there any prudential reason to

wait for the regulations mandated by LaChance v. Commissioner of

     1
       The plaintiffs' motion for class certification was denied
solely as a logical consequence of the judge's ruling granting
the defendants' motion to dismiss on the merits. The proper
disposition of this case would include the judge on remand
considering the plaintiffs' motion anew.
                                                                     3


Correction, 463 Mass. 767, 777 (2012) –- which remain unissued

years after that decision –- to decide this case.     LaChance says

that due process requires, among other things, a hearing within

ninety days for inmates confined to administrative segregation

on awaiting action status.   Ibid.    The plaintiffs contend that

they are entitled to the more stringent regulatory protections

provided for those held in departmental segregation units (DSUs)

-– including a hearing within fifteen days.     Whatever the

precise terms of the new regulations, they will not eliminate

this disparity, and there is no reason to make those held in

these conditions wait for an adjudication of their rights.

    The judgment below therefore must rise or fall on its

merits, and it is to those I turn.

    Those inmates before us on awaiting action status were not

automatically placed because of that status in special

management units (SMUs), units whose conditions, including

solitary confinement in cells twenty-three hours per day, are

"substantially similar" (LaChance, supra at 774) to the

extremely harsh conditions in DSUs.    Rather, they were placed in

SMUs only upon a determination by a prison official that their

"continued presence . . . in the general population would pose a

serious threat to life, property, self, staff or other inmates,

or to the security or orderly running of the institution."     103

Code Mass. Regs. § 423.06 (2007) (explaining when administrative
                                                                     4


segregation is permitted).   They were placed in SMUs only

because they were deemed to warrant administrative segregation

because of a threat to safety and security.   Before this

placement, however, they were not afforded the detailed

procedures required by 103 Code Mass. Regs. §§ 421.00 for

placement in a DSU.    Those regulations require a hearing before

an impartial board, 103 Code Mass. Regs. § 421.12, at which

there must be "substantial evidence" that an inmate poses "a

substantial threat" to either "to the safety of others; or . . .

of damaging or destroying property; or . . . to the operation of

a state correctional facility."   103 Code Mass. Regs. § 421.09

(1994).

    In Haverty v. Commissioner of Correction, 437 Mass. 737,

763, 764 n.36 (2002), the Supreme Judicial Court said that as a

matter of interpretation of the regulations, the procedural

safeguards detailed in 103 Code Mass. Regs. §§ 421.00 "must be

afforded to all prisoners before they are housed in DSU-like

conditions" except for those prisoners "whose stay . . . is

intended to be, and is, brief," meaning "days, not weeks."     The

court reminded the Department of Correction (DOC) that "in 1995

the commissioner attempted to repeal the DSU regulations, but

his attempt to do so was enjoined by a single justice of this

court.    The commissioner did not appeal from the order of the

single justice, nor does the record reflect that he has made any
                                                                     5


subsequent attempt to modify or repeal the regulations."     Id. at

758 (footnote omitted).   Absent a court order to the contrary,

these regulations thus "have the full force of law."   Ibid.

This has not changed since then, and because Haverty remains

good law, the prisoners in this case are entitled to the

protections of those regulations as a matter of State law.

    The DOC essentially argues that LaChance, 463 Mass. at 774-

775, overruled Haverty, supra, and means that these prisoners

are entitled only to what LaChance commanded, and no more.     The

language of the LaChance opinion, robust with favorable citation

to Haverty and to Hoffer v. Commissioner of Correction, 412

Mass. 450 (1992), certainly does not appear to have been

intended to weaken the procedural protections for prisoners like

these.   In fact, the LaChance court reiterated that its prior

decisions stated that (1) "under DOC regulations, indefinite

confinement in any unit where conditions are substantially

similar to those of a DSU entitles an inmate to the protections

afforded by the DSU regulations," and (2) "the protections

afforded by the DSU regulations are mandated by due process

considerations."   LaChance, 463 Mass. at 774-775, citing Hoffer,

supra at 455, and Haverty, supra at 762.   As the majority

observes, the court noted that these prior decisions were "not

directly controlling" on the issue actually decided, LaChance,

supra at 775.   However, this disclaimer seems to strengthen the
                                                                    6


argument that LaChance did not overrule Haverty:   the State-law

issue decided in Haverty was different from the issue the court

was addressing in LaChance, that of Federal due process in the

context of 42 U.S.C. § 1983.

    On the other hand, as the majority indicates, it can be

argued that, if the Supreme Judicial Court in LaChance was

ordering the promulgation of regulations only for prisoners in

DSU-like conditions, it must have meant to overrule Haverty.       If

all the prisoners who would be entitled to the benefit of the

regulations ordered by LaChance –- including primarily the

requirement of a hearing within ninety days –- were already

entitled under Haverty to the benefit of 103 Code Mass. Regs.

§§ 421.00, which mandates a hearing within fifteen days,

requiring the drafting of the new regulations would have been

purposeless.   Rather than having done something purposeless, the

argument goes, the Supreme Judicial Court must have overruled

Haverty sub silentio.

    The flaw in this argument lies in its major premise.     The

procedures required by the court in LaChance are not only for

those in conditions "substantially similar" to those in the

system's designated DSUs.   Rather, the court concluded as a

matter of Federal due process that the procedures it described

are required for "an inmate confined to administrative

segregation on awaiting action status, whether such confinement
                                                                     7


occurs in an area designated as an SMU, a DSU, or otherwise."

LaChance, 463 Mass. at 776.    "Administrative segregation is a

'temporary form of segregation from general population used when

the continued presence of the inmate in the general population

would pose a serious threat to life, property, self, staff or

other inmates, or to the security or orderly running of the

institution.'"    Id. at 769 n.4, quoting from 103 Code Mass.

Regs. § 423.06 (2007).   Nothing requires that those on

administrative segregation be held in harsh conditions

"substantially similar" to those in a DSU.

    The court in LaChance said nothing about the question

presented here:   whether the subgroup of those held in

administrative segregation on awaiting action status whose

conditions of confinement are as harsh as those in DSUs are

entitled as a matter of State law to the more stringent

protections of 103 Code Mass. Regs. §§ 421.00.     Under Haverty,

the answer to that question is yes.     But that does not render

the LaChance regulations purposeless.     The LaChance regulations

still will articulate the protections required for those inmates

held in administrative segregation in conditions which are not

substantially as restrictive as those in a DSU, who are not

entitled to the more robust protections of Haverty.

    For these reasons, I would reverse the judgment of the

trial court.
