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Wednesday, June 26, 2013

What's next in California?

Right or wrong (I believe wrong), Hollingsworth  finds no standing to appeal to either to the court of appeals or SCOTUS, vacates the Ninth Circuit decision invalidating Prop 8, and reinstates (or at least sets the stage for reinstating) the broad injunction issues by Judge Walker in the Northern District of California.

So what happens now?

The first step is for the Ninth Circuit to lift the stay on the district court injunction, which it will do when the case is back in its jurisdiction, as part of an order dismissing the appeal for lack of appellate jurisdiction. California Attorney General Kamala Harris announced that she would immediately ask the court of appeals to lift the stay.

But then we must figure out what, exactly, the injunction does. Judge Walker wrote: "Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official [state and county] defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8."

The case was not brought as a class action, but only on behalf of two couples who sought marriage licenses in two counties (Los Angeles and Alameda). So the most appropriate injunction would prohibit enforcement of Prop 8 (i.e., would require issuing licenses) only as to those two couples and only by the two county clerks and the state officials named as defendants. On the other hand, Walker's injunction is written to be much broader, prohibiting all enforcement by the named defendants, and those subject to the named defendants control or supervision, against all persons. Indeed, Justice Kennedy described the injunction as "statewide" (hard to know if he was happy or unhappy with that).

Even if the injunction is erroneously overbroad, it is not clear what could be done about that. An overbroad injunction could be the basis for an FRCP 60(b)(6) Motion to Modify, as"any other reason" justifying relief from the injunction. But who could or would make that motion? The logic of Hollingsworth is that the initiative proponents lost all standing once the district court entered judgment (a judgment which does not bind or compel the proponents to do or not do anything). And it is unlikely the named defendants would do so (since they wanted to lose the case and be subject to the injunction in the first place).

The difference affects how the next couples would proceed. If the injunction does not apply statewide or to all couples, the next couple denied a license would have to file a new federal lawsuit. In LA or Alameda, they probably could use the Perry injunction for preclusive effect; in other counties, Any couple could use the injunction as persuasive authority [ed: corrected]. On the other hand, if the injunction applies statewide, any couple denied a license enjoys the benefit of the existing injunction; they could go straight to Judge Walker (or whichever other judge is supervising the injunction, since Judge Walker retired) and obtain the license through a Motion to Enforce and a threat of sanctions against the state or county officials who refused to grant the license.

AG Harris potentially mooted that issue, concluding in an opinion letter to the governor (dated June 3 and written in anticipation of this ruling) that the injunction does apply statewide. Because the plaintiffs brought a facial challenge to Prop 8, its invalidation means there is no possible constitutional application of the law for the named defendants as to any applicants (although this reasoning does not seem quite right to me). Further, she concludes that all county registrars and clerks are under the control and supervision of the Director and Deputy Director of the Department of Public Health (both named defendants) and therefore qualifiy as "other persons in active concert or participation" with parties who are bound by the injunction under FRCP 65(d)(2)(C). She insists that all clerks be given notice of the injunction and of her conclusion that they are subject to it, which a DPH official did today (although telling clerks to wait until the Ninth Circuit lifts the stay). In other words, high-ranking state officials insist that, as soon as the Ninth Circuit lifts the stay, California is back where it was in the four months in 2008 prior to the passage of Prop 8, when same-sex marriage was legal throughout California.

But what happens if a county clerk who was not a named defendant continues to believe that Prop 8 is constitutionally valid (e.g., the Clerk in Imperial County, who tried unsuccessfully to intervene in the district court) and disagrees with Harris' determination that he is subject to the injunction? One possibility is that this unknown clerk, being bound by the injunction, could now make that FRCP 60 motion to modify the overbroad injunction. Another is he could refuse to grant a license to a couple, then oppose the subsequent motion to enforce  by challenging the scope of the injunction (as to him and as to the new license applicants) and whether he is subject to control or supervision of DPH. Of course, because the scope of DPH's control or supervision is a state law issue, the district court may have to certify that question to the California Supreme Court. Another possibility is that DPH has the power to  remove a recalcitrant county clerk or to directly intervene to override the actions of a county clerk who fails to follow commands (akin to the power some state attorneys general have to supersede the actions of county-level prosecutors); whether DPH has such power is also a question of California law.

All of which is to say that SCOTUS's decision leaves in place a broad Fourteenth Amendment ruling on the constitutionality of Prop 8. But it also leaves all sorts of procedural issues, federal and state, for the lower courts to work out.

Update: Marty Lederman gives his views of what happens next, closing on several additional practical points worth highlighting. First, if a couple did have to litigate anew, they'd almost certainly win, having not only the Walker injunction as authority, but also the language in Windsor. Second, Marty doubted any clerk would bother refusing to issue licenses, because it simply will not be worth the bother or effort and ultimately will fail. Third, as a result, once the Minnesota law takes effect on August 1 and once the stay is lifted, same-sex marriage will be legal in 13 states and D.C.

Posted by Howard Wasserman on June 26, 2013 at 11:48 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


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In the Oregon case, NOM claimed it had representation standing because one of its members is a county clerk from Oregon.

Posted by: Michael Ejercito | Jul 7, 2014 11:57:49 PM

Following the Supreme Court's dismissal of the challenge by Proponents of Prop 8 in California, it was a logical step to follow precedent - the States are represented by elected State Officials who are ultimately accountable to the electorate. Organisations like NOM represent a wide range of people - they do have an important role in democracy and their lawyers put on very eloquent legal and intellectual submissions. However, majorities can change and just like in California, the electorate had a choice who to elect for Attorney General and Governor. The decision not to appeal is not the tyranny of the judiciary but it is the decision of the newly elected state representatives. On this basis, it is perfectly reasonable to uphold the decision of locally elected state officials who remain accountable to the people in their States. Washington based NOM cannot possibly argue it represents the people of Oregon. As eloquent their legal submissions may be, it is without merit to re-litigate standing issues following the recent determination of this question by the US Supreme Court.

It is better for the judicial and political process to proceed for some more time rather than have the Supreme Court determine the issue at a very early stage.

With the Coastal States providing their residents with full equality before the law, it is easier for the Supreme Court to give the most traditional states some extra time to go through a process of further debate which will likely lead to more and more support for traditional ideas of stable, long-term relationships with legal obligations agreed as part of a civil marriage.

Posted by: Daniel J Dormann | Jun 7, 2014 2:34:04 PM

There are two more marriage equality cases in the Ninth Circuit, Sevcik v. Sandoval, 12-17668, and Jackson v. Abercrombie, Nos. 12-16995 and 12-16698, which have direct application to California's Proposition 8 and the subject of this post.

If the marriage laws at issue are ultimately struck down on appeal, the issue of the scope of the Perry v. Schwarzenegger injunction becomes irrelevant, as there will be a ruling that would bind everyone in the state (even state judges if the Supreme Court struck those laws down.)

On the other hand, if the marriage laws are upheld by the Ninth, I would expect a Rule 60 (b) (5) motion to be filed that afternoon by one or more county clerks, or even possibly the original defendants. Repeal of the law on which the injunction is based is the perfect reason for that motion. See Agostini v. Felton, 521 U.S. 203 at 237 (holding petitioner is entitled to Rule 60 (b) (5) relief due to change in Supreme Court precedent) Of course, this does not mean the district court would rule on the motion right away, but would likely wait until the Supreme Court either grants cert and decides the merits, denies cert, or the deadline for cert has

Posted by: Michael Ejercito | Jun 29, 2013 1:17:34 PM

The plaintiffs in this case just got married.

If a county clerk filed a rule 60 (b) 6 motion, would they have standing to oppose it? After all, if a county clerk applies Prop 8 to other same-sex couples, it does not injure any protectable legal interest held by the plaintiffs.

Posted by: Michael Ejercito | Jun 28, 2013 10:27:36 PM

Windsor already bore fruit.


Posted by: Michael Ejercito | Jun 28, 2013 9:15:46 PM

With respect Mr. Lederman's claims, there is one clerk who would challenge the injunction- Chuck Storey, the Imperial County Clerk, who had intervened in an attempt to ensure appellate review.

this does beg the question- if Chuck Storey refuses a marriage license to a same-sex couple, who would have standing to enforce the injunction against him? (This is distinct from who would have standing to file a separate suit to force him to issue the license.) Not the plaintiffs, since it does not injure them.Not the defendants,since such an act would not impair their ability to comply with the injunction's terms. And not the couple,since they were not parties to the case (although of course they can file their own separate suit).

In any event, Storey is willing to work to ensure that there is an appellate court ruling that will decisively and unequivocally apply to his office, and decide whether Windsor truly forecloses arguments that Prop 8 is consistent with the Constitution.

Posted by: Michael Ejercito | Jun 28, 2013 3:54:57 PM


in your answer to your question of "Who is injured in this case, and on which grounds?", any person who incurs additional legal obligations if the marriages are valid would be injured, and they would clearly have standing to challenge the plaintiffs' marriages. (Res judicata only applies to the specific litigants; it applies not at all to third parties.)

Posted by: Michael Ejercito | Jun 28, 2013 11:11:22 AM

I should first note that eight justices voted to let the Windsordistrict court ruling stand and ultimately settle the case in her favor; only Justice Alito voted to reverse the appellate court's judgment, which would overrule the district court. In this sense, it was an 8-1 ruling.

With respect to state officials' directives directing county clerks to issue marriage licenses, Attorney General Harris admits that the district court did not order the California Department of Public Health to provide notice of injunction to the county clerks. see letter of Attorney General Kamala D. Harris to the Honorable Edmund G. Brown, Jr., governor of California, at 7. She contends that the DPH has supervision and control over the county clerks. See Harris Letter at 5-7. It is far from clear that these orders would be legally binding. At the outset, Rule 65 (d) (2) (B-C) only specifies the parties’ officers, agents, servants, employees, and attorneys; and other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).

As independently elected officials, county clerks are in no way officers or employees of the defendants. They are not agents of the defendants, as they lack fiduciary duties to them, a defining feature of agency. See Hollingsworth v. Perry, No. 12-144, op. at 15 (Jun 26, 2013) Rule 65, by its own terms could only apply to the county clerks if "in active concert or participation with" with defendants. Such a determination may only be made after a proceeding in which the non-parties were allowed to participate.
Zenith Radio Corp. v. Hazelton Research, Inc., 395 U.S. 100 at 112 (1969)There is no indiciaztion that any of the non-defendant clerks acted in participation with the defendants to deprive plaintiffs of their rights.

But even if control would be sufficient for Rule 65 to apply to the clerks, it is clear that the DPH has control over the clerks for Rule 65 purposes. It can not fire the clerks nor their employees nor reassign them. Nor could it even revoke a decision by a clerk to issue a marriage license, or grant a marriage license itself after a clerk denied it. No law requires clerks to obey the lawful orders of the DPH or any of the defendants.

Indeed, Lockyer v. City of County of San Francisco, 33 Cal.4th 1055 (Cal. 2004), belies this. when San Francisco issued marriage licenses to same-sex couples, the registrar could have simply revoked the marriage licenses, and any legal action arising from this would have to come from San Francisco or the couples who received the licenses. Instead, the attorney general had to seek legal action to prohibit further issuance and to void the licenses, indicating that the registrar could not do that on his own. And the California Supreme Court in Lockyer revoked the licenses and prohibited the issuance of further licenses- not because the city had to obey the lawful orders of the registrar or the county, but because the city had to comply with the law.

Adding to that, state judges are not bound under Rule 65. while the ruling may preclude arguments from the defendants that plaintiffs' marriages are invalid, the ruling does not stop them from deciding the validity of the plaintiffs' marriages, let alone other same-sex marriages, if persons other than the Prop 8 defendants are before the court and the validity of those marriages would be dispositive to the case.

Posted by: Michael Ejercito | Jun 28, 2013 10:37:48 AM

Termi, I agree. Prop 8 had unique factors. The Governor and the A-G are separate officers who derive their legitimacy from direct elections. Both Jerry Brown and Kamala Harris stood for office on the basis of strong opposition to Prop8. The sovereign, the People of California, elected the state officials of their choice. There is no evidence that voters were misled by Jerry Brown or Kamala Harris. The integrity of the initiative process was not compromised.

The general rule of Art III standing was correctly applied. There is no real injury. There are no special circumstances calling for a special prosecutor (e.g. where government corruption is alleged).

The 9th Circuit and the dissent fail to understand that the objective of
Art III standing is different from standing considerations under state law. The resources of courts and the tax-payer are perfectly reasonable considerations for limiting standing in the first place or for taking decisions on what cases to litigate.

Both the 9th Circuit and Justice Kennedy assert that the unanimous opinion of the California Supreme Court should be binding and final.

However, the unanimous California Supreme Court writes on p. 14:
'We emphasize that our discussion of federal decisions is not intended to, and does not purport to, decide any issue of federal law, and we fully recognize that the effect that this opinion‘s clarification of the authority official proponents possess under California law may have on the question of standing under federal law is a matter that ultimately will be decided by the federal courts.'

Posted by: Daniel J Dormann | Jun 27, 2013 11:34:34 PM

OK, I can see how the Treasury is injured by Windsor.

However, if the Congress has standing to appeal over that, I would think that every taxpayer would also be able to claim injury in some sense. But then, since allowing gay marriage in California will result in more marriage deducitons, and this injury to the Treasury as well, that would give all taxpayers (even those who do not live in California) standing as well.

I think there is some merit to the idea that this way lies madness.

Posted by: wjca | Jun 27, 2013 11:02:07 PM


On your first point, I think this is exactly what Justice Kennedy argued in dissent. The initiative process was designed to work around state government. But this decision now gives state government control over all enforcement of popularly enacted laws, unless states take steps to appoint "agents" in necessary cases.

As to Windsor, the "injury" was that the U.S. Treasury was going to have to give Windsor $300k. And even if the President and AG wanted to give her $ 300k, that still is an "injury" to the treasury. What was arguably missing was legal adverseness, since the President wanted the treasury to be legally obligated to give that money. But that was a prudential concern, overcome by the presence of BLAG. Convoluted, but ultimately correct, I think, because it allows BLAG to functionally represent the US.

Posted by: Howard Wasserman | Jun 27, 2013 10:53:27 PM

Termi, I can see that in the case of Perry, I guess.

But what is the real injury in Windsor? Presumably the Court see some injury to Congressional Republicans, that gives them standing to appeal here. I just can't work out what that real injury mght be.

Posted by: wjca | Jun 27, 2013 7:42:09 PM

wjca, I guess the thing you're missing here is very limited applicability of this case. Here we not only had the Gov't willingness to allow the override. Much more important was lack of real injury to anyone if the injunction stands. Judge Walker's ruling covers it in details. Who is injured in this case, and on which grounds?

Posted by: Termi | Jun 27, 2013 6:37:44 PM

It appears that the Court is holding that, in the case of an initiative statute (or, as in this case, state constitutional amendment), the executive is free to simply refuse to defend. In short, they are bound by an initiative only for as long as it takes for a case to be brought -- presumably by anyone, including themselves.

Which, since the whole point of an initiative is to enact something that the state government is refusing to enact, seems to say that the initiative process itself is of dubious validity. That is, it only works to override the will of the state government if the state government is willing to allow itself to be overridden. What am I missing here?

Posted by: wjca | Jun 27, 2013 6:03:06 PM

Well, if I were speaking normatively, I would answer your last questions as "sure," because I don't believe Art. III should care who defends on a state's behalf if the state doesn't care. Descriptively, I'm not sure. If all Hollingsworth requires is an agency relationship, state law would seem free to identify whoever it wanted as its agent, so long as the agency were specific enough. So what Hollingsworth demands, I suppose, is a special counsel, specifically appointed.

Posted by: Howard Wasserman | Jun 27, 2013 5:59:49 PM

I take it you distinguish Lujan as follows: designating a finite set of potential litigants is qualitatively different from allowing any and all citizens to self-designate as litigants on behalf of the state.
That makes sense, although it seems novel despite Karcher.
Under that theory, could a state designate anyone who voted for an initiative to have standing? Anyone who signed a petition to get it on the ballot? I'm guessing not.

Posted by: Jim von der Heydt | Jun 27, 2013 3:18:05 PM


I think the relevant standing precedents are Karcher and the dicta in Arizonans for Official English (which I believe the Hollingsworth majority misread). I read both as meaning that the state can designate someone to represent its interests in defending the constitutionality of a statute. Karcher had standing because the state had authorized him, as the Speaker, to make the state's arguments, authority that expired as to Karcher when he no longer was Speaker. AOE did not have standing because Arizona had not authorized the proponents. But California did authorize the initiative proponents, which should have been sufficient to make this case closer to Karcher than to AOE or Diamond. The agency theory is a new gloss that (with apologies to Walter Dellinger) I don't believe necessary.

Posted by: Howard Wasserman | Jun 27, 2013 2:59:05 PM

Kevin - thank you for your comments on the other post. I think that addresses some of the concern that I was unable to express in my 4:10 post. If they had no standing in federal court, what gives them standing as intervenors? Now, I agree that this probably won't be litigated, but an interesting issue nonetheless.

Posted by: anon | Jun 27, 2013 2:56:37 PM

In partial response/development to some of the post here, I've submitted a comment on the later "Remedial Effects of Procedure" post suggesting that maybe the intervenor-proponents are entitled as parties to seek modification of the scope of the injunction.

Posted by: Kevin C. Walsh | Jun 27, 2013 2:28:03 PM

Sorry, I misstated the basis for the special case of qui tam suits.

"adequate basis for the relator's suit for his bounty is to be found in the doctrine that the assignee of a claim has standing to assert the injury in fact suffered by the assignor. The FCA can reasonably be regarded as effecting a partial assignment of the Government's damages claim.
"We are confirmed in this conclusion by the long tradition of qui tam actions in England and the American Colonies." 529 US 765, 773 (Scalia, J.)

Bounty has nothing to do with it.

Posted by: Jim von der Heydt | Jun 27, 2013 2:17:06 PM

You say, "I don't think Article III should care who represents the state in the case." But can that be squared with the precedents?

This from the syllabus in Lujan: "The Court of Appeals erred in holding that respondents had standing on the ground that the statute's citizen-suit provision confers on all persons the right to file suit to challenge the Secretary's failure to follow the proper consultative procedure, notwithstanding their inability to allege any separate concrete injury flowing from that failure. This Court has consistently held that a plaintiff claiming only a generally available grievance about government, unconnected with a threatened concrete interest of his own, does not state an Article III case or controversy. Vindicating the public interest is the function of the Congress and the Chief Executive. To allow that interest to be converted into an individual right by a statute denominating it as such and permitting all citizens to sue, regardless of whether they suffered any concrete injury, would authorize Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty."

I haven't read the briefs (I'm going to), but this principle seems to apply equally here. I notice in the briefs that the Prop 8 proponents had abandoned all their arguments about the harm caused to them by gay marriage.

Notably qui tam could solve this by instituting a bounty for those who defend an initiative on a state's behalf.....

Posted by: Jim von der Heydt | Jun 27, 2013 2:00:17 PM

I believe the sponsors could represent the state's interests, since no one else wanted to. Broadly speaking, I don't think Article III should care who represents the state in the case. Formal agency principles to one side, the sponsors were as authorized by state law to represent the state as BLAG was to represent the US.

Posted by: Howard Wasserman | Jun 27, 2013 12:58:17 PM

Notably, Justice Scalia, the author of Lujan, joins this result without comment, even though it seems likely (given the lineup) that had the merits been reached, Justice Kennedy would have loved to uphold California's state sovereignty and reinstate Prop 8. (I believe Kennedy would see this as a Solomonic compromise in honor of federalism, since everyone expected the two cases to cut in the same direction.)

I think this is telling: Justice Scalia cares very deeply about standing doctrine.

Posted by: Jim von der Heydt | Jun 27, 2013 12:50:34 PM


I've just read the opinions and I'm puzzled that you believe there was Article III standing for the initiative proponents here. You're the expert on jurisdiction and I thought you would see it as I do -- a clear 'injury in fact' problem.
To me this case, once the California government drops out, looks exactly like Lujan, except that instead of a federal statute purporting to confer standing it's a state constitution initiative mechanism. In both cases, this would be fine if the designated litigants had ANY kind of injury in fact.
This seems unlikely to arise in other cases, because in other cases people will be able to argue more persuasively that they are personally injured when/if the initiative they sponsored is struck down. The Prop 8 proponents couldn't persuade anyone that they were harmed by the existence of gay marriage. A very unique circumstance.

Posted by: Jim von der Heydt | Jun 27, 2013 12:48:06 PM

Assuming that all California public officials get in line with the Governor and AG instructions(which I think is likely) is it possible that a taxpayer could challenge a county clerk's issuance of SSM licenses in state court under California's very expansive taxpayer standing rules? (See California Code of Civil Procedure section 526a.) The claim would be that the issuance of SSM licenses is an illegal expenditure of public funds because it violates Prop. 8. Would the District Court Perry decision have any preclusive effect in that litigation?

Posted by: Anon860 | Jun 27, 2013 12:06:49 PM

Paul: Yes as to both points. As to the first, that litigation and argument would run entirely parallel to the federal injunction; the federal decision would simply be persuasive authority in that state court action. As to the second, that would then squarely present to the district court the question of the precise scope of the injunction. Doug Laycock, the king of all things remedies, says the rule in California is that an injunction only protects plaintiffs, not non-parties, unless broader scope is necessary to protect the named plaintiffs. Also, I wonder whether future marriage applicants in this situation could argue some form of reliance or judicial estoppel in such a change of executive position (don't know the answer to that).

Posted by: Howard Wasserman | Jun 27, 2013 11:59:04 AM

The big elephant in the room is Windsor. Art. III, Sec. 3.5 (a) allows state and local officials to decline to follow a law if an appellate court ruled it unconstitutional. officials can plausibly interpret this exception to apply to prop 8 in light of Windsor.

Posted by: Michael Ejercito | Jun 27, 2013 11:30:48 AM

Is there not a possibility that the validity of a California same-sex marriage could be contested in private litigation not involving the government, such as an estate dispute? And although it's unlikely, could a future governor, AG, or DPH director who is hostile to gay marriage attempt to rescind the state officials' directives requiring county clerks to issue marriage licenses to same-sex couples?

Posted by: Paul Owens | Jun 27, 2013 10:13:36 AM

Anon: There is no question there was a live case-or-controversy in the district court, a point Roberts made several times. There was adverseness in the district court because there was an injured plaintiff (couples who wanted licenses) and defendants whose real-world conduct was causing the injury (not granting the license) and who, if enjoined would remedy the injury (by having to give licenses). It doesn't matter that the defendants refused to defend; a defendant always can allow a default judgment or take a confession of judgment (which is what the US tried to do in Windsor). That didn't happen here because the proponents were allowed to intervene as defendants, which was ok because there still was an involved defendant. Things fell apart on appeal because the government no longer was involved in the case.

Will: Good point; changed in the body. The drawbacks of blogging at night.

Posted by: Howard Wasserman | Jun 27, 2013 7:40:58 AM

A question that I am sure there is a simple answer to, but I am not sure:

The Supreme Court has ruled that the Prop 8 proponents did not have standing in federal cases - both at the Supreme Court and at the 9th Circuit. But, as I understand it, they were also the parties, albeit the defendants, at the District Court level. Obviously the challengers to Prop 8 (the gay couple) at the District Court level had standing as plaintiffs. However, could the district court ruling also be at issue because the right *defendants* weren't present?

Now, I know that there (probably?) doesn't even need to be a defendant that shows up for there to be proper standing. But in this case, the defendants, if they were plaintiffs, wouldn't have standing. Does this raise any procedural issues for the validity of the District Court ruling?

Posted by: anon | Jun 27, 2013 4:10:36 AM

Howard, just a quick question. You say that "In LA or Alameda, they probably could use the Perry injunction for preclusive effect." I had thought that California followed the federal rule forbidding offensive non-mutual collateral estoppel against the government. See Helene Curtis, Inc. v. Assessment Appeals Bd., 76 Cal. App. 4th 124, 133 (1999) ("nonmutual collateral estoppel does not apply against the government as a way to preclude relitigation of issues such as this one. See United States v. Mendoza (1984) 464 U.S. 154").

Is that wrong?

Posted by: William Baude | Jun 27, 2013 1:54:00 AM

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