Who’s a great judge? Let the state know

The Michigan Judges Association is looking to honor a current or former circuit and/or Court of Appeals judge who demonstrates excellence in trial practice, scholarship, and service to the community and profession.

The inaugural award will be presented at the State Court Administrative Office Fall Conference in Lansing. Recipients will be chosen on the basis of competence in docket management and managing trials, contributions to the profession, contributions to legal scholarship, and/or contributions to the community.

Nominations will be evaluated by a committee consisting of attorneys and both current and former judges.

A nomination form may be downloaded and printed at www.michiganjudgesassociation.org.  Nominations should include the form, nominee’s curriculum vitae/resume, and any supporting letters or information.

Deadline is July 30. Nominations may be faxed to Thomas Oatmen at (231) 724-4587, e-mailed to oatmenth@co.muskegon.mi.us, or mailed to: Thomas G. Oatmen, Law Library, 6th Floor, 990 Terrace St., Muskegon, MI 49442-3357

For more information, contact Timothy G. Hicks at (231) 724-6337 or hicks@co.muskegon.mi.us.

Our founding tweeters

What if Thomas Jefferson used an iPhone instead?

In honor of Independence Day, Slate.com is running a contest: Reduce the Declaration of Independence to a single tweet.

The best of the best will be published this weekend. Among the entries so far:

Don’t need kings. Life, Liberty, the Pursuit of happiness are easier when everyone has the same rights. Bye-bye, Britain.

Everyone is equal in every way. No one has the right to make other people suffer. We are united in this belief.

This isn’t working. I tried to dump you in Boston, but you weren’t listening. You don’t make me happy. Please don’t be mad.

#TinyDeclaration. King’s a jerk. Let’s spinoff. Don’t worry about the slavery thing; it’ll take care of itself.

@kinggeorge3 no more top-down mgmt from U. we 13 will pursue happiness with own govt. U messed with our TEA.

KG3: You suck. Whole bunch of reasons. Shoulda seen it coming. We’re done (Sorry). Later. Peeps of Congress.

Is this the test case medical marijuana advocates have been waiting for?

The Michigan medical marijuana community, and those who often disagree with them, have been waiting for the last year for a case that has the potential to clarify what is, and what is not, protected by the Michigan Medical Marihuana Act, approved by voters in 2008.

One of the big areas of concern has been how those protections apply in the workplace. This may be the case, the Detroit Free Press reports:

A Battle Creek man who legally uses marijuana for medicinal purposes is suing Wal-Mart for firing him after he tested positive for marijuana during a drug test.

The lawsuit was filed Tuesday in Calhoun County Circuit Court by the American Civil Liberties Union, its Michigan affiliate and the law firm of Daniel Grow, based in St. Joseph, on behalf of Joseph Casias, 30, who has an inoperable brain tumor and is in remission for sinus cancer. He said he uses marijuana at night to alleviate pain. ….

[Michigan Department of Community Health director of the bureau of health professions Melanie] Brim and Dan Korobkin, a staff attorney with the ACLU of Michigan, said that, to their knowledge, this is the first lawsuit of its kind in Michigan.

“This is a path-breaking case to protect all of the patients in Michigan, whose rights are now protected by Michigan law,” Korobkin said.

MSC reverses Pellegrino

The Michigan Supreme Court has reversed Pellegrino v Ampco System Parking, and has remanded for a new trial on the issue of damages. The court also suggested that the trial court judge’s actions could alert the Judicial Tenure Commission to investigate.

The damages in Pellegrino were high the first time around, more than $15 million.

Shirley Pellegrino died in an April 2003 shuttle bus crash after she and husband Anthony had just returned from a vacation in California. The bus slipped on ice and rammed into a concrete wall. Anthony Pellegrino sustained serious injuries.

According to Justice Stephen J. Markman, who authored the opinion:

Before voir dire, the trial court instructed the attorneys that “it would be a goal of [the court] to have a jury that represented the racial composition of this county.”  Subsequently at voir dire, defense counsel sought to peremptorily excuse prospective juror Sylvia Greene, an African-American woman, and plaintiffs’ counsel raised an objection based on Batson, alleging that defense counsel had already peremptorily challenged two prospective jurors on the basis of race.  In response, defense counsel argued that he wanted to excuse Greene because she had been widowed two times and was in the process of grieving over the death of her mother.  Without making any finding about whether plaintiffs’ counsel had established grounds for denying the peremptory challenge, the trial court denied it, and Greene remained on the jury.

Defense counsel said that he had a legitimate reason for his peremptory challenges, and argued that “plaintiffs’ Batson issue was a ‘red herring’ and unsupported,” wrote Makrman.  “He then advised the trial court that he intended to file a motion either to remove Greene or for a mistrial, to which the trial court responded:  ‘We have a jury of eight women.  Three are African-American.  In my view, it adequately represents the community from which this case arises.’ ”

The jury awarded $15,613,960.48 to the plaintiff.

Ampco appealed the trial court’s denial of the peremptory challenges. In a split decision the Court of Appeals affirmed.

Wrote Markman:

The majority concluded that although the trial court had not followed Batson procedures, no constitutional error occurred because such an error occurs only when a prospective juror is excused on the basis of race, rather than included on that basis.  Thus, the majority opined, the trial court had merely denied defendant the use of a single peremptory challenge, which was subject to a harmless-error analysis.  The majority then concluded that the error was, in fact, harmless because the only issue at trial had been damages and the verdict had been unanimous. …

Plaintiffs argue that the trial court’s refusal to allow defendant to exercise a peremptory challenge of prospective juror Greene was consistent with the constitution and court rules because the trial court was merely seeking to ensure that that the jury represented a “fair cross-section of the community.”  We reject this argument because the trial court’s actions violated the race-neutral requirements of both the constitution and MCR 2.511(F)(2).  Greene’s retention on the jury was predicated on her race, as well as the races of other jurors; each of these racial considerations was paramount in the decision of the trial court to reject defendant’s peremptory challenge.  As MCR 2.511(F)(2) makes explicit, a court’s desire to achieve a “balanced, proportionate, or representative jury” does not justify taking race into consideration in selecting a jury.  Notwithstanding this express prohibition, the trial court premised its jury-selection decisions on its determination to secure “proportional representation” based on the racial composition of the county in which the trial occurred.  In denying defendant’s peremptory challenge, the court expressly took Greene’s race into account and expressly evaluated her race in light of the race of every other juror on the panel.  It is hard to conceive of a more flagrant and unambiguous violation of the court rule.

Markman wrote that the trial court’s error was anything but in good faith. Rather, he wrote, he judge  “deliberately refused to follow the three-step process required under Batson because it thought that process required the court to ‘indulge’ in ‘race baiting.'”

The trial court judge had stated:

[U]ntil either removed from the bench by the disciplinary committee or ordered to have a new trial, I am going to seek to have this proportional representation on the juries that hear cases in this court.  I can’t be clearer.  I’m going to do it until I’m ordered not to do it and then when I’m ordered not to do it, then I’ll have to decide what’s next for me.

That was just too much, Markman wrote:

These comments, and the trial judge’s attendant actions taken in conformity in denying defendant’s peremptory challenge, establish a basis for concluding that this is the unusual case in which retrial should occur before a different judge.  Moreover, we believe that these same comments and actions could supply a basis for the Judicial Tenure Commission to investigate whether judicial misconduct has occurred should it choose to do so.

Chief Justice Marilyn Kelly, and justices Michael F. Cavanagh, Maura D. Corrigan, and Robert P. Young concurred with Markman.

Justice Elizabeth A. Weaver wrote a short dissent, stating, “I believe that leave to appeal was improvidently granted.  I am not persuaded that the decision of the Court of Appeals was clearly erroneous or that defendant has suffered any injustice in this case.

“Further, I do not support the majority’s discussion regarding possible referral of the trial judge to the Judicial Tenure Commission.”

Justice Diane M. Hathaway concurred with Weaver.

MSC remands fugitive entitlement case

The Michigan Supreme Court has remanded a 2006 divorce case to Houghton Circuit Court for clarification of its alimony award. But before the court can hear clarify the alimony issue in Friend v. Friend, defendant Julia Friend must first make good on the circuit court orders.

Alexander and Julia Friend were married in 1982, and had two sons.

In July 2006, Alexander filed for divorce. The two agreed to a court order that gave Julia physical custody of the boys. They both had legal custody. The court allowed Julia to move with the children to South Carolina.The children resisted visitation with their father, who claimed that Julia encouraged the children to resist.

The divorce was tried over four days in August 2007. The court ruled that the parents would work together to help the children build a relationship with their father. The court also ruled that certain assets, namely an inheritance Alexander had received, were his separate property, and split the remainder of the couple’s assets equally.

Julia was unwilling to facilitate the relationship between the children and their father, according to Michigan Supreme Court background on the case. She did not follow the court order to make the children available for counseling, nor did she make them available for visits with their father. She appealed the court ruling on parenting time, spousal support, property distribution, and attorney fees in the Court of Appeals.

Total spousal support was approximately $54,000 over five years, on a declining scale. The Friends are three years into the agreement, and Alexander pays $1,000 per month this year, and $500 per month for the next two years.

At the same time, Alexander filed motions in an attempt to get his former wife to comply with the visitation and counseling. She did not comply. The trial court found her in contempt and issued an arrest warrant. She appealed to the Michigan Supreme Court. Her former husband argues that she cannot, under the fugitive disentitlement doctrine.

Justice Maura D. Corrigan, in her dissent of the order, agreed:

Defendant has repeatedly violated the trial court’s orders concerning custody and parenting time, thus depriving the plaintiff father of any contact or relationship with his children for nearly three years. The trial court has found the defendant in contempt of court at least twice and issued a bench warrant for her arrest. The majority reaches the merits of defendant’s application while she continues to defy the trial court’s orders, including the very order from which she seeks relief. I would instead adpot the ‘fugitive disentitlement doctrine’ and condition our consideration of defendant’s application on her compliance with the trial court’s orders.

Justices Stephen J. Markman and Robert P. Young joined Corrigan’s dissent.

The majority stated, “As a precondition of the trial court clarifying the nature of its award, appellant shall purge herself of any outstanding findings of contempt in the circuit court within 90 days of the date of this order.”

Corrigan would have rather put the horse before the cart, so to speak:

I would not entertain her request for legal redress ‘while [s]he stands in an attitude of contempt to legal orders and processes of the courts of this state.’ MacPherson, supra. Instead, I would adopt the approach of the Arizona Supreme Court in Stewart v Stewart, 91 Ariz 356 (1962), and require defendant to comply with the trial court’s orders within a specified period of time or face dismissal of her application for leave to I appeal. I would give defendant 56 days to comply before dismissing her application.

Slate.com to Kagan: Tell it like it is

With the confirmation hearings of confirmation hearings Elena Kagan set to begin today, Sonja West of Slate.com is hoping she will “talk honestly about what Supreme Court justices really do.” In preparation, West writes:

What [Kagan] will likely talk about — if she’s anything like other recent nominees — is that, if confirmed, she promises to become Kagan the Robot. She will find 100 different ways to assure us that when deciding cases she will do nothing more than mechanically apply the law to the facts. And this is where Kagan needs to throw away the script. The absence of any dialogue on substantive law at these hearings is regrettable, but the political theater of discussing judging as mere law-to-fact application is truly alarming in that it goes to the heart of the public’s understanding of what it is Supreme Court justices actually do. That’s why Kagan needs to talk to the American people honestly next week about the job for which she is applying and why she is so qualified to get it.

West closes by reiterating Kagan’s role at Harvard:

By all accounts, Kagan is a superb teacher. And this is a rare teaching opportunity for an important lesson on which we desperately need a refresher course.

Weaver, Corrigan, Young and Markman: Supreme Court potboiler

The sniping between Michigan Supreme Court Justice Elizabeth A. Weaver and Justices Maura D. Corrigan, Robert P. Young Jr. and Stephen J. Markman has escalated to all-out war.

The topic: Weaver’s referral to the Judicial Tenure Commission and the Attorney Grievance Commission by the other three justices, who claim she improperly shared inside Court information about a case with Grand Rapids attorney and former State Bar of Michigan president Jon Muth.

There’s a lot of moving parts to this one, so let’s dig in.

A while back, you’ll recall, the Judicial Tenure Commission was busy raking Rockford District Court Judge Steven Servaas over the coals, claiming that he had vacated his office by moving from his judicial district, and that he seriously breached judicial decorum with sexually related doodling and an untoward comment about a court worker’s anatomy.

In a split decision that produced multiple opinions, In re Honorable Steven R. Servaas, Judge, 63rd District Court, the MSC rejected the JTC’s recommendation to remove Servaas from the bench and instead censured him for his doodling and comment. The MSC ruled that the election-law charge wasn’t brought in the proper forum.

The Court released its opinion on July 31, 2009, and closed the file on Sept. 11, after dealing with the JTC’s motions for rehearing or clarification.

Grand Rapids attorney Jon Muth, who represented Servaas in the discipline matter, and other high-power attorneys, in a grievance filed July 2, 2008, asked the Attorney Grievance Commission to take a hard look at JTC Director Paul Fischer. They claimed he tried to extort Servaas’ resignation before filing formal charges against him.

In In re Servaas, two justices, Weaver and Diane M. Hathaway, called for an AGC investigation of the JTC. Corrigan opined that she had “serious concerns” about Fischer’s behavior when confronting Servaas. Fischer himself noted during the March 4, 2009 oral arguments of Servaas that Muth and other attorneys had already filed a grievance against him.

The AGC dismissed the grievance against Fischer on Nov. 17, 2009. The attorneys, in Jan. 2010, filed a complaint for superintending control in the MSC, styled Brady, et al. v. Attorney Grievance Commission.

Yesterday, the MSC, in a single sentence, tossed the complaint.

Justice Diane M. Hathaway, in a single paragraph, dissented and repeated her call for the AGC to investigate Fischer.

Corrigan, Young and Markman used a little more than three pages to explain why they sicced the JTC and AGC on Weaver.

Weaver provided a nine-page explanation (accompanied by 27 pages of attachments) concerning her non-participation in Brady, her claims that the referral to the discipline authorities was election-year “political maneuvering” and that the sun needs to shine brighter on the Court’s deliberative processes.

All of this stems from what happened between Sept. 11, 2009, when the Servaas case was closed out, and the AGC’s Nov. 17 dismissal of the grievance against Fischer.

In a nutshell, Muth and Weaver had lunch together on October 1. Muth and Weaver are friends, and Muth, at one time (though not when the Servaas case was pending), provided Weaver with legal representation.

In Weaver’s attachments, there’s a letter from Muth explaining that they talked about basketball, politics and the closed Servaas case.

Here’s Weaver’s account of the Servaas discussion:

[Muth] and I did meet on October 1, 2009 for lunch in Traverse City. He indicated that he found this Court’s result in In re Servaas strange, convoluted, and surprisingly close after what he witnessed at oral argument. I responded that his observation was correct and that the vote was originally 6-1 in Judge Servaas’s favor. I told him my speculation was that the emphasis and the direction of some justices’ positions shifted with recognition that the State Court Administrator and his office may have had more involvement in the Servaas matter than merely referring such allegations to the JTC for investigation and process according to JTC rules.

Muth said the Fischer grievance wasn’t discussed. Weaver says when she met Muth for lunch, she didn’t recall Fischer’s statement at oral argument about the grievance filed against him. Weaver says that had she recalled Fischer’s statement, she never would have met with Muth.

Weaver says that in March, when the Court’s commissioners’ office issued a report on Brady v. AGC (the complaint for superintending control) she realized she could not participate in the matter.

In yesterday’s order, Corrigan, Young and Markman said they brought the matter to the discipline authorities’ attention, and the authorities would decide if misconduct had occurred. But they also claimed that Weaver appeared to have “secretly help[ed] one side in a lawsuit[,]” providing “valuable insider Court information to one party, information that the party could use to strategic advantage in a related case.”

Weaver said the three did more than bring the matter to the attention of the JTC and AGC. She said the three “not only publicly accused me, but judged me guilty as well.” She also accused them of playing politics with a Supreme Court election just around the corner.

The whole affair raises a very interesting question: If either the JTC or the AGC or both initiate proceedings against Weaver and issue an adjudication, who will conduct the judicial review?

Michigan Lawyers Weekly staff writer Carol Lundberg has a full treatment of the question, which subscribers can access here or read in the June 28 issue.

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Casual Friday presents: Ohio, the Great Logic State

We hear a lot of criticisms from all sides about the Michigan Supreme Court and the justices’ alleged allegiances to certain special interests. But no matter what one may think about the Court, it could be worse: it could be the Ohio Supreme Court.

Just last week, the Ohio Supreme Court said police don’t need a radar gun to prove a driver was speeding – just the naked eyes of a trained observer.  And in case you thought it was just having a bad week, the court has outdone itself by applying a long-arm statute to a Virginia man who posted some critical statements about an Ohio company on eBay and two internet message boards. Neither the defendant nor any of the internet sites have any ties to Ohio.(To be fair, it affirmed an idiotic Court of Appeals decision, but isn’t that what Supreme Court is for? To overturn dumb decisions by lower courts?)

But the messages could be read in Ohio (and apparently were … by five people), therefore, the company could show the “publication” element in a defamation analysis. In other words, if you post something on the internet, from anywhere in the world, about someone from Ohio, Ohio has jurisdiction over you. (Michigan fans, watch what you write on message boards about Jim Tressel!)

Roberts posted his allegedly defamatory statements on the Internet, ostensibly for the entire world to see.

And according to the Ohio Supreme Court, the proper jurisdiction for defamatory internet postings is the entire world.

Thankfully, not everyone on the court is brain dead.

Today, the majority has extended the personal jurisdiction of Ohio courts to cover any individual in any state who purchases a product from an Ohio company and posts a criticism of it on the Internet with the intent to damage the seller.

The foreseeability of causing injury to an Ohio company, whether the injury is intended or not, without directing activity at forum residents, is not sufficient to establish minimum contacts.

Subjecting all individuals to suit in Ohio who post Internet reviews — no matter how scathing — of purchases made from Ohio companies does not comport with the due process notions of “fair play and substantial justice.”

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Keeping Up With The Candidates

As the August primary election nears, the candidates for Michigan’s statewide offices are ratcheting up the mudslinging and accusations.

But first, in positive news, Mike Cox made news simply by releasing an ad that was, uh, not negative. [The Detroit News]

Attorney General Mike Cox plays up his service in the U.S. Marines in the third major TV ad of his campaign, which was launched today, and it’s the first spot that doesn’t attack one of his GOP opponents.

The ad shows the Republican gubernatorial candidate in his dress blues, and the voiceover says: "At 18 he enlisted in the Marines. He’s never backed down from a fight."

Cox served in the Marines in the United States and Korea from 1980-83. He was honorably discharged at the rank of corporal.

His background as a Wayne County assistant prosecutor is also highlighted with a scene showing Cox ducking under crime scene tape.

I notice this ad wasn’t paid for by “Eagle Strategies.”

That pretty much covers the positive news. The rest is mostly right-on-right crime. This week, ads his campaign had prepared for the inevitable Manoogian mansion party accusations were leaked on the internet. [MyFoxDetroit.com]

The Michigan gubernatorial campaign of Republican Attorney General Mike Cox says four of its unaired TV ads were stolen and posted on YouTube.

Campaign officials said Tuesday they were talking with attorneys to determine how to proceed and to identify who posted the commercials under the tag AnyOneButCox.

The ads feature people including former police officers defending Cox and his role in putting former Detroit Mayor Kwame Kilpatrick behind bars.

Cox’s campaign was quick to blame his opponents for stealing the ads but without any proof. Kind of like the Manoogian mansion accusations of which he complains.

"None of us in law enforcement or the media found once person who could say they were there, or that a crime happened," Cox said. "What does it matter to running for governor?

"I’m not running (for governor) to talk about rumors from seven years ago."

In other GOP primary news, Pete Hoekstra picked up the endorsement of retiring Rep. Vern Ehlers. [MLive] He also criticized President Obama for not closing the Chicago locks to protect Lake Michigan from the onslaught of Asian carp after a carp was found six miles past the electronic barrier.

Earlier this year, Hoekstra sponsored a bill that would have given the Army Corps of Engineers the authority to close the locks, apply fish poisons and install new barriers.

"Closing the locks is not enough, and the Army Corps has acknowledged that they have no intention to do so," Hoekstra said.

I don’t know what good it would do to give the ACE the authority to close locks when the organization has fought the push to do so. It’s like giving me the authority to watch the Twilight movies. Thanks, but I’ll pass.

It seems Rick Snyder wasn’t really a nerd in high school. (In other words, there wasn’t much news from the Snyder camp this week.) He did pick up a co-endorsement (along with Mike Bouchard) from the Detroit Regional Chamber. The Chamber also endorsed Andy Dillon on the Democrat side. [MLive]

Despite trailing Cox, Snyder and Hoekstra in pretty much all statewide polls, Bouchard is the leader in metro Detroit. [MLive] Then again, these polls are fluctuating so much from day-to-day that I’m trying to avoid references to them. This is interesting because metro Detroit is obviously has a large effect in Michigan elections

The GOP candidates will all be in Grand Rapids tonight for a debate on WOOD-TV. As with the Democratic debate earlier this week, eastsiders should be able to follow the debate online here.

With only two candidates, the Democrats are so much easier to follow, and not at all less exciting.

Dillon and Virg Bernero hurled verbal bombs at each other during a debate on June 21.

Dillon called Bernero a career politician seeking his "sixth office" in 20 years and who was exaggerating his record as mayor. But it contained little of the bite and specificity Bernero aimed at a large swath of a Democratic primary electorate that hasn’t yet made up its mind.

Bernero criticized Dillon for an FY 2010 budget crafted with Senate Republicans that relies on all cuts and no revenues. Casualties have been cities that have lost revenue sharing and college students who lost their $4,000 Michigan Promise scholarship.

Post-budget attempts by Dillon to raise revenue to soften the cuts went nowhere.

"People were looking to the speaker for leadership, looking for him to stand up for those scholarship funds," Bernero said. After Dillon said he’d work to restore the university aid, Bernero said Dillon "now wants to be elected governor to fix so many of the mistakes he made."

Dillon responded that Bernero offered no solutions of his own and that during his tenure in the Legislature, helped create the current structural budget deficit. "The mayor constantly bashes me (for budget cuts) but I don’t hear him calling for a tax increase to fund these programs."

Bernero was profiled at length by the Detroit Free Press. It’s the beginning of a series of profiles. Dillon’s will appear on Friday.

Bernero is also getting a push by the AFL-CIO.

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Taylor speaks about ‘Anglers’ case

Earlier this week, Ed Wesoloski broke down the Michigan Supreme Court’s order granting leave in Anglers of the Au Sable v Dept of Environmental Quality, et al. The court said it would hear the case despite the fact that the appellant, Merit Energy, opted to drop it rather than continue its appeal.

Former chief justice Clifford W. Taylor was a guest on WJR AM 760’s “The Frank Beckman Show” to discuss the court’s decision. [Listen to the interview at the link].

Some highlights:

About the order in Anglers:

“It’s a very strange decision. Traditionally, courts have never taken a case when one side has conceded to the other side.”

“I think they they want to advance the proposition that a court can take a case just because the parties are interested in it and just because they’re interested in it.”

“[After explaining that cases usually stop when one side stops litigating their side,] so the court is deprived of the opportunity to have a fully fleshed out argument in front of it. Court’s don’t function very well that way.”

When asked if a court can perceive a future wrong and make a decision because of it:

“Not before now… The great sweep of legal history will find almost no cases where this has happened. And when it has happened, the court has been doing something that is very unusual.”

“There’s a great debate in the United States about what courts should be doing. We’re seeing this played out in Michigan. On one side, we’re seeing the traditionalist judges, of which I was one, who felt that courts have a very narrow but important role of doing cases and controversies. On the other, you have the more aggressive rule, which is normally described as ‘the living constitution’ or the doing of good things through the court, the old rules be damned. We’re going to do what we think is right. The problem is that judges were not elected to do that. If courts start to do that they tend to get all screwed up because they weren’t elected for their policy positions. They’re elected because people think they’ll be fair and impartial.”

On whether political party nominations are a problem:

“We’ve had, for 100 years, political parties nominating candidates for the Supreme Court, and, of course, they run non-partisan after that. That worked pretty well for probably 80 of those 100 years. What happened was, there was a very aggressive element that came into the debate — primarily the plaintiff’s lawyers — who wish to have the courts disregard the law in cases which were important to them, and do what was right. And that’s the debate that we’re seeing fought out.”

He also called Justice Robert P. Young Jr. “the intellectual leader of the court” and the court’s most intelligent justice.

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