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Forget ye not Magna Carta (or George Cony, short-lived martyr)

June 15, 2015:- “Forget not after all these years the Charter signed at Runnymede,” as Rudyard Kipling urged in his epopee to Magna Carta, the document to which King John affixed his seal 800 years ago today. Among the reasons for forgetting not Magna Carta after all these years — and for wishing it a happy birthday — is the provision that underpins our modern notion of due process:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his peers or by the law of the land.

The observance of due process sends a strong signal that a society rests on the rule of law. Conversely, the absence of due process is compelling evidence of a society living under tyranny. So this notion, first announced in Magna Carta, still matters, as does another principle that had its roots in Magna Carta, that only the legislature — not the executive — may levy taxes.

Some 440 years after its adoption, in the period that followed the English Civil War, a merchant by the name of George Cony relied on this principle when he got his tax bill. After Oliver Cromwell had persuaded Parliament to enact the Instrument of Government, a written constitution that made him Lord Protector, Cromwell and his Council set about collecting customs duties.  Article 27 of the Instrument of Government expressly allowed the Protector and Council to do so.  George Cony refused to pay customs duty on the grounds that the Cromwell and his Council had imposed the tax without the consent of Parliament.  Although the Instrument of Government might permit them to do so, Magna Carta did not, in Cony’s opinion.

Cromwell did not think much of Cony’s constitutional contention and threw him in jail. When Cony’s three attorneys appeared before the Council to argue for his release, Cromwell threw them in jail as well.  For an account of Cony’s case I am indebted to Stephen F. Black’s 1976 article about the judiciary under Cromwell.*  According to Mr. Black, what seemed to really nettle Cromwell was the lawyers’  bringing up Magna Carta.

Cromwell, irked, referred to Magna Carta as “Magna Farta,” evidence that the notoriously dour Protector had a schoolboyish sense of humor (so I suspect that in his days as a cavalry general he would probably have yearned for this talented horse under his saddle). Cromwell told Cony’s lawyers that if “they would have Magna Farta, they must put on a helmet and troope [i.e. march] for it.”  So off to the Tower the barristers marched, nudged along by big men bearing swords and pikes, and remained there for about a fortnight.  But, as Mr. Black explained, “Cromwell quickly recognized the danger of alienating the entire legal profession by incarcerating three of its leading members solely for their impassioned advocacy of a client’s cause.” So out of the Tower they trudged, thanks to political calculation trumping protectoral pique rather than to any observance of due process. And after two weeks in confinement staring at the 15-feet thick walls, they might not have concurred with Mr. Black’s choice of the adverb “quickly.”

Perhaps Cony hoped that his freshly-sprung attorneys  would persuade an appellate court to order his release. But Cromwell’s next step made that outcome extremely unlikely, to put it mildly. To the old adage “if you can’t argue the facts argue the law, and if you can’t argue the law argue the facts,” Cromwell added “and if you can’t argue either, pack the court.”  He replaced the awkwardly scrupulous chief justice, Henry Rolle, with John Glynne, a judge who had learned the possible advantages of becoming a pliant ally of the new regime during his own stint in the Tower. Glynne’s appointment seems to have prompted Cony to realize that any appeal would be futile. He could remain in jail indefinitely, a martyr for the cause of an important constitutional principle, or he could pay up and go home.  Cony chose the second option, and who can blame him.

Today, on the 800th anniversary of Magna Carta, what can we learn from George Cony’s 360-year old case? One significant lesson, I believe. Without an independent judiciary and the rule of law, liberty withers. The trappings of legality that decorated Cromwell’s regime made no difference to George Cony and his lawyers when they had the gall to remind the Lord Protector what it was that he was supposed to be protecting, namely liberty under law.  Before and during the Civil War, Cromwell and his fellow parliamentarians made much of the King’s derogations from Magna Carta, but when he became king in all but name Cromwell himself ignored one of Magna Carta’s most important provisions: due process.  Although the Instrument of Government with its apparent checks and balances supposedly constrained Cromwell, his power to tax without the consent of the legislature left the liberties of the people as brittle as the parchment of Magna Carta.

* Black, S. “Coram Protectore: The Judges of Westminster Hall under the Protectorate of Oliver Cromwell,” American Journal of Legal History 20(1) pp. 32-64.

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Original Sins

May the Massachusetts Senate use the budget process to change the state income tax?  If so, why: if not, why not?

This is not a bar exam question, but in future maybe the commonwealth’s law schools should include it in their curricula together with the answer. First, of course, we need to find out what the answer is. I think I know, so when the Supreme Judicial Court (SJC) looks at the amicus briefs it received in response to its call, somewhere in the pile will be mine.

The question is on the SJC’s docket because the House of Representatives put it there, in the form of a request for an advisory opinion. Unlike the Supreme Court of the United States, which can decide only case and controversies – meaning litigation between opposing parties – the SJC has the authority to issue opinions as to whether a proposed piece of legislation would pass constitutional muster, a sort of pre-clearance. It is only the House, the Senate, and the Governor and Council that have the right to request advisory opinions, and then only “upon important questions of law, and upon solemn occasions,” i.e. not upon questions relating to the court’s favorite color.

To know why the House is asking the SJC to opine on the Senate’s ability to vary the tax rate via the budget bill, a précis of the historical background may prove helpful.

Almost 100 years ago, the people of Massachusetts elected a Constitutional Convention, which recommended a series of constitutional amendments. In 1917-18, the voters ratified 22 of them including Article 63, which prescribes the budget-making process. Under Article 63, the Governor recommends to the Legislature a budget containing “all proposed expenditures of the commonwealth for the fiscal year.”  The Legislature then incorporates “all appropriations based upon the budget to be paid from taxes or revenues… into a single bill which shall be called the general appropriation bill,” and has the right to “increase, decrease, add or omit items in the budget.”  After the Legislature has passed the appropriations bill, the Governor may choose to “disapprove or reduce items or parts of items,” a power commonly known as the line-item veto.

As is the norm, earlier this year the incoming Governor, Charlie Baker, filed his budget bill with the Legislature. The House of Representatives sent its general appropriations bill to the Senate. Then something unusual happened. The Senate replaced a section of the bill with its own section, one that would fix the personal income tax at 5.15%. This, claims the Speaker of the House, violates the origination clause, the part of the State Constitution that says, “All money bills shall originate in the House of Representatives; but the Senate may propose or concur with amendments, as on other bills.” No, replies the President of the Senate, it does not violate the origination clause, because the House bill you sent up contained a couple of tax measures thereby rendering it a money bill.

So is it a straight appropriations bill, or a tax measure trapped in the body of an appropriations bill? It has to be one or the other: the statute book has markedly fewer identity options than Facebook’s current tally of 58.

Those of you following the Obamacare litigation will be familiar with the federal origination clause, which provides: “All bills for raising revenue shall originate in the House of Representatives, but the Senate may propose or concur with amendments as on other bills.” U.S. Const., art. I, s. 7, cl. 1.  At issue in the latest Obamacare case is the extent of Senate’s power to amend revenue bills that it receives from the House.  Does the prerogative of proposing or concurring with amendments as on other bills give the Senate carte blanche?

By way of an analogy, I ask that you imagine settling down with your youngest for a bedtime story. You turn off the overhead, switch on the lamp, make sure teddy is comfy, and read the words, “In the great green room there was a telephone and a red balloon and,” (turn page) “the wealth of those societies in which the capitalist mode of production prevails presents itself as an immense accumulation of commodities.” You pause, skip ahead, and find more such dross. Where you expect a reference to a cow jumping over the moon you read “just as in the simple circulation of commodities the double change of place of the same piece of money effects its passage from one hand into another, so here the double change of place of the same commodity brings about the reflux of the money to its point of departure.”

Soporific, yes, but not what you had in mind for your little pumpkin’s nightly nudge toward the Land of Nod. And then realization dawns, and you think to yourself: Darn, someone has gone and replaced all but the first few words of Goodnight Moon with Das Kapital.  And that, according to the Pacific Legal Foundation, the organization representing the plaintiff in Sissel v. U.S. Department of Health & Human Services, is pretty much what the United States Senate did with the House bill that became the Affordable Care Act (ACA).

The House passed H.R. 3590, a seven-page measure titled “a bill to amend the Internal Revenue Code of 1986 to modify the first-time home buyers credit in the case of members of the Armed Forces and certain other Federal employees, and for other purposes,” of which the Senate retained the first 19 words (“be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled”) deleted everything else (all that stuff about service members and veterans, etc.) and inserted the 1,500-page Affordable Care Act. For a visual demonstration of that substitution, performed by the Rep. Louie Gohmert (R-TX, 1st District), click here and start watching at minute 4:20.  For extra fun, hit mute and try to discern from Rep. Gohmert’s facial expressions and gestures whether he (a) approves or (b) disapproves.

The Pacific Legal Foundation argues that the Senate’s cut-and-paste job violated the origination clause. It says that there is a difference between, on the one hand, amending and, on the other, complete substitution. Likewise, here in Massachusetts the Speaker of the House contends that the Senate went too far when it took a section from the House bill relating to tax credits and replaced it with a section that would freeze the income tax rate at 5.15% (rather than let it decline in accordance with the wishes of the voters, a clear majority of whom endorsed the measure on the 2000 statewide ballot to roll back the income tax to 5%). This complete substitution goes beyond the scope of the term “propose or concur with amendments, as on other bills,” suggests the Speaker.

While the Senate’s wish to flout the will of the voters and keep the income tax at 5.15% reflects about as much economic wisdom as the ACA, my opinion, which I hope the justices of the SJC will find persuasive (or, more realistically, at least ask one of the junior clerks or interns to skim), is that complete substitution is constitutional. The merit of the proposed tax hike – or tax-reduction pause, to be more neutral – is not relevant to the question of whether it comports with the Constitution. Similarly, the efficacy of the ACA has no bearing on whether its enactment conformed to the requirements of the origination clause.

If the federal origination clause said “the Senate may propose or concur with amendments as on other bills so long as the amendments are germane,” the outcome should be different. But it says no such thing. Adding those words involves amending the Constitution, and the route is via Article 5 not the judiciary.

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Remembering James H. Wolff

Memorial Day Weekend, 2015:– I wish to honor the memory of a naval veteran who survived the Civil War.  Before you sigh and roll your eyes, please note that — my foreign birth notwithstanding — I do understand the difference between Veterans Day, when we celebrate all who served, and Memorial Day, when we commemorate those who fell. But in view of the fact that the man I am honoring enlisted at well below the minimum recruitment age, I suspect that my bending the rules would have met with his approval.


This year marks the 150th anniversary of the decommissioning of USS Minnesota and of the Massachusetts Legislature enacting “An Act Forbidding Unjust Discrimination on Account of Color or Race,” which served as a model for the first federal Civil Rights Act. There is a connection between the warship and the statute, and the connection’s name was James H. Wolff.

James H. Wolff, Esq.

James H. Wolff, Esq.

Wolff was just 14 when he enlisted in the US Navy at the outbreak of the Civil War. Born to free parents in New Hampshire, he must have known that by volunteering to fight the Slave Power he was at risk of losing both his liberty and his life. Live free or die were the conditions of his daily life, not simply a motto.

He was aboard Minnesota when she bombarded the Confederates into surrender at Fort Hatteras, and when she became a stationary target for enemy fire after running aground early in the Battle of Hampton Roads. Three of her crew died in that engagement.

Wolff survived the battle and the rest of the war, and went on to practice law in Massachusetts.  Twenty years after the war’s end and the passage of the Massachusetts anti-discrimination act, Wolff represented the plaintiff in a case that tested the statute’s limits and led to its expansion.  His client in that 1885 case, Edward E. Brown, also happened to be his law partner. Together with attorney Edwin Garrison Walker, Wolff and Brown established the state’s first Black law firm. It was a firm with a mission.

After the decision of the Supreme Court of the United States in the Civil Rights Cases, 109 U.S. 3 (1883) that Congress lacked the constitutional authority to prohibit private discrimination (effectively neutralizing the federal Civil Rights Act) Wolff and his partners helped lead the campaign for stronger state-level legislation in Massachusetts. One element of that campaign took the form of a lawsuit against a Boston skating rink that refused to sell tickets to people of color. Brown was a plaintiff, and Wolff his attorney. They won.

Coordinating the case and legislative effort to enforce and amend the 1865 law was the Wendell Phillips Club, which functioned as a sort of precursor to the NAACP, bringing together business owners, ministers, and lawyers in the cause of civil rights.  Walker, Wolff, and Brown were at the forefront, litigating and lobbying for liberty pro bono publico while somehow bringing in enough billable work to pay the bills and raise their families (both of Wolff’s sons followed him into the law, by the way).

For a fuller account of the case, see my article “The Genesis of the Black Law Firm in Massachusetts,” Massachusetts Legal History 5 (1999).  Not quite everything ever published is available online, it seems, so if you would like a copy, email your request to peter@petervickery.com.

In the meantime, please devote a few moments of thought to James H. Wolff.  An exemplar of physical and moral courage, he is worthy of remembrance.

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Presto! Delusionary Zoning, Part III

In the manner of the conjurer pulling a rabbit from his hat, Amherst’s Planning Board has produced something of a surprise for Town Meeting.

Because Amherst’s current affordable-housing mandate has failed to generate any affordable housing during its 10 years of existence (see Vox Vickery passim), the Planning Board drafted a longer, more complex version. The avowed purpose of the new version is to encourage the development of new affordable homes. Now, with that purpose in mind, try to synthesize both clauses of the following sentence uttered by the chair of said board on the subject of its last-minute motion to radically amend its own proposal: “I think it may have the effect of damp[en]ing development, but it does meet the town’s express charge to us to come up with something better.”

So dampening development of affordable housing = better affordable housing bylaw. Got it?

What exactly will have this effect (i.e. dampening development)? The Planning Board’s motion to designed to assuage the fears of those who think the new bylaw will lead to too much density in residential neighborhoods. They do want affordable housing, you see. Just not in residential neighborhoods.

Rather than bleat on about this any more* I shall simply draw your attention to this article in last October’s Atlantic Monthly: Why Middle Class Americans Can’t Afford To Live in Liberal Cities.

* Final Cato the Elder ceterum-censeo style bleat: Please repeal this wretched bylaw root and branch before it kills any more potential home-building in Amherst.

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It’s Cromwell’s Birthday, Cry If You Want To

cromwell statue

Oliver Cromwell: Advocate of Plain English

On April 25, I note without celebration the anniversary of the birth of Oliver Cromwell: squire, soldier-statesman, and slayer of civilians. During the wars of the 1640s Cromwell ordered the slaughter of innocents in Ireland, an abomination that not even the most ardent of Roundheads (of which I am one) should attempt to rationalize or excuse.

So, mindful of the aphorism attributed to Fritz Perls regarding the fimetic quality of everything that precedes the word “but,” I now have to explain why the birthday of this bloody man is worthy of note in the relatively pancytopenic field of legislative drafting.  My reason has to do with Cromwell’s belief that writing should be simple, a principle I flouted in the preceding sentence by using “fimetic” and “pancytopenic,” words that are not exactly in everyday parlance.  My word choice would have annoyed Old Noll, as his adoring public called him.

As Lord Protector, Cromwell appointed a law-reform committee and charged it with making the laws “plain, short, and easy.” This was one of the achievements he announced in his speech to Parliament on September 12, 1654, in which he urged the honorable members to adopt the Instrument of Government, which would make him life-long Lord Protector.  Standing in a room full of politicians and referring to the establishment of a committee as an accomplishment deserving of reward is evidence that Cromwell knew his audience.

After listing his other successes, (e.g. peace with the Dutch, Swedes, and Danes) Cromwell told his listeners to think of him not so much as a “lord over them” but more as a “fellow servant.” Then he cautioned that before making him dictator for life they should look for evidence that the Almighty considered him up to the job:

[F]or men to entitle themselves to be the only men to govern nations and rule kingdoms and give laws to the world, to determine of property and liberty and everything else, needs a great manifestation of God’s presence before wise men will submit to it.

The Members of Parliament took Cromwell at his word and debated the proposal. However, when their search for a great manifestation of God’s presence took rather longer than he had anticipated, fellow-servant Cromwell sent four companies of the Scots Guards to summon them into his presence in the Painted Chamber at Westminster Palace. There he explained to the representatives of the people that their unanimous endorsement of the Instrument of Government in the “spirit of union and concord” really was the “best expedient and pilot to conduct them to the Haven of Happiness.” Surrounded by men bearing muskets, swords, and pikestaffs, a majority of the parliamentarians suddenly discovered the elusive manifestation of Divine approval they had been looking for, and voted aye.

Just to be on the safe side, the following morning Cromwell locked the doors to Parliament and took possession of the ceremonial mace, so as to put an end to what the official report of the speech and its aftermath called “these distractions.” Historians differ as to whether it is reasonable to describe the ensuing period (which entailed carving the country into military districts to facilitate the rule of the major-generals, a vigorous campaign against immorality, the ejection of dissident preachers, and the imposition of a decimation tax on Cromwell’s royalist opponents) as a Haven of Happiness.

What lesson does this episode offer to aspiring legislative drafters? Simply this: If promises of plain, short, and easy statutes do not prove persuasive, send in the army. But students thinking of enrolling in my one-credit Legislative Drafting course next semester should note that due to time constraints and lack of resources (the ROTC commandant has not returned my calls) we will not be exploring said option in much depth. Instead we shall look at less controversial approaches to lawmaking, such as this.

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Delusionary Zoning, Cont’d.

My previous post about Amherst’s inclusionary-zoning bylaw opened with a quote about the appropriate direction in which to move when standing at the edge of a precipice.  As if to compensate for its potentially Brian-Williamsical quality, a Facebook commenter provided a substitute, which I must remember to use from now on. After impugning my motives (stage two in the Kuebler-Ross model of online discourse) and asking who I am really working for (answer: Koch Brothers, obviously) he asked:

“[A]re you just interested in stampeding the herd with you at the front?”

In the unlikely event that I ever attempt to stampede a herd, I assure you that the front will be the very last place to find me. But I appreciate the image, and shall cherish the quote forever. You can read the whole, jolly FB exchange here.

Yesterday evening I joined the discussion off-line, a term not synonymous with “real world.” The Select Board was discussing the Planning Board’s proposal to replace the current inclusionary-zoning bylaw, Article 15, with a new version. Readers will recall that the purpose of Article 15, which Amherst adopted in 2005, is to increase the number of affordable units. Although fundamentally flawed, the current version at least has the advantage of being simple and, at about 400 words, relatively short. Moreover, it is constitutionally sound, applying only to projects that would require a Special Permit, as opposed to by-right projects.

How well has it worked so far, asked the chair?

At that point I heard the snarky little voice inside my head mutter, “We haven’t gotten any affordable units out of it. It’s been a deterrent.” Only it was not the snarky little voice inside my head. It was Rob Crowner speaking on behalf of the Planning Board, the proponent of the new Article 15.

“We haven’t gotten any affordable units out of it,” he said.  “It’s been a deterrent.”

Inclusionary zoning, whose sole raison d’être is the production of affordable homes in Amherst, has produced absolutely none. Not one. In ten years.

Repeal the bylaw before it does any more damage, send it the way of the Corn Laws; that would be my advice. Unlike my advice, however, the Planning Board’s observes the immutable law of zoning physics, which decrees that bylaws can only ever expand, never contract, let alone disappear.

Therefore, because the short, straightforward bylaw has proved an execrable failure, we must replace it with a bylaw that is not only long and complicated but also extends its reach to by-right developments, i.e. home-building projects that would not require a Special Permit.

Inclusionary zoning has produced no affordable housing, said Mr. Crowner. Rather, it has been a deterrent (as in, something that deters). It has discouraged, not encouraged, affordable housing. If the herd was ever going to stampede away from inclusionary zoning, you would think this announcement would have provided sufficient spooking. But the floors did not vibrate with thundering hooves, and nobody got trampled. That said, there was an odor in the air redolent of the ranch.

Switching metaphors to matters nautical, picture this: His vessel holed below the Plimsoll line and sinking fast, the captain says to his crew, “Lads, we are taking on water. We need to let it out. Larry, you go below-decks and make holes, big ones and lots of ’em.  Take the sledgehammer and a stick or two of dynamite. Curly, you swim ashore and fetch a rock. Something about the size of an Easter Island statute should do.”

That is what the new Article 15 represents. More — much more — of the same.

The current Article 15 consists of about 400 words; the new version weighs in at around 2,000. The current version applies only to Special Permit developments; the new version covers by-right as well. Because of its potential to infringe on property-owners’ Fifth Amendment rights it contains a “nexus statement,” which claims the policy is necessary because affordable housing in Amherst is diminishing, even though it is not. In 2005 the stock of affordable housing stood at just over 10% and ten years later it still stands at just over 10%, which is not a diminution no matter what dictionary you use.

The Planning Board report described this dodgy nexus statement as “legally necessary.” I had emailed my doubts to the Select Board the day before the meeting, and the Town Manager had called counsel for clarity. Yesterday evening the Town Manager stated that the latest legal opinion describes the nexus statement as something that “would be helpful.” The thing went from absolutely necessary to just potentially helpful in next to no time. In a couple of days it will be, “Meh, probably couldn’t hurt.”

So the new Article 15 – all 2,400 words of it, legally indeterminate nexus statement and all – is what the Select Board voted in favor of, unanimously. Onward to Town Meeting, where I am sure it will engender much reasoned, thoughtful debate.

On the subject of reasoned, thoughtful debate, my coming out in opposition to inclusionary zoning led to a robust Facebook exchange that culminated in the quote about my stampeding the herd from the front. It thereby produced something of value, which is more than you can say for inclusionary zoning.

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Decorated combat vet hates America, says cartoonist: No threats or atrocities ensue

Congratulations to Lalo Alcaraz, creator of Vox Vickery’s inaugural Clunkily Unfunny Cartoon Award, which appears in the March 16 edition of the Daily Hampshire Gazette. Alcaraz’s cartoon consists of the words “Dear Iran, We hate the USA too” in a child-like scrawl on United State Senate letterhead, signed Tom Cotton and David Perdue.  Senators Cotton and Perdue are the first two signatories of the letter to the government of the Islamic Republic of Iran that points out that any nuclear-weapons-enabling agreement President Obama enters into with Iran will be one that the next President can revoke should s/he so choose.

For those who failed to receive and absorb the Obama administration’s message via other media, the cartoon will convey the news that the 47 elected members of the United States Senate who signed the letter to the misogynistic homophobic theocrats in Tehran are not merely the President’s political opponents but traitors who hate our country.

Does Senator Tom Cotton hate America? I cannot see into the man’s heart, of course, but judging by the decorations he earned over the course of his combat tours in Afghanistan as an officer in the 101st Airborne, I suspect he holds his country in high regard. But I could be wrong, and for all I know the brass hats in the Pentagon may be handing out Bronze Stars like candy nowadays to all and sundry, including people who hate America.

Sen. Tom Cotton: finally outed as a Hater of America

Mr. Alcaraz may not have put his life on the line, but he knows how to fight back against the forces of Islamic supremacism. When he learned of the murder of the Charlie Hebdo cartoonists by Islamist terrorists, Mr. Alcaraz was quick to respond. Apparently “overcome with outrage,” he drew a cartoon of a black-clad jihadi fleeing a swarm of pen nibs.  It went viral, I gather. But much as he supports free speech, he does not personally “feel the need” to draw Muhammad. Why? Because he respects Muslim religion and culture. Nothing to do with cranial-amputation anxiety, of course.

When not creating sledgehammer-subtle illustrations in the service of the Obama administration, Mr. Alcaraz rewrites the history of the United States so as to make clear what a wretched tale of oppression it is, draws the La Curacha comic-strip for the Los Angeles Times, and works as a “consulting producer” on Seth MacFarlane’s forthcoming Bordertown, an alleged comedy show coming to Fox all too soon. He must have an increasingly busy schedule. Let us hope he still has time to produce presidential propaganda so as to be in with a shot at next week’s Clunkily Unfunny Cartoon Award.

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