You know, for being a conservative verging on Libertarian, Rep. Dan Kaiser (R-3/Aberdeen) sure likes proposing laws. He's prime sponsor of seven bills in the hopper so far (and he has until Tuesday to come up with more!). But sometimes you've got to pass laws to protect liberty.

One of Rep. Kaiser's bills, House Bill 1134, rights a wrong discussed on this blog and highlighted by the South Dakota Supreme Court last fall. HB 1134 would remove the clause under which Beadle County state's attorney Michael Moore and Attorney General Marty Jackley were able to punish attorney Brandon Taliaferro (pronounced /TOL - li - ver/) for challenging abuses of Native American children in the foster care system. The state presented no evidence that Taliaferro had committed any of the crimes for which it arrested him, but one niggling statute allowed prosecutor Moore to block Taliaferro's request to expunge the arrest record and allow him to practice law and go about his business without further impact from the bogus charges Moore brought. The South Dakota Supreme Court recognized Moore's action unjustly harmed Taliaferro but said the law is the law and dismissed Taliaferro's effort to win expungement.

Rep. Kaiser now seeks to erase prosecutors' authority to block expungement of arrests. As Bob Mercer points out, Rep. Kaiser has the backing of some legal heavy-hitters:

Kaiser is a policeman and his record in the Legislature has tended to be one of protecting people’s personal liberties. His co-sponsors include two retired circuit judges, Rep. Timothy Johns, R-Lead, and Sen. Arthur Rusch, R-Vermillion, and two private attorneys, Rep. Lee Schoenbeck, R-Watertown, and Rep. Steven Haugaard, R-Sioux Falls [Bob Mercer, "Supreme Court: 'We Recognize This Is a Harsh Result'," Pure Pierre Politics, 2015.01.29].

As always, Mercer chooses his words carefully, but he appears to agree that the state treated Taliaferro poorly and that those poor treaters deserve some scrutiny:

The bill was assigned to the House Judiciary Committee; a hearing hasn’t been scheduled yet. The Tailaferro indictment looked, from the outside, to have been a strange chapter in law enforcement in South Dakota. Now the matter and the actions of the various sides will receive further light, to a degree they previously hadn’t, before the Legislature [Mercer, 2015.01.29].

HB 1134 won't restore Taliaferro, but it will protect innocent citizens like him from future abuses of prosecutorial power. Stay tuned for the House Judiciary hearing: we'll see if Attorney General Marty Jackley can defend this prosecutorial veto power over the expungement of their own erroneous persecutions before the Legislature the way he did before the Supreme Court.

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The war against cigarette liberty creeps into your home and your pocketbook. House Bill 1083 would allow rural fire districts and other political subdivisions to recoup the cost of fighting fires from the negligent folks who start them. HB 1083 would allow the fire district or the city fire department take folks to court to make them pay for a fire call if those folks let a controlled burn get out of control, fails to call in a fire, gets in the way of a firefighter, or drops a match or cigarette.

Uh oh—there it is! Section 1, clause 1—"cigarette, cigar, ashes of pipe"—don't you see what's happening? The nanny state is threatening your right to smoke the tobacco our Founding Fathers themselves proudly grew (actually, George Washington saw tobacco wasn't a sustainable crop and switched to grains in 1766, but hush!) by allowing the government to sue smokers... for smoking! In the privacy of your own home!

Can you help it if you drowse off after enjoying a fine cigarette and then gravity—cursed gravity!—pulls your butt to the carpet? Unfair! you should cry. Liberty! you should cry. Down with House Bill 1083! you should cry.

I look forward to the tobacco lobby coming to Pierre to demand that House Judiciary remove smokers from HB 1083.

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Rep. Lynne DiSanto (R-35/Rapid City) is already requiring legislators to talk about breasts; now she's going to have them saying "clitoris" on the House floor.

House Bill 1089 would make it a Class 4 felony to mutilate female genitalia. Some cultures think female genital mutilation is an acceptable practice. HB 1089 takes the anti-multicultural position that these cultures are wrong and would suppress this cultural practice in South Dakota.

Rep. DiSanto and I would have gotten along swimmingly back in my SDSU days when I was listening to Rush Limbaugh and waging war against my profs for teaching multiculturalism in my education classes. "If our calling as teachers is to respect and celebrate other cultures," I would ask my profs, "how do we deal with cultural practices that harm the health and dignity of our students?" Had I known about female genital mutilation at the time, I'd have held it up as Exhibit #1 of the limits of multiculturalism.

I've given up Rush, but I maintain my apparent agreement with Rep. DiSanto that some cultural practices deserve no tolerance, let alone celebration. The only reason I can think of to oppose HB 1089 (and I have to try to think of some reason, because hey, it's Lynne DiSanto!) is that it may be unnecessary. That same conservative me from 1992 who fought value relativism would also fight superfluous legislation. Might female genital mutilation already be covered by our statutes on assaults and personal injuries, or perhaps child abuse?

But that's an argument about the content of the law, not the cruel act House Bill 1089 opposes. Check with the lawyers and the LRC, but on face, HB 1089 looks like a good bill.

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Tuesday's debate in the House Health and Human Service Committee over House Bill 1058 suggests that some South Dakota lawmakers spend more time listening to the uninformed paranoia of constituent e-mails than (a) reading what the bills before them actually say or (b) trying to apply their purported ideological principles consistently

House Bill 1058 is the South Dakota Department of Health's effort to update South Dakota's statutes on managing and preventing disease outbreaks. Much of the bill clears out 1950s/1960s-era language focusing on tuberculosis and makes clear that the Department's epidemic-fighting authority applies to communicable diseases like Ebola and virulent agents weaponized for bioterrorism.

Deputy Secretary of Health Tom Martinec did a good job of explaining in committee Tuesday (listen to his testimony beginning just after timestamp 16:08) what HB 1058 does and what it does not do. Among the does-not-dos:

  • HB 1058 does not make it a crime to have a communicable disease.
  • HB 1058 does not make it a crime to expose others to a communicable disease; current statute already does that. Section 4 of HB 1058 preserves that language.
  • HB 1058 does not give the state the authority to force vaccinations; SDCL 34-22-6 outlaws forced vaccination. Section 15 of HB 1058 requires folks suspected of carrying Category I diseases or diseases declared a public health emergency to get diagnosis and treatment. Section 15 does not order preventive measures like vaccines.
  • HB 1058 does not force South Dakotans to submit to a specific government mandated treatment; Section 16 preserves language on the books since 1963 protecting individuals' right to seek diagnosis and treatment from their own doctors.

From my own reading of HB 1058, I add the following observations of things HB 1058 does not do:

  • HB 1058 does not give the Department of Health new quarantine powers. SDCL 34-22-1 already empowers the Department of Health to essentially close the state's borders to stop any communicable disease and detain any person carrying a disease threat across our borders. SDCL 34-22-9 already authorizes the Department of Health to "Prescribe methods and procedures for the control of communicable disease patients and carriers," which clause is not qualified with any restriction on quarantine. Sections 2 and 7 of HB 1058 simply clarify existing quarantine power.
  • HB 1058 does not preserve three 1963 statutes (SDCL 34-22-7, -37, and -40) that required the state to pay for tuberculosis treatments. I understand the policy distinction here: in 1963, the state was declaring war on tuberculosis, committing to eradicating the chronic public health threat, while HB 1058 makes clear the authority of the Department of Health to confront new and evolving public health threats. But I do find it a bit odd that HB 1058 does not make explicit our willingness as a community to bear the cost of implementing our own epidemic control procedures... especially when this same state government refuses expand Medicaid under the Affordable Care Act to help tens of thousands more South Dakotans be able to afford the kind of diagnosis and treatment the state might mandate.
  • Perhaps most importantly, HB 1058 does not appear to reduce any due process rights available under current law. Section 33 makes explicit the procedure the Department of Health can already follow to obtain a court order to enforce quarantines and other public health interventions. As Deputy Secretary Martinec explained in committee, a public health intervention order states that individuals have a statutory right to contest the order in court.

Contrary to the clear text of HB 1058 and the clear explanation from Deputy Secretary Martinec, a clump of conservative Republican legislators lobbed a jumble of unfounded fears and ill-formed anti-government rhetoric at this public health measure. Newly elected Rep. Steven Haugaard (R-10/Sioux Falls) asserted that the bill seems to expedite the due process of individuals, despite the absence of any language in the bill changing whatever due process surrounds court orders on quarantines or other measures. Rep. Haugaard fretted over the prospect that HB 1058 could expand to include flu (even though he himself acknowledged flu is a not a Category I disease subject to the bill text before the committee), but then fretted that flu is killing more people in South Dakota than the Ebola that motivated HB 1058.

Rep. Haugaard and Rep. Steve Hickey (R-9/Sioux Falls) both complained that HB 1058 was like the overreach of authority that government committed following the September 11, 2001, terrorist attacks, yet neither legislator proposed an amendment to repeal the public health emergency law passed overwhelmingly by the South Dakota Legislature in 2002 that gives the Department of Health some of the "overreach" power it can use with or without HB 1058.

Rep. Haugaard offered as his legislating principle a sort of arch-conservative shadow-of-a-doubt standard: he said that if anything about a bill gives legislators pause—and he noted that even the supporters of HB 1058 expressed concern about protecting individual liberties—then we should vote the bill down. Rep. Haugaard evidently wasn't paying attention in 2012, when one of the main Republican arguments defending the education reform bill that raised numerous doubts about was that we couldn't just do nothing, that we had to try some sort of change and see if it worked.

Rep. Haugaard even asserts that the Ebola epidemic in Africa was overblown. The only reason the concern may look overblown now is that African countries took steps at least as drastic as the provision of South Dakota law clarified by HB 1059 to stop Ebola in its tracks.

Rep. Lana Greenfield (R-2/Doland) said that making people take their temperature twice a day and putting them in a holding tank seems extreme to her. She said she'd rather be stoned in the town square. Baffled as to how to respond to that nuttiness, Deputy Secretary Martinec thanks Rep. Greenfield for her comment, said he "would respectfully disagree," and characterized HB 1058 as a reasonable and judicious effort to balance individual freedom with protection of the public.

Of all people, committee chair Rep. Scott Munsterman (R-7/Brookings) closed the discussion of HB 1058 with one of the most sensible comments on rights: "Think about the masses who also have the liberty to be disease free and not be exposed."

Rep. Munsterman's sentiment, a Republican embrace of the general welfare over extreme individual liberties, won the day, leading an 8–5 vote to send HB 1058 to the House floor. The bill has been deferred, as the Department of Health, far from plotting an authoritarian takeover, is working on clarifications to address the concerns it has heard.

Frankly, the only amendment it appears we need is a provision to quarantine radical conservatives from infecting the Legislature and threatening public health with their ideological nuttiness and blindness to the text on the page.

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I'm not sure what sector of the electorate Gordon Howie thinks he's targeting by investing so much of his blog energy in blowing smoke for Annette Bosworth. Continually stumping for an admitted lawbreaker and fake conservative who showed no ability to build a viable campaign in South Dakota serves neither Howie's objective of building an effective opposition voting bloc nor the higher aims of justice. Neither will defending Bosworth with errors of fact and law.

In his latest excuse for Bosworth's petition circulation felonies, the re-energized conservative blogger Howie repeats the charge that the Attorney General's prosecution of Bosworth is unfair given all the other alleged violations of petition rules that go unpunished or lightly punished:

Many petitions circulators have violated this “oath” by not “personally witnessing” every signature.  In South Dakota, just a few years ago, six Republicans were found guilty in a case that involved as many as 1,400 signatures.  Their penalty… a $200.00 fine.  Now, for an alleged violation involving 37 signatures, Annette Bosworth is facing 24 years in prison, thousands of dollars in fines and the loss of her license to practice medicine.  Seem fair to you?? [Gordon Howie, "Is Your Legislator Guilty?" The Right Side, 2015.01.22]

Howie refers to a ballot probe in 2004 that found six Republican get-out-the-vote operatives, including future state legislator Todd Schlekeway, notarized absentee voter applications without personally witnessing the applicants' signatures. Note that Schlekeway et al. were not circulating petitions; they were soliciting absentee voting applications, thus invoking charges under different law. As I explained in July, Schlekeway's violation of his notary seal was a misdemeanor. He pled guilty and received a misdemeanor penalty.

In the Schlekeway case as in the Bosworth case, the Attorneys General (Long then, Jackley now) have acted to uphold the letter and spirit of the law while protecting voters from disenfranchisement. If Howie wants to invoke the Schlekeway precedent, then the fair outcome would be that Bosworth would plead guilty to her felony and receive her felony penalty.

Trying to fabricate a defense for Bosworth out of thin air and grade-school excuses, Howie accuses a majority of South Dakota legislators of committing the same crime and challenges them to deny it:

Actually, the practice of “not personally witnessing” petition signatures is widespread, but rarely challenged.  Certainly not to the level of felony charges.

Here is the question for every Legislator in South Dakota, both past and present:

Will you swear that you personally witnessed every single signature on every petition you have circulated?

There are, no doubt, some who can respond in the positive.  They will be in the minority.

Howie made this same baseless and cowardly charge for the same Boz-crush purpose at the beginning of the month. His charge is logically, legally, and factually wrong because...

  1. Howie cannot name a single guilty party.
  2. Howie produces no example of a petition with evidence of a false circulator's oath.
  3. Howie confuses a rhetorical question for logical proof.
  4. Howie shifts the burden of proof from prosecutors (who can slam-dunk meet that burden against Bosworth in court) to the unnamed defendants under his blanket accusation.
  5. Howie forgets that every legislator who circulated a nominating petition has already answered Howie's rhetorical challenge by signing the circulator's oath.

Howie's last resort may be the appeal for mercy. Note his inclusion in the list of consequences for Bosworth the fact that a felony conviction could cause her to lose her medical license.

Commit one felony, get kicked out of your profession? Welcome to my world. State law says South Dakota teachers can lose their teaching licenses for committing any crime involving moral turpitude or drugs. The Professional Teachers Code of Ethics puts my teaching license at risk if I engage in any act the results in a conviction. I suspect other licensed professions have similar rules. Professional status carries special burdens.

If Howie wants to propose revoking all professional licensure requirements in South Dakota and declare that criminal records should bear no weight on allowing people to teach or practice medicine, I invite him to lay out that case. If Howie can produce evidence of petition fraud by other candidates, I invite him to lay out the evidence. So far in his fresh Boz-crush, he has done neither... and even if he does, such arguments and evidence will have no bearing in front of Bosworth's judge next month.

124 comments

When I first read House Bill 1044, I thought I saw amidst the style and form changes a small attack on teachers' labor rights. Reading the bill in the context of other statutes, rules, and practice have me thinking HB 1044 may not wreak much practical havoc in teachers' days.

Two parts of HB 1044 alarmed me:

  1. Section 10 appears to change who can start the process to take away a teacher's certificate. Current law says only "[t]he school board or governing body employing a teacher or administrator, the professional teachers practices and standards commission, professional administrators practices and standards commission, or the secretary of the Department of Education" may initiate a revocation or suspension proceeding. HB 1044 gives "any person" that right.
  2. Section 17 authorizes the Department of Education to "assess all or part of its actual costs for the proceeding" against a teacher who loses his or her certification in such a complaint proceeding.

Section 10 seems to open the door for grouchy parents to bypass local school board protocols and go after not just a teacher's job but statewide employability. However, as I understand from conversations with an education expert who prefers not to be caught cavorting on the blogs, grouchy parents and anyone else already enjoy the right to file complaints against teachers and challenge their certificates at the state level.

Hang on, here's where things get messy. Chapter 13-42 and Chapter 13-43 of state law appear to create separate streams for complaints against teachers. Chapter 13-42, dealing with certification, gives the Secretary of Education authority to certify or decertify teachers. Chapter 13-43, on employment of teachers, creates the Professional Teachers Standards and Practices Commission, which promulgates the Professional Teachers Code of Ethics and a complaint procedure there-around. These two chapters both mention complaint procedures. The Standards Commission's complaint procedure doesn't qualify who can file a complaint; the only relevant language just refers to "any person." The Standards Commission can't yank a certificate, but it can recommend that the Secretary of Education do so.

Existing statute thus seems to create two paths for complaints to the state against teachers: employers can complain directly to the Secretary of Education, while anyone can complain to the Standards Commission. In practice, the Department of Education has been directing all complaints from anyone to the Standards Commission. HB 1044 seeks to clarify and codify that there is one path, open to any all, to challenge a teacher's certificate in Pierre.

To my concern about maintaining a local filter for complaints, we can turn to existing Standards Commission rules. The Standards Commission specifies that "The formal written complaint shall identify the sections of the code of professional ethics alleged to be violated, the name and position of the individual involved, and local efforts to resolve the problem." That current rule requires anyone bringing an ethics complaint against a teacher to the state to explain what they've done at the local level—conversations with the teacher, formal complaints to the school administration—to address the alleged problem. This rule allows the Standards Commission to see if complainants have exhausted local remedies and turn them back if they haven't. That rule would appear to cover the complaint procedure post-HB 1044, but if it doesn't, Section 3 of HB 1044 grants the Standards Commission rule-making authority over "procedures for denial or nonrenewal of a certificate and disciplinary proceedings and assessment of costs," meaning the Standards Commission could easily work up a parallel rule on local protocols.

Section 10 clarifies that what look like two paths for complaints are really the same path and will be treated as a single path post-HB 1044. Section 17, on costs, makes a similar clarification. Complaints to the Standards Commission (Chapter 13-43) are heard as contested cases, a legal term that subjects those complaints to a whole nother chapter, SDCL 1-26. That chapter states that any professional who gets a ding on his or her license may be charged part or all of the cost of the proceedings that led to that ding. Evidently teachers who get dragged through the Standards Commission wringer, are found to have been naughty, and suffer some action against their certificate are already subject to paying for their complaint procedure. HB 1044 simply makes clear that, yes, the existing rules on cost recovery apply to complaints on teachers, whether those complaints go to the Secretary or the Standards Commission. It's all the same process.

Section 17 looked a little unfair in subjecting the decertified teacher to those costs but not an unsuccessful complainant for bringing bogus charges. But those proceedings costs, says my expert acquaintance, are usually limited to fees for publishing legal notice of the action. If there is no action, there's nothing to publish, and thus no cost to impose on a complainant.

I'm glad I'm not the Department of Education expert who has to explain House Bill 1044 to legislators. The bill goes to House Education, probably next week. I encourage Chairwoman Sly, Vice-Chair Johns, and my District 8 man Mathew Wollmann to ask the DOE reps lots of questions to make sure HB 1044 is as relatively harmless as it now seems and that there is not some lurking threat to teachers' due process rights.

Update 15:13 CST: I was curious just how often the Professional Teachers Practices and Standards Commission fields complaints about teachers and how often the state takes adverse action against teachers' certificates. The Department of Education provided me with the following relevant responses:

  1. The Standards Commission received 15 complaints in 2014.
  2. 10 of those 15 complaints came from members of the public. Superintendents and the DOE itself have initiated complaints against teachers.
  3. DOE confirms that, as indicated above, ARSD 24:08:04:01:01 authorizes "any person" to initiate a complaint to the Standards Commission.
  4. Of the 15 complaints in 2014, six have gone to hearing.
  5. Based on complaints to the Commission, the Secretary suspended or revoked two teaching certificates in 2012, one in 2013, and three in 2014.
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Folks who ran for office here in South Dakota have eleven days to file their year-end campaign finance reports. As Bob Mercer noted Tuesday, that impending deadline has not stopped Secretary of State Shantel Krebs from unplugging the online campaign finance filing system for an upgrade. Secretary Krebs is busy—Mercer also reports that her office has processed 1,300 pistol permits since Krebs took charge on January 2. "Evidently," says Mercer, "a lot of public business had been left waiting for the new crew." (Yes, I do believe that is Mercer snarking on Gant again.)

Among other business Secretary Gant left for Secretary Krebs to handle is obtaining Chad Haber's delinquent campaign finance report. I check the campaign finance search portal and find that every statewide candidate from 2014 is up to date on filings except for the Libertarian candidate for Attorney General. Everyone else got their pre-general reports in by the October 24 deadline, with the exception of Constitution Party PUC candidate Wayne Schmidt, who waited until November 24. But Haber hasn't checked in with the state since September 2, when he declared on his financial interest statement that he had no sources of income greater than $2,000 and that his job was "full-time candidate."

You'd think a "full-time candidate" would have an easier time filing reports and following the law than those other poor slobs who ran for office while holding down regular jobs.

Secretary Krebs glances up from the big pile of papers on her desk and tells me that Haber faces a $3,000 penalty, the maximum allowed under SDCL 12-27-29.1. If he fails to file his year-end statement by February 2, Secretary Krebs will be able assess another $50 per day delinquent, up to another $3K.

Here's the campaign finance disclosure form—don't be late, candidates!

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The Senate State Affairs Committee heard concerns from the American Civil Liberties Union this morning that the petition reform legislation working its way through Pierre may need some changes to protect ballot access for new political parties.

In testimony on Senate Bill 69, South Dakota ACLU policy director Libby Skarin said her organization understands the overarching reasons the Board of Elections has proposed this bill along with SB 67 and SB 68, to improve the validation process for nominating petitions. However, said Skarin, moving the petition circulation period one month earlier, to a submission deadline at the end of February, creates ballot access issues, especially for new political parties seeking official recognition from the state. Skarin said that the ACLU brought litigation in 1984 challenging a February petition deadline and got that deadline moved later.

To flesh out the ACLU's opposition, Skarin recruited Richard Winger, the ballot access expert blogger Ken Santema cited yesterday in contending that SB 69's February deadline may violate the Constitution. Testifying by phone from out of state on the kind indulgence of committee chairman Senator Tim Rave, Winger said that the Supreme Court has held that states must allow new parties to form in the spring of an election year. He noted that the Republican Party formed in July 1854 in response to the Kansas-Nebraska Act passed that spring. Winger said South Dakota is the only state that requires new parties to petition for status before the primary elections. He said there is no need for new parties to form before the primaries.

Winger and Skarin did not ask the committee to reject Senate Bill 69 or even any portion of it. They asked instead that the Legislature add language moving the petition filing date for new parties back to a more reasonable and Constitutional summertime date and allow new parties to nominate their candidates at convention. Neither had a formal amendment fleshed out to present to the committee this morning, but Skarin said she could have a proposal to senators by the end of the day.

Building on the ACLU's point about ballot access, Senator Bernie Hunhoff (D-18/Yankton) said the February deadline could make it much harder for legislators to help their parties recruit candidates. It's hard enough getting people to run, said Senator Hunhoff. Move that recruitment period to the holidays and the heart of Session when legislators are busy in Pierre, and even more ballot slots may go unfilled. Senator Hunhoff proposed that State Affairs defer SB 69 to allow a couple days to draft legislation that would cover the ACLU's concerns and perhaps create a provision to allow party chairs to fill ballot slots left empty at primary filing time.

When Senator Hunhoff asked her if such a proposal would complicate the election process at all, Secretary Krebs mentioned that parties right now can recruit placeholders to achieve the same end but said she'd have to check with her staff to see if they could think of any complications.

Senator Corey Brown (R-23/Gettysburg) said deferring the bill wouldn't change the indigestion he was feeling over Senator Hunhoff's proposal. Senator Brown said he finds the whole placeholder concept "abhorrent," and he didn't sound any more enthusiastic about letting party chairs pick nominees for blank spots. He also seemed uneasy about letting new parties nominate legislators at convention, as if facing an opponent selected by just a handful of his neighbors was an affront to democracy.

Chairman Rave, sounding a bit irked to have spent 50 minutes on this one bill, nonetheless urged and the committee agreed to defer SB 69 to Friday, when he promised to handle the bill briefly (translation: if you've got amendments, Bernie, they'd better short and sweet).

Senate State Affairs felt no need to delay SB 69's companion legislation, SB 67. That bill, which would set the second Tuesday in March as the deadline for filing court challenges against nominating petitions, drew no opposition and moves to the Senate floor.

But proceed carefully, Senate: SB 67 and SB 68 (which passed Senate Local Government this morning) only makes sense if SB 69 passes without amendment to its petition submission deadline of the last Tuesday in February. Make changes to SB 69 without changing SB 67 and SB 68, and you'll have a statutory spaghetti spill on your hands. (Remind me, Board of Elections, why we didn't write all these changes into one bill?)

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