King's Bench Declaration
Stirs Controversy, December 31, 2005, Brad Bumstead and Debra
Erdley of the Pittsburgh Tribune-Review wrote a story giving some of
the background of the King's Bench power the Pennsylvania Supreme Court
invoked to hear the legislative pay raise challenge filed by Gene Stilp
and earlier dismissed as moot by Commonwealth Court.
Governor Ed. Rendell announced on Saturday, December 17,
2005, that he intends to appoint Allegheny County Common Pleas Judge--and
Duquesne University School of Law graduate--Cynthia A. Baldwin to the
Supreme Court of Pennsylvania to fill the vacancy created by Justice
Russell Nigro's defeat in the November 2005 retention election. It was
also reported that no significant opposition to her appointment was expected
in the State Senate, which must consent to the appointment by a 2/3 vote.
Bill Schackner reported in the Pittsburgh Post-Gazette that the "vote
will likely take place next spring." No explanation was given for
the delay in consenting to the appointment. If the appointment is consented
to, Judge Baldwin will serve until January 2008, when the permanent replacement
for Justice Nigro's seat will begin a ten-year term. The election of
a permanent replacement will be held in November 2007. Judge Baldwin
announced that she would not be a candidate for that permanent seat.
7 More Judges Sue to Reinstate Their Pay Raises,
Christine Schiavo of the Philadelphia Inquirer reports on December 15,
2005 that 7 more judges have sued to overturn the repeal of the pay raise.
The article explains that despite the obvious conflict of interest the
case presents for any Pennsylvania judge, there is no alternate forum
to hear the case.
Jury Convicts Shaler Legislator Habay of Conflict of
Interest, Paula Reed Ward of the Pittsburgh Post-Gazette reports
on December 13, 2005 that Jeff Habay was convicted of a conflict of
interest charge and that the jury failed to convict him of theft of
services.
The two challenges to the repeal of the pay-raise sparked
recent commentary in the media. In the Pittsburgh Post-Gazette, Allegheny
County Common Pleas Judge Jeffrey A. Manning praised the linkage in the
original pay raise of Pennsylvania judicial salaries to federal judicial
salaries, including Common Pleas to Federal Magistrates. Such a linkage
would prevent judges from compromising judicial independence, or appearing
to do so, by going to the legislature for pay raises in the future. Lost
in the Pay-Raise Revolt--Parity for Judges, December 11, 2005. In The
Morning Call, Northampton County District Attorney John Morganelli criticized
efforts by Pennsylvanians for Modern Courts to push for merit selection
of judges as a way of restoring public confidence in the courts. The
problem is not elections, but "judicial arrogance". 'Merit
Selection' Won't Cure State Courts' Illness, December 12, 2005. In the
Philadelphia Inquirer, columnist John Grogan criticizes the judicial
challenges to the repeal and criticizes Chief Justice Cappy for involvement
in the pay raise. A victory in the judges' lawsuit would allow a pay
raise for everyone while allowing the legislators to hide behind the
court. Judging Judges by their Actions, December 12, 2005. An editorial
in the Patriot News on Sunday argues that the Pennsylvania Supreme Court
needs to void the original pay-raise in any proceedings concerning the
repeal: "The court needs to declare the original pay increase bill
unconstitutional, thereby voiding, rather than repealing, pay increases
for jurists." Only in this way will the legislative practices that
led to the pay-raise be ended. 12/11/05.
Second Judge in Two Days Challenges Pay-Raise Repeal,
Marc Levy of the Associated Press reports on December 9, 2005 that a
second challenge to the pay-raise repeal was filed by Judge John W. Herron
of the Court of Common Pleas of Philadelphia County. Judge Herron's lawsuit
challenges the repeal only insofar as it affects the judicial part of
the pay raise. Judge Herron issued a joint statement with Judge Albert
Sheppard, the plaintiff in the first lawsuit, justifying the suits as
in the public interest not only to restore the pay raise for judges but
to eliminate dependence on the legislature for judicial pay increases
in the future.
Republican Legislative Leaders Sue Democratic Governor
over Line-Item Veto, Sean Connolly reports in the Pennsylvania
Law Weekly that Republican legislators sued Governor Edward Rendell
for allegedly abusing his line item veto power by removing only selected
language in an appropriation, as opposed to striking down one entire
appropriation. Governor Rendell retained the Medicaid appropriation
while removing language restricting use of the money for abortions
or abortion counselling. 28 PLW 1184.
Christine Schiavo of the Philadelphia Inquirer reported
on Thursday, December 8, 2005, that Chief Justice Cappy has recused himself
from hearing cases involving the judicial pay raise and its repeal.
In a story by Amy Worden, the Philadelphia Inquirer reported
on Tuesday, December 6, that Philadelphia Common Pleas Court Judge Albert
W. Sheppard has filed suit challenging the pay raise repeal, apparently
to strike down the entire repeal. A second suit will reportedly be filed
on Wednesday challenging only the repeal of the salary increase for judges.
http://www.philly.com/mld/philly/news/13336790.htm
Mark Scolforo of Associated Press reported on Tuesday,
November 29, 2005, that plaintiff Gene Stilp's response to motions to
dismiss filed by the defendants in the pay raise lawsuit contained a
request that the Pennsylvania Supreme Court take the case at this pre-trial
stage. See http://www.philly.com/mld/philly/news/13277227.htm This presumably
represents an attempt by the plaintiff to invoke the court's King's Bench
power, which authorizes the supreme court to intervene at any stage in
any case pending in the Pennsylvania court system. This request may have
the effect of substantially increasing the public impact of the pay raise
litigation, which until now has remained in the background of pay raise
issues.
Access to Court Records at Stake, Robert C. Clothier
criticizes the practice of the Administrative Office of the Pennsylvania
Courts in not allowing the same access to records online that is allowed
in a request for a hard copy at a courthouse. The writer believes this
violates the Article I, section 11 open courts provision. 2005 WLNR 16441924.
On October 30, 2005, the Pittsburgh Post-Gazette printed
dueling editorials concerning the upcoming judicial retention election
that would ultimately remove Justice Russell Nigro from, and return Justice
Sandra Schultz Newman to, the Pennsylvania Supreme Court. Arguing in
favor of retention was Duquesne Law Professor Ken Gormley, 2005 WLNR
17584163, and against, Timothy Potts, co-founder of Democracy Rising
Pennsylvania, 2005 WLNR 17584105.
Judge Griffin to Fight Attempted Outer from Bench,
Asher Hawkins reports that Philadelphia Municipal Court Judge Deborah
Shelton will oppose the attempt by the Judicial Conduct Board to remove
her from the bench pursuant to the Article II, section 7 infamous crime
provision on the basis of a 1984 guilty plea using false social security
numbers to obtain credit cards. The Board filed a quo warranto action
before the Pennsylvania Supreme Court, the first time the Board has attempted
such an action.
Tuesday, 11/8/05--Various news stories are reporting that
the House and Senate cannot agree on language to repeal the pay raise.
The disagreement appears to stem from a desire by some lawmakers to be
sure that the pay raise for judges is repealed as well--a desire that
perhaps cannot constitutionally be accomplished. See Commentary.
It was widely reported in the media that late on Wednesday,
November 2, the Senate and House repealed the pay raise enacted for a
number of state officials last Spring. See e.g., Tom Barnes, Legislators
Repeal Pay Raise, Pittsburgh Post-Gazette, A-1, 11/3/2005.
In furor over pay raise, sights are set on judges, Tom
Barnes for the Post-Gazette, 10/10/2005, reports on efforts by opponents
of the legislative pay raise to defeat Justices Russell Nigro and Sandra
Schultz Newman in their 10-year retention elections on November 8. 2005
WLNR 16407457 (posted 10/11/05)
The following stories about the legislative pay raise appeared in the
latter part of August. Since then, the pace of such stories has
slackened considerably.
"Campaign aimed at unseating lawmakers" 2005 WLNR 13224676 Centre
Daily Times 8/23/05
Russ Diamond, creator of www.pacleansweep.com ,
says that "you cannot unviolate the constitution of Pennsylvania," in
response to legislators who accepted the early pay raise, then changed
their minds.
"Pay-raise challenges have history of defeat" 2005 WLNR 13224027
Philadelphia Inquirer 8/23/05 Various commentators weigh in on the chances
of a successful court battle against the pay raise. Bruce Ledewitz of the Duquesne
University Law School calls the unvouchered expenses a "blatant violation
of the constitution" but notes that the case "won't have a chance
until it reaches the Supreme Court."
"Change of Heart" 2005 WLNR 13319606 Bucks County Courier Times 8/21/05
(reprinted from Intelligencer 8/19/05)Editorial the author points out
what should be obvious to everyone: the legislators who have had a change of
heart and have returned the increased pay have done so for political reasons,
not as a result of "soul searching."
"The legal battled against swag grab may not prevail" 2005 WLNR 13177231
Allentown Morning Call 8/21/05 This piece is about activist Gene Stilp,
(plaintiff in lawsuit filed challenging the pay raise) yet the author admires
his fervent opposition to the pay raise, while at the same time noting, "Anyone
who reads the Pennsylvania Constitution can see it explicitly bans such salary
increases, but the state Supreme Court, under Cappy's guidance, has been known
to wink at such technicalities."
"Direct Democracy: Pennsylvanians Need the Power of Referendums to Check
a Legislature Gone Astray, Says Mark Desantis 2005 WLNR 13158380 Pittsburgh
Post-Gazette 8/21/05
The author of this editorial advocates a change to the state constitution
in order to allow a referendum in instances such as the current pay raise
fiasco.
"Should we oust all incumbents, or just the bums?" 2005
WLNR 13144917 Allentown Morning Call 8/20/05 In order for a legislator
to deserve to keep his office, it might not be enough that he or she voted
against the pay raise; they should be advocating fundamental changes in state
government.
"2 more legislators turn down raises" 2005 WLNR
13374717 Intelligencer 8/18/05
An ever-evolving tally of who voted for the pay raise, who voted no,
who accepted, who declined, who changed his or her mind, etc.
"Home Front" 2005 WLNR 12975994 Myrtle Beach Sun
News 8/18/05
South Carolina's update on who is turning down early pay raises.
"Issues, but no replies" 2005 WLNR 12912527 Centre Daily Times
8/17/05
Governor Rendell has not answered many of the burning questions of his
constituents, such as whether there should be an independent panel for
the legislature's pay.
"Ignore party labels in next state election" 2005 WLNR 13032339 Allentown
Morning Call 8/17/05 To the author of this editorial, the most important
issue in the next election is how to oust incumbents, regardless of party affiliation.
"Gabig votes no on pay raise, but accepts it anyway" 2005 WLNR
13250334 Public Opinion 8/3/05 He voted against it, accepted it, and
now wants to sponsor legislation to prohibit legislators from taking the pay
raise.
"Don't accept lawmakers' salary grab" 2005 WLNR 12946737 Public
Opinion 8/2/05
Public Opinion is taking a survey on how people would like to deal with
the unconstitutional pay raise.
"State legislators must remember their mission" 2005 WLNR 14196909
Philadelphia Inquirer 9/9/05 also found at: 2005 WLNR 14188657 Citizens
and members of the judiciary must be legislative watchdogs, because the pay
raise fiasco is just one example of the larger problem of the General Assemble
passing controversial legislation in the middle of the night.
"Do something about lawmakers' greed; don't just gripe 2005 WLNR 13952501
Wilkes-Barre Times Leader 9/5/05 Whether or not the legislators deserved
a raise, they all need to be ousted for not faithfully following constitutionally
mandated procedures visit www.pacleansweep.com
"Legislative Pay Raise: It's a Gas, Gas, Gas" 2005 WLNR 14012153
Pittsburgh Post-Gazette 9/4/05 The only way the state and its municipalities
can maintain a reasonable budget is if the oversized legislature is downsized
to stop hogging Pennsylvania's funds.
"Early raise to benefit select few the most: Six to collect extra $100,000
from 'unvouchered expenses'" 2005 WLNR 13523566 Centre Daily Times 8/28/05
Some senators stand to collect significant amounts in unvouchered expenses
because they have more time left in their terms than others.
"Your Letters: Reject pay-raise ploy" 2005 WLNR
13524050 Centre Daily Times 8/28/05
Disdain for a legislator who voted against the raise but took it early
nonetheless.
"More bucks, fewer seats?" 2005 WLNR
13542844 Pittsburgh Tribune Review 8/28/05
Several commentators, including Duquesne Law Professor Joseph Mistick,
express their opinions on the possibilities of shrinking the legislature.
"Time to take action" 2005 WLNR 13502251 Connellsville
Daily Courier 8/27/05
There should be provisions in Pennsylvania for initiatives and referendums.
(posted 9/26/05)
Discovering gold on Rockview lands--Centre Daily Times,
8/20/05, criticizes Governor Ed Rendell's decision to give State-owned
open space land to Penn State. Part of the criticism is that the
grant violates Article I, section 27 of the Pennsylvania Constitution,
which protects the public right to "public natural resources" and
charges the State with their conservation. 2005 WLNR 13103736 (posted
9/26/05)
The media continued to give extensive coverage to the
legislative pay raise and associated issues during the month of August. See,
e.g., 2005 WLNR 12519964 (Valley Independent); 2005 WLNR 12427614 (Tribune-Review);
2005 WLNR 12427663 (Tribune-Review);2005 WLNR 12110014 (Centre Daily
Times); 2005 WLNR 12121202 (Myrtle Beach Sun News); 2005 WLNR 12144720
(Tribune-Review); 2005 WLNR 12144841 (Valley Independent); 2005 WLNR
12082117 (Tribune-Review). On 8/27/2005, the Tribune Review published
a Q&A on the pay raise between Bill Steigerwald and Duquesne Law
School Professor Bruce Ledewitz. (posted 9/12/05)
It Takes an Education – Pittsburgh Post-Gazette
( 7/31/2005 ) - Vanessa Browne-Barbour and Ken Gormley, both Duquesne
Law School faculty members, wrote this critique of Sen. Rick Santorum's
(R-PA) assertion in his new book that there is no right public education
in the United States. Browne-Barbour and Gormley note that Pennsylvania,
along with many other states, have provided for public education in their
constitutions, and our Founding Fathers considered formal education to
be essential to our society, even though it was not specifically addressed
in the United States Constitution. 2005 WLNR 12037331
There have been numerous news stories in various media about different
aspects of the legislative pay raise. See below. For an
example of some of the strong criticism of both the legislature and
the courts, see Bill White of the Morning Call, 2005 WLNR 11574254. Some
of the best reporting of the issue has been by Mark Scolforo of the
Associated Press. See e.g., 2005 WLNR 11383470. It was
Scolforo whose interview of Chief Justice Cappy, see Commentary section,
may result in the recusal of the Chief Justice should a case concerning
the pay raise reach the Pennsylvania Supreme Court. (posted 8/9/05)
Legislators defend quick pay raise--A.P., 7/15/2005, discusses
the recently enacted pay raise in the Pennsylvania legislature, which
takes effect prior to a new legislative term in apparent violation
of Article II, section 8. The increase in salary takes the form of
a temporary unvouchered expense account that becomes a salary increase
once new legislative terms begin. Legislators defended the action on
the basis of Consumer Party v. Commonwealth, 507 A2d 323 (Pa. 1986),
which upheld similar expense accounts for half of the members of the
State Senate in 1986. 2005 WLNR 11093232. Numerous other news stories
dealt with aspects of the pay raise. See e.g., 2005 WLNR 11093539,
2005 WLNR 11003623.
Lawsuit against hate-crimes law dismissed--Mark Scolforo for
the Bucks County Courier Times, 7/10/2005, reports on the unpublished
decision by Commonwealth Court to dismiss a legislative process challenge
to recent hate crimes legislation. The dismissal was based on a lack
of standing. 2005 WLNR 10968639.
Fumo, Williams, Make Merit Selection Proposal--Asher
Hawkins for the Legal Intelligencer, 6/27/2005, reports on a merit selection
constitutional amendment proposal for Philadelphia Court of Common Pleas
and Municipal Court judges to be introduced in the legislature. 6/27/2005
TLI 1.
Lawmakers Introduce 11 Bills, Including Damage Cap--John
L. Kennedy for the Pennsylvania Law Weekly, 6/20/2005, reports on a proposed
constitutional amendment to allow the legislature to pass a limit on
non-economic damages. 28 PLW 613.
The Charitable Real Estate Tax Exemption 20 Years
After HUP--Joseph T. Kelley III and Michael A. Riccio for the
Legal Intelligencer, 6/20/2005, discusses the constitutional tax exemption
for institutions of purely public charity in Article VIII, section
2(a)(v). The authors criticize the statement by the court in Community
Options, Inc. v. Board of Property Assessment , 813 A.2d 680 (Pa.
2002) to the effect that the legislature lacks authority to clarify
the constitutional standards for a charitable institution by legislation.
6/20/2005 TLI S4.
County moves to block city project--P.J. Reilly
for the Intelligencer Journal (Lancaster, Pa.), 5/20/05, reports on a
complaint filed by Lancaster County before the state Department of Community
and Economic Development to block a development project by the City of
Lancaster. The County claims that city guarantees of city loans amount
to a loan of municipal credit to a private developer, in violation of
Article IX, section 9 of the Pennsylvania Constitution. 2005 WLNR 8152701
PBA opposes bills allowing non-lawyer advocates in
UC proceedings--Christopher Lilienthal for the Pennsylvania Law
Weekly, 5/16/2005, reports that the Pennsylvania Bar Association's
House of Delegates has voted to oppose legislation that would allow
non-lawyers to represent parties in unemployment compensation hearings.
William Carlucci, PBA President, says that the legislation raises constitutional
questions relative to the power of the Pennsylvania Supreme Court to
regulate the practice of law. 28 PLW 459. Carlucci's position was in
turn criticized in the Allentown Morning Call on June 5, 2005: Anything
to pare lawyers' profits is "unconstitutional",
Paul Carpenter, 2005 WLNR 8975268.
Digests of Recent Opinions--Pennsylvania Law
Weekly, 6/13/2005, reports on a ruling in Castellani v. Scranton Times,
(C.P. Lackawanna June 3, 2005) in which a motion to compel discovery
of an unnamed source was granted in a defamation action arising out of
stories about a grand jury investigation. Judge Robert A. Mazzoni held
that, "[b]ecause of the secrecy accorded grand jury proceedings,
neither the Pennsylvania Shield Law nor the qualified reporter's privilege
under the First Amendment protected the media defendant from divulging
the identity of the confidential source of alleged defamatory information
obtained from a grand jury investigation." The court relied in part,
in its balancing of interests, on the right to reputation guaranteed
in Article I, section 1 of the Pennsylvania Constitution. 28 PLW 580.
Another Lobbying Disclosure Law?--Sean Connolly,
Pennsylvania Law Weekly, 6/13/2005, reports on legislative efforts to
write and pass a new lobbying disclosure law after the 1998 law's invalidation
by an equally divided Pennsylvania Supreme Court in Gmerek v. State Ethics
Commission, 807 A.2d 812 (Pa. 2002). 28 PLW 572
Bail granted, then revoked for rapper--Theresa
Conroy, Philadelphia Daily News, 6/23/2005: bail for murder defendant
Cassidy, a rap artist, was granted but then later revoked on authority
of Article I, section 14 of the Pennsylvania Constitution. 2005 WLNR
9902294
Criminal Practice Defenders Decry Child Video Testimony, Christopher
Lilienthal, Pennsylvania Law Weekly, 5/30/2005, reports that, despite
a constitutional amendment allowing prosecutors to use closed circuit
television in certain child sex abuse cases, and despite the May 16,
2005 order of the Pennsylvania Supreme Court affirming the decision of
the Commonwealth Court upholding the validity of the amendment, prosecutors
have been reluctant to actually use the new procedure. 28 PLW 513.
Casino Law Upheld, But not Ban on Local Zoning Control,
Tom Barnes, The Pittsburgh Post-Gazette reported 6/22/05 on Post-Gazette.com
that the Pennsylvania Supreme Court upheld most of the provisions of
Act 71 -- the Pennsylvania Slots Law -- against Constitutional challenges.
Mayor Hopeful Committed Felony; Wrightsville Candidate
Stephen D. Rambler Pleaded Guilty to An Extortion Charge in 1996,
York Daily Record, May 12, 2005, YRKDR1 2005 WLNR 7535496, Caryl Clarke:
The story raises the issue of whether a Republican candidate for Mayor
of Wrightsville, Pennsylvania can run or serve under Article II, section
9 of the Pennsylvania Constitution. The candidate had been convicted
of extortion in 1996.
Judge Kills Assessment Cap -- Wettick Says 4% Limit
On Increases Would 'Exacerbate' Inaccuracies, Pittsburgh Post-Gazette,
May 13, 2005, 2005 WLNR 7564023, Jerome L. Sherman: the Pittsburgh
Post-Gazette, as well as other local media, reported the May 12, 2005
decision by Judge R. Stanton Wettick of the Allegheny County Court
of Common Pleas striking down the County property assessment cap as
a violation of Article VIII, Section 1 of the Pennsylvania Constitution,
which requires that all taxes be uniform.
County Sued Over Capped Assessment Increases,
Pittsburgh Post-Gazette, April 19, 2005, 2005 WLNR 6080877, Jerome L.
Sherman: story reports tax uniformity challenge filed by the Sto-Rox
School District and an individual against Allegheny County's planned
4% property assessment increase cap.
State Shirks Duty to Fund Court System, Pittsburgh
Post-Gazette, April 10, 2005, Joe Smydo: article describes the failure
of the State Legislature to comply with a 1987 Pennsylvania Supreme Court
decision requiring the State to assume all of the costs of local courts,
which are currently funded in part by county governments.
Judge Gives Cianci's Argument 6 Months: The Councilman
says Officials Should Have Known of his Record Before He Ran,
Philadelphia Inquirer, April 7, 2005, Jeff Shields and Keith Herbert:
article concerns action by District Attorney to remove Conshohocken
Borough Councilman Peter Cianci under Article II, section 7 of the
Pennsylvania Constitution. Judge Thomas Branca of Montgomery County
Common Pleas Court ruled that any felony conviction is an "infamous
crime" but gave the Councilman time to argue laches.
Public Ill Served by Pennsylvania Court Ruling on
Media, Lancaster New Era, March 30, 2005, 2005 WLNR 5117820: article
criticizes failure of Pennsylvania Supreme Court to recognize a neutral
reporting privilege.
Candidates Face Legal Challenges, Pittsburgh Tribune
Review, March 22, 2005, David M. Brown: Story reports on challenges to
candidacy for re-election of Pittsburgh City Councilman Sala Udin, including
a potential challenge under Article II, section 7, of the Pennsylvania
Constitution.
Digests of Recent Opinions: Courts of Common Pleas,
3/14/2005 28 PLW 272: in action by legislator against media defendant,
court could not compel discovery of House Minority Caucus Special Leadership
Account because of Pennsylvania Constitution's Speech and Debate Clause.
Court could dismiss any count in complaint defendant could not defend
without such discovery. Court held, however, that there were no such
counts.
Group Assails Late-Night Maneuvers That Yielded Gambling
Law, 3/14/2005 28 PLW 262: Christopher Lilienthal: account of
oral argument before Pennsylvania Supreme Court in case challenging
the Pennsylvania gambling law.
Slots Lawsuit a Losing Hand?, Allentown Morning
Call, A1, February 21, 2005: This article is an overview of the arguments
that will go before the court challenging the new gambling statute.
Slot Machines and the Pennsylvania Constitution; State
Supreme Court Must Decide: Did Legislature Bungle New Gaming Law?,
Allentown Morning Call, A6, February 15, 2005: This is an op-ed piece
in which the author expresses disdain for the legislature's behavior
in passing the gaming law.
Known Felony Record May Lead to Politician's Ouster,
All Things Considered, February 11, 2005, 2005 WL 62527160: reports on
attempt by Montgomery County District Attorney Bruce Caster under Article
II, section 7 to remove two-term borough councilman Pete Cianci because
of an 11-year old drug conviction on his record. Story quotes Bruce Ledewitz,
constitutional law expert at Duquesne University Law School. Article
may be listened to in its entirety on NPR. You can try to access directly
at http://www.npr.org/templates/story/story.php?storyID=4495823.
New Legislation Limits Rights to Zoning Appeals,
The Legal Intelligencer, A6, February 7, 2005: This is a critique of
recent legislation, passed by the legislature with some sleight-of-hand,
and signed quickly by Governor Rendell. The legislation limits standing
for zoning appeals, and will have an especially noticeable effect in
Philadelphia, where civic groups have routinely had standing to appeal
zoning decisions. At least one civic group, SCRUB, is considering a constitutional
challenge to the bill.
Castor Targets Officials with Criminal Records,
The Philadelphia Inquirer, January 27, 2005, 2005 WL 56975710: District
Attorney Castor describes ongoing enforcement program by Montgomery County
to enforce Article II, section 7 of the Pennsylvania Constitution by
removing local public officials who have criminal records.
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