NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 13a0108n.06 No. 12-1453 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

SYL VI A J AMES, Plaintif f-Appellant,

v. HI L L I ARD HAMPTON, THE CI TY OF I NKSTER, DAVI D J ONES, DEB ORAH GREEN, PAMELA ANDERSON, PAUL

FI SCHER, THE J UDI CI AL TENURE COMMI SSI ON OF THE STATE OF MI CHI GAN, a

nd VAL DEMAR WASHI NGTON , Defendants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL

FROM THE U

NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : COL E and GRI FF I N, Circuit J udg es; GWI

N, District J udg e * GWI N, District J udg e. Plainti ff-Appellant Sy lvia J ames, a now-for mer state-c ourt judge , sues t he Mi chig an J udicial Tenure C ommissi on and various state and local officials that remove d her from office

. She sued in fede ral court though rela ted matters wer e then b efor e Michig an administrative bodies and Michig an courts. Citi ng the then-ong oing state disciplinary proce eding s ag ainst J ames, the district court invoked Y ounger and Burford abstention and dismiss ed the lawsuit. The Y ounger and Burford doctrines counsel fede ral courts ag ainst interfe ring with s t ate leg al proce eding s.

The Honora

ble J ames S

. Gw i n, United States District J udg e for the Norther n District of * Ohio, sitti ng by

desig nation.No. 12-1453

Jame s v. Hampton, e t al. Whil e we ag ree that this case qualifies for Y ounger abstention, we nonetheless reverse the district court’s dismi ssal. I n s t ea d o f di smissi ng the case, t he dis trict court should have stay ed the

case until the state proce eding s had conclude d beca use J ames soug ht money damag es in addition to equitable relief

. We there fore REVERSE the judgme nt of the district court and REMAND for proce eding s consistent with this opi nion. I . Fa ctual B ackg round I n this case , J ames s eeks a fede ral forum to revie w acts of the Michig an J udicial Tenure Commi ssion (JTC ) when it investigated and d i s ciplined her. On September 7, 2010, Hilliard Hampton, the City of I nkster’s may or, and the I nkster City Council hired David J ones, an attorney , to investiga

te J ames, who was then a state-district-c ourt judge

. I n Fe bruar y 2011, afte r conducting an investig ation, J ones filed a g rieva nce w ith the J TC alleg ing that J ames a bused her office

. The Michig an Constit ution establishes the nine-memb er J TC to overse e the discipline of Michig an’s judiciary

. Mich. Const. art. 6 § 30. The Commi ssion includes five judge s, two attorney s and two lay persons. Id. When the Commi ssion rec eives a g rieva nce, it “dire ct[s] that an investigation be conducte d to de termine whether a complaint should be filed and a hear ing he ld.” Mich. Ct. R. 9.207(B ). I f the Commi ssion files a formal complaint, it then conducts a hear ing, which “must confor

m as near ly as possible to the rules of proce dure and evidenc e go v er ning the trial of civil actions in the circ uit court.” Mich. Ct. R. 9.211(A). The Michig an Supreme Court may appoint
a master to conduct this hear ing a nd issue a re port. Mich. Ct. R. 9.210; 9.214. Upon “[t] he aff

irmative vote of 5 commission member s who have considere d the repor t of the m aster and any objections” the Commi ssion may rec ommend to the M ichig an S upreme Court -2-No. 12-1453

Jame s v. Hampton, e t al. that a judg e be r emoved f rom offic e. Mich. Ct. R. 9.220(A). The Michig an Supreme Court then revie w[s] the re cord of

the proc eeding s and file[s] a written opinion and judg ment, which may

acc ept or re

ject the rec ommendations of the commission, or modify the rec ommendations by imposing a g reater, lesser, or entirely differ ent sanction. When approp ri ate, the Court may rema nd the matter to the commission for further proce eding s, findings, or

expli cation. Mich. Ct. R. 9.225. Furthermore , “[t] he Supreme Court may , if ca use is shown, order that further evidenc e be taken and added to the orig inal rec ord.” Mich. Ct. R. 9.224(E). The Michig an sy stem thus g ives the Michig an Supreme Court the ultimate authority over judicial discipline. I mportantly , the Michig an sy stem also aff ords parties the ability to offe r additional evidenc e t o t h e M i chig an Supreme Court. See id

. On October 26, 2011, the J TC filed a complaint ag ainst J ames. The complaint alleg ed that Ja me s mi s a p p r o priated public funds, violated various employ ment provisions g overning Michig an’s courts, neg lected her officia l duties, and made dece ptive statements to the J TC. Retired J udg e Ann Mattson served a s the Master. On J anuar

y 17, 2012, the M aster conducted a pretrial hear ing, and, on J anuar y 23, 2012, a full hear ing beg an. The parties dispute whether the Master st o p p ed J ames from raising 1 constitutional claims, including the claims that her office safe was sear che d and that potentially exculpatory

materia ls in that safe we re de stroy ed. 2

Neither party filed with either this Court, or the district cour t, a complete transcr ipt of the 1 a p p a r e n tl y v o lu

minous proce eding s befor e Michig an’s judicial sy stem, making our acc ou n t o f e v e n ts inevitably incomplete. I n particula

r, they dispute how the following colloquy during the J anuar y 23, 2012, hear ing 2 should be understood: -3-No. 12-1453

Jame s v. Hampton, e t al. M e a nwhile, on J anuar

y 20, 2012—three day s afte r the preliminary hear ing befor e the M a s te r , and t h re e d ay s befor e the full hear ing beg an—James filed t his action in the Unit ed S tates Dist rict Court for the Easter

n District of Michig an. I n six counts, she alleg ed violations of her constitutional rig hts, her rig ht to cer

tain documents, as well as defa mation and “political conspirac y .” She soug ht injunctive relief

ag ainst the J TC proce eding s, as well as da mag es, attorne y s’ fe es, and c osts. On April 5, 2012, the dist ri ct court dismiss ed the case . The court held that Y ounger abstention, or, i n t h e al t er n ative, Burford abstention, require d it to ref rain from ruling on J ames’s claims while the state pr ocee dings r emained ong oing. T his appea l followed. 3 J ames argues that the district court should not have dismiss ed her complaint. She say s that Y ounger and Burford abstention are inappropriate beca use no case was pending in state court when

The Maste r: You wa

nted to make a

reque st to make a re quest. [P laintiff’s counsel]: I wanted to reque st the opportunity to make a rec o rd o n t h e Fe dera l Constit utional I ssues, which in this proce eding thus far have n o t been addre ssed, and— The Maste r: We have ta lked about that at the be nch. [P laintiff’s counsel]: We have talked about that at the bench, and my understanding is that y ou have de clined to allow me to make that rec ord. The Master: Yes, I have declined to allow y ou to make a rec ord about that, but not to make the r ecor d that y ou reque sted to make. [P laintiff’s co unsel]: Thank y ou, y es. And that we will end these proce eding s on Monday at 1:00 and that— The Maste r: At this point, I ’ll make a further rec ord on that. [P laintiff’s counse l] : You’ll make that. Oka y . J ames say s that this colloquy shows that the state proce eding s fo rec losed her from prese nting her fede ral c laims. Appellees sa y otherwise. Meanw hile, on May 27, 2012, the Master finalized her finding s, and, on J uly 31, 2012, the 3 Michig an Supreme Court issued an opinion removing J ames from office

. See In re Jame s , 821 N.W. 2d 144 (Mich. 2012). -4-No. 12-1453

Jame s v. Hampton, e t al. she filed this ac tion. Further more, she sa

y s that the state proc eeding s did not provide an ade quate opportunity to raise her con s tituti onal claims. She also claims that even if abstention was appropr iate, the district court should have stay ed proce eding s rathe r than dismiss ing her complaint beca use she se eks dama g es in addition to equitable re lief. I n response , Appellee s J udicial Tenure Commi ssion of the State of Michig an, Paul Fische r, Debor ah Gre en, and Valdema r Washington (“State Def endants” ) say that the district court corr ectly found that the criter ia for abstention wer e met. They alternatively argue that Eleventh Amendment immunit y protec ts them from suit. Def endants Hilliard Hampton, the City of I nkster, David J ones, and Pamela Ander son (“Inkster Def endants” ) likewise say that Y ounger and Burford abstention are appropr iate. F urthermor e, the I nkster De fenda nts say that J ames’s c omplaint fails to state a cla im upon which relief can be g rante d, and that Noerr-Pennington immunit y insulates them from suit for some claims. I I . Analy sis

“ Y ounger v. Harris and its prog eny espouse a strong fede ral policy ag ai n s t fede ral-c ourt interfe renc e with pending state judi c ia l p r o c e e d in g s a b s e n t extraordinary circ umstances.” Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n , 457 U.S. 423, 431 (1982) (citing Y ounger v. Harris , 401 U.S. 37, 44 (1971))

. Thus, wher e a state proceeding deals with issues involved in the fede ral court suit , the fe dera l court abstains until the conc lusion of the state proceeding

. A t hree -par t test controls when such abstention is appropr iate: “(1) there must be on-g oing state judicial proce eding s; (2) t h o se proce eding s must implicate important state interests; and (3) there must be an adequate opportunity in the state proce eding s to raise constitutional challeng es.” Squi r e v. C oughlan , 469 -5-No. 12-1453

Jame s v. Hampton, e t al. F.3d 551, 555 (6th Cir. 2006) (internal quotations omit ted). We review a district court’s decision to abstain de novo. Id. A. Y ounger Abstention This case falls within this Court’s exis ting Y ounger abstention jurisprudenc e. We brea k no

new g round to find that when J ames filed this lawsuit, there wer e ong oing state judicial proce eding s that involved important state interests. We acknow ledg e some uncer tainty reg arding whether J ames was pre vented from ra ising c onstitut ional claims in the J anuar y 27, 2012, hear ing. B ut we ca nnot conclusively deter

mine that, at the time this lawsuit was filed, J ames would have no adequate opportunity to raise her fede ral claims at some point during the state proce eding s. Acc ording ly , we ag ree with the district court that abstention wa s appropr iate. We evaluate the proprie ty of a district court’s decision to abstain as of the date the la wsuit

wa s fi led. See Fed. Exp. Corp. v. Tenn. Pub. Serv. Comm’n , 925 F.2d 962, 969 (6th Cir. 1 9 9 1 ) (“‘ [T] he proper time of ref ere nce for deter

mining the applicability of Y ounger abstention is the time that the fede ral complaint is filed.’ Under this rule , if a state proce eding is pe nding at the time the action is filed in fede ral court, the first criter ia for Y ounger abstention is satisfied.”) (quoting Zalman

v. Armstrong , 802 F.2d 199, 204 (6th Cir.1986)). That is, we consider whether there wer e ong oing
state judicial proce eding s, implicating important state interests when J ames filed her complaint. I f so, then abstention is appropr iate. 1. “On- g oing sta te judicial proc eeding s” The proce eding s befor e the J udicial Tenure Commi ssion are “judicial in nature .” Middlesex Cnty. , 457 U.S. at 433-34; see also O’Neill v. Coughlan , 511 F.3d 638, 643 (6th Cir. 2008); Squire , -6-No. 12-1453

Jame s v. Hampton, e t al. 469 F.3d at 555-56. J ames appar ently conce des this point as she does not contest it in her briefing

. Stil l, J ames say s that the state disciplinary proce eding “wa s not curr ently pending when this

case was filed.” As she would have it, the state proce eding did not beg in until J anuar y 23, 2012, the date that the J TC complaint hear ing o n the merits commence d, and three day s afte r she filed this lawsuit. For Y ounger abstention purposes, state law controls the deter mination of when the s t at e proce eding s beg an. See O’Neill , 511 F.3d at 643. Michig an’s Supreme Court has y et t o square ly addre ss when Judi cial Te nure Commission procee dings be g in. But in consider ing O hio’s judicial reg ulatory scheme , we explained that “the Ohio Supreme Court has held that the filing of a g rieva nce is the beginning of t he judi cial process.” Id

. We see n o re as o n t o q u es tion that result. We ag ree with the di strict court that the state proce eding s ag ainst J ames be g an bef ore he r January

20, 2012, district-court filing, and most likely with the filing of the J TC’s formal complaint on October 26, 2011. Acc ording ly , we find that the state judicial proce eding s wer e ong oing when J ames filed this 4 lawsuit.

I n a rhetoric al flourish, J ames say s that “[i] f the mere filing of the J TC’s formal complaint

4 was the start of the judicial proce eding s for the purposes of Y ounger abstention, J udg e J ames would have had no opportunity to bring her Fe dera l C o n stitut ional claims to the attention of the Fe dera l Court beca

use she did not even know such cl aims definitively exis ted until the J TC filed its complaint.” I ndeed, the point of Y ounger abstention is a “national policy forbidding fede ral courts to sta y or enjoin pending state court proce eding s except under specia l c ircumstance s.” Y ounger v. Harris , 401 U.S. 37, 41 (1971). Y ounger itself concern ed a p l ai ntiff’s attempt to enjoin the enfor ceme nt of a state statute that he claimed was unconstitutional. J ames’s argument here contests n o t s o much the filing dates, but Y ounger ’s third prong , the availability of relief in the state proce eding s. -7-No. 12-1453

Jame s v. Hampton, e t al. 2. “Important state intere sts” J ames does not challeng e that J TC proce eding s involve an important state interest. We have alre ady rec og nized that a state’s interest in disciplining its judge s is an “important state interest” for purposes of Y

ounger abstention. Squire , 469 F.3d at 556. We ne ed not r evisit that determination. 3. “Ade quate oppor

tunity to raise c onstitut ional challeng es” Finally , Y ounger abstention requir es that “[a] pla intiff must have ‘an adequate opportunity in the state proce eding s to raise constitutional challeng es.’” Squire , 469 F.3d at 556 (quoting Berger

v. Cuyahoga Cnty. Bar Ass’n , 983 F.2d 718, 723 (6th Cir. 1993)). That is, “[u] nless state law clea rly bars the imposit ion of the constitutional claims,” abstention is appropr iate. Moore v. Sims , 442 U.S. 415, 425 (19 7 9 ); s ee a l

so Fieger v. Thomas , 74 F.3d 740, 745 (6th Cir. 1996). And the plaintiff bear s the burden of showing t hat t he st ate procedur ally barr ed the prese ntation of her claims. See Pennzoil Co. v. Texaco, Inc ., 481 U.S. 1, 14 (1987); Moore , 442 U.S. at 432; Feiger , 74 F.3d at 746. “[W ]hen a litigant has not attempted to prese nt his fede ral claims in rela ted state-c ourt proce eding s,

a fede ral court should assume that state proce dures will a ffor d an adequate reme dy , in the absenc e of unambig uous authority to the contra ry .” Pennzoil Co. , 481 U.S. at 15. Thus the rele vant question is not whether J ames raised her claims in the state proce ed ing, but whether state law clea rly fore closed he r fr om so doing a t the time she filed this lawsuit. I t did not. Appellant’s J TC hear ing was require d to “conf orm as near ly as possible to the rules of proce dure and evidenc e g overning the trial of civil actions in the Circuit court [of Michig an].” Mich. Ct. R. 9.211( A). Moreove r, the Michig an Supreme Court r eviews the J TC’s finding s. On revie w, “[t] he Supreme Court may , if cause is shown, order that further evidenc e be taken and added to the -8-No. 12-1453

Jame s v. Hampton, e t al. orig inal rec ord. M i ch

. Ct. R. 9.224(E). Acc ording ly , we find that J ames could have raised her fede ral constitutional claims in the state proce eding s either at her J TC hear ing or d u ri n g j u d i ci al revie w of the JTC decision. 5 J ames relies on her attorney ’s J anuar y 27, 2012, colloquy with the Master to cl ai m the
contra ry . She quotes, in particular , the Master ’s statement, “ Ihave de clined to allow y ou to make

a rec ord about that, but not to make the rec ord that y ou reque sted to make.” Wit hin the context of months of s tate proce eding s, this statement means littl e. Whatever else may be said of this statement, it does not “ clearly bar the imposit ion of the constitutional claims.” Moore , 442 U.S. at 425 (empha sis added)

. I ndeed moments later, the Master said, “I ’ll make a further rec ord on that.” Acc ording ly , we cannot conclude that J ames was completely fore closed from raising her fede ral claims in sta te court when she filed this lawsuit. Since all three conditions f or Y ounger abstention

wer e met, the district cour t properly abstained f

rom rea ching the merits of James’s complaint. B. Reme dy Whil e abstention i s appropr iate, “a fede ral court’s discretion to abstain from exercising jurisdiction does not extend so far as to permit a court to dismiss or rema nd, as opposed to stay , an action at law.” Superior Bev erage Co., Inc. v. Schieffelin & Co. , 448 F.3d 910, 913 (6th Cir. 2006);

see also Quack

enbush v. Allstate Ins. Co. , 517 U.S. 706, 731 (1996) (“[F]eder al courts h av e t h e

We also note that J ames’s briefing in the Michig an Supreme Court sug g ests not that she was 5 fore closed from arg

uing constitutional iss ues in the Michig an Supreme Court, but inst ead that she declined to do so. See Br ief for J ames, In re Jame s , 821 N.W. 2d 144 (Mich. 2012) (No. 143942), 2012 WL 2935926. Yet we leave it to the district c ourt to more fully consider this issue whe n the state proc eeding s conclude

. -9-No. 12-1453

Jame s v. Hampton, e t al. power to dismiss or rema

nd case s based on abstention principles only wher e the relief being soug ht is equitable or otherwise discretionar y .”); Gray v. Bush , 628 F.3d 779, 785 (6th Cir. 2010) (“In the
context of a co m p l ai n t seeking ‘both equitable [relief] and money damag es,’ as in this case , ‘a fede ral court’s discretion to abstain from exercising jurisdiction does not extend so far as to permit

a court to dismiss or rema nd, as opposed to stay , an ac tion at law.’” ) (quoting Superior Bev erage Co. , 448 F.3d at 913). I nstead, “[t] he Di strict Court should stay [t he] fede ral lawsuit to protec t ag ainst the possibili ty that [Appellant] could be deprive d of the opportunity to prese nt the merits of her damag es claims in state court.” Carroll v. City of Mount Clemens , 139 F.3d 1072, 1075-76 (6th Cir. 1998). For relief , J ames seeks an “[a]ward [of] damag es, attorney s ’ fe es and costs ag ainst the Def endants and in f

avor of Plaintiff in an amount in excess of $75,000 and to the extent per mitted by fede ral an d s tate law.” This monetary demand is sufficie nt to war rant a stay and not dismiss al in this case. The State Def

endants quote Eidson v. State of Tennessee Departme nt of Children’s Servic es for the pr oposition t hat “a district court deciding to a bstain under Y

ounger has the option of either dismiss ing the case without prejudice or holding the case in abey ance .” 510 F.3d 631, 638 (6th Cir. 2007) (quoting Coles v. Granville , 448 F.3d 853, 866 (6th Cir. 2006)). Take n out of context, thi s quotation oversimplifies our prec edents. Eidson actua lly held that “pre requisite to obtaining any . . . tolling relief

. . . is the timely filing of the § 1983 action that will prompt abstention during the pendenc y of rela ted state proce eding s.” 510 F.3d at 641. I n other words, a party might lose a § 1983 claim if the district court dismiss es the proce eding and the statue of limit ations then runs during the -10-No. 12-1453

Jame s v. Hampton, e t al.

course of the ong oing sta te proc eeding s. The a bove quotation from Eidson comes fr om Coles v. Granville

. 448 F.3d at 866. Coles likewise conce rned a considera bly m o re co mplicated context than the broad discretion State Def endants propose. First, Coles relies on Carroll

. And Carroll held that “the District Court should have stay ed, not dismiss ed, Carroll’s complaint” beca use it contained damag es claims. 139 F.3d at 1075. Second, Coles went on to say that plaintiff “has no injury nece ssary to make his case ripe for fede ral re v iew. On this basis alone, the district court' s dismiss al without prejudice , in lieu of abstention, was not an abuse of discretion.” 448 F.3d at 866. Thus, Coles is best rea d in conjunction with our ot her pr ece dents for the proposition that when a plaintiff’ s claim is not y et ripe, Y ounger abstention permits dismiss al and does not require holding in a bey ance . Be cause Def

endants have 6 not arg ued that James’s claims are not ripe, we do not addre ss this arg ument. As this Court has said befor e, “[r]equir i n g t h e Di s t rict Court to stay rathe r than dismiss damag es claims may be an empty formality under the fac ts of this case .” Carroll , 139 F.3d at 1075. Ad m i t t ed l y , “[t] he District Court may have nothing left to do but clea r the case number off o f i t s

Such a rea ding also comports with MacD onald v

. Village of Northport , 164 F.3d 964 (6th 6 Cir. 1999). We have pr eviously explained the rea ch of MacD onald , This Court aff

irmed the district court’s order dismiss ing the case beca use “the Burford abstention doctrine and the El e v e n th Amendment cre ated ‘g rounds toge ther’ to dismiss [t

h e ] c a s e . ” T h e M

a cDonald court expli citly rec og nized that Quack enbush held that “a dismiss al based on abstention is appropr iate only wher e the relief soug ht is equitable or other

wise discre tionary .” Superior Bev erage Co., Inc. v. Schieff el i n & Co. , 448 F.3d 910, 914 (6th Cir. 2006) (citations omitted) (quoting MacD onald , 164 F.3d at 973, 969 n.4). -11-No. 12-1453

Jame s v. Hampton, e t al. docket once the state proce eding s conclude .” Id

. Yet if J ames preva ils on her claims in the state proce eding s, then her action would still be pending , and she would not have to contend with statutes of limitation defenses. See id .; Adrian Energy Assoc. v. Mich. Pub. Serv. Comm ’n , 481 F.3d 414, 425 (6th Cir.2007). These conce rns compel us to reve rse the district court’s judgme nt and rema nd the ca se. This case illust rate s the propriety of this course . The district court, evalua ting t h e state proce eding s at an embry onic stag e, found that J ames would have numerous further opportunities to addre ss her constitutional claims in the state proce edings. See Jame s v. Hampton , No. 2-10273, 2012 WL 1154303, at *8-9 (E.D. Mich. 2011). By abstaining , it avoided interfe ring with the state 7 proce eding s, assuming instead that the s tate would g ive J ames an oppo rt u n i t y to raise any fede ral claims. At the conclusion of t he st ate procee dings, with the entire ty of t he st ate recor d in front of it, the district court can evaluate whether J ames was in fac t fore closed from raising her constitutional cl ai m s . I t m ay also find g rounds to dismiss the case , such as prec lusion. But stay ing the case , i n s t ea d of dismiss ing it, prec ludes any statute of limit ations issues and avoids any difficulties o f service

. Moreove r, because the district court will evalua te ot her pote ntial gr ounds for dism issal on

rema nd, we need not rea ch them today

. Even in abstention case s, “we g ener ally do not rea ch issues
not ruled upon by t h e d i s trict court.” Adrian , 481 F.3d at 420; see also Quack enbush , 517 U.S. at

I ndeed, to the extent that J ames alleg es violation of her rig hts under Cleveland Board. of 7 Education v. Loudermill , 470 U.S. 532, 541 ( 1984), these c laims may not have be en ripe until she was re moved from of

fice , which did not occur

until after she filed her

opening brief in this ca se. -12-No. 12-1453

Jame s v. Hampton, e t al. 731. I ndeed, beca

use abstention is an abdication of jurisdiction, not an exercise there of, it would be improper to r eac h the alterna te g rounds for aff

irmance proposed by Appellee s. Cf. Coughlan , 511 F.3d at 641 (“ Y

ounger abstention is not a ques t i o n o f j u risdiction, but is rathe r based on ‘strong policies counseling ag ainst the exercise of such jurisdiction.’”) (quoting Ohio Civil Rights Comm’n v. Day ton Chris tian Sch., Inc. , 477 U.S. 619, 626 (1986)). For simil ar rea sons, we need not consider Burford abstenti o n . Ou r previous decisions abstaining from case s entang led with state judicial disciplinary proce eding s ag ainst judge s rely on Y ounger . See, e.g. , O’Neill , 511 F.3d at 643; Squire , 469 F.3d at 553. There is no rea son to depar t from that course to d ay . W here abstention is appropr iate, both doctrines require a di strict court to stay a complaint seeking money damag es. See Quack enbush , 517 U.S. at 731; Carroll , 139 F.3d at 1076. This case ’s disposition would remain the same. I I I . Conclusion For these rea sons, we REVERSE the district court’s judgme nt dismiss ing the complaint and REMAND for

further proce eding s consistent with this opi nion.

-13-