In re Recall of Boldt ( 2017 )

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susAN CCRL'soN
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Recall of )
) No. 93522-0
MARC BOLDT, )
Clark County Councilor, )
)
JEANNE STEWART, ) EnBanc
Clark County Councilor, )
)
JULIE OLSON, )
Clark County Councilor. )
) Filed JAN 1 2 2011
)
GONZALEZ, J. -Clark County Councilor Thomas Mielke filed recall
charges essentially alleging that three fellow council members improperly held a
vote in executive session, improperly designated The Columbian as the newspaper
of record, and did not prevent the county executive from dissolving a county
department. The superior court judge dismissed the charges as legally and
factually insufficient, which Mielke appealed. We affirm the trial court.
In re Recall of Marc Boldt, eta!., No. 93522-0
BACKGROUND
Clark County's Board of County Councilors (Board) operates under a "home
rule charter." A home rule charter is a municipality's organizational plan,
analogous to a constitution, drawn by the local government itself and adopted by
popular vote. BLACK'S LAW DICTIONARY 284 (lOth ed. 2014). In 2014, Clark
County voters increased the number of the Board from three to five members.
Under the charter, the Board is the legislative body and the county manager the
executive. CLARK CoUNTY CHARTER§§ 1.5, 2.1, 3.1. The manager has authority
to supervise all administrative departments established by the charter or created by
the Board, and to execute and enforce all ordinances. Id. § 3.2.
The Board adopted a budget in 2015 that included funding for a county
Department of Environmental Services. Former Senator Don Benton served as its
director. In May 2016, County Manager Mark McCauley "reorganize[d]" the
Department, eliminating administrative positions, including Benton's, and
reassigning the services to other county departments. Clerk's Papers (CP) at 520.
According to McCauley, he based this decision on his authority alone as manager.
In 2016, Councilors Marc Boldt and Julie Olson were elected to the Board,
joining Councilors Jeanne Stewart, David Madore, and Thomas Mielke. Tensions
rose quickly between councilor members. The councilors often disagreed, dividing
the Board into two factions: Boldt, Olson, and Stewart against Madore and Mielke.
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In re Recall of Marc Boldt, et al., No. 93522-0
E.g., CP at 193-95,11,24,38 (Mielke characterized Boldt, Olson, and Stewart as
Madore's "political rivals"). Madore eventually became suspicious of Deputy
County Prosecutors Chris Home and Christine Cook and Planning Director Oliver
Orjiako, accusing them of providing false information to the Board regarding the
county's comprehensive plan update as required by the Growth Management Act,
chapter 36.70A RCW. Madore created a document purportedly showing
"inaccuracies of their testimony and posted it to the County's website." Br. of
Appellant at 2 (citing CP at 129-30).
On March 1, 2016, Home spoke about Madore's concerns and asked for
guidance from the Board about whether an independent investigation was needed.
Boldt, Olson, and Stewart stated that an investigation was not necessary, while
Madore endorsed proceeding with an investigation. On March 2, 2016, a union for
county employees threatened to file a grievance against Madore's "defamatory"
public allegations naming Home, Cook, and Orjiako. CP at 131-32. 1 On March 9,
2016, the Board met again, Horne provided additional background on an
independent investigation, and the Board discussed "moving forward" with it. CP
at 406.
1
Madore accused Clark County staff of misfeasance at public meetings, in Facebook postings, in
e-mails, in an op-ed article, and in an AprilS, 2016 Clark County Focus television interview. CP
at 235.
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On March 15, 2016, Orjiako submitted a complaint, alleging Madore created
a hostile workplace, to Clark County's director of human resources. In light of the
Board's discussions, McCauley decided on his own to move forward with an
investigation. McCauley directed his staff to locate an independent investigator to
look into the allegations made by and against Madore. While the recruitment
process was unclear, on March 19, 2016, attorney Rebecca Dean sent an
engagement letter to the county, agreeing to begin an investigation. McCauley's
declaration states that his staff proposed Dean's scope of work and he did not
discuss it with the Board based on his "past practice regarding contracts for
investigations of county employees." CP at 519. McCauley executed the contract
"based on [his] authority as County Manager under the Clark County Home Rule
Charter and related rules." Jd. The Dean contract was not posted on the county's
website.
The Board returned to conducting county business despite the allegations
from Madore and county staff. On AprilS, 2016, the Board considered bids for the
county's newspaper of record. Four newspapers submitted bids. The county
purchasing manager presented a report comparing the bids and advised the Board
that the previous newspaper of record, The Reflector, had "compromised the
County's ability to meet publishing deadlines and scheduled changes." CP at 443.
The purchasing manager also stated that The Reflector, a weekly newspaper, would
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In re Recall ofMarc Boldt, et al., No. 93522-0
require duplicate postings in The Columbian, a daily paper, concluding that The
Reflector would ultimately be more expensive in total publishing costs. Boldt,
Olson, and Stewart voted for The Columbian; Mielke and Madore voted for The
Reflector.
Meanwhile, at an April20, 2016 board meeting, McCauley explained why
"he believed that he had unanimous support from the Board to proceed with an
investigation of Councilor Madore's allegations" and, because the contract
involved "investigations of one ofthe Board members," why "he decided that it
was not appropriate" to post the Dean contract on the website. Resp'ts' Br. at 8
(citing CP at 189-90). Interestingly, Mielke seems to confirm that the Board had
agreed to pursue an investigation, but believed there had been no agreement
regarding its scope. CP at 194 ("I thought we would agree to hire someone, but we
hadn't agreed on what's going to be investigated.").Z
On June 28, 2016, Mielke filed a recall petition against Boldt, Olson, and
Stewart in Clark County Superior Court. He claimed that the councilors: (1)
knowingly violated the Open Public Meetings Act of 1971 (OPMA), chapter 42.30
2
Dean completed her investigation by July 6, 2016. Her report concluded that Madore's
allegations of staff misfeasance by Orjiako, Cook, and Horne were "[i]n all material respects ...
false." CP at 23 5. She also concluded that the staff did not engage in misleading behavior or
deceive the Board or manipulate data. Dean concluded that Madore attempted to directly
micromanage the Clark County Planning Department's work on the 2016 comprehensive plan
and "attempted to pressure Orjiako and Planning staff not to exercise independent professional
judgment." CP at 236.
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RCW, by authorizing the hiring of Dean, (2) grossly wasted public funds by
awarding the paper of record contract to The Columbian newspaper, (3)
purposefully limited Mielke's and Madore's access to advice from the county
prosecutor's office, and (4) abdicated legislative responsibilities by allowing
McCauley to dissolve the county's Department of Environmental Services without
legislative authorization. 3
A sufficiency hearing was held on July 29, 2016. The trial court considered
affidavits from the parties and reviewed a video recording of a board meeting. The
court concluded the recall charges were factually and legally insufficient, and ruled
that Mielke lacked standing to seek recall of Olson because he did not reside in her
district. Mielke now appeals the superior court's order dismissing the recall
petition.
ANALYSIS
Elected officials in Washington may be recalled for malfeasance,
misfeasance, or violation of oath of office. WASH. CONST. art. I, §§ 33-34; RCW
29A.56.11 0. Courts act as a gateway to ensure that charges are factually and
legally sufficient before they are placed before the voters, but our role is not to
evaluate the truthfulness ofthose charges. RCW 29A.56.140; In re Recall ofKast,
144 Wash. 2d 807, 813, 31 P.3d 677 (2001) (citing In re Recall of Beasley, 128
3
Appellant appears to have abandoned the third allegation on appeal.
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In re Recall of Marc Boldt, et al., No. 93522-0
Wn.2d 419, 427, 908 P.2d 878 (1996); In re Recall ofPearsall-Stipek, 141 Wash. 2d
756, 764, 10 P.3d 1034 (2000)).
Recall petitions must be both legally and factually sufficient, and courts
must ensure that persons submitting the charges "have some knowledge of the
facts underlying the charges." In re Recall of Wasson, 149 Wash. 2d 787, 791, 72
P.3d 170 (2003) (citing In re Recall ofAckerson, 143 Wash. 2d 366, 372,20 P.3d 930
(2001)). The facts alleged in a petition are sufficient to proceed to a ballot when,
taken as a whole, they "identify to the electors and to the official being recalled
acts or failure to act which without justification would constitute a prima facie
showing of misfeasance, malfeasance, or a violation of the oath of
office." Chandler v. Otto, 103 Wash. 2d 268, 274, 693 P.2d 71 (1984).
In determining whether a petition is factually sufficient, we assume the
veracity of allegations made so long as they are reasonably specific and
detailed. See In re Recall ofSandhaus, 134 Wash. 2d 662, 668-69, 953 P.2d 82
(1998). "Voters may draw reasonable inferences from the facts; the fact that
conclusions have been drawn by the petitioner is not fatal to the sufficiency of the
allegations." In re Recall of West, 155 Wash. 2d 659, 665, 121 P.3d 1190
(2005). Where commission of an unlawful act is alleged, the petitioner must show
facts indicating the official had knowledge of and intent to commit an unlawful act.
In re Recall ofTelford, 166 Wash. 2d 147, 158,206 P.3d 1248 (2006).
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In re Recall of Marc Boldt, et al., No. 93522-0
Likewise, a recall petition is legally sufficient if it "state[s] with specificity
substantial conduct clearly amounting to misfeasance, malfeasance or violation of
the oath of office." Chandler, 103 Wash. 2d at 274. An appropriate exercise of
discretion does not constitute grounds for recall. I d. "The sufficiency of a recall
petition is reviewed de novo." Wasson, 149 Wash. 2d at 791 (citing Teaford v.
Howard, 104 Wash. 2d 580, 590, 707 P.2d 1327 (1985)). A reviewing court does not
look to the truthfulness of the charges but instead considers whether, accepting the
allegations as true, the charges on their face support the conclusion that the officer
abused his or her position. I d. at 792 (citing Teaford, 104 Wash. 2d at 5 86).
The superior court makes the initial sufficiency determination, subject to
review by this court. See RCW 29A.56.140; Kast, 144 Wash. 2d at 813. The charge,
taken as a whole (which may include consideration of attached documents in
certain circumstances) must be specific enough to give the elected official
meaningful notice of the particular conduct challenged and why it is grounds for
recall. West, 155 Wash. 2d at 667 (citing In re Recall of Lee, 122 Wn.2d 613,618,
859 P.2d 1244 (1993)).
I. THE DEAN CONTRACT
Mielke argues that Boldt, Olson, and Stewart knowingly violated the OPMA
when they allegedly held a clandestine meeting to approve Dean's contract. The
OPMA allows closed executive sessions to discuss complaints or charges brought
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In re Recall ofMarc Boldt, et al., No. 93522-0
against public officials or employees and to converse with legal counsel about
potential litigation. RCW 42.30.11 0(1 )(f), (i). Before convening in executive
session, the presiding officer publicly announces the purpose for excluding the
public and the time when the session will conclude. RCW 42.30.11 0(2). Mielke
contends that neither he nor Madore were notified of this secret meeting as
mandated by RCW 42.30.060, making any vote taken in such a meeting null and
void.
Mielke seems to argue that because the Dean contract was executed, Boldt,
Olson, and Stewart had to have met secretly to approve it. There is no direct
evidence such a secret meeting occurred, but Mielke is correct that the record does
not definitively establish when the Board discussed hiring an independent
investigator, whether this was in a public meeting or executive session, whether the
Board held a formal vote, or whether the county manager made the decision.
Boldt, Olson, and Stewart's statements as to the nature and timing of the discussion
appear to conflict. 4 Horne stated that he knew "four members ... specifically
voted in favor of going forward with th[ e] investigation," but it is not clear whether
4
See, e.g., CP at 404 (Boldt, Olson, and Stewart state that "no investigation was needed"), 191,
196-97 (Stewart stated that the Board discussed the independent investigator at executive session
and that Madore was present), 195 (Boldt stated that the Board had "talked about th[e]
investigation for a month or more ... [;] it was held in open session"), 202 (Olson noted the
contract was preapproved by the Board).
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In re Recall ofMarc Boldt, et al., No. 93522-0
he meant "voting" in the context ofthe OPMA. CP at 203. And McCauley states
that he alone decided to pursue an independent investigator and hire Dean.
Assuming that Mielke is correct that there was an improper vote held in
executive session, this alone is not a recallable offense. Where a recall petition
alleges that an "official committed an unlawful act, factual sufficiency also
requires that the petition contain a factual basis for both the proposition that the
official intended to commit the act and 'that the official intended to act
unlawfully."' In re Recall ofHeiberg, 171 Wash. 2d 771, 778, 257 P.3d 565 (2011)
(quoting In re Recall ofPearsall-Stipek, 136 Wash. 2d 255, 263, 961 P.2d 343
(1998)). If a board member believed that he or she was acting appropriately under
the law, he or she is not subject to civil penalty under the OPMA. RCW
42.30.120; see also Cathcart v. Andersen, 10 Wash. App. 429, 436-37, 517 P.2d 980
(1974) (civil penalties not appropriate where uncontroverted affidavits established
that attorney general advised law school faculty that meetings did not violate the
OPMA). But cf In re Recall ofDavis, 164 Wn.2d 361,371-72, 193 P.2d 98 (2008)
(a contract entered outside of a public meeting, when the signatory exceeded the
scope of her legal authority, is a legally sufficient ground for recall).
Boldt, Olson, and Stewart's uncontroverted statements establish that they
relied on the county attorney's advice regarding the "unique" legal situation facing
the Board and that they did not think they were violating any rule. CP at 199-203.
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In re Recall of Marc Boldt, et al., No. 93522-0
Because Boldt, Olson, and Stewart relied on legal advice and believed they were
acting in accordance with the law, they did not knowingly violate the OPMA. See
Wasson, 149 Wash. 2d at 791 ("[T]he facts must show that the official intended to
violate the OPMA." (citing In re Recall ofAnderson, 131 Wash. 2d 92, 95, 929 P.2d
410 (1997))).
Mielke also argues that Boldt, Olson, and Stewart violated their oath of
office by allowing McCauley to contravene the county code when he failed to post
the Dean contract on the county website as required by Clark County Code
2.09.030(2). Br. of Appellant at 11. The county code states that
( 1) The county manager is authorized to execute contracts in the amounts
and subject areas set forth below for:
(a) Contracts for the procurement of professional services not to
exceed two hundred thousand dollars ($200,000) upon compliance
with all other applicable state and federal laws. Professional
service contracts funded by the general fund in an amount
exceeding one hundred thousand dollars ($100,000) shall require
prior council approval.
CLARK COUNTY CODE 2.09.030.
The chapter goes on to require that
(2) Prior to the execution of any contract subject to subsection (1) of this
section, the county manager will publish all contracts and staff reports
on the Clark County website including a swnmary of the contract
purpose, funding sources, and contract term. The county manager will
also provide a copy of the staff reports and/or contracts to county
councilors for their review and will not execute the documents for one
week to provide any councilor an opportunity to review and request
individual consideration of a document prior to execution. Contracts
signaled for individual consideration will be approved by a majority
vote ofthe council at a public meeting.
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In re Recall ofMarc Boldt, et al., No. 93522-0
CLARK COUNTY CODE 2.09.030(2) (emphasis added).
McCauley stated that he believed he was not required to post the Dean
contract on the county website5 because (1) he believed it was within his authority
as executive to execute the contract alone, (2) it contained sensitive and
confidential information, and (3) not posting it was consistent with his past
practices involving contracts for investigations of county employees. Mielke
asserts that Horne admitted wrongdoing when he stated at a public meeting that the
contract "wasn't posted on the grid, and the Ordinance [Clark County Code
2.09.030(2)] requires it to be posted on the grid." Br. of Appellant at 11 (emphasis
omitted) (citing CP at 199). However, this mischaracterizes Horne's full statement.
Horne went on to explain that the sihlation facing the Board consisted of "unique"
issues not contemplated by the county code. He explained that the code did not
require the Dean contract to be preapproved by the Board and characterized the
contract as "pre-approved." CP at 199. Nor did the code contemplate the current
legal situation-an employment action against a sitting councilor (i.e., Madore).
Although McCauley may have exceeded his authority by failing to post the
Dean contract to the county website, this does not make Boldt, Olson, or Stewart
subject to recall since they believed McCauley had authority and they relied on
5
Clark County maintains a website to post documents for public access. This website is referred
to as "'The Grid. "' CP at 83 n.2. Two grids exist: one for Board documents and another for
proposed contracts.
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In re Recall ofMarc Boldt, eta!., No. 93522-0
legal advice. Cf Davis, 164 Wash. 2d at 371-72. We affirm the trial judge's
conclusion that this allegation is insufficient to sustain a recall.
II. NEWSPAPER OF RECORD
Mielke argues that Boldt, Olson, and Stewart grossly wasted public funds by
awarding the county's newspaper of record contract to The Columbian instead of
The Reflector "as a reward for the aggressive attacks on their political opponents
Madore and Mielke." Br. of Appellant at 25. Though Mielke did not argue this
issue at the sufficiency hearing, we may nevertheless accept review of claimed
errors not appealed as a matter of right. CP at 558 (at trial, Mielke's attorney
conceded "that the case law does establish the discretion" of the legal newspaper
contract but wished to preserve the issue for appeal); State v. Blazina, 182 Wash. 2d
827, 834-35, 344 P.3d 680 (2015) (citing State v. Russell, 171 Wash. 2d 118, 122,
249 P.3d 604 (2011)).
Counties must designate a newspaper to serve as the official newspaper of
record, and the "county legislative authority shall let the contract to the best and
lowest responsible bidder, giving consideration to the question of circulation in
awarding the contract, with a view to giving publication of notices the widest
publicity." RCW 36.72.075. Mielke contends that this provision provides "little
discretion" to decision-makers in awarding the newspaper contract. Br. of
Appellant at 23. He largely focuses on the "lowest" bidder language in the statute,
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In re Recall of Marc Boldt, et al., No. 93522-0
arguing that Boldt, Olson, and Stewart voted for the more expensive newspaper
"quid pro quo" for negative editorial coverage of Mielke and Madore. !d. at 23
(citing CP at 433); CP at 96-99.
RCW 36.72.075 does not define the term "best and lowest responsible
bidder." '"The determination of the municipal officials concerning the lowest
responsible bidder will not be disturbed by the courts, unless it is shown to have
been influenced by fraud, or unless it is an arbitrary, unreasonable misuse of
discretion."' Chandler, 103 Wash. 2d at 275 (quoting 10 EUGENE MCQUILLIN,
MUNICIPAL CORPORATIONS§ 29.73, at 398 (3d rev. ed. 1981)). This court held in
1939 that counties have discretion in selecting an official newspaper. King County
v. Superior Court, 199 Wash. 591, 92 P.2d 694 (1939) (paper upheld as official
county newspaper despite its limited circulation and being published by a political
group). The plain meaning of the statute supports this view.
The meaning of a statute is a question of law reviewed de novo. State v.
JM, 144 Wn.2d 472,480,28 P.3d 720 (2001) (citing Cockle v. Dep't ofLabor &
Indus., 142 Wash. 2d 801, 807, 16 P.3d 583 (2001)). If a statute's meaning is plain
on its face, courts give effect to that meaning. !d. (citing State v. Chapman, 140
Wash. 2d 436, 450, 998 P.2d 282 (2000)). If the language is ambiguous or unclear,
courts may look to the statutory scheme as a whole or related statutes. Dep 't of
Ecology v. Campbell & Gwinn, LLC, 146 Wash. 2d 1, 10, 43 P.3d 4 (2002).
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In re Recall of Marc Boldt, et al., No. 93522-0
RCW 36.72.075 requires that the "best and lowest responsible bidder" be
selected, while also considering circulation and publicity. This statute does not
require a county to select its newspaper based solely on the lowest monetary bid.
In fact, it requires decision-makers to balance cost with other factors. Here, the
Clark County purchasing manager informed the Board that the previous newspaper
of record, The Reflector, had compromised the County's publishing deadlines,
would require duplicate postings in other local papers, and in total would increase
publishing costs. In light of this information, Boldt, Olson, and Stewart did not
improperly exercise discretion in voting for The Columbian and this allegation was
not a basis for recall. In re Recall ofReed, 156 Wash. 2d 53, 59, 124 P.3d 279 (2005)
("an elected official cannot be recalled for appropriately exercising the discretion
granted him or her by law" (citing Kast, 144 Wash. 2d at 815)); Chandler, 103 Wash. 2d
at 275. This charge was properly dismissed.
III. DISSOLUTION OF THE DEPARTMENT OF ENVIRONMENTAL SERVICES
Lastly, Mielke argues that Boldt, Olson, and Stewart abandoned their
legislative responsibilities by allowing McCauley to dissolve the county's
Department of Environmental Services without requiring a vote by the Board as
required by RCW 36.40.100.
Essentially, Mielke contends that because the Board sets a department's
budget, only the Board can transfer or revise that department. But McCauley
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In re Recall ofMarc Boldt, et al., No. 93522-0
testified that as manager, he had authority to reorganize administrative departments
such as the Department of Environmental Services and he did not need the Board's
consent even to eliminate the department. Boldt, Olson, and Stewart state that they
did not take part in or direct McCauley regarding the reorganization. The
councilors believed McCauley had authority under the Clark County Charter to
dissolve or reorganize administrative departments. Even assuming, without
deciding, that McCauley lacked authority to reorganize a county department, there
is no evidence that Boldt, Olson, or Stewart intended to violate the law. In re
Recall ofCarkeek, 156 Wash. 2d 469, 474, 128 P.3d 1231 (2006) ("while some
inferences are permissible, ' [o]n the whole, the facts must indicate an intention to
violate the law"' (alteration in original) (quoting In re Recall ofFeetham, 149
Wash. 2d 860, 865, 72 P.3d 741 (2003))). Thus, this charge is not legally sufficient
and was properly dismissed. This charge is not legally sufficient to support the
recall action. 6
6
Mielke also appeals the trial court's conclusion that he lacked standing to recall Olson. The
Washington State ConstihJtion provides that a public official is subject to recall "by the legal
voters oftbe state, or of the political subdivision oftbe state." CONST. art. I,§ 33 (emphasis
added). "Political subdivision" is not defined in RCW 29A.56.11 0 (codifying CON ST. art. I, §
33). Respondents contend that Teaford controls, urging tbis court to conclude tbat a "political
subdivision" means an "officer's constituency." 104 Wash. 2d at 583. Teaford states that an
"officer's constituency can initiate recall proceedings" under article I, section 33. ld. (emphasis
added). But the Teaford court did not conclude that only an officer's constituency in a political
subdivision can initiate a recall action. Indeed, this appears to be an issue of first impression. As
Professor Hugh Spitzer notes, a ''political st!bdivision" is "a concept that is defined differently in
at least half dozen statutes but is used much more frequently in an undefined way." Hugh
Spitzer, A Local Government By Any Other Name, PROCEEDINGS OF WASH. STATE Assoc. OF
MUN. ATT'YS 7-7 to 7-8 (2009), http://mrsc.org/getmedia/D2F2FDF4-·9C9C-4D03-8945-
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IV. COSTS
Boldt, Olson, and Stewart argue that the recall allegations are frivolous and
that they are entitled to compensatory damages under RAP 18.9(a). An appeal is
frivolous if, considering the whole record, the court is convinced there are no
debatable issues on which reasonable minds may differ and it is totally devoid of
merit. Fay v. Nw. Airlines, Inc., 115 Wash. 2d 194, 200-01, 796 P.2d 412 (1990)
(citing Green River Cmty. Call. Dist. No. 10 v. Higher Educ. Pers. Bd., 107 Wash. 2d
427, 442-43, 730 P.2d 653 (1986)). Mielke's allegations, while insufficient to
sustain a recall petition, were not so totally devoid of merit such that there was no
possibility of reversal. This appeal was not frivolous. Furthermore, "a recall
petitioner should not be made to pay an elected official's attorney fees merely
because the petitioner has brought a 'frivolous recall petition."' Pearsall-Stipek,
141 Wash. 2d at 783 (quoting Pearsall-Stipek, 136 Wash. 2d at 267).
Boldt, Olson, and Stewart also seek costs under RAP 14.2-14.4 as the
substantially prevailing party on review. Mielke's allegations are legally and
factually insufficient to sustain recall charges, and Boldt, Olson, and Stewart
substantially prevailed on appeal. See Salomi Owners Ass 'n v. Satomi, LLC, 167
Wash. 2d 781, 817,225 P.3d 213 (2009) (citing RAP 14.2). Therefore, we award
OAl 07182A50B/wsama534-7.aspx [https://perma.cc/SG6R-9U7V]. It is not necessary for us to
resolve this issue here and we decline to reach it.
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them costs on appeal, to be determined by the commissioner or clerk in accordance
with RAP 14.6.
CONCLUSION
Mielke's recall charges are insufficient to proceed to the voters. We affirm
the superior court's dismissal of the recall petition and award Boldt, Olson, and
Stewmi costs on appeal.
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WE CONCUR:
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